United States v. Phillip Eugene Jenkins

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 2, 2009
No. 08-13877 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00430-CR-01-WSD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PHILLIP EUGENE JENKINS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 2, 2009)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Phillip Eugene Jenkins appeals following his convictions on six counts of
attempted transfer of obscene material to a minor, in violation of 18 U.S.C. § 1470.
The charges stemmed from internet communications Jenkins had with, and
webcam masturbation videos he sent to, a Canadian law enforcement officer in
Ontario, Canada, who was posing as a 13-year-old girl.
On appeal, he argues his convictions were not supported by sufficient
evidence at trial because evidence did not support an obscenity determination.
Specifically, he argues: (1) no evidence was introduced at his Atlanta, Georgia,
trial regarding the community standards in Canada; (2) Canadian law conclusively
showed that the videos he sent were not obscene; and (3) Canadian law was
conclusive regarding community standards because it allowed adults to purchase
and view masturbation videos.
Federal law prohibits the attempted transfer of obscene material, using
means of interstate commerce, to an individual the transferor knows is under 16
years old. 18 U.S.C. § 1470. In Miller v. California, 93 S. Ct. 2607 (1973), the
Supreme Court held that, in order for material to be obscene, a trier of fact must
find that: (1) “the average person, applying contemporary community standards
would find that the work, taken as a whole, appeals to the prurient interest;”
(2) “the work depicts or describes, in a patently offensive way, sexual conduct
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specifically defined by the applicable state law;” and (3) “the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value.” Id. at 2615(internal quotations and citations omitted). The Miller test applies to federal
obscenity prosecutions. United States v. Bagnell, 679 F.2d 826, 835 n.9 (11th Cir.
1982).
The Supreme Court has said that, in judging whether materials are obscene
under the Miller test, the materials generally are “sufficient in themselves for the
determination of the question.” Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628,
2635 (1973) (internal quotations omitted). The jury should be able to “apply first-
hand knowledge to the Miller test, thus obviating the need for expert testimony.”
Id.When allegedly-obscene material is transferred from one community to
another, the relevant community standards are those of the receiving community.
Ashcroft v. ACLU, 122 S. Ct. 1700, 1712 (2002); see also Hamling v. United
States, 94 S. Ct. 2887, 2902 (1974). Although a particular community’s laws
regarding the regulation of obscene material, or lack thereof, may be relevant to the
community standards analysis, they are “not conclusive as to the issues of [such]
standards for appeal to the prurient interest and patent offensiveness.” Smith v.
United States, 97 S. Ct. 1756, 1767-68 (1977). In fact, evidence of standards in a
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community outside the receiving community may be relevant to the obscenity
determination, and the Miller test allows the jurors to draw on their knowledge of
the community from which them came to decide “what conclusion the average
person, applying contemporary community standards would reach in a given case.”
Bagnell, 679 F.2d at 836 (internal quotations omitted); Hamling, 94 S. Ct. at 2902.
In this case, sufficient evidence supported Jenkins’s conviction for attempted
transfer of obscene material to a minor. The jury saw each of the six video
recordings of Jenkins, which was evidence sufficient for the jury to make an
obscenity determination. See id. Although the jury heard evidence regarding
Canadian law, that evidence did not control either the jury’s overall obscenity
determination or its evaluation of the community standards. See Smith, 97 S. Ct. at
1768. For these reasons, we affirm Jenkins’s convictions.1
AFFIRMED.
1
Jenkins has abandoned any challenge to his sentences by failing to assert any error in
that regard on appeal. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005).
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