United States Court of Appeals,
Eleventh Circuit.
Only the Westlaw
citation is currently available.This case
was not selected for publication in the Federal Reporter.
UNITED STATES of
America, Plaintiff-Appellee,
v.
Paul
F. LITTLE, a.k.a. Max
Hardcore, a.k.a. Max Steiner, Max World Entertainment, Inc.,
Defendants-Appellants.
No. 08-15964.
Feb. 2, 2010.
H. Louis Sirkin, Sirkin, Kinsley
& Nazzarine, Jennifer M. Kinsley, Sirkin, Pinales
& Schwartz LLP,
Cincinnati, OH, for Defendants-Appellants.
Lisamarie
Freitas, Edward J. McAndrew, Washington, DC, for
Plaintiff-Appellee.
Appeals
from the United States District Court for the Middle District of
Florida. D.C.
Docket No. 07-00170-CR-T-24TBM.
Before BLACK, WILSON and COX, Circuit Judges.
PER
CURIAM:
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. §§ 1461FN1
and 1465FN2,
on several grounds. They appeal: (1) denial of their motions to
dismiss; (2)
denial of their motions for judgment of acquittal; (3) allegedly
improper
comments by the government during closing argument; (4) allegedly
improper jury
instructions; (5) allegedly improper handling of juror irregularities;
(6)
failure of the judge to recuse herself; and (7) errors in sentencing.
We find
no merit to the Appellants' issues with the exception of the sentencing
enhancement for pecuniary gain over thirty thousand dollars ($30,000)
which we
find was assessed in error. Therefore, we affirm in part, reverse in
part, and
remand for re-sentencing in accord with our decision.
FN1.
“Every obscene, lewd, lascivious, indecent, filthy or vile article,
matter,
thing, device, or substance....
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.
FN2.
“Whoever knowingly produces with the intent to transport, distribute,
or
transmit in interstate or foreign commerce, or whoever knowingly
transports or
travels in, or uses a facility or means of, interstate or foreign
commerce or
an interactive computer service (as defined in section 230(e)(2) of the
Communications Act of 1934) in or affecting such commerce, for the
purpose of
sale or distribution of 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.” 18 U.S.C. § 1465.
I.
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.FN3
Counts one through five, which Appellants were convicted of pursuant to
18 U.S.C. § 1465, are based on five
of these trailers.
FN3.
The websites were hosted on servers in Tampa, Florida that belonged to
Candid
Hosting, Inc.
As part of
the investigation, the U.S. Postal Inspection Service office in Tampa
ordered
five DVD videos from the Appellants' websites.FN4
The inspector entered a post office box in Tampa as her shipping
address and
the DVDs were subsequently shipped via U.S. mail. These five DVDs are
the basis
for counts six through ten for which the Appellants were convicted
pursuant to 18 U.S.C. § 1461.
FN4.
According to the websites' standard online ordering procedure, the
inspector
was rerouted to a wholly independent website owned by an independent
company,
Jaded Video. Jaded Video is a separate company that Appellants employed
to ship
the obscene materials.
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.
II.
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 FN5
However, “obscene material is unprotected by the First Amendment.” Miller, 413 U.S. at 23, 93 S.Ct. at 2614 (citation omitted). And neither
the
Supreme Court nor this Circuit has ever ruled that the government is
precluded
from regulating obscene materials passing in interstate commerce. United States v. Orito, 413 U.S. 139, 143, 93 S.Ct. 2674,
2678 (1973)
(“[W]e cannot say that the Constitution
forbids comprehensive federal regulation of interstate transportation
of
obscene material ...”); United States v. Reidel, 402 U.S. 351, 354, 91 S.Ct. 1410,
1412 (1971)
(“[T]he States retain broad power to
regulate obscenity ...”); see also Lofton v. Sec'y Dep't Children and
Family Servs.,
358 F.3d 804, 815-17 (11th Cir.2004) (finding a Florida statute that
prevented
adoption by same-sex couples constitutional in part because Lawrence v. Texas, 539 U.S. 558, 564, 123 S.Ct. 2472,
2476 (2003),
did not create a new fundamental right
of sexual privacy). We find no merit to Appellants' argument that the
federal
obscenity laws are unconstitutional.
