The opinion
Case: 21-50607 Document: 00516505567 Page: 1 Date Filed: 10/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 12, 2022
No. 21-50607 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Thomas Alan Arthur,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:19-CR-774-1
Before Davis, Dennis, and Higginson, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
A jury convicted Thomas Alan Arthur of three counts of producing,
distributing, receiving, and possessing an obscene visual depiction of a minor
engaged in sexually explicit conduct, in violation of 18 U.S.C. § 1466A(a)(1);
five counts of using an interactive computer service to transport obscene
matters, in violation of 18 U.S.C. § 1462(a); and one count of engaging in the
business of selling or transferring obscene matters, in violation of 18 U.S.C.
§ 1466(a). On appeal, Arthur challenges his conviction and sentence. We
AFFIRM in part and REVERSE in part.
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I.
From the 1990s through 2019, Thomas Alan Arthur operated a
website called “Mr. Double.” At the time of the FBI investigation into
Arthur, the website contained over 25,000 erotic stories, written by several
thousand authors who contributed to the site. Many of the stories on the site
included graphic depictions of rape, murder, and sexual abuse of children.
Authors submitted stories to the site through a form or by email, and Arthur
then uploaded the stories to the site. Authors could maintain a profile on the
site that included a picture or avatar. While some content on the site was
available to anyone for free, full access required a paid subscription.
In November 2019, FBI agents executed a search warrant at Arthur’s
home in Terlingua, Texas. That same month, Arthur was indicted by a
federal grand jury in the Western District of Texas. A nine-count second
superseding indictment was filed in October 2020. The second superseding
indictment charged Arthur with three counts of producing, distributing,
receiving, and possessing an obscene visual depiction of a minor engaged in
sexually explicit conduct, in violation of 18 U.S.C. § 1466A(a)(1) (Counts 1,
8, and 9); five counts of using an interactive computer service to transport
obscene matters, in violation of 18 U.S.C. § 1462(a) (Counts 2, 3, 4, 5, and
6); and one count of engaging in the business of selling or transferring
obscene matters, in violation of 18 U.S.C. § 1466(a) (Count 7). Counts 1, 8,
and 9 were premised on drawings used as profile pictures by three authors on
Arthur’s website, while Counts 2-6 were premised on five separate stories
posted on the site, though not written by Arthur. The Government also
introduced two stories at trial written by Arthur, which formed part of the
basis for the allegation in Count 7.
On the day of trial, the district court held a Daubert hearing on
Arthur’s proffered expert, Dr. David Ley. At the close of the hearing, the
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district court excluded Dr. Ley’s testimony. The district court
supplemented its oral ruling with a written order issued approximately three
weeks after the trial. In the written order, the district court based its decision
to exclude Dr. Ley’s testimony on his lack of qualifications and the lack of
reliability in Dr. Ley’s methodology.
After the Daubert hearing, the case proceeded immediately to trial.
The Government called several federal and state agents and Arthur’s wife as
witnesses. At the close of the Government’s case, Arthur moved for
judgment of acquittal, arguing that the Government had proven neither that
the stories and drawings lacked “political, scientific, artistic, or literary
value,” see Miller v. California, 413 U.S. 15, 24 (1973), nor that the drawings
charged depicted minors. The district court denied the motion. Arthur did
not present a defense. The jury returned a guilty verdict on all nine counts.
The PSR calculated a Guidelines range of 360 to 1080 months. The
maximum term of imprisonment was twenty years on Counts 1, 8, and 9, and
five years on Counts 2-7. The district court sentenced Arthur to 240
months’ imprisonment on Count 1 and 60 months’ imprisonment on Counts
2, 3, 4, and 5, all to run consecutively to each other, as well as 60 months’
imprisonment on Counts 6, 7, 8, and 9, to run concurrently, for a total of 480
months’ imprisonment and three years’ supervised release. Arthur timely
appealed.
II.
Arthur argues that the district court erred in denying his request to
copy the charged materials. The district court denied Arthur’s motion on
the ground that the charged materials constituted child pornography. See 18
U.S.C. § 3509(m).
A district court’s discovery orders are reviewed for an abuse of
discretion. United States v. Dailey, 868 F.3d 322, 327 (5th Cir. 2017). This
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court “will not reverse on that basis unless a defendant establishes prejudice
to his substantial rights.” Id. (quoting United States v. Ellender, 947 F.2d 748,
756 (5th Cir. 1991)).
