US v. Loren Adams, No. 08-5261 (4th Cir. 2009)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5261 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LOREN JAY ADAMS, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:08-cr-00028-JPB-DJJ-1) Submitted: July 7, 2009 Decided: July 24, 2009 Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Brian J. Kornbrath, Federal Public Defender, Clarksburg, West Virginia, for Appellant. Erin Reisenweber, Assistant United States Attorney, Martinsburg, West Virginia; Pamela S. Satterfield, Obscenity Prosecution Task Force, John-Alex Romano, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Loren transportation violation of Adams of 18 was obscene U.S.C. convicted matter § 1461 by of three United (2006), counts of States in three and mail, counts of transportation of obscene matter for sale or distribution, in violation of 18 U.S.C. § 1465 (2006). He received a sentence of thirty-three months imprisonment. On appeal, Adams first contends that he is entitled to a new trial, as the jury failed to consider the charged material as a whole, as required by Miller v. California, 413 U.S. 15 (1973). Therefore, according to Adams, the Government failed to meet its burden of proof that the videos, taken as a whole, appealed to the prurient interest and lacked serious literary, artistic, political, or scientific value. Second, Adams contends that the judge abused his discretion in refusing to allow Adams availability to call of a witness materials to testify substantially as to the identical online to those charged in the offense. I. Adams evidence, first arguing that Sufficiency of Evidence challenges the the Government sufficiency failed to of satisfy the its burden of proving that the charged materials, taken as a whole, were obscene. When reviewing the sufficiency of the evidence, 2 this court s role is limited to considering whether there is substantial evidence, Government, to taking support the the view most favorable conviction. United to States the v. Whorley, 550 F.3d 326, 338 (4th Cir. 2008) (internal quotation marks and evidence citations that a omitted). reasonable [S]ubstantial finder of fact evidence could accept is as adequate and sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). credibility of contradictions witnesses in the and assume testimony in We do not review the the favor jury of resolved the all Government. United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008). Obscene material does not enjoy the protection of the First Amendment. Miller v. California, 413 U.S. 15, 23 (1973). In order to demonstrate that relevant material is obscene, the Government must prove that (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) the work, taken as a whole, lacks artistic, political, or scientific value. quotation marks and citations omitted). 3 serious literary, Id. at 24 (internal Here, the evidence before the jury was more than sufficient to support a finding of guilt beyond a reasonable doubt, despite the jury s failure to view the films in their entirety. The Government introduced the complete movies into evidence, and played a representative portion of each video in open court. The representative portions of both Doggie3Some and Anal Doggie and Horse depicted women engaging in sexual acts with dogs and a horse, and the representative portion of the third film, Fisting 1, depicted women being penetrated by large objects. The federal agent responsible for ordering the movies from Adams testified as to the contents of the remainder of the films. The agent testified that he had viewed each movie in its entirety, summarized the remainder of the films for the jury, and stated that the unplayed portion of each showed sexual acts similar to those contained in the excerpts. Bradley also read aloud Adam s website s descriptions of the films to the jury, and testified that the descriptions accurately detailed the content of each movie. Accordingly, we find that the Government presented evidence sufficient to support the jury s conclusions that, taken as a whole, the films appealed to prurient sexual interests and lacked serious literary, artistic, political, or scientific value. Moreover, assert, that the Adams never portions contended, played 4 in and does court not were now not representative films had of any the videos serious in value, political, or scientific. their entirety, whether or that literary, the artistic, Similarly, Adams never requested that the jury watch the films in their entirety, and does not now contend that, had the jurors watched the entirety of each film, they would have reached a different conclusion. Therefore, because it is clear beyond a reasonable doubt that the error complained Neder v. of did United not contribute 527 States, to U.S. the 1, verdict 15 obtained, (1999) (internal quotation marks and citations omitted), any error in the jury s failure to view the films in their entirety is harmless. II. Exclusion of Evidence Adams next asserts that the district court erred in refusing to allow him to introduce evidence demonstrating that materials substantially similar to the charged accessible in Martinsburg through the internet. Adams intended to would testify that, bestiality articles, into movies, call a by search links, computer entering engines, and photos systems the he were Specifically, administrator terms fisting found devoted films to thousands these who and of terms, which were available to anyone in the Martinsburg, West Virginia area with internet access. 5 We review a district court s evidentiary ruling on the exclusion of States v. Fulks, prosecution community evidence for 454 for an standards when 434 (4th Cir. the obscenity, of 410, F.3d abuse jury must apply determining prong of the Miller test. discretion. the 2006). In a contemporary prurient 413 U.S. at 24. United interest By introducing testimony of the availability of like materials on the internet, Adams sought to demonstrate that such materials were accepted in the Martinsburg community, and therefore did not appeal to the prurient sexual interest. similar materials automatically make . . them . However, the availability of [in] admissible the as community tending to does not prove the nonobscenity of the materials which the defendant is charged with circulating. (1974). Hamling v. United States, 418 U.S. 87, 125 Instead, the [m]ere availability of similar material by itself means nothing more than that other persons are engaged in similar activities. Id. at 126 (internal quotation marks and citation omitted). In United States v. Ragsdale, 426 F.3d 765 (5th Cir. 2005), the defendant challenged the district court s exclusion of allegedly comparable materials available in the community. Citing Hamling, district court, the Fifth finding it Circuit to be 6 upheld well the ruling of the within the range of allotted discretion afforded to the district court to exclude the evidence proffered by the defense. Id. at 776. Similarly, in United States v. Pryba, we rejected a defendant s challenge to a jury instruction charging that contemporary community standards are set by what is, in fact, accepted in the adult community as a whole, and not by what the community merely tolerates. 900 F.2d 748, 758 (4th Cir. 1990). In upholding the instructions, we found that To consider community toleration as synonymous with what a community will put up with skews the test of obscenity and invites one to consider deviations from community standards, because a community can be said to put up with a number of disagreeable circumstances that it cannot stop. The District of Columbia had over 350 murders in 1989, but to say that the citizens tolerated this epidemic of homicides would misuse the word. Id. at 759. of This reasoning demonstrates that the availability certain indication materials of in community the fringe acceptance of of a it. community The is no conclusion follows that the district court acted within its discretion, and appropriately followed both Supreme Court and Circuit precedent, in finding that the testimony Adams wished to present regarding the accessibility relevant to the of comparable determination materials of online contemporary was not community standards. Accordingly, we affirm the judgment of the district court. We dispense with oral argument because the facts and 7 legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 8
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