DO NOT PUBLISH
Appellants Paul Little and Max World Entertainment, Inc. appeal their convictions and sentences for the distribution of obscene materials in violation of 18 U.S.C. §§ 1461
Appellants produced and sold videos of a sexually explicit nature. The materials they produced by were marketed online at sexually explicit websites that they created and maintained. In an investigation conducted by the Department of Justice, the contents of these websites were captured and copied. The investigation focused on the parts of the websites that posted trailers for videos being offered for sale by Appellants.
As part of the investigation, the U.S. Postal Inspection Service office in Tampa ordered five DVD videos from the Appellants' websites.
Appellants were each convicted on all ten counts of violating federal obscenity statutes. Little was sentenced to concurrent terms of forty-six months on all counts, a $7,500 fine, a $1,000 special assessment, and supervised release for a period of three years. Max World was sentenced to thirty-six months probation and a $75,000 fine.
A. The District Court Did Not Err in Denying Appellants' Motions to Dismiss
"Denials of motions to dismiss the indictment are reviewed for abuse of discretion, but underlying legal errors . . . are reviewed de novo." United States v. Robison, 505 F.3d 1208, 1225 n.24 (11th Cir. 2007) (citations omitted). Appellants moved to dismiss their indictments on two grounds. First, Appellants argued that 18 U.S.C. §§ 1461 and 1465 are unconstitutional. Second, they argued that the Miller v. California obscenity test could not be applied to materials published on the Internet. 413 U.S. 15, 24, 93 S.Ct. 2607, 2615 (1973). The Miller test states that to determine whether a work is obscene the trier of fact must ask: "(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id. We find no merit to either of these arguments.
1. The Appellants' Obscenity Convictions Do Not Invade Any Constitutionally Protected Rights
Appellants argue that the federal obscenity statutes are unconstitutional because they violate a substantive due process right of sexual privacy protected by the Fourteenth Amendment.
2. The Test for Obscenity Established in Miller v. California Remains Applicable to Materials Published on the Internet
The Miller obscenity test remains the standard for defining obscenity, regardless of the medium in which the materials are conveyed. See 413 U.S. at 24, 93 S. Ct. at 2615. Appellants argue that the Miller test is unworkable with regards to materials published on the Internet for two reasons. First, the contemporary community standards approach under Miller infringes upon First Amendment rights when applied to the Internet. Second, the requirement under the Miller test that the materials in question be taken as a whole is impossible to apply to materials found on the Internet.
a. The District Court Did Not Err in Applying a Local Community Standard
Appellants argue, as many others recently have,
Appellants argue that their publication was different from that of the appellant in Miller in that they did not direct their Internet publication at any one area. Miller, 413 U.S. at 16, 93 S. Ct. at 2611 (appellant purposefully and knowingly mailed advertisements for obscene materials). Appellants argue that applying a local community standard to the Internet results in an infringement upon First Amendment rights because the Internet publisher's materials can be judged according to the community standards of the strictest of communities, even though the Internet publisher never made any specific effort to direct the materials at that community.
Appellants argue that the district court should have applied a national or Internet community standard rather than the local community standard of the Middle District of Florida. In support of this argument, Appellants rely heavily on the concurrences and dissent in Ashcroft, 535 U.S. 564, 586-612, 122 S.Ct. 1700, 1714-1728 (2002). Recently, the Ninth Circuit interpreted Ashcroft in such a way as to mandate a national community standard for Internet-based material. United States v. Kilbride, 584 F.3d 1240, 1252-54 (9th Cir. 2009). We decline to follow the reasoning of Kilbride in this Circuit. The portions of the Ashcroft opinion and concurrences that advocated a national community standard were dicta, not the ruling of the Court.
