     Case: 15-41201      Document: 00513687671         Page: 1    Date Filed: 09/21/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                      United States Court of Appeals
                                                                               Fifth Circuit


                                    No. 15-41201
                                                                             FILED
                                                                    September 21, 2016
                                  Summary Calendar
                                                                        Lyle W. Cayce
                                                                             Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

MICHAEL KIRKPATRICK, also known as M. Kirkpatrick,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:13-CR-71-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Michael Kirkpatrick engaged in series of private Internet “chats” with
an undercover police officer who was posing as “Kayla,” a 14 year old girl. On
at least two occasions, Kirkpatrick sent webcam videos of himself
masturbating to “Kayla.” A jury convicted him of two counts of transferring,
or attempting to transfer, obscene material to a minor under the age of 16, in
violation of 18 U.S.C. § 1470. He now appeals.


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-41201     Document: 00513687671     Page: 2   Date Filed: 09/21/2016


                                  No. 15-41201

Claims that § 1470 is unconstitutional
      We review a claim that a statute is unconstitutional de novo. United
States v. Rudzavice, 586 F.3d 310, 315 (5th Cir. 2009). Kirkpatrick first argues
that § 1470 fails to comply with Miller v. California, 413 U.S. 15 (1973), which
sets forth the relevant test for evaluating whether material is obscene, because
the statute does not define “sexual conduct.”      We have rejected a similar
argument § 1470 is unconstitutional because it fails to define the terms
“obscene” and “sexual conduct.” See Rudzavice, 586 F.3d at 314-15. Likewise,
we have held that Miller’s requirement that “sexual conduct” be “specifically
defined by the applicable state law” is satisfied by “authoritative judicial
construction,” and we have found that Miller provided examples of “sexual
conduct.” See United States v. Thevis, 484 F.2d 1149, 1155 & n.8 (5th Cir.
1973) (citing Miller, 413 U.S. at 25).
      Next, Kirkpatrick argues that § 1470 violates the First Amendment in
various ways. The First Amendment permits restrictions upon the content of
speech in certain areas, including obscenity. See United States v. Richards,
755 F.3d 269, 273-74 (5th Cir. 2014). Section 1470 is not unconstitutional
because it applies only to obscene materials, and obscene material is not
subject to First Amendment protections.
      Kirkpatrick also argues that the statute’s reliance on “community
standards” to determine what material is obscene does not provide fair notice
and allows the Government to choose a venue for prosecution that has
favorable “standards.”    These arguments are meritless.       The fact that a
violation of a particular statute may be prosecuted in more than one district
does not render that statute unconstitutional. See United States v. Slepicoff,
524 F.2d 1244, 1249 (5th Cir. 1975). In addition, Kirkpatrick has not shown
that his trial was not properly held in the Eastern District of Texas.



                                         2
    Case: 15-41201    Document: 00513687671     Page: 3   Date Filed: 09/21/2016


                                 No. 15-41201

      Finally, Kirkpatrick argues that § 1470 violates his rights of
confrontation and to present a defense because the Government is not required
to put forth evidence demonstrating the applicable contemporary community
standard. Again, these arguments are meritless. The Supreme Court has held
that jurors may determine the standards of their own community, that jurors
need not be questioned about their understanding of the standards of their
community, and that a similar statute is not unconstitutionally vague on these
bases. See Smith v. United States, 431 U.S. 291, 302, 308-09 (1977); Hamling
v. United States, 418 U.S. 87, 104-05 (1974).
Jury instructions
      Where the defendant requested a jury instruction and the district court
denied the request, we review for an abuse of discretion. United States v.
McClatchy, 249 F.3d 348, 356 (5th Cir. 2001).
      First, Kirkpatrick requested an instruction that, in considering the issue
of community standards, the “community” the jury should consider was a
national community, or the community of persons involved in Internet chat
rooms. We note that Kirkpatrick has not cited any binding precedent holding
that a national standard is appropriate. In addition, the district court provided
this court’s pattern jury instruction on obscenity. See Fifth Circuit Pattern
Jury Instructions (Criminal) § 2.60. “[A] district court does not err by giving a
charge that tracks this Circuit’s pattern jury instructions and that is a correct
statement of the law.” United States v. Richardson, 676 F.3d 491, 507 (5th Cir.
2012) (internal quotation marks and citation omitted).
      Second, Kirkpatrick requested an optional pattern jury instruction that
states, when assessing whether material satisfies the prurient-appeal element
set forth in Miller, a jury may consider whether the material would appeal to
“the sexual interest of a clearly defined deviant sexual group if the material in



