U.S. v. McDowell

• Decision Date: 24 August 2007
• Docket Number: No. 06-10818.,06-10818.
• Citation: 498 F.3d 308
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brent Alan McDOWELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

498 F.3d 308

UNITED STATES of America, Plaintiff-Appellee, v. Brent Alan McDOWELL, Defendant-Appellant.

No. 06-10818.

United States Court of Appeals, Fifth Circuit.

August 24, 2007.

Vijay Shanker (argued), U.S. Dept. of Justice, Richard Dennis Green, U.S. Dept. of Justice, Criminal Div., Washington, DC, Linda C. Groves, Dallas, TX, for Plaintiff-Appellee.

F. Clinton Broden (argued), Broden & Mickelsen, Dallas, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, DAVIS and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

On numerous bases, Brent Alan McDowell challenges his conviction and sentence for aiding and abetting the mailing of obscene material, in violation of 18 U.S.C. §§ 2(a) (aiding and abetting) and 1461 (knowingly using the United States mails to deliver obscene material). Primarily at issue is whether the evidence was sufficient to support that conviction. In that regard, McDowell failed to properly move at trial for judgment of acquittal. Accordingly, our standard of review is narrowed greatly to whether the conviction constitutes a manifest miscarriage of justice. That standard is satisfied, however, by the Government's failing to show McDowell possessed the mens rea necessary to aid or abet the violation of § 1461. VACATED.

I.

McDowell and his co-defendants, Gartman and Santilena, operated an internet enterprise, Conquernet, Inc., which used a website to sell pornographic videotapes, CDs, and DVDs. Prior to some point in 2001, its profits had been split among Gartman (the owner), McDowell (who, among other things, was an officer of Bamcom, Inc., the website's billing contact), and Morse (who filled orders, processed payments, duplicated videos, and mailed them to customers). Santilena apparently substituted into Morse's role and profit-sharing after Morse left the company in 2001. Around that time, Gartman and McDowell moved to Reno, Nevada, in hopes of finding an environment more accepting of their business.

The investigation of Conquernet began in April 1998 in response to complaints concerning a related website and the unauthorized use of a post-office box. (Concerning the convictions for that related website, see United States v. Ragsdale, 426 F.3d 765, 768-70 (5th Cir. 2005), cert. denied, 546 U.S. 1202, 126 S.Ct. 1405, 164 L.Ed.2d 105 (2006).) Based on these complaints, authorities, including the Dallas, Texas, Police Department, the FBI, and the Postal Inspection Service, began investigating activities related to Conquernet.

Postal Inspectors' surveillance in July 1998 revealed Morse's mailing sadomasochistic videos using, as the return address, a post-office box he formerly rented. Four years later, in August 2002 (approximately one year after Morse had left the company), while Gartman was living in Canada, Gartman and McDowell were stopped in separate vehicles at the Canadian border. Canadian customs officials confiscated, from a suitcase in Gartman's vehicle, 30 CDs containing a one-hour sadomasochistic movie.

On 17 December 2002, a Postal Inspector, posing as a Conquernet customer, ordered from its website a set of ten CD-ROM videos from the "Sexual Torture" category, including one titled "Torture Video 23", advertised as, among other things, "really hard S&M [sadistic and masochistic] action". Without offering a choice of shipping method, the website stated the videos would be delivered by United Parcel Service (UPS). The Postal Inspector paid using PayPal, whose records showed the payment went to Santilena's PayPal account and was ultimately shared with an account belonging to Gartman's wife. When the Postal Inspector did not receive that shipment by 7 January 2003, he sent an inquiry to the email address provided in his order's email receipt; that email address was later determined to belong to Santilena. A same-day response, signed "Webmaster", stated: "orders are sent ground UPS so it can take 3-9 business days depending on where you are at [sic]".

When the order had not been received by 28 January, the Postal Inspector emailed another inquiry, this time attaching his transaction information. Again, he received a response from "Webmaster", stating the order had been shipped in late December by UPS ground.

On 29 January, a third email inquiry was sent. That same day, the Postal Inspector received a response, stating a duplicate of the order would be sent through the United States mails.

Both shipments (via UPS and the mails) were received. Fingerprints on the mailed package matched Santilena's. Part of "Torture Video 23" was identical to that contained on the CDs confiscated, as discussed above, by Canadian customs officials in 2002 from Gartman, when McDowell had been present in another vehicle.

