Federal Obscenity Crimes

A variety of different obscenity crimes are prosecuted in federal court. If you are charged with a federal obscenity crime in federal court, including the United States District Court for the Southern District of Texas, Houston Division, then contact an experienced criminal defense attorney in Houston at Horak Law.

Federal prosecutors with the United States Attorneys Office prosecute different types of federal crimes under Title 18, United States Code, Chapter 71 for Obscenity including:

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§1460 – Possession of Obscene Matter on Federal Property with Intent to Sell

A person commits the offense of possessing obscene matter on federal property with the intent to sell when he knowingly: 1. Sells an obscene visual depiction, or 2. Possesses an obscene visual depiction with intent to sell.

This of possessing obscene material is punished by a fine and/or up to 2 years in federal prison.

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§1461 – Mailing Obscene or Crime-Inciting Matter

The term “obscene” is defined under federal law to refers to an objective legal standard, not to an issue of fact. The Supreme Court of the United States explained the difference in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The defendant in the Hamling case was prosecuted under 18 U.S.C. § 1461 for the mailing of, and conspiring to mail, an obscene brochure containing sexually explicit photographs. The Hamling Court explained:

It is constitutionally sufficient that the prosecution show that a defendant had knowledge of the contents of the materials he distributed, and that he knew the character and nature of the materials. To require proof of a defendant’s knowledge of the legal status of the materials would permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law. Such a formulation of the scienter requirement is required neither by the language of [the statute] nor by the Constitution.

418 U.S. at 123–24, 94 S.Ct. 2887.

Obscene material includes articles, matters, things, devices, or substances. The obscene materials are deemed to be non-mailable and used to promote abortion or to incite the public to commit crimes.

A person commits the offense of mailing obscene or crime-inciting matter when he or she knowingly:

1. Uses the mails for the mailing or delivery of anything declared to be non-mailable; or

2. Causes non-mailable material to be delivered by mail; or

3. Takes non-mailable material from the mail for the purpose of distribution or circulation.

The offense of milling obscene or crime-inciting matter shall be punished by fine or imprisoned up to 5 years or both for the first offense. For every subsequent offense under Title 18, United States Code, the person may be imprisoned for up to 10 years in federal prison.

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§1462 – Importation or Transportation of Obscene Matters

A person commits the offense of importing or transporting obscene material when he or she:

1. Brings obscene material (writings or recordings capable of producing sound) into the United States or anywhere in its jurisdiction;

2. Knowingly uses any common carrier to put obscene material in interstate or foreign commerce; or

3. Knowingly takes obscene material from any common carrier.

The offense of importing or transporting obscene materials shall be punished by fine or imprisoned up to 5 years or both for the first offense. For every subsequent offense under Title 18, United States Code, the person may be imprisoned up to 10 years in federal prison.

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§1463 – Mailing Indecent Matter on Wrappers or Envelopes

Section 1463 provides that otherwise mailable material becomes non-mailable if the wrapper or envelope contains obscene material. In addition, postcards containing such material are also non-mailable.

The criminal offense of mailing indecent matter on wrappers or envelopes requires proof beyond all reasonable doubt of the following elements;

1. Knowingly mails anything deemed non-mailable by this section; or

2. Knowingly takes anything deemed non-mailable from the mail for the purpose of circulation or disposition.

The offense of mailing indecent matters shall be punished by fine and/or imprisonment up to 5 years.

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§1465 – Transportation of Obscene Matters for Sale or Distribution

A person commits an offense of transporting obscene material for sale or distribution when he knowingly:

1. Transports or travels in interstate or foreign commerce for the purpose of sale or distribution of obscene material (including a recording, film or writing); or

2. Uses a facility or means of interstate or foreign commerce for the purpose of sale or distribution of obscene material.

The offense of transporting obscene material for distribution or sale shall be punished by fine or imprisonment up to 5 years or both.

In these cases, the jury is instructed that transporting any of the following materials will create a rebuttable presumption that the material is intended for sale or distribution:

1. Two or more copies of any publication;

2. Two or more of any article of obscene character; or

3. A combined total of five or more such publications and articles.

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§1466 – Engaging in the Business of Selling or Transferring Obscene Matter

A person commits an offense of engaging in the business of selling or transferring obscene material if he or she does one of the following:

1. Knowingly receives or possesses with intent to any obscene recording, film or writing that has been shipped in interstate or foreign commerce; and

2. He or she is engaged in the business of selling or transferring obscene matter.

The phrase “engaged in the business” is defined to mean that the person devotes labor, attention or time to such activities, as a regular course of trade or business, with an objective of making a profit.

