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Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
AFFIRMED. (May 10, 2019).
A jury convicted Spencer Salcedo on two counts of using a means of interstate commerce to knowingly attempt to persuade, induce, entice, or coerce a minor to engage in unlawful sexual activity and two counts of using a means of interstate commerce to knowingly attempt to transfer obscene matter to a minor under the age of 16. Salcedo appealed his conviction on the counts involving transfer of obscene material in violation of 18 U.S.C. § 1470, arguing both that the image at issue was not obscene and that he did not intend to transfer the image to any minor under the age of 16. The Fifth Circuit rejects Salcedo’s arguments. The Court first holds that the photograph Salcedo sent to an undercover officer was a patently offensive, lewd exhibition of the genitals. Therefore, the material was obscene, as required under § 1470. The Court further holds that the evidence adduced at trial was sufficient to support the jury’s finding that Salcedo intended to transfer the image to minors under the age of 16. The Court acknowledges that the same evidence may support other, less incriminating conclusions, but explains that it may not override the jury’s sound judgment based solely on the fact that there are alternate interpretations.
On Appeal from the United States District Court for the Southern District of Texas (Nelva Gonzales Ramos).
Attorney for Appellant – Evan Gray Howze, Houston, TX
Attorney for Appellee – John A. Reed, Houston, TX