United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
September 27, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-10291
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARRY LAYNE RAGSDALE;
TAMARA MICHELLE RAGSDALE,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Texas
Before KING, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.
CARL E. STEWART, Circuit Judge:
This appeal arises from the defendants’, Garry and Tamara Ragsdale, conviction following
a jury trial on one count of conspiracy in violation of 18 U.S.C. § 371, and two counts of mailing
obscene materials and aiding and abetting in violation of 18 U.S.C. §§ 1461 and 1462. The Ragsdales
appeal from their convictions and sentences. They also challenge, on various grounds, the
constitutionality of § 1461. For the reasons set forth below, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 1998, the Dallas Police Department received a complaint from a Berlin resident about
pornography sold from www.geschlecht.com.1 The website, which was entitled “Rape Video Store,”
advertised that it sold videotapes of actual rapes. The videotapes were separated into two categories
on the web site, the “Real Rape Series” and the “Brutally Raped Series.” Upon investigating, the
Berlin resident det ermined that the website was registered to Garry Ragsdale (“Garry”) of Fort
Worth, Texas and he contacted the Dallas/Forth Worth authorities. Detective Doyle Furr was
assigned to investigate the complaint. He recognized the name and address of the website owner as
that of a fellow Dallas police officer. Furr, using the name Charles Taylor, purchased two videotapes
from geschlecht.com that were delivered to an undercover post office box in Dallas, Texas. He later
made 6 additional purchases– the eight videotapes he purchased in total constituted the Ragsdales’
entire inventory. Two of the videos are alleged to be obscene.
One tape, an hour long Japanese language video entitled “Brutally Raped 5,” was touted as
being the actual rape of a young woman.2 In the first half of the video, the woman seems to
consensually engage in various sexual activities with as many as three different males. In addition to
the protracted depictions of intercourse between her and the men, the remaining half of the video
depicts in graphic detail, among other things, her being hoisted up by her ankles upside down with
1
Geschlecht is German for gender or sex.
2
The description on the web site for the video read: “Want a video of a REAL RAPE? This
is no joke, t hey act ually raped a girl and made this video. She is about 20 yrs. old, a very loud
screamer, and cries like a baby. In the beginning of this bootleg sex video the girl is a willing
participant but quickly realizes she is in way over her head. She pleads for mercy and begs the men
to stop. The men tie her up and have their way with her . . . The tape is about an hour long, although
I seriously doubt you could stand to watch it that long .”
2
chains and then being sodomized with various objects and seemingly tortured with hot wax. She is
also flogged wit h a whip by a female dominatrix and subsequently sodomized with a baseball bat,
which is secured in place with heavy rope. The female and male participants then seem to taunt her
while she cries. The second tape, “Real Rape 1,” is an hour long Dutch video that depicts a young
woman hitch hiker being picked up by a male in a car. She eventually flees from the car into a
wooded area where she is pursued by the driver. The man catches up to her and ties her up–first on
the ground and later to a tree. There are lengthy zoom lens pictures of her being sodomized. The
prosecution argued that what the viewer sees in the next scene is the woman being forced to fellate
and then being raped. The video abruptly changes to an indoor location and the woman, who is now
tied to a chair, has changed her attire. It then looks as if the man hits her and cut her with a knife.
Thereafter, the video shows pro tracted close up shots of male and female genitalia engaged in a
variety of sexual acts that the prosecution argued was again non-consensual by the female.
On July 9, 1998, the Federal Bureau of Investigation (“FBI”), in conjunction with the Dallas
Police Department and United States Postal Inspectors, obtained a search warrant for the Fort Worth
home of Garry and Tamara Ragsdale. The FBI stopped the couple and their two young children as
they were driving away from their home. In the vehicle were several packages of the videotapes sold
from their online store that the Ragsdales admitted they were about to take to the post office to mail.
Garry was placed under arrest. He waived his Miranda rights. He admitted that he owned and
managed G Rags, Inc. Thro ugh G Rags, Inc., the Ragsdales sold dietary supplements and
pornographic videos on the internet, including “Real Rape 1” and “Brutally Raped 5.” Garry was
initially charged with obscenity under Texas state law, a Class A misdemeanor, but those charges
3
were later dropped. After 8 years as a Dallas police officer, Garry was fired from his job for conduct
unbecoming of an officer.
The officers accompanied Tamara Ragsdale (“Tamara”) back to her home where they
executed a search warrant. Tamara gave a statement corroborating that she and her husband sold the
videotapes at issue on the internet. The Ragsdales conducted business via an AOL account owned
by Garry but paid for with a credit card in Tamara’s name. She stated that she would duplicate the
master videos of the pornographic tapes they offered for sale, often with the monitor off so she would
not have to view the activities in the tapes, and she would then mail the duplicated copies to their
internet customers. The Ragsdales kept detailed business records that are a part of the appellate
record and demonstrate that despite the short four month period the Ragsdales’ “Rape Video Store”
operated, it still managed to accumulate a large number of customers from all over the world. The
Ragsdales shut down the pornography end of their internet business following the FBI raid.
Almost five years later, in March of 2003, Tamara and Garry were each indicted on one count
of conspiracy in violation of 18 U.S.C. § 371, and two counts of mailing obscene matter, and aiding
and abetting in violation of 18 U.S.C. §§ 1461 and 1462. The indictment alleged that from April 27,
1998 to about July 9, 1998, the Ragsdales’ sold obscene materials on the internet. A jury trial
commenced on October 14, 2003. The district court appointed separate counsel to represent them.
At trial, the couple conceded that they sold the videos but they asserted that the tapes are not
obscene. After 5 hours of deliberation, the jury found them both guilty of all charges. The district
court sentenced Garry Ragsdale to 33 months’ imprisonment, three years’ supervised release and a
$300 special assessment. The district court sentenced Tamara Ragsdale to 30 months’ imprisonment,
three years’ supervised release, and a $300 special assessment.
4
The Ragsdales now appeal their convictions and sentences. They collectively put forth three
points of error: (1) the district court erred in denying their separate motions for judgment of
acquittal; (2) the district court erred in refusing to grant a downward departure for each of the
defendants for acceptance of responsibility; and (3) the district court erred in raising the defendants’
offense level nine levels based on facts that were not proven to the jury beyond a reasonable doubt,
in violation of United States v. Booker, 125 S. Ct. 738 (2005). The Ragsdales also challenge the
constitutionality of 18 U.S.C. § 1461 on various grounds as well as the constitutionality of the
judicially created test for obscenity.
