     Case: 18-40359   Document: 00514952192        Page: 1   Date Filed: 05/10/2019




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

                                                                           FILED
                                    No. 18-40359                       May 10, 2019
                                                                      Lyle W. Cayce
UNITED STATES OF AMERICA,                                                  Clerk


             Plaintiff - Appellee

v.

SPENCER SALCEDO,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


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.
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                                 No. 18-40359
                                       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
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                                       No. 18-40359
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




       1 18 U.S.C. § 1470 provides that “[w]hoever, using the mail or any facility or means of
interstate or foreign commerce, knowingly transfers obscene matter to another individual
who has not attained the age of 16 years, knowing that such other individual has not attained
the age of 16 years, or attempts to do so, shall be fined under this title, imprisoned not more
than 10 years, or both.”
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                                       No. 18-40359
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




       2  United States v. McCall, 553 F.3d 821, 830 (5th Cir. 2008) (quoting United States v.
Gulley, 526 F.3d 809, 816 (5th Cir. 2008) (per curiam)).
        3 Id. (quoting United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007)).
        4 United States v. Ragsdale, 426 F.3d 765, 782 (5th Cir. 2005).
        5 Id. at 779; see also Bose Corp. v. Consumers Union, 466 U.S. 485, 506 (1984)

(“[A]lthough under Miller v. California, the questions of what appeals to ‘prurient interest’
and what is ‘patently offensive’ under the community standard obscenity test are ‘essentially
questions of fact,’ [Miller] expressly recognized the ‘ultimate power of appellate courts to
conduct an independent review of constitutional claims when necessary.’” (quoting Miller v.
California, 413 U.S. 15, 25, 30 (1973))); Jenkins v. Georgia, 418 U.S. 153, 160 (1974) (“[I]t
would be a serious misreading of Miller to conclude that juries have unbridled discretion in
determining what is ‘patently offensive.’”).
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                                        No. 18-40359
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




       6  United States v. Guthrie, 720 F. App’x 199, 202 (5th Cir. 2018) (per curiam) (quoting
Jenkins, 418 U.S. at 161).
        7 See id. at 203 (“[A]a reasonable fact-finder applying contemporary community

standards could determine that the videos transmitted . . . were ‘patently offensive
representations’ of masturbation or ‘lewd exhibition of the genitals.’” (alteration omitted));
United States v. Kirkpatrick, 662 F. App’x 237, 240 (5th Cir. 2016) (per curiam) (“[W]e
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.”).
        8 18 U.S.C. § 1470.
        9 See United States v. Rudzavice, 586 F.3d 310, 313–14 (5th Cir. 2009).

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                                      No. 18-40359
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




      10 413 U.S. 15, 24 (1973) (internal quotation marks and citations omitted).
      11 See Rudzavice, 586 F.3d at 315; accord Kirkpatrick, 662 F. App’x at 238.
      12 Ashcroft v. Am. Civil Liberties Union, 535 U.S. 564, 576 n.7 (2002) (citation omitted).
      13 See Pinkus v. United States, 436 U.S. 293, 297 (1978).

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                                         No. 18-40359
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 particulars to proving obscenity in “an image of an erect
penis,” we may only consider whether the photograph itself is patently
offensive without looking to additional context from Salcedo’s text-message
conversation with Escobar. Our caselaw is not wholly clear as to whether a jury
is permitted to consider context from outside allegedly obscene material in
assessing whether the material itself meets the “patently offensive” prong. 16


       14  See United States v. Thevis, 484 F.2d 1149, 1155 (5th Cir. 1973) (citing United States
v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 130 n.7 (1973)).
        15 Miller, 413 U.S. at 25.
        16 See Kirkpatrick, 662 F. App’x at 240 (considering the “explicit chats” sent with

