United States Court of Appeals,
Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Robert Alan THOMAS (94-6648) and Carleen Thomas (94-6649), Defendants-
Appellants.
Nos. 94-6648 and 94-6649.
Argued Oct. 11, 1995.
Decided Jan. 29, 1996.
Rehearing and Suggestion for Rehearing En Banc Denied March 12, 1996.
Defendants were convicted in the United States
District Court, Western District of Tennessee, Julia Smith Gibbons, Chief Judge, of federal obscenity charges concerning
their operation of computer bulletin board business. Defendants appealed. The Court of Appeals, Edmunds, District
Judge, sitting by designation, held that: (1) allegedly intangible form by
which computer-generated images moved from defendants' bulletin board in one
state to personal computer in another state did not preclude prosecution for
interstate transportation of obscene materials; (2) venue was appropriate in judicial district in which allegedly obscene
materials were received; (3) defendants' right of privacy did not preclude
prosecution; (4) government was not required to present expert testimony
regarding prurient appeal of images and videotapes available from defendants'
bulletin board; (5) district court's refusal of request for separate counsel
did not deny defendant effective assistance of counsel; and (6) defendants were
not entitled to two-level reduction for acceptance of responsibility.
Affirmed.
West Headnotes
[1] Criminal Law 
1139
Whether
defendants' conduct constituted violation of federal obscenity statute
presented question of statutory interpretation subject to review under de novo
standard, rather than issue of constitutional fact requiring Court of Appeals
to conduct independent review of entire record.
18
U.S.C.A. § 1465.
[2] Commerce 82.55
[2] Obscenity 7
Allegedly
intangible form by which computer-generated images moved from defendants'
computer bulletin board in one state to personal computer in another state did
not preclude prosecution under statute prohibiting interstate transportation of
obscene materials. 18
U.S.C.A. § 1465.
[3] Obscenity 9
[3] Obscenity 17
Evidence
of defendants' operation of computer bulletin board business that advertised
and promised its members availability and transportation of sexually-explicit
computer graphic files supported conviction for interstate transportation of
obscene materials, despite defendants' spurious argument that they had no
knowledge, intent or expectation that members would download and print images
contained in files. 18
U.S.C.A. § 1465.
[4] Obscenity 7
Operation
of commercial computer bulletin board using telephone facilities for purpose of
transmitting obscene computer-generated images to approved members was
proscribed by statute prohibiting interstate transportation of obscene
materials, rather than by statute addressing commercial "dial-a-porn"
operations communicating sexually-explicit telephone messages. 18
U.S.C.A. § 1465; Communications Act
of 1934, § 223(b), as amended, 47
U.S.C.A. § 223(b).
[5] Obscenity 7
Failure of
statute prohibiting interstate transportation of obscene materials to
specifically ban transport by computer did not preclude prosecution for
operation of commercial computer bulletin board business to transmit obscene
computer-generated images to members as within plain meaning of statute and consistent
with Congress' intent to legislate comprehensively against interstate
distribution of obscene materials. 18
U.S.C.A. § 1465.
[6] Obscenity 7
Statute
prohibiting knowing use of facility or means of interstate commerce for purpose
of distributing obscene materials did not require government to prove that
defendants had specific knowledge of destination of each transmittal of
sexually-explicit computer graphic file at time it occurred. 18
U.S.C.A. § 1465.
[7] Criminal Law 108(1)
[7] Criminal
Law 564(2)
Venue lies
in any district in which offense was committed, and government is required to
establish venue by preponderance of evidence.
[8] Criminal Law 113
Propriety of venue is determined by taking
into account number of factors including: site of defendant's acts, elements
and nature of crime, locus of effect of criminal conduct, and suitability of
each district for accurate fact finding.
[9] Criminal Law 113
Venue for
federal obscenity prosecution was appropriate in judicial district in which
allegedly obscene materials transmitted from defendant's computer bulletin
board business were received by member who had defendant's permission to access
and copy graphics files from bulletin board.
[10] Constitutional Law 1242
(Formerly 92k82(10))
[10]
Obscenity 7
Defendants' right of privacy protecting
possession of obscene materials in their home did not preclude prosecution for
transporting obscene materials through interstate commerce based on their
operation of business that advertised and promised members availability and
transportation of sexually-explicit graphics files from defendants' computer
bulletin board. 18
[11] Obscenity 7
Contemporary
community standards of obscenity in judicial district in which personal
computer received sexually-explicit computer-generated graphics files from
defendant's computer bulletin board business applied to prosecution of
defendants for interstate transport of obscene materials. 18
U.S.C.A. § 1465.
[12] Criminal Law 1038.1(2)
110k1038.1(2) Most
Cited Cases
Challenge
to jury instruction raised for first time at sentencing would be reviewed only
for plain error.
[13] Criminal Law 824(15)
District
court had no obligation to give, sua sponte, augmented unanimity instructions
informing jurors that they all had to agree that defendant committed same one
of distinct acts alleged in count of indictment, absent demonstration of
tangible risk of jury confusion, complex counts in indictment, or variance
between indictment and proof at trial.
[14] Obscenity 17
Government
was not required to present expert testimony regarding prurient appeal to
deviant groups from sexually-explicit computer-generated images and videotapes
available from defendants' computer bulletin board business, for purposes of
determining whether materials were obscene; jury received sufficient guidance
from expert testimony presented by defense and from materials themselves which
portrayed bestiality, incest, rape, and sex scenes involving defecation,
urination, and sado-masochistic abuse. 18
U.S.C.A. § 1465.
[15] Criminal Law 1038.1(4)
110k1038.1(4) Most
Cited Cases
Plain error
did not arise from instruction that "facility or means of interstate
commerce" element of federal obscenity prosecution included any
method of
communication between different states. 18
U.S.C.A. § 1465.
[16] Criminal Law 1153(1)
Abuse of
discretion standard of review applied to district court's determinations of
relevancy of evidence and to its balancing of potentially unfair prejudicial
impact of evidence against its probative value. Fed.Rules
Evid.Rules 401, 403,
28 U.S.C.A.
[17] Criminal Law 1144.12
In
reviewing district court's balancing of potentially unfair prejudicial impact
of evidence against its probative value, reviewing court must view evidence in light most favorable to its
proponent, giving evidence its maximum reasonable probative force and its
minimum reasonable prejudicial value. Fed.Rules
Evid.Rule 403, 28 U.S.C.A.
[18] Criminal Law 369.2(3.1)
110k369.2(3.1) Most
Cited Cases
Probative
value of two minutes from uncharged child pornography videotape in showing
defendant's predisposition to commit obscenity offenses, in order to rebut
entrapment defense, was not substantially outweighed by danger of unfair prejudice
to defendant. Fed.Rules
Evid.Rule 403, 28 U.S.C.A.
