Post by GOP_Decline_and_FallPost by GOP_Decline_and_FallOn Wed, 24 Apr 2013 11:11:23 -0700 (PDT), rincewind
Post by GOP_Decline_and_FallYou realize that, although Frank escaped prison on a technicality,
the judge is quite aware he had downloaded and stored hundreds of
videos and pictures of children being raped and sexually assaulted by
adults?
Some were as young as six and others were actually babies.
I don't know that Frank McCoy had child pornography on his computer.
Why would that be?
..is there something about the forensic examiners documentation you
don't understand or do you think the DOJ is making it up or something?
Have you actually read it?
http://www.privacylover.com/wp-content/uploads/2008/12/Frank-McCoy-Computer-Forensics-Analysis.pdf
Subject: Forensic Examination Report - Frank McCoy
Examiner: James Fottrell Acts Number: 200500456
Case Type: Child Exploitation Report Date: November 19, 2008
Attachments: 12 Page 8
2. There is evidence that the user of the computer used Forte Agent to
receive images of minors engaged in sexually explicit conduct from
Usenet newsgroups between May 16, 2006 and September 16, 2006.
I don't know that he didn't. If he did, put him in jail for it.
He did. You don't see him or his enablers denying it do you?
The configuration files list the "Full Name" of the user as "Frank
The program was configured to connect to the news server
"news.alt.net" with a "username" of "mccoyf".
What I DO know is that he wasn't charged with that.
So you're saying that we don't have to PROVE anything as long as we
"know"
then
we can do whatever we like with people we don't agree with?
No.
I am saying Judge Sands has seen both the report and the child
pornography Frank downloaded, edited and distributed.
It will undoubtedly reflect in his sentence although the statute of
limitations for this despciable offence means he can be charged any
time up to 2017.
Frank was not charged with or tried for possssion of child porn so
he can't be sentenced for it.
Not until he is charged and inevitably found guilty of course
, unless he takes a plea to avoid dying in prison.
The authorities have the undisputable evidence and have until 2017 to
charge and convict him.
Frank was convicted of obscenity and can only be sentenced under
the guidelines for that charge.
http://www.leagle.com/xmlResult.aspx?page=1&xmldoc=In FDCO
20100527789.xml&docbase=CSLWAR3-2007-CURR&SizeDisp=7
The judge knows what he is beyond a show of doubt and that he is an
irredeemable reprobate, and THAT will effect his sentence.
See above.
Frank can serve three or four years in the penitentiary, be released
and then be arrested for the child pornography.
No he can't. The prosecutor tried to amend the indictment to include
the child porn but was barred by the judge because it was not mentioned
on the search warrant.
Too bad, so sad, go screw yourself.
Yet oddly, you are unable to produce a shred of evidence to support
this pet scenario of yours that you peddle so enthusiastically.
OTOH it seems pretty clear what the judge thinks doesn't it?
http://ga.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20130329_0000349.MGA.htm/qx
"It is undisputed that Defendant's stories describe in explicit and
graphic detail sex acts, incestuous relationships, molestation,
masturbation, sexual abuse, rape, intercourse, violent acts, and
arguably the torture and/or murder of very young children."
United States of America v. Frank Russell Mccoy
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
March 29, 2013
UNITED STATES OF AMERICA, PLAINTIFF,
v.
FRANK RUSSELL MCCOY, DEFENDANT.
The opinion of the court was delivered by: The Honorable W. Louis
Sands, United States District Court
BENCH OPINION
The instant criminal action is before the Court for findings of fact
and conclusions of law following a bench trial conducted Tuesday,
January 12, 2010 and Wednesday, January 13, 2010, regarding the
indictment.
I.BACKGROUND
On June 13, 2007, a one-count indictment was returned by the grand
jury in the Albany Division of the Middle District of Georgia charging
Defendant Frank Russell McCoy with a single violation of 18 U.S.C. §§
2 and 1462. (Doc. 1.)
II.INDICTMENT
The Grand Jury charged Defendant Frank Russell McCoy with one count of
Transportation of Obscene Matters in violation of 18 U.S.C. § 1462. In
relevant part, 18 U.S.C. § 1462 provides that: "Whoever . knowingly
uses any . interactive computer service . for carriage in interstate
or foreign commerce-(a) any obscene, lewd, lascivious, or filthy .
writing . or other matter of indecent character; .-Shall be fined
under this title or imprisoned .." 18 U.S.C. § 1462. The Indictment
alleges that Defendant "did knowingly use an interactive computer
service for carriage in interstate and foreign commerce obscene
matters, and [did] aid and abet persons known and unknown to the grand
jury in the use [of] an interactive computer service for carriage in
interstate and foreign commerce obscene matters." (Id. at 1.)