                                       3
    Case: 15-41201    Document: 00513687671      Page: 4   Date Filed: 09/21/2016


                                  No. 15-41201

question was intended to appeal to the prurient interest of that group, as
distinguished from the community in general.” Fifth Circuit Pattern Jury
Instructions (Criminal) § 2.60. Kirkpatrick appears to have misunderstood the
rationale for this additional instruction. See Mishkin v. State of New York, 383
U.S. 502, 508 (1966).       In addition, Kirkpatrick has not established that
members of “an adult romance chat room” would constitute “a clearly defined
deviant sexual group,” especially where, as here, the charged conduct occurred
in private chat sessions.
      Third, Kirkpatrick requested an instruction to the effect that, if he did
not believe that “Kayla” was under 16 years of age, he could not be found to
have knowledge of that fact. In cases where the recipient or intended victim is
not actually a minor, it is sufficient that the defendant believes that the
intended victim was a minor. See Rudzavice, 586 F.3d at 313-14. Kirkpatrick
has not shown that the remainder of the instructions, including an explanation
of the statute and a list of the elements of the offense, were legally incorrect.
In addition, we conclude that the district court’s explanation of the elements of
the offense, which included an element requiring the jury to find that, “at the
time [of the offense], the defendant knew or believed the recipient was not yet
16 years old,” “substantially covered” the instruction Kirkpatrick wanted. See
United States v. Chambers, 922 F.2d 228, 241 (5th Cir. 1991).
Sufficiency of the evidence
      Kirkpatrick first argues that the evidence was insufficient to show that
the material he transferred to “Kayla” was obscene. Because he preserved this
issue for appeal, we review this challenge de novo. See United States v. Phea,
755 F.3d 255, 259-60 (5th Cir. 2014), cert. denied 135 S. Ct. 416 (2014).
Reversal is not warranted if, “after viewing the evidence and all reasonable
inferences in the light most favorable to the prosecution, any rational trier of



                                        4
    Case: 15-41201     Document: 00513687671      Page: 5    Date Filed: 09/21/2016


                                  No. 15-41201

fact could have found the essential elements of the crime beyond a reasonable
doubt.” United States v. Vargas-Ocampo, 747 F.3d 299, 301 (5th Cir. 2014) (en
banc) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
      There was extensive evidence showing that Kirkpatrick used a webcam
to send videos of himself masturbating, with the camera focused on his groin,
and that he sometimes moved the webcam to better show his penis and
ejaculate. During these webcam sessions, he continued to have explicit chats
with “Kayla,” including asking whether the videos sexually aroused her.
Therefore, we conclude that a rational trier of fact could have found that these
videos appealed to a “prurient interest” in sex. See Miller, 413 U.S. at 24;
Vargas-Ocampo, 747 F.3d at 301. In addition, we conclude that a rational trier
of fact could have found that the videos depicted “sexual conduct” in a “patently
offensive way” within the meaning of the Miller obscenity test. See Miller, 413
U.S. at 24; Thevis, 484 F.2d at 1155 n.8. Although Kirkpatrick presented
expert testimony that sexual fantasies and masturbation are normal behaviors
and that sexual fantasies are explored on the Internet, the jury was free to
disregard this testimony and find that the videos were obscene. See Hamling,
418 U.S. at 100. Finally, we note that Kirkpatrick has not argued that these
videos had “serious literary, artistic, political, or scientific value.” See Miller,
413 U.S. at 24. He has not shown the evidence was insufficient on this basis.
      Kirkpatrick also argues the evidence was insufficient to show that he
knew that “Kayla” was under 16 years of age. Because Kirkpatrick raised
specific grounds for a judgment of acquittal in the district court, but he did not
include the issue of his knowledge of “Kayla’s” age, he did not preserve this
issue for appeal. See United States v. Herrera, 313 F.3d 882, 884-85 (5th Cir.
2002); see also United States Brown, 727 F.3d 329, 335 (5th Cir. 2013). To
reverse for insufficient evidence on this claim, we must find a “manifest



                                         5
    Case: 15-41201    Document: 00513687671     Page: 6   Date Filed: 09/21/2016


                                 No. 15-41201

miscarriage of justice” occurred, which means that “the record is devoid of
evidence pointing to guilt” or that “the evidence on a key element of the offense
is so tenuous that a conviction would be shocking.” United States v. McDowell,
498 F.3d 308, 312 (5th Cir. 2007) (internal quotation marks and citation
omitted).
      The record is not “devoid of evidence,” nor is the evidence “tenuous,” on
this issue. There was extensive evidence from which a rational trier of fact
could have found beyond a reasonable doubt that Kirkpatrick believed that
“Kayla” was under 16 years of age. See Vargas-Ocampo, 747 F.3d at 301. The
chat sessions contained multiple references to “Kayla’s” purported age,
schoolwork, home life, and sexual inexperience. In addition, in response to his
repeated requests for photographs, Kirkpatrick was sent non-sexual
photographs of an actual 14-year old girl. Although Kirkpatrick testified at
trial that he believed other chat users were merely role playing or fantasizing,
and he specifically denied that he believed “Kayla” was 14 years old, it is
apparent from the jury’s guilty verdict that they did not believe his testimony.
We must accept all credibility choices and reasonable inferences made by the
jury that tend to support the verdict. See United States v. Haines, 803 F.3d
713, 735 (5th Cir. 2015). Therefore, we conclude that Kirkpatrick has not
shown the evidence was insufficient as to this element of the offense.
      AFFIRMED.




                                       6
