                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-29-1994

United States of America v. Schein
Precedential or Non-Precedential:

Docket 93-7809




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"United States of America v. Schein" (1994). 1994 Decisions. Paper 96.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/96


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                   UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                            ___________

                       Nos. 93-7809 & 94-7000
                            ___________


                      UNITED STATES OF AMERICA
                                      Appellant at No. 94-7000

                                 v.

                        MICHAEL M. SCHEIN,
                                     Appellant at No. 93-7809

                            ___________

          Appeal from the United States District Court
             for the Middle District of Pennsylvania
             (D.C. Criminal Action No. 93-cr-00097)

                            ___________

           Submitted Under Third Circuit LAR 34.1(a)
                         June 24, 1994


        PRESENT:   BECKER and HUTCHINSON, Circuit Judges,
                    and PADOVA, District Judge*


                       (Filed July 29, 1994)
                            ____________




Mr. Michael M. Schein
253 North Hartley
York, PA     17404
               Pro Se Appellant in No. 93-7089
               Pro Se Appelee in No. 94-7000




_______________



                                 1
*   Hon. John R. Padova, United States District Judge for the
    Eastern District of Pennsylvania, sitting by designation.




                                2
David M. Barasch, Esquire
  United States Attorney
Dennis C. Pfannenschmidt, Esquire
  Assistant United States Attorney
Office of United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA     17108
               Attorneys for United States of America

                             ____________

                        OPINION OF THE COURT
                            ____________


HUTCHINSON, Circuit Judge.



            Appellant, Michael Schein ("Schein"), appeals a final

judgment of conviction on obscenity charges entered against him

by the United States District Court for the Middle District of

Pennsylvania.    The government cross-appeals from the district

court's decision to depart downward from the Sentencing

Guidelines and place Schein on probation.      We will affirm

Schein's conviction but vacate the sentence of probation because

the district court did not give its reasons for departing

downward.    Accordingly, we will remand the case to the district

court to give it an opportunity to make findings in support of

its downward departure or, in the absence of evidence to support

such findings, to resentence Schein within the applicable

guideline range.

            Schein was indicted by a federal grand jury on eight

counts, five for mailing obscene materials (Counts One through

Five), one for making false declarations (Count Six), and two for


                                  3
criminal forfeiture (Counts Seven and Eight).    After Schein

waived his right to a jury, the district court held a bench trial

and found him guilty of Counts One through Five, not guilty of

Count Six and disposed of Counts Seven and Eight charging

forfeiture on the basis of a stipulation.

          At trial the government presented five tapes it had

ordered from Schein's mail order catalog.    The tapes contain

graphic depictions of urination, masturbation, and oral and anal

sex among homosexual males.    The district court found these tapes

were obscene and thus determined appellant was guilty of mailing

obscene material in violation of 18 U.S.C.A. § 1461 (West 1984).

Departing downward, the court sentenced Schein to twelve months

probation.

          In his appeal Schein argues the district court wrongly

concluded his videotapes were obscene.1    On cross-appeal the

government argues the court's downward departure from the

applicable Sentencing Guidelines range of eighteen to twenty-four

months, to a sentence of twelve months probation, is not in

accord with law.

             We first consider Schein's appeal from his conviction.

Obscene material is not protected by the First Amendment. Whether

material is obscene is judged under the three part Miller test.



1
 Appellant also argues the firearms the   government seized from
him should be returned. This issue was    not presented to the
district court, and therefore it is not   properly raised on
appeal. Nevertheless, we note that the    government has agreed to
have a licensed federal firearms dealer   sell the weapons and have
the proceeds distributed to Schein.

                                  4
See Miller v. California, 413 U.S. 15 (1973).    This test requires

us to determine:
          (a) whether "the average person, applying
          contemporary community standards" would find
          that the work, taken as a whole, appeals to
          the prurient interest[]; (b) whether the work
          depicts or describes, in a patently offensive
          way, sexual conduct specifically defined by
          the applicable state law; and (c) whether the
          work, taken as a whole, lacks serious
          literary, artistic, political or scientific
          value.



Id. at 24 (citation omitted).    In deciding whether the evidence

was sufficient to find Schein guilty of mailing obscene material,

we must consider whether there is substantial evidence, viewing

the record in a light most favorable to the government, to

support the factfinder's verdict of guilty.    Government of the

Virgin Islands v. Williams, 739 F.2d 936, 940 (3d Cir. 1984).

          Schein claims the tapes are not obscene because

photographs of "urolagnic" pornography by Robert Mapplethorpe

were shown at an exhibit funded by the government's National

Endowment of the Arts.   We reject this argument.   Schein is not
Mapplethorpe and it is plain that Schein's tapes lack serious

artistic value, whatever artistic merit Mapplethorpe's work may

have.   Moreover, mere availability of similar material is not a

defense to obscenity.    Hamling v. United States, 418 U.S. 87, 126

(1974) ("'Mere availability of similar material by itself means

nothing more than that other persons are engaged in similar

activity.'")   (quoting, United States v. Manarite, 448 F.2d 583,

593 (2d Cir. 1971)).



