RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

ELECTRONIC CITATION: 1996 FED App. 0032P (6th Cir.)

File Name: 96a0032p.06

Nos. 94-6648/6649

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ROBERT ALAN THOMAS (94-6648)

and CARLEEN THOMAS (94-6649),

Defendants-Appellants.

>

ON APPEAL from the United States District Court for the Western District of
Tennessee

__________________

Decided and Filed January 29, 1996

__________________

Before: MARTIN and BATCHELDER, Circuit Judges; EDMUNDS, District Judge.[*]

NANCY G. EDMUNDS, District Judge. Defendants Robert and Carleen Thomas
appeal their convictions and sentences for violating 18 U.S.C. §§ 1462 and
1465,

federal obscenity laws, in connection with their operation of an electronic
bulletin board. For the following reasons, we AFFIRM Robert and Carleen
Thomas' convictions and sentences.

I.

Robert Thomas and his wife Carleen Thomas began operating the Amateur
Action Computer Bulletin Board System ("AABBS") from their home in
Milpitas, California in February 1991. The AABBS was a computer bulletin
board system that operated by using telephones, modems, and personal
computers. Its features included e-mail, chat lines, public messages, and
files that members could access, transfer, and download to their own
computers and printers.

Information loaded onto the bulletin board was first converted into binary
code, i.e., 0's and 1's, through the use of a scanning device. After
purchasing sexually-explicit magazines from public adult book stores in
California, Defendant Robert Thomas used an electronic device called a
scanner to convert pictures from the magazines into computer files called
Graphic Interchange Format files or "GIF" files. The AABBS contained
approximately 14,000 GIF files. Mr. Thomas also purchased, sold, and
delivered sexually-explicit videotapes to AABBS members. Customers ordered
the tapes by sending Robert Thomas an e-mail message, and Thomas typically
delivered them by use of the United Parcel Service ("U.P.S.").

Persons calling the AABBS without a password could view the introductory
screens of the system which contained brief, sexually-explicit descriptions
of the GIF files and adult videotapes that were offered for sale. Access to
the GIF files, however, was limited to members who were given a password
after they paid a membership fee and submitted a signed application form
that Defendant Robert Thomas reviewed. The application form requested the
applicant's age, address, and telephone number and required a signature.

Members accessed the GIF files by using a telephone, modem and personal
computer. A modem located in the Defendants' home answered the calls. After
they established membership by typing in a password, members could then
select, retrieve, and instantly transport GIF files to their own computer.
A caller could then view the GIF file on his computer screen and print the
image out using his printer. The GIF files contained the AABBS name and
access telephone number; many also had "Distribute Freely" printed on the
image itself.

In July 1993, a United States Postal Inspector, Agent David Dirmeyer
("Dirmeyer"), received a complaint regarding the AABBS from an individual
who resided in the Western District of Tennessee. Dirmeyer dialed the
AABBS' telephone number. As a non-member, he viewed a screen that read
"Welcome to AABBS, the Nastiest Place On Earth," and was able to select
various "menus" and read graphic descriptions of the GIF files and
videotapes that were offered for sale.

Subsequently, Dirmeyer used an assumed name and sent in $55 along with an
executed application form to the AABBS. Defendant Robert Thomas called
Dirmeyer at his undercover telephone number in Memphis, Tennessee,
acknowledged receipt of his application, and authorized him to log-on with
his personal password. Thereafter, Dirmeyer dialed the AABBS's telephone
number, logged-on and, using his computer/modem in Memphis, downloaded the
GIF files listed in counts 2-7 of the Defendants' indictments. These GIF
files depicted images of bestiality, oral sex, incest, sado-masochistic
abuse, and sex scenes involving urination. Dirmeyer also ordered six
sexually-explicit videotapes from the AABBS and received them via U.P.S. at
a Memphis, Tennessee address. Dirmeyer also had several e-mail and
chat-mode conversations with Defendant Robert Thomas.

On January 10, 1994, a search warrant was issued by a U.S. Magistrate Judge
for the Northern District of

California. The AABBS' location was subsequently searched, and the
Defendants' computer system was seized.

On January 25, 1994, a federal grand jury for the Western District of
Tennessee returned a twelve-count indictment charging Defendants Robert and
Carleen Thomas with the following criminal violations: one count under 18
U.S.C. § 371 for conspiracy to violate federal obscenity laws--18 U.S.C. §§
1462, 1465 (Count 1), six counts under 18 U.S.C. § 1465 for knowingly using
and causing to be used a facility and means of interstate commerce--a
combined computer/telephone system--for the purpose of transporting
obscene, computer-generated materials (the GIF files) in interstate
commerce (Counts 2-7), three counts under 18 U.S.C. § 1462 for shipping
obscene videotapes via U.P.S. (Counts 8-10), one count of causing the
transportation of materials depicting minors engaged in sexually explicit
conduct in violation of 18 U.S.C. § 2252(a)(1) as to Mr. Thomas only (Count
11), and one count of forfeiture under 18 U.S.C. § 1467 (Count 12).