[19] Criminal Law 369.2(3.1)
110k369.2(3.1) Most
Cited Cases
Defendants
were not unfairly prejudiced by admission of sexually-explicit computer graphic
files available from defendants' computer bulletin board but not charged in
obscenity prosecution, in light of fact that each file was image copied from frame
of charged videotapes which had been admitted in their entirety. Fed.Rules
Evid.Rule 403, 28 U.S.C.A.
[20] Criminal
Law 371(1)
Sexually-explicit
descriptions of uncharged computer graphics files and videotapes available from
defendants' computer bulletin board business were relevant to issues of scienter
and pandering for federal obscenity prosecution; defendants posted graphic
descriptions in public areas of their bulletin board system as method of
advertising for customers. Fed.Rules
Evid.Rule 401, 28 U.S.C.A.
[21] Criminal Law 1134(3)
As general
rule, Court of Appeals will not review claims of ineffective counsel that are
raised for first time on appeal unless record has been sufficiently developed
so as to allow Court to evaluate counsel's performance; such claims are best
brought by defendant in postconviction proceeding so that parties can develop
adequate record on issue. U.S.C.A.
Const.Amend. 6.
[22] Criminal Law 641.5(5)
District court's refusal of defendant's
request for separate counsel from codefendant did not deny her effective
assistance of counsel, in light of facts that defendant did not make request
until day of trial, that district court conducted inquiry to determine that
defendant previously had been informed of and waived right to separate counsel,
and that defendant refused court's offer to arrange standby separate counsel
whom non-indigent defendant would have had to reimburse at rate charged by
court-appointed attorneys. U.S.C.A.
Const.Amend. 6.
[23] Criminal Law 1158(1)
Sentencing
court's finding regarding acceptance of responsibility is entitled to great
deference and is reversed only if found to be clearly erroneous. U.S.S.G.
§ 3E1.1, comment. (n.5), 18 U.S.C.A.
[24] Sentencing and Punishment 765
(Formerly 110k1252)
Defendants were not entitled to two-level
reduction for acceptance of responsibility for violations of federal obscenity
statute of which they had been convicted, despite their acknowledgement of
their conduct in running computer bulletin board service from which members
could obtain sexually-explicit graphic files and videotapes, in light of
defendants' failure to acknowledge character of materials found to be obscene
and failure to put aside making their living through same means. U.S.S.G.
§ § 3E1.1(a),
3E1.1, comment. (n.1(b)), 18 U.S.C.A.
*704
Dan L. Newsom, Asst. U.S. Atty. (argued and
briefed), Memphis, TN, for U.S.
Thomas
J. Nolan (argued and briefed), Nolan &
Armstrong, Palo Alto, CA, for Robert Alan Thomas.
James
D. Causey (argued and briefed), Causey, Caywood,
Taylor & McManus, Memphis, TN, for Carleen Thomas.
Christopher
A. Hansen (briefed), American Civil Liberties
Union Foundation, New York City, amicus curiae American Civil Liberties Union,
American Civil Liberties Union of Northern California, American Civil Liberties
Union of Tennessee, The National Writers Union, Feminists for Free Expression,
Thomas Jefferson Center for the Protection of Free Expression.
Leonard
J. Henzke, Jr. (briefed), Ginsburg, Feldman and
Bress, Washington, DC, for amicus curiae Interactive Services Ass'n.
Raphael
Winick (briefed), Latham & Watkins, New York
City, amicus curiae Society for Electronic Access.
Shari
Steele (briefed), Electronic Frontier Foundation,
Washington, DC, amicus Curiae Electronic Frontior Foundation.
Bruce
A. Taylor (briefed), National Law Center for
Children and Families, Fairfax, VA, amicus curiae National Law Center for
Children and Families, National Family Legal Foundation, Morality in Media,
American Family Ass'n, Maryland Coalition Against Pornography, Family Research
Council, Focus on the Family, National Coalition for the Protection of Children
& Families, Enough is Enough.
Before:
MARTIN and BATCHELDER, Circuit Judges;
EDMUNDS, District Judge. [FN*]
FN* The Honorable Nancy
G. Edmunds, United States District Judge for the
Eastern District of Michigan, sitting by designation.
EDMUNDS, District Judge.
Defendants Robert and Carleen Thomas appeal
their convictions and sentences for violating 18
U.S.C. § § 1462 and 1465, federal obscenity
laws, in connection with their operation *705 of an electronic bulletin
board. For the following reasons, we
AFFIRM Robert and Carleen Thomas' convictions and sentences.
I.
Robert Thomas and his wife Carleen Thomas
began operating the Amateur Action Computer Bulletin Board System
("AABBS") from their home in Milpitas, California in February
1991. The AABBS was a computer bulletin
board system that operated by using telephones, modems, and personal
computers. Its features included
e-mail, chat lines, public messages, and files that members could access,
transfer, and download to their own computers and printers.
Information loaded onto the bulletin board was
first converted into binary code, i.e.,
0's and 1's, through the use of a scanning device. After purchasing sexually-explicit magazines
from public adult book stores in California, Defendant Robert Thomas used an
electronic device called a scanner to convert pictures from the magazines into
computer files called Graphic Interchange Format files or "GIF"
files. The AABBS contained approximately
14,000 GIF files. Mr. Thomas also
purchased, sold, and delivered sexually-explicit videotapes to AABBS
members. Customers ordered the tapes by
sending Robert Thomas an e-mail message, and Thomas typically delivered them by
use of the United Parcel Service ("U.P.S.").
Persons calling the AABBS without a password
could view the introductory screens of the
system which contained brief, sexually-explicit descriptions of the GIF files
and adult videotapes that were offered for sale. Access to the GIF files, however, was
limited to members who were given a password after they paid a membership fee
and submitted a signed application form that Defendant Robert Thomas reviewed. The application form requested the
applicant's age, address, and telephone number and required a signature.
Members accessed the GIF files by using a
telephone, modem and personal computer.
A modem located in the Defendants' home answered the calls. After they established membership by typing
in a password, members could then select, retrieve, and instantly transport GIF
files to their own computer. A caller
could then view the GIF file on his computer screen and print the image out
using his printer. The GIF files
contained the AABBS name and access telephone number; many also had "Distribute Freely"
printed on the image itself.
In July 1993, a United States Postal
Inspector, Agent David Dirmeyer
("Dirmeyer"), received a complaint regarding the AABBS from an
individual who resided in the Western District of Tennessee. Dirmeyer dialed the AABBS' telephone
number. As a non-member, he viewed a
screen that read "Welcome to AABBS, the Nastiest Place On Earth," and
was able to select various "menus" and read graphic descriptions of
the GIF files and videotapes that were offered for sale.
Subsequently, Dirmeyer used an assumed name
and sent in $55 along with an executed application form to the AABBS. Defendant Robert Thomas called Dirmeyer at
his undercover telephone number in Memphis, Tennessee, acknowledged receipt of
his application, and authorized him to log-on with his personal password. Thereafter, Dirmeyer dialed the AABBS's
telephone number, logged-on and, using his computer/modem in Memphis,
downloaded the GIF files listed in counts 2-7 of the Defendants'
indictments. These GIF files depicted
images of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes
involving urination. Dirmeyer also
ordered six sexually-explicit videotapes from the AABBS and received them via
U.P.S. at a Memphis, Tennessee address.