Under the Federal Rules of Criminal Procedure, “[u]pon a
defendant’s request, the government must permit the defendant to inspect
and to copy or photograph books, papers, documents, data, photographs,
tangible objects, buildings or places, or copies or portions of any of these
items” that are “material to preparing the defense,” that the Government
“intends to use . . . in its case-in-chief,” or that were “obtained from or
belong[] to the defendant.” Fed. R. Crim. P. 16(a)(1)(E). However, 18
U.S.C. § 3509(m)(2)(A) prohibits courts from granting defendants’ requests
to copy any “material that constitutes child pornography,” as defined in 18
U.S.C. § 2256. 1
Before us, the parties rightfully agree that none of the charged
materials meets the definition of child pornography. See § 2256(8). Though
the district court’s contrary conclusion was error, Arthur has not met his
burden to demonstrate that the error affected his substantial rights. Dailey,
868 F.3d at 327. The Government made the charged materials available to
1
Section 2256(8) defines child pornography as:
any visual depiction, including any photograph, film, video, picture, or computer
or computer-generated image or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct, where--
(A) the production of such visual depiction involves the use of a minor
engaging in sexually explicit conduct;
(B) such visual depiction is a digital image, computer image, or computer-
generated image that is, or is indistinguishable from, that of a minor engaging in
sexually explicit conduct; or
(C) such visual depiction has been created, adapted, or modified to appear that an
identifiable minor is engaging in sexually explicit conduct.
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defense counsel and defense experts at the FBI offices in Midland and
Alpine, Texas. Arthur makes general assertions that limiting the availability
of the charged materials to an in-person visit to a West Texas FBI office
during the COVID-19 pandemic prevented him from retaining experts to
assist in the preparation of his defense. However, Arthur has not specified
any particular expert who he wished to retain but was unable to due to the
limited availability of the charged material. See United States v. Kimbrough,
69 F.3d 723, 731 (5th Cir. 1995) (“His conclusory assertion that the amount
of material seized and the time it took the Government agents to review the
material demonstrates he was precluded from having an adequate
opportunity to review the material and obtain an expert for trial is simply
insufficient.”). In addition, three defense experts did view the materials at
the FBI office. Therefore, Arthur has failed to show that he was prejudiced
by the district court’s error.
III.
Arthur challenges two sentences in the district court’s jury
instructions, which he argues impermissibly shifted the burden of proof and
could have caused the jury to conflate the first two prongs of the Miller test. 2
At trial, Arthur objected to the district court’s proposed instructions on these
same grounds.
“The district court’s decision to give or exclude a jury instruction is
reviewed for abuse of discretion.” United States v. Ragsdale, 426 F.3d 765,
2
In Miller, the Supreme Court articulated the current test for whether a work is
obscene: “The basic guidelines for the trier of fact must be: (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.” 413 U.S. at 24 (citations omitted).
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779 (5th Cir. 2005). “Failing to give a defendant’s suggested instruction is
an abuse of discretion if the proposal is (1) substantively correct, (2) not
‘substantially covered’ in the jury charge, and (3) concerns ‘an important
point in the trial so that the failure to give it seriously impairs the defendant’s
ability to present effectively a particular defense.’” United States v. Spalding,
894 F.3d 173, 188 (5th Cir. 2018) (citation omitted). A district court does not
err, however, if the jury charge “tracks the Fifth Circuit Pattern Instructions
and correctly states the law.” Id. Further, “[a]ny error is subject to
harmless-error review.” United States v. Cessa, 785 F.3d 165, 185 (5th Cir.
2015). Even “erroneous jury instructions are harmless if a court, after a
thorough examination of the record, is able to conclude beyond a reasonable
doubt that the jury verdict would have been the same absent the error.”
United States v. Stanford, 823 F.3d 814, 828 (5th Cir. 2016) (cleaned up); see
also Pope v. Illinois, 481 U.S. 497, 501-02 (1987).
Arthur challenges two sentences in the district court’s charge, drawn
directly from the Fifth Circuit Pattern Jury Instructions, explaining the third
prong of the Miller test: “An item may have serious value in one or more of
these areas even if it portrays sexually oriented conduct. It is for you to say
whether the material in this case has such value.” 3
Arthur argues that the first challenged sentence collapsed the first and
second prongs of the Miller test—whether the material appealed to the
prurient interest and whether it portrayed sexual conduct in a patently
offensive way—into one inquiry into whether the charged materials
3
Arthur proposed instead that the district court instruct: “An item may have
serious value in one or more of these areas even if it portrays sexually oriented conduct in
a patently offensive manner and appeals predominantly to the prurient interest. It is for
you to say whether the material in this case lacks such value.” The district court denied
Arthur’s request on the basis that the court’s proposed language was drawn directly from
the Fifth Circuit Pattern Jury Instructions.
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“portray[ed] sexually oriented conduct.” However, he has not shown that
the full sentence is a misstatement of the law. Spalding, 894 F.3d at 188.
Moreover, the instructions that immediately followed emphasized the
distinction between Miller’s three prongs and the requirement that all three
be met in order for the jury to find the materials obscene. There was no error
in the district court’s instruction.
As for the second challenged sentence, Arthur argues that it shifted
the burden of proof by instructing the jury to determine whether the charged
material “has such value,” rather than whether it “lacks” such value. See
Miller, 413 U.S. at 24. Even if this instruction were an incorrect statement of
the law, any error was harmless. Cessa, 785 F.3d at 185. Taken as a whole,
the instructions here clarified the burden of proof for the jury. See Francis v.