FN5.
Appellants cite Lawrence
v. Texas,
539 U.S. 558, 578-79, 123 S.Ct. 2472, 2484 (2003), to support their theory that the
Supreme
Court has established a right of sexual privacy. However, Lawrence
was
limited to the issue of “whether the petitioners were free as adults to
engage
in the private conduct in the exercise of their
liberty under the Due
Process Clause of the Fourteenth Amendment to the Constitution.” Id. at 564, 123 S.Ct. at 2476 (emphasis added).
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. See413 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,FN6
that a local community standard is not the proper approach for judging
Internet-based materials. The growing discord has arisen from the
belief that
the transmission of materials over the Internet is inherently different
from
the traditional, concrete, real world conveyance of materials. See
Ashcroft
v. ACLU,
535 U.S. 564, 595, 122 S.Ct. 1700, 1718 (2002) (Kennedy, J., concurring)
(“Indeed, when
Congress purports to abridge the freedom of a new medium, we must be
particularly attentive to its distinct attributes, for differences in
the
characteristics of new media justify differences in the First Amendment
standards applied to them .” (quotation and citation omitted)). When
Appellants
published their materials on the Internet the materials immediately
became
available to anyone in the world with Internet access. See id. at 595, 122 S.Ct. at 1719 (Kennedy, J., concurring) (“[I]t
is easy
and cheap to reach a worldwide audience on the Internet, but expensive
if not
impossible to reach a geographic subset.” (citations omitted)). Even if
Appellants live in an area that is widely open FN7
to sexually explicit materials, these materials are equally accessible
to
individuals in the strictest corners of our nation. FN8See id. at 595-96, 122 S.Ct. at 1719 (Kennedy, J., concurring) (“A Web
publisher in a community where avant garde culture is the norm may have
no
desire to reach a national market; he may wish only to speak to his
neighbors;
nevertheless, if an eavesdropper in a more traditional, rural community
chooses
to listen in, there is nothing the publisher can do.”).
FN6.See Ashcroft v. ACLU, 535 U.S. 564, 587, 122 S.Ct. 1700,
1714 (2002)
(O'Connor, J., concurring) (“[A]doption
of a national standard is necessary in my view for any reasonable
regulation of
Internet obscenity.”); Id. at 589, 122 S.Ct. at 1715 (Breyer, J., concurring) (“I
believe that
Congress intended the statutory word ‘community’ to refer to the
Nation's adult
community taken as a whole, not to geographically separate local
areas.”); United
States v. Kilbride, 584 F.3d 1240, 1254 (9th Cir.2009) (“[A] national community standard
must be
applied in regulating obscene speech on the Internet, including
obscenity
disseminated via email.”).
FN7.
We do not claim to know if the community where Appellants conducted
their
Internet publishing was accepting of the materials in question, but
merely
posit the statement for purposes of argument.
FN8.
Of course, the materials would also be available to individuals all
over the
world, but for the purposes of analyzing federal statutes we confine
our
concern to the communities located within the borders of the United
States.
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.FN9
FN9.
Ironically, the Miller contemporary community
standard was established
to protect the First Amendment rights of those in the sexually open
areas of
our country just as much as it was designed to protect the people in
the
strictest areas. Miller, 413 U.S. at 30-34, 93 S.Ct. at
2618-2620. Miller
declared that it is “neither
realistic nor constitutionally sound to read the First Amendment as
requiring
that the people of Maine or Mississippi accept public depiction of
conduct found
tolerable in Las Vegas, or New York City,” 413 U.S. at 32, 93 S.Ct. at 2619, which means the opposite must also
hold
true, that the people of Las Vegas and New York City must not be
constrained in
their First Amendment freedom of expression by the standards of those
in Maine
or Mississippi. See Ashcroft, 535 U.S. at 597, 122 S.Ct. at 1719 (Kennedy, J., concurring) (“[I]t
is
neither realistic nor beyond constitutional doubt for Congress, in
effect, to impose
the community standards of Maine or Mississippi on Las Vegas and New
York.”).
