United States v. Whorley

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 06-4288
DWIGHT EDWIN WHORLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(3:05-cr-00114-HEH)

Argued: December 4, 2007

Decided: December 18, 2008

Before NIEMEYER and GREGORY, Circuit Judges, and
James P. JONES, Chief United States District Judge for the
Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Jones joined. Judge Jones wrote a
separate concurring opinion. Judge Gregory wrote a separate
opinion concurring in part and dissenting in part.

COUNSEL

ARGUED: Robert James Wagner, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC
2 UNITED STATES v. WHORLEY
DEFENDER, Richmond, Virginia, for Appellant. Damon A.
King, UNITED STATES DEPARTMENT OF JUSTICE,
Criminal Division, Washington, D.C., for Appellee. ON
BRIEF: Michael S. Nachmanoff, Federal Public Defender,
Alexandria, Virginia; Sapna Mirchandani, Research and Writ-
ing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. Chuck
Rosenberg, United States Attorney, Sara E. Chase, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.

OPINION

NIEMEYER, Circuit Judge:

Dwight Whorley was convicted of (1) knowingly receiving
on a computer 20 obscene Japanese anime cartoons depicting
minors engaging in sexually explicit conduct, in violation of
18 U.S.C. § 1462; (2) knowingly receiving, as a person previ-
ously convicted of receiving depictions of minors engaging in
sexually explicit conduct, the same 20 anime cartoons, in vio-
lation of 18 U.S.C. § 1466A(a)(1); (3) knowingly receiving,
as a person previously convicted of receiving depictions of
minors engaging in sexually explicit conduct, 14 digital pho-
tographs depicting minors engaging in sexually explicit con-
duct, in violation of 18 U.S.C. § 2252(a)(2); and (4)
knowingly sending or receiving 20 obscene e-mails, in viola-
tion of 18 U.S.C. § 1462. Imposing a sentence that departed
upward from the recommended Sentencing Guidelines range,
the district court sentenced Whorley to 240 months’ imprison-
ment.

On appeal, Whorley contends principally that the statutes
under which he was convicted are unconstitutional. He claims
(1) that § 1462 is facially unconstitutional in prohibiting
receipt of obscene materials because receiving materials is an
 UNITED STATES v. WHORLEY 3
incident of their possession, and possession of obscene mate-
rials is protected by the holding of Stanley v. Georgia, 394
U.S. 557 (1969); (2) that § 1462 is facially unconstitutional
because the term "receives," when used in the context of a
computer, is unconstitutionally vague; (3) that § 1462 is
unconstitutional as applied to text-only e-mails, arguing that
text alone cannot be obscene; and (4) that § 1466A(a)(1) is
unconstitutional under the First Amendment, as applied to
cartoons, because cartoons do not depict actual minors. In
addition to his constitutional challenges, Whorley challenges
numerous procedural rulings by the district court and the rea-
sonableness of the sentence that it imposed.

Because § 1462 punishes trafficking in commerce, not the
mere possession of obscene materials, and "receives" has a
uniform meaning that is readily understood, we reject Whor-
ley’s facial challenges. We also reject his arguments that tex-
tual matter cannot be obscene under § 1462 and that cartoons
depicting minors in sexually explicit conduct must depict real-
life minors to violate § 1466A(a)(1). Finally, we reject his
challenges to the district court’s procedural rulings and his
sentence. Accordingly, we affirm.

I

The Virginia Employment Commission maintains a public
resource room in Richmond, Virginia, where job seekers may
use Commission copiers, computers, and printers for
employment-related purposes.

On March 30, 2004, a woman in the resource room
informed a Commission employee that Dwight Whorley was
viewing what appeared to be child pornography on a Com-
mission computer. In response, the office manager and two
supervisors went to the resource room and saw Whorley
standing in front of the printer with papers in his hand. Upon
request, Whorley showed the supervisor the documents,
which depicted Japanese anime-style cartoons of children
4 UNITED STATES v. WHORLEY
engaged in explicit sexual conduct with adults. Determining
that the documents were an inappropriate use of state com-
puter equipment, the manager banned Whorley from using the
Commission’s computers and escorted him from the premises.

Returning to the computer that Whorley had been using, the
Commission employees found that his YAHOO! e-mail
account was still open, and they also found several more cop-
ies of anime-style cartoons by the computer. After printing off
several e-mails from that account and taking the computer out
of service, the manager called his supervisor and the state
police. Subsequently, the manager also provided Whorley’s
probation officer with copies of the documents. (Whorley was
on probation in connection with a previous federal conviction
for downloading child pornography on a Virginia Common-
wealth University computer in 1999.) Later, the FBI obtained
more information from YAHOO! about Whorley’s e-mail
account.

Based on the matters copied, the data contained in the com-
puter used by Whorley, and the information received from
YAHOO!, a grand jury returned a 75-count indictment against
Whorley. Counts 1-20 charged Whorley with using a com-
puter on March 30, 2004, to knowingly receive obscene car-
toons in interstate and foreign commerce, in violation of 18
U.S.C. § 1462. The 20 cartoons forming the basis of those
counts showed prepubescent children engaging in graphic
sexual acts with adults. They depicted actual intercourse, mas-
turbation, and oral sex, some of it coerced. Based on the same
cartoons, the jury also charged Whorley in Counts 21-40
under 18 U.S.C. § 1466A(a)(1) with knowingly receiving, as
a person previously convicted of illegally downloading child
pornography, obscene visual depictions of minors engaging in
sexually explicit conduct. In addition, the grand jury charged
Whorley in Counts 41-55 with knowingly receiving, on
March 11 and 12, 2004, 15 visual depictions of minors engag-
ing in sexually explicit conduct, in violation of 18 U.S.C.
§ 2252(a)(2). These counts were based on lascivious photo-
 UNITED STATES v. WHORLEY 5
graphs of actual, naked children. Finally, the grand jury
charged Whorley in Counts 56-75 with sending or receiving
in interstate commerce 20 obscene e-mails during the period
between February 5, 2004, and April 2, 2004, in violation of
18 U.S.C. § 1462. The e-mails described sexually explicit
conduct involving children, including incest and molestation
by doctors.

At trial, evidence from the Commission computer showed
that Whorley conducted numerous searches on March 11 and
12, 2004, through the YAHOO! search engine, using the
query "child sex play." The pictures of the naked children
obtained from those searches came from an Illinois website
called "Logical Reality." It also showed that on March 30,
2004, Whorley obtained the 20 Japanese cartoons from a site
called "Fractal Underground Studio." On the same day, he
sought eight times to open sites that had been blocked on the
Commission’s computers.

Following trial, the district court dismissed Count 41 for a
lack of evidence that the individual depicted in the picture
was a minor, and the jury convicted Whorley of the remaining
74 counts.

At sentencing, the district court granted the government’s
motion for an upward departure, although not to the extent
sought by the government. The departure was based on
numerous factors, including Whorley’s history of download-
ing child pornography, which was not represented in the rec-
ommended Guidelines calculation because, except for the
1999 conviction, the prior conduct had not resulted in Whor-
ley’s prosecution and conviction. The court also noted Whor-
ley’s repeated failure to abide by the terms of supervised
release from his prior conviction, including

continuing to access computers without the proba-
tion officer’s approval, numerous false statements
concerning attempts to obtain employment, failure to
6 UNITED STATES v. WHORLEY
obtain employment, failure to report to the Depart-
ment of Rehabilitation Services, failure to report to
the Offender Aid and Restoration Program, and most
disturbingly, his presence at local malls and public
libraries frequented by children in direct disobedi-
ence of his probation officer’s instructions.

Also contributing to the decision to depart upward was Whor-
ley’s failure "to make a good faith effort to control his sexual
deviance" and the "increasingly sadistic and violent" nature of
the prepubescent erotica recovered from Whorley. After
increasing Whorley’s criminal history from a Category III to
a Category VI, the most serious category, the district court
found that the base offense level of 27 still yielded a sentenc-
ing range below the mandatory minimum statutory sentence
of 180 months. The court therefore moved down the sentenc-
ing table to an offense level 32, see U.S.S.G.
§ 4A1.3(a)(4)(b), and sentenced Whorley to 240 months’
imprisonment, which was 60 months above the recommended
Guidelines sentence but which fell within the lower half of the
statutory range of 180 to 480 months.

From the judgment of conviction, this appeal followed.

II

Whorley contends first that 18 U.S.C. § 1462 is facially
unconstitutional because "it makes no exception for the pri-
vate receipt, possession, or viewing of obscene material," as,
he argues, such conduct is protected by the First Amendment
and its application in Stanley v. Georgia, 394 U.S. 557
(1969). In Stanley, the Supreme Court held that a Georgia
statute prohibiting the possession of obscene matter, even
within the home, was incompatible with the First and Four-
teenth Amendments. Id. at 568. Finding the statute too broad,
the Court explained that "traditional notions of individual lib-
erty" and the paramount importance accorded in our society
to the "privacy of a person’s own home" create a "right to be
 UNITED STATES v. WHORLEY 7
free from state inquiry into the contents of [one’s home]
library." Id. at 565. Thus, the government’s regulatory "power
simply does not extend to mere possession [of obscene mate-
rials] by the individual in the privacy of his own home." Id.
at 568.