                                 5
            Schein next claims his videotapes come within part (c)

of the Miller test excluding certain expressive materials from

the class of those that are obscene because Schein's tapes

promote sexual safety and therefore serve an important social

interest.    We agree with Schein that materials which promote

public health are not obscene just because they graphically

depict human sexual or excretory acts.    Nevertheless, this

argument also fails.
          The proper inquiry is not whether an ordinary
          member of any given community would find
          serious literary, artistic, political, or
          scientific value in allegedly obscene
          material, but whether a reasonable person
          would find such value in the material, taken
          as a whole.



Pope v. Illinois, 481 U.S. 497, 500-01 (1987) (footnote omitted).
Considering Schein's videotapes in their totality, we conclude

that the district court did not err in deciding they served no

serious public purpose.   As noted in Miller, "'[a] quotation from

Voltaire in the flyleaf of a book will not constitutionally
redeem an otherwise obscene publication.'"    Miller, 413 U.S. at

25 n.7 (quoting Kois v. Wisconsin 408 U.S. 229, 231 (1972)).

Schein's videotapes are not redeemed because the participants in

the homosexual acts he depicts wear condoms and the viewers are

reminded, from time to time, to have "safe sex."

            Finally, Schein argues he is not guilty because he took

measures to make sure his videos were sold only to consenting

adults, and therefore neither the "average person" nor the

"community" were exposed.    Accordingly, he contends it is wrong


                                 6
to judge his work under Miller's "average person" or "community

standards" test for obscenity.     The taking of precautionary

measures to make sure obscene materials are distributed only to

consenting adults is not a defense to distribution of obscene

material.   Obscene materials are not immune because only

consenting adults see them.      Paris Adult Theatre I v. Slaton, 413

U.S. 49, 57 (1973).   Schein claims that Paris is distinguishable

because an adult movie theater has more impact than the viewing

of videotapes in the privacy of one's home.     We do not believe

this distinction is material.     The law prohibits use of the mails

to distribute obscene material, and the Supreme Court has decided

obscene material is no less obscene because it is viewed only by

consenting adults.    "We categorically disapprove the theory . . .

that obscene, pornographic films acquire constitutional immunity

from state regulation simply because they are exhibited for

consenting adults only."   Id.     Moreover, it would be impossible

for Schein or any other purveyor of obscene materials to provide

any real assurance that the persons ordering the obscene

materials were all consenting adults who would restrict their

viewing to themselves or their families in a private setting.

            In its cross-appeal the government contends the

district court erred in departing downward from the Guidelines

sentence.   The district court's power to depart downward is a

legal question subject to plenary review.      United States v.
Higgins, 967 F.2d 841, 844 (3d Cir. 1992).     Whether a departure

was based on incorrect factual findings, however, is judged under



                                   7
the clearly erroneous standard.       United States v. Shoupe, 929

F.2d 116, 119 (3d Cir.), cert. denied, 112 S. Ct. 382 (1991).

           Here the sentencing court departed downward from the

guideline range of eighteen to twenty-four months incarceration

to twelve months probation.   It concluded, "the sentence required

by the guidelines overstates the seriousness of the offense

committed by the defendant in this case, particularly as he is a

first offender . . . ."   Appendix at 112.     This conclusory

statement is not adequate for us to determine whether Schein

meets any of the guideline requirements for downward departure.
               [T]he Sentencing Reform Act requires a
          sentencing court to impose a sentence within
          the range prescribed by the Guidelines
          "unless the court finds that there exists an
          aggravating or mitigating circumstance of a
          kind, or to a degree, not adequately taken
          into consideration by the Sentencing
          Commission in formulating the guideline that
          should result in a sentence different from
          that described." 18 U.S.C.A. § 3553(b).
          "This provision is mandatory."



Shoupe, 929 F.2d at 119 (quoting United States v. Uca, 867 F.2d

783, 786 (3d Cir. 1989)).   Moreover, there is no provision in the

Sentencing Reform Act or the Guidelines that provides for a

downward departure because Guidelines overstates the seriousness

of the offense, (in contrast, e.g., to overstatement of the
seriousness of the defendant's criminal record).      Under U.S.S.G.

§ 5H1.4, however, "an extraordinary physical impairment may be a

reason to impose a sentence below the applicable guideline range

. . . ."   Schein, an avowed homosexual, has tested HIV positive,

and he may have a related serious physical complication.         Thus,


                                  8
there may be a reason to grant a downward departure in his case.

The district court, however, has not made any findings on the

extent to which Schein suffers from physical impairment.

Therefore, there is no basis in the present record on which this

Court could decide that any mitigating circumstances relating to

Schein's health exist that would justify the district court's

downward departure.   Accordingly, we must vacate the sentence of

the district court and remand this case for further appropriate

findings or, in their absence, resentencing within the

Guidelines.

          We will affirm Schein's conviction, but, on the

government's cross-appeal, we will vacate his sentence and remand

to the district court for further proceedings consistent with

this opinion.




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