A 4th U.S. Circuit Court of Appeals panel voted to dismiss the appeal of Dwight Whorley of Richmond, who is serving 20 years in prison for using a public computer for jobseekers at the Virginia Employment Commission to receive 20 anime images.
The illustrated images depicted young girls being forced to have sex with men.
Whorley also received digital photographs of actual children engaging in sexual conduct and sent and received emails graphically describing parents sexually molesting their children.
A Virginia jury previously convicted Whorley of 74 counts, including receiving obscene materials, receiving obscene visual representations of the sexual abuse of children, receiving child pornography and sending and receiving obscene emails describing the sexual abuse of children.
Whorley’s federal public defender Rob Wagner argued that child-porn cartoons, or anime, is protected under the 1st Amendment because it does not depict real children and claimed the statute is unconstitutional because text-only emails cannot be obscene.
Judges Paul V. Niemeyer and James P. Jones rejected those arguments, but Judge Gregory agreed with Whorley on those issues but joined the majority in affirming his convictions on the counts pertaining to photographs.
“Because 18 U.S.C. § 1462 punishes trafficking in commerce, not the mere possession of obscene materials, and 'receives' has a uniform meaning that is readily understood, we reject Whorley’s facial challenges,” the court ruled. “We also reject his arguments that textual matter cannot be obscene under § 1462 and that cartoons depicting minors in sexually explicit conduct must depict real-life minors to violate 18 U.S.C. § 1466A(a)(1). Finally, we reject his challenges to the district court’s procedural rulings and his sentence.”
Niemeyer noted in the majority opinion that the statute under which Whorley was convicted, the PROTECT Act of 2003, clearly states that “it is not a required element of any offense under this section that the minor depicted actually exists.”
Much of the evidence in the case was received by court order from Yahoo because Whorley used the search engine to seek out child cartoon images.
“At trial, evidence from the [Virginia Employment Commission] computer showed that Whorley conducted numerous searches on March 11 and 12, 2004, through the Yahoo search engine, using the query 'child sex play,'” the court said. “The pictures of the naked children obtained from those searches came from an Illinois website called Logical Reality.
“It also showed that on March 30, 2004, Whorley obtained the 20 Japanese cartoons from a site called Fractal Underground Studio. On the same day, he sought eight times to open sites that had been blocked on the commission’s computers.”
Federal public defender Rob Wagner, who represents the 55-year-old Whorley, said he would ask the full appeals court to reconsider the three-year-old case.
Whorley previously was sentenced to 46 months in prison for a 1999 child pornography conviction.