But Stanley’s holding was a narrow one, focusing only on
the possession of obscene materials in the privacy of one’s
home. The Court’s holding did not prohibit the government
from regulating the channels of commerce. In an unbroken
line of Supreme Court decisions since Stanley, the Court has
repeatedly rejected the notion, urged by Whorley, that as a
matter of logic, because the First Amendment prohibits the
criminalization of private possession of obscene materials
within the home, there exists a correlative "right to receive"
obscene materials. See United States v. Reidel, 402 U.S. 351,
354-55 (1971) (explicitly rejecting the notion that Stanley’s
recognition of the defendant’s right to possess obscenity
meant that "someone must have the right to deliver it to him"
through the channels of commerce (internal quotation marks
omitted)); see also Smith v. United States, 431 U.S. 291, 307
(1977) ("Stanley did not create a right to receive, transport, or
distribute obscene material, even though it had established the
right to possess the material in the privacy of the home");
United States v. Orito, 413 U.S. 139, 141 (1973) (holding that
Stanley’s tolerance of obscenity within the privacy of the
home created no "correlative right to receive it, transport it,
or distribute it"); United States v. Thirty-Seven (37) Photo-
graphs, 402 U.S. 363, 376 (1971) ("That the private user
under Stanley may not be prosecuted for possession of
obscenity in his home does not mean that he is entitled to
import it from abroad free from the power of Congress to
exclude noxious articles from commerce").

And § 1462 falls squarely within this line of cases authoriz-
ing the regulation and prohibition of obscene materials in
commerce. It provides:
8 UNITED STATES v. WHORLEY
Whoever brings into the United States . . . or
knowingly uses any express company or other com-
mon carrier or interactive computer service . . . 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

***

Whoever knowingly takes or receives, from such
express company or other common carrier or interac-
tive computer service . . . any matter or thing the car-
riage or importation of which is herein made
unlawful —

Shall be fined under this title or imprisoned not
more than five years . . . .

18 U.S.C. § 1462. The focus of the statute’s prohibition is on
the movement of obscene matter in interstate commerce, not
its possession in the home. This is manifested by the statute’s
prohibition of receiving obscene material from any "express
company," "common carrier," or "interactive computer ser-
vice." By focusing on the movement of obscene material in
channels of commerce, and not on its mere possession, § 1462
is not governed by Stanley, but rather is akin to the Reidel line
of cases decided after Stanley. Accordingly, we reject Whor-
ley’s constitutional argument based on Stanley.

III

Whorley contends also that § 1462 is facially unconstitu-
tional because its use of the word "receives" in prohibiting the
receipt of obscene matter using instruments of interstate com-
merce makes the prohibition impermissibly vague in the con-
 UNITED STATES v. WHORLEY 9
text of receiving obscene matter from an interactive computer
service. He maintains that "receives" is so broad that the stat-
ute ensnares the unwitting recipient of obscenity, such as one
who innocently receives an "obscene textual message [sent] to
a person’s e-mail account" from a malicious third party, or
finds to his dismay that an obscene image appears "as a ‘pop-
up ad’ or as part of a paid sponsor’s rotating advertisement."
Consequently, he argues that "§ 1462 fails to give notice to
the average person of when criminal liability attaches."

"A statute is impermissibly vague if it either (1) ‘fails to
provide people of ordinary intelligence a reasonable opportu-
nity to understand what conduct it prohibits’ or (2) ‘authorizes
or even encourages arbitrary and discriminatory enforce-
ment.’" Giovani Carandola, Ltd. v. Fox, 470 F.3d 1074, 1079
(4th Cir. 2006) (quoting Hill v. Colorado, 530 U.S. 703, 732
(2000)). Stated differently, a court considering a vagueness
challenge must determine if the statutory prohibitions "‘are
set out in terms that the ordinary person exercising ordinary
common sense can sufficiently understand and comply with.’"
Broadrick v. Oklahoma, 413 U.S. 601, 608 (1973) (quoting
United States Civil Serv. Comm’n v. Nat’l Ass’n of Letter
Carriers, 413 U.S. 548, 579 (1973)).

In this case, Whorley’s argument, when analyzed more
closely, in fact suggests no vagueness or misunderstanding
about the scope of the word "receives." Giving that term its
ordinary meaning, see Asgrow Seed Co. v. Winterboer, 513
U.S. 179, 187 (1995), his argument assumes that "receives"
means to "come into possession of," to "acquire," or "to have
delivered or brought to one," see Merriam-Webster’s Colle-
giate Dictionary 975 (10th ed. 1994); Webster’s Third New
International Dictionary 1894 (3d ed. 1993); Random House
Dictionary of the English Language 1610 (2d ed. 1987). As
he articulates it, Whorley’s complaint about receiving obscene
material unwittingly—i.e., without an intent to receive it—
does not find confusion in the word "receives," but rather in
the type of intent with which one can "receive" something. To
10 UNITED STATES v. WHORLEY
be sure, one can "receive" obscene materials intentionally and
knowingly, or negligently, or by mistake or accident. Section
1462, however, does not criminalize every receipt of obscene
materials, but only the "knowing" receipt of them. It is thus
apparent that in making his argument that "receives" is too
vague, Whorley actually confuses mens rea with the question
of whether the word "receives" itself is without sufficient
meaning to be readily understood.

Whorley is probably correct in observing that evolving
computer technology will constantly change the ways in
which a person’s computer may be used to "receive" obscene
material from an interactive computer service and that those
changes might, depending on the technology, present serious
questions as to whether such material can be said to have been
"received." But no such question exists here where Whorley
actively used a computer to solicit obscene material through
numerous and repetitive searches and ultimately succeeded in
obtaining the materials he sought. Moreover, while the facts
of each case will require a jury to determine whether an indi-
vidual has, in fact, "knowingly received" obscene matter, the
need for such a determination by the jury does not suggest
that a statute is too vague. A statute need not spell out every
possible factual scenario with "‘celestial precision’" to avoid
being struck down on vagueness grounds. See Vernon Beigay,
Inc. v. Traxler, 790 F.2d 1088, 1093 (4th Cir. 1986) (quoting
Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 833 (4th
Cir. 1979)).

We conclude that the ordinary meaning of the term "re-
ceives" is sufficiently precise in § 1462 to provide adequate
notice to a person of ordinary intelligence of the conduct that
Congress has prohibited.

IV

In addition to his facial challenges to 18 U.S.C. § 1462,
Whorley contends that the statute is unconstitutional as
 UNITED STATES v. WHORLEY 11
applied to the facts underlying Counts 1-20 (charging him
with receiving obscene cartoons) and Counts 56-75 (charging
him with receiving obscene e-mails), because he did not know
that cartoons and text-only e-mails lacked the protection of
the First Amendment.

With respect to his argument on Counts 1-20, he states:

The statute is unconstitutional as applied to these
counts for the same reasons discussed above. . . .
Moreover, [Whorley] had no notice that viewing the
cartoon images on the computer screen was unlaw-
ful. . . . Indeed, according to the government’s own
witnesses, prior to March 2004, [Whorley] had used
the [Virginia Employment Commission] computer
room (which sometimes was monitored by a [Vir-
ginia Employment Commission] employee) to
access pornographic web-sites on several occasions,
all without incident.

To the extent that this challenge parallels Whorley’s facial
challenges, it fails for the same reasons they did. Thus, what-
ever protection Stanley may have afforded to the possession
of obscene matter in the privacy of the home, it cannot be said
to have created a right to "receive" obscene materials using
instruments of commerce. And to the extent that this chal-
lenge is based on Whorley’s ignorance of the law or his belief
that his similar conduct in the past should somehow provide
him a defense, the claim is frivolous. See Cheek v. United
States, 498 U.S. 192, 199 (1991) ("The general rule that igno-
rance of the law or a mistake of law is no defense to criminal
prosecution is deeply rooted in the American legal system").

Whorley makes an as-applied challenge also with respect to
Counts 56-75 on the basis that e-mails are only textual and
therefore cannot be obscene. He argues:

It is undisputed that the e-mails for which [Whorley]
was convicted were pure speech; that is, they did not
12 UNITED STATES v. WHORLEY
include any obscene visual depictions, nor were they
accompanied by attachments containing obscene
material. For this reason, even the district court
found the government’s allegations in Counts 56
through 75 troubling.

In essence, Whorley argues that text, standing alone, may not
constitutionally be prohibited as obscene. He never explains
why, however, nor does he cite any authority for his argu-
ment. Indeed, he overlooks the traditional formulations of
obscenity, which have never depended on the form or medium
of expression.

In Miller v. California, 413 U.S. 15, 24 (1973), the Court
defined obscenity in the context of "works," which "taken as
a whole, appeal to the prurient interest in sex, which portray
sexual conduct in a patently offensive way, and which, taken
as a whole, do not have serious literary, artistic, political, or
scientific value." And in Kaplan v. California, 413 U.S. 115,
119 (1973), which was decided the same day as Miller, the
Court made clear that "works" include both pictorial represen-
tations and words:

Obscenity can, of course, manifest itself in conduct,
in the pictorial representation of conduct, or in the
written and oral description of conduct. The Court
has applied similarly conceived First Amendment
standards to moving pictures, to photographs, and to
words in books.

