USCA4 Appeal: 23-4590 Doc: 36 Filed: 01/13/2025 Pg: 1 of 9

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-4590

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

DARRIN ALONZO MILLER,

Defendant – Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Charleston. Joseph R. Goodwin, District Judge. (2:21-cr-00261-1)

Submitted: November 12, 2024 Decided: January 13, 2025

Before AGEE, QUATTLEBAUM, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Wesley P. Page, Federal Public Defender, Jonathan D. Byrne, Appellate Counsel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. William S. Thompson, United States Attorney, Jennifer Rada Herrald, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-4590 Doc: 36 Filed: 01/13/2025 Pg: 2 of 9

PER CURIAM:

A jury convicted Darrin Alonzo Miller of one count of transferring obscene material

to a minor under the age of 16, in violation of

. Miller appeals, arguing

that the evidence does not support the jury’s finding that the letter in question met the

definition of “obscenity.” We previously considered—and rejected—the bulk of Miller’s

argument in our decision issued after the Government noted an interlocutory appeal in this

case. United States v. Miller,

(4th Cir. 2023). As for the rest, we readily

conclude that the jury’s verdict did not run afoul of the First Amendment because Miller’s

letter meets the Supreme Court’s definition of “obscenity.” Accordingly, we affirm his

conviction.

I.

The record shows that while Miller was imprisoned in a state facility, he sent a

sexually explicit letter to his adopted sister in which he described, in graphic detail, sexual

acts he envisioned occurring between himself and his sister. At the time, Miller was

thirty-eight years old and she was fourteen years old.

After she received the letter, state law enforcement officers were notified and they

investigated. Corporal Jennifer DeMeyer of the West Virginia State Police interviewed

Miller, who acknowledged that he sent the letter. Throughout the interview, Miller referred

to the recipient as “his sister,” J.A. 32, though he also indicated that she was adopted and

acknowledged that she was under the age of sixteen.

2 USCA4 Appeal: 23-4590 Doc: 36 Filed: 01/13/2025 Pg: 3 of 9

Based on his sending the letter to the minor, Miller was indicted for violating

, which prohibits “using the mail or any facility or means of interstate or

foreign commerce” to “knowingly transfer[] obscene matter to another individual who has

not attained the age of 16 years, knowing that such other individual has not attained the

age of 16 years, or attempt[ing] to do so.” To convict, the Government had to prove that

Miller (1) used the mail or other means of interstate commerce to (2) knowingly transfer

or attempt to transfer (3) obscene matter (4) to an individual under the age of 16 years (5)

while knowing that the recipient was under the age of 16. Miller stipulated to every element

of the offense except that the letter constituted “obscene matter.”

Before trial, Miller moved in limine to exclude evidence about how he knew the

recipient was underage, specifically, any evidence that she was his adopted sister. The

district court granted that motion, and the Government noted an interlocutory appeal of that

decision. We reversed, reasoning that this evidence was admissible in part because it “could

assist the jury in determining whether the material is obscene.” Miller,

.

After so holding, we remanded the case for further proceedings.

Miller exercised his right to a jury trial, and in light of his stipulation to all but the

obscenity element, the trial was short and focused exclusively on whether the letter met

that definition. To prove this element, the Government introduced the letter. It also called

Corporal DeMeyer to testify about her meetings with Miller and with his sister and her

mother.

The jury convicted Miller, and the district court denied his motion for judgment of

acquittal. The court then sentenced him to thirty-seven months’ imprisonment, to run

3 USCA4 Appeal: 23-4590 Doc: 36 Filed: 01/13/2025 Pg: 4 of 9

concurrently with the remainder of his state sentence, and to three years’ supervised

release.

Miller noted a timely appeal, and the Court has jurisdiction under

.

II.

Most speech is protected by the First Amendment and therefore cannot be the basis

for criminal charges. But obscenity falls outside the Constitution’s protection, and thus can

be subject to criminal prohibitions. One offense that qualifies is § 1470, which targets

“obscene matter,” as defined in accordance with Supreme Court First Amendment caselaw.

In what may well be one of the most recognizable quotes from a Supreme Court

Justice to non-lawyers, Justice Potter Stewart once remarked, “I know it when I see it” to

define obscenity. Jacobellis v. Ohio,

(1964) (Stewart, J., concurring).