Dirmeyer also had several e-mail and chat-mode conversations with
Defendant Robert Thomas.
On January 10, 1994, a search warrant was
issued by a U.S. Magistrate Judge for the Northern District of California. The AABBS' location was subsequently
searched, and the Defendants' computer system was seized.
On January 25, 1994, a federal grand jury for
the Western District of Tennessee returned a twelve-count indictment charging
Defendants Robert and Carleen Thomas with the following criminal
violations: one count under 18
U.S.C. § 371
for conspiracy *706 to violate federal obscenity laws--18
U.S.C. § § 1462, 1465
(Count 1), six counts under 18
U.S.C. § 1465 for knowingly using and causing to be used a facility and means of
interstate commerce--a combined
computer/telephone system--for the purpose of transporting obscene,
computer-generated materials (the GIF files) in interstate commerce (Counts
2-7), three counts under 18
U.S.C. § 1462 for shipping obscene videotapes via U.P.S. (Counts 8-10), one count of
causing the transportation of materials depicting minors engaged in sexually
explicit conduct in violation of 18
U.S.C. § 2252(a)(1) as to Mr. Thomas only (Count 11), and one count of
forfeiture under 18
U.S.C. § 1467 (Count 12).
Both Defendants were represented by the same
retained counsel, Mr. Richard Williams of San Jose, California. They appeared twice in federal district
court for the Northern District of California, San Jose division, before being
arraigned on March 15, 1994, in federal court in Memphis, Tennessee. They did not retain local counsel for the
Tennessee criminal prosecution. Both
Defendants were tried by a jury in July, 1994.
Defendant Robert Thomas was found guilty on all counts except count 11
(child pornography). Defendant Carleen
Thomas was found guilty on counts 1-10.
The jury also found that the Defendants' interest in their computer
system should be forfeited to the United States. Robert and Carleen Thomas were sentenced on
December 2, 1994 to 37 and 30 months of incarceration, respectively. They filed their notices of appeal on
December 9, 1994.
II.
A.
[1] Defendants contend
that their conduct, as charged in counts 1-7 of their indictments, does not
constitute a violation of 18
U.S.C. § 1465. This presents a question of statutory interpretation, a matter of law,
and is reviewed by this court under a de novo standard. United
States v. Hans,
921 F.2d 81, 82 (6th Cir.1990). [FN1]
FN1. Defendants
assert that an appellate court is required to conduct an independent review of
the entire record to ensure that their First Amendment rights are
protected. Bose
Corp. v. Consumers Union of United States, Inc.,
466 U.S. 485, 505, 104 S.Ct. 1949, 1962, 80 L.Ed.2d 502 (1984). It is true that
in Bose, the United States Supreme Court recognized that an appellate
court is to conduct an independent review of the record when constitutional
facts are at issue, i.e., actual malice in a libel case or the finding of
obscenity in pornography cases. There
is no need to conduct an independent review when constitutional facts are not
at issue. Accordingly, this first
issue, which involves only statutory interpretation is reviewed under a de
novo standard.
Defendants' challenge to their convictions
under counts 1-7, rests on two basic premises:
1) Section
1465 does not apply to intangible objects like
the computer GIF files at issue here, [FN2] and 2)
Congress did not intend to regulate computer
transmissions such as those involved here because 18
U.S.C. § 1465 does not expressly prohibit such conduct.
FN2. Section
1465 provides:
Whoever knowingly transports in interstate or foreign
commerce for the purpose of sale or distribution, or knowingly travels in
interstate commerce, or uses a facility or means of interstate commerce for the
purpose of transporting obscene material in interstate or foreign commerce, any
obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper,
letter, writing, print, silhouette, drawing, figure, image, cast, phonograph
recording, electrical transcription or other article capable of producing sound
or any other matter of indecent or immoral character, shall be fined under this
title or imprisoned not more than five years, or both.
The transportation as aforesaid of two or more copies of
any publication or two or more of any article of the character described above,
or a combined total of five such publications and articles, shall create a
presumption that such publications or articles are intended for sale or
distribution, but such presumption is rebuttable. 42
U.S.C.A. § 1465 (West 1995 Supp.).
In support of their first premise, Defendants
cite a Tenth Circuit dial-a-porn decision
which holds that 18
U.S.C. § § 1462 and 1465 prohibit the interstate transportation of tangible
objects; not intangible articles like
pre-recorded telephone messages. See
United
States v. Carlin Commun., Inc.,
815 F.2d 1367, 1371 (10th Cir.1987). Defendants claim Carlin is
controlling because transmission of the GIF files at issue under counts 1-7
involved an intangible string of 0's and 1's *707 which became viewable
images only after they were decoded by an AABBS member's computer. We disagree.
[2] The subject matter in Carlin--telephonic
communication of pre-recorded sexually suggestive comments or proposals--is
inherently different from the obscene computer-generated materials that were
electronically transmitted from California to Tennessee in this case. Defendants erroneously conclude that the GIF
files are intangible, and thus outside the scope of § 1465, by
focusing solely on the manner and form in which the computer-generated images
are transmitted from one destination to another. United
States v. Gilboe,
684 F.2d 235 (2nd Cir.1982), cert. denied,
459
U.S. 1201, 103 S.Ct. 1185, 75 L.Ed.2d 432 (1983),
illustrates this point.
In Gilboe, the Second Circuit rejected
the argument that the defendant's transmission of electronic impulses could not
be prosecuted under a criminal statute prohibiting the transportation of money
obtained by fraud. The Gilboe
court reasoned that:
[e]lectronic signals in this context are the means by which
funds are transported. The beginning of
the transaction is money in one account and the ending is money in
another. The manner in which the funds
were moved does not affect the ability to obtain tangible paper dollars or a
bank check from the receiving account.
Id. at 238. The same rationale applies here. Defendants focus on the means by which the
GIF files were transferred rather than the fact that the transmissions began
with computer-generated images in California and ended with the same
computer-generated images in Tennessee.
The manner in which the images moved does not affect their ability to be
viewed on a computer screen in Tennessee or their ability to be printed out in
hard copy in that distant location.
[3] The record does not support Defendants' argument that they
had no knowledge, intent or expectation that members of their AABBS would
download and print the images contained in their GIF files. They ran a business that advertised and
promised its members the availability and transportation of the
sexually-explicit GIF files they selected.
In light of the overwhelming evidence produced at trial, it is spurious
for Defendants to claim now that they did not intend to sell, disseminate, or
share the obscene GIF files they advertised on the AABBS with members outside
their home and in other states.
