The opinion of the court was delivered by: The Honorable W. Louis Sands, United States District Court
The instant criminal action is before the Court for findings of fact and conclusions of law following a bench trial conducted Tuesday, January 12, 2010 and Wednesday, January 13, 2010, regarding the indictment.
On June 13, 2007, a one-count indictment was returned by the grand jury in the Albany Division of the Middle District of Georgia charging Defendant Frank Russell McCoy with a single violation of 18 U.S.C. §§ 2 and 1462. (Doc. 1.)
The Grand Jury charged Defendant Frank Russell McCoy with one count of Transportation of Obscene Matters in violation of 18 U.S.C. § 1462. In relevant part, 18 U.S.C. § 1462 provides that: "Whoever . knowingly uses any . interactive computer service . for carriage in interstate or foreign commerce-(a) any obscene, lewd, lascivious, or filthy . writing . or other matter of indecent character; .-Shall be fined under this title or imprisoned .." 18 U.S.C. § 1462. The Indictment alleges that Defendant "did knowingly use an interactive computer service for carriage in interstate and foreign commerce obscene matters, and [did] aid and abet persons known and unknown to the grand jury in the use [of] an interactive computer service for carriage in interstate and foreign commerce obscene matters." (Id. at 1.) Providing alleged facts in support of the charge, the Indictment alleges that Defendant "used an interactive computer service to transmit to the Middle District of Georgia and elsewhere, links to three websites: www.young-stuff.com/frank, ftp.asstr.org/pub/Authors/Frank_McCoy/index.htm; and www.mrdoubleena.com/htm/frank/index.htm; . from which web sites the obscene stories were downloaded into the Middle District of Georgia and elsewhere." (Id. at 1-2.)
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
Defendant was indicted under 18 U.S.C. 1462(a) and 2. (Doc. 1.) The Government is required to prove several elements beyond a reasonable doubt under the indictment. In sum, the Government must prove that Defendant knowingly used and caused to be used interactive computer services*fn2 for the carriage of obscene material in interstate or foreign commerce, and aiding and abetting the same. The Government alleges that Defendant violated these statutes by sending an undercover agent links to three internet websites that carried text stories that describe in graphic and explicit detail the sexual abuse, rape, torture and murder of children. (Id.)
Prior to trial, the Government and the Defendant filed Joint Stipulations of Fact (Doc. 145). The Court accepts the stipulations of the parties and finds the following facts as proven beyond a reasonable doubt. (Id.) The Government requested that the Court render special verdicts on each of the eighteen (18) stories that the Defendant caused to be downloaded in alleged violation of 18 U.S.C. § 1462 and 2. (Doc. 165-5.) Defendant alleges that the Government's request is a constructive amendment of the indictment and is prohibited under the law and filed a Motion seeking to prohibit the Government from constructively amending the Indictment. (Doc. 160.)
Having considered the parties' arguments, the Court DENIES Defendant's Motion to Preclude the Government from Constructively Amending the Indictment (Doc. 160). The Government's request did not seek to constructively amend the indictment as alleged by Defendant. See United States v. Sears, 303 F. App'x 770, 773 (11th Cir. 2008) (finding that constructive amendment of an indictment occurs where the Government seeks to alter the bases for conviction beyond the essential elements of the offense). The Court notes that the Government's request does not require any deviation from the factual allegations within the indictment. (Doc. 162.) Moreover, the number of obscene matters transported is not an element of the crime. See 18 U.S.C. §§ 1462 and 2.
Despite the Court's denial of Defendant's Motion to Preclude the Government from Constructively Amending the Indictment, the Court also DENIES the Government's Motion to render special verdicts on the eighteen (18) stories.*fn3 In light of the facts of this case, a special verdict is neither appropriate nor necessary. The Court's decision is based on the unique facts of the case at bar and the applicable law, specifically the Miller test, which requires the Court to consider the works of Defendant as a whole. Miller v. California, 413 U.S. 15, 24 (1973) (deciding whether a work is obscene based on the work "taken as a whole").
The stipulated facts state the following: On March 22, 2005, Agent Brant, in an undercover capacity, sent an email to firstname.lastname@example.org. (Doc. 145 ¶ 1.) The e-mail address used, email@example.com, is Defendant's e-mail address. (Id. ¶ 2.) Defendant responded to Agent Brant's March 22, 2005 e-mail by electronic communication and provided Agent Brant links to three web addresses: www.young-stuff.com/frank, ftp.asstr.org/Authors/Frank_McCoy/index.htm, www.mrdoubleena.com/htm/frank/index.htm.*fn4 (Id. ¶ 3.)
Agent Brant, while located in Albany, Georgia, accessed and downloaded the contents of one of the three web addresses specified in the indictment (www.young-stuff.com/frank), which consisted of 2,415 pages of stories. (Id. ¶ 4.) Defendant knew and was aware that Agent Brant would use an interactive computer service for carriage or transportation of these stories to be found at those web addresses, in interstate or foreign commerce. (Id. ¶ 5.) Defendant knew that, when he provided the web addresses to Agent Brant by e-mail, the materials that would be transported as a result of those e-mails were of a sexually explicit nature. (Id. ¶ ...