United States v. Adams , 337 F. App'x 336 ( 2009 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 Adams was convicted of three counts of
transportation of obscene matter by United States mail, in
violation of 18 U.S.C. § 1461 (2006), and three 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 to call a witness to testify as to the online
availability of materials substantially identical to those
charged in the offense.
I. Sufficiency of Evidence
Adams first challenges the sufficiency of the
evidence, arguing that the Government failed to satisfy its
burden of proving that the charged materials, taken as a whole,
were obscene. When reviewing the sufficiency of the evidence,
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this court’s “role is limited to considering whether there is
substantial evidence, taking the view most favorable to the
Government, to support the conviction.” United States v.
Whorley, 550 F.3d 326, 338 (4th Cir. 2008) (internal quotation
marks and citations omitted). “[S]ubstantial evidence is
evidence that a reasonable finder of fact could accept 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). We do not review the
credibility of witnesses and assume the jury resolved all
contradictions in the testimony in favor of the 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 serious literary,
artistic, political, or scientific value.” Id. at 24 (internal
quotation marks and citations omitted).
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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, Adams never contended, and does not now
assert, that the portions played in court were not
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representative of the videos in their entirety, or that the
films had any serious value, whether literary, artistic,
political, or scientific. 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 of did not contribute to the verdict obtained,”
Neder v. United States, 527 U.S. 1, 15 (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 films were
accessible in Martinsburg through the internet. Specifically,
Adams intended to call a computer systems administrator who
would testify that, by entering the terms “fisting” and
“bestiality” into search engines, he found thousands of
articles, movies, links, and photos devoted to these terms,
which were available to anyone in the Martinsburg, West Virginia
area with internet access.
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We review a district court’s evidentiary ruling on the
exclusion of evidence for an abuse of discretion. United
States v. Fulks, 454 F.3d 410, 434 (4th Cir. 2006). In a
prosecution for obscenity, the jury must apply “contemporary
community standards” when determining the “prurient interest”
prong of the Miller test. 413 U.S. at 24. 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. However, “the availability of
similar materials . . . [in] the community does not
automatically make them admissible as tending to prove the
nonobscenity of the materials which the defendant is charged
with circulating.” Hamling v. United States, 418 U.S. 87, 125
(1974). 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, the Fifth Circuit upheld the ruling of the
district court, finding it to be “well within the range of
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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. This reasoning demonstrates that the availability
of certain materials in the fringe of a community is no
indication of community acceptance of it. The 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 of comparable materials online was not
relevant to the determination of contemporary community
standards.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
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legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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