United States v. Salcedo, 18-40359

• Decision Date: 10 May 2019
• Docket Number: No. 18-40359,18-40359
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Spencer SALCEDO, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

924 F.3d 172

UNITED STATES of America, Plaintiff - Appellee

v.Spencer SALCEDO, Defendant - Appellant

No. 18-40359

United States Court of Appeals, Fifth Circuit.

FILED May 10, 2019

John A. Reed, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorney's Office Southern District of Texas, Suite 2300, 1000 Louisiana Street, Houston, TX 77002, for Plaintiff - Appellee

Marjorie A. Meyers, Federal Public Defender, Evan Gray Howze, Assistant Federal Public Defender, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Suite 1350, 440 Louisiana Street, Houston, TX 77002, for Defendant - Appellant

Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.

PER CURIAM:

A jury convicted Spencer Salcedo on two counts of using a means of interstate commerce to knowingly attempt to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity and two counts of using a means of interstate commerce to knowingly attempt to transfer obscene matter to a minor under the age of 16. Salcedo appeals his conviction on the counts involving transfer of obscene material in violation of 18 U.S.C. § 1470, arguing both that the image at issue was not obscene and that he did not intend to transfer the image to any minor under the age of 16. We affirm.

I

This case arises from an undercover sting operation conducted by a partnership between the Corpus Christi Police Department’s Internet Crimes Against Children Unit and the United States Department of Homeland Security. The goal was to locate individuals with sexual interest in minors and prevent them from contacting actual children. As part of the operation, undercover Corpus Christi Police Officer Alicia Escobar posted an advertisement on Craigslist that conveyed, in coded language, that Escobar wanted to recruit someone to teach her (fictitious) daughters how to have sex.

Salcedo contacted Escobar using Craigslist’s email system. The two then exchanged a series of text messages. Over the course of the conversation, Salcedo confirmed that he was "into YOUNGER," implying that he was sexually interested in children, and requested a "pic" of Escobar’s daughters, who she told him were 11 and 14 years old. Escobar sent him a photograph of the "daughters," who were actually two youthful-looking police officers with their faces partially cropped out of the photograph. Escobar asked Salcedo for his age and information about the size of his penis, which Salcedo provided. Immediately after, Salcedo asked "But do they [know] what’s going on[?]" Escobar said "Oh ya they wanna learn .... what can you teach them and is tomorrow ok?" She then said "So I can get them ready. ... Can I see a pic?"

Salcedo responded with a photograph of a man prominently displaying his erect penis, which occupied the foreground of the image. Impliedly, it was a photo of himself, but Salcedo had in fact downloaded the image from the internet. He also texted, "I can teach them real good." Escobar asked, "Can I show the girls?" and Salcedo agreed. Later in their exchange of text messages, Escobar told Salcedo she had showed her daughters the picture and they were excited, and he responded, "Oh really thats [sic] awesome.[ ] Now I’m excited." After Salcedo and Escobar made plans to meet the next morning, Salcedo asked her what the daughters said about the picture, and she described the reactions of the fictitious children.

The next day, Salcedo was arrested without incident in his car at the motel where he and Escobar had arranged to meet. He was charged in a superseding indictment with two counts of using a means of interstate commerce to knowingly attempt to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity, in violation of 18 U.S.C. § 2422(b), and two counts of using a means of interstate commerce to knowingly attempt to transfer obscene material to a minor under age 16, in violation of 18 U.S.C. § 1470.¹ The government filed a voluntary bill of particulars in exchange for Salcedo’s promise to withdraw his motion to dismiss the superseding indictment, specifying that "[r]egarding Count Three and Four of the Indictment, the obscene matter referred to is an image of an erect penis."