In addition, Garry, alone, raises eight separate issues on appeal, specifically, whether the
district court erred in (1) admitting foreign language tapes without requiring the government to
translate them; (2) excluding defense evidence of comparable materials; (3) excluding the testimony
of Andrew Chatham, a Dallas area attorney; (4) excluding evidence pertaining to an advice of counsel
defense; (5) instructing the jury that they could find that the videos appealed to the prurient interest
of a deviant group; (6) instructing the jury that the video must “meet” the three prong Miller test; (7)
refusing to instruct the jurors that they may find that community standards do not exi st; and (8)
sentencing him pursuant to the Federal Sentencing Guidelines instead of under the Texas sentencing
scheme for violations of state obscenity law.
DISCUSSION
I. Judgment of Acquittal
The denial of a motion for judgment of acquittal is reviewed de novo. United States v. Floyd,
343 F.3d 363, 370 (5th Cir. 2003). “‘We will affirm the jury’s verdict if a reasonable trier of fact
could conclude from the evidence that the elements of the offense were established beyond a
5
reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all
reasonable inferences from the evidence to support the verdict. Our review of the sufficiency of the
evidence does not include a review of the weight of the evidence or of the credibility of the
witnesses.’” Id. (citation omitted).
Garry and Tamara were convicted of conspiracy in violation of 18 U.S.C. § 371 and mailing
obscene materials and aiding and abetting in contravention of 18 U.S.C. §§ 1461 and 1462. Section
1461 prohibits knowingly using the mail to send any “obscene, lewd, lascivious, indecent, filthy or
vile article, matter, thing, device, or substance.” Section 1462 prohibits the knowing use of “any
express company or other common carrier or interactive computer service . . . for the carriage in
interstate or foreign commerce” of “any obscene, lewd, lascivious, or filthy book, pamphlet, picture,
[or] motion-picture film[.]” In Roth v. United States, 354 U.S. 476 (1957), the Supreme Court read
the terms “obscene, lewd, lascivious, or filthy” used in §§ 1461 and 1462, to refer to the general
prohibition of “obscene” materials.
To determine whether a work is obscene, the prosecution must establish that (a) “‘the average
person, applying contemporary community standards’ would find that the work, taken as a whole,
appeals to the prurient interest,’” (b) “‘the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law,’” and (c) “‘the work, taken as a whole,
lacks serio us literary, artistic, political, or scientific value.’” Miller v. California, 413 U.S. 15, 24
(1973) (internal citations omitted). This third-prong analysis has become known as the Miller test.
The prosecution has the burden of proving each element of the Miller test. Pope v. Illinois, 481 U.S.
497, 507-08 (1987).
6
The Ragsdales argued in their motions for judgment of acquittal that the prosecution did not
meet its burden of proof of establishing beyond a reasonable doubt that the materials in question are
obscene. Because t he prosecution did not establish this essential element of their offenses, the
Ragsdales charged that their motions for judgment of acquittal should have been granted. For the
reasons that follow, we disagree. Viewing the evidence in the light most favorable to the verdict, a
reasonable trier of fact could conclude that the evidence was sufficient to prove beyond a reasonable
doubt that the materials were obscene, and therefore, that each element of the offenses charged were
established. Accordingly, the district court properly denied Garry and Tamara Ragsdale’s respective
motions for judgment of acquittal.
A. Tamara Ragsdale’s Judgment of Acquittal
Tamara Ragsdale contends that the district court erred in dismissing her motion for judgment
of acquittal because the prosecution did not present sufficient evidence to prove that the materials
in question were obscene. She asserts that there was insufficient evidence to sustain her conviction
because the prosecution relied solely on the materials themselves to demonstrate obscenity and did
not dispute the testimony of defense expert Dr. Shari Julian, a well-credentialed sex therapist.
Dr. Julian testified that the materials in question did not offend community standards. She
based her conclusion on the survey of adult materials she found available in the local community. Dr.
Julian stated that she visited several adult bookstores in Dallas. At these bookstores, she asserted that
she found videos that contained similar activities to those depicted in the videos in question, namely,
bondage, fisting, urolagnia (the use of urine in sexual activities), whipping, candles, and simulated
rape and abduction. In addition, she opined that based on her prior experience viewing both
simulated and actual rape videos, she found the videos in question to be scenes of simulated rapes
7
rather than non-consensual sex videos.3 On direct examination, Dr. Julian analyzed the videos frame
by frame to illustrate the aspects of the videos that she contends demonstrate that they are scenes of
consensual simulated rapes. Finally, she asserted that “Brutally Raped 5" and "Real Rape 1" have
scientific value because similar tapes are used in the treatment of sex offenders and in training police
officers.
The Supreme Court has accepted that the prosecution may prove the elements of the Miller
test without reso rting to any evidence or testimony other than the introduction of the allegedly
offending materials themselves. Paris Adult Theatre v. Slaton, 413 U.S. 49, 56 (1973); see also
Hamling v. United States, 418 U.S. 87, 100 (1974); Thevis, 484 F.3d at 1153 (“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”). The Supreme Court postulated that additional evidence beyond the
allegedly obscene materials is unnecessary to prove obscenity because “hard-core pornography . . .
can and does speak for itself.” Paris Adult Theatre, 413 U.S. at 56 n.6. The Court stated that “[t]his
is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually
admitted for the purpose of explaining to lay jurors what they otherwise could not understand. No
such assistance is needed by jurors in obscenity cases.” Id.; Kaplan v. California, 413 U.S. 115, 121
(1973).
Although the Supreme Court opined that expert testimony is unnecessary in obscenity cases,
the parties may nonetheless introduce such testimony. Kaplan, 413 U.S. at 121. However, even if
3
We emphasize that the question of whether the videos at issue are of consensual or non-
consensual sexual activities is irrelevant to the question of whether the materials are obscene.
Whether the materials involve consenting adults is inconsequential to the Miller test and a finding of
obscenity vel non.
8
one or both of the parties does introduce expert testimony, the jury is not bound to accept the opinion
of any expert in weighing the evidence. Hamling, 418 U.S. at 100. The jury is free to reject the
expert testimony when deliberating on obscenity vel non. As long as there is evidence to support a
finding that the materials are obscene, i.e. the introduction of the materials themselves, the jury can
disregard expert testimony that argues otherwise. Id.; see also United States v. Various Articles of
Obscene Merchandise, No. 2102, 709 F.2d 132, 136 (2d Cir. 1983) (“the parties may introduce
relevant evidence of the prevailing community standards; even if such evidence is adduced, however,
the trier of fact may nonetheless disregard it and rely exclusively on his own knowledge of views of
the average perso n in the community in making the required determination.”). The defense did
proffer evidence, in the form of the testimony of Dr. Julian, to bolster its claim that the videos were
not obscene. The prosecution did not rebut Dr. Julian’s claims with the testimony of a similarly
trained expert of its own. However, the prosecution was not required to introduce an expert to
counter Dr. Julian’s testimony nor was the jury required to credit Dr. Julian’s testimony in their
deliberations. The jury was free to reject the expert testimony of Dr. Julian as they wished. Even
though the prosecution did no t introduce evidence to rebut the testimony of Dr. Julian, Supreme
Court precedent clearly establishes that the videotapes themselves are sufficient evidence to support
the jury’s finding o f obscenity. The jury was well within its prerogative to reject the notions
espoused by Dr. Julian. Tamara’s argument to the contrary is unavailing.
