UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

ROBERT ALAN THOMAS (94-6648)
and CARLEEN THOMAS (94-6649),
Defendants-Appellants.

ON APPEAL from the United States District Court for the Western District of Tennessee

__________________

Decided and Filed January 29, 1996

Before: MARTIN and BATCHELDER, Circuit Judges; EDMUNDS, District Judge.[*]

Defendants Robert and Carleen Thomas appeal their convictions and sentences for violating 18 U.S.C.    1462 and 1465, federal obscenity laws, in connection with their operation of an electronic bulletin board. For the following reasons, we AFFIRM Robert and Carleen Thomas’ convictions and sentences.

I.

Robert Thomas and his wife Carleen Thomas began operating the Amateur Action Computer Bulletin Board System (“AABBS”) from their home in Milpitas, California in February 1991. The AABBS was a computer bulletin board system that operated by using telephones, modems, and personal computers. Its features included e-mail, chat lines, public messages, and files that members could access, transfer, and download to their own computers and printers.

Information loaded onto the bulletin board was first converted into binary code, i.e., 0’s and 1’s, through the use of a scanning device. After purchasing sexually-explicit magazines from public adult book stores in California, Defendant Robert Thomas used an electronic device called a scanner to convert pictures from the magazines into computer files called Graphic Interchange Format files or “GIF” files. The AABBS contained approximately 14,000 GIF files. Mr. Thomas also purchased, sold, and delivered sexually-explicit videotapes to AABBS members. Customers ordered the tapes by sending Robert Thomas an e-mail message, and Thomas typically delivered them by use of the United Parcel Service (“U.P.S.”).

Persons calling the AABBS without a password could view the introductory screens of the system which contained brief, sexually-explicit descriptions of the GIF files and adult videotapes that were offered for sale. Access to the GIF files, however, was limited to members who were given a password after they paid a membership fee and submitted a signed application form that Defendant Robert Thomas reviewed. The application form requested the applicant’s age, address, and telephone number and required a signature.

Members accessed the GIF files by using a telephone, modem and personal computer. A modem located in the Defendants’ home answered the calls. After they established membership by typing in a password, members could then select, retrieve, and instantly transport GIF files to their own computer. A caller could then view the GIF file on his computer screen and print the image out using his printer. The GIF files contained the AABBS name and access telephone number; many also had “Distribute Freely” printed on the image itself.

In July 1993, a United States Postal Inspector, Agent David Dirmeyer (“Dirmeyer”), received a complaint regarding the AABBS from an individual who resided in the Western District of Tennessee. Dirmeyer dialed the AABBS’ telephone number. As a non-member, he viewed a screen that read “Welcome to AABBS, the Nastiest Place on Earth,” and was able to select various “menus” and read graphic descriptions of the GIF files and videotapes that were offered for sale.

Subsequently, Dirmeyer used an assumed name and sent in $55 along with an executed application form to the AABBS. Defendant Robert Thomas called Dirmeyer at his undercover telephone number in Memphis, Tennessee, acknowledged receipt of his application, and authorized him to log-on with his personal password. Thereafter, Dirmeyer dialed the AABBS’s telephone number, logged-on and, using his computer/modem in Memphis, downloaded the GIF files listed in counts 2-7 of the Defendants’ indictments. These GIF files depicted images of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination. Dirmeyer also ordered six sexually-explicit videotapes from the AABBS and received them via U.P.S. at a Memphis, Tennessee address. Dirmeyer also had several e-mail and chat-mode conversations with Defendant Robert Thomas.

On January 10, 1994, a search warrant was issued by a U.S. Magistrate Judge for the Northern District of California. The AABBS’ location was subsequently searched, and the Defendants’ computer system was seized.

