Black, Borden Sentenced on Single Conspiracy Charge

PITTSBURGH, Pa. — Extreme Associates owners Rob Black and Lizzie Borden were sentenced this morning on one count each of "conspiracy to distribute obscene material." In a marked departure from the now-advisory federal sentencing guidelines, each was given one year and one day in prison. That extra day on their sentences means that the pair will be eligible for federal "good time" deductions from their sentences, and therefore, with good behavior, will be released in just over 10 months, after which they will undergo two years of "supervised release."

"He gets 54 days good time, so his actual sentence is actually 10 months and six days," advised the couple's attorney, H. Louis Sirkin. "And, of course, sometime before the end of that, he'll be eligible for a halfway house and so will she. It isn't overwhelming that way, but it's still disappointing, and it's still hard for me to take that somebody's going to jail for expression.

"I guess I thought that the worst that would happen is some period of home incarceration," Sirkin continued. "I'm a little disappointed. Obviously, he [U.S. District Judge Gary L. Lancaster] deviated significantly from the guidelines. He did agree with us that the old guidelines from 2002 did apply to us, so we didn't get the enhancement for the use of the computer. But we started out at a level 16, which is a guideline sentencing range of 21 to 27 months for category 'criminal history 1' [i.e., no prior criminal convictions], but he departed down nine months, which is about 45 percent, which is a significant variance from the guidelines."

The judge, Sirkin added, "said a lot of things about how it was a victimless crime, how nobody got the material who didn't order it, and made reference to Karen Fletcher, who was given probation, and that Fletcher and this were the first obscenity prosecutions in that district of Pennsylvania in 20 years and stuff like that, and sort of got excited. There was no fine imposed, no fine against the corporation and no fine against them; they can self-surrender, and will have only two years of supervised release once they're released. That's fine. You can look at it as — and Jennifer [Kinsley, Sirkin's associate and co-counsel on the case] can look at it as — 'Well, we've gone from 46 months [in the Paul Little/Max Hardcore case] down to a year and a day.' "

Although Judge Lancaster denied the defense motion contesting U.S. Attorney Mary Beth Buchanan's characterization that the material in question was "sadistic or masochistic" and therefore required a greater sentencing level, according to Sirkin, that loss made little difference in the final sentence.

"We anticipated that they would end up as a level 16," Sirkin explained. "We had hoped to win on that issue, but we lost it in [the Max Hardcore case in] Tampa — we still think we're right on that issue — but the bottom line is, we ended up with a sentence, even if we'd gotten the extra points off for that, in the range that they actually got sentenced on. The judge did come down to what would have been a sentence for about at a level 12 or 13."

"Our position was that in order for material to be obscene, it's got to be sexual depictions that are patently offensive," he continued, "and inherent in the second prong of the [Miller v. California] obscenity test is really the nature of the material, which was violent sex. So an enhancement for sadism or masochism is really double-counting, because it's already one of the elements that is part of the obscenity test; it's completely content based, and as Jennifer argued, there's no other content that would give you a further enhancement for the type of sex ... We really disagree with Judge Lancaster on that point, but to appeal it would open the door for the government to get pissed off and say the sentence they got wasn't reasonable, so we're not appealing the issue."

(More discussion of this subject can be found here.)

But while Black said little during the proceedings, Borden delivered what may have been an ironic recounting of her experiences.

"Lizzie talked about how she never thought she was doing anything wrong," Sirkin recounted. "She didn't realize that putting porn with violence was against the law. Rob was, I thought, pretty humble and expressed his feelings about the difficulty with the variations [in community standards] throughout the country and the difficulty with [complying with] it."

On the other hand, Buchanan had much to say about the history of the case and its implications, claiming that any jury in the country would have found the DVDs obscene under federal law.

"We heard reference in the government spiel about how horrible this material is, and how far it crossed the line," Sirkin stated. "We were reminded once again, out of their mouths, about the Cambria list — that this stuff was well beyond what a well-respected person who represents this industry set forth in the Cambria list as safe. She also made some comment in Rob's sentencing about how he reduced his wife to having to work as a stripper."

Today's sentencing marked an end to America's longest-running obscenity case, with the defendants having been indicted in August 2003 on several counts of both mailing obscene material to the Western District of Pennsylvania and posting obscene content to Extreme's website. The case was thrown out entirely by Judge Lancaster in January 2005, but reinstated by the 3rd Circuit Court of Appeals about a year later. Today's plea, to a conspiracy rather than an obscenity charge, may mean that neither defendant will have to register as a "sex offender" upon completion of their sentences.

"It's our position that it's a conspiracy conviction, but we don't know what effect that will have on their offender status," Sirkin said. "That's something that we currently have undergoing a challenge in Ohio; we hope that we can maintain our position of standing in that, and this may be a case where we'll be able to make that argument, but I don't know. Registrations are determined by the state laws where they live, and whether they travel and whether they work, and I don't think California has expanded its registration, as supposedly required under the Adam Walsh Act, to sellers of obscene material, so we don't know that, but it's something that we have certainly made a big point of to the industry."

Sirkin also had some thoughts regarding how Judge Lancaster arrived at the final sentences.

"I really think Judge Lancaster may have given consideration to how, if the government was upset with his sentencing, if they appealed it, would his variation on the guidelines be sustained by the 3rd Circuit," Sirkin explained. "And I think that that may have been some consideration, but I don't think the political climate really had any effect on him with that. I really don't. I think on the one hand, he said he believes that it was victimless and it was the government that went out and sought this stuff and so on, but district court judges can do variances and they can justify them and all that, but there also are some constraints that come about from decisions that have come from the appellate court, and appellate courts have reversed very lenient sentences that have been given to defendants, so he may have — that may have played a part in his decision."

Although the sentencing took place today, it is unclear where the defendants will be serving their time, and Sirkin said he plans to make recommendations on that subject within the next few days.

"I don’t know where they'll be going," Sirkin said. "Max was recommended that he go to a low-security facility, and we know Rob will go to low security, but whether he'll be [prison] camp-eligible, I don’t know. We run into that same thing, that 'public safety' factor that Max ran into because of 'obscenity.' Now, this is a conspiracy plea, whereas Max's conviction was on obscenity, but we don't know. We did not ask for a recommended facility yet — we will follow up with something to the court — because we want Rob to decide whether he maybe wants to go to a facility that's close to where his parents' home is, by Sanibel Island in Florida, or California. There's a facility in Sarasota which is very close to Rob's parents' home. So this is something he and the family want to talk about, and he'll let us know in a couple of days."

And what about Lizzie Borden?

"They would not be in the same facility, though they would like to be," Sirkin noted. "[Lizzie] has family in Northern California — a grandmother lives up that way — but there's a push that Rob's mom would like to have both of them in an area close to her, so we want [Lizzie] to make a decision."

Sirkin also had some final words of caution for the adult industry itself.

"The hard part is trying to make people in this industry realize [it's] like that old saying: First you start somewhere, and there's always somebody else that wants to silence someone else," he opined. "And it keeps going back, and all these people who've been saying Max's stuff is extreme, Rob Black is extreme — well, John Stagliano's stuff is a little bit different, certainly, than Rob and Janet's, but he's facing obscenity charges as well, so people should start remembering when they start denouncing other members of their own industry, it has a ripple effect, and it's working its way up and it's giving the government exactly what they like hearing. They come back and they regurgitate it, and we hear it."