IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-20554

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

BRENT JUSTICE, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:12-CR-731-2

Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.

PER CURIAM:*

Brent Justice appeals his conviction on four counts of violations of 

18 U.S.C. § 48, specifically, three counts alleging the creation of animal crush 

videos and one for distribution of such a video. We vacate the conviction as to 

one count (Count 3) and render a judgment of acquittal on that count. In all 

other respects, we affirm.

We have seen this case once before. United States v. Richards, 755 F.3d 

269 (5th Cir. 2014). In Richards, we concluded that § 48, which prohibits 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 20, 2017

Lyle W. Cayce

Clerk

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No. 16-20554

2

certain conduct relating to videos that (1) depict animal abuse and (2) are 

obscene, is not facially unconstitutional. In so holding, we incorporated the 

limitations on prohibitions of obscenity set forth in Miller v. California, 413 

U.S. 15, 24 (1973). Id. at 274–76. In Miller, the Court stated that such 

prohibitions must involve the depiction or description of sexual conduct and 

“be limited to works [(1)] which, taken as a whole appeal to the prurient 

interest in sex, [(2)] which portray sexual conduct in a patently offensive way, 

and [(3)] which, taken as a whole, do not have serious literary, artistic, 

political, or scientific value.” 413 U.S. at. 24.

Following the Richards decision, Justice proceeded to trial before the 

bench with respect to three videos: “whitechick” (creation), “blackluvsample” 

(creation), and “adammeetseve2” (creation and distribution). The district court 

convicted him on all counts and assessed identical sentences of 57 months to 

run concurrently, which ultimately resulted in a sentence of fourteen months 

after crediting time served in state custody on related state charges. Texas v. 

Justice, Harris County, Cause No. 1357897 (2012), modified, Justice v. State, 

No. 14-16-00153-CR, 2017 Tex. App. LEXIS 9807 (Tex. App. – Hous. [14th 

Dist.] Oct. 19, 2017). Justice appeals, challenging only his convictions, not his 

sentence.

The focus of both sides’ arguments is whether sexual conduct is depicted 

in a patently offensive way in these videos. In Miller, the Court gave “plain

examples” of patently offensive conduct.1 413 U.S. at 25. Justice says that the 

Government cannot prosecute conduct that does not fit in those examples.

Justice also argues that any such depictions are too brief to permit conviction. 

 

1 The Court defined the “plain examples” as “(a) [p]atently offensive representations 

or descriptions of ultimate sexual acts, normal or perverted, actual or simulated [and] 

(b) [p]atently offensive representation or descriptions of masturbation, excretory functions, 

and lewd exhibition of the genitals.” Miller, 413 U.S. at 25.

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Finally, Justice contends that any sexual conduct in these videos is not what 

is patently offensive; rather, it is the animal cruelty which is patently 

offensive.

We conclude first that it is appropriate to view the videos in their 

totality. See United States v. Ragsdale, 426 F.3d 765, 769, 781 (5th Cir. 2005)

(finding entire videotapes obscene even though a victim in one videotape

“seem[ed] to consensually engage in various sexual activities” during the first 

half of the videotape). We further conclude that it is unnecessary to resolve 

the other legal disputes here. This case can be resolved on the facts of these 

particular videos, not abstract principles of law; therefore, any other legal 

disputes are not determinative here. Examining the specific videos in full, we 

conclude as follows:

1. Even assuming, arguendo, that § 48 obscenity is limited to the “plain 

examples,” whitechick and adammeetseve2 (Counts 2, 4, and 5) meet 

that test: the former portrays masturbation with a chicken and the latter 

portrays simulated sodomy of a cat, both of which are patently offensive 

and fall in the plain examples of Miller. See 413 U.S. at 25.

2. On the other hand, even assuming, arguendo, that obscenity is not 

limited to the “plain examples,” blackluvsample (Count 3), while clearly 

intended to “appeal to the prurient interest,” does not “portray sexual 

conduct” and, therefore, while horrific, is not obscene under Miller. See 

id.

As a result of these conclusions, we VACATE Justice’s conviction under 

Count 3 and RENDER a judgment of acquittal on that count. In all other 

respects, we AFFIRM the district court’s judgment.2

 

2 The sentences on all four counts were identical and ran concurrently. At oral 

argument, Justice’s counsel conceded that a vacatur of only one conviction would not warrant 

a remand for resentencing.

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