Though this was not the definition of obscenity adopted by the full Court, it is nonetheless

an apt reflection on a somewhat intuitive sensibility underlying the Court’s attempt to

describe the line between the merely sexually explicit—which is protected—and the

obscene—which is not.

To that end, the Court has recognized that printed words alone can be “obscene”

and thus fall outside the First Amendment’s protection. Kaplan v. California,

,

118–20 (1973). The Supreme Court requires balancing three prongs when determining

whether something is obscene: First, we consider “whether ‘the average person, applying

contemporary community standards’ would find that the work, taken as a whole, appeals

to the prurient interest in sex.” Marvin Miller v. California,

(1973) (quoting

4 USCA4 Appeal: 23-4590 Doc: 36 Filed: 01/13/2025 Pg: 5 of 9

Kois v. Wisconsin,

(1972)). Appealing to prurient interest means that the

material appeals to a “shameful or morbid interest in nudity, sex or excretion” or being

“substantially beyond customary limits of candor in description or representation of such

matters.” Roth v. United States,

, 487 n.20 (1957); cf. United States v.

Guglielmi,

(4th Cir. 1987) (defining prurient interest as appealing to

those “individuals eager for a forbidden look”). Second, we look to “whether the work

depicts or describes, in a patently offensive way, sexual conduct.” Marvin Miller, 413 U.S.

at 24. And although “contemporary community standards” originally appeared only in the

first prong’s description, the Supreme Court later clarified that the second prong “is also a

question of fact to be decided by a jury applying contemporary community standards.”

Ashcroft v. ACLU,

, 576 n.7 (2002). Third, we analyze “whether the work,

taken as a whole, lacks serious literary, artistic, political, or scientific value.” Marvin

Miller, 413 U.S. at 24.

On appeal, Miller asserts that the letter does not constitute obscenity and, therefore,

his conviction cannot stand. 1 Acknowledging the letter’s frank and explicit sexual

language, Miller nonetheless asserts that the letter’s text does not “appeal[] to the prurient

1 While the Court ordinarily reviews the denial of a motion for judgment of acquittal based on sufficiency of the evidence grounds under a “substantial evidence” standard favorable to the Government prevailing at trial, the constitutional overlay to an obscenity challenge shifts the Court’s review to something more akin to a de novo standard of review. See Marvin Miller, 413 U.S. at 25 (acknowledging that because obscenity-based convictions implicate the First Amendment, appellate courts must “conduct an independent review of constitutional claims” as appropriate); see United States v. Salcedo,

, 176–77 (5th Cir. 2019) (discussing the unsettled nature of what Marvin Miller’s “independent review” looks like). 5 USCA4 Appeal: 23-4590 Doc: 36 Filed: 01/13/2025 Pg: 6 of 9

interest” or “portray sexual acts in a patently offensive way” under contemporary

community standards. 2 Opening Br. 5. Miller contends that these two prongs of obscenity

were not met because the words used in the letter are no more explicit than lyrics found in

certain modern well-known songs. Because the text itself does not satisfy the definition of

obscenity, Miller asserts that the jury necessarily, but improperly, relied on evidence from

outside the four corners of the letter to convict him. And, in his view, because neither the

age disparity nor the familial relationship between sender and recipient are expressly set

out in the letter, neither fact was an appropriate ground for deeming the letter “obscene.”

He also contends that a contrary view dilutes the meaning of obscenity and conflates

elements of § 1470 given that the recipient’s age is a separate element of the offense.

None of Miller’s arguments hold water. Our prior decision in the Government’s

interlocutory appeal of Miller’s case dispenses with the notion that we must consider the

four corners of the letter apart from evidence of the recipient’s age or familial relationship

when considering whether the letter is obscene. As we recognized there, because incest is

taboo, evidence that the letter describes a sexually explicit fantasy involving Miller and his

minor sister “may inform the jury as to whether the letter is obscene, i.e., whether it appeals

2 Miller’s brief takes a passing shot at the third prong of obscenity, cautioning the Court against the conclusion that private letters inherently lack literary, artistic, political, or scientific value. But he acknowledges that this prong is likely satisfied here and does not seriously challenge it. If not quite a concession that the third prong is met, Miller has not sufficiently developed this argument to warrant our further discussion. Accord Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017) (“A party waives an argument by . . . failing to develop its argument—even if its brief takes a passing shot at the issue.” (cleaned up)). And, regardless, we fail to see any basis for concluding that this letter would raise constitutional concerns under the third prong of obscenity.