Both Defendants were represented by the same retained counsel, Mr. Richard
Williams of San Jose, California. They appeared twice in federal district
court for the Northern District of California, San Jose division, before
being arraigned on March 15, 1994, in federal court in Memphis, Tennessee.
They did not retain local counsel for the Tennessee criminal prosecution.
Both Defendants were tried by a jury in July, 1994. Defendant Robert Thomas
was found guilty on all counts except count 11 (child pornography).
Defendant Carleen Thomas was found guilty on counts 1-10. The jury also
found that the Defendants' interest in their computer system should be
forfeited to the United States. Robert and Carleen Thomas were sentenced on
December 2, 1994 to 37 and 30 months of incarceration, respectively. They
filed their notices of appeal on December 9, 1994.

II.

A.

Defendants contend that their conduct, as charged in counts 1-7 of their
indictments, does not constitute a violation of 18 U.S.C. § 1465. This
presents a question of statutory interpretation, a matter of law, and is
reviewed by this court under a de novo standard. United States v. Hans, 921
F.2d 81, 82 (6th Cir. 1990).[1]

Defendants' challenge to their convictions under counts 1-7, rests on two
basic premises: 1) Section 1465 does not apply to intangible objects like
the computer GIF files at issue here,[2]

Whoever knowingly transports in interstate or foreign commerce for the
purpose of sale or distribution, or knowingly travels in interstate
commerce, or uses a facility or means of interstate commerce for the
purpose of transporting obscene material in interstate or foreign commerce,
any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film,
paper, letter, writing, print, silhouette, drawing, figure, image, cast,
phonograph recording, electrical transcription or other article capable of
producing sound or any other matter of indecent or immoral character, shall
be fined under this title or imprisoned not more than five years, or both.

The transportation as aforesaid of two or more copies of any publication or
two or more of any article of the character described above, or a combined
total of five such publications and articles, shall create a presumption
that such publications or articles are intended for sale or distribution,
but such presumption is rebuttable. 42 U.S.C.A. § 1465 (West 1995 Supp.).
and 2) Congress did not intend to regulate

computer transmissions such as those involved here because 18 U.S.C. § 1465
does not expressly prohibit such conduct.

In support of their first premise, Defendants cite a Tenth Circuit
dial-a-porn decision which holds that 18 U.S.C. §§ 1462 and 1465 prohibit
the interstate transportation of tangible objects; not intangible articles
like pre-recorded telephone messages. See United States v. Carlin Commun.,
Inc., 815 F.2d 1367, 1371 (10th Cir. 1987). Defendants claim Carlin is
controlling because transmission of the GIF files at issue under counts 1-7
involved an intangible string of 0's and 1's which became viewable images
only after they were decoded by an AABBS member's computer. We disagree.

The subject matter in Carlin--telephonic communication of pre-recorded
sexually suggestive comments or proposals--is inherently different from the
obscene computer-generated materials that were electronically transmitted
from California to Tennessee in this case. Defendants erroneously conclude
that the GIF files are intangible, and thus outside the scope of § 1465, by
focusing solely on the manner and form in which the computer-generated
images are transmitted from one destination to another. United States v.
Gilboe, 684 F.2d 235 (2nd Cir. 1982), cert. denied, 459 U.S. 1201 (1983),
illustrates this point.

In Gilboe, the Second Circuit rejected the argument that the defendant's
transmission of electronic impulses could not be prosecuted under a
criminal statute prohibiting the

transportation of money obtained by fraud. The Gilboe court reasoned that:

[e]lectronic signals in this context are the means by which funds are
transported. The beginning of the transaction is money in one account and
the ending is money in another. The manner in which the funds were moved
does not affect the ability to obtain tangible paper dollars or a bank
check from the receiving account.

Id. at 238. The same rationale applies here. Defendants focus on the means
by which the GIF files were transferred rather than the fact that the
transmissions began with computer-generated images in California and ended
with the same computer-generated images in Tennessee. The manner in which
the images moved does not affect their ability to be viewed on a computer
screen in Tennessee or their ability to be printed out in hard copy in that
distant location.

The record does not support Defendants' argument that they had no
knowledge, intent or expectation that members of their AABBS would download
and print the images contained in their GIF files. They ran a business that
advertised and promised its members the availability and transportation of
the sexually-explicit GIF files they selected. In light of the overwhelming
evidence produced at trial, it is spurious for Defendants to claim now that
they did not intend to sell, disseminate, or share the obscene GIF files
they advertised on the AABBS with members outside their home and in other
states.