[4] We also disagree with Defendants' corollary position,
raised at oral argument, that they were
prosecuted under the wrong statute and that their conduct, if criminal at all,
falls within the prohibitions under 47
U.S.C. § 223(b) [FN3] rather than 18
U.S.C. § 1465. As recognized by the Supreme
Court, Section
223(b) of the Communications Act of 1934, was
drafted and enacted by Congress in 1982 "explicitly to address
'dial-a-porn.' " Sable Communications of Cal., Inc. v. F.C.C.,
492 U.S. 115, 120- 121, 109 S.Ct. 2829, 2833, 106 L.Ed.2d 93 (1989). Congress amended Section
223(b) in 1988 to impose a total ban "on
dial-a-porn, making it illegal for adults, as well as children, to have access
to sexually-explicit messages" that are indecent or obscene. Id. at 122-123, 109
S.Ct. at 2834-35. [FN4] 47
U.S.C. § 223(b) addresses commercial dial-a-porn operations that
communicate sexually-explicit telephone messages; not commercial computer bulletin boards that
use telephone facilities for the purpose of transmitting obscene,
computer-generated images to approved members.
FN3. 47
U.S.C. § 223(b) provides:
(1) Whoever knowingly
(A) within the United States, by means of telephone, makes
(directly or by recording device) any obscene communication for commercial
purposes to any person, regardless of whether the maker of such communication
placed the call; or (B) permits any telephone facility under such
person's control to be used for an activity prohibited by subparagraph (A),
shall be fined in accordance with Title
18, or imprisoned not more than two years, or
both.
FN4. In Sable,
the Supreme Court affirmed the lower court's decision which upheld Section
223(b)'s "prohibition against obscene
interstate telephone communications for commercial purposes, but enjoined the
enforcement of the statute insofar as it applied to indecent
messages." Id. at 117, 109
S.Ct. at 2832.
*708 Defendants' second premise, that
Congress did not intend to regulate computer transmissions because the statute
does not expressly prohibit such conduct, is faulty as well. We have consistently recognized that when
construing federal statutes, our duty is to " 'construe the language so as
to give effect to the intent of Congress.' " United
States v. Underhill,
813 F.2d 105, 111 (6th Cir.), cert. denied,
482
U.S. 906, 107 S.Ct. 2484, 96 L.Ed.2d 376 (1987)
(quoting United
States v. American Trucking Associations, Inc.,
310 U.S. 534, 542-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940)). The Supreme Court
observed this principle when it rejected an argument similar to one Defendants
raise here, i.e., that Congress could not possibly have intended to include conduct not expressly prohibited in
the statute. See United
States v. Alpers,
338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457 (1950).
In United States v. Alpers, the Supreme
Court considered the question whether obscene phonograph records--at the time,
a novel means of transmitting obscenity--came within the prohibition of 18
U.S.C. § 1462. Initially, the Court
acknowledged that criminal statutes are to be strictly construed and that
"no offense may be created except by the words of Congress used in their
usual and ordinary way." Id.
at 681, 70
S.Ct. at 353. The Court emphasized, however, that Congress'
intent is the most important determination and statutory language is not to be
construed in a manner that would defeat that intent.
Applying those principles, the Court held that
the rule of ejusdem generis [FN5] should not be "employed to render general words
meaningless" or "be used to defeat the obvious purpose of
legislation." Id.
at 681-83, 70 S.Ct. at 354. It recognized that "[t]he obvious
purpose of [Section
1462] was to prevent the channels of interstate commerce
from being used to disseminate" any obscene matter. Id. at 683, 70
S.Ct. at 354.
The Court further recognized that Section
1462 "is a comprehensive statute, which
should not be constricted by a mechanical rule of construction." Id. at 684, 70
S.Ct. at 354.
Accordingly, the Court rejected the defendant's argument that the general
words "other matter of indecent character" could not be interpreted to include objects comprehensible
by hearing (phonographic recordings) rather than sight; an argument similar to the
tangible/intangible one raised here, and held that obscene records fell within
the scope of the criminal statute.
FN5. This rule of
statutory construction "limits general terms which follow specific ones to
matters similar to those specified."
Alpers,
338
U.S. at 683, 70 S.Ct. at 354.
[5] In reaching its decision, the Alpers Court found
that the legislative history of Section
1462 did not support defendant's sight/sound
distinction. It was not persuaded that
Congress' amendment of Section
1462 to add motion picture films to the list of
prohibited materials "evidenced an intent that obscene matter not specifically
added was without the prohibition of the statute." Id.
Rather, the Court concluded that the amendment evidenced Congress'
preoccupation "with making doubly sure that motion-picture film was within
the Act, and was concerned with nothing more or less." Id. We are similarly unpersuaded by
Defendants' arguments that the absence of the words "including by
computer" in Section
1465, despite Congress' addition of those words
in other legislation, is evidence of its intent not to criminalize conduct,
such as Defendants' that falls within the plain language and intent of Section
1465.
Furthermore, under similar facts, the U.S. Air
Force Court of Criminal Appeals recently considered § 1465's plain
language and its intended purpose. In United
States v. Maxwell,
42 M.J. 568 (A.F.Ct.Crim.App.1995), a defendant
was charged with violating Section
1465 because he had transmitted obscene visual
images electronically through the use of an on-line computer service. He argued
that since the statute is silent concerning computer transmissions, such transmissions
were not to be included within the terms "transporting obscene materials
in interstate or foreign commerce."
The court observed that well-established principles of statutory
construction require a court to look first to the statute's plain language. Maxwell,
42
M.J. at 580 (citing *709Rubin
v. United States,
449 U.S. 424, 430, 101 S.Ct. 698, 701-02, 66
L.Ed.2d 633 (1981)). Applying that principle, the Maxwell
court concluded that the defendant's conduct fell within the plain language of Section
1465.
Specifically, the court held:
[t]he use of the terms "transports,"
"distribution," "picture," "image" and
"electrical transcription" leads us to the inescapable conclusion the
statute is fully applicable to the activities engaged in by applicant.... It is clear Congress intended to stem the
transportation of obscene material in interstate commerce regardless of the
means used to effect that end.
Likewise, we conclude that Defendants' conduct
here falls within the plain language of Section
1465. [FN6] Moreover, our interpretation of Section
1465 is consistent with Congress' intent to
legislate comprehensively the interstate distribution of obscene
materials. Id.
FN6. Our holding here
renders moot Defendants' arguments that the district court's instructions on
conspiracy were erroneous because they allowed for a conviction based upon a
conspiracy to commit conduct wrongfully charged in counts 2-7 of their
indictments.
B.
[6] Defendants also challenge venue in the Western District of
Tennessee for counts 2-7 of their indictments.
They argue that even if venue was proper under count 1 (conspiracy) and
counts 8-10 (videotapes sent via U.P.S.), counts 2-7 (GIF files) should have
been severed and transferred to California because Defendants did not cause the
GIF files to be transmitted to the Western District of Tennessee. Rather, Defendants assert, it was Dirmeyer,
a government agent, who, without their knowledge, accessed and downloaded the
GIF files and caused them to enter Tennessee.