On appeal, Tamara also seems to question the jury’s qualifications to judge community
standards. She argues that “for all that we kno w, t he jurors in this case were a conservative,
homogenized bunch who only associated with like-minded persons and who never encountered
‘different’ people who do not share their attitudes.” She contends that there is no evidence that the
9
jurors applied contemporary community standards, rather the verdict only evidenced that the
videotapes violated the personal moral standards of “cursorily screened, unelected members of the
community.” She also points to the testimony of potential, though ultimately rejected, jurors during
voir dire to emphasize the difficulty the members of the venire had with the definition of community
standards.
We are not persuaded by Tamara’s argument that the jury was not qualified to determine the
local community standards. The Supreme Court has repeatedly stated its confidence in a juror’s
ability “to draw on his own knowledge of the views of the average person in the community or
vicinage from which he comes for making the required determination, just as he is entitled to draw
on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law.” Hamling,
418 U.S. at 104-05 (citations omitted). There has never been a requirement that the prosecution must
prove that a jury is qualified to determine local community standards or that the jury ultimately did
apply local community standards in rendering their verdict. We therefore reject Tamara’s argument.
B. Garry Ragsdale’s Judgment of Acquittal
Garry argues that the prosecution failed to meet its burden of persuasion because they did not
identify the deviant group that the videotapes would appeal to, and did not establish that the
videotapes appealed to that deviant group’s prurient interests. Garry cites no Fifth Circuit cases to
support his argument, but instead relies on two Second Circuit cases for the proposition that “where
the prurient interest is of a ‘deviant segment of society,’ the government must not only identify the
deviant group, but must also establish that the material in question appeals to that group’s prurient
interest. Both facts are generally established through the use of expert testimony.” United States v.
10
Petrov, 747 F.2d 824, 830 (2d Cir. 1984) (quoting United States v. Klaw, 350 F.2d 155, 166-67 (2d
Cir. 1965)).
In Klaw, the Second Circuit held that the photographs in question, which depicted scenes of
bondage and torture, appealed to the prurient interests of such a small deviant segment of society
when the case went before a jury in the early 1960s, that proof was needed to demonstrate such
appeal to the “average man.” 350 F.2d at 166. Garry notes that like Klaw, the videos here involve
bondage and torture, and therefore, he argues that the prosecution was required to identify what
deviant group, if any, the materials appealed.4
In Petrov, the two concurring judges on the three judge panel agreed that Klaw should be
understood to require expert testimony only when the material portrays conduct not generally
understood to be sexual. Petrov, 747 F.2d at 836. The Petrov court found that it was sufficient that
on cross-examination the defense's expert conceded that photographs depicting genital mutilation and
torture are recognized as a psycho-sexual dysfunction and would be sexually arousing for some small
minority of individuals. Id. at 830-31.
The Supreme Court has generally recognized that “[obscenity] is not a subject that lends itself
to the traditional use of expert testimony,” Paris Adult Theatre, 413 U.S. at 56 n.6. There is an
exception to this general rule. The Court reserved judgment on the issue of whether expert testimony
is required “where contested materials are directed at such a bizarre deviant group that the experience
of the trier of fact would be plainly inadequate to judge whether the material appeals to the prurient
interest.” Id. (citing United States v. Klaw, 350 F.2d 155, 167-68 (2d Cir. 1965)); accord Pinkus v.
4
Garry asserts that we are required to follow Klaw, however, we note that Klaw is not
binding authority.
11
United States, 436 U.S. 293, 303 (1978). The Supreme Court suggested that expert testimony may
be necessary only where the materials are so abnormal they may not be recognized as lascivious or
erot ic to the average juror. Here, the materials at issue are not so far removed from the realm of
recognizable sexual conduct that the jurors would be incapable of assessing the prurient appeal of the
materials. Cf. United States v. Thomas, 613 F.2d 787 (10th Cir. 1980). “Brutally Raped 5” and
“Real Rape 1” contain repeated and prolonged sexual acts of intercourse and sodomy in addition to
the violence and bondage depicted. Both videos are exceedingly graphic and appear to purposely
prolong certain depictions in order to appeal to prurient interests. The calculated camera angles used
in the filming of both videos make it virtually implausible to accept Garry’s argument that the jurors
were unable to understand the prurient appeal these videos may have. Moreover, if a picture is worth
a thousand words, both videos spoke volumes to these jurors. Following our complete review of the
record, particularly the tapes, we have no trouble concluding that the jurors were fully capable of
following the district court’s instructions and applying their common sense perspective to all of the
evidence presented at trial.
However, even if the materials are so bizarre as to be beyond the experience of the typical
juror, the testimony of Dr. Julian would suffice to establish that the materials appeal to the prurient
interests of some segment of the population. Dr. Julian testified on direct examination that the
materials would arouse certain individuals. This was further enforced by Dr. Julian’s testimony as
to the popularity in the adult film/book industry of the activities depicted in the videotapes. Thus,
the jury could find that the videos appealed to the prurient interests of a deviant group and the
judgment of acquittal was properly denied.
II. Evidentiary Challenges
12
We next address the various arguments put forth by Garry challenging the district court's
evidentiary rulings. The district court’s rulings on exclusion of evidence are reviewed for abuse of
discretion. United States v. Sharpe, 193 F.3d 852, 867 (5th Cir. 1999). “A trial court abuses its
discretion when its ruling is based on an erroneous view of the law or a clearly erroneous assessment
of the evidence.” Bocanegra v. Vicmar Servs., Inc., 320 F.3d 581, 584 (5th Cir. 2003). If this court
finds an abuse of discretion in admitting or excluding evidence, this court will “review the error under
the harmless error doctrine, affirming the judgment, unless the ruling affected substantial rights of the
complaining party.” Id.
A. Translation of the Tapes
The allegedly obscene videotapes are in Dutch and Japanese. Relying on the Northern District
of Illinois’ ruling in United States v. Miscellaneous Pornographic Magazines, 526 F. Supp. 460 ( N.D.
Ill. 1981), Garry argues that the prosecution had an obligation to translate the tapes in order to
establish that they were obscene. Moreover, Garry argues that because the district court held that
the burden was on the defense to translate the videos, it impermissibly shifted the burden of proof
under the Miller test to the defense.
In Pornographic Magazines, the Dutch text in the magazines covered 90% of the total page
area whereas the allegedly obscene photographs covered approximately 5% of the page area. The
Pornographic Magazines court noted that the obscenity standard requires that “the dominant theme
of the material taken as a whole appeals to the prurient interest.” Roth v. United States, 354 U.S.
