     Case: 16-20554      Document: 00514243286         Page: 1    Date Filed: 11/20/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                      No. 16-20554                                 FILED
                                                                           November 20, 2017

UNITED STATES OF AMERICA,                                                     Lyle W. Cayce
                                                                                   Clerk
              Plaintiff - Appellee

v.

BRENT JUSTICE,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CR-731-2


Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Brent Justice appeals his conviction on four counts of violations of
18 U.S.C. § 48, specifically, three counts alleging the creation of animal crush
videos and one for distribution of such a video. We vacate the conviction as to
one count (Count 3) and render a judgment of acquittal on that count. In all
other respects, we affirm.
       We have seen this case once before. United States v. Richards, 755 F.3d
269 (5th Cir. 2014). In Richards, we concluded that § 48, which prohibits



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 16-20554

certain conduct relating to videos that (1) depict animal abuse and (2) are
obscene, is not facially unconstitutional. In so holding, we incorporated the
limitations on prohibitions of obscenity set forth in Miller v. California, 413
U.S. 15, 24 (1973). Id. at 274–76. In Miller, the Court stated that such
prohibitions must involve the depiction or description of sexual conduct and
“be limited to works [(1)] which, taken as a whole appeal to the prurient
interest in sex, [(2)] which portray sexual conduct in a patently offensive way,
and [(3)] which, taken as a whole, do not have serious literary, artistic,
political, or scientific value.” 413 U.S. at. 24.
       Following the Richards decision, Justice proceeded to trial before the
bench with respect to three videos: “whitechick” (creation), “blackluvsample”
(creation), and “adammeetseve2” (creation and distribution). The district court
convicted him on all counts and assessed identical sentences of 57 months to
run concurrently, which ultimately resulted in a sentence of fourteen months
after crediting time served in state custody on related state charges. Texas v.
Justice, Harris County, Cause No. 1357897 (2012), modified, Justice v. State,
No. 14-16-00153-CR, 2017 Tex. App. LEXIS 9807 (Tex. App. – Hous. [14th
Dist.] Oct. 19, 2017). Justice appeals, challenging only his convictions, not his
sentence.
       The focus of both sides’ arguments is whether sexual conduct is depicted
in a patently offensive way in these videos. In Miller, the Court gave “plain
examples” of patently offensive conduct. 1 413 U.S. at 25. Justice says that the
Government cannot prosecute conduct that does not fit in those examples.
Justice also argues that any such depictions are too brief to permit conviction.


       1  The Court defined the “plain examples” as “(a) [p]atently offensive representations
or descriptions of ultimate sexual acts, normal or perverted, actual or simulated [and]
(b) [p]atently offensive representation or descriptions of masturbation, excretory functions,
and lewd exhibition of the genitals.” Miller, 413 U.S. at 25.

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                                      No. 16-20554

Finally, Justice contends that any sexual conduct in these videos is not what
is patently offensive; rather, it is the animal cruelty which is patently
offensive.
       We conclude first that it is appropriate to view the videos in their
totality. See United States v. Ragsdale, 426 F.3d 765, 769, 781 (5th Cir. 2005)
(finding entire videotapes obscene even though a victim in one videotape
“seem[ed] to consensually engage in various sexual activities” during the first
half of the videotape). We further conclude that it is unnecessary to resolve
the other legal disputes here. This case can be resolved on the facts of these
particular videos, not abstract principles of law; therefore, any other legal
disputes are not determinative here. Examining the specific videos in full, we
conclude as follows:
   1. Even assuming, arguendo, that § 48 obscenity is limited to the “plain
       examples,” whitechick and adammeetseve2 (Counts 2, 4, and 5) meet
       that test: the former portrays masturbation with a chicken and the latter
       portrays simulated sodomy of a cat, both of which are patently offensive
       and fall in the plain examples of Miller. See 413 U.S. at 25.
   2. On the other hand, even assuming, arguendo, that obscenity is not
       limited to the “plain examples,” blackluvsample (Count 3), while clearly
       intended to “appeal to the prurient interest,” does not “portray sexual
       conduct” and, therefore, while horrific, is not obscene under Miller. See
       id.
       As a result of these conclusions, we VACATE Justice’s conviction under
Count 3 and RENDER a judgment of acquittal on that count. In all other
respects, we AFFIRM the district court’s judgment. 2



       The sentences on all four counts were identical and ran concurrently. At oral
       2

argument, Justice’s counsel conceded that a vacatur of only one conviction would not warrant
a remand for resentencing.
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