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United States of America v. Frank Russell Mccoy

March 29, 2013


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



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.


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 rhythm and explicit sexual lyrics which are utterly without any redeeming social value." Skywalker Records, Inc. v. Navarro, 739 F. Supp. 578, 596 (S.D. Fla. 1990). Thus, the judge found Nasty to be obscene.

The Eleventh Circuit disagreed, seemingly not quite convinced that the record was sufficient to presume the district court judge's "artistic or literary knowledge or skills to satisfy the last prong of the Miller analysis." Navarro, 960 F.2d at 138. Since the sheriff submitted no evidence to contradict the testimony that the work had artistic value, the Court "reject[ed] the argument that simply by listening to this musical work, the judge could determine that it had no serious artistic value." Id. at 139. Therefore, because the sheriff had not met his burden of proof to show that the recording was obscene, and "[a] work cannot be obscene unless each element of the Miller test has been met," the Court reversed the district court's declaratory judgment. Id. at 138-39.

Understandably, Defendant reads Miller to say that the Government cannot do what it has done in this case-merely place the alleged obscene materials into evidence and argue that they speak for themselves. According to Defendant, "we must necessarily presume now that there is literary value unless and until the government puts forth some effort, some evidence, to show that this material lacks literary, artistic, political or scientific value." (Doc. 165-4 at 42-43.) Per Defendant, "[i]f we are going to abridge speech . . . we need some expert help, and that's what the government has failed to give [the Court] here." (Id. at 44.)

In opposition, the Government contends that "[t]here is sufficient and competent evidence in the record for a reasonable finder of fact . . . the Court itself, to determine whether the government has carried its burden beyond a reasonable doubt." (Id. at 46.) In addressing Navarro, the Government noted that an expert is not required in every obscenity prosecution, and "[a]lthough the Eleventh Circuit has suggested that an expert is certainly competent evidence, it is not a bright-line test that says the case must fail on Rule 29 if there is no expert." (Id. at 47-48.) Per the Government, having an expert say that Defendant's stories are obscene would be of little probative value. (Id. at 48.) In support of its position, the Government then alluded to United States v. Whorley, 550 F.3d 326 (4th Cir. 2008), cert. denied,130 S. Ct. 1052 (2010). In Whorley, the Fourth Circuit affirmed defendant's conviction of 74 counts of receiving child pornography. The Government argues that Whorley is persuasive precedent, as it relates to the current case, since, in Whorley, the Government did not proffer an expert.

Faced with the task of understanding the requirements of judges post-Navarro, the Court asked the Government how the Court is to go about making a determination of literary value when there is nothing in the record-e.g., an expert with knowledge, who could testify to indicators of valuable art, etc.-to give the Court some basis from which to make an observation. (Doc. 165-4 at 50-51.) The Government argued that the case law requires the Court to place itself in the shoes of the jury, and apply community standards. (Id. at 52.) This response was not particularly helpful since the value prong of Miller is not to be adjudged based on a community standard; rather it is to be assessed under an objectively reasonable person standard, as the Government is likely aware. Nevertheless, the Government raised a valid point-that there is no rule that states, if there is no expert, the Government loses under Rule 29. The Court agrees that this is the conclusion that can be drawn from Supreme Court precedent, and the one in which this Court is confronted with reconciling with Navarro.


In 1973, on the same day that it issued Miller, the Supreme Court issued Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 (1973), wherein which it held that a court does not err when it does not "require 'expert' affirmative evidence" that the materials in an obscenity prosecution are obscene "when the materials themselves [are] actually placed in evidence." According to the Court, "[i]n the cases in which this Court has decided obscenity questions since Roth, it has regarded the materials as sufficient in themselves for the determination question." Id. (quoting Ginzburg v. United States, 383 U.S. 463, 465 (1966) (quotations omitted)). Thus, the Supreme Court made clear ...

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