476, 489 (1957); see also Kois v. Wisconsin, 408 U.S. 229 (1972) (nude pict ures published in a
newspaper were not obscene because the pictures were relevant to the theme of the article that it
accompanied); United States v. Thevis, 484 F.2d 1149, 1155-57 (5th Cir. 1973) (holding that six of
13
the twelve magazines at issue were not totally without social merit because of the significant portions
of literary matter that accomplished the pictures, which alone would be considered obscene). The
Miller test retained the “taken as a whole” language in the third prong of the test, when the jury is
asked to determine whether the work “lacks serious literary, artistic, political, or scientific value.”
413 U.S. at 25. Based on the “taken as a whole” language, the Northern District of Illinois held that
“[w]here arguably obscene pictures might ‘rationally relate’ to the protected text, obscenity vel non
can be determined only in terms of the work as a whole. Illustrations obscene if viewed in isolation
may not be obscene in the context of an accompanying text.” Pornographic Magazines, 526 F. Supp.
at 466. Thus, the Northern District of Illinois held that the foreign text must be translated prior to
an obscenity finding in order to determine whether the pictures in context with the text are obscene,
with the caveat that materials are only required to be translated “where [the] text is of a sufficient
magnitude that it might reasonably ‘save’ otherwise confiscable illustration.” Id.
After a careful view of the video tapes at issue here and the applicable law, we find that the
district court did not abuse its discretion in refusing to require the prosecution to translate the videos.
The court's thoughtful reasoning in Pornographic Magazines is persuasive and in accordance with
Supreme Court authority. However, even were we to adopt the Northern District of Illinois' ruling,
we would still find that the district court did not abuse his discretion in not requiring the prosecution
to translate the foreign language videotapes here. Admittedly a translation of the videotapes would
have assisted the trier of fact in conclusively determining whether the activities portrayed therein were
consensual or non-consensual. However, whether the video tapes qualify as obscenity vel non does
not turn on whether the activities portrayed in the tapes are consensual or non-consensual. A
translation of the dialogue in the videos would only be relevant under Pornographic Magazines if the
14
dialogue is sufficient in magnitude such that it might “save” otherwise obscene images because
consideration of the dialogue might establish that the work taken as a whole has some serious literary,
artistic, political, or scientific value. Unlike the facts in Pornographic Magazines, the “dialogue,” and
we use that term loosely, here was not so significant in magnitude that it was an abuse of discretion
for the district court to conclude that it need not be translated for the jury to assess the
constitutionality of the materials.
B. Comparable Materials
Garry attempted to introduce allegedly comparable visual materials purchased from a local
adult video store chain and mainstream bookstores, i n order to prove that the video tapes he sold
were acceptable in the local community. Dr. Julian was also prepared to introduce statistics from
adult dating sites regarding the percentage of individuals from the Dallas area actively seeking to
participate in the type of activities featured in the videotapes. While the district court allowed the
defense to introduce two videotapes that they purported were comparable—“Knife Point” and “Dark
Room”— the other defense evidence of allegedly comparable materials was excluded based on a
finding from the district court that either the materials were not comparable enough to the allegedly
obscene tapes at issue or the defense did not show the comparable materials were accepted within
the community. We hold that the exclusion of the evidence proffered by the defense was not an abuse
of discretion.
The Supreme Court, in rejecting an argument that a trial court erred in excluding allegedly
comparable materials, averred that “the availability of similar materials on the newsstands of the
community does not automatically make them admissible as tending to prove the non-obscenity of
the materials which the defendant is charged with circulating . . . the mere fact that materials similar
15
to the brochure at issue here ‘are for sale and purchased at book stores around the country does not
make them witnesses of virtue.’” Hamling, 418 U.S. at 125-26. The “mere availability of similar
material by itself means nothing more than that other persons are engaged in similar activities.” Id.
(quoting United States v. Manarite, 448 F.2d 583 (2d Cir. 1971)); see also United States v. Various
Articles of Merch., Seizure No. 170, 750 F.2d 596 (7th Cir. 1984). The Supreme Court has stressed
that comparable materials that are offered for the sole purpose of demonstrating that materials similar
to the allegedly obscene items are sold in the surrounding community, are not necessarily relevant to
the subject of the litigation on that basis alone. It was thus well within the range of allotted discretion
afforded to the district court to exclude the evidence proffered by the defense. See FED. R. OF EVID.
403 (“evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.”). Moreover, Garry’s argument that
comparable materials were necessary to guide the jury in determining the local contemporary
community standards is unavailing because a jury can sufficiently rely on their own experiences and
judgment to determine community standards. See e.g., Hamling, 418 U.S. at 104-06.
C. Testimony of Andrew Chatham
Garry challenges the district court’s refusal to allow Andrew Chatham, a Dallas area attorney,
to testify. Garry alleges Chatham has represented individuals charged in state obscenity cases and,
as part of his practice, has frequently discussed community standards with potential jurors. Garry
proffered Chatham for the purpose of testifying about two jury verdicts that found non obscene
materials the defense alleged were comparable materials to the videos at issue here. Chatham would
have also allegedly testified that based on his discussions with members of the community,
16
pornographic movies depicting consenting adults falls within contemporary community standards. The
district court excluded Chatham’s testimony regarding other jury verdicts because the court found
it to be irrelevant. In addition, the district court held that presenting Chatham for the purpose of
stating what others have told him in regard to their views of community standards is hearsay. The
district court held that Garry attempted to offer Chatham as an expert on the issue of contemporary
standards, but failed to demonstrate that Chatham is a “witness qualified as an expert by knowledge,
skill, experience, training, or education.”
On appeal, Garry has abandoned the argument that Chatham should have been allowed to
testify as to his expert opinion of community standards and only challenges the exclusion of
Chatham's testimony regarding the other jury verdicts. Despite Garry's protest to the contrary, other
jury verdicts are not relevant evidence that a defendant is entitled to present. “[J]udicial
determinations that particular matters are not obscene does not necessarily make them relevant to the
determination of the obscenity of other materials, much less mandate their admission into evidence.”
Hamling, 418 U.S. at 126-27; see also id. at 101 (“[I]t is common experience that different juries may
reach different results under any criminal statute. That is one of the consequences we accept under
our jury system. . . . If consistency in jury verdicts as to the obscenity vel non of identical materials
is not constitutionally required, Miller v. California, supra, the same is true a fortiori of verdicts as
to separate materials, regardless of their similarities.”) (internal citations omitted). Evidence of jury
verdicts that declared comparable materials non-obscene does not assist the jury in determining
whether the materials in question are obscene or non-obscene. See FED. R. OF EVID 401 (“‘Relevant
evidence’ means evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
17
without the evidence.”). Thus, the district court did not abuse its discretion in refusing to allow
Chatham to testify as to allegedly comparable materials that have been found non-obscene by other
juries.