allegedly obscene videos in considering whether the videos appealed to the prurient interest,
then solely analyzing whether the videos were patently offensive without reference to the
explicit messages); cf. Penthouse Int’l, Ltd. v. McAuliffe, 610 F.2d 1353, 1363–67 (5th Cir.
1980) (considering the first and third Miller prongs in relation to a work as a whole, but
appearing to analyze the “patently offensive” prong in the context of specific portions of
allegedly obscene works).
        The government cites United States v. Rogers, an unpublished Seventh Circuit case,
for the proposition that “[w]hether . . . a picture or a sentence is obscene cannot be judged in
the abstract, but rather only in the context of its setting, its use, and its audience.” See United
States v. Rogers, 474 F. App’x 463, 468 (7th Cir. 2012) (per curiam) (quoting R.A.V. v. City
of St. Paul, 505 U.S. 377, 427 (1992) (Stevens, J., concurring)). Putting aside Rogers’s
persuasive force as a non-precedential, out-of-circuit opinion citing a Supreme Court
concurrence in a different context that did not itself establish governing law, it is nevertheless
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                                        No. 18-40359
       We conclude that even devoid of the context provided through the text
messages, the photograph was a patently offensive, lewd exhibition of the
genitals that meets Miller’s second prong. Although Miller and its progeny do
not define “lewd exhibition of the genitals,” we agree with the Third Circuit
that such an exhibition involves “showing, evincing, or showing off,” in a
manner “sexually unchaste or licentious,” “suggestive of or tending to moral
looseness,” or “[inciting] to sensual desire or imagination.” 17
       The Supreme Court has observed that “nudity alone is not enough to
make material legally obscene.” 18 Salcedo attempts to extract from this a
principle that even where a representation of an erect penis is the focal point
of an image, the image categorically cannot be obscene unless it has other
features rendering it patently offensive. To be sure, we have often affirmed
findings of obscenity based on representations of male genitalia coupled with
other sexual acts. 19 We find no support in our caselaw, though, for a categorical
rule that some other depiction of sexual activity is required to transform an
image from “nudity alone” into a patently offensive, lewd exhibition of the
genitals. In fact, we previously characterized an image of an erect penis as an
“obscene picture” without further discussion. 20 This is not to say, of course, that
every such image is necessarily patently offensive under Miller’s second



clear that Rogers’s commentary on the importance of “context” does not extend to our inquiry
here. While Rogers looked to concurrent text messages alongside an allegedly obscene image
to conclude that the image depicted sexual conduct, see id. at 468, it looked solely to the image
itself to determine whether it was patently offensive, see id. at 470.
         17 See United States v. Various Articles of Merchandise, Sched. No. 287, 230 F.3d 649,

657 (3d Cir. 2000) (quoting Webster’s Third New International Dictionary (1961)).
         18 Jenkins, 418 U.S. at 161; see Penthouse Int’l, 610 F.2d at 1365.
         19 See Guthrie, 720 F. App’x at 200–03; Kirkpatrick, 662 F. App’x at 240; Ragsdale,

426 F.3d at 774.
         20 See United States v. Hughes, 618 F. App’x 770, 773 (5th Cir. 2015) (per curiam).

Hughes addressed this issue only in passing, and, as an unpublished decision, is not binding
on our panel. We reference it only to demonstrate the absence of a stringent rule of the sort
Salcedo proposes.
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                                      No. 18-40359
prong—but no bright-line principle establishes that without more, an image of
erect male genitalia can never constitute a patently offensive, lewd exhibition
of the genitals.
       Looking solely to the photograph itself, and exercising our independent
constitutional judgment, we are convinced that the photograph Salcedo sent
Escobar was a patently offensive, lewd exhibition of the genitals. 21 As this is
the only portion of the Miller test Salcedo challenges, we conclude that the
material was obscene, as required for his conviction under 18 U.S.C. § 1470.
                                             B
       Salcedo also challenges the sufficiency of the evidence to support finding
that he intended to transfer the image to any minor under the age of 16, as
18 U.S.C. § 1470 also requires. As we have explained, Salcedo sent Escobar the
image over the course of a text-message conversation. When Salcedo asked
Escobar “But do [the daughters know] what’s going on[?],” Escobar responded
with a series of text messages stating “Oh ya they wanna learn . . . . what can
you teach them and is tomorrow ok? So I can get them ready . . . . Can I see a
pic?” Salcedo then sent the image, accompanied by a text message stating, “I
can teach them real good.” Salcedo does not argue that he was entrapped by
Escobar’s request for a “pic”; rather, he solely contests the sufficiency to
support the jury’s finding that he intended to transfer the image to the