On January 25, 1994, a federal grand jury for the Western District of Tennessee returned a twelve-count indictment charging Defendants Robert and Carleen Thomas with the following criminal violations: one count under 18 U.S.C.   371 for conspiracy to violate federal obscenity laws–18 U.S.C.    1462, 1465 (Count 1), six counts under 18 U.S.C.   1465 for knowingly using and causing to be used a facility and means of interstate commerce–a combined computer/telephone system–for the purpose of transporting obscene, computer-generated materials (the GIF files) in interstate commerce (Counts 2-7), three counts under 18 U.S.C.   1462 for shipping obscene videotapes via U.P.S. (Counts 8-10), one count of causing the transportation of materials depicting minors engaged in sexually explicit conduct in violation of 18 U.S.C.   2252(a)(1) as to Mr. Thomas only (Count 11), and one count of forfeiture under 18 U.S.C.   1467 (Count 12).

Both Defendants were represented by the same retained counsel, Mr. Richard Williams of San Jose, California. They appeared twice in federal district court for the Northern District of California, San Jose division, before being arraigned on March 15, 1994, in federal court in Memphis, Tennessee. They did not retain local counsel for the Tennessee criminal prosecution. Both Defendants were tried by a jury in July, 1994. Defendant Robert Thomas was found guilty on all counts except count 11 (child pornography). Defendant Carleen Thomas was found guilty on counts 1-10. The jury also found that the Defendants’ interest in their computer system should be forfeited to the United States. Robert and Carleen Thomas were sentenced on December 2, 1994 to 37 and 30 months of incarceration, respectively. They filed their notices of appeal on December 9, 1994.

II.

A.

Defendants contend that their conduct, as charged in counts 1-7 of their indictments, does not constitute a violation of 18 U.S.C.   1465. This presents a question of statutory interpretation, a matter of law, and is reviewed by this court under a de novo standard. United States v. Hans, 921 F.2d 81, 82 (6th Cir. 1990).[1]

Defendants’ challenge to their convictions under counts 1-7, rests on two basic premises: 1) Section 1465 does not apply to intangible objects like the computer GIF files at issue here,[2] and 2) Congress did not intend to regulate computer transmissions such as those involved here because 18 U.S.C.   1465 does not expressly prohibit such conduct.

In support of their first premise, Defendants cite a Tenth Circuit dial-a-porn decision which holds that 18 U.S.C.    1462 and 1465 prohibit the interstate transportation of tangible objects; not intangible articles like pre-recorded telephone messages. See United States v. Carlin Commun. Inc., 815 F.2d 1367, 1371 (10th Cir. 1987). Defendants claim Carlin is controlling because transmission of the GIF files at issue under counts 1-7 involved an intangible string of 0’s and 1’s which became viewable images only after they were decoded by an AABBS member’s computer. We disagree.

The subject matter in Carlin–telephonic communication of pre-recorded sexually suggestive comments or proposals–is inherently different from the obscene computer-generated materials that were electronically transmitted from California to Tennessee in this case. Defendants erroneously conclude that the GIF files are intangible, and thus outside the scope of   1465, by focusing solely on the manner and form in which the computer-generated images are transmitted from one destination to another. United States v. Gilboe, 684 F.2d 235 (2nd Cir. 1982), cert. denied, 459 U.S. 1201 (1983), illustrates this point.

In Gilboe, the Second Circuit rejected the argument that the defendant’s transmission of electronic impulses could not be prosecuted under a criminal statute prohibiting the transportation of money obtained by fraud. The Gilboe court reasoned that:

[e]lectronic signals in this context are the means by which funds are transported. The beginning of the transaction is money in one account and the ending is money in another. The manner in which the funds were moved does not affect the ability to obtain tangible paper dollars or a bank check from the receiving account.

Id. at 238. The same rationale applies here. Defendants focus on the means by which the GIF files were transferred rather than the fact that the transmissions began with computer-generated images in California and ended with the same computer-generated images in Tennessee. The manner in which the images moved does not affect their ability to be viewed on a computer screen in Tennessee or their ability to be printed out in hard copy in that distant location.

The record does not support Defendants’ argument that they had no knowledge, intent or expectation that members of their AABBS would download and print the images contained in their GIF files. They ran a business that advertised and promised its members the availability and transportation of the sexually-explicit GIF files they selected. In light of the overwhelming evidence produced at trial, it is spurious for Defendants to claim now that they did not intend to sell, disseminate, or share the obscene GIF files they advertised on the AABBS with members outside their home and in other states.