As a result, the Miller contemporary community standard remains the standard by which the Supreme Court has directed us to judge obscenity, on the Internet and elsewhere. The district court did not err when it instructed the jury to judge the materials on the basis of how "the average person of the community as a whole—the Middle District of Florida—would view the material." Doc. 222 at 28.
b. The District Court Properly Presented the Materials "As a Whole"
The Miller requirement that materials be "taken as a whole" was properly applied to the materials at issue in this case. In two of its three steps, the Miller test includes the caveat that materials being judged for obscenity must be "taken as a whole." 413 U.S. at 24, 93 S. Ct. at 2615. First, the jury must consider the materials "as a whole" when determining whether the material appeals to the prurient interest. Id. Second, the jury must view the material "as a whole" to determine whether the material has any "serious literary, artistic, political, or scientific value." Id. The "taken as a whole" language in Miller serves two purposes: (1) it places materials in their proper context so that a jury may properly determine if the material is truly of prurient appeal; and (2) it ensures that any literary, artistic, political, or scientific value endowed in the material by its surrounding context is not lost by viewing the material in isolation.
Appellants argue that the Internet video trailers should have been viewed in the context of the entire website in which they were published. If the website in which material is found does not alter the determination of its prurient appeal or add some redeemable quality to the work, then the website is not necessary for the "taken as a whole" analysis.
C. The Government Presented Sufficient Evidence to Establish Each Element of Its Case
The district court did not err in denying Appellants' motions for judgment of acquittal. "We review the sufficiency of the evidence de novo, viewing the evidence in the light most favorable to the government and accepting all reasonable inferences in favor of the verdict." United States v. Mendez, 528 F.3d 811, 814 (11th Cir. 2008) (per curiam) (citation omitted). Appellants argue that the district court should have granted their motions on three grounds: (1) that the government failed to meet its burden of proof because only excerpts of the DVDs were published to the jury; (2) that the government failed to prove that Appellants knew the United States mail would be used to ship the DVDs; (3) that the government did not provide sufficient evidence as to Appellants' knowledge of venue for the convictions under 18 U.S.C. § 1461.
1. A Sufficient Portion of the Materials was Presented During the Government's Case-in-Chief
There was sufficient evidence presented during the government's case-in-chief to meet the government's burden of proving obscenity in the DVDs. The government published excerpts of the DVDs to the jury as allowed by the district judge. We need not determine whether the excerpts alone would have been sufficient to meet the government's burden of proof because Appellants published the DVDs in their entirety during their cross examination of the government's witness. The evidence presented to the jury was sufficient to meet the government's burden of proving that the DVDs contained obscene material.
2. The Government Presented Sufficient Evidence of Appellants' Knowledge of the Use of the United States Mail
The government also presented sufficient evidence that Appellants were aware that the United States mail had been used to distribute the DVDs. "Where one does an act with knowledge that the use of the mails will follow . . . or where such use can reasonably be foreseen . . . then he `causes' the mails to be used." Pereira v. United States, 347 U.S. 1, 8-9, 74 S.Ct. 358, 363 (1954) (citation omitted). The government introduced evidence showing that Appellants were: (1) producing DVDs for sale throughout the United States (the DVDs were advertised on the Internet without any restriction on who could order the DVDs); and (2) Appellants contracted with an independent distributer, Jaded Video, to process payment and ship the DVDs. We find that based on the evidence presented Appellants could have reasonably foreseen the use of the United States mail by Jaded Video.
3. The Government was Not Required to Prove Knowledge of Venue
The government was not required to prove that Appellants had knowledge of venue. Knowledge of venue is not an element of 18 U.S.C. § 1461. The government presented sufficient evidence during its case-in-chief, and the district court did not err in denying Appellants' motion for judgment of acquittal.
D. Government Comments Did Not Infringe the Appellants' Right to a Fair Trial
When an appellant properly objects during trial to the government's comments we look to whether the government's comment was improper and whether it prejudiced a substantial right of the defendant. United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997). However, if the appellant did not object we ask whether the comments were plain error "so obvious that failure to correct it would jeopardize the fairness and integrity of the trial." Id. The prosecutor in the present case did not make any comments that rose to the level of prejudicing any substantial rights of Appellants. Appellants' right to a fair trial was not infringed by any of the government's statements during trial.