We disagree. To establish a Section
1465 violation, the Government must prove that a
defendant knowingly used a facility or means of interstate commerce for the purpose of distributing obscene materials. Contrary to Defendants' position, Section
1465 does not require the Government to prove
that Defendants had specific knowledge of the destination of each transmittal
at the time it occurred.
[7][8] "Venue lies in any district in which the offense was
committed," and the Government is required to establish venue by a
preponderance of the evidence. United
States v. Beddow,
957 F.2d 1330, 1335 (6th Cir.1992) (quoting United
States v. Williams,
788 F.2d 1213, 1215 (6th Cir.1986)). This court examines the propriety of venue
by taking " 'into account a number of factors--the site of the defendant's
acts, the elements and nature of the crime, the locus of the effect of the
criminal conduct, and the suitability of each district for accurate fact
finding ...' " Id.
Section
1465 is an obscenity statute, and federal
obscenity laws, by virtue of their inherent nexus to interstate and foreign
commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well-established that
"there is no constitutional impediment to the government's power to
prosecute pornography dealers in any district into which the material is
sent." United
States v. Bagnell,
679 F.2d 826, 830 (11th Cir.1982), cert.
denied, 460
U.S. 1047, 103 S.Ct. 1449, 75 L.Ed.2d 803 (1983);
United
States v. Peraino,
645 F.2d 548, 551 (6th Cir.1981). Thus, the question of venue has become one
of legislative intent. Bagnell,
679 F.2d at
830.
The Bagnell court examined both §
§ 1462 and
1465 and found that each statute established a continuing
offense within the venue provisions of 18
U.S.C. § 3237(a) "that occur[s] in every judicial district which the
material touches." Id. at
830. This court likewise recognized
that "venue for federal obscenity prosecutions lies 'in any district from,
through, or into which' the allegedly obscene material moves." Peraino,
645 F.2d at 551 (citing 18
U.S.C. § 3237).
[9] Substantial evidence introduced at trial demonstrated that
the AABBS was set up so members located in other jurisdictions could access and
order GIF files which would then be instantaneously transmitted in interstate
commerce. Moreover, AABBS materials
were distributed to an approved AABBS member known to reside in the Western *710
District of Tennessee. Specifically, Defendant Robert Thomas knew of, approved,
and had conversed with an AABBS member in that judicial district who had his
permission to access and copy GIF files that ultimately ended up there. Some of these GIF files were clearly marked
"Distribute Freely." In light
of the above, the effects of the Defendants' criminal conduct reached the
Western District of Tennessee, and that district was suitable for accurate
fact-finding. Accordingly, we conclude
venue was proper in that judicial district.
C.
Defendants further argue that their
convictions under counts 1-7 of their indictments violate their First Amendment
rights to freedom of speech. As the
Supreme Court noted in Bose, when constitutional facts [FN7] are at issue, this court has a duty to conduct an
independent review of the record "both to be sure that the speech in
question actually falls within the unprotected category and to confine the
perimeters of any unprotected category within acceptably narrow limits in an
effort to ensure that protected expression will not be inhibited." Bose
Corp. v. Consumers Union of United States, Inc.,
466 U.S. 485, 505, 104 S.Ct. 1949, 1962, 80 L.Ed.2d 502 (1984).
FN7. Some examples of
constitutional facts include those that support: the finding of actual malice in a defamation
or libel suit; the finding that obscene
materials were used solely in the home and were thus protected under Stanley
v. Georgia,
394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969),
or the finding that material is obscene under the test for obscenity set forth
in Miller
v. California,
413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973).
1. Defendants' Right to Possess the GIF
Files in their Home
Defendants rely on Stanley
v. Georgia,
394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969),
and argue they have a constitutionally protected right to possess obscene materials in the privacy of
their home. They insist that the GIF
files containing sexually-explicit material never left their home. Defendants'
reliance on Stanley is misplaced.
The Supreme Court has clarified that Stanley
"depended not on any First Amendment Right to purchase or possess obscene
materials, but on the right to privacy in the home." United
States v. 12 200-Ft. Reels of Super 8mm. Film,
413 U.S. 123, 126, 93 S.Ct. 2665, 2668, 37 L.Ed.2d 500 (1973). It has also
recognized that the right to possess obscene materials in the privacy of one's
home does not create "a correlative right to receive it, transport it, or
distribute it" in interstate commerce even if it is for private use
only. Nor does it create "some
zone of constitutionally protected privacy [that] follows such material when it
is moved outside the home area." United
States v. Orito,
413 U.S. 139, 141-42, 93 S.Ct. 2674, 2677, 37 L.Ed.2d 513 (1973); see also 12
200-Ft. Reels,
413 U.S. at 128, 93 S.Ct. at 2669.
[10] Defendants went beyond merely possessing obscene GIF files
in their home. They ran a business that
advertised and promised its members the availability and transportation of the
sexually-explicit GIF files they selected.
In light of the overwhelming evidence produced at trial, it is spurious
for Defendants to claim now that they did not intend to sell, disseminate, or
share the obscene GIF files they advertised on the AABBS with members outside
their home and in other states.
2.
The Community Standards to be Applied When Determining Whether the GIF Files
Are Obscene
In Miller
v. California,
413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973),
the Supreme Court set out a three-prong test for obscenity. It inquired whether (1) " 'the average
person applying contemporary community standards' would find that the work,
taken as a whole appeals to the prurient interest"; (2) it "depicts or describes, in a
patently offensive way, sexual conduct specifically defined by applicable state
law"; and (3) "the work, taken
as a whole, lacks serious literary, artistic, political, or scientific
value." Id.
at 24, 93 S.Ct. at 2615.
[11] Under the first prong of the Miller obscenity test,
the jury is to apply "contemporary community standards." Defendants acknowledge the general principle
that, in *711 cases involving interstate transportation of obscene
material, juries are properly instructed to apply the community standards of
the geographic area where the materials are sent. Miller,
413 U.S. at 15, 30-34, 93 S.Ct. at 2610, 2618-20. Nonetheless, Defendants assert that this
principle does not apply here for the same reasons they claim venue was
improper. As demonstrated above, this
argument cannot withstand scrutiny. The computer-generated images described in
counts 2-7 were electronically transferred from Defendants' home in California
to the Western District of Tennessee.
Accordingly, the community standards of that judicial district were properly applied in this case.
Issues regarding which community's standards
are to be applied are tied to those involving venue. It is well-established that:
[v]enue for federal obscenity prosecutions lies "in
any district from, through, or into which" the allegedly obscene material
moves, according to 18
U.S.C. § 3237. This may result in
prosecutions of persons in a community to which they have sent materials which
is obscene under that community's standards though the community from which it
is sent would tolerate the same material.