The Court there affirmed the conviction of a book store pro-
prietor who sold a book made up "entirely of repetitive
descriptions of physical, sexual conduct, ‘clinically’ explicit
and offensive to the point of being nauseous[, with] only the
most tenuous ‘plot.’ Almost every conceivable variety of sex-
ual contact, homosexual and heterosexual, [was] described."
Id. at 116-117.
 UNITED STATES v. WHORLEY 13
Accordingly, Whorley’s arguments that 18 U.S.C. § 1462
is unconstitutional as applied to the cartoons and e-mails
charged in Counts 1-20 and Counts 56-75 are readily rejected.

V

Whorley next contends that 18 U.S.C. § 1466A(a)(1) is
unconstitutional as applied to the cartoon drawings that
formed the basis for the charges in Counts 21-40 because car-
toon figures are not depictions of actual people. He argues
that § 1466A(a)(1) necessarily requires that the visual depic-
tions be of actual minors and that if the depiction of an actual
minor is not required, then § 1466A(a)(1) would be unconsti-
tutional on its face under New York v. Ferber, 458 U.S. 747,
773-74 (1982) (upholding state statute that prohibited depic-
tions of actual children engaged in sexual conduct, regardless
of whether the depictions are obscene), and Ashcroft v. Free
Speech Coalition, 535 U.S. 234, 241, 246-47, 249-51, 254-56
(2002) (holding that a statutory provision prohibiting any
visual depiction that "is, or appears to be, of a minor engaging
in sexually explicit conduct" violated the First Amendment
insofar as it prohibited virtual imagery of minors that was nei-
ther obscene nor involved actual children). To make his argu-
ment, Whorley points out that subsection (a)(1) (prohibiting
depictions of "a minor engaging in sexually explicit conduct")
is mirrored in subsection (a)(2) (prohibiting "an image that is,
or appears to be, of a minor"). See 18 U.S.C. § 1466A(a)(1),
(a)(2). He argues that the "appears to be" language in subsec-
tion (a)(2) indicates reference to a real minor in subsection
(a)(1). In addition, he contends that subsection (a)(1) prohibits
material depicting "sexually explicit conduct," which is
defined in 18 U.S.C. § 2256 as referring to real people. Sec-
tion 2256 defines "sexually explicit conduct" in part as actual
or simulated sexual intercourse, "whether between persons of
the same or opposite sex." 18 U.S.C. § 2256(2)(A) (emphasis
added).
14 UNITED STATES v. WHORLEY
In making his argument, however, Whorley focuses too
narrowly on isolated portions of § 1466A(a)(1). While
§ 1466A(a)(1) would clearly prohibit an obscene photo-
graphic depiction of an actual minor engaging in sexually
explicit conduct, it also criminalizes receipt of "a visual
depiction of any kind, including a drawing, cartoon, sculpture,
or painting," that "depicts a minor engaging in sexually
explicit conduct" and is obscene. Id. § 1466A(a)(1) (emphasis
added). In addition, Whorley overlooks § 1466A(c), which
unambiguously states that "[i]t is not a required element of
any offense under this section that the minor depicted actually
exist." 18 U.S.C. § 1466A(c). The clear language of
§ 1466A(a)(1) and § 1466A(c) is sufficiently broad to prohibit
receipt of obscene cartoons, as charged in Counts 21-40.1

This leaves Whorley with the argument that if an actual
minor is not required to be depicted in § 1466A(a)(1), then the
1
Section 1466A, which was added to Title 18 by the PROTECT Act of
2003, Pub. L. No. 108-21, § 504, 117 Stat. 650, 680-82 (2003), criminal-
izes the possession, sale, distribution, and receipt of specific sexually
explicit visual representations of minors. The relevant portions of the stat-
ute provide:
(a) In general.—Any person who . . . knowingly . . . receives . . .
a visual depiction of any kind, including a drawing, cartoon,
sculpture, or painting, that —
(1) (A) depicts a minor engaging in sexually explicit con-
duct; and
(B) is obscene;
***
shall be subject to the penalties provided in [18 U.S.C.
§ 2252A(b)(1)], including the penalties provided for cases
involving a prior conviction.
***
(c) Nonrequired element of offense.—It is not a required ele-
ment of any offense under this section that the minor depicted
actually exist.
18 U.S.C. § 1466A(a), (c).
 UNITED STATES v. WHORLEY 15
statute is unconstitutional under New York v. Ferber and Ash-
croft v. Free Speech Coalition. There is, of course, no sugges-
tion that the cartoons in this case depict actual children; they
were cartoons. Relying specifically on Ashcroft v. Free
Speech Coalition, Whorley points to the observation made in
that opinion that the First Amendment does not protect "defa-
mation, incitement, obscenity, and pornography produced
with real children," but that a ban on non-obscene material
that did not use real children was impermissibly overbroad.
Ashcroft, 535 U.S. at 245-46 (emphasis added). The Court in
Ashcroft noted further that New York v. Ferber "provide[d] no
support for a statute that eliminates the distinction [between
actual and virtual child pornography]." Id. at 251. Thus, he
asserts that the First Amendment protects non-obscene por-
nography that does not depict real children.

But in making his argument, Whorley ignores the language
of § 1466A(a)(1), which prohibits visual depictions of minors
only when they are obscene. See 18 U.S.C. § 1466A(a)(1)(B).
Ashcroft itself noted that obscenity in any form is not pro-
tected by the First Amendment. See Ashcroft, 535 U.S. at 245-
46; see also Miller, 413 U.S. at 24; Kaplan, 413 U.S. at 119.
Thus, regardless of whether § 1466A(a)(1) requires an actual
minor, it is nonetheless a valid restriction on obscene speech
under Miller, not a restriction on non-obscene pornography of
the type permitted by Ferber. We thus find Whorley’s as-
applied constitutional challenge to § 1466A(a)(1) to be with-
out merit.2

VI

In addition to his constitutional arguments, Whorley chal-
lenges numerous procedural rulings of the district court.
None, however, requires extensive discussion.
2
Whorley also challenges the constitutionality of 18 U.S.C.
§§ 1466A(a)(2), (b)(1), and (b)(2). Because Whorley was not convicted of
offenses under those provisions, we decline to address his challenges to
them.
16 UNITED STATES v. WHORLEY
A

First, Whorley contends for the first time on appeal that the
e-mails that formed the basis of Counts 56-75, which were
provided by YAHOO! in response to a government subpoena,
were obtained in violation of his Fourth Amendment right
against unreasonable searches. We conclude, however, that
Whorley has waived the right to assert this objection by fail-
ing to object to the search before trial. See Fed. R. Crim. P.
12(b)(3)(C); id. 12(c); United States v. Wilson, 115 F.3d 1185,
1190 (4th Cir. 1997); United States v. Ricco, 52 F.3d 58, 62
(4th Cir. 1995).

B

Whorley next contends that the district court abused its dis-
cretion in admitting, over his objection, evidence of his prior
conviction for child pornography and the terms of his proba-
tion, which prohibited him from possessing pornography. The
evidence was introduced in the form of the following stipula-
tion:

On July 23, 1999, Dwight Edwin Whorley was con-
victed of receiving child pornography. On July 24,
2002, the defendant, Dwight Edwin Whorley, was
instructed by a probation officer, David Guertler,
that the defendant shall not possess, view, and/or
have access to any pornographic materials, pictures
displaying nudity, or any magazines using young
juvenile models or pictures of juvenile models, as
directed by the probation officer.

Whorley contends that the stipulation was improper character
evidence because it was not necessary to prove any element
of the charged offense. He argues: "Neither his knowledge
nor intent were in issue. In fact, [Whorley] informed the
court, he planned to concede at trial that he knowingly entered
the web site." Whorley argues further that it should have been
 UNITED STATES v. WHORLEY 17
excluded "because the danger of causing undue prejudice far
outweighed any potential probative value." See Fed. R. Evid.
403.

First, insofar as the stipulation includes evidence of Whor-
ley’s prior conviction, it was arguably relevant to the charges
in Counts 21-40 and 42-55, where the government charged
that Whorley had previously been convicted for violations of
18 U.S.C. § 2252 to justify enhanced sentences for violations
of §§ 1466A(a)(1) and 2252(a)(2).

In addition, Federal Rule of Evidence 404(b) allows the
admission of such evidence to prove "motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of
mistake or accident." Fed. R. Evid. 404(b); see also United
States v. Queen, 132 F.3d 991, 994 (4th Cir. 1997). The gov-
ernment introduced the evidence of Whorley’s prior convic-
tion and terms of probation to establish that Whorley received
the charged images knowingly, not by accident or mistake,
while surfing the Internet and that he had knowledge that the
individuals depicted in Counts 41-55 were minors. Moreover,
the record contradicts Whorley’s assertion that these issues
were not genuinely in dispute. Although Whorley was willing
to stipulate that he knowingly entered the websites containing
the charged images, he was not willing to concede that he
knowingly received the charged images themselves or that he
knew that the individuals in the images charged in Counts 41-
55 were minors. The stipulation was probative on these dis-
puted elements of the offenses.

Further, the district court made clear that it had weighed the
danger of unfair prejudice inherent in introducing Whorley’s
past conduct. Indeed, for that precise reason, the court did in
fact exclude certain other prior bad acts evidence. But with
respect to the stipulation, the court found that the risk of
unfair prejudice was outweighed by the probative value of the
evidence. And to reduce the risk of prejudice, the court gave
the jury a limiting instruction. See Queen, 132 F.3d at 997.
18 UNITED STATES v. WHORLEY
In these circumstances, we conclude that the district court
did not abuse its discretion in admitting the evidence.