We also disagree with Defendants' corollary position, raised at oral
argument, that they were prosecuted under the wrong statute and that their
conduct, if criminal at all,

falls within the prohibitions under 47 U.S.C. § 223(b)[3]

(1) Whoever knowingly

(A) within the United States, by means of telephone, makes (directly or by
recording device) any obscene communication for commercial purposes to any
person, regardless of whether the maker of such communication placed the
call; or

(B) permits any telephone facility under such person's control to be used
for an activity prohibited by subparagraph (A),

shall be fined in accordance with Title 18, or imprisoned not more than two
years, or both. rather than 18 U.S.C. § 1465. As recognized by the Supreme
Court, Section 223(b) of the Communications Act of 1934, was drafted and
enacted by Congress in 1982 "explicitly to address 'dial-a-porn.'" Sable
Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 120-121 (1989).
Congress amended Section 223(b) in 1988 to impose a total ban "on
dial-a-porn, making it illegal for adults, as well as children, to have
access to sexually-explicit messages" that are indecent or obscene. Id. at
122-123.[4] 47 U.S.C. § 223(b) addresses commercial dial-a-porn operations
that communicate sexually-explicit telephone messages; not commercial
computer bulletin boards that use telephone facilities for the purpose of
transmitting obscene, computer-generated images to approved members.

Defendants' second premise, that Congress did not intend to regulate
computer transmissions because the statute does not expressly prohibit such
conduct, is faulty as well. We have consistently recognized that when
construing federal statutes, our duty is to "'construe the language so as
to give effect to the intent of Congress.'" United States v. Underhill, 813
F.2d 105, 111 (6th Cir.), cert. denied, 482 U.S. 906 (1987) (quoting United
States v. American Trucking Associations, Inc., 310 U.S. 534, 542-44
(1940)). The Supreme Court observed this principle when it rejected an
argument similar to one Defendants raise here, i.e., that Congress could
not possibly have intended to include conduct not expressly prohibited in
the statute. See United States v. Alpers, 338 U.S. 680 (1950).

In United States v. Alpers, the Supreme Court considered the question
whether obscene phonograph records--at the time, a novel means of
transmitting obscenity--came within the prohibition of 18 U.S.C. § 1462.
Initially, the Court acknowledged that criminal statutes are to be strictly
construed and that "no offense may be created except by the words of
Congress used in their usual and ordinary way." Id. at 681. The Court
emphasized, however, that Congress' intent is the most important
determination and statutory language is not to be construed in a manner
that would defeat that intent.

Applying those principles, the Court held that the rule of ejusdem
generis[5] should not be "employed to render general words meaningless" or
"be used to defeat the obvious purpose of legislation." Id. at 681-83. It
recognized that "[t]he obvious purpose of [Section 1462] was to prevent the
channels of interstate commerce from being used to disseminate" any obscene
matter. Id. at 683. The Court further recognized that Section 1462 "is a
comprehensive statute, which should not be constricted by

a mechanical rule of construction." Id. at 684. Accordingly, the Court
rejected the defendant's argument that the general words "other matter of
indecent character" could not be interpreted to include objects
comprehensible by hearing (phonographic recordings) rather than sight; an
argument similar to the tangible/intangible one raised here, and held that
obscene records fell within the scope of the criminal statute.

In reaching its decision, the Alpers Court found that the legislative
history of Section 1462 did not support defendant's sight/sound
distinction. It was not persuaded that Congress' amendment of Section 1462
to add motion picture films to the list of prohibited materials "evidenced
an intent that obscene matter not specifically added was without the
prohibition of the statute." Id. Rather, the Court concluded that the
amendment evidenced Congress' preoccupation "with making doubly sure that
motion-picture film was within the Act, and was concerned with nothing more
or less." Id. We are similarly unpersuaded by Defendants' arguments that
the absence of the words "including by computer" in Section 1465, despite
Congress' addition of those words in other legislation, is evidence of its
intent not to criminalize conduct, such as Defendants' that falls within
the plain language and intent of Section 1465.

Furthermore, under similar facts, the U.S. Air Force Court of Criminal
Appeals recently considered § 1465's plain language and its intended
purpose. In United States v. Maxwell, 42 M.J. 568, 1995 WL 259269 (A.F. Ct.
Crim. App. 1995), a defendant was charged with violating Section 1465
because he had transmitted obscene visual images electronically through the
use of an on-line computer service. He argued that since the statute is
silent concerning computer transmissions, such transmissions were not to be
included within the terms "transporting obscene materials in interstate or
foreign commerce." The court observed that well-established principles of
statutory construction require a court to look first to the statute's plain
language. Maxwell, 1995 WL 259269 at *10 (citing

Rubin v. United States, 449 U.S. 424, 430 (1981)). Applying that principle,
the Maxwell court concluded that the defendant's conduct fell within the
plain language of Section 1465. Specifically, the court held:

[t]he use of the terms "transports," "distribution," "picture," "image" and
"electrical transcription" leads us to the inescapable conclusion the
statute is fully applicable to the activities engaged in by applicant. . .
. It is clear Congress intended to stem the transportation of obscene
material in interstate commerce regardless of the means used to effect that
end.

Maxwell, 1995 WL 259269 at *10.

Likewise, we conclude that Defendants' conduct here falls within the plain
language of Section 1465.[6] Moreover, our interpretation of Section 1465
is consistent with Congress' intent to legislate comprehensively the
interstate distribution of obscene materials. Id.

B.

