## Facts

- The Virginia Employment Commission (VEC) operated a public computer “resource room” for employment-related use.
- A patron reported that Dwight Edwin Whorley was viewing child pornography on a state computer.
- VEC supervisors observed Whorley at a printer holding pages that depicted Japanese anime-style cartoons of children engaged in explicit sexual conduct with adults.
- VEC staff escorted Whorley out, banned him from using VEC computers, and found additional obscene cartoons near the computer.
- Whorley left his Yahoo! e-mail account open; VEC employees printed several e-mails from the account containing obscene sexual content and contacted law enforcement.
- Federal investigators determined Whorley used e-mail and the internet to obtain (1) obscene anime cartoons depicting minors in sexually explicit conduct and (2) digital photographs of actual minors engaged in sexually explicit conduct.
- A grand jury returned a 75-count indictment; after trial, Whorley was convicted on counts including:
  - receiving 20 obscene anime cartoons by computer (18 U.S.C. § 1462);
  - receiving the same 20 cartoons under 18 U.S.C. § 1466A(a)(1) (enhanced based on a prior conviction involving depictions of minors);
  - receiving 14 digital photographs of actual minors engaged in sexually explicit conduct (18 U.S.C. § 2252(a)(2));
  - sending/receiving 20 obscene e-mails (18 U.S.C. § 1462).
- The district court imposed an upwardly departing sentence of 240 months’ imprisonment.

## Issues

1. Whether 18 U.S.C. § 1462 is facially unconstitutional because criminalizing “receipt” of obscenity effectively punishes constitutionally protected private possession.
2. Whether § 1462 is unconstitutionally vague as applied to computer-based “receipt.”
3. Whether § 1462 is unconstitutional as applied to text-only e-mails on the theory that text cannot be obscene.
4. Whether 18 U.S.C. § 1466A(a)(1) violates the First Amendment as applied to obscene cartoons depicting minors because they do not depict actual minors.
5. Whether the district court committed reversible procedural error and imposed an unreasonable sentence.

## Decision

- The Fourth Circuit affirmed Whorley’s convictions and 240-month sentence.
- The court held § 1462 is not facially unconstitutional because it targets trafficking/transactional conduct in interstate commerce, not mere private possession.
- The court held “receives” in § 1462 is readily understood and, given the statute’s knowledge requirement, is not unconstitutionally vague in the computer context.
- The court held text-only e-mails can be obscene under the Miller test and therefore fall within § 1462.
- The court held § 1466A(a)(1) is constitutional as applied to obscene cartoons; the statute does not require depiction of real minors when the material is obscene.
- The court rejected Whorley’s remaining procedural objections and upheld the upwardly departing sentence as reasonable.
- A separate opinion concurred in part and dissented in part, objecting to applying § 1466A(a)(1) to purely fictional depictions.

## Legal Principles

- The Constitution’s protection for private possession of obscenity does not bar Congress from criminalizing the importation, transportation, and knowing receipt of obscene matter in interstate commerce.
- Statutory terms are not void for vagueness where they have a commonly understood meaning and are narrowed by a mens rea requirement that excludes inadvertent exposure.
- Obscenity doctrine applies to “material” generally; purely textual communications may be obscene if they satisfy the Miller standard.
- Obscene speech is not protected by the First Amendment; Congress may criminalize obscene visual depictions of minors even if the depictions are fictional and no actual child is used, so long as the statute is limited to obscenity.
- Appellate review of sentencing allows affirmance of an upward departure where the district court provides an adequate justification and the resulting sentence is reasonable.

## Conclusion

The Fourth Circuit upheld convictions for receiving obscene anime cartoons and obscene text-only e-mails and held that § 1466A(a)(1) constitutionally reaches obscene fictional depictions of minors; it also affirmed the district court’s procedural rulings and the 240-month upwardly departing sentence.


United States v. Whorley, 550 F.3d 326 (4th Cir. 2008)