C

Whorley also contends that the district court erred by fail-
ing to provide the jury with a particular instruction that he
requested, elaborating on Miller’s requirement that both the
prurient appeal and the literary, artistic, political, or scientific
value of the allegedly obscene item be evaluated as to the
work "as a whole." Miller, 413 U.S. at 24. We have examined
the district court’s charge to the jury concerning obscenity,
including its complete and detailed instructions concerning
each element of the Miller obscenity standard, and find that
the court did not abuse its discretion by refusing to provide
Whorley’s additional instruction. See United States v. Lewis,
53 F.3d 29, 32 (4th Cir. 1995).

D

Whorley next contends that the government failed to pro-
duce evidence sufficient to allow a rational jury to find Whor-
ley guilty beyond a reasonable doubt. In reviewing the
sufficiency of the evidence, "our 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. Kelly, 510 F.3d 433, 440 (4th Cir. 2007)
(internal quotation marks omitted). "[S]ubstantial evidence is
evidence that a reasonable finder of fact could accept as ade-
quate 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). Whorley’s suffi-
ciency arguments are based largely on his interpretations of
18 U.S.C. §§ 1462 and 1466A, which we have rejected above.
Having carefully considered the trial record in light of his
arguments, we find that each of the offenses for which Whor-
ley was convicted was adequately supported by the evidence
before the jury.
 UNITED STATES v. WHORLEY 19
E

On a collateral issue, Whorley contends that the district
judge, who in 1986 chaired the Federal Attorney General’s
Commission on Pornography while serving as a Common-
wealth’s Attorney for Virginia, abused his discretion in deny-
ing Whorley’s motion that the judge recuse himself. The
district judge denied the motion as untimely.

During arraignment, the district judge advised counsel that
he had chaired the Commission and requested notice of
whether recusal on that basis would be sought. Whorley’s
counsel subsequently notified the court that Whorley did not
intend to request recusal. But then, on the last business day
before trial, some seven months after Whorley’s arraignment,
Whorley filed the motion to recuse. Whorley explained that
he had only become aware on the day before trial that the dis-
trict judge had been involved in recommending and drafting
child pornography legislation.

We review the district judge’s decision to deny a recusal
motion for abuse of discretion. United States v. DeTemple,
162 F.3d 279, 283 (4th Cir. 1998). In this case we find no
abuse of discretion in the judge’s denial of Whorley’s motion
as untimely filed, as "[t]imeliness is an essential element of a
recusal motion." United States v. Owens, 902 F.2d 1154, 1155
(4th Cir. 1990). To prevent inefficiency and delay, "motions
to recuse must be filed at the first opportunity after discovery
of the facts tending to prove disqualification." Sine v. Local
No. 992 Int’l Bhd. of Teamsters, 882 F.2d 913, 915 (4th Cir.
1989).

The facts underlying Whorley’s motion were available to
him as a matter of public record at the time of his arraign-
ment, and he has shown no cause excusing his failure to seek
recusal before the eve of trial. By then, the court and the par-
ties had invested substantial time and effort in litigating the
complex pretrial questions that Whorley raised, particularly
20 UNITED STATES v. WHORLEY
his claims that the statutes involved were unconstitutional.
Whorley’s lack of diligence in determining whether the Com-
mission on Pornography’s work included child pornography
does not excuse his last-minute motion, especially after he
argued the complex constitutional issues in the case and the
court decided them. We find no abuse of discretion in the
court’s denying that motion.

VII

Finally, Whorley contends that the district court abused its
discretion by departing upward to impose a sentence of 240
months’ imprisonment. He argues that the district court acted
unreasonably in imposing a sentence nearly 250% greater
than that specified by the advisory Sentencing Guidelines
because this case does not present "any circumstance that
either is atypical or was not already taken into account by the
sentencing guidelines." He maintains: (1) that even though the
cartoon images involved in this case depicted children engag-
ing in sexually explicit conduct with adults, they "were sim-
ply drawings . . . represent[ing] the fictional work of an artist,
not a factual recording of sexual exploitation of a child"; (2)
that the pictures of naked minors involved in this case did not
show any of them "touching themselves, each other, or an
adult"; and (3) that most of the obscene e-mails involved in
this case were written to Whorley by another consenting
adult, and only one was written and sent by Whorley. In short,
Whorley contends that his offenses "can be only described as
substantially below the seriousness ordinarily involved in this
kind of offense."

At the outset, we should correct Whorley’s premise that the
upward departure represented a "nearly 250%" increase over
that specified by the Sentencing Guidelines. While an interim
calculation for Whorley’s conduct did yield a sentencing
range of 87 to 109 months’ imprisonment, Whorley over-
looked the fact that under the Guidelines, the final calculation
must be adjusted upward when a statutory minimum sentence
 UNITED STATES v. WHORLEY 21
is greater, so that "the statutorily required minimum sentence
shall be the guideline sentence." U.S.S.G. § 5G1.1(b). In this
case, the mandatory minimum sentence for each of Counts
21-40 and 42-55 was 180 months’ imprisonment, and the
maximum for each of those counts was 480 months’ impris-
onment. See 18 U.S.C. §§ 1466A(a), 2252A(b)(1). Thus, the
240-month sentence imposed by the district court was an
increase of 33% above the Guideline sentence of 180 months’
imprisonment.

Also, the record shows that Whorley’s conduct, as relevant
to sentencing, did indeed present circumstances that were
atypical and not taken into account by the Sentencing Guide-
lines. The facts relied on by Whorley to challenge the serious-
ness of his offense—that cartoons, not real persons, were
involved; that there was no touching in photographs; and that
Whorley received, rather than sent, most of the obscene e-
mails—are statutorily irrelevant. His challenge on those bases
is, in effect, a challenge to Congress’ policies in defining the
offenses for which he was convicted.

Whorley was first arrested in December 1998 for receiving
and distributing visual depictions of minors engaging in sexu-
ally explicit conduct. Over the period of several weeks, Whor-
ley had been receiving and sending pictures, using computers
at the Virginia Commonwealth University, that depicted 9 or
10-year-old females having sexual intercourse and performing
other sexual acts with males approximately 25 to 30 years old.
Upon his arrest, police seized extensive amounts of child por-
nography, as well as books related to child abuse prevention,
incest, and children killing or being killed, including horror
stories of children’s deaths; medical evaluations of preteen
patients; and e-mails related to child pornography. Whorley
was sentenced to 46 months’ imprisonment.

Within months after his release in April 2002, Whorley was
charged with violating the terms of his supervised released for
viewing adult pornography at the Richmond Career Advance-
22 UNITED STATES v. WHORLEY
ment Center. Six months later, Whorley was charged again
with using a computer without the approval of his probation
officer. And yet again, two months later, on March 14, 2003,
Whorley was charged with violating the terms of his super-
vised release for his unauthorized use of a computer and
falsely reporting his efforts to obtain employment. The court
finally revoked his supervised release and again imprisoned
him.

On January 29, 2004, Whorley was again released from
prison, and within two weeks, he was receiving and distribut-
ing child pornography. From February to April 2004, Whor-
ley received or distributed obscene matter and child
pornography on 20 different days, for which he was indicted
in this case. The grand jury indicted him on 75 felony counts.

Psychological evaluations of Whorley performed in June
1999 and again in June 2002 found Whorley to meet the "for-
mal DSM-IV criteria for the mental illness of Pedophilia."
During the course of these evaluations, Whorley stated and
admitted "that he ‘is scared’ of his sexual urges toward female
children and his ‘potential of hurting a child,’" although he
also expressed belief that he could control his sexual behav-
ior. Another report of an evaluation performed in August
2002 indicated that Whorley "does appear to be at least at risk
to continue to access and possess child pornography."

After a jury convicted Whorley in this case on 74 felony
counts, 33 of which included a minimum sentence of 15 years
and a maximum sentence of 40 years’ imprisonment, the pro-
bation officer indicated that an upward departure from the 15-
year recommended sentence "may be warranted based upon
the defendant’s criminal history not adequately reflecting the
seriousness of his past criminal conduct." Also, the govern-
ment filed a motion for an upward departure to a sentencing
range of 262 to 327 months’ imprisonment.

Following an extensive sentencing hearing, the district
court granted the government’s motion, but not in full. The
 UNITED STATES v. WHORLEY 23
court sentenced Whorley to 240 months’ imprisonment, a
33% increase over the 180-month sentence recommended by
the Sentencing Guidelines. The court found that a number of
circumstances took the case out of the heartland of the Guide-
lines sentence:

1. The defendant has engaged in a continuing
course of prior similar conduct, much of which
did not result in criminal convictions and is not
reflected in his criminal history category.

2. Despite having twice been found in violation of
the conditions of his supervised release and rein-
carcerated, this Defendant continues to virtually
disregard the directions of the United States Pro-
bation Officer. The defendant has received at
least five (5) notices of violation containing at
least eighteen (18) instances of his failure to
obey the conditions of supervised release. These
violations include continuing to access comput-
ers without the probation officer’s approval,
numerous false statements concerning attempts
to obtain employment, failure to obtain employ-
ment, failure to report to the Department of
Rehabilitation Services, failure to report to the
Offender Aid and Restoration Program, and
most disturbingly, his presence at local malls
and public libraries frequented by children in
direct disobedience of his probation officer’s
instructions.

