9th Circuit Allows Isaacs to Remain Free Pending Appeal

SAN FRANCISCO—After a complex series of motions that took Ira Isaacs' attorney Roger Jon Diamond from the U.S. District Court for California-Central Division to the Ninth Circuit U.S. Court of Appeals and back again several times, the Ninth Circuit today affirmed that it will allow Isaacs, who on January 16 was sentenced to 48 months in prison, to remain free on bail pending appeal of his conviction, though it left the conditions of that release up to Isaacs' trial judge, George H. King.

"The Ninth Circuit said we did 'raise substantial questions of law or fact that are fairly debatable and if the substantial question is determined favorable to Defendant on appeal, the decision is likely to result in a reversal,'" Diamond told AVN. "So he's free now and will remain so, barring some unusual occurrence, until his appeal is heard by the Ninth Circuit."

Today's Order capped a flurry of motions and counter-motions that began on the day of Isaacs' sentencing, when Diamond made an oral motion at that time for bail to be continued, which Judge King denied.

"He then said, 'Do we need a surrender date?' and I asked for 60 days to surrender and Judge King said, 'No, I'll give you 30 days,'" Diamond recounted. "And Judge King said, 'I'm denying your motion orally without prejudice to your refiling it in written form either before me or before the Ninth Circuit.' I didn't want to go back before King, which is why I didn't file a written motion in his court, because of certain strategic reasons, so when he denied my oral motion, I then filed an emergency motion for bail with the Ninth Circuit, to have the Ninth Circuit review the order of Judge King."

Trouble was, at the time Diamond filed his motion with the Ninth Circuit, he hadn't yet received the written transcript of Judge King's statements regarding the bail situation, and the Ninth Circuit wouldn't rule without it. However, when the transcript was produced, the appeals court denied the bail motion anyway, but did so without prejudice, suggesting that Diamond could file a similar motion with Judge King.

At that point, Isaacs was facing a deadline of his own: February 19, which was the date Judge King had ordered that Isaacs surrender to federal marshals to begin serving his sentence. But when Judge King received Diamond's emergency motion to extend the surrender date to allow time for Diamond to file a written version of the bail motion, Judge King granted it—and Diamond, who was heading for a hearing in Riverside when he got the news, quickly intercepted Isaacs, who was already on his way downtown from his home in West Hollywood to surrender to the marshals.

But the hearing on the written bail application was contentious, with the government filing a long brief in opposition and Diamond filing a reply to their brief that, he said, dealt with all of the reasons why bail should be granted.

"You have to show three things to get bail on appeal once you've been convicted," Diamond explained. "You have to show no likelihood of flight, you have to show no danger to the community, and you have to show that the appeal raises substantial questions of law that are fairly debatable and that if that substantial question is determined favorably to the defendant, that the favorable decision is likely to result in a reversal. ... The government did not argue that he was a flight risk, but they did argue extensively that he is a danger to the community because after the jury found him guilty last April, he continued to sell the same stuff. The government argued that basically that is a form of danger to the community because it showed that he was continuing with his activity even in the face of and after the jury verdict."

Of course, Isaacs didn't help matters any when, as one LAPD detective testified at the hearing, he appeared on a Sunday morning talk show on KFI AM 640 the weekend after he was convicted and appealed to their listenership to buy his movies—and he even provided a URL or two for where they could be located.

Nonetheless, Judge King ruled against the government regarding the danger issue, but denied Isaacs his release based on the third prong of the bail requirements.

"On that point, the 'danger,' we prevailed," Diamond noted. "However, King then went on to say that we had basically no chance of winning the appeal on the legal issues that we highlighted in our motion that we are going to present; he basically said they were not meritorious."

So it was back to the Ninth Circuit for Diamond, to appeal Judge King's ruling on the merits of the bail motion—an appeal which Diamond filed shortly before the March 29 surrender date. Indeed, the federal marshals even showed up at Isaacs' door on the 29th to bring him in to begin serving his sentence, but Diamond managed to convince them and their superiors that in California, the mere filing of a notice of appeal with the Ninth Circuit automatically extended the surrender date, and that Isaacs should remain free at least until the Ninth Circuit ruled on his most recent motion—which they did earlier today.

Still, Judge King will have to rule on the "appropriate conditions for release" that were part of the Ninth Circuit's remand, but Diamond is confident that they won't be too onerous.

"I'm sure they're not going to be vindictive and try to have him post some bail because he's proceeding in forma pauperis anyway," Diamond revealed. "I couldn't abandon Ira, so the Ninth Circuit appointed me to continue representing him. After we filed a motion to allow him to proceed in forma pauperis, which means he didn't even have the money to pay the filing fee, so the filing fee was waived and the transcripts are being paid for by the government and I'll be paid by the government."

So Ira Isaacs remains a free man pending the Ninth Circuit's consideration of his appeal of his obscenity convictions—and Diamond has advised him not to try to sell any more of his movies.

"He had already stopped selling his movies once the government went bananas," Diamond chuckled. "At the sentencing hearing, they called the LAPD detective who was working the case to testify that not only did he hear Isaacs on a radio talk show on KFI Sunday morning after he was convicted advertising his movies; they played the audio tape for the judge. So I would suspect, pending appeal, he'll get into some other line of work."