D. Advice of Counsel Defense
Garry Ragsdale entered into the internet pornography business under the tutelage of Thomas
Gartman, who invited Garry to be his business partner and gave Garry the obscene tapes.5 Garry
argues that Gartman told him that Lawrence Brown, a former federal prosecutor, assured Gartman
that the tapes were highly unlikely to be found obscene by a court and would be protected by the First
Amendment. Bro wn contends he never told Gartman that it was unlikely that the tapes would be
found obscene. The district court refused to allow Garry to present this evidence as part of an advice
of counsel defense because the legal advice was given to someone other than Garry and was thereby
hearsay. Garry asserts that Brown's alleged statements are not hearsay because the testimony is being
offered to show the state of mind of Garry, not for proof that Gartman actually spoke with Brown.
Garry co ntends that a corporation can act through its officers and employees for the purpose of
obtaining legal advice.
We cannot find that the district court abused its discretion in excluding evidence relating to
an advice of counsel defense. The advice of counsel defense is only applicable where it may negate
willful violation of the law. See e.g., United States v. Mathes, 151 F.3d 251, 255 (5th Cir. 1998)
(“Reliance on counsel's advice excuses a criminal act only to the extent it negates willfulness”).
Section 1461 does not require that the defendant have knowledge of the legal status of the materials,
5
Gartman fled the United States for Canada when the FBI first raided the Ragsdales’ home.
Although Gartman was later indicted with other co-conspirators, he still remains at large in Canada
and he is still selling the videotapes found obscene here on the internet.
18
defendant need only know the character and nature of the materials. Hamling, 418 U.S. at 120-24.
“The inquiry under the statute is whether the [materials] charged to have been obscene, lewd, and
lascivious was in fact of that character, and if it was of that character and was deposited in the mail
by one who knew or had notice at the time of its cont ents, the offence is complete, although the
defendant himself did not regard the [materials] as one that the statute forbade to be carried in the
mails.” Id. at 120 (quoting United States v. Rosen, 161 U.S. 41, 42 (1896)). “The statutes here in
question do not condition guilt upon knowledge that a federal law has been violated. It is sufficient
that the appellants intended to do all of the acts prohibited by the statue and proceeded to do them,”
United States v. Thaggard, 477 F.2d 626, 632 (5th Cir. 1973). In other words, it is sufficient that
the defendant mailed the materials, with the intent to mail them, and knew the content of the materials
without necessarily knowing that the materials would be considered obscene. See Thevis, 484 F.3d
at 1154. Because § 1461 does not require an intent to violate the law, Garry could not assert as a
defense that he relied on advice from counsel that the materials were not illegal. Testimony that
Garry's business partner allegedly consulted an attorney, or at least that Garry believed his business
partner consulted an attorney, is not relevant when it is entered for the sole purpose of supporting
an unassertable defense. Accordingly, it was not an abuse of discretion for the district court to
exclude the testimony.6
6
In rebuttal, Garry notes that conspiracy is a specific intent crime. Garry is correct that the
mens rea for conspiracy requires that the defendant willfully committed an act, or acts, forbidden by
the underlying statute. See 18 U.S.C. § 371. However, as discussed supra, the underlying statute,
§ 1461, does not require certain knowledge of the materials’ obscenity. Therefore, the mens rea for
conspiracy to violate § 1461 requires only an intent to commit the acts prohibited by the statute but
not an intent to traffic in materials known to be obscene. See United States v. Hamling, 481 F.2d 307
(9th Cir. 1973), aff'd, 418 U.S. 87 (1974). In order to convict defendants of conspiracy to violate
§ 1461, the prosecution need only prove beyond a reasonable doubt that the alleged conspirators
engaged in a scheme to knowingly use the mail to distribute materials that are obscene, regardless of
19
III. Jury Instructions
Garry Ragsdale also asserts several points of error regarding the jury instructions given by the
district court, specifically, he contends the district court erred in: instructing the jury that they could
find that the videos appealed to the prurient interest of a deviant group; instructing the jury that the
video must “meet” the three prong Miller test rather than stating that they must find beyond a
reasonable doubt that the videos are obscene; and refusing to instruct the jury that they were not
required to determine that community standards exist (and concomitantly if they could not determine
whether community standards existed, instructing them they must acquit).
The district court’s decision to give or exclude a jury instruction is reviewed for abuse of
discretion. Dahlen v. Gulf Crews, Inc., 281 F.3d 487, 494 (5th Cir. 2002); United States v.
Morales-Palacios, 369 F.3d 442 (5th Cir. 2004). We have carefully reviewed the parties’ arguments,
the record and the district court’s oral renderings, and we find that the district court did not abuse
his discretion in the instructions that were given to the jury nor in refusing to give the instruction
asserted by Garry.
IV. Independent constitutional judgment
Despite our conclusion that: there was sufficient evidence to support the jury’s finding that
the tapes are obscene, t he jury was properly instructed, and the district court did not abuse its
discretion in excluding certain evidence, we are still required to make an independent constitutional
whether the defendants knew that the materials are obscene. Thus, evidence that Garry or his
business partner received advice that the materials are not obscene is, again, irrelevant. Compare
United States v. Richards, 204 F.3d 177, 208 (5th Cir. 2000) overruled on other grounds by United
States v. Cotton, 122 S. Ct. 1781, 1785 (2002) (although conspiracy is a specific intent crime,
conspiracy to commit mail fraud does not require an intent to use the mail because mail fraud does
not require a specific intent to use the mail).
20
judgment as to the obscenity of the materials in question. Bose Corp. v. Consumers Union of U.S.,
Inc., 466 U.S. 485, 506-07 (1984) (rejecting the contention that a jury finding of obscenity vel non
is insulated from review so long as the jury was properly instructed and there is some evidence to
support its findings, and stating that appellate courts have the power to conduct an independent
review of constitutional claims). The Supreme Court has rejected the suggestion that whether a work
is obscene is a factual judgment and jury findings of obscenity are all but conclusive. Jacobellis v.
State of Ohio, 378 U.S. 184, 187-90 (1964). The Court held that “[s]ince it is only ‘obscenity’ that
is excluded from the constitutional protection [of the First Amendment], the question whether a
particular wo rk is obscene necessarily implicates an issue of constitutional law.” Id. The Court
stated that to allow jury verdict s to be all but conclusive in this area would be “an abnegation of
judicial supervision in this field [] inconsistent with our duty to uphold the constitutional guarantees.”