3. The defendant has derived no benefit from pre-
vious rehabilitative programs. He has failed to
make a good faith effort to control his sexual
deviance.

4. The volume of material recovered from the
defendant demonstrates an escalating interest in
prepubescent erotica.
24 UNITED STATES v. WHORLEY
5. The materials in Defendant’s possession appear
to be increasing[ly] sadistic and violent in
nature.

The court concluded that this history of Whorley’s conduct
provided a picture of "a diagnosed pedophile who is resistant
to any type of rehabilitation or behavioral correction."

Applying the Sentencing Guidelines, the district court
relied on two encouraged factors for upward departure:
"[s]ubstantial underrepresentation of criminal history and
likelihood of continuing criminal conduct under U.S.S.G.
4A1.3[(a)(1)], and prior similar conduct not resulting in crimi-
nal conviction, under U.S.S.G. 4A1.3[(a)](2)(E)." The court
also relied on Whorley’s background to conclude that the total
offense level provided by the Guidelines did "not adequately
account for the atypical circumstances in this case."

In addition to its analysis under the Sentencing Guidelines,
the district court conducted an analysis under 18 U.S.C.
§ 3553(a), stating that it had considered

the nature and circumstances of the offense and the
history and characteristics of the defendant, as
required by Title 18 U.S.C. § 3553(a). The Court
believes that a sentence within the 210 to 262 month
range fulfills the congressionally established objec-
tives for sentencing. In this case, not only would it
provide just punishment for the offense, but would
afford adequate deterrence and protect the public
from further criminal activity from the defendant.

In short, the district court based its upward departure on (1)
Whorley’s extensive history of downloading child pornogra-
phy, which was not, except for his 1999 conviction, repre-
sented in the recommended Guidelines calculation; (2) his
repeated disobedience of court orders attempting to regulate
his deviant conduct; (3) his almost continuous pursuit of crim-
 UNITED STATES v. WHORLEY 25
inal conduct—virtually without a break since 1998—and its
increasing risk to the public; and (4) his failure to show any
progress in reforming his conduct. Even with the departure,
however, Whorley’s 240-month sentence remains in the lower
half of the statutory range of 180 to 480 months, the midpoint
being 330 months.

The district court’s consideration of Whorley’s sentence in
this case was thorough, and the sentence it imposed was
amply supported by the facts and by legally appropriate con-
siderations. In these circumstances, we cannot agree with
Whorley that the district court abused its discretion and acted
unreasonably.

In Gall v. United States, 128 S. Ct. 586 (2007), the
Supreme Court repeatedly instructed that appellate courts
defer in these circumstances. With respect to a departure or
variance sentence, such as before us, the Court stated:

[The appellate court] may consider the extent of the
deviation, but must give due deference to the district
court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance. The fact
that the appellate court might reasonably have con-
cluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.

Gall, 128 S. Ct. at 597. Repeating these instructions, the
Court stated:

But it is not for the Court of Appeals to decide de
novo whether the justification for a variance is suffi-
cient or the sentence reasonable. On abuse-of-
discretion review, the Court of Appeals should have
given due deference to the District Court’s reasoned
and reasonable decision that the § 3553(a) factors,
on the whole, justified the sentence.
26 UNITED STATES v. WHORLEY
Id. at 602. See also United States v. Pauley, 511 F.3d 468,
473-74 (4th Cir. 2007). In following these instructions, we
have affirmed departures encompassing the range involved
here. See, e.g., United States v. Evans, 526 F.3d 155, 161-66
(4th Cir. 2008) (affirming a 316% upward variance); United
States v. Curry, 523 F.3d 436, 439-41 (4th Cir. 2008) (affirm-
ing a 13% downward departure); Pauley, 511 F.3d at 474-76
(affirming a 46% downward departure). In Evans, we noted,
"We recognize that the sentence [constituting a 316% vari-
ance] imposed on Evans may not be the only reasonable sen-
tence, but it is a reasonable sentence, and the Supreme Court
[in Gall] has directed that any reasonable sentence be
upheld." 526 F.3d at 166.

In this case, we are presented with no procedural or sub-
stantive errors in the district court’s determination that the
goals of federal sentencing were best served by the 240-
month sentence, and therefore we conclude that the sentence
was not unreasonable.

The judgment of the district court is accordingly

AFFIRMED.

JONES, Chief District Judge, concurring:

While I share some disquiet regarding Whorley’s convic-
tions for sending and receiving the e-mails in question, I must
note that there is no contention in this case that the e-mails
were not obscene under the traditional test established by the
Supreme Court. See Miller v. California, 413 U.S. 15, 24-25
(1973). Rather, the argument made is that "[p]rivate e-mails
between consenting adults should at least be accorded the
substantive due process privacy protections that obscene
materials viewed privately and sexual acts between consent-
ing adults are provided." (Appellant’s Reply Br. 26.) I agree
with Judge Niemeyer that there is no support in the law for
this proposition or the related argument that since the obscen-
 UNITED STATES v. WHORLEY 27
ity in the e-mails consisted of "mere words" (Id.), they cannot
be the subject of prosecution.

GREGORY, Circuit Judge, concurring in part and dissenting
in part:

The ability to consider and transmit thoughts and ideas
through the medium of the written word is an attribute unique
to humans. The Universal Declaration of Human Rights pro-
vides that freedom of speech is "the highest aspiration of the
common people." Universal Declaration of Human Rights,
Dec. 10, 1948, Preamble, G.A. Res. 217A(III), 3 U.N. GAOR
Supp. No. 16, U.N. Doc. A/810 (1948). Indeed, "[o]ur whole
constitutional heritage rebels at the thought of giving govern-
ment the power to control men’s minds," Stanley v. Georgia,
394 U.S. 557, 565 (1969), and simply because "society may
find speech offensive is not a sufficient reason for suppressing
it." FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978).
Because suppression of purely textual e-mails discussing the
child sex fantasies of consenting adults is protected speech,
the regulation of which is unsupported by the economic and
moral concerns implicated in suppressing child pornography
that uses actual children, the application of 18 U.S.C. § 1462
to Whorley violates the First Amendment. Consequently, I
would reverse Whorley’s convictions as to counts fifty-six
(56) through seventy-five (75). In addition, because the Japa-
nese anime cartoons did not portray actual children, a require-
ment of 18 U.S.C. § 1466A(a)(1), I would reverse Whorley’s
conviction as to counts twenty-one (21) through forty (40). I
concur in the majority’s judgment (unless otherwise indi-
cated) as to the remaining issues.

I.

"[A]lmost every obscenity case involves difficult constitu-
tional issues." United States v. Thirty-Seven (37) Photo-
graphs, 402 U.S. 363, 379 (1971) (Black, J., dissenting). This
case is no exception. Whorley was indicted and convicted,
28 UNITED STATES v. WHORLEY
inter alia, for receiving obscene cartoons and receiving and
sending obscene e-mails. In the six decades since the Supreme
Court first agreed that the federal and state governments could
regulate obscene matter, it has struggled to define obscenity.
See Miller v. California, 413 U.S. 15, 22 (1973) ("We have
seen a variety of views among the members of the Court [on
the issue of defining obscenity that is] unmatched in any other
course of constitutional adjudication.") (internal quotation
marks and citation omitted).

The Supreme Court’s initial foray into the obscenity thicket
led to a splintered decision on whether obscenity is protected
by the First Amendment. In United States v. Roth, 354 U.S.
476 (1957), the majority of the Supreme Court agreed that
obscene material cannot find refuge within the First Amend-
ment. The Court defined obscene material as that "which
deals with sex in a manner appealing to prurient interest," id.
at 487, or more specifically, "having a tendency to excite lust-
ful thoughts." Id. at 488, n.20. (1957); see also United States
v. Reidel, 402 U.S. 351, 354 (1971); but cf. Roth, 354 U.S. at
514 (Douglas, J., dissenting, joined by Black, J.) (rejecting the
majority’s decision to strip the protections of the First
Amendment from obscene material because "the test that sup-
presses a cheap tract today can suppress a literary gem tomor-
row" and expressing "the same confidence in the ability of our
people to reject noxious literature as [we] have in their capac-
ity to sort out the true from the false in theology, economics,
politics, or any other field").

In Book Named "John Cleland’s Memoirs of a Woman of
Pleasure" v. Massachusetts, 383 U.S. 413 (1966) (plurality
opinion), a sharply divided Supreme Court "drastically
altered" the Roth obscenity test by requiring the Government
to not only prove that the material appealed to the prurient
interest and that it was patently offensive, but also "called on
the prosecution to prove a negative, i.e., that the material was
utterly without redeeming social value—a burden virtually
impossible to discharge under our criminal standards of
 UNITED STATES v. WHORLEY 29
proof." Miller, 413 U.S. at 22 (internal quotation marks and
citation omitted).

A decade and a half after it first attempted to define
obscenity, the Supreme Court candidly admitted that its defi-
nition of obscenity "does not reflect the precise meaning of
‘obscene’ as traditionally used in the English language." Id. at
20, n.2. In order to provide relief from the "somewhat tortured
history of the Court’s obscenity decisions," id. at 20, the Mil-
ler court devised a "more concrete," id., test to aid the finder
of fact in identifying obscenity:

(a) whether the average person, applying contempo-
rary 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, artis-
tic, political, or scientific value.