E. The District Court Did Not Err in Instructing the Jury
The district court's refusal to give a requested jury instruction is reviewed for abuse of discretion. United States v. Trujillo, 146 F.3d 838, 846 (11th Cir. 1998). First, the district court did not abuse its discretion in instructing the jury that, "[t]o cause the mails to be used is to do an act with knowledge that the use of the mails will follow in the ordinary course of business or where such use can reasonably be foreseen." Doc. 222 at 24-25. The Supreme Court has ruled that the element of knowledge of the use of the mail in 18 U.S.C. § 1461 can be established by a reasonable foreseeability. Pereira, 347 U.S. at 8-9, 74 S. Ct. at 363.
Second, the district court also did not abuse its discretion in refusing to instruct the jury that the government must prove Appellants knew the materials were legally obscene. The government is not required to show that the Appellants knew of the illegality of the materials in question, merely that they knew the "character and nature of the materials." Hamling v. United States, 418 U.S. 87, 123, 94 S.Ct. 2887, 2910 (1974).
Finally, the district court did not err in refusing to instruct the jury to consider a national or Internet standard in determining community standards. As we have already discussed, a local community standard is still proper under Miller.
F. The District Court Acted Within Its Discretion in Resolving Several Juror Irregularities
The district court did not err in its handling of three juror irregularities that arose during trial. The district court's handling of juror irregularities is reviewed for abuse of discretion. United States v. Polar, 369 F.3d 1248, 1253 (11th Cir. 2004). Appellants argue that their Sixth Amendment right to a fair and impartial jury was violated by three situations and the district court's handling of these situations. First, an alternate juror sent a note to the district judge requesting to view only portions of the DVDs, rather than the entirety of the DVDs. Second, an Assistant United States Attorney ("AUSA") spoke to a person he later discovered to be a juror, asking the juror whether he was going upstairs to "watch that porn." Third, the district court received a note from a juror stating that she had been fired from her job and decided to address the matter after the jury returned a verdict.
1. There is No Reason to Believe That the Alternate Juror's Note to the Judge Tainted the Remainder of the Panel
Appellants contend that because the alternate juror wrote the note in the jury room, other jurors may have seen it, thus leading some of the jurors to pre-judge the issue of obscenity. The district judge questioned the alternate juror and determined that there was no harm in allowing the juror to remain. Appellants' argument that the note prejudiced their Sixth Amendment rights is based on nothing more than mere speculation, and as such we find no merit to this argument.
2. The Off-Hand Remark by the AUSA Did Not Violate the Appellants' Constitutional Rights
The comment from the AUSA did not prevent Appellants from receiving a fair trial. The AUSA was not involved in the prosecution of Appellants, he did not identify himself as an AUSA, and the AUSA did not know the person was a juror. Appellants did not request the district judge to voir dire the juror or give a cautionary instruction. The district court, in its ample discretion, determined that the juror was not improperly influenced by this one comment and investigated no further. We find that, while interviewing the juror may have been advisable in an abundance of caution, the district court's failure to do so was not an abuse of its discretion.
3. The District Court Did Not Err in Its Dealings with a Juror Who was Allegedly Fired for Her Service on the Jury
The Appellants were not deprived of a fair trial when the district judge waited until after the verdict to address the situation involving a juror who had been fired during the trial. Appellants note that the juror was crying when the verdict was read and argue that this is proof that her termination from her job influenced her ability to deliberate, thus depriving Appellants of a fair trial. Once again the Appellants base their argument on pure speculation. There is no evidence that the fact that the juror was fired affected her decision during deliberations.
G. There Was No Basis for the Appellants' Request that the District Judge be Recused
The Appellants' arguments that the district judge should have recused herself are meritless. The district judge's refusal to recuse herself is reviewed for abuse of discretion. United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004) (per curiam). Appellants did not timely file an affidavit providing facts to establish the district judge's bias or prejudice against them sufficient to comply with 28 U.S.C. § 144. A judge must also recuse himself or herself if his or her "impartiality might reasonably be questioned." 28 U.S.C. § 455(a). Appellants argue that certain comments the judge made, outside the presence of the jury, brought the judge's impartiality into question. We find no merit to this argument.
