                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-5261


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

LOREN JAY ADAMS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00028-JPB-DJJ-1)


Submitted:    July 7, 2009                  Decided:   July 24, 2009


Before MICHAEL and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Brian J. Kornbrath, Federal Public Defender, Clarksburg, West
Virginia, for Appellant.     Erin Reisenweber, Assistant United
States   Attorney,   Martinsburg,  West   Virginia;  Pamela   S.
Satterfield, Obscenity Prosecution Task Force, John-Alex Romano,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Loren       Adams        was       convicted         of     three       counts       of

transportation         of    obscene         matter       by   United     States     mail,       in

violation    of    18       U.S.C.       §    1461    (2006),     and     three     counts       of

transportation of obscene matter for sale or distribution, in

violation of 18 U.S.C. § 1465 (2006).                          He received a sentence of

thirty-three months’ imprisonment.

            On appeal, Adams first contends that he is entitled to

a new trial, as the jury failed to consider the charged material

“as a whole,” as required by Miller v. California, 413 U.S. 15

(1973).     Therefore, according to Adams, the Government failed to

meet its burden of proof that the videos, taken as a whole,

appealed to the prurient interest and lacked serious literary,

artistic,     political,            or       scientific        value.         Second,          Adams

contends that the judge abused his discretion in refusing to

allow   Adams     to    call     a       witness     to    testify      as    to    the    online

availability      of        materials         substantially           identical      to        those

charged in the offense.



                            I.      Sufficiency of Evidence

            Adams       first        challenges            the    sufficiency             of    the

evidence,    arguing         that    the       Government        failed      to    satisfy      its

burden of proving that the charged materials, taken as a whole,

were obscene.          When reviewing the sufficiency of the evidence,

                                                 2
this court’s “role is limited to considering whether there is

substantial    evidence,        taking       the    view     most        favorable      to   the

Government,    to       support     the      conviction.”            United       States      v.

Whorley, 550 F.3d 326, 338 (4th Cir. 2008) (internal quotation

marks   and    citations        omitted).           “[S]ubstantial              evidence     is

evidence   that     a    reasonable        finder       of    fact       could    accept     as

adequate and sufficient to support a conclusion of a defendant’s

guilt beyond a reasonable doubt.”                   United States v. Burgos, 94

F.3d 849, 862 (4th Cir. 1996) (en banc).                           We do not review the

credibility    of       witnesses      and    assume         the    jury     resolved        all

contradictions      in    the     testimony        in   favor       of    the    Government.

United States v. Harvey, 532 F.3d 326, 333 (4th Cir. 2008).

           Obscene material does not enjoy the protection of the

First Amendment.         Miller v. California, 413 U.S. 15, 23 (1973).

In order to demonstrate that relevant material is obscene, the

Government must prove 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 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 24 (internal

quotation marks and citations omitted).



                                              3
            Here,     the    evidence         before       the    jury    was    more    than

sufficient to support a finding of guilt beyond a reasonable

doubt, despite the jury’s failure to view the films in their

entirety.       The Government introduced the complete movies into

evidence, and played a representative portion of each video in

open court.        The representative portions of both “Doggie3Some”

and “Anal Doggie and Horse” depicted women engaging in sexual

acts with dogs and a horse, and the representative portion of

the third film, “Fisting 1,” depicted women being penetrated by

large objects.        The federal agent responsible for ordering the

movies from Adams testified as to the contents of the remainder

of the films.       The agent testified that he had viewed each movie

in its entirety, summarized the remainder of the films for the

jury, and stated that the unplayed portion of each showed sexual

acts similar to those contained in the excerpts.                            Bradley also

read aloud Adam’s website’s descriptions of the films to the

jury, and testified that the descriptions accurately detailed

the   content    of   each     movie.          Accordingly,         we    find    that   the

Government presented evidence sufficient to support the jury’s

conclusions     that,       taken    as   a       whole,    the    films    appealed      to

prurient sexual interests and lacked serious literary, artistic,

political, or scientific value.