Franklin, 471 U.S. 307, 318-19 (1985) (“The jury charge taken as a whole
might have explained the proper allocation of burdens with sufficient clarity
that any ambiguity in the particular language challenged could not have been
understood by a reasonable juror as shifting the burden of persuasion.”). The
district court repeatedly explained that the third prong of Miller requires a
finding that the charged material “lacks” the requisite value and that it is the
Government’s burden to prove that lack of value beyond a reasonable doubt.
Thus, we are confident that if there was any error in the challenged sentence,
it did not affect the jury’s understanding of the burden of proof or its verdict.
IV.
As he did in his motion for post-verdict judgment of acquittal, Arthur
raises an as-applied constitutional challenge to his convictions on Counts 1,
8, and 9, arguing that to survive scrutiny under the First Amendment, 18
U.S.C. § 1466A(a)(1) must require that the charged images depict “real”
minors.
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This court reviews questions of statutory interpretation and the
constitutionality of federal statutes de novo. United States v. Arrieta, 862
F.3d 512, 514 (5th Cir. 2017); United States v. Rasco, 123 F.3d 222, 226 (5th
Cir. 1997). A person violates § 1466A(a)(1) by “knowingly produc[ing],
distribut[ing], receiv[ing], or possess[ing] with intent to distribute a visual
depiction of any kind, including a drawing, cartoon, sculpture or painting that
. . . depicts a minor engaging in sexually explicit conduct; and . . . is obscene.”
The statute is explicit that, unlike in the context of child pornography,
the minor depicted need not be a real minor. See § 1466A(c) (“It is not a
required element of any offense under this section that the minor depicted
actually exist.”). “When interpreting a statute, we are bound to ‘follow the
plain and unambiguous meaning of the statutory language.’” United States
v. Shabazz, 633 F.3d 342, 345 (5th Cir. 2011) (citation omitted). Section
1466A(c) is plain and unambiguous. We conclude, therefore, that the statute
does not require that the image depict a real minor.
The fact that the statute does not require depiction of a real minor
does not create a constitutional infirmity. Arthur argues that
“[c]riminalizing depictions of fictitious characters of indeterminate age
[would act] as an end-run around the Supreme Court’s decision in Ashcroft
v. Free Speech Coalition.” In Free Speech Coalition, the Supreme Court struck
down, as a violation of the First Amendment, a statute criminalizing any
visual depiction of what “appears to be” a minor engaging in sexually explicit
conduct, even if the image did not depict a real minor and was not obscene.
535 U.S. 234, 241, 246, 258 (2002). The statute at issue here is
distinguishable from the statute struck down in Free Speech Coalition for the
simple reason that §1466A(a)(1) requires that the visual depiction be
obscene. And Free Speech Coalition did not change the longstanding rule that
obscene speech is not protected by the First Amendment. See 535 U.S. at
245-46 (“The freedom of speech has its limits; it does not embrace certain
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categories of speech, including defamation, incitement, obscenity, and
pornography produced with real children.”); United States v. Williams, 553
U.S. 285, 293 (2008) (distinguishing the statute at issue in Free Speech
Coalition from one that involves “obscene material depicting (actual or
virtual) children engaged in sexually explicit conduct,” which is
“constitutionally proscribable [under] Ferber and Miller”).
Therefore, the fact that the charged drawings here do not depict real
minors does not render Arthur’s convictions on Counts 1, 8, and 9
unconstitutional.
V.
Because obscenity cases implicate rights protected by the First
Amendment, we must “make an independent constitutional judgment as to
the obscenity of the materials in question.” Ragsdale, 426 F.3d at 779; see also
Jacobellis v. Ohio, 378 U.S. 184, 190 (1964); Miller v. California, 413 U.S. 15,
25 (1973). 4 The parties agree that we must conduct this independent review
of both the charged stories and images.
Under the test articulated in Miller, a work is obscene if: (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.” 413 U.S.
4
The Government reiterated at oral argument that our independent review is the
only principle limiting the reach of the statutes charged here. Making our obligation to
exercise this “independent constitutional judgment” all the more weighty, the
Government stated its position at oral argument that all users of Arthur’s website—
thousands, if not millions, of people—face felony exposure for possession of obscene
material.
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at 24. The Supreme Court has held that “words alone can be legally
‘obscene,’” while noting that that Court “has always rigorously scrutinized
judgments involving books for possible violation of First Amendment
rights.” Kaplan v. California, 413 U.S. 115, 118 & n.3 (1973).
After reviewing the charged materials—albeit with virtually no
adversarial development at trial or on appeal on the first two prongs of Miller,
as well as no expert opinion on any of the Miller prongs, and minimal district
court effort at the Rule 29 stage to particularize the trial proof to the Miller
prongs—we conclude that for Counts 2 through 9, the Miller test is satisfied. 5
The stories and images, which graphically depict violent sexual acts and
almost nothing else, are clearly intended to and do appeal to the prurient
interest. See Ragsdale, 426 F.3d at 780. Given that the images in Counts 8
and 9 depict the sexual abuse of prepubescent children and all of the charged
stories describe in detail the repeated and protracted rape and torture of
babies, infants, and adolescents, we can easily say that they describe sexual
conduct “in a patently offensive way.” Miller, 413 U.S. at 24; Ragsdale, 426
F.3d at 781; Penthouse Int’l, Ltd. v. McAuliffe, 610 F.2d 1353, 1366 (5th Cir.