Id. As Justice Harlan aptly stated in Roth:
Every communication has an individuality and 'value' of its own. The suppression of
a particular writing or other tangible form of expression is, therefore, an individual
matter, and in the nature of things every such suppression raises an individual
constitutional problem, in which a reviewing court must determine for itself whether
the attacked expression is suppressable [sic] within constitutional standards. Since
those standards do not readily lend themselves to generalized definitions, the
constitutional problem in the last analysis becomes one of particularized judgments
which appellate courts must make for themselves. I do not think that reviewing
courts can escape this responsibility by saying that the trier of facts, be it a jury or a
judge, has labeled the questioned matter as 'obscene,' for, if 'obscenity' is to be
suppressed, the question whether a particular work is of that character involves not
really an issue of fact but a question of constitutional judgment of the most sensitive
and delicate kind.
Roth, 354 U.S. at 497 (1957) (Harlan, J., concurring in part and dissenting in part)
“[I]n ‘obscenity’ cases as in all others invo lving rights derived from the First Amendment
guarantees of free expression, the Court cannot avoid making an independent constitutional judgment
21
on the facts of the case as to whether the material involved is constitutionally protected.” Id.; Bose
Corp., 466 U.S. at 508 n.27, 509-10; Miller, 413 U.S. at 25 (stating that if the state statute that
regulates obscenity employs the wrong legal standard, First Amendment values are adequately
protected by the ultimate power of the appellate courts to make an independent constitutional
judgment as to obscenity when necessary); United States v. Thevis, 484 F.2d 1149, 1155 (5th Cir.
1973) (stating that the court is required to make an independent constitutional judgment of whether
the magazines at issue were obscene and reversing the defendant’s conviction on six counts because
the court found that some of the materials were not obscene); United States v. Gates, 481 F.2d 605
(5th Cir. 1973) (“[O]n review of First Amendment cases, the proper course for the appellate court
to take is: to make ‘an independent constitutional judgment as to the facts of the case as to whether
the material involved is constitutionally protected’”) (quoting Jacobellis, 378 U.S. at 190); Clicque
v. United States, 514 F.2d 923, 926 (5th Cir. 1975) (holding that the court had a constitutional duty
to make an independent judgment as to whether the letter at issue was obscene even though the
defendant plead guilty to violating § 1461); Penthouse Intern., Ltd. v. McAuliffe, 610 F.2d 1353 (5th
Cir. 1980).
The Supreme Court has explicitly stated that the power of appellate courts to make an
independent judgment in obscenity cases applies to the second and third prong of the Miller test.
Jenkins v. Georgia, 418 U.S. 153, 163-64 (1974) (Brennan, J., concurring). However, this courts
has held that the Supreme Court has implicitly delegated to appellate courts the power to conduct
an independent review of the first prong of the Miller test as well. Penthouse, 610 F.2d at 1363-64.
The first prong of the Miller test asks “whether ‘the average person, applying contemporary
community standards’ would find that the work, taken as a whole, appeals to the prurient interest.”
22
Miller, 413 U.S. at 24 (citation omitted). As previously stated, both videos include exceedingly
graphic depictions of a motley of different sexual acts. The camera angles and prolonged close up
shots we believe are obviously designed to appeal to the prurient interest. We have no doubt that the
average person would find that the videos appeal t o the prurient interest. The Government also
notes that the Ragsdales marketed these videos to appeal to the erotic interests of their customers,
and this pandering could further help establish that the average person would easily be able to find
that the videos appeal to prurient interests.
The second prong asks whether the “work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law.” Miller, 413 U.S. at 24 (emphasis
added). “Sexual conduct” is defined in the Texas statutes as “sexual contact, actual or simulated
sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse,
or lewd exhibition of the genitals, the anus, or any portion of the female breast below the top of the
areola.” TEX. PENAL CODE ANN. § 43.25 (a)(2) (Vernon 2002). Arguably both videos depict
“deviate sexual intercourse” and “lewd exhibition of the genitals, the anus, or any portion of the
female breast below the top of the areola.” But we need not decide whether the various sexual acts
and sexual intercourse presented in the videos are “deviate” or whether the exhibition of the genitals,
anus and breast is lewd or not lewd. Both videos contain depictions of actual sexual intercourse and
sado-masochistic abuse, therefore, under the definition of sexual conduct provided for by the Texas
legislature both videos clearly depict “sexual conduct.” Nonetheless, the second prong of the Miller
test is only met when the sexual conduct depicted is also “patently offensive.” The sexual conduct
portrayed in the videos is not only exceedingly protracted but also intentionally designed to make the
viewer believe that the female part icipant is in a significant amount of pain, distress and
23
danger–whether the pain is simulated or actual is irrelevant. We conclude that the videotapes do
depict “patently offensive” sexual conduct. In coming to that conclusion we take into account not
only the inordinate length of the acts in the video and the portrayal of excessive torture and pain
during the commission of the acts that is intended to seem non-consensual, but also the calculated
camera angles and zoom shots employed to display the acts. Cf. Penthouse, 610 F.2d at 1364-66
(holding that based on the court’s independent judgment, “Penthouse” and “Oui” do contain patently
offensive sexual contact, reversing the district court).
Moreover, after reviewing the videotapes, we conclude that the third prong of the Miller test
is also satisfied, namely, that “the work[s], taken as a whole, lack serious literary, artistic, political,
or scientific value.” Miller, 413 U.S. at 24. We have considered the videotapes as a whole, and it
is our independent view that there is no literary, artistic, po litical, or scientific value to “Brutally
Raped 5,” and “Real Rape 1.” Cf. Id. at 1366-73 (holding that “Penthouse” and “Oui” taken as a
whole possess no literary, artistic, political, or scientific value– reversing the district court).
Therefore, we affirm the jury’s finding that the videotapes in question are obscene based on the
established guidelines for obscenity in the case law.
V. Sentencing
A. Acceptance of Responsibility
Garry and Tamara Ragsdale argue that the district court erred in not awarding them a
reduction at sentencing for acceptance of responsibility. The district court's determination as to
whether a defendant has accepted responsibility is afforded great deference on review. United States
v. Chapa-Garza, 62 F.3d 118, 120 (5th Cir. 1995) (citing United States v. Franks, 46 F.3d 402, 405
(5th Cir. 1995)); U.S.G.G. § 3E1.1 n.5. “The Fifth Circuit has applied various standards of review
24
for a district court's refusal to credit accept ance of responsibility including: ‘clearly erroneous,’
‘without foundation,’ and ‘great deference.’ There appears to be no practical difference between
these standards, however, t he standard is always ‘more deferential than a pure clearly erroneous
standard.’” Chapa-Garza, 62 F.3d at 120 (internal citations omitted). The defendant bears the burden
of proving entitlement to a decrease in offense level for acceptance of responsibility. United States
v. Tello, 9 F.3d 1119, 1124 (5th Cir. 1993).
