DALALS, TX – In a decision handed down Tuesday, the US Court of Appeals for the Fifth Circuit upheld the convictions and sentencing of defendants/appellants Garry Layne Ragsdale and Tamara Michelle Ragsdale, who were convicted on one count each of conspiracy, and two counts of mailing obscene materials and aiding and abetting. Garry Ragsdale was sentenced to 33 months in prison and Tamara Ragsdale 30 months at a March 2004 sentencing hearing.In denying the Ragsdale’s appeals, the Fifth Circuit declined to consider a final supplemental appeal filed by Garry Ragsdale, in which Ragsdale “asserted an additional constitutional argument charging that § 1461 violates the substantive due process rights of individuals who have a right to possess obscene materials in their home, a liberty interest he contends was established in Stanley v. Georgia, 394 U.S. 557 (1969),” according to a closing footnote in the Fifth Circuit’s decision.

“This is a disappointing ruling, but not unexpected from this court,” said Larry Walters of the law firm Weston, Garrou, DeWitt & Walters. “It appears that counsel for the defense made a last ditch effort to win the appeal by trying to file a supplemental brief raising the Due Process arguments enunciated by Lawrence v. Texas, and U.S. v. Extreme Associates. The court could have reopened the briefing in this case and entertained these issues, but chose to convict someone of a serious crime without exploring the constitutional defects that another court found with the federal obscenity law.”

In the final footnote of the Fifth Circuit’s decision, the court asserts, “We need not reach this issue. We deem abandoned those issues not raised in an appellant’s initial brief and we will not consider those issues not raised in the trial court,” citing St. Paul Mercury Ins. Co. v. Williamson, a case heard by the Fifth Circuit in 2000. “Garry’s substantive due process argument was neither raised in the trial court nor raised in his initial brief. It was therefore waived.”

Walters, however, finds the courts point less than compelling, given the gravity of the charges, and the fundamental importance of the constitutional issues raised in Ragsdale’s supplemental brief.

“The Ragsdale court found that these arguments had been waived by failing to raise them in the trial court, but fundamental constitutional issues such as these should be allowed at any time, to prevent a miscarriage of justice,” Walters said. “All obscenity convictions are, in my opinion, miscarriages of justice in the current times, and this antiquated law needs to be flushed down the toilet along with all the sodomy laws under the reasoning of Lawrence v. Texas. Hopefully, the Third Circuit will have more courage when it considers the Extreme Associates appeal in mid-October.”

The roots of the Ragsdale case reach back to 1998, when the Dallas Police Department received a complaint from a Berlin, Germany resident named Oliver Chalet about a website located at geschlecht.com – a site which purported to offer “real rape videos.” Chalet had determined that the site was registered to Garry Ragsdale, a resident of the Dallas/Fort Worth area.

According to information contained in both the indictment and the Fifth Circuit’s recent decision, Dallas detective Doyle Furr was assigned the case, and recognized the name and address of the website as that of a fellow police officer. Furr, using the name Charles Taylor, later purchased all 8 of the videos offered on the Ragsdale site, two of which were alleged to be obscene in the eventual indictment.

Although the FBI and Dallas Police executed their search of the Ragsdale’s home in July of 1998, charges were not brought against the couple until March of 2003, nearly 5 years after the investigation first began. According to court documents, the Ragsdales closed their website following the FBI’s 1998 raid.

In addition to the constitutional issues raised in the supplemental brief, the Ragsdales raised numerous other issues on appeal, including the assertion that the court had “erred in raising the defendants’ offense level nine levels based on facts that were not proven to the jury beyond a reasonable doubt, in violation of United States v. Booker.”

The Fifth Circuit, however, declined all of the Ragsdale’s arguments, despite allowing for the fact that, “Based on the jury’s verdict, the Ragsdales offense level should have been set at 15, which would have permitted the district court to sentence them each to 18 to 24 months imprisonment, pursuant to the applicable guidelines’ range. The district court increased the Ragsdales’ sentences beyond the maximum prescribed range authorized by the jury’s verdict based on findings that were not proven to the jury beyond a reasonable doubt nor admitted by the defendants. Thus, the district court violated the Ragsdales’ Sixth Amendment rights.”

Despite the apparent Sixth Amendment violation, the appeals court said that “the material question is whether the error affected the Ragsdales’ substantial rights” and that “because the Ragsdales have failed to meet their burden of persuasion, we decline to find that the Sixth Amendment violation at trial constituted plain error.”

A third individual involved in the distribution of the offending video tapes, Thomas Gartman, allegedly fled to Canada after the FBI raided the Ragsdales’ home in 1998. According to court documents, Gartman had allegedly told Garry Ragsdale that he had shown the videos in question to an attorney, who had rendered the opinion that the videos would not be considered obscene – a curious assertion to make in any case, given the vague and broadly interpreted language of federal obscenity statues and their counterparts on the state level.

Gartman’s quick exit to Canada may not have been entirely related to the Ragsdale case, though; according to the Dallas Observer, a New Jersey-based lawyer secured a $450,000 federal judgment against Gartman for pirating adult content from one of the attorney’s clients.