       21 Salcedo suggests that because the relevant inquiry is whether the image would be
patently offensive in the eyes of Corpus Christi’s community, we should give significant
weight in our independent constitutional analysis to Officer Escobar’s testimony that an
image of an erect penis may not necessarily be obscene to an adult in the relevant community.
We do not take Escobar to have testified that she did not find this particular image obscene.
In any event, if we are to give weight to contemporary community standards in conducting
our independent constitutional judgment, this suggests that we should also account for the
jury’s determination that the photograph was obscene. To the extent that we incorporate
contemporary community standards into our analysis, then, we are further convinced that
the evidence was sufficient to conclude that the photograph was obscene by the contemporary
standards of a member of the Corpus Christi community.
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                                       No. 18-40359
daughters. Here, we are bound by the typical standard of review for a challenge
to the sufficiency of the evidence: Salcedo must show that no reasonable jury
could conclude that he had intended to transfer the image to minors below the
age of 16. 22
       Although Salcedo concedes that the use of an adult intermediary does
not sever a defendant’s intent to transfer an image to minors under section
1470, he argues that the evidence only supports that he intended to transfer
the image to Escobar, not to the two fictitious children. 23 He argues that he
sent the image to Escobar in response to her request for a “pic,” and that he
only later agreed to her request for permission to show the image to her
daughters. He submits that the only way for a reasonable jury to read the
texting exchange between himself and Escobar is that she was “interviewing”
him for her “sex-tutor” request, she asked if she could have a picture, and he
sent it to her to convince her that he was suitable, accompanied by the words
“I can teach them real good.” 24 He also suggests that the fact that Escobar then
asked if she could “show the girls” indicates that at the time, she did not
understand him to have sent it to her as an intermediary to transfer it to the
minors.



       22 See, e.g., United States v. Evans, 892 F.3d 692, 702 (5th Cir. 2018).
       23 Salcedo also argues that for him to have intended to “transfer” the image to the two
minors under section 1470, he must have intended to convey “possession and control” over
the image to the minors. He relies heavily on our decision in Sealed Appellee 1 v. Sealed
Appellant 1, 767 F.3d 418 (5th Cir. 2013), which interpreted “transfer” as used in 18 U.S.C.
§ 4245. It is unclear why the meaning of “transfer” in section 4245—which allows the
government to hold a commitment hearing on a prisoner’s mental condition when the
prisoner has objected to being “transferred to a suitable facility for care or treatment”—
should apply with equal force in the context of section 1470. Further, even Sealed Appellee 1
rejected the notion that a “transfer” is “restricted in meaning to only physical conveyances or
a change in physical location.” See id. at 422. We therefore decline Salcedo’s invitation to
consider a definition of “transfer” that is limited purely to possession and control.
       24 Salcedo also notes that when he was questioned after his arrest, he was asked

whether he told “the mom” to show the picture to the daughters, and he said that the mother
was the one who asked whether she could show it to them.
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                                     No. 18-40359
      We disagree. The evidence was sufficient for a reasonable jury to
conclude that when Escobar asked Salcedo “So I can get them ready . . . . Can
I see a pic?,” Salcedo interpreted it as an invitation for him to provide a picture
of his genitals to “groom” the daughters for their sexual encounter, and sent
Escobar the picture with the intent that she serve as an intermediary to
transfer it to the minors. The same evidence may support other, less
incriminating conclusions—but we may not override the jury’s sound judgment
based solely on the fact that there are alternate interpretations. 25 In sum,
Salcedo has not shown insufficient evidence to support the jury’s
determination that he was guilty under 18 U.S.C. § 1470 of attempting to
transfer obscene material to minors under the age of 16.
                                           IV
       We affirm Salcedo’s conviction.




      25 See United States v. Fulton, 914 F.3d 390, 400 (5th Cir. 2019) (explaining that we
ask “only whether the jury’s decision was rational, not whether it was correct” (quoting
United States v. Lewis, 774 F.3d 837, 841 (5th Cir. 2014)).
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