United States v. Arthur Randall Sanders, Jr., Gulf Coast News Agency, Inc., Trans World America, Inc., A/K/A Twa, Inc., and William Walter

592 F.2d 788, 1979 U.S. App. LEXIS 15720

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 2, 1979
• Docket: 77-5715
• Status: Published

Opinions

AINSWORTH, Circuit Judge:

Arthur Sanders, William Walter, Gulf Coast News Agency, Inc. (“Gulf Coast News”) and Trans World America, Inc. (“TWA”) appeal their convictions under 18 for conspiring knowingly to use a common carrier to ship obscene materials interstate, in violation of 18 U.S.C. § 1462, and knowingly to transport obscene matter interstate for the purpose of sale or distribution, in violation of 18 U.S.C. § 1465. Sanders, Walter and Gulf Coast News also challenge their convictions for substantive violations of sections 1462 and 1465.¹ Appellants all allege an unconstitutional search and seizure and attack the district court’s jury instructions on obscenity; appellant Walter further contends that he “was not shown to possess the requisite scienter.” We find these assertions to be without merit and therefore affirm the convictions.

I. Facts

According to the testimony at trial, on September 15, 1975, Richard Larson, the manager of appellant Gulf Coast News, located in St. Petersburg, Florida, ordered an employee to deliver 12 cartons, containing a series of 8 mm. films entitled “David’s Boys,”² to Greyhound Bus Package Express in St. Petersburg for shipment to Atlanta. The packages had a nonexistent return address and named a fictitious corporation, “D and L Distributors,” as shipper. Described as containing printed matter, they were sent on a “will call” basis to “Leggs, Inc.,” another fictitious company. “Legs” was the nickname of a female employee at appellant TWA’s Atlanta headquarters. When the cartons reached Atlanta, Greyhound forwarded them to a branch station located near L’Eggs Products, Inc. (“L’Eggs”), a manufacturer of women’s hosiery and regular customer of Greyhound Package Express. After Greyhound informed L’Eggs of the shipment, Michael Horton, a L’Eggs Products employee, came to the terminal, opened one of the cartons and discovered that it contained sexually explicit movies. Horton returned to the L’Eggs office and described the package’s contents to a superior, William Fox. Concerned that his company might be implicated in the transportation of pornographic films, Fox drove to the Greyhound station and brought the 12 cartons to the L’Eggs office. He and several other employees opened all the packages and found individual boxes of film. The top of each film box showed the name “David’s Boys” and a drawing of two nude males embracing and kissing; on the back of each were the title of the individual movie and a detailed description, in explicit terms, of the bizarre homosexual acts depicted in the film. Pox then telephoned the FBI, explained the nature of the films and asked “them to come out and take the materials away.” The FBI procured the films on October 1, 1975, and subsequently viewed them on a projector at its offices. No warrant was obtained.

Appellants Walter and Sanders, who jointly operated appellants TWA and Gulf Coast News, were indicted along with both corporations under 18 U.S.C. § 371 on one count of conspiring knowingly to use a common carrier to ship obscene materials interstate, in violation of 18 U.S.C. § 1462, and knowingly to transport obscene matter interstate for the purpose of sale and distribution, in violation of 18 U.S.C. § 1465. Gulf Coast News, Walter and Sanders were also charged with five counts of substantive violations of section 1462 and five substantive violations of section 1465.³ The jury convicted TWA of conspiracy and returned guilty verdicts as to Walter, Sanders and Gulf Coast News on all eleven counts. The district court fined TWA $10,000, Gulf Coast News $33,000 and sentenced both Walter and Sanders to three years in prison on each count, to run concurrently.

