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Click here for the full text of this decision FACTS:Garry and Tamara Ragsdale 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. In 1998, the Dallas Police Department received a complaint from a Berlin resident about pornography sold from a Web site that was entitled “Rape Video Store” and 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.” The Berlin resident determined that the Web site was registered to Garry Ragsdale of Fort Worth, and he contacted Dallas/Forth Worth authorities. Detective Doyle Furr was assigned to investigate the complaint. Furr, using an assumed name, purchased two videotapes from the Web site that were delivered to an undercover post office box in Dallas. He later made six additional purchases � the eight videotapes he purchased in total constituted the Ragsdales’ entire inventory. Two of the videos are alleged to be obscene. 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 U.S. Supreme Court read the terms “ obscene, lewd, lascivious, or filthy” used in ��1461 and 1462, to refer to the general prohibition of obscene materials. HOLDING:Affirmed. 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 serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973). The prosecution has the burden of proving each element of the Miller test. The court emphasizes that the question of whether the videos at issue are of consensual or nonconsensual 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. The prosecution did not rebut the testimony of a credentialed sex therapist offered by the defense to show that the materials were not obscene. “However, the prosecution was not required to introduce an expert to counter [the defense expert's] testimony nor was the jury required to credit [the defense expert's] testimony in their deliberations.” The prosecution may prove the elements of the Miller test without resorting to any evidence or testimony other than the introduction of the allegedly offending materials themselves. Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973). Garry argues that the prosecution failed to meet its burden of persuasion because they did not identify the deviant group to whom the videotapes would appeal and did not establish that the videotapes appealed to that deviant group’s prurient interests. Garry relies on two 2nd U.S. Circuit Court of Appeals’ 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. Petrov, 747 F.2d 824 (2d Cir. 1984) (quoting United States v. Klaw, 350 F.2d 155 (2d Cir. 1965)).The U.S. Supreme Court, in Paris Adult Theatre, has generally recognized that “[obscenity] is not a subject that lends itself to the traditional use of expert testimony.” But the Supreme 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.” 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. Even if the materials are so bizarre as to be beyond the experience of the typical juror, the testimony of the defendant’s would suffice to establish that the materials appeal to the prurient interests of some segment of the population. The court finds that the district court did not abuse its discretion in refusing to require the prosecution to translate the videos, which were recorded in Dutch and Japanese. Garry attempted to introduce allegedly comparable visual materials purchased from a local adult video store chain and mainstream bookstores, in order to prove that the video tapes he sold were acceptable in the local community. The court finds that the exclusion of the evidence proffered by the defense was not an abuse of discretion. Garry proffered the testimony of an attorney 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. Other jury verdicts are not relevant evidence, the court states. 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 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. The U.S. 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 (1974) (Brennan, J., concurring). However, this courts has held that the U.S. 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 International Ltd. v. McAuliffe, 610 F.2d 1353 (5th Cir. 1980). “We have considered the videotapes as a whole, and it is our independent view that there is no literary, artistic, political, or scientific value to ‘Brutally Raped 5,’ and”Real Rape 1,’ ” this court states. 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 pretrial investigation and they voluntarily terminated their business. 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 U.S. Sentencing Guidelines �3E1.1 reduction, the court determines. The court rejects the Ragsdales’ assertion of error under United States v. Booker, 125 S.Ct. 738 (2005). The court finds that the Ragsdales cannot establish that the outcome of the district court proceedings would have been any different absent a Sixth Amendment error, i.e., under an advisory sentencing system. 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 in the county jail. He argues that any sentence imposed upon him that exceeds one year violates his due process rights. The court rejects his argument, finding that the test for a violation of obscenity law in Texas closely parallels the Miller test, and the U.S. Supreme Court has considered and rejected an averment analogous to Garry’s. Smith v. United States, 413 U.S. 291 (1977). The Ragsdales assert several constitutional arguments challenging the validity of both �1461 and the Miller test for obscenity vel non. “Based on valid Supreme Court authority, we uphold the validity of �1461 and the Miller test.” OPINION:Stewart, J.; King, C.J., Benavides and Stewart, JJ.

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