6 USCA4 Appeal: 23-4590 Doc: 36 Filed: 01/13/2025 Pg: 7 of 9

to a shameful and prurient interest in sex.”

(citations omitted). In so holding,

we expressly rejected Miller’s argument that the jury’s consideration of obscenity was

limited to the letter’s text. Noting that the Supreme Court’s definition of obscenity takes

into account the work “as a whole,” we observed that “[i]n the specific circumstances of

this case—a sexually explicit letter directed to a minor victim to whom the sender was

related that describes sexually explicit acts between the sender and victim—the ‘whole’

necessarily includes Miller’s relationship to the recipient.”

at 431–32 (citation omitted).

Miller has not provided any reason to revisit our prior decision, which remains binding

authority in this Circuit.

In truth, we remain convinced by that decision’s reasoning. Whether material is

obscene is based on its totality, looking at the three prongs the Supreme Court has

identified. Although Miller’s letter does not use the word “sister” or “brother” when talking

about the individuals it discusses engaging in an explicit sexual encounter, it does use the

words “you,” “your,” “I,” “me,” and “my.” J.A. 87–88. And it envisions the recipient

saying “my name ‘Darrin’” during the encounter. J.A. 87. Because this is a private letter

between the sender and recipient, the identity of those two individuals—which necessarily

encompasses their familial relationship and their age—provides salient context to who the

words reference and precisely what sexual acts are being described. Therefore, the words

within the four corners of the letter do in fact recount what would be incest involving an

adult male and his fourteen-year-old sister. That reality is something the jury was free to

consider in assessing whether, under contemporary community standards, the letter

7 USCA4 Appeal: 23-4590 Doc: 36 Filed: 01/13/2025 Pg: 8 of 9

“appeal[s] to the prurient interest” or “portray[s] sexual conduct in a patently offensive

way.” Marvin Miller, 413 U.S. at 24.

Given this conclusion, the flaws inherent in the rest of Miller’s argument come into

sharp relief. The letter may reasonably (and consistent with the First Amendment) be

deemed obscene not just because it uses vulgar terms, but because it uses such language to

describe—graphically—specific sexual acts. 3 Furthermore, whatever the state of

contemporary music, using sexually explicit lyrics to describe conduct between two

unrelated, consenting adults stands on different legal footing than using identical words to

describe conduct between an adult brother and minor sister. Contrary to Miller’s

contention, there’s simply no comparison between them in ways that are directly relevant

to whether the material in question meets the first two prongs of obscenity.

The Supreme Court requires more than Justice Stewart’s “know it when [we] see it”

understanding of obscenity, but those words still ring true when applying the Court’s

requisite three-pronged assessment. Jacobellis,

. Miller’s choice of words

combined with the specific conduct depicted between the sender and the receiver create the

strong impression on the reader as to the letter’s obscene nature. And the totality of the

circumstances fully supports the conclusion that the letter both falls outside “customary

limits of candor in description or representation of such matters,” Roth,

3 We take no position on whether or when the use of vulgarities alone could be deemed obscene because this case does not involve that scenario. The whole at issue here involves such language being used to describe specific acts which take on additional meaning when understanding the relationship of the described individuals. All three layers are present here and, taken together, they are the basis for today’s holding.

8 USCA4 Appeal: 23-4590 Doc: 36 Filed: 01/13/2025 Pg: 9 of 9

n.20, and “depicts or describes, in a patently offensive way, sexual conduct,” Miller,

.

We thus readily conclude that Miller’s conviction does not run afoul of the First

Amendment. The record supports the jury’s finding that the letter Miller sent to his

fourteen-year-old sister was “obscene matter” for purposes of § 1470, as Supreme Court

caselaw defines that term.

III.

For the reasons provided, we affirm Miller’s conviction. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before the Court and argument would not aid the decisional process.

AFFIRMED

9