Id. at 24 (internal quotation marks and internal citations omit-
ted). This well-intentioned attempt at tethering the task of
defining what material is obscene to firmer guideposts did not
"extricate [the Supreme Court] from the mire of case-by-case
determinations of obscenity," Jenkins v. Georgia, 418 U.S.
153, 162 (1974) (Brennan, J., concurring in the result), for
courts have continued to engage in an "essentially pointless
exercise, in view of the need for an ultimate decision by th[e]
[Supreme] Court." Id. at 163.

The distinct but related issues of a state’s regulation of
obscenity and child pornography were addressed in New York
v. Ferber, 458 U.S. 747 (1982), where the Supreme Court
held that the State of New York could ban child pornography
that used real children in "live performance or photographic
or other visual reproduction of live performances" without
impinging upon the First Amendment. Id. at 765 (emphasis
30 UNITED STATES v. WHORLEY
added). Unlike the Miller test for obscenity, the test for child
pornography does not require the Government to prove that
"the material appeals to the prurient interest of the average
person" or that the "sexual conduct portrayed be done so in a
patently offensive manner; and the material at issue need not
be considered as a whole." Id. at 764. The Supreme Court rea-
soned that the ban on visual depictions of child pornography
involving real children did not offend the Constitution
because: the "sexual exploitation and abuse of children consti-
tutes a government objective of surpassing importance," id. at
757; the distribution of such material "is intrinsically related
to the sexual abuse of children," id. at 759; the need to cir-
cumscribe "the economic motive" of those involved in adver-
tising and selling such materials, id. at 761; the value of
children "engaged in lewd sexual conduct is exceedingly
modest, if not de minimis," id. at 762 (emphasis in original);
and placing child pornography in the "category of material
outside the protection of the First Amendment is not, incom-
patible with our earlier decisions." Id. at 763.

The Ferber plurality and several of the concurring justices
recognized that the New York statute in question regulated a
"tiny fraction," id. at 773, of speech that continued to be pro-
tected by the First Amendment — e.g., child pornography that
has a serious literary, artistic, political, or scientific value.
See, e.g., Id. ("[T]he Court of Appeals was understandably
concerned that some protected expression . . . would fall prey
to the statute."); see also id. at 776 (Brennan, J., concurring
in the judgment, joined by Marshall, J.) ("But in my view
application of [the New York statute] or any similar statute to
depictions of children that in themselves do have serious liter-
ary, artistic, scientific, or medical value, would violate the
First Amendment."). Finally, and most important for our pur-
poses, Justice O’Connor pointed out that while New York’s
statute forbid portraying real children in sexual situations, she
concluded that the statute "does not attempt to suppress the
communication of particular ideas." Id. at 775 (O’Connor, J.,
 UNITED STATES v. WHORLEY 31
concurring) (internal quotation marks and citation omitted)
(emphasis added).

The Supreme Court extended the reach of Ferber in
Osborne v. Ohio, 495 U.S. 103 (1990), holding that while
Stanley continued to protect a person’s right to possess
obscenity in the confines of his or her home, child pornogra-
phy depicting real children would be excepted. The Supreme
Court also found that the State of Ohio’s interest in "safe-
guarding the physical and psychological well-being of a
minor is compelling," Osborne, 495 U.S. at 109 (internal quo-
tation marks and citation omitted), when contrasted with the
"weak interests asserted by the State [of Georgia]," id. at 110,
in Stanley.1 Thus, Ohio’s statutory prohibition on "possession
and viewing of child pornography," id. at 108, survived con-
stitutional scrutiny.

Finally, in Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002), the Supreme Court found two sections of the Child
Pornography Prevention Act of 1996 ("CPPA"), 18 U.S.C.
§ 2251 et seq., to be overbroad because they banned "a signif-
icant universe of speech that is neither obscene under Miller
nor child pornography under Ferber," id. at 240, including
sexually explicit images of virtual children. See also id. ("By
prohibiting child pornography that does not depict an actual
child, the statute goes beyond [Ferber]. . . ."). The CPPA
could be distinguished from the New York statute at issue in
Ferber because "[t]he production of the work, not its content,
was the target of the [New York] statute." Id. at 249. Despite
the Government’s contention that child pornography, even
without real children, "whets the appetites of pedophiles and
encourages them to engage in illegal conduct," id. at 253, the
Supreme Court held that "[t]he mere tendency of speech to
encourage unlawful acts is not a sufficient reason for banning
1
"In Stanley, Georgia primarily sought to proscribe the private posses-
sion of obscenity because it was concerned that obscenity would poison
the minds of its viewers." Osborne, 495 U.S. at 109 (citation omitted).
32 UNITED STATES v. WHORLEY
it." Id. In striking down portions of the CPPA, the Court was
unwilling to go beyond the Ferber/Miller holdings and place
all child pornography — including depictions and writings
that do not involve the sexual abuse of actual children —
beyond the protections of the First Amendment.

The Supreme Court’s attempts to define obscenity for over
half a century, including its enunciation of differing standards
for obscenity and child pornography, reveal one truth: a mate-
rial’s obscenity, or lack thereof, ultimately depends on the
subjective view of at least five individuals. See U.S. v. 12200-
Foot Reels of Super 8mm Film, 413 U.S. 123, 137 (1973)
(Douglas, J., dissenting) ("Moreover, by what right under the
Constitution do five of us have to impose our set of values on
the literature of the day?"). Predicting how any person subjec-
tively views material is impossible, an infallible truth that
prompted Justice Stewart to pronounce a simple, yet honest
test for identifying obscenity: "I know it when I see it . . . ."
Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stew-
art, J., concurring).

On the other hand, in every society, there are fundamental
norms of decency and morality that cannot be transgressed if
that society is to function in a healthy and productive manner.
See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 57-58 (1973)
(holding that "the interest of the public in the quality of life
and the total community environment and . . . possibly, the
public safety itself" is implicated in "stemming the tide of
commercialized obscenity"). Allowing children to live in an
environment free from the paws of predatory pedophiles is a
paramount objective of our society. See Ferber, 458 U.S. at
776 (Brennan, J., concurring in judgment) ("[T]he State has
a special interest in protecting the well-being of its youth.");
see also Paris Adult Theatre I, 413 U.S. at 59-60 ("[T]here is
a right of the Nation and of the States to maintain a decent
society.") (internal quotation marks, ellipsis, and citation
omitted).
 UNITED STATES v. WHORLEY 33
II.

A.

Here, Whorley argues that 18 U.S.C. § 1462 is facially
unconstitutional because it is overbroad, vague, and violates
the First Amendment. His arguments must fail. Whorley’s
claim that the statute is overbroad and might chill otherwise
protected speech, is disconcerting because the locus of Whor-
ley’s activity — i.e., his place of work — played a significant
role in the criminalization of his activities. Indeed, excepting
the digital pictures of the actual children, Whorley could have
possessed hard copies of the cartoons and e-mails in his home
without any fear of conviction under § 1462 because the
materials only portrayed and discussed fictional children.
Nevertheless, because Stanley’s holding is limited to the con-
fines of one’s home, I reject Whorley’s contention that he is
entitled to view obscenity in the workplace for the reasons
articulated in the majority opinion. (See Maj. Op. 6-8.) And
while determining when a person surfing the internet "re-
ceives" an image or document is not without its difficulties,
a point not lost on the majority (See Maj. Op. 10), I agree that
Whorley’s vagueness argument must also fail.

B.

Whorley was indicted under § 1462 for two discrete issues
— (1) receiving cartoons depicting fictional children having
sex with adults, and (2) exchanging allegedly obscene e-mails
discussing his child sex fantasies. Whorley contends that
§ 1462 is overbroad, vague, and violates the First Amend-
ment, as applied to him.

i.

For the reasons expressed in Section I(A), Whorley’s as
applied constitutional challenge must fail as to the cartoons.
While I join the majority’s analysis as to this issue, I wish to
34 UNITED STATES v. WHORLEY
add my thoughts on Whorley’s argument that Free Speech
Coalition supports his claim that the statute is unconstitu-
tional as applied to him because, inter alia, the children in the
cartoons were not real. Whorley’s claim distorts Free Speech
Coalition which struck down the CPPA on overbreadth
grounds because "[v]irtual child pornography [unlike pornog-
raphy involving real children] is not ‘intrinsically related’ to
the sexual abuse of children." Free Speech Coalition, 535
U.S. at 250 (internal citation omitted). As a result, the
Supreme Court rejected a complete ban on child pornography
that does not involve real children, although such pornogra-
phy — as with pornography involving adults — can be found
to be obscene. Thus, the jury’s finding that the graphic car-
toons of fictional children being raped and sodomized by
adults are obscene should not be disturbed because a cartoon
does not have to contain actual children in order to be
obscene.

ii.

Counts fifty-six (56) to seventy-five (75) charge Whorley
with violating § 1462 by using a computer to transmit and
receive sexually explicit e-mails with another adult.2 It is
undisputed that Whorley’s counsel failed to raise an issue
central to his client’s defense, i.e., that the e-mails were pure
speech protected by the First Amendment. While my col-
leagues have exercised their discretion and chosen not to
address this issue, the grave ramifications of the majority’s
decision, combined with the fact that the defendant was sen-
tenced to twenty years of imprisonment, compels me to do so.