H. The District Court Properly Applied a Sentencing Enhancement for Sado-Masochism, but Erred in Assessing a Point for Derived Income Over $30,000
"We apply a two-pronged standard to review claims that the district court erroneously applied sentencing guidelines adjustments. First, we review the factual findings underlying the district court's sentencing determination for clear error. We then review the court's application of those facts to the guidelines de novo." United States v. Williams, 527 F.3d 1235, 1247-48 (11th Cir. 2008) (internal citations omitted).
1. The Sado-Masochism Enhancement was Proper
The district court did not err in applying a sentencing enhancement for sadistic, masochistic, or other violent depictions. The relevant section of the United States Sentencing Guidelines ("U.S.S.G.") states that an enhancement is proper "[i]f the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence." U.S.S.G. § 2G3.1(b)(4) (emphasis added). It does not matter if the persons depicted in the materials actually were sadists or masochists or whether they were actually harmed. The focus of the enhancement is whether the material portrays such conduct. In this case, there is no doubt that the trailers on Appellants' websites and the DVDs portrayed sadistic and masochistic conduct. The district court did not err in applying this enhancement.
2. The Point Assessed for Income Earned Over $30,000 was Improper
The district court erred when it considered pecuniary gain derived from sales of the DVDs outside the Middle District of Florida. The U.S.S.G. states that if there is any pecuniary gain, the offense level must be increased by five points. U.S.S.G. § 2G3.1(b)(1)(A). Thereafter, any additional increase in the offense level due to pecuniary gain is dictated by the table in U.S.S.G. § 2B1.1(b)(1)(D). Id. The district court adopted the Pre-Sentence Report ("PSR") which found, "between January 1, 2005 and June 25, 2008, the [Appellants] sold 734 of the [charged] DVDs for a total retail value of $40,340.50." Little PSR at 45; Max World PSR at 46. According to the U.S.S.G., the Appellants' offense level was increased by six points because there was a total pecuniary gain of over thirty thousand dollars ($30,000) from the DVDs. U.S.S.G. § 2B1.1(b)(1)(D).
The U.S.S.G. says that the court may consider all relevant conduct, which is defined as "all acts and omissions . . . by the defendant . . . . that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." U.S.S.G. § 1B1.3(a)(1)(A)-(B) (emphasis added). Clearly, relevant conduct must be connected directly to the offense for which Appellants were convicted, the transmission and sale of obscenity in the Middle District of Florida. The district court directed the jury to use the community standards of the Middle District of Florida in determining whether the DVDs were obscene. Thus, the DVDs have only been established as illegal obscenity in the Middle District of Florida.
Neither the district court nor the PSR made any findings related to the geographic location from which the $40,340.50 was derived. There was no evidence presented at sentencing that these funds were derived from sales inside the Middle District of Florida. The only evidence of any pecuniary gain earned by Appellants in the Middle District of Florida was the amount paid by the postal inspector for the DVDs forming the basis for counts six through ten.
While the sales of these DVDs in areas outside the Middle District of Florida are essentially the same conduct as the sale to the inspector inside the Middle District of Florida, they differ in one very critical way: they are not illegal sales of obscenity (at least not yet). Sales of pornographic materials do not come to the fruition of being illegal obscenity until a jury determines that it is obscenity according to its community standards. The DVDs at this point have only been found to be obscene and illegal in the Middle District of Florida.
Consistency demands that if a district court uses a local community standard then the pecuniary gain derived from the obscenity should be limited to the area defining those local community standards. Appellants' sentences are being increased for sales in areas that could have community standards that deem the DVDs not to be obscene. Thus, when dealing with the DVDs in areas outside the Middle District of Florida, we must treat them as speech protected by the First Amendment until otherwise determined. Increasing Appellants' sentences for pecuniary gain in areas where the DVDs have not yet been proven to be obscene comes dangerously close to a violation of Appellants' First Amendment rights. We find that the one point increase in Appellants' offense level for pecuniary gain over thirty thousand dollars was error. Therefore, we vacate the sentence and remand for re-sentencing.
The Appellants' convictions are affirmed. Their sentences are vacated and remanded for re-sentencing in accordance with our decision.
Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section . . . to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, or knowingly takes any such thing from the mails for the purpose of circulating or disposing thereof, or of aiding in the circulation or disposition thereof, shall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter." 18 U.S.C. § 1461.