10th Cir. Crim. Pattern Jury Instr. 2.60

MATERIAL 18 U.S.C. § 1462

The defendant is charged with using a[n] [common carrier]

[express service] [interactive computer service] to transport

obscene material in interstate or foreign commerce, in violation of

18 U.S.C. section 1462. This law makes it a crime to use [a

common carrier] [an interactive computer service] to transport

obscene materials between [one state to another] [this country to

any other country]. For you to find the defendant guilty of this

crime, you mu st be convinced that the government has proved

each these things beyond a reasonable doubt:

First: the defendant knowingly used [a common carrier] [an

interactive computer service] or caused [a [———] service] to

transport [specify type of alleged obscene material] between [one

state to another state] [this country to another country];

Second: the defendant knew the general nature of the content

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

transported; and

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

[were] 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.

PATTERN CRIMINAL JURY INSTRUCTIONS

194

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

public tolerance 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.

PATTERN CRIMINAL JURY INSTRUCTIONS

195

To “cause” [a trucking service] [interactive computer service]

to be used is to do an act knowing that use of the [service] will

follow in the ordinary course of business or where such use can be

reasonably foreseen.