            Moreover,        Adams    never        contended,       and    does    not    now

assert,     that      the     portions            played     in     court        were     not

                                              4
representative         of    the     videos         in   their        entirety,      or    that    the

films    had     any        serious           value,     whether          literary,        artistic,

political, or scientific.                     Similarly, Adams never requested that

the jury watch the films in their entirety, and does not now

contend that, had the jurors watched the entirety of each film,

they    would    have       reached       a     different        conclusion.              Therefore,

because it is clear “beyond a reasonable doubt that the error

complained       of    did     not     contribute           to      the     verdict       obtained,”

Neder v.     United          States,          527    U.S.      1,      15    (1999)        (internal

quotation marks and citations omitted), any error in the jury’s

failure to view the films in their entirety is harmless.



                              II.    Exclusion of Evidence

             Adams next asserts that the district court erred in

refusing to allow him to introduce evidence demonstrating that

materials       substantially             similar        to      the      charged      films      were

accessible in Martinsburg through the internet.                                      Specifically,

Adams    intended       to    call        a    computer       systems        administrator         who

would    testify        that,        by       entering        the      terms        “fisting”      and

“bestiality”          into     search           engines,         he     found       thousands       of

articles,       movies,       links,          and   photos       devoted       to    these     terms,

which were available to anyone in the Martinsburg, West Virginia

area with internet access.



                                                    5
            We review a district court’s evidentiary ruling on the

exclusion    of   evidence        for          an       abuse    of        discretion.        United

States v.    Fulks,    454      F.3d       410,          434    (4th        Cir.    2006).         In    a

prosecution    for    obscenity,           the          jury     must       apply    “contemporary

community    standards”         when    determining                  the    “prurient      interest”

prong of the Miller test.                      413 U.S. at 24.                      By introducing

testimony of the availability of like materials on the internet,

Adams sought to demonstrate that such materials were “accepted”

in the Martinsburg community, and therefore did not appeal to

the prurient sexual interest.                           However, “the availability of

similar     materials       .     .        .        [in]       the         community       does     not

automatically     make      them       admissible               as    tending       to     prove    the

nonobscenity of the materials which the defendant is charged

with circulating.”          Hamling v. United States, 418 U.S. 87, 125

(1974).     Instead, the “[m]ere availability of similar material

by itself means nothing more than that other persons are engaged

in similar activities.”                Id. at 126 (internal quotation marks

and citation omitted).

            In United States v. Ragsdale, 426 F.3d 765 (5th Cir.

2005), the defendant challenged the district court’s exclusion

of allegedly comparable materials available in the community.

Citing    Hamling,    the       Fifth      Circuit             upheld       the     ruling    of    the

district    court,    finding         it       to       be   “well         within    the    range       of



                                                    6
allotted discretion afforded to the district court to exclude

the evidence proffered by the defense.”                  Id. at 776.

             Similarly, in United States v. Pryba, we rejected a

defendant’s       challenge     to    a     jury    instruction       charging      that

contemporary community standards “are set by what is, in fact,

accepted in the adult community as a whole, and not by what the

community merely tolerates.”              900 F.2d 748, 758 (4th Cir. 1990).

In upholding the instructions, we found that

      To consider community toleration as synonymous with
      what a community will put up with skews the test of
      obscenity and invites one to consider deviations from
      community standards, because a community can be said
      to put up with a number of disagreeable circumstances
      that it cannot stop.    The District of Columbia had
      over 350 murders in 1989, but to say that the citizens
      “tolerated” this epidemic of homicides would misuse
      the word.

Id. at 759.          This reasoning demonstrates that the availability

of    certain     materials     in    the    fringe       of    a   community    is   no

indication      of    community      acceptance         of    it.     The    conclusion

follows that the district court acted within its discretion, and

appropriately followed both Supreme Court and Circuit precedent,

in finding that the testimony Adams wished to present regarding

the    accessibility       of   comparable         materials        online    was     not

relevant     to      the   determination           of        contemporary     community

standards.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

                                            7
legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




                                    8