Defendants also challenge venue in the Western District of Tennessee for
counts 2-7 of their indictments. They argue that even if venue was proper
under count 1 (conspiracy) and counts 8-10 (videotapes sent via U.P.S.),
counts 2-7 (GIF files) should have been severed and transferred to
California because Defendants did not cause the GIF files to be transmitted
to the Western District of Tennessee. Rather, Defendants assert, it was
Dirmeyer, a government agent, who, without their knowledge, accessed and
downloaded the GIF files and caused them to enter Tennessee. We disagree.
To establish a Section 1465 violation, the Government must prove that a
defendant

knowingly used a facility or means of interstate commerce for the purpose
of distributing obscene materials. Contrary to Defendants' position,
Section 1465 does not require the Government to prove that Defendants had
specific knowledge of the destination of each transmittal at the time it
occurred.

"Venue lies in any district in which the offense was committed," and the
Government is required to establish venue by a preponderance of the
evidence. United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir. 1992)
(quoting United States v. Williams, 788 F.2d 1213, 1215 (6th Cir. 1986)).
This court examines the propriety of venue by taking "'into account a
number of factors--the site of the defendant's acts, the elements and
nature of the crime, the locus of the effect of the criminal conduct, and
the suitability of each district for accurate fact finding . . .'" Id.

Section 1465 is an obscenity statute, and federal obscenity laws, by virtue
of their inherent nexus to interstate and foreign commerce, generally
involve acts in more than one jurisdiction or state. Furthermore, it is
well-established that "there is no constitutional impediment to the
government's power to prosecute pornography dealers in any district into
which the material is sent." United States v. Bagnell, 679 F.2d 826, 830
(11th Cir. 1982), cert. denied, 460 U.S. 1047 (1983); United States v.
Peraino, 645 F.2d 548, 551 (6th Cir. 1981). Thus, the question of venue has
become one of legislative intent. Bagnell, 679 F.2d at 830.

The Bagnell court examined both §§ 1462 and 1465 and found that each
statute established a continuing offense within the venue provisions of 18
U.S.C. § 3237(a) "that occur[s] in every judicial district which the
material touches." Id. at 830. This court likewise recognized that "venue
for federal obscenity prosecutions lies 'in any district from, through, or
into which' the allegedly obscene material moves." Peraino, 645 F.2d at 551
(citing 18 U.S.C. § 3237).

Substantial evidence introduced at trial demonstrated that the AABBS was
set up so members located in other jurisdictions could access and order GIF
files which would then be instantaneously transmitted in interstate
commerce. Moreover, AABBS materials were distributed to an approved AABBS
member known to reside in the Western District of Tennessee. Specifically,
Defendant Robert Thomas knew of, approved, and had conversed with an AABBS
member in that judicial district who had his permission to access and copy
GIF files that ultimately ended up there. Some of these GIF files were
clearly marked "Distribute Freely." In light of the above, the effects of
the Defendants' criminal conduct reached the Western District of Tennessee,
and that district was suitable for accurate fact-finding. Accordingly, we
conclude venue was proper in that judicial district.

C.

Defendants further argue that their convictions under counts 1-7 of their
indictments violate their First Amendment rights to freedom of speech. As
the Supreme Court noted in Bose, when constitutional facts[7] are at issue,
this court has a duty to conduct an independent review of the record "both
to be sure that the speech in question actually falls within the
unprotected category and to confine the perimeters of any unprotected
category within acceptably narrow limits in an effort to ensure that
protected expression will not be inhibited." Bose Corp. v. Consumers Union
of United States, Inc., 466 U.S. 485, 505 (1984).

1. Defendants' Right to Possess the GIF Files in their Home

Defendants rely on Stanley v. Georgia, 394 U.S. 557 (1969), and argue they
have a constitutionally protected right to possess obscene materials in the
privacy of their home. They insist that the GIF files containing
sexually-explicit material never left their home. Defendants' reliance on
Stanley is misplaced.

The Supreme Court has clarified that Stanley "depended not on any First
Amendment Right to purchase or possess obscene materials, but on the right
to privacy in the home." United States v. 12 200-Ft. Reels of Super 8mm.
Film, 413 U.S. 123, 126 (1973). It has also recognized that the right to
possess obscene materials in the privacy of one's home does not create "a
correlative right to receive it, transport it, or distribute it" in
interstate commerce even if it is for private use only. Nor does it create
"some zone of constitutionally protected privacy [that] follows such
material when it is moved outside the home area." United States v. Orito,
413 U.S. 139, 141 (1973); see also 12 200-Ft. Reels, 413 U.S. at 128.

Defendants went beyond merely possessing obscene GIF files in their home.
They ran a business that advertised and promised its members the
availability and transportation of the sexually-explicit GIF files they
selected. In light of the overwhelming evidence produced at trial, it is
spurious for Defendants to claim now that they did not intend to sell,
disseminate, or share the obscene GIF files they advertised on the AABBS
with members outside their home and in other states.