1980). Finally, the charged materials lack “serious literary, artistic, political,
or scientific value.” Miller, 413 U.S. at 24. Unlike the works Arthur attempts
to compare to, including The Color Purple and Lolita, the charged stories have
“only the most tenuous ‘plot.’” Kaplan, 413 U.S. at 117. And neither the
charged stories nor the images charged in Counts 8 and 9 attempt to be
anything other than the “portrayal of hard-core sexual conduct for its own
5
Scholars have questioned whether the Miller standard, articulated in 1973, needs
updating in the age of internet pornography, given that “[m]aterial that would certainly
have been suppressed a few decades ago, and that would offend nearly every community,
is now available in vast quantities.” Andrew Koppelman, Does Obscenity Cause Moral
Harm?, 105 Colum. L. Rev. 1635, 1658 (2005); see also Amy Adler, All Porn All the Time,
31 N.Y.U. Rev. L. & Soc. Change 695, 701-06 (2007).
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sake.” Miller, 413 U.S. at 35 (emphasis added); see also United States v.
Bagnell, 679 F.2d 826, 837 (11th Cir. 1982) (“None of the films has a plot or
any dialogue, nothing, in fact, save continual intercourse.”). Therefore, we
affirm the jury’s findings on Counts 2 through 9 that the stories and images
in question, extreme and violent depictions of sexual attacks on children, are
obscene.
However, as to Count 1, on our independent, de novo review, we are
not satisfied that the charged image, which was admitted at trial as
Government’s Exhibit 10A, is “patently offensive.” Miller, 413 U.S. at 24.
While the charged images in Counts 8 and 9 are both detailed, color, cartoon-
like drawings depicting pre-adolescent girls being forced to perform fellatio
on disembodied and engorged male genitalia, the charged image in Count 1 is
a simple black and white pencil or charcoal drawing with minimal detail
depicting an adolescent girl alone, reclining and apparently masturbating. 6
Importantly, unlike the children depicted in the images in Counts 8 and 9,
there is no indication that the subject of the image in Count 1 is being forced
to perform a sexual act. The drawing is simple and utterly lacking in violent
depictions. Our independent constitutional review of the image charged in
Count 1 leads us to the conclusion that it is not obscene under Miller. We
therefore reverse Arthur’s conviction on Count 1.
VI.
Finally, Arthur argues that the district court erred in excluding his
expert witness, Dr. David Ley, a licensed clinical psychologist and sex
6
The Government’s position at oral argument that any drawing, fully fictional, of
an adolescent masturbating constitutes felony obscenity is untenable in light of the fact-
specific nature of the Miller test.
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therapist, who intended to testify about the literary, artistic, and scientific
value of the charged stories and images. Miller, 413 U.S. at 24.
A.
This court reviews “the admission or exclusion of expert testimony
for an abuse of discretion.” Huss v. Gayden, 571 F.3d 442, 452 (5th Cir.
2009); see also United States v. Cavin, 39 F.3d 1299, 1309 (5th Cir. 1994). The
district court’s “ruling will be upheld unless it was ‘manifestly erroneous.’”
Carlson v. Bioremedi Therapeutic Sys., Inc., 822 F.3d 194, 199 (5th Cir. 2016)
(quoting United States v. Valencia, 600 F.3d 389, 423 (5th Cir. 2010)). Even
if the district court abused its discretion, “we will still affirm if the error did
not affect the substantial rights of the complaining party.” Carlson, 822 F.3d
at 202. “When assessing whether an error affected a substantial right of a
defendant, the necessary inquiry is whether the trier of fact would have found
the defendant guilty beyond a reasonable doubt with the additional evidence
inserted.” United States v. Wen Chyu Liu, 716 F.3d 159, 169 (5th Cir. 2013)
(cleaned up). “We must, though, be ‘sure, after reviewing the entire record,
that the error did not influence the jury or had but a very slight effect on its
verdict.’” Id. (quoting Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 361
(5th Cir.1995)).
Although “[e]xpert testimony is not necessary to enable the jury to
judge the obscenity of material which, as here, has been placed into
evidence,” Hamling v. United States, 418 U.S. 87, 100 (1974), the Supreme
Court has also said that in an obscenity case, “[t]he defense should be free to
introduce appropriate expert testimony,” Kaplan v. California, 413 U.S. 115,
121 (1973).
Federal Rule of Evidence 702 permits opinion testimony from a
witness “qualified as an expert by knowledge, skill, experience, training, or
education” if the proponent shows by a preponderance that the testimony
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(1) “will help the trier of fact to understand the evidence or to determine a
fact in issue,” (2) “the testimony is based on sufficient facts or data,”
(3) “the testimony is the product of reliable principles and methods,” and
(4) “the expert has reliably applied the principles and methods to the facts of
the case.” Fed. R. Evid. 702. A trial judge “must ensure that any and all
scientific testimony or evidence admitted is not only relevant, but reliable.”