“Normally, one who puts the government to its burden of proof at trial will not qualify” for
a reduction for acceptance of responsibility, United States v. Fells, 78 F.3d 168, 171 (5th Cir. 1996),
but “[a] defendant is not automatically precluded from receiving a reduction for acceptance of
responsibility if he exercises his right to trial.” United States v. Brace, 145 F.3d 247, 264 (5th Cir.
1998) (en banc).
This adjustment is not intended to apply to a defendant who puts the government to
its burden of proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse. Conviction by trial,
however, does not automatically preclude a defendant from consideration for such a
reduction. In rare situations a defendant may clearly demonstrate an acceptance of
responsibility for his criminal conduct even though he exercises his constitutional right
to a trial. This may occur, for example, where a defendant goes to trial to assert and
preserve issues that do not relate to factual guilt (e.g., to make a constitutional
challenge to a statute or a challenge to the applicability of a statute to his conduct).
In each such instance, however, a determination that a defendant has accepted
responsibility will be based primarily upon pre-trial statements and conduct.
U.S.S.G. § 3E1.1 n.2; see e.g., United States v. Washington, 340 F.3d 222 (5th Cir. 2003) (holding
that mere fact that defendant went to trial to argue in favor of a suppression motion does not preclude
acceptance of responsibility reduction because motion to suppress did not challenge factual guilt).
The Ragsdales argue that the district court erred in not awarding them a reduction at
sentencing for acceptance of responsibility because they fully cooperated with the pre-trial
25
investigation, and they voluntarily terminated their business. They also argue that they did not dispute
the facts of the charges against them, rather, they only disputed whether the videotapes were obscene,
which they contend is a legal question. Because they only disputed a legal issue, they contend that
they thereby fall within that rare category of circumstance where a defendant demonstrates
acceptance of responsibility even though they exercised their right to trial.
A defendant who exercises his right to trial in order to challenge his factual guilt will not
qualify for an acceptance of responsibility reduction. See U.S.S.G. § 3E1.1 n.2. The Supreme Court
has repeatedly stated that whether the allegedly obscene materials satisfy the three part Miller test is
an “issue[] of fact for the jury to determine applying contemporary community standards.” Pope, 481
U.S. at 500; accord Smith v. United States, 413 U.S. 291, 301 (1977). Tamara's brief even
recognizes that the application of the Miller test is a question of fact for the jury. (Br. of Appellant
at 23 n.12.) To argue the contrary, the Ragsdales rely on the Supreme Court's statement in Hamling
that “the definition of obscenity [] is not a question of fact, but one of law; the word ‘obscene,’ as
used in 18 U.S.C. § 1461, is not merely a generic or descriptive term, but a legal term of art.” 418
U.S. at 118. While the definition of obscenity is a legal conclusion, whether a work qualifies as
obscenity vel non as applied to the facts of a particular case is a question of fact. By going to trial
to dispute whether the materials satisfy the test under Miller for obscenity vel non, the Ragsdales
were challenging their factual guilt; thus, they do not qualify for a sentencing credit under the rare
circumstance where the defendant proceeds to trial but can still qualify for a § 3E1.1 reduction.7 Cf.
7
Even assuming arguendo that obscenity vel non was a legal question, Tamara Ragsdale did
challenge certain factual assertions put forth by the prosecution. For example, Tamara and her trial
counsel at times challenged the prosecution’s assertion that Tamara saw what was on the video tapes
or knew of their contents in what seemed to be an argument that Tamara lacked the requisite scienter
necessary to convict under § 1461. See Hamling, 418 U.S. at 120-124; Thevis, 484 F.3d at 1153 (in
26
Brace, 145 F.3d at 265 (although defendant admitted committing the criminal acts, his assertion of
entrapment was a denial of factual guilt, because it is a denial of the subjective predisposition and,
consequently, of the required element of mens rea; thus, he was not entitled to a 3E1.1 reduction).
B. Booker violation
Garry and Tamara Ragsdale argue that the district court impermissibly increased their offense
level by 9 levels based on the district court's findings of fact that were not proven to a jury beyond
a reasonable doubt. Specifically, they challenge the district court’s findings that the videos were
“distributed for pecuniary gain” and “the material portrayed sadistic or masochistic conduct or other
depictions of violence.”
The indictment charged the Ragsdales with conspiring with one another to knowingly use the
mail for the delivery of obscene video tapes. The indictment alleged that the conspiracy was
conducted as part of a business that duplicated and distributed obscene video tapes to paying
customers. In furtherance of the conspiracy, the indictment alleged that a customer would place an
order through a web site owned by Garry. The customer’s credit card payment was processed
through an account paid for by Tamara. The videos were then dubbed at the Ragsdales’ home and
shipped from a location in Dallas, Texas, using the United States mail. At trial, Tamara admitted that
she and her husband made approximately $20,000 during the roughly two months that they are
alleged to have offered the obscene videos for sale. It is clear from the indictment and the trial
transcripts that the fact that the videos were distributed for pecuniary gain was not a judicial finding
order to met its burden of proving the necessary scienter under § 1461, the prosecution has to
establish that the defendant knew the nature of the contents of the materials they put in interstate
commerce). Tamara and her trial counsel at times also attacked the prosecution’s assertions as to
the extent of her involvement in the business of ordering the videotapes. Consequently, Tamara
would still be precluded from receiving the § 3E1.1 reduction. See U.S.S.G. § 3E1.1, n.1.
27
made in contravention of the Sixth Amendment, but rather was a fact charged in the indictment,
admitted by the defendants and supported by the jury verdict. However, the finding that the materials
depicted sadistic or masochistic conduct, or scenes of violence, were findings of fact beyond those
permitted by the jury's verdict.
Neither defendant objected to the increase of their sentence based on the district court's
extra-judicial findings at sentencing. The ruling that the material involved sadomasochistic material
increased the offense level four levels. The resulting offense level of 19 for both defendants mandated
a guideline range of 30 to 37 months imprisonment. Based on the jury’s verdict, the Ragsdales
offense level should have been set at 15, which would have permitted the district court to sentence
them each to 18 to 24 months imprisonment, pursuant to the applicable guidelines’ range. The
district court increased the Ragsdales’ sentences beyond the maximum prescribed range authorized
by the jury’s verdict based on findings that were not proven to the jury beyond a reasonable doubt
nor admitted by the defendants. Thus, the district court violated the Ragsdales’ Sixth Amendment
rights. See Booker, 125 S. Ct. at 755-56; see also United States v. De Jesus Batres, 2005 WL
1155677 (5th Cir. May 17, 2005). The Ragsdales failed to object to the increase in their sentences
on this basis in the district court and therefore our review is only for plain error.
“An appellate court may not correct an error the defendant failed to raise in the district court
unless there is (1) error, (2) t hat is plain, and (3) that affects substantial rights.” United States v.
