concurring in part and dissenting in part:
Judge Jones has well stated in Part I the factual context of this case. I concur fully with the conclusions reached in Part II dealing with Easley’s double jeopardy claim. Each one of the mailings involved different legal conduct, and Grady v. Corbin, — U.S. -, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), does not indicate that any of the indictment charges in the instant case represent double jeopardy violations. See Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107 L.Ed.2d 708 (1990); Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974); and United States v. Linetsky, 533 F.2d 192 (5th Cir.1976).
I must dissent, however, from the conclusion reached in Part III dealing with the jury instructions given the jury in this case. In defendant’s opening brief, the jury instruction issue comprised approximately three pages, citing four Supreme Court decisions, on the “contemporary community standards” portion of the district court’s instructions. Defendant stated in his opening brief that “[t]he current constitutional test for judging obscenity was established ... in Miller v. California [, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)]” (tripartite test prescribed ... provides the basic guidelines.)
This part of the extended jury instructions defendant charged to be reversible error:
For material to be obscene, it must be shown that the average person applying contemporary community standards when viewing the material as a whole would find, first, that the work appeals to the prurient interest; second, that it depicts or describes sexual conduct in a patently offensive way; and third, that the material lacks serious literary, artistic, political or scientific value.
In substance, defendant’s claim was that the third prong of the Miller test (“whether a reasonable person would find the work, taken as a whole, lacks serious literary, artistic, political or scientific value”) was erroneously instructed since Pope v. Illinois, 481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987), mandates an “objective reasonable person standard and not by reference to contemporary community standards.” Defendant’s Opening Brief at 36. Defendant conceded, however, that “later in the charge” the district judge “made reference to the reasonable person standard” without defining a “reasonable person.” In his reply brief, defendant made no further reference to, or argument about, this proposition of prejudicial error in the instruction under Miller or Pope (or Hamling, or Smith v. United States, 431 U.S. 291, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977) (also cited in the opening brief).
After argument in this case, when the panel raised questions about whether there might be harmless error on this one issue (out of nine raised) and authorized supplemental briefs,1 defendant first began to argue a “rational reasonable person standard as opposed to a subjective community standard.” Defendant only then made reference to, and made objection to, what the district court had defined as the applicable “community.” In addition, for the first time, defendant objected to a brief sentence in the instructions after the portion heretofore quoted — “It is for you to say whether the material in this case has such value (serious literary, artistic, political or scientific value).” Defendant, at the same time, acknowledged that harmless error considerations might be applied in case the errors he claimed were indeed found to exist by this court.
The government’s supplemental brief addressed only the harmless error question, arguing both that the jury instructions should be “read as a whole,” and that “any error did not rise to the level of constitutional error,” and that if error were determined, it “was harmless beyond a reasonable doubt.”
Pope v. Illinois, 481 U.S. at 500-01, 107 S.Ct. at 1920-21, held that
[t]he proper inquiry is not whether an ordinary member of any given communi*414ty would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value....
The Court stated that even if the improper standard were applied, the harmless error doctrine applied “if the facts that the jury necessarily found established guilt beyond a reasonable doubt.” Id. at 503, 107 S.Ct. at 1922. Pope concluded that “if a reviewing court concludes that no rational juror, if properly instructed, could find value in the [materials in controversy], the convictions should stand.” Id. There was a remand in Pope to consider harmless error. On remand, the Illinois court found the error to be harmless because “the obscenity of the magazines is obvious.” 162 Ill.App.3d 299, 113 Ill.Dec. 547, 553, 515 N.E.2d 356, 362 (1987).
I agree with Judge Jones that the district court in the latter part of its jury instructions “articulated the correct standard ... [on] ... the third prong of the Miller test,” adding to the jury, “[i]t is for you to say whether the material in this case has such value.” I agree further that the differing instructions might, at most, “create the possibility” of confusing the jury. (Emphasis added). I disagree with the court’s conclusion on harmless error, however, because it is clear to me that “no rational juror” in this case under the facts found (which are virtually undisputed) could find serious literary, artistic, political or scientific value in the materials shipped and seized in the Western District of Kentucky. I would unhesitatingly conclude that, if there were any error in the instructions taken as a whole on this third Miller prong, it constituted harmless error beyond a reasonable doubt. The majority concedes it to be a “close case” for reversal on the finding that error had occurred due to mere possibility of considerable jury confusion. I disagree since the error, if any, is harmless. I also doubt, moreover, that there was constitutional error in this case. In any event, as in Pope, the obscenity in the materials at issue was obvious as a matter of law.2 I find nothing at all erroneous in the court’s instruction to the jury that it was for the jurors ultimately to determine whether the material had any serious value as described in the third Miller prong.
It is conceded that near the end of the district court’s instructions it gave an appropriate third prong instruction making reference to the reasonable person standard. Taking the instruction as a whole, I would conclude that the instruction was not erroneous with respect to Miller and Pope standards. The closing arguments to the jury also made it clear that the jury was to use the reasonable person standard.
The third prong is that a reasonable person — you are going to deviate from the average person in this community. You are talking about a reasonable person, what reasonable persons might do, might think. Would they find the material lacks serious literary, artistic, political or scientific value, again viewing that as a whole.
J/A at 325 (government’s argument).
The third prong deals with a reasonable person, whether viewing the material as a whole would find whether it has scientific, political or educational value or artistic value. I’ve been challenged to submit to you how it has political value.
J/A at 326 (defense argument).
The district court cautioned the jury to consider the instructions “as a whole” — not “to single out one [part] alone as stating the law.” J/A at 327. All these circumstances indicate to me that the instructions given, taken as a whole, are not erroneous. Even if erroneous, as stated, the error in this concededly “close case” should be found to be harmless. The Supreme Court has only recently applied the harmless error rule in a case to “involuntary” confessions. Arizona v. Fulminante, — U.S. -, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).
Since this Court’s landmark decision in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), in which we adopted the general rule that a con*415stitutional error does not automatically require reversal of a conviction, the Court has applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless. See, e.g., Clemons v. Mississippi, 494 U.S. [738],-,-, 110 S.Ct. 1441, 1450-1451, 108 L.Ed.2d 725 (1990) (unconstitutionally overbroad jury instructions at the sentencing stage of a capital case); Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988) (admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment Counsel Clause); Carella v. California, 491 U.S. 263, [266-67], 109 S.Ct. 2419, 2421, 105 L.Ed.2d 218 (1989) (jury instruction containing an erroneous conclusive presumption); Pope v. Illinois, 481 U.S. 497, 501-504, 107 S.Ct. 1918, 1921-1923, 95 L.Ed.2d 439 (1987) (jury instruction misstating an element of the offense); Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986) (jury instruction containing an erroneous rebuttable presumption)....
111 S.Ct. at 1263 (emphasis added).
Because I believe that the jury instruction at issue, considered in its entirety, and considering the arguments to the jury about a reasonable person third prong standard, had no legally erroneous and prejudicial effect, I would affirm the conviction.
Even if the jury instruction were found to contain error in one sentence, possibly confusing the jury, I would apply the harmless error rule frequently applied in such cases by the Supreme Court to erroneous instructions where the evidence of guilt is apparent as in this case. I, therefore, dissent.
. Supplemental briefs were to be contemporaneously filed by the parties.
. Also, as in Pope, no evidence was presented, expert or otherwise, that the materials in this case contained “serious literary, artistic, political or scientific value.”