Providing alleged facts in support of the charge, the Indictment
alleges that Defendant "used an interactive computer service to
transmit to the Middle District of Georgia and elsewhere, links to
three websites: www.young-stuff.com/frank,
ftp.asstr.org/pub/Authors/Frank_McCoy/index.htm; and
www.mrdoubleena.com/htm/frank/index.htm; . from which web sites the
obscene stories were downloaded into the Middle District of Georgia
and elsewhere." (Id. at 1-2.)
III. FINDINGS OF FACT AND CONCLUSIONS OF LAW
A.Findings of Fact*fn1
Defendant was indicted under 18 U.S.C. 1462(a) and 2. (Doc. 1.) The
Government is required to prove several elements beyond a reasonable
doubt under the indictment. In sum, the Government must prove that
Defendant knowingly used and caused to be used interactive computer
services*fn2 for the carriage of obscene material in interstate or
foreign commerce, and aiding and abetting the same. The Government
alleges that Defendant violated these statutes by sending an
undercover agent links to three internet websites that carried text
stories that describe in graphic and explicit detail the sexual abuse,
rape, torture and murder of children. (Id.)
Prior to trial, the Government and the Defendant filed Joint
Stipulations of Fact (Doc. 145). The Court accepts the stipulations of
the parties and finds the following facts as proven beyond a
reasonable doubt. (Id.) The Government requested that the Court render
special verdicts on each of the eighteen (18) stories that the
Defendant caused to be downloaded in alleged violation of 18 U.S.C. §
1462 and 2. (Doc. 165-5.) Defendant alleges that the Government's
request is a constructive amendment of the indictment and is
prohibited under the law and filed a Motion seeking to prohibit the
Government from constructively amending the Indictment. (Doc. 160.)
Having considered the parties' arguments, the Court DENIES Defendant's
Motion to Preclude the Government from Constructively Amending the
Indictment (Doc. 160). The Government's request did not seek to
constructively amend the indictment as alleged by Defendant. See
United States v. Sears, 303 F. App'x 770, 773 (11th Cir. 2008)
(finding that constructive amendment of an indictment occurs where the
Government seeks to alter the bases for conviction beyond the
essential elements of the offense). The Court notes that the
Government's request does not require any deviation from the factual
allegations within the indictment. (Doc. 162.) Moreover, the number of
obscene matters transported is not an element of the crime. See 18
U.S.C. §§ 1462 and 2.
Despite the Court's denial of Defendant's Motion to Preclude the
Government from Constructively Amending the Indictment, the Court also
DENIES the Government's Motion to render special verdicts on the
eighteen (18) stories.*fn3 In light of the facts of this case, a
special verdict is neither appropriate nor necessary. The Court's
decision is based on the unique facts of the case at bar and the
applicable law, specifically the Miller test, which requires the Court
to consider the works of Defendant as a whole. Miller v. California,
413 U.S. 15, 24 (1973) (deciding whether a work is obscene based on
the work "taken as a whole").
The stipulated facts state the following: On March 22, 2005, Agent
Brant, in an undercover capacity, sent an email to
***@millcomm.com. (Doc. 145 ¶ 1.) The e-mail address used,
***@millcomm.com, is Defendant's e-mail address. (Id. ¶ 2.)
Defendant responded to Agent Brant's March 22, 2005 e-mail by
electronic communication and provided Agent Brant links to three web
addresses: www.young-stuff.com/frank,
ftp.asstr.org/Authors/Frank_McCoy/index.htm,
www.mrdoubleena.com/htm/frank/index.htm.*fn4 (Id. ¶ 3.)
Agent Brant, while located in Albany, Georgia, accessed and downloaded
the contents of one of the three web addresses specified in the
indictment (www.young-stuff.com/frank), which consisted of 2,415 pages
of stories. (Id. ¶ 4.) Defendant knew and was aware that Agent Brant
would use an interactive computer service for carriage or
transportation of these stories to be found at those web addresses, in
interstate or foreign commerce. (Id. ¶ 5.) Defendant knew that, when
he provided the web addresses to Agent Brant by e-mail, the materials
that would be transported as a result of those e-mails were of a
sexually explicit nature. (Id. ¶ 8.) Defendant admits that he is the
author, or in a few cases, the editor of all of the stories tendered
by the government as discovery in this case. (Id. ¶ 9.)