2. The Community Standards to be Applied When Determining Whether the GIF
Files Are Obscene

In Miller v. California, 413 U.S. 15 (1973), the Supreme Court set out a
three-prong test for obscenity. It inquired whether (1) "'the average
person applying contemporary community standards' would find that the work,
taken as

a whole appeals to the prurient interest"; (2) it "depicts or describes, in
a patently offensive way, sexual conduct specifically defined by applicable
state law"; and (3) "the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value." Id. at 24.

Under the first prong of the Miller obscenity test, the jury is to apply
"contemporary community standards." Defendants acknowledge the general
principle that, in cases involving interstate transportation of obscene
material, juries are properly instructed to apply the community standards
of the geographic area where the materials are sent. Miller, 413 U.S. at
15, 30-34. Nonetheless, Defendants assert that this principle does not
apply here for the same reasons they claim venue was improper. As
demonstrated above, this argument cannot withstand scrutiny. The
computer-generated images described in counts 2-7 were electronically
transferred from Defendants' home in California to the Western District of
Tennessee. Accordingly, the community standards of that judicial district
were properly applied in this case.

Issues regarding which community's standards are to be applied are tied to
those involving venue. It is well-established that:

[v]enue for federal obscenity prosecutions lies "in any district from,
through, or into which" the allegedly obscene material moves, according to
18 U.S.C. § 3237. This may result in prosecutions of persons in a community
to which they have sent materials which is obscene under that community's
standards though the community from which it is sent would tolerate the
same material.

United States v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981). Prosecutions
may be brought either in the district of dispatch or the district of
receipt, Bagnell, 679 F.2d at 830-31, and obscenity is determined by the
standards of the community where the trial takes place. See Miller, 413
U.S. at 15, 30-34; Hamling v. United States, 418 U.S. 87, 105-6 (1974);
Sable, 492 U.S. at 125. Moreover, the

federal courts have consistently recognized that it is not unconstitutional
to subject interstate distributors of obscenity to varying community
standards. Hamling, 418 U.S. at 106; United States v. Sandy, 605 F.2d 210,
217 (6th Cir.), cert. denied, 444 U.S. 984 (1979).

3. The Implications of Computer Technology on the Definition of "Community"

Defendants and Amicus Curiae appearing on their behalf[8] argue that the
computer technology used here requires a new definition of community, i.e.,
one that is based on the broad-ranging connections among people in
cyberspace rather than the geographic locale of the federal judicial
district of the criminal trial. Without a more flexible definition, they
argue, there will be an impermissible chill on protected speech because BBS
operators cannot select who gets the materials they make available on their
bulletin boards. Therefore, they contend, BBS operators like Defendants
will be forced to censor their materials so as not to run afoul of the
standards of the community with the most restrictive standards.

Defendants' First Amendment issue, however, is not implicated by the facts
of this case. This is not a situation where the bulletin board operator had
no knowledge or control over the jurisdictions where materials were
distributed for downloading or printing. Access to the Defendants' AABBS
was limited. Membership was necessary and applications were submitted and
screened before passwords were issued and materials were distributed. Thus,
Defendants had in place methods to limit user access in jurisdictions where
the risk of a finding of obscenity was greater than that in California.
They knew they had a member in Memphis; the member's

address and local phone number were provided on his application form. If
Defendants did not wish to subject themselves to liability in jurisdictions
with less tolerant standards for determining obscenity, they could have
refused to give passwords to members in those districts, thus precluding
the risk of liability.

This result is supported by the Supreme Court's decision in Sable
Communications of Cal., Inc. v. F.C.C. where the Court rejected Sable's
argument that it should not be compelled to tailor its dial-a-porn messages
to the standards of the least tolerant community. 492 U.S. 115, 125-26
(1989). The Court recognized that distributors of allegedly obscene
materials may be subjected to the standards of the varying communities
where they transmit their materials, citing Hamling, and further noted that
Sable was "free to tailor its messages, on a selective basis, if it so
chooses, to the communities it chooses to serve." Id. at 125. The Court
also found no constitutional impediment to forcing Sable to incur some
costs in developing and implementing a method for screening a customer's
location and "providing messages compatible with community standards." Id.

Thus, under the facts of this case, there is no need for this court to
adopt a new definition of "community" for use in obscenity prosecutions
involving electronic bulletin boards. This court's decision is guided by
one of the cardinal rules governing the federal courts, i.e., never reach
constitutional questions not squarely presented by the facts of a case.
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502 (1985).

D.

Defendants next raise a number of challenges to the jury instructions given
at their trial. Initially, they claim that, as to counts 2, 3, 6 and 9, the
district court should have included an augmented unanimity instruction
because those counts involved more than one GIF file or videotape. The
district court instructed the jury that "[i]f more than one article is
alleged to be obscene in a particular count, the

government is required to show only that one of these articles was
obscene." There was no request for an augmented unanimity instruction and
there was no objection at trial to the instruction given. The issue was
raised for the first time at sentencing. Accordingly, this court reviews
for plain error. United States v. Mendez-Ortiz, 810 F.2d 76 (6th Cir.
1986), cert. denied, 480 U.S. 922 (1987).

