US v. McCoy
| Citation | 678 F. Supp.2d 1336 |
| Decision Date | 24 December 2009 |
| Docket Number | No. 1:07-CR-18 (WLS).,1:07-CR-18 (WLS). |
| Parties | UNITED STATES of America, Plaintiff, v. Frank Russell McCOY, Defendant. |
| Court | U.S. District Court — Middle District of Georgia |
James N. Crane, Albany, GA, Chantel L. Febus, Damon King, U.S. Department of Justice, Washington, DC, for Plaintiff.
Catherine Michelle Leek, Morad Fakhimi, Stephen R. Glassroth, Federal Defenders of the Middle District of Georgia, Macon, GA, for Defendant.
Presently pending before the Court are Defendant's Motion for Extension of Time (Doc. 36); Defendant's Motion to Dismiss the Indictment for Improper Venue (Doc. 33); Defendant's Motion to Dismiss the Indictment on Multiple Grounds of Preclusion and Estoppel (Doc. 34); Defendant's Motion to Unseal Transcripts of Grand Jury Proceedings (Doc. 41); Defendant's Motion to Dismiss Indictment on Grounds of Government Misconduct Before the Grand Jury (Doc. 50); Defendant's Motion to Dismiss the Indictment for Failure to State an Offense (Doc. 70); Defendant's Amended Motion to Dismiss the Indictment for Failure to State an Offense (Doc. 72); Government's Motion for Enlargement of Pages (Doc. 74); Defendant's Motion to Strike (Doc. 76); and Defendant's Motion for Continuance (Doc. 122).
For the following reasons, Defendant's Motion for Extension of Time (Doc. 36) is DENIED as moot; Defendant's Motion to Dismiss the Indictment for Improper Venue (Doc. 33) is DENIED and the Court will not grant leave for an interlocutory appeal of the issue; Defendant's Motion to Dismiss the Indictment on Multiple Grounds of Preclusion and Estoppel (Doc. 34) is DENIED; Defendant's Motion to Unseal Transcripts of Grand Jury Proceedings (Doc. 41) is DENIED; Defendant's Motion to Dismiss Indictment on Grounds of Government Misconduct Before the Grand Jury (Doc. 50) is DENIED; Defendant's Motion to Dismiss the Indictment for Failure to State an Offense (Doc. 70) is DENIED as moot; Defendant's Amended Motion to Dismiss the Indictment for Failure to State an Offense (Doc. 72) is DENIED; Government's Motion for Enlargement of Pages (Doc. 74) is GRANTED; Defendant's Motion to Strike (Doc. 76) is DENIED as moot; and Defendant's Motion for Continuance (Doc. 122) is DENIED.
The various motions were filed and fully briefed by Defendant and the Government mainly between August 22, 2008 and February 13, 2009. A hearing regarding Defendant's four (4) Motions to Dismiss and other pending motions was held on February 27, 2009.1 (Docs. 101, 111). After the Court granted several Motions to Continue Trial in the Interest of Justice (see Docs. 25, 99, 105), trial has been set for the Court's January 2010 Albany Term. (Doc. 119).
Defendant, a resident of Minnesota, is a fiction writer. As many authors tend to do, Defendant's body of work pertains to a particular range of subject matter. In Defendant's case, according to the Indictment against him, the preferred literary milieu is "obscene `fantasy' stories describing in explicit and graphic detail the sexual abuse, rape, and murder of children." (Doc. 1 at 2). At all times relevant to the Indictment, Defendant's fiction was posted on the Internet.
After Defendant's writings came to the attention of federal authorities during the child pornography prosecution of a separate criminal defendant, federal agents from the Middle District of Georgia conducted an investigation into Defendant. (Doc. 37 at 1 to 2). In 2005 and 2006, an undercover agent engaged in email correspondence with Defendant in which Defendant provided links to websites on which his writings could be obtained. (Doc. 37 at 3 to 7). The agent activated the links and downloaded numerous stories attributed to Defendant from the websites into the Middle District of Georgia. (Doc. 37 at 7). One of the websites, www.youngstuff.com, was hosted in the Southern District of Texas; another website, ftp.asstr.org, was hosted in the Northern District of California. (Doc. 37 at 2, 7). All of the stories were allegedly written and posted by Defendant in the District of Minnesota. (Doc. 37 at 6).