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993); United
States v. Kuhrt, 788 F.3d 403, 419-20 (5th Cir. 2015).
B.
Minutes before trial began, the district court excluded Arthur’s only
witness, Dr. Ley, 7 based on two conclusions: (1) that he was not qualified to
testify as an expert, and (2) that the methodology he used to form his opinion
was not reliable. The district court’s exclusion of Dr. Ley’s testimony on
these grounds was an abuse of discretion.
1.
The district court concluded that Dr. Ley was not qualified to testify
about the artistic or literary value of the charged material because he did not
have a degree in art or literature. The district court concluded that Dr. Ley
was not qualified to testify about the scientific value of the charged materials
because his expertise was not specifically in “depictions of the sexual abuse
of babies and/or children,” but rather in pornography and erotic drawings
more generally.
7
Even though defense counsel objected that “Dr. Ley was . . . our entire case,”
Arthur has not argued to us that he was denied his constitutional right to present a complete
defense, see California v. Trombetta, 467 U.S. 479, 485 (1984), and thus we do not consider
that question.
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First, Dr. Ley was not required to have a degree in art or literature to
testify about the artistic or literary value of the charged materials, so long as
he was qualified based on one or more of the other bases in Rule 702. See
Fed. R. Evid. 702 (“A witness who is qualified as an expert by knowledge,
skill, experience, training, or education may testify in the form of an opinion
. . . .” (emphasis added)); see also Wen Chyu Liu, 716 F.3d at 168 (“A lack of
personal experience—the district court’s concern here—should not
ordinarily disqualify an expert, so long as the expert is qualified based on
some other factor provided by Rule 702 . . . .”); Carlson, 822 F.3d at 200 (“A
medical degree is not a prerequisite for expert testimony relating to medicine.
For example, we have held that scientists with PhDs were qualified to testify
about fields of medicine ancillary to their field of research. ”).
Dr. Ley was qualified to testify about the artistic and literary value of
the charged materials based on his knowledge and experience. He testified
that he had experience giving presentations about “the history of eroticism
in literature and art” as part of his media appearances and work training other
sex therapists. He also testified that he had written a book about
pornography, which contributed to his knowledge of the “role of art with
erotic literature.” In his expert report, Dr. Ley stated that as part of his
“clinical and research” work, he had reviewed “media related to sexuality,”
including “photographs, videos, drawings, and textual accounts in both
fictional and non-fictional formats.” Dr. Ley’s experience and familiarity
with erotic art and literature, which stemmed from his decades of work as a
clinical psychologist and sex therapist, rendered him qualified to testify about
the literary and artistic value of the charged stories and images. And “Rule
702 does not mandate that an expert be highly qualified in order to testify
about a given issue. Differences in expertise bear chiefly on the weight to be
assigned to the testimony by the trier of fact, not its admissibility.” Huss, 571
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F.3d at 452. As such, Dr. Ley’s lack of degree in art or literature bears on the
weight of the evidence, “not its admissibility.” Id.
Second, the district court required a degree of specificity in Dr. Ley’s
expertise that finds no support in our precedent. The district court
concluded that Dr. Ley was not qualified to testify about the scientific value
of the charged materials because his expertise was not specifically in
“depictions of the sexual abuse of babies and/or children,” but rather in
pornography and erotic drawings more generally. However, “an
expert witness is not strictly confined to his area of practice, but may testify
concerning related applications; a lack of specialization does not affect the
admissibility of the opinion, but only its weight.” Wen Chyu Liu, 716 F.3d at
168-69 (citation omitted). For that reason, we have repeatedly found error in
district court rulings that exclude experts on the basis of lack of
specialization. For example, in Huss, we rejected a district court’s conclusion
that an internal medicine doctor was not qualified to testify about the
relationship between a particular drug and the plaintiff’s heart condition. Id.
at 454-55. The physician’s “education and knowledge”—he had medical
and public health degrees and testified that he had experience with the
subject heart condition—qualified him to testify, despite his lack of
specialization in cardiology or toxicology and his lack of experience with the
particular drug at issue. Id. at 453, 455; see also Wen Chyu Liu, 716 F.3d at
166, 168-69 (finding error in the exclusion of “an expert in chemical
engineering, process design, and project engineering,” based on a lack of
experience with the specific type of chemical plant at issue); Dixon v.
International Harvester Co., 754 F.2d 573, 579-80 (5th Cir. 1985) (holding that
an engineer who “had experience in investigating crane, tractor, and
automobile accidents” was qualified to testify about a “crawler tractor”
accident despite not having specific experience with crawler tractors).
