After Frank Russell McCoy was convicted, in a bench trial, of “one count of Transportation of Obscene Matters in violation of 18 U.S. Code § 1462”, he appealed. U.S. v. McCoy, 2015 WL 1063050 (U.S. Court of Appeals for the 11th Circuit 2015). Section 1462 of Title 18 of the U.S. Code makes it a crime, among other things, to
bring into the United States . . . or knowingly use any express company or other common carrier or interactive computer service (as defined in section 230(e)(2) (!1) of the Communications Act of 1934), for carriage in interstate or foreign commerce - (a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character; or (b) any obscene, lewd, lascivious, or filthy phonograph recording, electrical transcription, or other article or thing capable of producing sound. . . . 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.
The definition of “interactive computer service” is codified as 47 U.S. Code § 230(f)(2) and states that the term means
any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
The Court of Appeals began its analysis of McCoy’s arguments as to why his conviction should be reversed by explaining how, and why, the prosecution arose:
McCoy maintained a website atyoung-stuff.com from his home in Minnesota. On this website, McCoy posted more than 200 stories that he authored or edited and that described in graphic and explicit detail the sexual abuse, rape, and torture of young children. McCoy's website provided a link for visitors to access the stories.
McCoy’s young-stuff.com website came to the attention of federal law enforcement officers in 2004, when agents were conducting a separate investigation and found 18 stories downloaded from the website on a suspect's computer in Georgia. On March 22, 2005, Special Agent Cory Brant visited theyoung-stuff.com website and downloaded more than 200 accessible stories. Over the course of Brant's investigation, McCoy provided Brant with links to three websites that contained McCoy's stories.
McCoy's stories included, but were not limited to: a father having vaginal intercourse and ejaculating inside the cervix of his six-year-old daughter; a father digitally penetrating his seven-year-old daughter; a father having oral sex with, ejaculating into the mouth of, digitally and vaginally penetrating, and performing oral sex on his six-year-old daughter; a father having vaginal intercourse with his daughter and torturing and murdering her; and an adult uncle masturbating and ejaculating, fondling, and having vaginal intercourse with his four-year-old niece while the girl's mother and father masturbated and video-taped this sexual abuse.
U.S. v. McCoy, supra. The opinion notes that “[o]n June 13, 2007, a one-count indictment was returned by the grand jury in the Albany Division of the Middle District of Georgia charging McCoy with a single violation of 18 U.S. Code § 1462”. U.S. v. McCoy, supra.
After being charged, McCoy
waived his right to a jury trial and was therefore tried before the district court. The parties stipulated to facts establishing each element of the charged offense except the obscenity element. Specifically, McCoy stipulated to the first two elements of section 1462, (1) that he knowingly used or caused to be used an interactive computer service to transport certain materials in interstate or foreign commerce, and (2) that he knew, at the time, the content of the materials were sexual in nature. McCoy challenged only the third element of his crime that required the government prove beyond a reasonable doubt that the materials were `obscene.’
U.S. v. McCoy, supra.
At McCoy’s trial, the prosecution
introduced into evidence all of McCoy's stories retrieved from his websites, totaling approximately 276 stories. The government focused its trial presentation on the 18 stories that prompted Brant's investigation. The government requested that the district court render a special verdict with respect to each of the 18 stories.
U.S. v. McCoy, supra. As this site explains, in a jury trial the judge asks the jurors to make “specific findings on each issue of fact”, findings which the judge then uses in arriving at a final verdict. As the site also explains, special verdicts are not common in criminal cases involving a jury.
McCoy objected to the
government's proposed approach; he argued that the focus on only 18 of his stories and request for a special verdict constructively amended the indictment. McCoy contended that all of the more than 200 stories Brant downloaded were the subject of the single-count indictment. He also argued that, under Miller v. California, 413 U.S. 15 (1973), the district court had to consider all of the stories collectively to determine whether, taken as a whole, they qualified as obscene.
U.S. v. McCoy, supra. As this site explains, a constructive amendment of an indictment
occurs when `the terms of the indictment are in effect altered by the presentation of evidence and jury instructions which so modify essential elements of an offense charged that there is a substantial likelihood that the defendant may have been convicted of an offense other than that charged in the indictment.’ U.S. v. Hemphill, 76 Fed. Appx. 6 (U.S. Court of Appeals for the 6th Circuit 2003).
