United States v. Paul F. Little , 365 F. App'x 159 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEB 02, 2010
No. 08-15964 JOHN LEY
________________________ ACTING CLERK
D. C. Docket No. 07-00170-CR-T-24TBM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PAUL F. LITTLE,
a.k.a. Max Hardcore,
a.k.a. Max Steiner,
MAX WORLD ENTERTAINMENT, INC.,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(February 2, 2010)
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. §§ 14611 and 1465 2 , 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
1
“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.
2
“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.
2
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.
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.3 Counts one through five, which Appellants were convicted of
pursuant to 18 U.S.C. § 1465, are based on five of these trailers.
As part of the investigation, the U.S. Postal Inspection Service office in
Tampa ordered five DVD videos from the Appellants’ websites.4 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.
3
The websites were hosted on servers in Tampa, Florida that belonged to Candid Hosting,
Inc.
4
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.
3
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
4
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.5 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.
5
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).
5
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.
2. The Test for Obscenity Established in Miller v. California Remains
Applicable to Materials Published on the Internet
The Miller obscenity test remains the standard for defining obscenity,
regardless of the medium in which the materials are conveyed. See 413 U.S. at 24,
93 S. Ct. at 2615. Appellants argue that the Miller test is unworkable with regards
to materials published on the Internet for two reasons. First, the contemporary
community standards approach under Miller infringes upon First Amendment
rights when applied to the Internet. Second, the requirement under the Miller test
that the materials in question be taken as a whole is impossible to apply to
materials found on the Internet.
a. The District Court Did Not Err in Applying a Local Community
Standard
Appellants argue, as many others recently have,6 that a local community
6
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.”).
6
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 open7 to sexually explicit materials, these materials
are equally accessible to individuals in the strictest corners of our nation.8 See id.at 595–96, 122 S. Ct. at 1719 (Kennedy, J., concurring) (“A Web publisher in a
7
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.
8
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.
7
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.”).
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.9
9
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.
8
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.10
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
10
“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).
9
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
10
add some redeemable quality to the work, then the website is not necessary for the
“taken as a whole” analysis.11 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.
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
11
If an art critic were asked to judge the quality of the Mona Lisa he would not consider
the Louvre part of the work.
11
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
12
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
13
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
363.12 Therefore, the district court’s instruction concerning use of the mail was
proper.
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
12
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).
14
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
15
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.
16
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.13
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
13
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.
17
“impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). Appellants
argue that certain comments the judge made, outside the presence of the jury,
brought the judge’s impartiality into question. We find no merit to this argument.
H. The District Court Properly Applied a Sentencing Enhancement for Sado-
Masochism, but Erred in Assessing a Point for Derived Income Over
$30,000
“We apply a two-pronged standard to review claims that the district court
erroneously applied sentencing guidelines adjustments. First, we review the
factual findings underlying the district court’s sentencing determination for clear
error. We then review the court’s application of those facts to the guidelines de
novo.” United States v. Williams, 527 F.3d 1235, 1247–48 (11th Cir. 2008)
(internal citations omitted).
1. The Sado-Masochism Enhancement was Proper
The district court did not err in applying a sentencing enhancement for
sadistic, masochistic, or other violent depictions. The relevant section of the
United States Sentencing Guidelines (“U.S.S.G.”) states that an enhancement is
proper “[i]f the offense involved material that portrays sadistic or masochistic
conduct or other depictions of violence.” U.S.S.G. § 2G3.1(b)(4) (emphasis
added). It does not matter if the persons depicted in the materials actually were
sadists or masochists or whether they were actually harmed. The focus of the
18
enhancement is whether the material portrays such conduct. In this case, there is
no doubt that the trailers on Appellants’ websites and the DVDs portrayed sadistic
and masochistic conduct. The district court did not err in applying this
enhancement.
2. The Point Assessed for Income Earned Over $30,000 was Improper
The district court erred when it considered pecuniary gain derived from sales
of the DVDs outside the Middle District of Florida. The U.S.S.G. states that if
there is any pecuniary gain, the offense level must be increased by five points.
U.S.S.G. § 2G3.1(b)(1)(A). Thereafter, any additional increase in the offense level
due to pecuniary gain is dictated by the table in U.S.S.G. § 2B1.1(b)(1)(D). Id.
The district court adopted the Pre-Sentence Report (“PSR”) which found, “between
January 1, 2005 and June 25, 2008, the [Appellants] sold 734 of the [charged]
DVDs for a total retail value of $40,340.50.” Little PSR at 45; Max World PSR at
46. According to the U.S.S.G., the Appellants’ offense level was increased by six
points because there was a total pecuniary gain of over thirty thousand dollars
($30,000) from the DVDs. U.S.S.G. § 2B1.1(b)(1)(D).
The U.S.S.G. says that the court may consider all relevant conduct, which is
defined as “all acts and omissions . . . by the defendant . . . . that occurred during
the commission of the offense of conviction, in preparation for that offense, or in
19
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
20
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.
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