We have recognized that "[t]he plain error doctrine is to be used 'only in
exceptional circumstances' and only where the error is so plain that 'the
trial judge and the prosecutor were derelict in countenancing it.'" Id. at
78. Moreover, "[w]e consider whether the instructions, when taken as a
whole, were so clearly wrong as to produce a grave miscarriage of justice."
United States v. Sanderson, 966 F.2d 184, 187 (6th Cir. 1992).

When one count of an indictment charges that a defendant committed an
offense by "multiple alternative 'conceptually' distinct acts," the
defendant can request that the court give the jury an augmented unanimity
instruction, i.e., one that tells them that, with regard to this particular
count, they must all agree that the defendant committed one of those
distinct acts. United States v. Duncan, 850 F.2d 1104, 1110 (6th Cir.
1988). With regard to specific, or augmented unanimity instructions, this
court has recognized that the instruction is not necessary "unless 1) a
count is extremely complex, 2) there is variance between the indictment and
the proof at trial, or 3) there is a tangible risk of jury confusion."
Sanderson, 966 F.2d at 187. Contrary to Defendants' assertions, this
court's decision in Duncan does not require a court to sua sponte instruct
the jury on specific unanimity when more than one basis for conviction is
presented in a single count. Rather, we have consistently recognized that
the need arises when it is shown that there is a "genuine risk that the
jury is confused or that a conviction may occur as the result of different
jurors concluding that a defendant committed different acts." United States
v. Sims, 975 F.2d 1225, 1241 (6th

Cir. 1992), cert. denied, ___ U.S. ___, 113 S. Ct. 1315 (1993).

In Duncan, the court held that an augmented unanimity instruction should
have been given because the court had been apprised of the unanimity
problem in pretrial motions and by "a mid-deliberation question from the
jury raising the genuine possibility that conviction could occur as the
result of different jurors using a different false statement as the
underlying factual predicate for guilt." Duncan, 850 F.2d at 1105.
Defendants have not demonstrated that there was a tangible risk of jury
confusion here. Thus, this case is easily distinguished from Duncan.

Furthermore, counts 2, 3, 6 and 9 were not complex, and there was no
variance between the indictment and the proof at trial. Accordingly, none
of the circumstances existed that would give rise to the need for a
specific unanimity instruction. Consequently, we conclude that the district
court did not commit error when it gave general instructions on unanimity.
Furthermore, considering the subject matter of each GIF file and videotape
listed in counts 2, 3, 6 and 9, we find it unlikely that the jury would
have had any trouble reaching unanimity on the fact that one item described
in each of those counts was obscene.

E.

We next address the Defendants' argument that the district court erred when
it instructed the jury that the government was not required to present
expert testimony regarding the prurient appeal of the materials at issue
here.[9]

You have heard testimony from an expert witness presented on behalf of the
defendants. An expert is allowed to express his opinion on those matters
about which he has special knowledge and training. Expert testimony is
presented to you on the theory that

someone that is experienced in the field can assist you in understanding
the evidence or in reaching an independent decision on the facts. There is
no requirement, however, that expert testimony be presented in an obscenity
case. The government need not produce expert evidence that the materials
are obscene, but may rely on the computer generated images and videotapes
themselves for its argument that the materials are obscene. Under the first
prong of the Miller obscenity test,

the jury must consider whether the allegedly obscene material "appeals to
the prurient interest." Miller, 413 U.S. at 24.

The computer-generated images and videotapes involved here portrayed
bestiality, incest, rape, and sex scenes involving defecation, urination,
and sado-masochistic abuse. Defendants argue that the Government is
required to present expert testimony when sexually-explicit material is
directed at a deviant group. We disagree. Neither the United States Supreme
Court nor this court has adopted any such per se rule.

The Supreme Court has consistently recognized that "[e]xpert testimony is
not necessary to enable the jury to judge the obscenity of material which .
. . has been placed into evidence." Hamling v. United States, 418 U.S. 87,
100 (1974) (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49, 56 (1973),
Kaplan v. California, 413 U.S. 115, 120-21 (1973), Ginzburg v. United
States, 383 U.S. 463, 465 (1966)). In Paris Adult Theatre I, the Court
observed that the allegedly obscene materials, "obviously, are the best
evidence of what they represent" and have been consistently recognized as
"'sufficient in themselves for the determination of the question.'" 413
U.S. at 56 (quoting Ginzburg, 383 U.S. at 465). The Paris I Court further
elaborated that:

[t]his is not a subject that lends itself to the traditional use of expert
testimony. Such testimony is usually admitted for the purpose of

explaining to lay jurors what they otherwise could not understand. No such
assistance is needed by jurors in obscenity cases; indeed the "expert
witness" practices employed in these cases have often made a mockery out of
the otherwise sound concept of expert testimony.

Id. at 56, n.6 (citations omitted).

The Court has explicitly reserved judgment on the issue whether expert
testimony is required in the "extreme case" 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." Id. In Pinkus v. United States, 436 U.S. 293
(1978), the Court once again reserved judgment on this question, finding
that it was not presented with the "extreme case" referenced in Paris I
because there was expert testimony in evidence which, when "combined with
the exhibits themselves, sufficiently guided the jury." Pinkus, 436 U.S. at
303.

