                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            APR 2, 2009
                             No. 08-13877                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 06-00430-CR-01-WSD-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

PHILLIP EUGENE JENKINS,

                                                         Defendant-Appellant.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                     _________________________

                              (April 2, 2009)

Before DUBINA, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Phillip Eugene Jenkins appeals following his convictions on six counts of

attempted transfer of obscene material to a minor, in violation of 18 U.S.C. § 1470.

The charges stemmed from internet communications Jenkins had with, and

webcam masturbation videos he sent to, a Canadian law enforcement officer in

Ontario, Canada, who was posing as a 13-year-old girl.

      On appeal, he argues his convictions were not supported by sufficient

evidence at trial because evidence did not support an obscenity determination.

Specifically, he argues: (1) no evidence was introduced at his Atlanta, Georgia,

trial regarding the community standards in Canada; (2) Canadian law conclusively

showed that the videos he sent were not obscene; and (3) Canadian law was

conclusive regarding community standards because it allowed adults to purchase

and view masturbation videos.

      Federal law prohibits the attempted transfer of obscene material, using

means of interstate commerce, to an individual the transferor knows is under 16

years old. 18 U.S.C. § 1470. In Miller v. California, 93 S. Ct. 2607 (1973), the

Supreme Court held that, in order for material to be obscene, a trier of fact must

find that: (1) “the average person, applying contemporary community standards

would find that the work, taken as a whole, appeals to the prurient interest;”

(2) “the work depicts or describes, in a patently offensive way, sexual conduct



                                          2
specifically defined by the applicable state law;” and (3) “the work, taken as a

whole, lacks serious literary, artistic, political, or scientific value.” Id. at 2615

(internal quotations and citations omitted). The Miller test applies to federal

obscenity prosecutions. United States v. Bagnell, 679 F.2d 826, 835 n.9 (11th Cir.

1982).

         The Supreme Court has said that, in judging whether materials are obscene

under the Miller test, the materials generally are “sufficient in themselves for the

determination of the question.” Paris Adult Theatre I v. Slaton, 93 S. Ct. 2628,

2635 (1973) (internal quotations omitted). The jury should be able to “apply first-

hand knowledge to the Miller test, thus obviating the need for expert testimony.”

Id.

         When allegedly-obscene material is transferred from one community to

another, the relevant community standards are those of the receiving community.

Ashcroft v. ACLU, 122 S. Ct. 1700, 1712 (2002); see also Hamling v. United

States, 94 S. Ct. 2887, 2902 (1974). Although a particular community’s laws

regarding the regulation of obscene material, or lack thereof, may be relevant to the

community standards analysis, they are “not conclusive as to the issues of [such]

standards for appeal to the prurient interest and patent offensiveness.” Smith v.

United States, 97 S. Ct. 1756, 1767-68 (1977). In fact, evidence of standards in a



                                             3
community outside the receiving community may be relevant to the obscenity

determination, and the Miller test allows the jurors to draw on their knowledge of

the community from which them came to decide “what conclusion the average

person, applying contemporary community standards would reach in a given case.”

Bagnell, 679 F.2d at 836 (internal quotations omitted); Hamling, 94 S. Ct. at 2902.

       In this case, sufficient evidence supported Jenkins’s conviction for attempted

transfer of obscene material to a minor. The jury saw each of the six video

recordings of Jenkins, which was evidence sufficient for the jury to make an

obscenity determination. See id. Although the jury heard evidence regarding

Canadian law, that evidence did not control either the jury’s overall obscenity

determination or its evaluation of the community standards. See Smith, 97 S. Ct. at

1768. For these reasons, we affirm Jenkins’s convictions.1

       AFFIRMED.




       1
         Jenkins has abandoned any challenge to his sentences by failing to assert any error in
that regard on appeal. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.
2005).

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