The Court of Appeals noted that, during McCoy’s bench trial, he
relied on expert testimony from Gary Richardson, Ph.D., a professor and chair of the English department at Mercer University, who specialized in nineteenth-century drama, in support of his defense that the stories were not obscene. Richardson opined that the stories had serious literary value under a narrow definition of literary value.
U.S. v. McCoy, supra.
The bench trial lasted two days, after which the U.S. District Court Judge who had the case found McCoy guilty of
using an interactive computer service for the transportation of obscene material in interstate and foreign commerce, in violation of 18 U.S. Code § 1462. The district court expressed its verdict in two orders, a `Bench Opinion,’ and an order denying McCoy's motion for judgment of acquittal under Federal Rule of Criminal Procedure 29.
In concluding that the stories were `obscene,’ the district court focused specifically on the 18 stories. The district court rejected McCoy's argument that the government's request for a special verdict constructively amended the indictment because the request did `not require any deviation from the factual allegations within the indictment,’ and `the number of obscene matters transported [was] not an element of the crime’ under section 1462.
U.S. v. McCoy, supra.
The Court of Appeals goes on to explain that the District Court Judge
denied the government's request for a special verdict on each of the 18 stories, concluding that `a special verdict is neither appropriate nor necessary.’ The district court concluded that the 18 stories were a representative sample of McCoy's stories as a whole.
The district court noted that Richardson's analysis of the stories did not `redeem [McCoy's] work.’ Specifically, despite Richardson's opinion, the district court found `no literary value within the murk of rape, incest, abuse, molestation, and vivid descriptions of the violations of children as composed within [McCoy's] work.’ The district court concluded that the record `establishe[d] a clear purpose to appeal to prurient interest, especially with prepubescent female children.’
U.S. v. McCoy, supra. In the paragraph above, the court is referring to the standard the U.S. Supreme Court established, in Miller v. California, supra, for determining whether certain materials are or are not “obscene.”
On appeal, McCoy raised three issues: “whether the district court failed to judge McCoy's work as a whole; whether the district court correctly applied Miller; and whether the district court constructively amended the indictment.” U.S. v. McCoy, supra.
The Court of Appeals began its analysis of McCoy’s arguments by outlining the standard it uses in reviewing a conviction:
Generally, a conviction must be upheld if `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ U.S. v. Mintmire, 507 F.3d 1273 (U.S. Court of Appeals for the 11th Circuit 2007) (emphasis in original). We view `the evidence in the light most favorable to the government, with all reasonable inferences and credibility choices made in the government's favor.’ U.S. v. Harris, 20 F.3d 445 (U.S. Court of Appeals for the 11th Circuit 1994).
In obscenity prosecutions, however, we conduct `an independent review of the material in question and an independent evaluation of the material in light of the Miller criteria,” to ensure that the judgment does not intrude on 1st Amendment rights. U.S. v. Bagnell, 679 F.2d 826 (U.S. Court of Appeals for the 11th Circuit 1982).
U.S. v. McCoy, supra.
The Court of Appeals began its analysis with the issue of whether the materials were obscene by explaining that the
meaning of `obscene’ in 18 U.S. Code § 1462 derives from 1st Amendment law. See U.S. v. Thevis, 484 F.2d 1149 (U.S. Court of Appeals for the 5th Circuit 1973). Generally, the 1st Amendment prohibits the punishment of speech based on its content.
The Supreme Court established in Miller v. California, supra, that obscenity is not protected by the 1st Amendment. . . . Miller limits the category of obscenity to material that meets all of three requirements: 1) `the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,’ 2) the average person, applying contemporary community standards, would find that `the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by . . . law,’ and 3) `the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.’ Miller v. California, supra.
U.S. v. Thevis, supra.
The court then began its analysis of McCoy’s first argument on appeal, i.e., that the district court erred when it did not “judge his work as a whole.” U.S. v. McCoy, supra.