On June 13, 2007, the Grand Jury in the Middle District of Georgia returned a one-count Indictment against Defendant charging a violation of 18 U.S.C. § 1462, Transportation of Obscene Matters. (Doc. 1). Expressly included in the charge is Defendant's aiding and abetting liability under 18 U.S.C. § 2. (Doc. 1 at 1 to 2). The Indictment alleges that Defendant "did knowingly use an interactive computer service for carriage in interstate and foreign commerce obscene matters, and did aid and abet persons known and unknown to the grand jury in the use of an interactive computer service for carriage in interstate and foreign commerce obscene matters." (Doc. 1 at 1). Providing alleged facts in support of the charge, the Indictment alleges that Defendant "used an interactive computer service to transmit to the Middle District of Georgia and elsewhere, links to three websites: www. young-stuff.com/frank, ftp.asstr.org/pub/Authors/Frank_McCoy/index.htm; and www.mrdoubleena.com/htm/frank/index.htm;... from which web sites the obscene stories were downloaded into the Middle District of Georgia and elsewhere." (Doc. 1 at 1-2). In relevant part, 18 U.S.C. § 1462 provides that: "Whoever ... knowingly uses any ... interactive computer service ... for carriage in interstate or foreign commerce—(a) any obscene, lewd, lascivious, or filthy ... writing ... or other matter of indecent character; ... —Shall be fined under this title or imprisoned...." 18 U.S.C. § 1462.
On November 21, 2005, one-and-a-half years prior to the Indictment's issuance, Federal Magistrate Judge Franklin L. Noel of the District of Minnesota had issued an Amended Order in which he denied the Government's application for a search warrant of Defendant's home there. (Doc. 34-2 at 5). In the Amended Order, Judge Noel stated that to issue the search warrant, "this Court, applying contemporary Minnesota standards, must conclude that the fictional stories described in the affidavit meet the Miller v. California standard." (Doc. 34-2 at 4 (emphasis added)). Judge Noel described the Miller standard as: "a state could outlaw works that, applying contemporary community standards, depict or describe specific sexual conduct in a patently offensive way and which taken as a whole do not have serious literary, artistic, political, or scientific value." (Id.). Judge Noel concluded that:
In light of the language used by the Supreme Court in Ashcroft v. Free Speech Coalition, and in light of the evolution of community standards since the Court decided Miller, this Court is unprepared to conclude that the depraved fictional stories described in the affidavit submitted in support of the Search Warrant are obscene, within the meaning of Miller v. California.... The written works at issue in the instant search warrant application appear to be available only to those, like the investigators in this case, who expressly seek such content.... As the Court is unwilling to subscribe to the Government's effort to criminalize the written word, it is unable to conclude that there is probable cause to believe that evidence of any crime will be found on the computers the Homeland Security Agent seeks to search.
The Government appealed Judge Noel's ruling. (Doc. 34-2 at 6 to 10). On December 2, 2005, Federal District Court Judge Ann D. Montgomery, also of the District of Minnesota, issued a Memorandum Opinion and Order denying the Government's appeal and adopting Judge Noel's Amended Order. (Doc. 34-2 at 11). Judge Montgomery stated that "the pivotal issue is whether the writings expected to be found at the premises described in the search warrant constitute obscene, lewd, lascivious, or filthy writings." (Doc. 34-2 at 13). But, Judge Montgomery said, "the Court is not prepared to hold that the writings are obscene under the definition of Miller." (Doc. 34-2 at 14). Judge Montgomery gave four reasons for her ruling. First, "while many persons, including this Court, find the materials at issue depraved and disturbing, community standards have significantly evolved since Miller." (Id.). Second, the stories "are not publically available on the internet; rather, the ICS agent specifically requested them in an email." (Id.). Third, "the writings themselves are replete with warnings that the material contained within could be considered objectionable." (Id.). Finally, based upon a reading of Ashcroft, "given the fictional nature of the writings ... the warrant must be denied." (Id.). Judge Montgomery concluded, "In sum, the Court agrees with Judge Noel's declaration that he is not willing to participate in the criminalization of the written word, available only to those who specifically seek it out." (Id.).
In the hours prior to Judge Noel's initial Order denying the Government's search warrant application, Magistrate Judges in both the Northern District of Texas and the Middle District of Georgia had granted search warrants to the Government in relation to the investigation and prosecution of Defendant. (Doc. 51 at 18 n. 1).
Defendant alleges that the Government, while serving its role as prosecutor in the Grand Jury process, did not submit the Orders of Judge Noel and Judge Montgomery to the Grand Jury for its deliberation. (Doc. 50 at 3 n. 1 and accompanying text). The Government has not affirmed or denied Defendant's allegation. (See Doc. 58 at 8 (); see generally Doc 58). The transcripts of the Grand Jury's proceedings are sealed. (Cf. Doc. 41).
Defendant's Motion for Extension of Time (Doc. 36) requests an adjustment of the time periods set in the Court's Order of July 18, 2008 (Doc. 31) for the filing of a proposed briefing schedule. This issue was addressed by both Defendant and the...
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