II. The Constitutionality of the Search and Seizure

Appellants first urge that the district court committed reversible error in failing to suppress the five films admitted in evidence at trial. Since appellants TWA and Gulf made no pretrial motion to suppress, they cannot raise this issue on appeal. United States v. Bush, 5 Cir., 1978, 582 F.2d 1016, 1018. Though appellants Sanders and Walter each made a timely motion to suppress and return the films, the district court sought to determine at the outset whether they had standing to challenge the constitutionality of the search and seizure. To establish such standing under traditional Fourth Amendment analysis, a defendant must either show presence on the searched premises at the time of search, allege a proprietary or possessory interest in the premises or objects searched or be charged with an offense that includes as an essential element possession of the seized evidence at the time of the contested search and seizure. See Brown v. United States, 411 U.S. 223, 229, 93 S.Ct. 1565, 1569, 36 L.Ed.2d 208 (1973); United States v. Hunt, 5 Cir., 1974, 505 F.2d 931, 939-40. “Generally, a defendant satisfies the standing requirement if he has an adequate possessory interest in the place or object searched to give rise to a reasonable expectation of privacy.” United States v. Hunt, supra, 505 F.2d at 938.

In denying appellants’ suppression motion, the district judge held that “shipping or causing or suffering to be shipped by a common carrier . with a fictitious name given for the shipper as well as the fictitious name given for the consignee or addressee, amounts to a relinquishment or abandonment of any reasonable expectation of privacy. Or, stated another way, it seems to me that it was reasonably foreseeable that what actually occurred would occur. That is to say, that there was substantial likelihood that the material would be misdelivered and fall into the hands of some third party, as actually happened in this case, where it would be opened and its privacy, if it had any, invaded.” There is merit in the district court’s conclusion. However, the Supreme Court has recently “dispens[ed] with the rubric of standing . by frankly recognizing that this aspect of the analysis belongs more properly under the heading of substantive Fourth Amendment doctrine,” Rakas v. Illinois, - U.S. -, 99 S.Ct. 421, 429, 58 L.Ed.2d 387 (1978) so we will focus “on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.” Id., - U.S. at -, 99 S.Ct. at 428.

A. The Search by L’Eggs Products Employees

Appellants Sanders and Walter argue that the L’Eggs Products employees, in opening the 12 cartons and examining their contents without a warrant, conducted an unconstitutional search. The Fourth Amendment’s warrant requirement, of course, is intended solely “as a restraint upon the activities of sovereign authority,” Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 576, 65 L.Ed. 1048 (1921), and “a search . . conducted by a private individual for purely private reasons, . does not fall within the protective ambit of the Fourth Amendment.” United States v. Lamar, 5 Cir., 1977, 545 F.2d 488, 489-90; United States v. Jones, 5 Cir., 1972, 457 F.2d 697, 699; Barnes v. United States, 5 Cir., 1967, 373 F.2d 517, 518. However, if under the circumstances of the case the private party “acted as an ‘instrument’ or ‘agent’ of the government,” the ostensibly “private” search must meet the amendment’s standards. United States v. Bomengo, 5 Cir., 1978, 580 F.2d 173, 175. See Lustig v. United States, 338 U.S. 74, 79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949). Before the L’Eggs Products employees ever contacted the FBI, they had on their own initiative taken the shipment of films from the bus terminal, opened the cartons, examined the individual film boxes and ascertained the nature of the films. Since “there is no indication in the record” that in so doing the L’Eggs employees “acted at the behest or suggestion, with the aid, advice or encouragement, or under the direction or influence of the F.B.I.,” we conclude that these activities constituted a private search, beyond the scope of the Fourth Amendment. United States v. Clegg, 5 Cir., 1975, 509 F.2d 605, 609.

B. FBI Acceptance of the Films

Nevertheless, Sanders and Walter contend that the FBI unconstitutionally seized the films, by accepting them from the L’Eggs employees without obtaining a warrant. In making this assertion, they rely principally on the Eighth Circuit’s decision in United States v. Kelly, 1976, 529 F.2d 1365. There, an employee of a common carrier discovered that a ripped-open carton of goods contained sexually explicit books and magazines and called the FBI, which sent an agent who examined several of the magazines and retained samples, without obtaining a warrant. Although the Kelly court said that the common carrier’s search was private, it held that the Government’s subsequent acceptance of the fruits constituted a seizure requiring a warrant, “unless there are special circumstances which excuse compliance with the . . warrant requirement,” decided that no exception to that requirement applied and concluded that the warrantless “seizure” was “so unreasonable as to necessitate the operation of the exclusionary rule.” Id. at 1371.

