Erich Spillman v. United States

Erich Spillman, appellant herein, was charged by indictment in the United States District Court for the District of Arizona of one count of conspiracy in violation of 18 U.S.C. § 371 and two counts of mailing obscene material through the United States mails in violation of 18 U.S.C. § 1461 . After a jury trial, he was convicted on all three counts and was sentenced to concurrent sentences of two years on each count. He filed a timely appeal to this court which has jurisdiction under 28 U.S.C. § 1291 .

Co-defendant Cucitro, found guilty on counts one and three of the indictment, received a suspended sentence and has not noticed an appeal.

Title 18 U.S.C. § 1461 provides in pertinent part as follows:

The parties in this case have stipulated that the motion pictures (showing acts of sexual intercourse) which are the subject matter of this prosecution and appeal are in fact obscene within the meaning of Title 18 U.S.C. § 1461 . Appellant and the co-defendant Cucitro arranged for two persons to act out a scene which the two of them were to photograph at a local Phoenix motel. Apparently one defendant photographed the scene with one camera, and the other photographed the same scene…