An accurate determination of what constitutes the `work as a whole’ is critical to the correct application of the Miller standard. See Ginzburg v. U.S., 383 U.S. 463 (1966); Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353 (U.S. Court of Appeals for the 5th Circuit 1980). A work is not necessarily obscene if one portion could be deemed to lack societal value when considered separately and in isolation. See Penthouse International Ltd. v. McAuliffe, 610 F.2d 1353 (U.S. Court of Appeals for the 5th Circuit 1980) (issue of Playboy magazine not obscene even though it `contains items which, standing alone, would be found obscene’).
The record reflects that, although the district court focused on 18 specific stories, all of the stories were introduced into evidence. And our review of the 276 stories demonstrates that they focus on one or two standard plots and describe in graphic and explicit detail the sexual abuse, rape, murder, and torture of young children. McCoy himself described the stories as mostly involving incest, pedophilia, and pregnancy.
In light of these common factors, we conclude that the district court did not err when it focused on the 18 stories as a representative sample of all of McCoy's stories collectively. We are unpersuaded by McCoy's arguments to the contrary.
U.S. v. McCoy, supra.
The Court of Appeals then explained that McCoy
next asserts a number of arguments in support of his contention that the district court did not correctly apply the third prong of the Miller standard. McCoy contends the district court erred when it disregarded Richardson's expert testimony. McCoy also argues that the government should have presented evidence to counter Richardson's expert testimony.
We reject these arguments because McCoy's stories, introduced into evidence, constituted the `best evidence’ of whether the stories lacked serious literary, artistic, political, or scientific value. See Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973). In Paris Adult Theatre I, the Supreme Court held that a district court did not err when it did not `require “expert” affirmative evidence’ that the materials in an obscenity prosecution were obscene `when the materials themselves [were] actually placed in evidence.’ Paris Adult Theatre I, supra.
U.S. v. McCoy, supra. The court went on to explain that the prosecution was not
required to introduce expert testimony establishing that the stories were obscene because the stories themselves were placed in evidence. See U.S. v. Thevis, supra (`expert testimony on the part of the prosecution is not necessary in cases where the materials themselves are available for inspection by the finder of fact’). Simply put, expert testimony on the value of McCoy's stories was unnecessary for the finder of fact to ascertain whether the stories, taken as a whole, lacked serious artistic, scientific, literary, or political value.
McCoy also argues that the district court improperly considered his purpose in creating and disseminating the stories. We disagree because the district court's opinion makes clear that it did not weigh McCoy's purpose in creating the stories above and beyond the actual content of the stories. The assessment of McCoy's purpose was not a dispositive factor in the district court's analysis. Indeed, with respect to the third prong of the Miller standard, the district court concluded that `[McCoy's] stories present as ordinary and “consensual,” patently offensive accounts of various explicit sexual acts, abuse, violence and rape of prepubescent female children as young as four years of age to appeal to the prurient interest of the reader.’
U.S. v. McCoy, supra.
The Court of Appeals also found that,
based on our independent review of McCoy's stories, we conclude that they lack serious literary, artistic, political, or scientific value. The stories graphically describe sexual acts, incestuous relationships, molestation, masturbation, sexual abuse, rape, intercourse, violent acts, and arguably the torture and/or murder of very young children. The stories contain tenuous plots at best. Simply put, the stories are precisely the type of `hard core' pornography’ that the Supreme Court has made clear is unprotected under the 1st Amendment. See Miller v. California, supra.
U.S. v. McCoy, supra.
And, finally, the court rejected McCoy’s argument that the indictment was
constructively amended. The indictment alleged that McCoy violated section 1462 by using an interactive computer service for the transportation of `obscene stories,’ or `obscene “fantasy” stories’ that were downloaded from McCoy's websites `into the Middle District of Georgia and elsewhere.’
The government introduced into evidence all of the stories downloaded from McCoy's websites and the district court found McCoy guilty only after concluding that those stories were obscene under the Miller standard. The district court's focus on 18 of McCoy's stories did not deviate from the allegations in the indictment. Nor did the district court's focus on the 18 stories expand the indictment in any way. Thus, McCoy's claim of a constructive amendment is without merit.
U.S. v. McCoy, supra. The Court of Appeals therefore affirmed McCoy’s conviction and sentence. U.S. v. McCoy, supra.