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Here, Dr. Ley was a licensed clinical psychologist and board-certified
sex therapist with a master’s degree in psychology, a PhD in clinical
psychology, and twenty years of experience, including in the clinical
treatment of people with “sexual attraction to children” and “a history of
sex offending” as well as in pornography and its use in clinical treatment. As
such, Dr. Ley was not required to be an expert in “depictions of the sexual
abuse of babies and/or children” specifically because his testimony regarding
those materials, and the scientific literature about them, is clearly a “related
application” of his expertise. Wen Chyu Liu, 716 F.3d at 169. It is also notable
that in one of the few obscenity cases this court has decided in recent decades,
the district court did allow the defendant to introduce the expert testimony
of a sex therapist. Ragsdale, 426 F.3d at 771-72. To the extent Dr. Ley lacked
experience with the specific type of material charged in this case, that “lack
of specialization does not affect the admissibility of the opinion, but only its
weight.” Id.
Dr. Ley was qualified to testify as an expert about the literary, artistic,
and scientific value of the charged materials in this case, Miller, 413 U.S. at
24, and the district court’s exclusion of the testimony on that ground was an
abuse of discretion.
2.
Likewise, the district court’s conclusion that Dr. Ley’s methodology
was unreliable was manifestly erroneous. Carlson, 822 F.3d at 199. 8
First, as to the artistic and literary value of the charged materials, Dr.
Ley’s expert report compared the charged stories and drawings, including
8
To the extent that the district court relied on Dr. Ley’s lack of qualifications to
conclude that his opinion was unreliable, that reliance was manifestly erroneous because,
as discussed above, Dr. Ley, a PhD and licensed clinical psychologist, was qualified.
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No. 21-50607
specific elements in each, to literature and art that is generally accepted as
having serious artistic or literary value. 9 The district court faulted Dr. Ley
for failing to “explain how measuring the material against other work led him
to conclude that the material charged has serious artistic value.”
Determining whether a work has serious literary or artistic value is not a
strictly scientific inquiry. See Kumho Tire Co., Ltd. V. Carmichael, 526 U.S.
137, 150 (1999) (explaining that the factors to consider in determining
reliability of expert testimony “depend[] upon the particular circumstances
of the particular case at issue”). Neither the district court nor the
Government has explained why this comparative method is unreliable, and,
as a matter of common sense, comparing the content, as well as the literary
and artistic devices used, in the charged materials with works a reasonable
person would understand as having literary or artistic value is a logical
method for determining whether a reasonable person would also interpret the
charged materials as having such value. See Pope v. Illinois, 481 U.S. 497, 500-
01 (1987) (holding that Miller’s third prong is a “reasonable person”
standard); see also Amy Adler, The Shifting Law of Sexual Speech: Rethinking
Robert Mapplethorpe, 2020 U. Chi. Legal F. 1, 10-11, 20-21, 24-25
(arguing that Robert Mapplethorpe’s photographs presented an easy case of
“serious artistic value” by comparing his work to classical Greek sculpture
and Caravaggio).
9
Whether the defense’s expert could have used comparison between the charged
materials and other works of literature and art as a method to show that the charged
materials had literary or artistic value (Miller prong three) is a separate question from
whether the defense can introduce “comparable material” as evidence of “community
standards” (Miller prongs one and two). See Hamling v. United States, 418 U.S. 87, 125-27
(1974) (upholding exclusion of “comparable materials” used as evidence of “community
standards”); Ragsdale, 426 F.3d at 776 (same).
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No. 21-50607
Second, the district court found that Dr. Ley’s opinion on the
scientific value of the charged materials was unreliable because Dr. Ley
testified that (1) he would have been better able to assess their full value if he
had viewed the materials in the context of the entire website, and (2) he knew
of no clinician who had prescribed similar materials as treatment for any
patient. Neither of these statements establishes that Dr. Ley’s methodology
was unreliable. First, Dr. Ley’s testimony that he would have been better
able to assess the value of the material if he had viewed it in the context of the
entire website was based not on any scientific concern but rather on his
understanding of the Miller test, which requires consideration of whether the
work “taken as a whole” lacks the requisite value. 413 U.S. at 24. Second,
whether Dr. Ley knew of any clinician who had prescribed similar material as
treatment does nothing to undermine the reliability of the studies that Dr.
Ley cited in his report or the admissibility of his testimony about those
studies. The district court’s reasoning does not support the conclusion that
Dr. Ley’s methodology—analyzing published studies in his field that discuss
the scientific value of materials similar to those charged here—was
unreliable.
Dr. Ley’s expert report cited numerous published studies examining
the scientific and clinical uses of narrative accounts of sexual abuse, and Dr.
Ley testified that these studies used methods commonly accepted in the
fields of sex therapy and clinical psychology. See United States v. Hodge, 933
F.3d 468, 477 (5th Cir. 2019) (“Factors that might inform whether testimony
is reliable ‘include whether the expert’s theory or technique: (1) can be or has
been tested; (2) has been subjected to peer review and publication; (3) has a
known or potential rate of error or standards controlling its operation; and
(4) is generally accepted in the relevant scientific community.’”). In the
absence of any evidence that the studies Dr. Ley discussed in his expert
report were, for example, irrelevant, see Pipitone v. Biomatrix, Inc., 288 F.3d
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239, 244 (5th Cir. 2002) (“[E]xpert testimony is admissible only if it is both
relevant and reliable.”), not “generally accepted in the relevant scientific
community,” Hodge, 933 F.3d at 477, or methodologically flawed, see Wells v.