Expert testimony on prurient appeal to deviant groups was also presented in
this case. Defendants' expert, Dr. Victor Pascale, a licensed clinical
psychologist, testified at trial about how certain groups of individuals
can become sexually aroused by objects or conduct not normally thought of
as sexual in nature, i.e., the use of whips, cross-dressing, urination,
defecation, infliction of pain (sado-masochism), and voyeurism. Thus, as in
Pinkus, we find that the expert testimony, when combined with the allegedly
obscene materials themselves, was sufficient to guide the jury with regard
to prurient appeal.

Defendants rely heavily on decisions from the Second Circuit. See United
States v. Klaw, 350 F.2d 155 (2nd Cir. 1965); United States v. Petrov, 747
F.2d 824 (2nd Cir. 1984), cert. denied, 471 U.S. 1025 (1985). In Petrov,
however, the court concluded that Klaw is "properly understood to require
expert testimony that material appeals to the prurient interest of a
deviant group only when the material portrays conduct not generally
understood to be

sexual." Id. at 836. Furthermore, the Petrov court concluded that expert
testimony is "not required to establish the prurient appeal of photographs
depicting bestiality." Id. at 837. The court further clarified that
although Klaw required expert testimony on depictions of sado-masochistic
activity, the requirement was met where the defendant's expert testified on
cross-examination that such materials would appeal to the sexual interest
of a small minority of individuals even though they would not appeal to the
average person. Id. at 830-31. Thus, Petrov does not compel a different
result, and this court concludes that the challenged jury instruction was
not erroneous.

F.

A required element of § 1465 is that the defendant knowingly "used a
facility or means of interstate commerce" for the purpose of transporting
or transmitting obscene material. Defendants argue that the district
court's instruction, that "facility or means of interstate commerce"
includes "any method of communication between different states," improperly
expanded the meaning of this criminal statute. Defendants failed to object
to the instruction, therefore, it is examined for plain error. We conclude
that there is no plain error here.

Contrary to Defendants' argument, the instruction finds support in 2
Devitt, Blackmar and O'Malley, Federal Jury Practice and Instruction,
Criminal, (4th Ed. 1990), § 46.06 at 664, which provides:

The term "uses any facility in interstate . . . commerce" means employing
or utilizing any method of communication or transportation between one
state and another. The term "uses any facility in interstate . . .
commerce", for example, includes the use of the telephone and mails.

G.

Defendants claim they were denied due process of law and a fair trial by
the admission of uncharged GIF files and descriptions of uncharged
materials at their trial. We will not disturb the district court's
admission of this evidence and its determinations of relevancy absent a
clear abuse of discretion. United States v. Seago, 930 F.2d 482, 494 (6th
Cir. 1991). We also apply an abuse of discretion standard to the district
court's decision in balancing the potentially unfair prejudicial impact of
evidence against its probative value. United States v. Feinman, 930 F.2d
495, 499 (6th Cir. 1991). In reviewing how such a balance is weighed, "the
appellate court must view the evidence in the light most favorable to its
proponent, giving 'the evidence its maximum reasonable probative force and
its minimum reasonable prejudicial value.'" United States v. Moore, 917
F.2d 215, 233 (6th Cir. 1990), cert. denied, 499 U.S. 963 (1991).

Defendants complain that the district court erred when it allowed the
Government to introduce 31 uncharged GIF files, portions of 2 uncharged
videos, and the AABBS' descriptions of uncharged GIF files and videotapes
at trial. They assert that the material had no probative value, and its
introduction served only to unfairly prejudice the jury. Based on our
review of the record, we find no abuse of discretion.

With regard to the videotapes, the record reveals that the district court
considered whether the probative value of two minutes of one of the three
"child nudist" videotapes sent by Defendant Robert Thomas to Dirmeyer was
substantially outweighed by the danger of unfair prejudice. F.R.E. 401,
403. Despite an objection from Defendants' counsel, the district court
ruled that the material was probative to the issue of Mr. Thomas'
predisposition in light of his entrapment defense to count 11, charging him
with knowing receipt of child pornography. We find no error in the
admission of the videotapes since they were properly introduced in response
to the entrapment defense.

Defendants' claim that the district court erred when it permitted the jury
to see 31 uncharged GIF files is likewise without merit. Each of the GIF
file images was made from the charged videotapes by stopping the tapes at a
certain point, making a still frame or photograph, and then scanning it
onto the AABBS and making it available for distribution as a separate item.
Because the entire videotape was properly admitted and viewed by the jury,
we reject Defendants' claim of unfair prejudice.

Defendants also complain that the district court erred by allowing the jury
to hear sexually-explicit descriptions of other uncharged GIF files and
videotapes. Contrary to Defendants' contention, this material did have
probative value, i.e., it was relevant to establishing scienter and
pandering. Defendants posted these graphic descriptions in the public areas
of the AABBS, and this was one way they advertised for members. See Mishkin
v. New York, 383 U.S. 502 (1966); Pinkus, 436 U.S. at 303. Accordingly, we
reject Defendants' argument that the above evidence was clearly more
prejudicial than probative under F.R.E. 403, and find no abuse of
discretion in its admission under F.R.E. 401.