The Supreme Court, citing to Federal Rule of Criminal Pro-
cedure 52(b), has provided guidance for appellate courts when
the parties fail to raise an issue of crucial importance. In
2
"E-mail enables an individual to send an electronic mes-
sage—generally akin to a note or letter—to another individual . . . ." Reno
v. American Civil Liberties Union, 521 U.S. 844, 851 (1997).
 UNITED STATES v. WHORLEY 35
United States v. Olano, the Court held that "[i]f the forfeited
error is plain and affects substantial rights, the court of
appeals has authority to order correction." 507 U.S. 725, 735
(1993). As I discuss infra, I believe that the district court
erred by not dismissing these charges because the e-mails
were clearly pure speech protected by the First Amendment.
The error is "obvious," id. at 734, because the Supreme Court
has never come close to holding that the private fantasies of
an adult are not protected by the First Amendment. Unless the
Supreme Court chooses to grant certiorari, the majority deci-
sion today will chill the expression and innovativeness of pri-
vate citizens throughout the Fourth Circuit. In addition, this
error clearly "prejudiced," id., Whorley as he was convicted
and sentenced based on this error. As a result, there can be no
doubt that Whorley’s conviction resulted in a "miscarriage of
justice." Id. at 736.

The content of the e-mails can be described as "a series of
engaging in fantasies on the internet of one person talking
about their fantasy, and another asking questions about what
they’ve done, what they haven’t done." (J.A. 155.) The e-
mails did not include any visual depictions or attachments
containing child pornography of any type, and the Govern-
ment does not allege that Whorley used the e-mails to con-
vince or lure a child into any sexual activity. In both Ferber
and Osborne, the government’s interest in suppressing the
speech in question had "a proximate link to the crime from
which it came." Free Speech Coalition, 535 U.S. at 250. The
Supreme Court was concerned with the potential victims of
those crimes, i.e., children, and "[i]t did not suggest that,
absent this concern, other governmental interests would suf-
fice." Id.; see also id. at 250-51 ("Ferber’s judgment about
child pornography was based upon how it was made, not on
what it communicated."). The economic and social justifica-
tions for regulating e-mail fantasies — even those involving
activities that would be criminal if the fantasies were acted
out — are minimal. Indeed, the harm, if any, involved in
Whorley’s conduct is not readily discernible because the e-
36 UNITED STATES v. WHORLEY
mails were written and exchanged for the sole "enjoyment" of
Whorley and his counterpart. Unlike the facts in Ferber, this
exchange of information did not have any economic conse-
quences on the child pornography trade and real children were
not harmed (or even discussed) during the "production" of
these e-mails.

The majority resolves this issue by citing the well-known
proposition that words can be obscene. See, e.g., Kaplan v.
California, 413 U.S. 115, 119 (1973) ("Obscenity can, of
course, manifest itself . . . in the written and oral description
of conduct. The Court has applied similarly conceived First
Amendment standards to moving pictures, to photographs,
and to words in books.") However, simply because words can
be obscene is not sufficient, on its own, to criminalize pure
speech.

Incest and sexual relationships between children and adults
are distasteful subjects to most individuals, yet writers rou-
tinely publish such material. In fact, Whorley’s creative writ-
ing and English literature expert wrote a dissertation entitled
Dipping into Chaos, Incest and Innovation in the Narrative
Form in Twentieth Century Literature which explored how
"certain authors have used incest as a motif and as a plot ele-
ment in which they break taboo in order to experiment artisti-
cally with language and with the form of a novel." (J.A. 748.)
The expert provided the district court with numerous exam-
ples of recognized writings involving child sex with adults
and/or incest including: Sigmund Freud’s writings on incest
and fantasies, Alice Walker’s The Color Purple, and William
Faulkner’s Absalom, Absalom! (described by Oxford Univer-
sity Press ("OUP") as "one of the leading American novels of
the twentieth century," OUP, http://www.oup.com/us/catalog/
general/subject/LiteratureEnglish/AmericanLiterature/20thC/
~~/dmlldz11c2EmY2k9OTc4MDE5NTE1NDc4OA==?view
=usa&ci=9780195154788#Description (last visited June 8,
2008).
 UNITED STATES v. WHORLEY 37
One need not delve into the rare archives of the Library of
Congress to find works describing an adult’s sexual fantasies
about children. Some of these writings, Lolita for example,
are seated at the head table of great literary works of all time.
See, e.g., Time.com, All-Time 100 novels, http://
www.time.com/time/2005/100books/the_complete_list.html
(last visited July 10, 2008). The subject of adults fantasizing
about having sex with minors, or alternatively, adults actually
consummating relationships with children, is not limited to
popular literature and academic discourse. A central theme of
the Academy Award winner American Beauty (DreamWorks
1999) is a forty-two year old man’s sexual fantasies about his
teenage daughter’s high school classmate.

Comparing Whorley’s writing with recognized literary
works and Academy Award winners raises the question of
whether his work is within a zone of expression accepted as
having artistic value. By utilizing classic literary devices,
writers like Nabakov were able to insulate the reader from the
disagreeable nature of the subject matter. See, e.g.,
Amazon.com, Editorial Review of Lolita, http://www.amazon.
com/Lolita-Vladimir-Nabokov/dp/0679723161 (last viewed
on July 8, 2008) ("Lolita is undoubtedly, brazenly erotic, but
the eroticism springs less from the ‘frail honey-hued shoul-
ders . . . the silky supple bare back’ of little Lo than it does
from the wantonly gorgeous prose that Humbert uses to
recount his forbidden passion."). Distinguishing writings
based upon an author’s ability to distract the reader’s instinc-
tual repugnance to a taboo subject by the use of "gorgeous
prose" or literary devices is inconsistent with the thrust of the
creative writing genre which allows "writers such as Heming-
way [to] strip down language, remove symbolism, metaphor,
alliteration; all those things to try to get a pure language," and
authentic artistic expression. (J.A. 776.)

From my perspective, the iconic books and movies above
render unsustainable the claim that writings describing sexual
acts between children and adults, generated by fantasy, have
38 UNITED STATES v. WHORLEY
no demonstrated socially redeeming artistic value. If the writ-
ers of the aforementioned books and movie scripts e-mailed
the sections of their work that described the sexual relation-
ship between the minor and the adult to a willing recipient,
presumably both the writer and the recipient could have been
subject to prosecution for sending or receiving obscene mate-
rial under § 1462, an untoward result.

In addition, while published books and finished movie
scripts are complete works, such that the fantastical sexual
relationship between the child and adult can be analyzed in
context, e-mails are rarely comprehensive. Whorley’s corre-
spondence was interrupted and as a result, we have an incom-
plete picture of the purpose behind the e-mails. It is clear,
however, that like the literature and movies cited herein,
Whorley’s fantasies "creat[ed] no victims by its production."
Free Speech Coalition, 535 U.S. at 250.

There is a discernable group of individuals that does "flirt"
with child pornography, Free Speech Coalition, 535 U.S. at
245, though they manage to keep their fantasies pent up.
Whorley’s e-mail fantasies, if carried to fruition, would
undoubtedly subject him to criminal liability. But just as the
"fantasies of a drug addict are his own and beyond the reach
of government," Paris Adult Theatre I, 413 U.S. at 67, the
fantasies of a child pornographer should be as well. With the
exception of the crime of conspiracy, the government cannot
criminalize the mere communication of ideas. "Freedom of
expression can be suppressed if, and to the extent that, it is so
closely brigaded with illegal action as to be an inseparable
part of it," Roth, 354 U.S. at 514 (Douglas, J., dissenting); as
none of the children discussed in the fantasies exist, Whor-
ley’s actions can easily be separated from the potentially ille-
gal acts about which he fantasized.

Incursions on our citizenry’s right to be free from govern-
mental regulation of speech are viewed with skepticism and
scrutiny. See Roth, 354 U.S. at 488 ("Ceaseless vigilance is
 UNITED STATES v. WHORLEY 39
the watchword to prevent [the First Amendment’s] erosion by
Congress or by the States."). Whorley’s e-mails are pure
speech at the very heart of the First Amendment. "To protect
speech for its own sake, the Supreme Court’s First Amend-
ment cases draw vital distinctions between words and deeds,
between ideas and conduct." Free Speech Coalition, 535 U.S.
at 253 (citations omitted); see also, Young v. American Mini
Theatres, Inc., 427 U.S. 50, 66 (1976) ("The question whether
speech is, or is not protected by the First Amendment often
depends on the content of the speech."). The textual e-mails
expressed Whorley’s and his adult counterpart’s fantastical
desires to engage in sexual relations with children. Despite the
repugnant nature of such ideas, "[a]ll ideas having even the
slightest redeeming social importance—unorthodox ideas,
controversial ideas, even ideas hateful to the prevailing cli-
mate of opinion—have the full protection of the [First
Amendment], unless excludable because they encroach upon
the limited area of more important interests." Roth, 354 U.S.
at 484. Frankly, I am hard pressed to find a permissible gov-
ernmental interest that is served in suppressing Whorley’s e-
mails as such an action would not aid in "protect[ing] the vic-
tims of child pornography" or the "destr[uction] [of] a market
for the exploitative use of children." Osborne, 495 U.S. at
109. The most obvious interest the government might have in
suppressing such speech — that such fantasies may "whet[ ]
the appetites of pedophiles and encourage[ ] them to engage
in illegal conduct," Ashcroft, 535 U.S. 253, has been soundly
rejected by the Supreme Court.