Defendant has stipulated to the first two elements of § 1462, (1) that
the Defendant knowingly used or caused to be used an interactive
computer service to transport certain materials in interstate or
foreign commerce and (2) that the Defendant knew, at that time, the
content of the materials were sexual in nature.*fn5 In light of the
Defendant's stipulations thereto, the Court finds that these facts
have been proved beyond a reasonable doubt. Therefore, Defendant
challenges only the third element of his crime, which requires that
the Government prove beyond a reasonable doubt that the materials were
"obscene."
B.Conclusions of Law
The Government has charged Defendant with the transportation and
carriage of obscene materials based on written stories that he
authored and published to the internet. (Docs. 1 and 165 at 15-20.)
Following Defendant's stipulation to the first two elements of the
crime, the sole remaining issue for the finder of fact is whether or
not the written materials are obscene. The Government must prove this
third element beyond a reasonable doubt. *fn6 In order to apply the
test for obscenity in the Eleventh Circuit, the trier of fact must
consider: (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. Miller, 413 U.S. at 24; Luke Records, Inc. v. Navarro, 960 F.2d
134 (11th Cir. 1992). A work cannot be held obscene unless each
element of the test has been evaluated independently and all three
have been met. Penthouse Int'l, Ltd. v. McAuliffe, 610 F.2d 1353, 1363
(5th Cir. 1980).*fn7
1. Whether "the average person, applying contemporary community
standards" would find that the work, taken as a whole, appeals to the
prurient interest?
It is undisputed that Defendant's stories describe in explicit and
graphic detail sex acts, incestuous relationships, molestation,
masturbation, sexual abuse, rape, intercourse, violent acts, and
arguably the torture and/or murder of very young children. (Doc. 145.)
The Court finds that, applying contemporary community standards, the
stories authored by Defendant, taken as a whole, appeal to the
prurient interest of the average person. The Court notes the arguments
of Defendant regarding whether or not the Government successfully
presented a case based on the material as a whole, as the statute
requires. The Government focused on eighteen (18) stories as a
representative sample. To determine what constitutes a whole work, a
court "must view the context and manner in which the material has been
created, packaged, and presented by the author to the intended
audience in order to decide what the work 'as a whole' is for purposes
of the Miller test." United States v. Extreme Associates, Crim. No.
03-0203, slip op. at 5 (W.D. Pa. Jan. 15, 2009).
The Court is satisfied that the eighteen (18) stories represent the
body of work as a whole based on the testimony provided at trial and
the Defendant's own characterizations of his stories, discussed
herein. Because the Court finds that the selected stories represent
Defendant's entire body of work, it must now consider whether or not
the body of work predominately appeals to the prurient interest.
Miller, 413 U.S. at 24. In Kaplan v. California, 413 U.S. 115, 116-117
(1973), the Supreme Court stated that the best evidence of whether the
Defendant's stories appeal to the prurient interest is the stories.
Defendant describes his stories as involving:
Incest, (family members having sex), pedophilia, (young children
having sex), pregnancy (yes, having babies), and quite often several
other quirks as well. These stories (with a few notable exceptions)
are usually completely consensual (That means all parties involved
want to do whatever they are doing.) and are basically love stories.
Even though most people might consider this abuse, nobody, (with the
above noted exceptions) gets abused in his stories. If a little girl
has sex, (gets fucked) it's because she wants to get fucked and asks
for it. This may be unrealistic, but these are stories, fantasies,
they are not intended as examples of the real world, or suggestions of
things to do. (Doc. 165-1, Government Exhibit 1, Hard Copy Printout of
the Home Page for Young-stuff.com) (emphasis added).
Defendant's own description of his stories includes the statement that
"most people might consider this abuse." An appeal to "prurient"
interest is an appeal to a morbid, degrading, and unhealthy interest
in sex, not just an ordinary interest. Moreover, the Court finds that
the subject matters of Defendant's stories-including incest, child
sex-acts, and torture-fall well within contemporary community
standards of "prurient."
