Federal crimes
Federal Obscenity Charges in Miami
Federal law makes it a crime to send legally obscene material through the mail, through a common carrier, or across state lines for sale or distribution. Sexually explicit material for adults is not automatically obscene. The government must prove a specific three-part legal test to a jury. These cases are prosecuted in federal court in the Southern District of Florida.
Dennis Gonzalez Jr. is a former Miami-Dade prosecutor who has been defending people since 2012, in state and federal court. Everything you tell us is confidential. Our office answers 24 hours a day.
The Three Federal Charges
Mailing obscene material (18 U.S.C. § 1461). Instruction O55: the government must prove that you knowingly sent, or caused to be sent, material through the U.S. mail; that when it was mailed you knew the general nature of its content; and that the material was legally obscene. (Section 1461 also lists other kinds of "nonmailable" matter; this page covers obscenity only.)
Using a common carrier (18 U.S.C. § 1462). Instruction O56: that you knowingly used, or caused to be used, a common carrier to transport the material in interstate commerce; that you knew the general sexual nature of its content; and that it was legally obscene. The statute also covers interactive computer services and bringing obscene matter into the United States.
Transporting for sale or distribution (18 U.S.C. § 1465). Instruction O57: that you knowingly transported the material in interstate commerce; that you did so to sell or distribute it; that you knew its general sexual nature; and that it was legally obscene. Transporting two or more copies of a publication or article, or five in total, creates a presumption that they were meant for sale or distribution. The defense can rebut that presumption.
The government does not have to prove you knew the material was legally obscene, only that you knew its general sexual nature.
What "Legally Obscene" Means
Under the pattern instruction, the jury must find all three:
- Viewed as a whole, the material's main theme or purpose appeals to the prurient interest of the average person of the community as a whole. "Prurient" means a morbid, degrading, and unhealthy interest in sex, not an ordinary one.
- It depicts or describes sexual conduct in a patently offensive way, judged by contemporary community standards.
- It lacks serious literary, artistic, political, or scientific value. This part is not judged by community standards. The question is whether a reasonable person would find serious value.
If any one part is not proven, the material is not obscene.
Penalties
- § 1461 and § 1462: up to 5 years for a first offense and up to 10 years for each later offense.
- § 1465: up to 5 years.
- Fines: up to $250,000 for a felony, under the general federal fine statute.
- Forfeiture: the obscene material, any proceeds, and property used or intended to be used to commit the offense (§ 1467).
Material involving minors is charged under different, much harsher federal statutes. See Federal Child Pornography Shipping, Reproducing, Selling & Possession.
How We Defend These Cases
- Serious value. If a reasonable person would find serious literary, artistic, political, or scientific value, the material is not obscene, however explicit.
- The whole work. The jury looks at the main focus of the whole work, not isolated scenes.
- Community standards. The standard is the community as a whole, not one juror's taste or what some groups think the community should accept.
- Knowledge. What you knew about the content when it was mailed or shipped.
- Sale or distribution. Rebutting the presumption in a § 1465 case.
What to Do First
- Don't talk to federal agents about the material or your business. Ask for a lawyer.
- Don't destroy records or inventory.
- Call us before you respond to a target letter or subpoena.
Why Choose Dennis Gonzalez Law, P.A.
- Former Miami-Dade prosecutor.
- Defending people since 2012 in state and federal court.
- Super Lawyers recognition and an Avvo Rating of 10.0.
- Bilingual office — se habla español.
- We answer 24 hours a day. Call (305) 209-0384.
See our Results page, Federal Criminal Defense and, for state charges, Obscenity Charges (Florida).
Frequently Asked Questions
Is it a federal crime to ship adult videos?
Not unless the material is legally obscene under the three-part test, and the government must prove that beyond a reasonable doubt.
Do prosecutors have to prove I knew it was "obscene"?
No. They must prove you knew its general sexual nature. Whether it is legally obscene is for the jury.