The result in Kelly conflicts with the reasoning implicit in a long line of private search decisions by the Supreme Court and this circuit. In every such case, introducing the fruits of a private search as evidence was impossible unless the private party had at some point surrendered the articles to the Government. Yet neither we nor the Supreme Court have ever held that government acceptance of those articles constitutes a seizure requiring compliance with the warrant requirement, even in cases where no exception to that requirement would have covered the Government’s action. See, e. g., Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); United States v. Lamar, 5 Cir., 1977, 545 F.2d 488; United States v. Blanton, 5 Cir., 1973, 479 F.2d 327; Barnes v. United States, 5 Cir., 1967, 373 F.2d 517. Thus, we decline to accept the Kelly court’s analysis.

In United States v. Sherwin, 9 Cir., 1976, 539 F.2d 1, the Ninth Circuit, sitting en banc, also rejected the Kelly rationale. Sherwin also involved a common carrier employee who examined the contents of damaged packages, discovered sexually explicit books and called the FBI, which sent agents who removed two books from the shipment, without a warrant. Citing Kelly, the Sherwin defendants argued on appeal that “a seizure to which the fourth amendment is applicable occurred . . . when the F.B.I. agents obtained the two books” from the common carrier, id. at 7, but the Ninth Circuit did “not regard the government’s acceptance of materials obtained in a private search to be a seizure” and concluded that “the fourth amendment [is] not implicated when articles discovered in a private search [are] voluntarily turned over to the government.” Id. We agree with the Ninth Circuit’s reasoning. Under the circumstances, we hold that the FBI’s acceptance of the “David’s Boys” films from the L’Eggs employees was not a seizure within the meaning of the Fourth Amendment.

C. Viewing of the Films

Appellants Sanders and Walter further assert, basing their argument on another Eighth Circuit case, United States v. Haes, 1977, 551 F.2d 767, that the Government conducted an additional unconstitutional search by viewing the films on a movie projector without obtaining a warrant. In Haes, the employee of a common carrier, seeking to identify the consignee of a shipment, opened a package, discovered sexually explicit films and contacted the FBI, which sent two agents with a movie projector to the common carrier’s office, where the films were screened without first obtaining a warrant. Declaring that “the inquiry must be whether the government” thereby undertook “any new or different searches,” the Eighth Circuit said that the Government’s viewing of the films “changed the nature of the search,” because the private search had involved no such screening, and held that the search was illegal, since no exception to the warrant requirement applied. Id. at 773-74.

Unlike Haes, however, where the private party “had not viewed the films and had not attempted to make a decision as to whether or not they were obscene,” id. at 771, the L’Eggs employees were able to make “a determination of possible obscenity prior to turning the films over to the FBI,” ⁴ id. at 772, by examining the individual boxes containing the films. In this case, the legend “David’s Boys” and a cartoon of two nude males kissing and embracing appeared on one side of each film box; the other side carried the title of the individual film and a detailed description, in language of the utmost explicitness, of the bizarre homosexual acts depicted in the movie.⁵ Under these circumstances, since the L’Eggs employees so fully ascertained the nature of the films before contacting the authorities, we find that the FBI’s subsequent viewing of the movies on a projector did not “change the nature of the search” and was not an additional search subject to the warrant requirement.⁶ We have held that the reopening and reinspection of a bag by government authorities following a private search does not constitute a separate, independent search requiring a warrant. United States v. McDaniel, 5 Cir., 1978, 574 F.2d 1224, 1226-27; United States v. Blanton, 5 Cir., 1973, 479 F.2d 327, 328. These decisions support our conclusion on this issue, for in our view, “much less than reopening and reinspection of the box and its contents was the activity of the FBI” here.⁷ United States v. Pryba, 1974, 163 U.S.App.D.C. 389, 399, 502 F.2d 391, 401.⁸ See also United States v. Ford, 10 Cir., 1975, 525 F.2d 1308, 1312.⁹

III. Walter’s Scienter

Appellant Walter contends that there was insufficient evidence to sustain his conviction, because the Government failed to establish a “close nexus” between him and “a specific shipment of proved obscene matter” and because there was no evidence as to scienter. This assertion is meritless, as there was ample evidence to support the jury’s finding that Walter knowingly used a common carrier to ship obscene materials interstate, knowingly transported obscene matter interstate for the purpose of sale or distribution and knew the obscene nature of the films shipped interstate.

