U.S. v. Ragsdale

Citation426 F.3d 765
Decision Date27 September 2005
Docket NumberNo. 04-10291.,04-10291.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Garry Layne RAGSDALE; Tamara Michelle Ragsdale, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

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

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

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

Before KING, Chief Judge, and BENAVIDES and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

This appeal arises from the defendants', Garry and Tamara Ragsdale, conviction following a jury trial on one count of conspiracy in violation of 18 U.S.C. § 371, and two counts of mailing obscene materials and aiding and abetting in violation of 18 U.S.C. §§ 1461 and 1462. The Ragsdales appeal from their convictions and sentences. They also challenge, on various grounds, the constitutionality of § 1461. For the reasons set forth below, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1998, the Dallas Police Department received a complaint from a Berlin resident about pornography sold from www.geschlecht.com.1 The website, which was entitled "Rape Video Store," advertised that it sold videotapes of actual rapes. The videotapes were separated into two categories on the website, the "Real Rape Series" and the "Brutally Raped Series." Upon investigating, the Berlin resident determined that the website was registered to Garry Ragsdale ("Garry") of Fort Worth, Texas and he contacted the Dallas/Forth Worth authorities. Detective Doyle Furr was assigned to investigate the complaint. He recognized the name and address of the website owner as that of a fellow Dallas police officer. Furr, using the name Charles Taylor, purchased two videotapes from geschlecht.com that were delivered to an undercover post office box in Dallas, Texas. He later made 6 additional purchases the eight videotapes he purchased in total constituted the Ragsdales' entire inventory. Two of the videos are alleged to be obscene.

One tape, an hour long Japanese language video entitled "Brutally Raped 5," was touted as being the actual rape of a young woman.2 In the first half of the video, the woman seems to consensually engage in various sexual activities with as many as three different males. In addition to the protracted depictions of intercourse between her and the men, the remaining half of the video depicts in graphic detail, among other things, her being hoisted up by her ankles upside down with chains and then being sodomized with various objects and seemingly tortured with hot wax. She is also flogged with a whip by a female dominatrix and subsequently sodomized with a baseball bat, which is secured in place with heavy rope. The female and male participants then seem to taunt her while she cries. The second tape, "Real Rape 1," is an hour long Dutch video that depicts a young woman hitch hiker being picked up by a male in a car. She eventually flees from the car into a wooded area where she is pursued by the driver. The man catches up to her and ties her up-first on the ground and later to a tree. There are lengthy zoom lens pictures of her being sodomized. The prosecution argued that what the viewer sees in the next scene is the woman being forced to fellate and then being raped. The video abruptly changes to an indoor location and the woman, who is now tied to a chair, has changed her attire. It then looks as if the man hits her and cut her with a knife. Thereafter, the video shows protracted close up shots of male and female genitalia engaged in a variety of sexual acts that the prosecution argued was again non-consensual by the female.

On July 9, 1998, the Federal Bureau of Investigation ("FBI"), in conjunction with the Dallas Police Department and United States Postal Inspectors, obtained a search warrant for the Fort Worth home of Garry and Tamara Ragsdale. The FBI stopped the couple and their two young children as they were driving away from their home. In the vehicle were several packages of the videotapes sold from their online store that the Ragsdales admitted they were about to take to the post office to mail. Garry was placed under arrest. He waived his Miranda rights. He admitted that he owned and managed G Rags, Inc. Through G Rags, Inc., the Ragsdales sold dietary supplements and pornographic videos on the internet, including "Real Rape 1" and "Brutally Raped 5." Garry was initially charged with obscenity under Texas state law, a Class A misdemeanor, but those charges were later dropped. After 8 years as a Dallas police officer, Garry was fired from his job for conduct unbecoming of an officer.

The officers accompanied Tamara Ragsdale ("Tamara") back to her home where they executed a search warrant. Tamara gave a statement corroborating that she and her husband sold the videotapes at issue on the internet. The Ragsdales conducted business via an AOL account owned by Garry but paid for with a credit card in Tamara's name. She stated that she would duplicate the master videos of the pornographic tapes they offered for sale, often with the monitor off so she would not have to view the activities in the tapes, and she would then mail the duplicated copies to their internet customers. The Ragsdales kept detailed business records that are a part of the appellate record and demonstrate that despite the short four month period the Ragsdales' "Rape Video Store" operated, it still managed to accumulate a large number of customers from all over the world. The Ragsdales shut down the pornography end of their internet business following the FBI raid.

Almost five years later, in March of 2003, Tamara and Garry were each indicted on one count of conspiracy in violation of 18 U.S.C. § 371, and two counts of mailing obscene matter, and aiding and abetting in violation of 18 U.S.C. §§ 1461 and 1462. The indictment alleged that from April 27, 1998 to about July 9, 1998, the Ragsdales' sold obscene materials on the internet. A jury trial commenced on October 14, 2003. The district court appointed separate counsel to represent them. At trial, the couple conceded that they sold the videos but they asserted that the tapes are not obscene. After 5 hours of deliberation, the jury found them both guilty of all charges. The district court sentenced Garry Ragsdale to 33 months' imprisonment, three years' supervised release and a $300 special assessment. The district court sentenced Tamara Ragsdale to 30 months' imprisonment, three years' supervised release, and a $300 special assessment.

The Ragsdales now appeal their convictions and sentences. They collectively put forth three points of error: (1) the district court erred in denying their separate motions for judgment of acquittal; (2) the district court erred in refusing to grant a downward departure for each of the defendants for acceptance of responsibility; and (3) the district court erred in raising the defendants' offense level nine levels based on facts that were not proven to the jury beyond a reasonable doubt, in violation of United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). The Ragsdales also challenge the constitutionality of 18 U.S.C. § 1461 on various grounds as well as the constitutionality of the judicially created test for obscenity.

In addition, Garry, alone, raises eight separate issues on appeal, specifically, whether the district court erred in (1) admitting foreign language tapes without requiring the government to translate them; (2) excluding defense evidence of comparable materials; (3) excluding the testimony of Andrew Chatham, a Dallas area attorney; (4) excluding evidence pertaining to an advice of counsel defense; (5) instructing the jury that they could find that the videos appealed to the prurient interest of a deviant group; (6) instructing the jury that the video must "meet" the three prong Miller test; (7) refusing to instruct the jurors that they may find that community standards do not exist; and (8) sentencing him pursuant to the Federal Sentencing Guidelines instead of under the Texas sentencing scheme for violations of state obscenity law.

DISCUSSION
I. Judgment of Acquittal

The denial of a motion for judgment of acquittal is reviewed de novo. United States v. Floyd, 343 F.3d 363, 370 (5th Cir.2003). "`We will affirm the jury's verdict if a reasonable trier of fact could conclude from the evidence that 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. Our review of the sufficiency of the evidence does not include a review of the weight of the evidence or of the credibility of the witnesses.'" Id. (citation omitted).

Garry and Tamara 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. 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, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), the Supreme Court read the terms "obscene, lewd, lascivious, or filthy" used in §§ 1461 and 1462, to refer to the general prohibition of "obscene" materials.

To determine whether a work is obscene, the prosecution must establish that (a) "`the average person, applying contemporary community standards'...

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