United
States v. Peraino,
645 F.2d 548, 551 (6th Cir.1981). Prosecutions may be brought either in the
district of dispatch or the district of receipt, Bagnell,
679 F.2d at 830-31, and obscenity is determined
by the standards of the community where the trial takes place. See Miller,
413 U.S. at 15, 30- 34, 93 S.Ct. at 2610, 2618-20; Hamling
v. United States,
418 U.S. 87, 105- 6, 94 S.Ct. 2887, 2901-02, 41 L.Ed.2d 590 (1974); Sable,
492 U.S. at 125, 109 S.Ct. at 2836. Moreover, the federal courts have
consistently recognized that it is not unconstitutional to subject interstate
distributors of obscenity to varying community standards. Hamling,
418 U.S. at 106, 94 S.Ct. at 2901-02; United
States v. Sandy,
605 F.2d 210, 217 (6th Cir.), cert. denied,
444
U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979).
3. The Implications of Computer Technology
on the Definition of "Community"
Defendants and Amicus Curiae appearing
on their behalf [FN8] argue that
the computer technology used here requires a new definition of community, i.e.,
one that is based on the broad-ranging connections among people in cyberspace
rather than the geographic locale of the federal judicial district of the
criminal trial. Without a more flexible
definition, they argue, there will be an impermissible chill on protected speech
because BBS operators cannot select who gets the materials they make available
on their bulletin boards. Therefore, they contend, BBS operators like
Defendants will be forced to censor their materials so as not to run afoul of
the standards of the community with the most restrictive standards.
FN8. The following Amicus
Curiae submitted briefs on behalf of Defendants in this matter: the American Civil Liberties Union, the
Interactive Services Association, the Society for Electronic Access, and The
Electronic Frontier Foundation.
Defendants' First Amendment issue, however, is
not implicated by the facts of this case.
This is not a situation where the bulletin board operator had no
knowledge or control over the jurisdictions where materials were distributed
for downloading or printing. Access to
the Defendants' AABBS was limited. Membership was necessary and applications
were submitted and screened before passwords
were issued and materials were distributed.
Thus, Defendants had in place methods to limit user access in
jurisdictions where the risk of a finding of obscenity was greater than that in
California. They knew they had a member
in Memphis; the member's address and
local phone number were provided on his application form. If Defendants did not wish to subject
themselves to liability in jurisdictions with less tolerant standards for
determining obscenity, they could have refused to give passwords to members in
those districts, thus precluding the risk of liability.
This result is supported by the Supreme
Court's decision in Sable Communications of Cal., Inc. v. F.C.C. where
the Court rejected Sable's argument that it should not be compelled to tailor
its dial-a-porn messages to the standards of the least tolerant community. *712
492 U.S. 115, 125- 26, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989). The Court
recognized that distributors of allegedly obscene materials may be subjected to
the standards of the varying communities where they transmit their materials,
citing Hamling, and further noted that Sable was "free to tailor
its messages, on a selective basis, if it so chooses, to the communities it
chooses to serve." Id. at
125, 109
S.Ct. at 2836.
The Court also found no constitutional impediment to forcing Sable to
incur some costs in developing and implementing a method for screening a
customer's location and "providing messages compatible with community
standards." Id.
Thus, under the facts of this case, there is
no need for this court to adopt a new definition of "community" for
use in obscenity prosecutions involving electronic bulletin boards. This court's decision is guided by one of
the cardinal rules governing the federal courts, i.e., never reach
constitutional questions not squarely presented by the facts of a case. Brockett
v. Spokane Arcades, Inc.,
472 U.S. 491, 502, 105 S.Ct. 2794, 2801, 86 L.Ed.2d 394 (1985).
D.
[12] Defendants next raise a number of challenges to the jury
instructions given at their trial.
Initially, they claim that, as to counts 2, 3, 6 and 9, the district
court should have included an augmented unanimity instruction because those
counts involved more than one GIF file or videotape. The district court instructed the jury that
"[i]f more than one article is alleged to be obscene in a particular
count, the government is required to show only that one of these articles was
obscene." There was no request for
an augmented unanimity instruction and there was no objection at trial to the
instruction given. The issue was raised
for the first time at sentencing. Accordingly, this court reviews for plain
error. United
States v. Mendez-Ortiz,
810 F.2d 76 (6th Cir.1986), cert. denied, 480
U.S. 922, 107 S.Ct. 1384, 94 L.Ed.2d 697 (1987).
We have recognized that "[t]he plain
error doctrine is to be used 'only in exceptional
circumstances' and only where the error is so plain that 'the trial judge and
the prosecutor were derelict in countenancing it.' " Id.
at 78. Moreover, "[w]e consider whether the
instructions, when taken as a whole, were so clearly wrong as to produce a
grave miscarriage of justice." United
States v. Sanderson,
966 F.2d 184, 187 (6th Cir.1992).
[13] When one count of an indictment charges that a defendant
committed an offense by "multiple alternative 'conceptually' distinct
acts," the defendant can request that the court give the jury an augmented
unanimity instruction, i.e., one that tells them that, with regard to this
particular count, they must all agree that the defendant committed one of those
distinct acts. United
States v. Duncan,
850 F.2d 1104, 1110 (6th Cir.1988). With regard to specific, or augmented
unanimity instructions, this court has recognized that the instruction is not
necessary "unless 1) a count is extremely complex, 2) there is variance
between the indictment and the proof at trial, or 3) there is a tangible risk
of jury confusion." Sanderson,
966 F.2d at 187.
Contrary to Defendants' assertions, this court's decision in Duncan
does not require a court to sua sponte instruct the jury on specific
unanimity when more than one basis for conviction is presented in a single
count. Rather, we have consistently
recognized that the need arises when it is shown that there is a "genuine
risk that the jury is confused or that a conviction may occur as the result of
different jurors concluding that a defendant
committed different acts." United
States v. Sims,
975 F.2d 1225, 1241 (6th Cir.1992), cert.
denied, 507
U.S. 932, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993).
In Duncan, the court held that an
augmented unanimity instruction should have been given because the court had
been apprised of the unanimity problem in pretrial motions and by "a
mid-deliberation question from the jury raising the genuine possibility that
conviction could occur as the result of different jurors using a different
false statement as the underlying factual predicate for guilt." Duncan,
850 F.2d at 1105. Defendants have not demonstrated that there
was a tangible risk of jury confusion here.
Thus, this case is easily distinguished from Duncan.
*713 Furthermore, counts 2, 3, 6 and 9
were not complex, and there was no variance between the indictment and the
proof at trial. Accordingly, none of
the circumstances existed that would give rise to the need for a specific
unanimity instruction. Consequently, we
conclude that the district court did not commit error when it gave general
instructions on unanimity. Furthermore,
considering the subject matter of each GIF file and videotape listed in counts
2, 3, 6 and 9, we find it unlikely that the jury would have had any trouble
reaching unanimity on the fact that one item described in each of those counts
was obscene.
E.