According to the testimony at trial, Walter and Sanders jointly operated an extensive network of adult cinemas, bookstores and distribution warehouses, which included appellants TWA and Gulf Coast News. Ernest Golden, who had served as accountant and bookkeeper for these various enterprises, testified that he received instructions from both Walter and Sanders when keeping accounts and preparing tax returns for a number of corporations, including TWA and Gulf Coast News. William Boshell, who succeeded Golden as accountant, testified that Walter and Sanders both supplied him with the business records of the various corporations. He said that Walter, Sanders and all the corporations had their offices at TWA and added that he was paid with a TWA check for services rendered to the other businesses.

John Catoe, an employee of Walter and Sanders, related at trial that both men told him in 1973 that they were planning a new corporation to distribute sexually explicit materials and that Sanders later stated that this corporation was TWA. According to Catoe, he and all other TWA employees received work instructions from both Walter and Sanders. Catoe also said that when the two men sent him to Florida to manage a new bookstore in June 1975, they explained that Gulf Coast News had been established to supply their Florida operations. In addition, Catoe stated that Walter gave him expense money and ordered him to follow the directions of Richard Larson, the manager of Gulf Coast News, whom Catoe had met at TWA when Larson was being trained. Ronald Bowman, the Gulf Coast News employee who delivered the “David’s Boys” films to Greyhound’s St. Petersburg terminal, testified that on one visit to the Gulf Coast News warehouse Sanders was introduced as the man “[y]ou will be working for” and that on another occasion Walter was introduced as Sanders’ partner. Bowman also recalled that Richard Larson described the two as partners and identified as theirs the desks in the back of the warehouse. Finally, Carol Maxey, Sanders’ former girl friend, testified that Sanders told her that he and Walter jointly owned a number of businesses, including Gulf Coast News.

Given the foregoing testimony describing Walter’s central role in the management of TWA, Gulf Coast News and other companies involved in the distribution and sale of hardcore pornography, we do not believe that “the jury must necessarily have had a reasonable doubt” that he possessed the requisite scienter, United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert. denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). Accordingly, we conclude that there was sufficient evidence to support Walter’s conviction.

III. The District Court’s Instructions on Contemporary Community Standards

Finally, appellants challenge the district court’s jury instructions regarding the community standards element of the definition of obscenity. They contend that Pinkus v. United States, 436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293 (1978) and our subsequent decision in United States v. Bush, supra, required the trial judge expressly to charge the jury not to consider children in determining the contemporary standards of “the average person of the community as a whole.” We reject appellants’ expansive reading of Pinkus and Bush and find no error in the district court’s instructions.

In Pinkus, the trial judge had charged the jury that, in ascertaining community standards, “ ‘you are to consider the community as a whole, young and old, educated and uneducated, the religious and the irreligious, men, women and children, from all walks of life’.” Pinkus v. United States, supra, 436 U.S. at 296, 98 S.Ct. at 1811 (emphasis added). The Supreme Court elected “to take this occasion to make clear that children are not to be included for these purposes as part of the ‘community’ as that term relates” to the definition of obscenity and therefore held that “it was error to instruct the jury that [children] were a part of the relevant community.” Id. at 1812. Similarly, in Bush the district court had told the jury that “you are to consider the community as a whole, young and old, educated and uneducated, religious and the irreligious.” (emphasis added) In holding that this charge constituted reversible error, we reasoned that inclusion of “[t]he phrase ‘young and old’ . . . provides a jury ample freedom to consider children, and thus does not completely avoid the danger, emphasized in Pinkus, that ‘the adult population [will be reduced] to reading only what is fit for children.’ ” (citation omitted) 582 F.2d at 1021-22.