We also disagree with Defendants’ corollary position, raised at oral argument, that they were prosecuted under the wrong statute and that their conduct, if criminal at all, falls within the prohibitions under 47 U.S.C.   223(b)[3] rather than 18 U.S.C.   1465. As recognized by the Supreme Court, Section 223(b) of the Communications Act of 1934, was drafted and enacted by Congress in 1982 “explicitly to address ‘dial-a-porn.’” Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 120-121 (1989). Congress amended Section 223(b) in 1988 to impose a total ban “on dial-a-porn, making it illegal for adults, as well as children, to have access to sexually-explicit messages” that are indecent or obscene. Id. at 122-123.[4] 47 U.S.C.   223(b) addresses commercial dial-a-porn operations that communicate sexually-explicit telephone messages; not commercial computer bulletin boards that use telephone facilities for the purpose of transmitting obscene, computer-generated images to approved members.

Defendants’ second premise, that Congress did not intend to regulate computer transmissions because the statute does not expressly prohibit such conduct, is faulty as well. We have consistently recognized that when construing federal statutes, our duty is to “‘construe the language so as to give effect to the intent of Congress.’” United States v. Underhill, 813 F.2d 105, 111 (6th Cir.), cert. denied, 482 U.S. 906 (1987) (quoting United States v. American Trucking Associations, Inc., 310 U.S. 534, 542-44 (1940)). The Supreme Court observed this principle when it rejected an argument similar to one Defendants raise here, i.e., that Congress could not possibly have intended to include conduct not expressly prohibited in the statute. See United States v. Alpers, 338 U.S. 680 (1950).

In United States v. Alpers, the Supreme Court considered the question whether obscene phonograph records–at the time, a novel means of transmitting obscenity–came within the prohibition of 18 U.S.C.   1462. Initially, the Court acknowledged that criminal statutes are to be strictly construed and that “no offense may be created except by the words of Congress used in their usual and ordinary way.” Id. at 681. The Court emphasized, however, that Congress’ intent is the most important determination and statutory language is not to be construed in a manner that would defeat that intent.

Applying those principles, the Court held that the rule of ejusdem generis[5] should not be “employed to render general words meaningless” or “be used to defeat the obvious purpose of legislation.” Id. at 681-83. It recognized that “[t]he obvious purpose of [Section 1462] was to prevent the channels of interstate commerce from being used to disseminate” any obscene matter. Id. at 683. The Court further recognized that Section 1462 “is a comprehensive statute, which should not be constricted by a mechanical rule of construction.” Id. at 684. Accordingly, the Court rejected the defendant’s argument that the general words “other matter of indecent character” could not be interpreted to include objects comprehensible by hearing (phonographic recordings) rather than sight; an argument similar to the tangible/intangible one raised here, and held that obscene records fell within the scope of the criminal statute.

In reaching its decision, the Alpers Court found that the legislative history of Section 1462 did not support defendant’s sight/sound distinction. It was not persuaded that Congress’ amendment of Section 1462 to add motion picture films to the list of prohibited materials “evidenced an intent that obscene matter not specifically added was without the prohibition of the statute.” Id. Rather, the Court concluded that the amendment evidenced Congress’ preoccupation “with making doubly sure that motion-picture film was within the Act, and was concerned with nothing more or less.” Id. We are similarly unpersuaded by Defendants’ arguments that the absence of the words “including by computer” in Section 1465, despite Congress’ addition of those words in other legislation, is evidence of its intent not to criminalize conduct, such as Defendants’ that falls within the plain language and intent of Section 1465.

