United States v. Arthur
| Docket Number | 21-50607 |
| Decision Date | 12 October 2022 |
| Citation | 51 F.4th 560 |
| Parties | UNITED STATES of America, Plaintiff—Appellee, v. Thomas Alan ARTHUR, Defendant—Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Ann Adams, U.S. Department of Justice, Criminal Division, Washington, DC, Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.
Lane Andrew Haygood, Bailey & Galyen, Odessa, TX, for Defendant-Appellant.
Before Davis, Dennis, and Higginson, Circuit Judges.
A jury convicted Thomas Alan Arthur of three counts of producing, distributing, receiving, and possessing an obscene visual depiction of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 1466A(a)(1) ; five counts of using an interactive computer service to transport obscene matters, in violation of 18 U.S.C. § 1462(a) ; and one count of engaging in the business of selling or transferring obscene matters, in violation of 18 U.S.C. § 1466(a). On appeal, Arthur challenges his conviction and sentence. We AFFIRM in part and REVERSE in part.
From the 1990s through 2019, Thomas Alan Arthur operated a website called "Mr. Double." At the time of the FBI investigation into Arthur, the website contained over 25,000 erotic stories, written by several thousand authors who contributed to the site. Many of the stories on the site included graphic depictions of rape, murder, and sexual abuse of children. Authors submitted stories to the site through a form or by email, and Arthur then uploaded the stories to the site. Authors could maintain a profile on the site that included a picture or avatar. While some content on the site was available to anyone for free, full access required a paid subscription.
In November 2019, FBI agents executed a search warrant at Arthur's home in Terlingua, Texas. That same month, Arthur was indicted by a federal grand jury in the Western District of Texas. A nine-count second superseding indictment was filed in October 2020. The second superseding indictment charged Arthur with three counts of producing, distributing, receiving, and possessing an obscene visual depiction of a minor engaged in sexually explicit conduct, in violation of 18 U.S.C. § 1466A(a)(1) (Counts 1, 8, and 9); five counts of using an interactive computer service to transport obscene matters, in violation of 18 U.S.C. § 1462(a) (Counts 2, 3, 4, 5, and 6); and one count of engaging in the business of selling or transferring obscene matters, in violation of 18 U.S.C. § 1466(a) (Count 7). Counts 1, 8, and 9 were premised on drawings used as profile pictures by three authors on Arthur's website, while Counts 2-6 were premised on five separate stories posted on the site, though not written by Arthur. The Government also introduced two stories at trial written by Arthur, which formed part of the basis for the allegation in Count 7.
On the day of trial, the district court held a Daubert hearing on Arthur's proffered expert, Dr. David Ley. At the close of the hearing, the district court excluded Dr. Ley's testimony. The district court supplemented its oral ruling with a written order issued approximately three weeks after the trial. In the written order, the district court based its decision to exclude Dr. Ley's testimony on his lack of qualifications and the lack of reliability in Dr. Ley's methodology.
After the Daubert hearing, the case proceeded immediately to trial. The Government called several federal and state agents and Arthur's wife as witnesses. At the close of the Government's case, Arthur moved for judgment of acquittal, arguing that the Government had proven neither that the stories and drawings lacked "political, scientific, artistic, or literary value," see Miller v. California , 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), nor that the drawings charged depicted minors. The district court denied the motion. Arthur did not present a defense. The jury returned a guilty verdict on all nine counts.
The PSR calculated a Guidelines range of 360 to 1080 months. The maximum term of imprisonment was twenty years on Counts 1, 8, and 9, and five years on Counts 2-7. The district court sentenced Arthur to 240 months' imprisonment on Count 1 and 60 months' imprisonment on Counts 2, 3, 4, and 5, all to run consecutively to each other, as well as 60 months' imprisonment on Counts 6, 7, 8, and 9, to run concurrently, for a total of 480 months' imprisonment and three years' supervised release. Arthur timely appealed.