Here, however, unlike the instructions in Pinkus and Bush, the trial judge’s charge did not prescribe jury consideration of “children” or “young people” in determining community standards. The district court told the jurors to judge the obscenity of the films by whether their “predominant appeal . viewed in [their] entirety, is to the prurient interest of the average person of the community as a whole, or the prurient interest of a deviant sexual group, as the case might be, and is so patently offensive that it is utterly without redeeming social value.” (emphasis added) The judge further explained that “[w]hether the predominant theme or purpose of the material is an appeal to the prurient interest of the ‘average person of the community as a whole’ is a judgment which must be made in light of contemporary standards as would be applied by the average person with an average and normal attitude toward, and an average interest in, sex.” (emphasis added) This instruction adequately directed jury consideration to the contemporary standards of adults and thereby avoided the danger emphasized in Pinkus and Bush.

We have carefully examined appellants’ remaining assertions¹⁰ and conclude that they are meritless. Accordingly, we affirm the judgments of conviction as to all appellants.

AFFIRMED.

1 . Under 18 U.S.C. § 371,

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. § 1462 provides in pertinent part that

Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—

(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or .

Whoever knowingly takes from such express company or other common carrier any matter or thing the carriage of which is herein made unlawful—

Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.

18 U.S.C. § 1465 provides that

Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption shall be rebuttable.

When any person is convicted of a violation of this Act, the court in its judgment of conviction may, in addition to the penalty prescribed, order the confiscation and disposal of such items described herein which were found in the possession or under the immediate control of such person at the time of his arrest.

2 . The series “David’s Boys” included 25 individual movie titles. The 12 cartons contained 871 reels of film.

3 . The five counts under section 1462 and the five section 1465 counts enumerated the same five movies from the “David’s Boys” series: “Look at the Birdie,” “The Clean Up,” “Black Rape,” “The Massage,” and “Loving Hands.”

4 . In announcing its holding on this issue, the Haes majority emphasized the factual circumstances and noted that “[w]e would feel otherwise if the private search had included any sort of viewing of the films and a determination of possible obscenity prior to turning the films over to the F.B.I.” 551 F.2d at 771-72. Under the factual circumstances here, however, the L’Eggs employees did not need actually to screen the films to make that determination. The Eighth Circuit stressed that Haes “was not the case” where “the private employee had tangible evidence upon which to believe that the material was being illegally transported in interstate commerce,” id. at 772 n.l, but here, in contrast, the individual film boxes amply supported the belief of the L’Eggs employees that such illegal transportation had occurred.

5 . The indictment listed five of the 25 “David’s Boys” titles included in the shipment. The individual boxes containing “Look at the Birdie” said that

Corbett really gets turned on when Rich comes over for a photo session. In the a— close-ups you won’t believe! The highlight of the movie happens when Corbett masturbates and -— on Rich’s face! This is a flick you will not forget.

“The Clean Up (3 white)” boxes read that

Lenny and Eric turn each other on and when you see these good looking studs you’ll know why!!! The action gets heavy and then Les enters the picture. — galore and Les cleans it up like you’ve never seen. Great close-ups!

The “Black Rape” (1 blk. 1 wht.) boxes stated that

Big Black Lance has an 11" -— but it doesn’t take long before the small slender Larry is taking it all right up the___! Good tongue action and a surprise that you won’t believe. You will love the close-up action.

The boxes containing “The Massage” explained that

Angelo the masseur gets turned on as he gives Tommy a rubdown. Angelo’s expert tongue & hands soon have Tommy’s___hard & excited. But he wants it the Greek way and Angie complies. Then he____beautiful on Tommy’s face! This is one of the best close-ups of french love you will ever see!!