Furthermore, under similar facts, the U.S. Air Force Court of Criminal Appeals recently considered   1465’s plain language and its intended purpose. In United States v. Maxwell, 42 M.J. 568, 1995 WL 259269 (A.F. Ct. Crim. App. 1995), a defendant was charged with violating Section 1465 because he had transmitted obscene visual images electronically through the use of an on-line computer service. He argued that since the statute is silent concerning computer transmissions, such transmissions were not to be included within the terms “transporting obscene materials in interstate or foreign commerce.” The court observed that well-established principles of statutory construction require a court to look first to the statute’s plain language. Maxwell, 1995 WL 259269 at *10 (citing Rubin v. United States, 449 U.S. 424, 430 (1981)). Applying that principle, the Maxwell court concluded that the defendant’s conduct fell within the plain language of Section 1465. Specifically, the court held:

[t]he use of the terms “transports,” “distribution,” “picture,” “image” and “electrical transcription” leads us to the inescapable conclusion the statute is fully applicable to the activities engaged in by applicant. . . . It is clear Congress intended to stem the transportation of obscene material in interstate commerce regardless of the means used to effect that end.

Maxwell, 1995 WL 259269 at *10.

Likewise, we conclude that Defendants’ conduct here falls within the plain language of Section 1465.[6] Moreover, our interpretation of Section 1465 is consistent with Congress’ intent to legislate comprehensively the interstate distribution of obscene materials. Id.

B.

Defendants also challenge venue in the Western District of Tennessee for counts 2-7 of their indictments. They argue that even if venue was proper under count 1 (conspiracy) and counts 8-10 (videotapes sent via U.P.S.), counts 2-7 (GIF files) should have been severed and transferred to California because Defendants did not cause the GIF files to be transmitted to the Western District of Tennessee. Rather, Defendants assert, it was Dirmeyer, a government agent, who, without their knowledge, accessed and downloaded the GIF files and caused them to enter Tennessee. We disagree. To establish a Section 1465 violation, the Government must prove that a defendant knowingly used a facility or means of interstate commerce for the purpose of distributing obscene materials. Contrary to Defendants’ position, Section 1465 does not require the Government to prove that Defendants had specific knowledge of the destination of each transmittal at the time it occurred.

“Venue lies in any district in which the offense was committed,” and the Government is required to establish venue by a preponderance of the evidence. United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir. 1992) (quoting United States v. Williams, 788 F.2d 1213, 1215 (6th Cir. 1986)). This court examines the propriety of venue by taking “‘into account a number of factors–the site of the defendant’s acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate fact finding . . .’” Id.

Section 1465 is an obscenity statute, and federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well-established that “there is no constitutional impediment to the government’s power to prosecute pornography dealers in any district into which the material is sent.” United States v. Bagnell, 679 F.2d 826, 830 (11th Cir. 1982), cert. denied, 460 U.S. 1047 (1983); United States v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981). Thus, the question of venue has become one of legislative intent. Bagnell, 679 F.2d at 830.

The Bagnell court examined both    1462 and 1465 and found that each statute established a continuing offense within the venue provisions of 18 U.S.C.   3237(a) “that occur[s] in every judicial district which the material touches.” Id. at 830. This court likewise recognized that “venue for federal obscenity prosecutions lies ‘in any district from, through, or into which’ the allegedly obscene material moves.” Peraino, 645 F.2d at 551 (citing 18 U.S.C.   3237).

Substantial evidence introduced at trial demonstrated that the AABBS was set up so members located in other jurisdictions could access and order GIF files which would then be instantaneously transmitted in interstate commerce. Moreover, AABBS materials were distributed to an approved AABBS member known to reside in the Western District of Tennessee. Specifically, Defendant Robert Thomas knew of, approved, and had conversed with an AABBS member in that judicial district who had his permission to access and copy GIF files that ultimately ended up there. Some of these GIF files were clearly marked “Distribute Freely.” In light of the above, the effects of the Defendants’ criminal conduct reached the Western District of Tennessee, and that district was suitable for accurate fact-finding. Accordingly, we conclude venue was proper in that judicial district.

C.

Defendants further argue that their convictions under counts 1-7 of their indictments violate their First Amendment rights to freedom of speech. As the Supreme Court noted in Bose, when constitutional facts[7] are at issue, this court has a duty to conduct an independent review of the record “both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited.” Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505 (1984).

1. Defendants’ Right to Possess the GIF Files in their Home

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