McDowell, Gartman, and Santilena, were indicted. McDowell was charged in four counts: conspiring to violate federal obscenity laws (18 U.S.C. §§ 371, 1461, and 1465); and for violating, and aiding and abetting the violation of 18 U.S.C. § 1465 (two counts; knowingly using an interactive computer service to sell and distribute obscene material), and 18 U.S.C. § 1461 (knowingly using the United States mails to deliver obscene material). McDowell's motion to sever his trial from that of the other defendants was denied.

Following the four-day trial of McDowell, Gartman, and Santilena, a jury found Gartman guilty of conspiring to violate federal obscenity laws and of mailing obscene matter, but acquitted him on his remaining charges. It acquitted Santilena on the two counts with which he was charged. It found McDowell guilty of aiding and abetting the use of the United States mails to deliver obscene material, but acquitted him on the remaining three counts.

McDowell's motions for judgment of acquittal at trial and post-verdict were denied, as was his new-trial motion. He was sentenced, inter alia, to 30 months' imprisonment.

II.

McDowell raises numerous issues on appeal. Because the evidence is insufficient to convict, we do not reach his other contentions. In considering the sufficiency issue, the starting point, as always, is deciding which standard of review applies. Only through that prism can the claim be decided.

A.

When an insufficiency-of-the-evidence claim of error is properly preserved through a motion for judgment of acquittal at trial, it is reviewed de novo. Ragsdale, 426 F.3d at 770. Under that standard, "`[w]e will affirm ... if a reasonable trier of fact could conclude ... the elements of the offense were established beyond a reasonable doubt, viewing the evidence in the light most favorable to the verdict and drawing all reasonable inferences from the evidence to support the verdict'". Id. at 770-71 (quoting United States v. Floyd, 343 F.3d 363, 370 (5th Cir. 2003)).

When, as here, however, a motion for judgment of acquittal insufficiently preserves a claim, our review is only for a manifest miscarriage of justice. E.g., United States v. Knezek, 964 F.2d 394, 400 (5th Cir. 1992). Such a miscarriage "exist[s] only if the record is `devoid of evidence pointing to guilt,' or ... `because the evidence on a key element of the offense [i]s so tenuous that a conviction would be shocking'". Id. at 400 n. 14 (quoting United States v. Ruiz, 860 F.2d 615, 617 (5th Cir. 1988)). In making this determination, as with the usual sufficiency standard, we consider the evidence "`in the light most favorable to the government, giving the government the benefit of all reasonable inferences and credibility choices'". Id. (quoting Ruiz, 860 F.2d at 617).

Defendants did not present evidence. McDowell moved for a judgment of acquittal after the Government rested. But that motion challenged only the obscenity vel non of the video, not whether the Government had proved McDowell possessed the requisite mens rea. McDowell's post-verdict written motion for judgment of acquittal contended, inter alia, the aiding-and-abetting mens rea evidence was insufficient.

To preserve de novo review, however, a defendant must specify at trial the particular basis on which acquittal is sought so that the Government and district court are provided notice. E.g., United States v. Phillips, 477 F.3d 215, 219 (5th Cir. 2007) ("`[w]here, as here, a defendant asserts specific grounds for a specific element of a specific count for a Rule 29 motion, he waives all others for that specific count'" (quoting United States v. Herrera, 313 F.3d 882, 884 (5th Cir. 2002) (en banc))), petition for cert. filed, 75 U.S.L.W. 3663 (U.S. May 30, 2007) (No. 06-1602); United States v. Carbajal, 290 F.3d 277, 288-89 n. 19 (5th Cir. 2002) (motion for judgment of acquittal based on sufficiency challenge was "not adequate to put the government or the district court on notice that [defendant] challenged [the verdict on other grounds]"); see also FED. R.CRIM. P. 29. As stated, claims not specified at trial are reviewed only under the extremely narrow manifest-miscarriage-of-justice standard. Phillips, 477 F.3d at 219.

It bears noting that the Government did not raise McDowell's failure at trial to specify his insufficiency claim in either its written response to his post-verdict written motion or its brief here. Even though McDowell's brief in this court does not mention standard of review, the Government, in its brief, erroneously states it should be de novo. It goes without saying, however, that "we, not the parties, determine our standard of review". United States v. Davis, 380 F.3d 821, 827 (5th Cir. 2004).

B.

"Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal." 18 U.S.C. § 2(a). For such aiding and abetting, the Government must prove: the elements of the substantive offense occurred; and the defendant "`associate[d] himself with the venture, ... participate[d] in it as in something ... he wishe[d] to bring about,...