Finally, the “Loving Hands” boxes said that

Murray and Carl are well into their love session when Ben enters the room. He will show you his loving hands as he shoves them with his arms (just short of his elbows!) right up his friends’ a_. h____!! While they masturbate! It is a true masterpiece for the avid connoisseur!!

(Certain particularly salacious words have been deleted by the writer of this opinion, as indicated.)

6 . We note as well the question posed by then Judge Webster in his Haes dissent:

Can it be seriously argued that an agent receiving a suspected book or magazine from a freight carrier employee could not reasonably open the publication and peruse its pages to determine whether its contents offended the law? Would a government agent who used a magnifying glass or other mechanical aid to identify an object be vulnerable to a claim of an unreasonable search independent of the lawful private search which produced the object? I think clearly not.

The film in this case was not a means of concealing something else. In looking at the film through a projector, the agents did no more than view the motion pictures in the manner in which they were intended to be viewed. 551 F.2d at 772-73.

7 . The Supreme Court’s decision in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) does not affect the outcome of this case. In Chadwick, the federal agents gained exclusive custody of property still to be searched, whereas here, the FBI took control of property that had already been searched by a private party and did not conduct any additional search of its own requiring a warrant. See also United States v. Johnson, 5 Cir., 1979, 588 F.2d 147.

8 . In Pryba, a nervous shipper, reluctant to disclose the contents of a box, aroused the suspicions of an air freight clerk in San Francisco. The clerk’s supervisor opened the box and found “unpackaged reels of 8-millimeter color movie film bearing titles unsubtly suggesting sex.” The supervisor held two films up to the light and saw both hetero- and homosexual nude couples “engaging in sexual acts.” He called the FBI, which sent an agent with a movie projector to the freight carrier’s office. After watching two more movies, with the FBI agent still present, the supervisor repackaged the films and replaced the boxes in transit to Washington. 163 U.S.App.D.C. at 393, 502 F.2d at 395. Judge Spottswood Robinson first concluded that the activities of the clerk and his employer before the FBI brought the movie projector constituted a private search and then declared that “we are unable to perceive in the subsequent events any new or different search after the F.B.I. agent arrived. There is respectable authority holding that not even a reopening and reinspection of a package by federal officers, after the initial opening and inspection by airline personnel entirely on their own, constitutes a separate or additional search subject to Fourth Amendment requirements. We need not venture nearly so far, for much less than reopening and reinspection of the box and its contents was the activity of the FBI in the instant case.” Id. 163 U.S.App.D.C. at 399, at 401.

9 . In Ford, as in Pryba, a nervous shipper, at first unwilling to identify the contents of a package, led an air freight supervisor to unwrap the box. He discovered “about eight prophylactics, six or seven inches long, containing a powdered substance,” and called the local police. When the officers arrived, they conducted an “on-the-spot field test” which “showed that the substance was heroin.” 525 F.2d 1308. Rejecting the assertion that the agents thereby conducted an illegal, warrant-less search, the Tenth Circuit said that the “government agents appeared only after the suspicion of the possible presence of contraband was confirmed by discovery of the prophylactics. At this point, it was the province and indeed the duty of the officers to further investigate the open box, which they did without any invasion of protected rights of privacy, to determine whether the suspicious substance in plain view was in fact contraband .... government agents arrived.” Id. at 1312. Similarly, the FBI agents here, in viewing the films on a projector, were attempting to confirm or dispel the suspicion, first developed by the L’Eggs employees, that the films had been transported illegally.

10 . Appellants also contend, individually or in unison, that by accepting and holding the whole shipment of films the Government engaged in prior restraint in violation of the first amendment, that the trial judge should have granted a change in venue, that he erred in refusing to admit comparison evidence and that the district court should have compelled the prosecution to present expert witnesses. In addition, they assert numerous errors in the trial judge’s other rulings on pretrial and trial motions and in his instructions to the jury and argue that the voir dire conducted by the court was insufficient. Finally, Walter urges that the prosecution was guilty of prejudicial misconduct, that juror misconduct also prejudiced appellants, that the district court erred in denying his motion for severance and that the films were not obscene.