Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

MEMORANDUM^* 

Daniel Pleas Farley appeals his conviction following a bench trial for (1) knowingly causing the United States mails to be used for mailing, carriage in the mails, and delivery of a pornographic advertisement, in violation of 18 U.S.C. § 1461 and 18 U.S.C. § 2 (1982), and (2) for knowingly using and willfully causing the use of a common carrier for carriage in interstate or foreign commerce of a pornographic magazine, in violation of 18 U.S.C. § 1462 and 18 U.S.C. § 2 (1982).

Farley was charged in a six count indictment with one count of knowingly receiving through the mail a visual depiction of a minor engaging in sexually explicit conduct in violation of 18 U.S.C. § 2252(a) (2) (1982 & Supp.IV 1986) (Count 1), one count of knowingly using and willfully causing the use of a common carrier for carriage in interstate commerce of a pornographic magazine in violation of 18 U.S.C. § 1462 and 18 U.S.C. § 2 (Count 6), and four counts of knowingly causing the United States mails to be used for mailing, carriage in the mails and delivery of obscene matter in violation of 18 U.S.C. § 1461 and 18 U.S.C. § 2 (Counts 2 through 5). Subsequently, the parties stipulated to dismiss Counts 1, 2, 3 and 5.

A bench trial on Counts 4 and 6 was conducted on the following stipulated facts. Farley collected pornography for ten years. As a result of his purchases, Farley was placed on a mailing list and received advertisements for pornography. Farley knew he was on the mailing list. In November 1982, Farley received an advertisement for pornography through the mail. In April 1984, Farley ordered an obscene magazine. Farley knew the general nature of the content of the magazine and knew the magazine would be sent to him through interstate or foreign commerce, by means of a common carrier or by the United States mail or both.

Farley was convicted of Counts 4 and 6 of the superseding indictment. He was sentenced to five years on the condition that he serve six months in a jail setting; the balance was suspended and Farley was placed on five years' probation. Farley timely appeals.

DISCUSSION

Farley first contends that there is insufficient evidence to support his conviction for knowingly causing the mails to be used for the delivery of the pornographic advertisement. Specifically, Farley contends that the fact that he was on a mailing list to receive advertisements for pornography is not sufficient to establish that he knowingly caused the mails to be used for the delivery of the advertisement.

In determining the sufficiency of the evidence to support a conviction, this court reviews the evidence in the light most favorable to the prosecution and determines if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Section 1461 requires proof that the defendant knowingly used the mails or caused the mails to be used for the mailing, carriage by mails, or delivery of pornography. See United States v. Hurt, 795 F.2d 765, 773 (9th Cir. 1986), cert. denied, 108 S. Ct. 69 (1987). Title 18 U.S.C. § 3282 (1982 requires an indictment within five years after an offense is committed. The only evidence as to when Farley ordered obscene material is in the stipulated facts. The stipulation says only that Farley purchased pornography between June 1976 and May 1985. It does not specify when within this time period the pornography was ordered. Thus even assuming that ordering pornography is a sufficient cause of receiving the obscene advertisements so as to fall within the prohibitions of Sec. 1461, there is no evidence that Farley did anything to "cause" the sending of the advertisement within the appropriate period of limitations.

Thus, Farley's conviction under Sec. 1461 must be reversed.

Farley next contends that there is insufficient evidence that he knowingly used or willfully caused the use of a common carrier for carriage of an obscene magazine in interstate commerce.

To prove a violation of 18 U.S.C. § 1462, the government must show that: (1) the defendant knowingly used a common carrier to transport obscene materials in interstate commerce; (2) that the defendant knew the general character and nature of the materials at the time of transportation, see Hamling v. United States, 418 U.S. 87, 123 (1974); United States v. Sherwin, 572 F.2d 196, 201-02 (9th Cir. 1977), cert. denied, 437 U.S. 909 (1978); and (3) that the materials were obscene, cf. United States v. Orito, 413 U.S. 139, 145 (1973). To sustain the conviction on the basis that Farley aided and abetted a violation of 18 U.S.C. § 1462, the evidence must show that Farley knowingly acted to assist or cause someone else to commit the acts that violate the statute. See 18 U.S.C. § 2; United States v. Vaccaro, 816 F.2d 443, 455 (9th Cir.), cert. denied, 108 S. Ct. 262 (1987); United States v. McDaniel, 545 F.2d 642, 644 (9th Cir. 1976).

Farley stipulated that he ordered the magazine; that he knew the magazine would be sent to him through interstate or foreign commerce by means of a common carrier or the United States mail or both; and that he knew the nature of the contents of the magazine. The district court found that the magazine was obscene, and Farley does not challenge this finding. Thus, there was sufficient evidence from which a rational trier of fact could conclude that by ordering the magazine, Farley willfully caused the use of a common carrier obtain an obscene magazine in violation of 18 U.S.C. § 1462 and 18 U.S.C. § 2. See Vaccaro, 816 F.2d at 455.

Finally, Farley contends that he cannot be convicted as an aider and abettor of causing the use of a common carrier absent proof that he knew that using the mail or a common carrier to transport pornography was unlawful. This contention is meritless.

To be convicted of an offense pursuant to 18 U.S.C. § 2, one must intend to assist another to engage in the unlawful activity with the knowledge that the activity is occurring; one need not know that the activity is illegal. See id. at 455; McDaniel, 545 F.2d at 644. Because knowledge of the illegal character of the magazine is not required for accomplice liability, the conviction was proper. See Vaccaro, 816 F.2d at 455.

The conviction under 18 U.S.C. § 1461 and 18 U.S.C. § 2 is REVERSED. The conviction under 18 U.S.C. § 1462 and 18 U.S.C. § 2 is AFFIRMED.