The standard jury instructions provide that offering any of the following materials will create a rebuttable presumption that the person is engaged in the business of selling obscene material:

1. Two or more copies of any obscene publication;

2. Two or more of any obscene article; or

3. A combined total of five or more such publications or articles.

The federal offense of engaging in the business of selling or transferring obscene material is punished by fine and/or imprisonment up to 5 years.

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§1466A – Obscene Visual Representation of the Sexual Abuse of Children

Child pornography is addressed in separate sections of United States Code Title 18.

For example 18 U.S.C. § 1466A criminalizes “[o]bscene visual representations of the sexual abuse of children”. Child pornography “consists of sexually explicit visual portrayals that feature children,” United States v. Williams, 553 U.S. 285, 288, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (emphasis added).

Section 1466A provides that a person commits the crime of obscene visual representation of the sexual abuse of children when he or she, in a circumstance described in Subsection (d), knowingly possesses, distributes or produces with the intent to distribute visual depiction of any kind that does one of the following:

1. Depicts a minor engaging in sexually explicit conduct and is obscene; or

2. Depicts an image that appears to be a minor engaging in sexually explicit conduct and lacks serious scientific value, political value, artistic value, or literary value.

The offense related to the obscene visual representation of the sexual abuse of children shall be punished by fine and/or imprisonment not less than 5 years and not more than 20 years. If the person has a previous conviction for any criminal offense related to sexual abuse or child pornography, then the imprisonment shall range from 15 years to 40 years.

Under Section 1466A subsection (b) a person knowingly commits an offense when he or she, in a circumstance described in Subsection (d), knowingly possesses a visual depiction of any kind that does one of the following

1. Depicts a minor engaging in sexually explicit conduct and is obscene; or

2. Depicts an image that appears to be a minor engaging in sexually explicit conduct and lacks serious scientific value, political value, artistic value or literary value.

The offense of obscene visual representation of the sexual abuse of children shall be punished by fine or imprisonment up to 10 years or both. If the person has a previous conviction for anything relating to sexual abuse or child pornography, the offense shall be punished by fine and/or imprisonment for not less than 10 years nor more than 20 years in federal prison.

Subsection (d) provides for a variety of different circumstances for which the crime can be prosecuted in federal court including;

1. A communication made in furtherance of the offense is transported by mail, or in interstate or foreign commerce by any means which would include using a computer;

2. A communication made in furtherance of the offense contemplates the transmission of the visual depiction by mail or any means of interstate or foreign commerce;

3. A person travels in interstate commerce in furtherance of the commission of the offense;

4. A visual depiction has been mailed or shipped in interstate commerce or was produced using materials shipped in interstate commerce; or

5. The offense is committed in the special territorial jurisdiction of the United States of America.

It is an affirmative defense to the charge of Section 1466 subsection (b) if:

1. The defendant possessed less than three such depictions; and

2. The defendant promptly, in good faith, and without allowing any other person, other than law enforcement, to access the material did one of the following:

Took reasonable steps to destroy the material; oe

Reported the matter to law enforcement.

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§1468 – Distributing Obscene Material by Cable or Subscription Television

A person commits the offense of distributing obscene material by subscription television or cable when he or she knowingly utters any obscene language or distributes obscene matter by means of television.

The criminal offense of the distribution of obscene material by subscription television or cable is punished by a fine and/or imprisonment up to 2 years in federal prison.

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§1470 – Transfer of Obscene Material to Minors Children Under the Age of 16 Years Old

A person commits the offense of transferring obscene material to a minor child under the age of 16 years old when the knowingly utters any obscene language or distributes obscene matter by means of television. The offense of transferring obscene material to a child under the age of 16 shall be punished by fine and/or imprisonment up to 2 years.

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Finding an Attorney for Federal Obscenity Charges

If you are charged with any federal obscenity charges for the possession of obscene materials then contact a criminal defense attorney at Horak Law. We represent clients facing federal charges in the United States District Court for the Southern District Court in the Houston Division.

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