Appeal to the prurient interest is that which has "a tendency to
excite lustful thoughts." Roth v. United States, 354 U.S. 476, 487
n.20 (1957). Generally, pornography appeals to the prurient interests
because it is designed to arouse lustful thoughts in its audience. The
Court is careful in its analysis of the application of the instant
test against the facts of this case. Here, the test is whether
contemporary community standards warrant a finding that the materials
in question appeal to more than ordinary interest in sex. Thus, the
Court must consider the standards that would be applied by an average
person with an ordinary attitude toward an interest in sex. These
contemporary community standards are set by the community as a whole;
thus, the instant case is not a matter of applying individual or
personal tastes to the materials in questions.
It has been well established that "the use of children as ... subjects
of pornographic materials is very harmful to both the children and the
society as a whole." S. Rep. No. 95-438, at 5 (1977), reprinted in
1978 U.S.C.C.A.N. 42. The Court finds that, as a matter of law,
Defendant's body of work satisfies the first element of the required
analysis. The Court finds that, applying contemporary community
standards, the stories authored by Defendant, taken as a whole, appeal
to the prurient interest of the average person. In deciding this case,
the Court's decision is not based upon the undersigned judge's
personal opinion as to the obscenity of the work, but is an
application of the law to the facts based upon the trier of fact's
personal knowledge of community standards.
2. Whether the work depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable state law?
Regarding the second element, the Court must now consider whether
Defendant's stories describe sexual conduct in a patently offensive
way. The Court relies upon many of the reasons it provided to find
that the materials in question appealed to prurient interests in order
to find whether or not the materials describe sexual acts in a
patently offensive way. The Court finds that, applying contemporary
community standards, the stories authored by Defendant, taken as a
whole, depict or describe sexual conduct in a patently offensive way.
It is undisputed that Defendant's work includes, but is not limited
to: a father having vaginal intercourse and ejaculating inside the
cervix of his six-year-old daughter (see Gov't's Ex. 5.A, "But
Daddy!"); a father digitally penetrating his seven-year-old daughter
(see Gov't's Ex. 5.B, "TrickDad"); a father having oral sex,
ejaculating into the mouth of, digitally and vaginally penetrating,
and performing oral sex on his six-year-old daughter (see Gov't's Ex.
5.C,"Daddy Please?" ); a father having vaginal intercourse with his
daughter and torturing and murdering her (see Gov't's Ex. 5.N,
"Rapesuzy"); and an adult uncle masturbating and ejaculating, fondling
and having vaginal intercourse with his four-year-old niece while the
girl's mother and father masturbate and video tape this sexual abuse
(see Gov't's Ex. 5.R "Tch-Lisa").
Even if the Court were unsatisfied that these topics and their subject
matter depict sexual conduct in a patently offensive way, which it is
not, the Court notes that Defendant's stories are littered with
disclaimers and apologies about the offensive and disturbing nature of
the content of his work. For example, the story entitled "Rapesuzy" is
prefaced with the following message to the reader:
This story contains very graphic violence against a very young child.
If such things bother you (and they do me) I advise against reading
this. The story is based upon a line that ran through my head one
night, and I couldn't get it out . I started wondering, if there EVER
could POSSIBLY be a reason for a full-grown man, to have to rape, and
thoroughly abuse his own little 5-year-old (or younger) daughter,
because he loves her, not because he's some kind of sadistic beast ...
FINAL WARNING !!!! If you think the previous description is based; the
actual story is much worse! I strongly advise you to skip this one.
(Doc. 165, see Gov't's Ex. 5.N, "Rapesuzy").
The Court finds that Defendant's work falls outside of the accepted
limits of public tolerance and is clearly patently offensive.
Moreover, the Court notes that Defendant admits that he is aware that
his work will offend most of the general public. For these reasons,
the Court finds that, applying contemporary community standards, the
stories authored by Defendant, taken as a whole, describe sexual
conduct in a patently offensive way.
3. Whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value?
Finally, the Court must consider whether or not the material lacks
serious literary, artistic, political or scientific value. Miller, 413
U.S. at 25. In some cases, an item may portray explicit sexual conduct
and still have serious value in one or more of these areas. See e.g.,
Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney
General of Mass., 383 U.S. 413, 419 (1966) (finding that a work's
artistic merit does not depend on the presence of a single explicit
scene.). When applying the Miller test, the work is considered as a
whole, and even where a portion may be found offensive, the work
itself does not for this reason become obscene-even though the scene
in isolation might be offensive. See Kois v. Wisconsin, 408 U.S. 229,
229 (1972). Unlike the previously considered elements, the Court's
analysis under this prong is objective and contemporary community
standards are not applied. Navarro, 960 F.2d at 138. To this end, the
Court must consider whether an objectively reasonable person
considering the material as a whole would find it has or does not have
serious literary, artistic, political or scientific value.