Therefore, I find that this statute, as applied to Whorley,
criminalizes protected speech and "is a stark example of
speech suppression," Free Speech Coalition, 535 U.S. at 24.
Consequently, I would reverse his convictions as to counts
fifty-six (56) to seventy-five (75) on the basis that the convic-
tion was plainly erroneous because the defendant’s e-mail
fantasies are a form of pure speech protected by the Constitu-
tion and not within the reach of 18 U.S.C. § 1462.
40 UNITED STATES v. WHORLEY
III.

Whorley contends that 18 U.S.C. § 1466A(a)(1)3 of the
PROTECT Act of 2003, as applied to him, is unconstitutional
because it requires an actual minor child and not a fictional
character. My colleagues in the majority disagree, holding
that the "clear language" of the statute is "sufficiently broad
to prohibit receipt of obscene cartoons." (Maj. Op. 14.)
Although I do not find that the statute is constitutionally
infirm, I interpret subsection (a)(1) to only criminalize mate-
rial, including cartoons and drawings, that incorporates actual
children, even if those children cannot be conclusively identi-
fied. Because it is undisputed that real children are not
included in the Japanese Anime cartoons Whorley received,
I would reverse Whorley’s conviction as to counts twenty-one
(21) through forty (40).

A straightforward reading of the statute reveals that subsec-
tion (a)(1) requires receipt of a pornographic article depicting
an actual minor "engaging in sexually explicit conduct" for an
individual to be ensnared within its web. Stressing that the
phrase "sexually explicit conduct" includes "persons of the
same or opposite sex" (Maj. Op. 13 (quoting 18 U.S.C.
§ 2256) (emphasis in original)), the majority apparently
believes that a "person" includes both real and fictitious chil-
dren. I disagree. First, 18 U.S.C. § 2232 defines minor as "any
person under the age of eighteen years." A person is defined
3
(a) In general—Any person who, in a circumstance described in sub-
section (d), knowingly produces, distributes, receives, or possesses with
intent to distribute, a visual depiction of any kind, including a drawing,
cartoon, sculpture, or painting, that—
(1)(A) depicts a minor engaging in sexually explicit conduct;
and
(B) is obscene;
A(b)(1), including the penalties provided for cases involving a
prior conviction.
 UNITED STATES v. WHORLEY 41
as a "living human being" and "a human being . . . with legal
rights and duties." Webster’s II New Riverside University Dic-
tionary 877 (1994); see also, Black’s Law Dictionary 1178
(8th ed. 2004) (defining "person" as synonymous with "natu-
ral person"). A child that is a figment of an illustrator’s imagi-
nation is not living, is not a human being with legal rights,
and is certainly not natural in the legal sense of the word. See
Black’s Law Dictionary 1178 (8th ed. 2004) (defining "natu-
ral" as "brought about by nature as opposed to artificial
means"). Thus, for example, the conviction of an individual
for receiving a sexually explicit obscene caricature of an
actual person under the age of eighteen years would be appro-
priate under this statute.

Second, the majority concludes that Whorley "overlooks"
18 U.S.C. § 1466A(c) which provides that the Government
does not have to prove that "the minor depicted" in the car-
toons "actually exist[s]." The intent of subsection (c) is to
relax the evidentiary requirements necessary to find an indi-
vidual guilty under this statute, thus relieving the Government
from the burden of exhaustively searching the country to
identify conclusively the children involved in the production
of the child pornography. See Senate Report No. 108-2 at *5
(February 11, 2003) ("[P]rosecutors typically are unable to
identify the children depicted in child pornography. Not sur-
prisingly, these children are abused and victimized in ano-
nymity, even when the child pornography is produced within
the United States.").4

Third, a comparison of the elements contained in subsec-
tions §§ 1466A(a)(1) and (a)(2) reveal that the only way to
avoid making subsection (a)(2) superfluous is to assume that
Congress only required a real child in subsection (a)(1). For
example, subsection (a)(1) only requires "sexually explicit con-
4
Under subsection (c), the fact that a child did not "actually exist" —
i.e., he or she had passed away — would not impede the prosecution of
an individual under this statute.
42 UNITED STATES v. WHORLEY
duct,"5 which includes the broad category of "lascivious exhi-
bition of the genitals or pubic areas" of a child; subsection
(a)(2), on the other hand, criminalizes a more limited type of
conduct — i.e., "graphic bestiality, sadistic or masochistic
abuse, or sexual intercourse." Thus, the standard under sub-
section (a)(1) is less demanding, presumably because the con-
duct involves the abuse of real minors.

For these reasons, I would find that § 1466A(a)(1) is not
applicable to Whorley, and reverse his convictions as to
counts twenty-one (21) through forty (40).

IV.

The majority rejects Whorley’s contention that the district
court abused its discretion by not including a more detailed
definition of "as a whole" when instructing the jury on the
Miller obscenity test. Because an instruction placing the Mil-
ler formula in the context of the internet would have been
useful to the jury in this case, Whorley’s objection merits fur-
ther discussion.

Whorley asked the district court to emphasize, with respect
to the third part of the Miller test, that "as a whole" meant the
5
18 U.S.C. § 2256 defines "sexually explicit conduct" as:
(i) graphic sexual intercourse, including genital-genital, oral-
genital, anal-genital, or oral-anal, whether between persons of the
same or opposite sex, or lascivious simulated sexual intercourse
where the genitals, breast, or pubic area of any person is exhib-
ited;
(ii) graphic or lascivious simulated;
(I) bestiality;
(II) masturbation; or
(III) sadistic or masochistic abuse; or
(iii) graphic or simulated lascivious exhibition of the genitals or
pubic area of any person.
 UNITED STATES v. WHORLEY 43
"entire work, book, movie, magazine, or story from which the
matter in question is derived. Taking a single picture or group
of pictures from a body of work does not constitute the whole
of the work, just as a single passage from a book or story does
not constitute the whole book or story." (J.A. 218K.) The dis-
trict court rejected Whorley’s suggestion because the jury
could use its "own common sense and logic in determining
what the word as a whole means." (J.A. 794.)

Under our Circuit precedent:

A district court’s refusal to provide an instruction
requested by a defendant constitutes reversible error
only if the instruction: (1) was correct; (2) was not
substantially covered by the court’s charge to the
jury; and (3) dealt with some point in the trial so
important, that failure to give the requested instruc-
tion seriously impaired the defendant’s ability to
conduct his defense.

United States v. Lewis, 53 F.3d 29, 32-33 (4th Cir. 1995)
(internal quotation marks and citations omitted). Whorley’s
additional instruction is consistent with the law, although
under most circumstances, the typical regurgitation of the
Miller standard is sufficient to convey to the jury that it must
consider the specific material at issue in the context of the
entire work from which it came. However, when dealing with
a medium — the web — that is still not used by one-fifth of
the U.S. population, see, e.g., Reuters.com, Poll finds nearly
80% of U.S. adults go online, http://www.reuters.com/article/
internetNews/idUSN0559828420071106?feedType=RSS&
feedName=internetNews&sp=true (last viewed on June 30,
2008), Whorley’s general contention that the district court
should have provided more guidance on this matter warrants
attention. Indeed, it is reasonable to ask whether a district
court should assume that all the jurors understood, for exam-
ple, the difference between a webpage (one part of a website)
and a website. This is particularly true in this case where the
44 UNITED STATES v. WHORLEY
forensic evidence was hardly definitive. Nevertheless, since
Whorley’s requested instruction did not address the internet,
I agree that the instructions "substantially covered" Whorley’s
requested instruction, and as a result, it did not impair his
ability to conduct his defense.

V.

Because I would reverse Whorley’s conviction as to counts
twenty-one (21) through forty (40), and counts fifty-six (56)
through seventy-five (75), I would remand the case to the dis-
trict court to review its sentence. It is true that the sentences
for counts fifty-six (56) through seventy-five (75) ran concur-
rent to counts one (1) through twenty (20), and the sentence
for counts twenty-one (21) through forty (40) ran concurrent
to the sentence for counts forty-two (42) through fifty-five
(55), but the reversal of forty counts is a significant event that
would require the district court to determine whether the over-
all sentence, and in particular, the upward departure, was
appropriate.

VI.

Today, under the guise of suppressing obscenity — what-
ever meaning that term may encompass — we have provided
the government with the power to roll back our previously
inviolable right to use our imaginations to create fantasies. It
is precisely this unencumbered ability to fantasize that has
allowed this nation to reap the benefits of great literary insight
and scientific invention. The Constitution’s inviolable prom-
ise to us is its guarantee to defend thought, imagination and
fantasy from unlawful governmental interference regardless
of whether such thoughts, imaginings, or fantasies are popular
with the masses. It is in these moments that our grip on the
rule of law and our fidelity to constitutional values is tested.

Thus, with all due respect to my colleagues, I dissent from
the majority’s affirmance of Whorley’s convictions as to
 UNITED STATES v. WHORLEY 45
counts twenty-one (21) through forty (40), and counts fifty-
six (56) through seventy-five (75) and concur in the majori-
ty’s judgment affirming Whorley’s convictions as to the
remaining counts.