The problem we encounter today is due in part to the fact that the
Court in the
time of Miller could not envision the amorphous and
viral nature of the
internet.
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.FN10
FN10.
“I agree with the plurality.... I write separately to express my
views
on the constitutionality and desirability of
adopting a national
standard for obscenity for regulation of the Internet.” Ashcroft, 535 U.S. at 586, 122 S.Ct. at 1714 (O'Connor, J., concurring)
(emphases
added); “And in future facial challenges to
regulation of obscenity on
the Internet, litigants may make a more convincing case for [a national
community standard].” Id. at 587, 122 S.Ct. at 1714 (O'Connor, J., concurring)
(emphasis
added); “While I would prefer that the Court
resolve the issue before it
by explicitly adopting a national standard for defining obscenity on
the
Internet, given respondents' failure to demonstrate substantial
overbreadth due
solely to the variation between local communities, I join ... the
judgment.” Id. at 589, 122 S.Ct. at 1715 (O'Connor, J., concurring)
(emphasis
added); “[W]e need not decide whether the statute invokes local or
national
community standards to conclude that vacatur and remand are in order.” Id. at 596, 122 S.Ct. at 1719 (Kennedy, J., concurring).
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.FN11
Appellants provided neither the district court nor this Court with any
reason
to believe that the websites in which the five video trailers were
published
would change the way a reasonable juror would judge or view the video
trailers.
The district court did not err in presenting the five video trailers to
the
jury as five separate works each to be judged in and of themselves.
FN11.
If an art critic were asked to judge the quality of the Mona Lisa he
would not
consider the Louvre part of the work.
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.FN12
Therefore, the district court's instruction concerning use of the mail
was
proper.
FN12.Pereira
involved a mail fraud statue, 18 U.S.C. § 1341, not the obscenity statute at
issue in
this case, 18 U.S.C.
§ 1461. 347 U.S. at 3.
Neither the Supreme Court nor this Court
has expressly held that the reasonable-foreseeability standard
announced in Pereira
applies equally in the context of § 1461. Nevertheless, this Circuit's
pattern jury instructions indicate
that an individual “causes” the use of the mail under § 1461 when he has “knowledge that the
use of the mails will follow in
the ordinary [course] of business or where such use can
reasonably be
foreseen.” Eleventh Circuit Pattern Jury
Instructions (Criminal ) 53
(2003) (emphasis added). Because the causation elements of § 1341 and § 1461 are not meaningfully
distinguishable from one another, the Pereira
standard applies equally in the § 1461 obscenity context, as reflected in
Instruction 53. Other circuits
have held likewise. See, e.g., United States v. Kussmaul, 987 F.2d 345, 350 (6th Cir.1993); United States v. Kuennen, 901 F.2d 103, 104-05 (8th Cir.1990).
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.FN13
FN13.
Jurors are protected by federal law from any adverse actions taken by
their employer
as a result of their service on a jury. 28 U.S.C. § 1875. Any report that an employer has
taken
adverse action due to jury service is an allegation that would properly
give
rise to an investigation by proper authorities.
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
SadoMasochism, 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. §
2B 1.1(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.
III.
The
Appellants' convictions are affirmed. Their sentences are vacated and
remanded
for re-sentencing in accordance with our decision.
AFFIRMED
IN PART, REVERSED IN PART, REMANDED FOR RE-SENTENCING.
C.A.11
(Fla.),2010.
U.S. v.
Little
Slip Copy,
2010 WL 357933 (C.A.11 (Fla.))