Mares, 402 F.3d 511, 520 (5th Cir. 2005) (citation omitted). “If all three conditions are met an
appellate court may then exercise its discret ion to notice a forfeited error but only if (4) the error
seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (citation and
quotations omitted). Under Mares, a Booker error of this type satisfies the first two prongs of the
28
plain error analysis. Id. at 520-21. Thus, the material question is whether the error affected the
Ragsdales’ substantial rights.
The defendant has the burden to show that the error affected his substantial rights. Id. at 521.
The Ragsdales must demonstrate that there is a probability that the error affected the outcome of the
district court proceedings, “a probability ‘sufficient to undermine confidence in the outcome.’” Id.
(citation omitted). They have not met their burden if it is “equally plausible that the error worked in
favor of the defense,” or “if the effect of the error is uncertain so that we do not know whi ch, if
either, side it helped[.]” Id. (citation and quotations omitted).
After carefully reviewing the parties’ arguments and the record in this case, we find that the
Ragsdales cannot establish that the outcome of the district court proceedings would have been any
different absent the Sixth Amendment error, i.e., under an advisory sentencing system.8 Because the
Ragsdales have failed to meet their burden of persuasion, we decline to find that the Sixth
Amendment violation at trial constituted plain error.
C. Federal Sentencing Guidelines
Garry also objects to the application of the Federal Sentencing Guidelines to his case on the
grounds that the Miller test is based on local standards, and therefore, his sentencing should be based
on local standards. He contends that the local community, through the Texas legislature, has
determined that obscenity should be treated as a Class A misdemeanor punishable by up to one year
8
We note that as to Tamara Ragsdale, the district court had the discretion to depart
downward from the Guidelines range based on several grounds set forth by Tamara. Although the
district court acknowledged that he had the discretion to depart downward from the Guidelines range,
he declined to do so.
29
in the county jail. He argues that any sentence imposed upon him that exceeds one year violates his
due process rights.
First, Garry's argument ignores the fact that TEXAS CODE CRIM. PRO § 43.23, which governs
an obscenity violation in Texas, and 18 U.S.C. § 1461 are not identical. The test for a violation of
obscenity law in Texas does closely parallel the Miller test, see Castillo v. State, 79 S.W.3d 817 (Tex.
App.-Dallas 2002), but importantly, the Texas obscenity statute simply prohibits the promotion of
obscene materials whereas § 1461 requires the additional element of the use of the mail. The
Supreme Court in Smith recognized that “[t]he regulation of the mails is a matter of particular federal
concern, and the nationwide character of the postal system argues in favor of a nationally uniform
construction of § 1461. The Constitution itself recognizes this fact, in the specific grant to Congress
of power over the postal system. Art. I, s 8, cl. 7.” Smith, 431 U.S. at 304 n.10. To the extent we
may accept Garry's premise that the local community has spoken through the Texas legislature as to
how they think a Texas obscenity violation should be punished, that still does not support his
argument that the Texas statute should govern how he should be sentenced because the Texas statute
is not parallel to his offense.
Secondly, Garry's argument must fail because the Supreme Court has considered and rejected
an averment analogous to Garry's. In Smith, the Supreme Court rejected the argument that the Iowa
state obscenity statutes had any effect on the prosecution of § 1461. 431 U.S. at 303. The defendant
in Smith argued that state laws circumscribed the definition of community standards that the jury
could apply when deliberating as to obscenity vel non. Id. The Smith Court first noted that the state
statute did not conclusively speak to the attitudes of the local community as to their views on
obscenity. Id. at 307. But more importantly, the Smith Court held that the state statute cannot have
30
conclusive effect on federal law; instead prosecution under § 1461 is decidedly a federal question.
Id. at 304. “The language of § 1461 gives no indication that Congress intended to adopt state laws
relating to distribution of obscene material for purposes of the federal statute, nor does its history.”
Id.
VI. Constitutionality of § 1461 and the Miller test
Finally, the Ragsdales assert several constitutional arguments challenging the validity of both
§ 1461 and the Miller test for obscenity vel non. First, they argue that § 1461 violates the First
Amendment because obscenity should be protected under the First Amendment. Second, they argue
that § 1461 contravenes the First Amendment because it violates the right to privacy. Third, they
submit that § 1461 is unconstitutionally vague and overbroad. Fourth, they contend that § 1461
offends due process of law because different juries may view identical materials and render different
verdicts. Finally, they argue that the Miller test violates due process because it requires unelected
jurors t o determine what is obscene instead of the government defining it first. However, t e
h
Ragsdales acknowledge that their arguments are foreclosed by Supreme Court precedent. See
generally Roth v. United States, 354 U.S. 476 (1957); Miller v. California, 413 U.S. 15 (1973); Paris
Adult Theatre v. Slaton, 413 U.S. 49 (1973); Hamling v. United States, 418 U.S. 87 (1974); Smith
v. United States, 413 U.S. 291 (1977). They assert their constitutional arguments for the purpose
of preserving them for Supreme Court review. Based on valid Supreme Court authority, we uphold
the validity of § 1461 and the Miller test, and we reject the Ragdales’ criticism of their conviction on
this basis.9
9
After all the briefing was filed in this appeal, Garry Ragsdale submitted a motion for leave
to file a supplemental brief. It was not until that supplemental brief that Garry asserted an additional
constitutional argument charging that § 1461 violates the substantive due process rights of individuals
31
CONCLUSION
For the foregoing reasons, we AFFIRM Garry and Tamara Ragsdales’ respective convictions
and sentences.
AFFIRMED.
who have a right to possess obscene materials in their home, a liberty interest he contends was
established in Stanley v. Georgia, 394 U.S. 557 (1969). But see United States v. 12 200-Foot Reels
of Super 8mm. Film, 413 U.S. 123, 126-30 (1973) (holding that Stanley stands only for the
proposition that individuals have the right to the privacies of home, and rejecting the argument that
Stanley established a right to acquire or possess obscene materials). Garry has seized upon the
musing of the dissenters in Lawrence v. Texas, 539 U.S. 558 (2003), who lamented that obscenity
laws cannot survive after Lawrence because the Government no longer has a rational basis to
abrogate this constitutional right in the face of the Lawrence majority’s disavowment of morality as
a valid governmental interest. His arguments are made all the more attractive by the Western District
of Pennsylvania recent acceptance of similar averments in United States v. Extreme Assocs, 352
F.Supp.2d 578 (W.D. Pa. 2005). Garry asks us to find that the Lawrence Court implicitly overruled
the numerous cases in which the Court had upheld the validity of § 1461. We need not reach this
issue. We deem abandoned those issues not raised in an appellant’s initial brief and we will not
consider those issues not raised in the trial court. St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d
425, 445 (5th Cir. 2000). Garry’s substantive due process argument was neither raised in the trial
court nor raised in his initial brief. It was therefore waived.
32