[14] We next address
the Defendants' argument that the district court erred when it instructed the
jury that the government was not required to present expert testimony regarding
the prurient appeal of the materials at issue here. [FN9] Under the first prong of the Miller
obscenity test, the jury must consider whether the allegedly obscene material
"appeals to the prurient interest."
Miller,
413 U.S. at 24, 93 S.Ct. at 2615.
FN9. The district
court instructed the jury as follows:
You have heard testimony from an expert witness presented
on behalf of the defendants. An expert
is allowed to express his opinion on those matters about which he has special
knowledge and training. Expert
testimony is presented to you on the theory that someone that is experienced in
the field can assist you in understanding the evidence or in reaching an
independent decision on the facts.
There is no requirement, however, that expert testimony be presented in
an obscenity case. The government need
not produce expert evidence that the materials are obscene, but may rely on the
computer generated images and videotapes themselves for its argument that the
materials are obscene.
The computer-generated images and videotapes
involved here portrayed bestiality, incest, rape, and sex scenes involving defecation,
urination, and sado-masochistic abuse. Defendants argue that the Government is
required to present expert testimony when sexually-explicit material is
directed at a deviant group. We disagree. Neither the United States Supreme Court nor
this court has adopted any such per se rule.
The Supreme Court has consistently recognized
that "[e]xpert testimony is not necessary to enable the jury to judge the
obscenity of material which ... has been placed into evidence." Hamling
v. United States,
418 U.S. 87, 100, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974) (citing Paris
Adult Theatre I v. Slaton,
413 U.S. 49, 56, 93 S.Ct. 2628, 2634-35, 37 L.Ed.2d 446 (1973), Kaplan
v. California,
413 U.S. 115, 120-21, 93 S.Ct. 2680, 2684-2685, 37 L.Ed.2d 492 (1973), Ginzburg
v. United States,
383 U.S. 463, 465, 86 S.Ct. 942, 944-45, 16 L.Ed.2d 31 (1966)). In Paris
Adult Theatre I, the Court observed that the allegedly obscene materials,
"obviously, are the best evidence of what they represent" and have
been consistently recognized as " 'sufficient in themselves for the
determination of the question.' " 413
U.S. at 56, 93 S.Ct. at 2634-35 (quoting Ginzburg,
383 U.S. at 465, 86 S.Ct. at 944). The Paris I Court further elaborated
that:
[t]his is not a subject that lends itself to the
traditional use of expert testimony.
Such testimony is usually admitted for the purpose of explaining to lay
jurors what they otherwise could not understand. No such assistance is needed by jurors in
obscenity cases; indeed the "expert
witness" practices employed in these
cases have often made a mockery out of the otherwise sound concept of expert
testimony.
Id.
at 56, n. 6, 93 S.Ct. at 2634, n. 6 (citations
omitted).
The Court has explicitly reserved judgment on
the issue whether expert testimony is required in the "extreme case"
where "contested materials are directed at such a bizarre deviant group
that the experience of the trier of fact would be plainly inadequate to judge
whether the material appeals to the prurient interest." Id.
In Pinkus
v. United States,
436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293 (1978),
the Court once again reserved judgment on this question, finding that it was
not presented with the "extreme case" referenced in Paris I
because there was expert testimony in evidence which, when "combined with
the exhibits themselves, sufficiently guided the jury." Pinkus,
436 U.S. at 303, 98 S.Ct. at 1815.
*714 Expert testimony on prurient
appeal to deviant groups was also presented in this case. Defendants' expert, Dr. Victor Pascale, a
licensed clinical psychologist, testified at trial about how certain groups of
individuals can become sexually aroused by objects or conduct not normally
thought of as sexual in nature, i.e., the use of whips, cross-dressing,
urination, defecation, infliction of pain (sado-masochism), and voyeurism.
Thus, as in Pinkus, we find that the expert testimony, when combined
with the allegedly obscene materials themselves, was sufficient to guide the
jury with regard to prurient appeal.
Defendants rely heavily on decisions from the
Second Circuit. See United
States v. Klaw,
350 F.2d 155 (2nd Cir.1965); United
States v. Petrov,
747 F.2d 824 (2nd Cir.1984), cert. denied,
471
U.S. 1025, 105 S.Ct. 2037, 85 L.Ed.2d 318 (1985). In Petrov, however, the court
concluded that Klaw is "properly understood to require expert
testimony that material appeals to the prurient interest of a deviant group
only when the material portrays conduct not generally understood to be
sexual." Id.
at 836.
Furthermore, the Petrov court concluded that expert testimony is
"not required to establish the prurient appeal of photographs depicting
bestiality." Id. at
837. The court further clarified that
although Klaw required expert testimony on depictions of
sado-masochistic activity, the requirement was met where the defendant's expert
testified on cross-examination that such materials would appeal to the sexual
interest of a small minority of individuals even though they would not appeal
to the average person. Id.
at 830-31.
Thus, Petrov does not compel a different result, and this court
concludes that the challenged jury instruction was not erroneous.
F.
[15] A required element of § 1465 is that
the defendant knowingly "used a facility or means of interstate
commerce" for the purpose of transporting or transmitting obscene material. Defendants argue that the district court's
instruction, that "facility or means of interstate commerce" includes
"any method of communication between different states," improperly
expanded the meaning of this criminal statute.
Defendants failed to object to the instruction, therefore, it is
examined for plain error. We conclude
that there is no plain error here.
Contrary to Defendants' argument, the
instruction finds support in 2 Devitt, Blackmar and O'Malley, Federal Jury
Practice and Instruction, Criminal, (4th Ed.1990), § 46.06 at 664, which provides:
The term "uses any facility in interstate ...
commerce" means employing or utilizing any method of communication or
transportation between one state and another.
The term "uses any facility in interstate ... commerce", for
example, includes the use of the telephone and mails.
G.
[16][17] Defendants claim they were denied due process of law and a
fair trial by the admission of uncharged GIF files and descriptions of
uncharged materials at their trial. We
will not disturb the district court's admission of this evidence and its
determinations of relevancy absent a clear abuse of discretion. United
States v. Seago,
930 F.2d 482, 494 (6th Cir.1991). We also apply an abuse of discretion
standard to the district court's decision in balancing the potentially unfair
prejudicial impact of evidence against its probative
value. United
States v. Feinman,
930 F.2d 495, 499 (6th Cir.1991). In reviewing how such a balance is weighed,
"the appellate court must view the evidence in the light most favorable to
its proponent, giving 'the evidence its maximum reasonable probative force and
its minimum reasonable prejudicial value.' " United
States v. Moore,
917 F.2d 215, 233 (6th Cir.1990), cert.
denied, 499
U.S. 963, 111 S.Ct. 1590, 113 L.Ed.2d 654 (1991).
Defendants complain that the district court
erred when it allowed the Government to introduce 31 uncharged GIF files,
portions of 2 uncharged videos, and the AABBS' descriptions of uncharged GIF
files and videotapes at trial. They assert that the material had no probative
value, and its introduction served only to unfairly prejudice the jury. Based on our review of the record, we find
no abuse of discretion.