In his defense, Defendant relies upon the testimony of an expert
witness, Professor Gary Richardson, in order to show the Court that
his work has serious literary, political, and artistic value.*fn8
(Docs. 165-4 at 67-90, 165-5.) Professor Richardson is a Professor and
Chairman of the Department of English at Mercer University. Professor
Richardson previously received a Fulbright Scholarship and is a
decorated academic in the field of English and literature. Professor
Richardson concluded, in his expert opinion, that Defendant's body of
work had literary, political, and artistic value. (Doc. 165-5 at
34-36.) Professor Richardson describes Defendant's stories as love
stories, "basic romance plots," and "science fiction." (Doc. 165-4 at
80-81.) While Professor Richardson acknowledges that the predominant
themes in Defendant's work involve "social mores" and "may be
considered taboo," he testified that these are incidental to
Defendant's greater efforts to "undertake an artistic rendering." (Id.
at 84.) These themes, including graphic and explicit incestuous sexual
abuse, rape, torture, and murder of prepubescent children and young
girls, are according to Professor Richardson, a form of "reader
entrapment" which reflects his intent to generate political interest.
(Id. at 85.)
During his testimony, Professor Richardson also described Defendant's
use of complex literary techniques within his body of work that
develop the characters and further the plot line;*fn9 including,
interpolated tale (the use of competing narratives) and complex
resonances. (Id. at 87.) Professor Richardson, as an expert in
literature, urges the Court to consider a deeper level and "close
reading" of Defendant's work and examine the pornographic "visual
gaze" and "central consciousness" are complex "variations on narrative
point of view." (Id. at 88.) According to Professor Richardson,
Defendant's work "reflects serious thought and serious artistry."
(Doc. 165-5 at 4.) Among his reasons in support of his conclusion that
Defendant's body of work contains literary value are, for example,
Defendant's use of inversion of a biological reality in the story
entitled "Rapesuzy." There, Professor Richardson points toward
Defendant's use of science fiction-including the use of nanobots-as he
explores the complex and timeless themes of the nature of love, the
difference and relationship between love and sexuality, and how
society is disposed to interact sexually with the rest of the world.
(Id. at 6-7.) For these reasons, Professor Richardson concluded that
"under a narrow definition" Defendant's work does have serious
literary value and further that "from the standards of people who
study literature, [Defendant's] stories would manifest serious
literary value."*fn10 (Id. at 19, 22.)
The Court is aware that pornography and material with the presence of
disturbing sexual content can often be redeemed where there is a
deeper purpose. Where such material communicates literary, artistic,
political, or scientific messages a tangible benefit may be conferred
upon the target audience; however, in this case, the Court can find no
independent value within the work when considered as a whole. The
Court, considering the material in question objectively as is required
by the law, simply cannot find that the content of Defendant's works
provide serious literary, artistic, politic, or scientific value.
While the expert testimony of Professor Richardson provides critical
analysis of Defendant's work, it cannot redeem Defendant's work. Even
if the Court found that Defendant sought to incite political discourse
and provide artistic commentary on society as Professor Richardson
suggests, the Court can find no literary value within the murk of
rape, incest, abuse, molestation, and vivid descriptions of the
violations of children as composed within Defendant's work. Most
importantly, notwithstanding Professor Richardson's analysis and
opinion, no evidence exists in the Record to support a finding that
Defendant's purpose was artistic, scientific or political. The Record
instead establishes a clear purpose to appeal to prurient interest,
especially with prepubescent female children.
The Court has carefully considered the facts at bar and the testimony
and evidence presented at trial; as a result, the Court finds that the
work of Defendant contains no serious literary value or even slight
artistic value. Therefore, the Court finds that the material in
question is legally obscene. McAuliffe, 610 F.2d at 1363 (holding that
a work cannot be held obscene unless each element of the test has been
evaluated independently and all three have been met). In sum,
Defendant's stories present as ordinary and "consensual," patently
offensive accounts of various explicit sexual acts, abuse, violence
and rape of prepubescent female children as young as four years of age
to appeal to the prurient interest of the reader.
IV.CONCLUSION
Accordingly, based upon the foregoing findings of fact and conclusions
of law, Defendant Frank Russell McCoy is hereby found GUILTY, beyond a
reasonable doubt, as charged in the Indictment (Doc. 1). A sentencing
hearing shall ensue by separate order.
W. Louis Sands