SmithKline Beecham Corp., 601 F.3d 375, 380-81 (5th Cir. 2010) (holding that
expert opinion was unreliable in part because it was “not backed by studies
meeting requisite scientific standards”), there is no support for the
conclusion that Dr. Ley’s opinion—formed based on analysis of the relevant
scientific literature—was unreliable. Thus, the district court abused its
discretion in excluding Dr. Ley’s testimony on the scientific value of the
charged materials.
C.
Although the district court’s exclusion of Arthur’s “entire case”—
opinion testimony about the artistic, literary, and scientific value of the
charged materials, which was necessarily counterintuitive—was an abuse of
discretion, “we will not vacate a conviction based on an error committed by
the district court unless the error was harmful, affecting a substantial right of
the complaining party.” Wen Chyu Liu, 716 F.3d at 169; see also United States
v. Kuhrt, 788 F.3d 403, 420-22 (5th Cir. 2015). As discussed above, the
charged materials in Counts 2 through 9 are so easily distinguishable from
well-known works of art and literature depicting rape, child abuse, and incest
that we are certain Dr. Ley’s proposed testimony comparing the charged
materials to these works would not have convinced the jury that the charged
materials have serious literary or artistic value. Similarly, Dr. Ley’s
testimony about the scientific value of the charged materials would not have
altered the verdict. The fact that researchers have studied similar materials
does not mean the materials themselves, taken as a whole, have serious
scientific value, even if the resulting studies, published in scientific journals,
do. We are sure, after reviewing the entire record, that the district court’s
exclusion of Dr. Ley’s testimony “did not influence the jury or had but a very
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No. 21-50607
slight effect on its verdict.” Carlson, 822 F.3d at 202; see also United States
v. Roberts, 887 F.2d 534, 537 (5th Cir. 1989) (“[I]t is clear that even if the
district court had admitted the proffered testimony, it would not have
changed [the] determination of Roberts’ guilt.”).
VII.
For the foregoing reasons, we AFFIRM the convictions on Counts 2
through 9, REVERSE the conviction on Count 1, and REMAND for
resentencing.
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James L. Dennis, Circuit Judge, concurring in part, dissenting in part:
I concur in my learned colleague’s thorough and careful opinion
except for Section V’s independent judgment with respect to the obscene
nature of the charged material in Counts 2 through 9, 1 and Section VI.C, from
which I respectfully dissent. I am not persuaded that the Government has
carried its burden of demonstrating that the erroneous exclusion of Arthur’s
sole witness was harmless. In particular, two aspects of the excluded evidence
combine to leave me “in grave doubt” that the district court’s error did not
have a substantial influence on the jury’s decision-making. Kotteakos v.
United States, 328 U.S. 750, 765 (1946). 2 The first is the special role of expert
testimony in establishing a defense on the third prong of the Miller test. The
second is that Dr. Ley’s testimony was the only evidence supporting
Arthur’s theory of defense—it was his “entire case.” Maj. Op. at 20. Our
court has held that this combination—the exclusion of expert evidence on
specialized issues of facts and the total absence of other evidence on those
1
I agree with the majority that the charged material in Count 1, a charcoal drawing
of a reclining female apparently masturbating, is not obscene under independent judicial
review. Because the district court excluded expert testimony that, as I explain below, is
central to the Miller issue in this case, the record is insufficiently developed to conduct a de
novo review of Arthur’s Miller challenge to the charged material in the remaining counts. I
would therefore deny Arthur’s constitutional claims without prejudice, preferring to
pretermit our independent judicial review until the record is sufficiently developed. United
States v. Cervantes, 706 F.3d 603, 621 (5th Cir. 2013).
2
I also have doubts as to whether the Kotteakos or Chapman harmless error
standard should apply here. The latter, of course, is reserved for cases where error affects
a defendant’s constitutional rights, and it requires that the Government prove the error to
be harmless “beyond a reasonable doubt.” Chapman v. California, 386 U.S. 18, 24 (1967).
Depriving a defendant of his sole witness and entire defense arguably is an error of
“constitutional magnitude,” implicating both Sixth Amendment and Due Process rights.
United States v. Rhynes, 218 F.3d 310, 323 (4th Cir. 2000) (en banc). However, even under
Kotteakos’s standard for non-constitutional errors, I believe the Government has failed to
carry its burden of proof.
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issues—constitutes reversible error. See United States v. Alexander, 816 F.2d
164, 167 (5th Cir. 1987). Accordingly, I would deem the district court’s error
not harmless, and reverse and remand for a new trial.