Arthur argues that the district court erred in denying his request to copy the charged materials. The district court denied Arthur's motion on the ground that the charged materials constituted child pornography. See 18 U.S.C. § 3509(m).
A district court's discovery orders are reviewed for an abuse of discretion. United States v. Dailey , 868 F.3d 322, 327 (5th Cir. 2017). This court "will not reverse on that basis unless a defendant establishes prejudice to his substantial rights." Id. (quoting United States v. Ellender , 947 F.2d 748, 756 (5th Cir. 1991) ).
Under the Federal Rules of Criminal Procedure, "[u]pon a defendant's request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items" that are "material to preparing the defense," that the Government "intends to use ... in its case-in-chief," or that were "obtained from or belong[ ] to the defendant." FED. R. CRIM. P. 16(a)(1)(E). However, 18 U.S.C. § 3509(m)(2)(A) prohibits courts from granting defendants' requests to copy any "material that constitutes child pornography," as defined in 18 U.S.C. § 2256.1
Before us, the parties rightfully agree that none of the charged materials meets the definition of child pornography. See § 2256(8). Though the district court's contrary conclusion was error, Arthur has not met his burden to demonstrate that the error affected his substantial rights. Dailey , 868 F.3d at 327. The Government made the charged materials available to defense counsel and defense experts at the FBI offices in Midland and Alpine, Texas. Arthur makes general assertions that limiting the availability of the charged materials to an in-person visit to a West Texas FBI office during the COVID-19 pandemic prevented him from retaining experts to assist in the preparation of his defense. However, Arthur has not specified any particular expert who he wished to retain but was unable to due to the limited availability of the charged material. See United States v. Kimbrough , 69 F.3d 723, 731 (5th Cir. 1995) (). In addition, three defense experts did view the materials at the FBI office. Therefore, Arthur has failed to show that he was prejudiced by the district court's error.
Arthur challenges two sentences in the district court's jury instructions, which he argues impermissibly shifted the burden of proof and could have caused the jury to conflate the first two prongs of the Miller test.2 At trial, Arthur objected to the district court's proposed instructions on these same grounds.
"The district court's decision to give or exclude a jury instruction is reviewed for abuse of discretion." United States v. Ragsdale , 426 F.3d 765, 779 (5th Cir. 2005). "Failing to give a defendant's suggested instruction is an abuse of discretion if the proposal is (1) substantively correct, (2) not ‘substantially covered’ in the jury charge, and (3) concerns ‘an important point in the trial so that the failure to give it seriously impairs the defendant's ability to present effectively a particular defense.’ " United States v. Spalding , 894 F.3d 173, 188 (5th Cir. 2018) (citation omitted). A district court does not err, however, if the jury charge "tracks the Fifth Circuit Pattern Instructions and correctly states the law." Id. Further, "[a]ny error is subject to harmless-error review." United States v. Cessa , 785 F.3d 165, 185 (5th Cir. 2015). Even "erroneous jury instructions are harmless if a court, after a thorough examination of the record, is able to conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error." United States v. Stanford , 823 F.3d 814, 828 (5th Cir. 2016) (cleaned up); see also Pope v. Illinois , 481 U.S. 497, 501-02, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987).
Arthur challenges two sentences in the district court's charge, drawn directly from the Fifth Circuit Pattern Jury Instructions, explaining the third prong of the Miller test: 3
Arthur argues that the first challenged sentence collapsed the first and second prongs of the Miller test—whether the material appealed to the prurient interest and whether it portrayed sexual conduct in a patently offensive way—into one inquiry into whether the charged materials "portray[ed] sexually oriented conduct." However, he has not shown that the full sentence is a misstatement of the law. Spalding , 894 F.3d at 188. Moreover, the instructions that immediately followed emphasized the distinction between Miller 's three prongs and the requirement that all three be met in order for the jury to find the materials obscene. There was no error in the district court's instruction.
As for the second challenged sentence, Arthur argues that it shifted the burden of proof by instructing the jury to determine whether the charged material "has such value," rather than whether it "lacks" such value. See Miller , 413 U.S. at...
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