H.

Defendants next contend that they were denied effective assistance of
counsel at their trial because their retained counsel failed to: (1) move
for dismissal based on Carlin; (2) object to the admission of evidence at
trial; (3) move for judgment of acquittal based on the government's
requirement to provide expert testimony regarding "prurient appeal" to
deviant groups; (4) recognize the conflict of interest inherent in his dual
representation of both Defendants; (5) sever the child pornography count;
(6) file a suppression motion; (7) request discovery; (8) challenge the
indictment as duplicative; (9) move for a mistrial; (10) submit a
theory-of-the-case instruction; (11) introduce comparable sexually-explicit
videotapes available in Memphis; and (12) with regard to Carleen Thomas,
failed to move for a judgment of acquittal at the close of the

government's case for lack of evidence of scienter and then called her to
the stand when her testimony could only incriminate her.

As a general rule, this court "will not review claims of ineffective
counsel that are raised for the first time on appeal." United States v.
Seymour, 38 F.3d 261, 263 (6th Cir. 1994). These claims are "'best brought
by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so
that the parties can develop an adequate record on the issue.'" Id.
(quoting United States v. Daniel, 956 F.2d 540, 543 (6th Cir. 1992)). We
consider such claims on direct appeal only where the record has been
sufficiently developed so as to allow us to evaluate counsel's performance.
Seymour, 38 F.3d at 263. We find that the record here is not adequately
developed for us to consider the ineffective assistance of counsel claims
asserted above.

We will, however, consider Defendant Carleen Thomas' argument that she was
denied effective assistance of counsel because the district court refused
her request for separate counsel without adequate inquiry as to her
reasons. Unlike the above claims, we find the record below is sufficiently
developed to address this issue.

Carleen Thomas first raised her request for separate counsel on the day of
trial. The Government informed the district court that Defendants had
previously been informed of their right to separate counsel but they had
waived that right. While considering Carleen Thomas' late request, the
district court made additional inquiries and reviewed the record to
determine whether she had indeed been informed of, and had waived, that
right. The inquiry revealed both events had occurred. The district court
refused to delay the trial that was set to begin immediately but did offer
to arrange for separate standby counsel for Carleen Thomas. The court also
informed Carleen Thomas that, because she was not indigent, she would have
to reimburse this counsel at the rate charged by court-appointed attorneys.
After considering the court's offer, Carleen Thomas stated on the record
that she wished to continue with Mr. Williams as

her retained counsel. In light of the above, we reject Carleen Thomas'
claim.

I.

Defendants' final argument challenges the district court's denial of a
two-level reduction in their sentences for acceptance of responsibility.
They claim they are entitled to the reduction because they fully
acknowledged their conduct in running the AABBS. The sentencing court's
finding regarding acceptance of responsibility is entitled to great
deference and is reversed only if found to be clearly erroneous. See United
States v. Ivery, 999 F.2d 1043, 1045 (6th Cir. 1993); see also U.S.S.G. §
3E1.1(a), comment, n.5.

U.S.S.G. § 3E1.1(a) provides for a two-level reduction for a defendant who
"clearly demonstrates acceptance of responsibility." To qualify for this
reduction, Defendants were required to show by a preponderance of the
evidence that they had accepted responsibility for the crime committed.
United States v. Williams, 940 F.2d 176 (6th Cir.), cert. denied, 502 U.S.
1016 (1991). U.S.S.G. 3E1.1(a), comment, n.2 clarifies that the reduction
is "not intended for a defendant who puts the government to its burden of
proof at trial by denying the essential factual elements of guilt, is
convicted, and only then admits guilt and expresses remorse." This comment
further clarifies that only in "rare situations" will the adjustment apply
after a trial and verdict of guilt, e.g., where the defendant makes a
challenge to the applicability of a statute to his conduct. Defendants
assert that they fit the "rare situation" and should not have been denied
the reduction.

The sentencing judge, however, stated more than one ground for denying the
two-level reduction. She noted that neither Defendant acknowledged the
character of the materials found to be obscene. In addition, she found no
indication that either of them had put aside making their living through
the same means. U.S.S.G. § 3E1.1(a), comment n.1(b) lists voluntary
termination or withdrawal from criminal conduct as a factor to be
considered by the

court. This court has recognized that the two-level adjustment is properly
denied under circumstances where the defendant continues conduct that is
the same type as the underlying offense. See United States v. Reed, 951
F.2d 97, 99-100 (6th Cir. 1991), cert. denied, 503 U.S. 996 (1992); United
States v. Snyder, 913 F.2d 300, 305 (6th Cir. 1990), cert. denied, 498 U.S.
1039 (1991). Accordingly, we hold that the sentencing court's denial of the
two-level reduction was not clearly erroneous.

III.

For the foregoing reasons, this court AFFIRMS Robert and Carleen Thomas'
convictions and sentences.

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