It is well-settled that the Government need not present expert
testimony to establish that charged material lacks serious literary, artistic,
political, or scientific value. Kaplan v. California, 413 U.S. 115, 121 (1973). But
it is equally well-settled that a defendant “should be free to introduce
appropriate expert testimony” in order to prove the opposite, that the
material possesses this redeeming value. Id. (citing Smith v. California, 361
U.S. 147, 164–65 (1959) (Frankfurter, J., concurring)). This is because,
though the jury is the ultimate finder of fact, determining whether certain
material has literary, social, or scientific value may require a specialized kind
of knowledge that a layperson does not have. Scientific consensus, especially,
often runs counter to conventional wisdom on many issues. See, e.g.,
Alexander, 816 F.2d at 167 (expert testimony necessary for jury to assess
accuracy of photographic identification because lay identification unreliable).
This very well may have been the case here, where Arthur sought to
introduce evidence through Dr. Ley that the charged material—erotica
describing child rape, abuse, and torture—has been shown to have
therapeutic benefits for some individuals suffering pedophilic disorder and
can reduce the likelihood of offending against children. The social benefit of
otherwise shockingly depraved material is hardly apparent, I would venture,
to the average person unacquainted with the latest clinical psychiatric
research. See United States v. Soler-Montalvo, 44 F.4th 1, 19 (1st Cir. 2022)
(exclusion of expert testimony that charged conduct was fantasy role-playing
behavior, not child sexual predation, was not harmless). Dr. Ley’s testimony
would have provided precisely this information to the jury, thus aiding them
in answering the question posed by Miller as to whether the charged material
lacks serious literary, social or scientific value. I cannot say that this evidence
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would not “have had ‘substantial influence’ on the outcome” of the trial.
Bank of Nova Scotia v. United States, 487 U.S. 250, 256 (1988) (quoting
Kotteakos, 328 U.S., at 765).
Nor can I say that the total absence of any evidence from the defense
on this issue did not substantially affect the jury’s decision-making. Arthur’s
defense—indeed, his only defense—was that the charged material failed
Miller’s third prong. By excluding Dr. Ley’s testimony, the district court
eliminated Arthur’s only chance to challenge the Government on an issue
central to his guilt. At trial, the Government presented no evidence other
than the charged material itself to prove Miller’s third prong. Thus, Arthur
could not challenge the Government’s case through cross-examination or
confrontation; the only means he had to defend himself against the charges
was introducing evidence establishing the First Amendment values of the
charged material. Though our court has never ruled on the question of
whether the erroneous exclusion of evidence that is central to the defense is
harmless, there is robust agreement among many of our sister circuits that
such an error cannot be harmless. See United States v. Peak, 856 F.2d 825, 834
(7th Cir. 1988) (“When erroneously excluded evidence would have been the
only or primary evidence in support of or in opposition to a claim or defense,
its exclusion is deemed to have had a substantial effect on the jury.”); United
States v. Detrich, 865 F.2d 17, 21 (2d Cir. 1988) (“[T]he excluded evidence is
probative on the trial’s central issue, and lends support to the theory of the
defense.”); United States v. Forrester, 60 F.3d 52, 64–65 (2d Cir.1995)
(“Error going ‘to the heart’ of a critical issue is less likely to be harmless.”)
(citing United States v. Tussa, 816 F.2d 58, 67 (2d Cir.1987)); Rhynes, 218 F.3d
at 323. This position strikes me as obviously correct. The harmless error
standard requires that we reverse unless we are “sure, after reviewing the
entire record, that the error did not influence the jury or had but a very slight
effect on its verdict.” Kelly v. Boeing Petroleum Servs., Inc., 61 F.3d 350, 361
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(5th Cir.1995). I fail to see how one could be sure on any record—let alone
this one—that excluding the entirety of the defense’s case did not influence
the jury.
Were there any doubt as to the magnitude of the harm of excluding a
defendant’s Miller expert or of excluding the entirety of his defense taken
individually, there should be none when a district court’s error results in
both. In United States v. Alexander, our court confronted a similar kind of
erroneous evidentiary ruling and deemed it reversible. There, the defendant
was charged with bank robbery. The sole evidence linking him to the crime
was a photographic still of security camera footage of the robber, which three
bank employees identified as being of the defendant. 816 F.2d at 166. The
defendant sought to introduce two experts in sciences related to
photographic comparison, but the district court excluded them, reasoning
that the jury did not need expert assistance in evaluating the photograph in
evidence. Id. at 167. This was in error, our court held, because “the entire
case . . . turned on the photographic identification.” Id. at 169. And although
the opinion did not conduct a harmless error analysis, “because of the
specific nature of the [excluded expert testimony] in this case, together with
the complete lack of any evidence other than the eyewitness identification,”
it held that the district court’s error warranted reversal. Id. at 167. Arthur’s
case presents the same concerns. The entire case turned on whether the
charged material lacked serious literary, artistic, political, or scientific value.
The specific nature of the excluded testimony could have significantly
swayed a jury’s determination of this issue. And aside from the charged
material itself, whose allegedly obscene nature Dr. Ley’s testimony would
undermine, there was no other evidence to satisfy Miller’s third prong. I
would thus follow Alexander and conclude that the district court’s error was
not harmless.
I respectfully dissent.
24