10th Cir. Crim. Pattern Jury Instr. 2.59

The defendant is charged with mailing obscene material in

violation of 1 8 U.S.C. section 1461. This law makes it a crime to

use the United States mail to send obscene material. For you to

find the defendant guilty of this crime, you must be convinced that

the government has proved each of the following beyond a

reasonable doubt:

First: the defendant knowingly [used the mail] [caused the

mail to be used] to convey or deliver [specify type of alleged

obscene material];

Second: the defendant knew the general nature of the content

of the [specify type of alleged obscene material] at the time of

mailing;

Third: the [specify type of alleged obscene material] [were]

[was] obscene.

To prove that material is “obscene,” the government must

establish three things:

(1) that the material appeals predominantly to prurient

interest;

(2) that it depicts or describes sexual conduct in a

patently offensive way; and

(3) that the material, taken as a whole, lacks serious

literary, artistic, political, or scientific value.

An appeal to “prurient” interest is an appeal to a morbid,

degrading, or unhealthy interest in sex. The first test, therefore, is

whether the predominant theme or purpose of the material is an

appeal [to the morbid, degrading, or unhealthy sexual interest as

considered by an average person in the community as a whole] [to

the prurient interest of members of a defined deviant sexual

group]. In making this decision, you must view the material as a

whole and not part by part, considering the intended and probable

recipients of the material.

In deciding whether the material depicts or describes sexual

conduct in a patently offensive way, you should not judge by your

own standards. Rather, you must measure whether the material

is patently offensive by contemporary community standards; that

is, whether it exceeds the generally accepted limits of candor or

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public tolerance in the entire community to the point where it is

clearly offensive.

You should consider and evaluate both the first and second

parts of the obscenity test by applying contemporary community

standards. This means that the question is not how the material

impresses you as an individual, but how it would be considered by

the average person in the community, a person with an ordinary

and normal attitude toward—and interest in —sex and sexual

matters. Contemporary community standards are those

accepted in this community as a whole; that is to say, by the

community at large or people in general, and not by what some

groups of people may believe the community ought to accept or

refuse to accept. You should also bear in mind that customs and

standards may change; the community as a whole may, from time

to time, accept something that was previously unacceptable.

[The prurient -appeal requirement may also be assessed in

terms of the sexual interest of a clearly defined deviant sexual

group if the material was intended to appeal to the prurient

interest of that group, as distinguished from the community in

general.]

The third question in determining whether material is

obscene is whether, taken as a whole, the material lacks serious

literary, artistic, political, or scientific value. Material may have

serious value in one or more of these areas even though it portrays

explicit sexual conduct—it is for you to say whether the material

has such value. The ideas represented by the material need not

have majority approval to be protected, and the value of the

material does not vary from community to community. So, unlike

the first two tests, you should not apply the contemporary

community standards to the third test. Instead, you should make

this determination on an objective basis: would a reasonable

person considering the material as a whole, find that it has or does

not have serious literary, artistic, political, or scientific value.

You must decide that all three parts of the obscenity test are

met before you can decide that the material is obscene. If any one

of the three is not met, then the material is not obscene within the

meaning of the law.

To “cause” the mails to be used is to do an act knowing that

use of the mails will follow in the ordinary course or use of the

mails can be reasonably foreseen.

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