*715 [18] With regard to the videotapes, the record reveals that the
district court considered whether the probative value of two minutes of one of
the three "child nudist" videotapes sent by Defendant Robert Thomas
to Dirmeyer was substantially outweighed by the danger of unfair
prejudice. F.R.E.
401, 403. Despite an
objection from Defendants' counsel, the district court ruled that the material
was probative to the issue of Mr. Thomas' predisposition in light of his
entrapment defense to count 11, charging him with knowing receipt of child pornography. We find no error in the admission of the videotapes since they were properly
introduced in response to the entrapment defense.
[19] Defendants' claim that the district court erred when it
permitted the jury to see 31 uncharged GIF files is likewise without merit.
Each of the GIF file images was made from the charged videotapes by stopping
the tapes at a certain point, making a still frame or photograph, and then
scanning it onto the AABBS and making it available for distribution as a
separate item. Because the entire
videotape was properly admitted and viewed by the jury, we reject Defendants'
claim of unfair prejudice.
[20] Defendants also complain that the district court erred by
allowing the jury to hear sexually-explicit descriptions of other uncharged GIF
files and videotapes. Contrary to
Defendants' contention, this material did have probative value, i.e., it was
relevant to establishing scienter and pandering. Defendants posted these
graphic descriptions in the public areas of the AABBS, and this was one way
they advertised for members. See Mishkin
v. New York,
383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Pinkus,
436 U.S. at 303, 98 S.Ct. at 1814-15. Accordingly, we reject Defendants' argument
that the above evidence was clearly more prejudicial than probative under F.R.E.
403, and find no abuse of discretion in its
admission under F.R.E.
401.
H.
Defendants next contend that they were denied
effective assistance of counsel at their
trial because their retained counsel failed to:
(1) move for dismissal based on Carlin; (2) object to the admission of evidence at
trial; (3) move for judgment of
acquittal based on the government's requirement to provide expert testimony
regarding "prurient appeal" to deviant groups; (4) recognize the conflict of interest inherent
in his dual representation of both Defendants;
(5) sever the child pornography count;
(6) file a suppression motion;
(7) request discovery; (8)
challenge the indictment as duplicative;
(9) move for a mistrial; (10)
submit a theory-of-the-case instruction;
(11) introduce comparable sexually-explicit videotapes available in
Memphis; and (12) with regard to Carleen
Thomas, failed to move for a judgment of acquittal at the close of the
government's case for lack of evidence of scienter and then called her to the
stand when her testimony could only incriminate her.
[21] As a general rule, this court "will not review claims
of ineffective counsel that are raised for the first time on appeal." United
States v. Seymour,
38 F.3d 261, 263 (6th Cir.1994). These claims are " 'best brought by a
defendant in a post-conviction proceeding under 28
U.S.C. § 2255 so that the parties can develop an adequate record on the issue.'
" Id. (quoting United
States v. Daniel,
956 F.2d 540, 543 (6th Cir.1992)). We consider
such claims on direct appeal only where the record has been sufficiently
developed so as to allow us to evaluate counsel's performance. Seymour,
38 F.3d at 263.
We find that the record here is not adequately developed for us to
consider the ineffective assistance of counsel claims asserted above.
[22] We will, however, consider Defendant Carleen Thomas'
argument that she was denied effective assistance of counsel because the
district court refused her request for separate counsel without adequate
inquiry as to her reasons. Unlike the above claims, we find the record below is
sufficiently developed to address this issue.
Carleen Thomas first raised her request for
separate counsel on the day of trial.
The Government informed the district court that Defendants had
previously been informed of their right to separate counsel but they had waived
that right. While considering Carleen
Thomas' late request, the district court made additional inquiries and reviewed
the record to determine whether she had indeed been informed of, and had
waived, that right. *716 The
inquiry revealed both events had occurred.
The district court refused to delay the trial that was set to begin
immediately but did offer to arrange for separate standby counsel for Carleen
Thomas. The court also informed Carleen
Thomas that, because she was not indigent, she would have to reimburse this
counsel at the rate charged by court-appointed attorneys. After considering the court's offer, Carleen
Thomas stated on the record that she wished to continue with Mr. Williams as
her retained counsel. In light of the above, we reject Carleen Thomas' claim.
I.
[23] Defendants' final argument challenges the district court's
denial of a two-level reduction in their sentences for acceptance of
responsibility. They claim they are
entitled to the reduction because they fully acknowledged their conduct in
running the AABBS. The sentencing
court's finding regarding acceptance of responsibility is entitled to great
deference and is reversed only if found to be clearly erroneous. See United
States v. Ivery,
999 F.2d 1043, 1045 (6th Cir.1993); see also U.S.S.G.
§ 3E1.1(a),
comment, n. 5.
U.S.S.G.
§ 3E1.1(a)
provides for a two-level reduction for a defendant who "clearly demonstrates acceptance of
responsibility." To qualify for
this reduction, Defendants were required to show by a preponderance of the
evidence that they had accepted responsibility for the crime committed. United
States v. Williams,
940 F.2d 176 (6th Cir.), cert. denied, 502
U.S. 1016, 112 S.Ct. 666, 116 L.Ed.2d 757 (1991). U.S.S.G.
3E1.1(a), comment, n. 2 clarifies that the
reduction is "not intended for a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse." This comment further clarifies that only in
"rare situations" will the adjustment apply after a trial and verdict
of guilt, e.g., where the defendant makes a
challenge to the applicability of a statute to his conduct. Defendants assert
that they fit the "rare situation" and should not have been denied
the reduction.
[24] The sentencing judge, however, stated more than one ground
for denying the two-level reduction.
She noted that neither Defendant acknowledged the character of the
materials found to be obscene. In
addition, she found no indication that either of them had put aside making
their living through the same means. U.S.S.G.
§ 3E1.1(a),
comment n. 1(b) lists voluntary termination or withdrawal from criminal conduct
as a factor to be considered by the court.
This court has recognized that the two-level adjustment is properly
denied under circumstances where the defendant continues conduct that is the
same type as the underlying offense. See
United
States v. Reed,
951 F.2d 97, 99-100 (6th Cir.1991), cert.
denied, 503
U.S. 996, 112 S.Ct. 1700, 118 L.Ed.2d 409 (1992); United
States v. Snyder,
913 F.2d 300, 305 (6th Cir.1990), cert.
denied, 498
U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991). Accordingly, we hold that the sentencing
court's denial of the two-level reduction was not clearly erroneous.
III.
For the foregoing reasons, this court AFFIRMS
Robert and Carleen Thomas' convictions and sentences.
74 F.3d 701, 64 USLW 2483, 43 Fed. R. Evid.
Serv. 969, 24 Media L. Rep. 1321, 1996 Fed.App. 0032P, 96 Cal. Daily Op. Serv.
609
END OF
DOCUMENT