The opinion of the court was delivered by: CURTIN
On October 25, 1985, after a jury trial, defendant James A. Gantzer was convicted of a single count of transmitting obscene materials through the mail (18 U.S.C. § 1461). Defendant now moves for an order granting a judgment of acquittal or, in the alternative, for a new trial pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure, respectively, on essentially three grounds.
First, defendant argues that this court's refusal to exclude certain photographs which were the subject of the instant indictment constituted error, given the defendant's willingness to concede the issue of the photographs' obscenity, their lack of relevancy, and their obvious prejudicial effect of same upon the jury. Second, defendant contends that this court's refusal to exclude certain evidence which the government proffered to show defendant's predisposition to commit the crime with which he is charged constituted error because it did not indicate that defendant had previously committed same or similar crimes and because this evidence was confusing and prejudicial. Finally, defendant says that his right to privacy requires a judgment of acquittal here. These arguments will be considered at greater length below.
Defendant's reliance on the case of United States v. Borello, 766 F.2d 46 (2d Cir. 1985), in support of his first argument is misplaced for a number of reasons. In Borello, the defendant was not charged with transmitting obscene materials but with Customs violations, 18 U.S.C. § 542 (entry of goods by means of false statements) and 18 U.S.C. § 545 (smuggling goods into the United States). The government's attempt to introduce the seized obscene films into evidence in that case was rebuffed by the court because the probative value the exhibits had was minimal, and they obviously would have a sharp, prejudicial effect upon the jurors. In Borello, the government chose not to bring an obscenity charge but was trying to use the materials to prejudice the Jury unfairly.
In contrast, the charge in this case is one of obscenity. Obscenity is the central element to be proven. Therefore, the government should be permitted to introduce evidence of the obscene material and not merely leave the question to the jury on the stipulation of the defendant. The defendant's motion on this ground is therefore denied.
Defendant's second argument in his present motion concerns the admission of certain evidence by the government of various letters and catalogs which were found at defendant's residence to show "predisposition."
Defendant argues that all of these documents should have been properly excluded from evidence by the court because 1) there was no evidence that any of the various exhibits were obscene; 2) there was no evidence that any of the various exhibits had passed through the mails at the request of defendant; 3) the admitted documents were unduly prejudicial and had little probative value; 4) the admitted documents were confusing, misleading, and collateral to the case at hand; and 5) the admitted documents did not evidence "predisposition" within the meaning of the law because they did not evidence commission or attempted commission of the same or similar crimes on previous occasions.
I find all of these arguments meritless. As the government points out in its brief, the government need not show that the defendant previously had committed the "same or similar crimes" in order to show predisposition. As is noted in the recent Second Circuit case of United States v. Mayo, 705 F.2d 62 (2d Cir. 1983), propensity can be established:
1) an existing course of criminal conduct similar to the crime for which the defendant is charged, (2) an already formed design on the part of the accused to commit the crime for which he is charged, or (3) a willingness to commit the crime for which he is charged as evidenced by the accused's ready response to the inducement.
Mayo, supra, at 68 (citin g United States v. Viviano, 437 F.2d 295, 299 (2d Cir.), cert. denied, 402 U.S. 983, 29 L. Ed. 2d 149, 91 S. Ct. 1659 (1971) (emphasis omitted). See also United States v. Thoma, 726 F.2d 1191, 1197 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S. Ct. 2683, 81 L. Ed. 2d 878 (1984) (wherein the Seventh Circuit enumerated many factors which go into determining predisposition, including "the character or reputation of the defendant")).
In the present case, this court permitted 1) evidence of defendant's mailing of the photographs after he had received only two letters from the undercover postal officer; 2) evidence of defendant's causing the mails to be used to obtain erotic materials from Danish distributors; and 3) evidence of defendant's causing the mails to be used to carry on correspondence of an erotic nature.
Given Mayo and the other cases cited above, I find that it was proper to admit into evidence Exhibits 2, 2 A. 3, 3A, 19, 22, 23, 24, 25, and 26. Therefore, I find that defendant is not entitled to acquittal on this ground.
Finally, defendant argues that there exists case law authority which requires that defendant be acquitted on privacy grounds. See Stanley v. Georgia, 394 U.S. 557 (1969); United States v. Dellapia, 433 F.2d 1252 (2d Cir. 1970); Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1970).
According to defendant, absent proof of commercial distribution of obscene material, the individual's right to receive and to possess information and ideas, regardless of their social worth, is paramount. Stanley, supra. In the Dellapia case, supra, the Second Circuit said that Stanley protects the privacy of confidential communication or the right to being let alone if that communication does not harm others. The court went on to say that we cannot "consider that this private relationship is any less private because the correspondence and films passed through the public mails." Dellapia, supra at 1258. Defendant also argues that the Miller case clearly indicates that it is only public solicitation and commercial exploitation, not private communication, that can be constitutionally and criminally prohibited.
Defendant contends that the evidence of this case clearly demonstrates that defendant was engaged in his correspondence with Postal Inspector Smith in his undercover guise as Frank Colati as an individual merely interested in sharing and exchanging "ideas, experiences and other subjects and topics of interest." (See Exhibit 4). Defendant says that because this correspondence was not entered into for ...