After a two-day jury trial, Salcedo moved for judgment of acquittal on the obscenity counts under Federal Rule of Criminal Procedure 29, arguing that "the Government did not prove that ... the picture of the penis was obscene material [or that Salcedo] ... attempted to transfer any type of obscene material to any minor." The district court denied the motion, Salcedo rested his case, and the jury found Salcedo guilty on all four counts. The district court granted Salcedo a downward variance from the Guidelines range, sentencing him to concurrent terms of 168 months in prison and five years of supervised release, for the first and second counts, and 60 months in prison and three years of supervised release, for the third and fourth counts, with a $ 100 special assessment per count. Salcedo appeals the denial of his motion for judgment of acquittal on the obscenity counts.

II

Although we review the denial of a motion for judgment of acquittal de novo, we are "highly deferential to the verdict."² We "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."³

These well-settled principles differ in the context of obscenity. "While the definition of obscenity is a legal conclusion, whether a work qualifies as obscenity vel non as applied to the facts of a particular case is a question of fact."⁴ Because of the First Amendment implications of obscenity laws, however, we must exercise "independent constitutional judgment as to the obscenity of the materials in question."⁵

Our caselaw does not settle what this "independent constitutional judgment" entails. At a minimum, "an appellate court could refuse to uphold a fact-finder’s determination of obscenity where it would be ‘wholly at odds’ with Miller —e.g., where a jury based an obscenity conviction ‘upon a defendant’s depiction of a woman with a bare midriff.’ "⁶ Albeit in unpublished decisions, we have repeatedly affirmed obscenity-related convictions because a reasonable juror applying contemporary community standards could determine that the material at issue satisfied Miller ’s second prong.⁷ But Salcedo urges us to conduct something closer to a de novo review of whether the photograph at issue was obscene, arguing that sufficiency-of-the-evidence review does not comport with our responsibility to independently safeguard the First Amendment’s protections. We need not fully resolve what degree of scrutiny is appropriate. Instead, as we will explain, even a de novo review of the photograph establishes its obscenity under section 1470.

III

A conviction under 18 U.S.C. § 1470 requires proof that the defendant knowingly attempted to transfer obscene material to a minor under the age of 16 through the mail or any means of interstate or foreign commerce.⁸ Section 1470 allows for conviction even where the minor was fictitious, as in this law enforcement operation, so long as the defendant attempted to engage in conduct that otherwise would have been prohibited if the minor were real.⁹

A

Salcedo first challenges the jury’s determination that the image he sent Escobar was obscene. Miller v. California established a three-part test for whether material is obscene and therefore unprotected by the First Amendment:

(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

(c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.¹⁰

Because 18 U.S.C. § 1470 does not further define obscenity, we look to Miller ’s three-pronged definition to determine whether Salcedo attempted to transfer obscene material to a minor under the age of 16.¹¹ Salcedo solely contests the sufficiency of the evidence to support the second prong—that the photograph depicted, "in a patently offensive way, sexual conduct specifically defined by the applicable ... law." The Supreme Court has since clarified that "[a]lthough the phrase ‘contemporary community standards’ appears only in the ‘prurient interest’ prong of the Miller test, ... the ‘patently offensive’ prong of the test is also a question of fact to be decided by a jury applying contemporary community standards."¹² "Community standards" are assessed in terms of what is obscene to the average adult in a given community, not the average minor.¹³

Further, where, as here, the relevant statute does not further define obscenity, we look under the second prong to whether the allegedly obscene material falls within "patently offensive representations or descriptions of that specific ‘hard-core’ sexual conduct given as examples in Miller ."¹⁴ Miller singled out "[p]atently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated" and "[p]atently offensive representations or depictions of masturbation, excretory functions, and lewd exhibitions of the genitals."¹⁵ The government argues that the image Salcedo sent Escobar was, at a minimum, a patently offensive lewd exhibition of the genitals. We agree.

The parties disagree on what material we may consider in assessing the image’s obscenity. The government urges us to consider the photograph "taken together" or "in conjunction" with the text messages that Salcedo concurrently sent Escobar. Salcedo counters that because the government limited itself in its voluntary bill of...