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United States of America v. Frank Russell Mccoy

March 29, 2013

UNITED STATES OF AMERICA, PLAINTIFF,
v.
FRANK RUSSELL MCCOY, DEFENDANT.



The opinion of the court was delivered by: The Honorable W. Louis Sands, United States District Court

ORDER

I.INTRODUCTION

At the close of the Government's evidence, the Court heard argument on Defendant's Federal Rule of Criminal Procedure 29 Oral Motion for Judgment of Acquittal (hereinafter "Motion") during Defendant's criminal bench trial for one count of Transportation of Obscene Matters in violation of 18 U.S.C. §§ 1462 and 2. "After the government closes its evidence . . . , the court on the defendant's motion [for judgment of acquittal] must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). Upon passing upon a motion for judgment of acquittal, the trial judge, therefore, must grant the motion "[i]f he concludes . . . there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt," or he must deny it "[i]f he concludes that either of two results, a reasonable doubt or no reasonable doubt, is fairly possible." United States v. Middleton, No. CRIM.A. CR205-025, 2006 WL 156872, at *1 (S.D. Ga. Jan. 19, 2006) (citations omitted). The judge must make this determination viewing the presented evidence in a light most favorable to the Government. United States v. Williams, 260 F. Supp. 2d 1368, 1375 (S.D. Ga. 2003).

In the instant Rule 29 Motion, Defendant seeks acquittal on the only count of the indictment on the basis that the Government failed to carry its burden to show that the materials in question are obscene under Miller v. California, 413 U.S. 15 (1973). Specifically, Defendant alleges that the Government failed to meet its burden under the third prong of Miller, which requires that the Government prove that the materials lack serious literary, artistic, social or political value.

According to Defendant, Miller requires a finding that the work, when taken as a whole, lacks serious literary, artistic, political or scientific value. Focusing on the cornerstone of the American Justice System-that a defendant is presumed innocent until proven guilty- Defendant essentially argues that his stories should be considered prima facie artistic unless the Government can provide evidence to rebut this prima facie artistic character. In support of this argument, Defendant relies heavily on Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992) (per curiam). For the following reasons, the Court finds that the Eleventh Circuit's per curiam opinion in Navarro does not stand for the proposition that the Government has not met its burden in this case.

II.DISCUSSION

A.Luke Records, Inc. v. Navarro

In Navarro, the Eleventh Circuit was confronted with the question of whether a record entitled "As Nasty As They Wanna Be" was obscene by the standards set forth in Miller. The record company and musical group that produced recording Nasty sought declaratory and injunctive relief after a sheriff in Florida County obtained an ex parte order declaring the record to be obscene. In support of his position, the sheriff introduced only the tape itself. On the contrary, the defendants introduced expert testimony regarding the serious musical value of the record. After reviewing the evidence, the judge concluded that, when considered on the whole, the musical devices utilized in Nasty "do not lift Nasty to the level of a serious artistic work. Once the riffs are removed, all that remains is the ...


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