UPDATE: Though sentencing for producer/director Ira Isaacs was scheduled to take place today before U.S. District Judge George H. King, the judge postponed that sentencing hearing until a future date that is yet to be determined. The judge gave no reason for the postponement.
LOS ANGELES—The finale to the saga of the Bush Justice Department's last obscenity case may be written on Monday, August 6, when fetish movie producer/retailer Ira Isaacs is scheduled to be sentenced by U.S. District Judge George H. King on five counts of producing and distributing obscene material: Japanese Doggy 3 Way and Mako's First Time Scat, two Japanese movies that he sold through his various websites, and Hollywood Scat Amateurs 7 & 10, which he produced himself and sold.
"The defendant operated a business in which he engaged in the production, distribution, transportation, and sale of obscene videos which depict women engaging in sex acts while eating and ingesting feces and drinking urine, engaging in sexual intercourse with animals including dogs, and being bound and whipped," summarized Child Exploitation and Obscenity Section (CEOS) attorneys Damon King and Michael Grant. "The defendant, utilizing the Internet, websites and computers that he owned and operated, sold and shipped via United Parcel Service ('UPS') and the U.S. Mail these videos, including the four specific videos that the jury found were obscene."
After beginning with a "based offense level of 10" under the federal sentencing guidelines, the United States Probation Office (USPO) proposed adding several more levels to the guidelines for such activities as selling the movies for profit, using a computer and the internet to accomplish the sales, and because the material "portrays sadistic and/or masochistic conduct and violence." However, the USPO also asked for a four-level enhancement based on the allegation that Isaacs had a "leadership role in the criminal activity which involved five or more participants"—a charge to which Isaacs, through his attorney Roger Jon Diamond, objected because Isaacs never had more than three people working in his office at any one time. But Damon and Grant argued in their sentencing memorandum that "the case material clearly shows that at least seven individuals in addition to the defendant were involved in the production and distribution of the materials," including performers, editors, etc.
"The Guidelines do not require that those individuals be participating in the offense at the same time," the CEOS attorneys argued.
The U.S. Probation Officer who wrote the report decided against adding two more levels for Isaac's allegedly having used a "vulnerable victim," likely because at trial, the prosecutors failed to present any evidence that Isaacs had provided drugs to actress Veronica Jett, and though she was present in the courtroom for part of the trial, failed to call her as a witness to bolster the allegation.
The Probation Officer had also been asked to reduce his sentencing recommendation by two levels because Isaacs had accepted responsibility for his acts—in fact, he never denied that throughout all of his trials, arguing that he had created and sold "shock art" protected under the Supreme Court's Miller decision—but decided not to apply the reduction because after conviction, Isaacs allegedly sold movies similar to those for which he had been convicted.
"He [Isaacs] respectfully objects to the Court considering any post verdict activity," Diamond wrote in his objections to the presentence report. "Defendant objects to consideration of any movie that was not the subject of the Indictment. Every movie is different. We know from the second trial that there were some jurors who voted not guilty with respect to the same movies. Defendant Isaacs does not concede that any movie he might have sold after the verdict was obscene."
But despite there having been no evidence offered at trial concerning the content of the more than 1500 other movies Isaacs had made available for purchase through his websites, the government took the position that the court could take those into consideration in sentencing, arguing that the Ninth Circuit's decision in the 1990 case of U.S. v. Cooper allowed the judge to "legitimately consider evidence of [defendant]'s continued criminal conduct... to belie her professions of remorse and acceptance of responsibility for the offense of conviction."
In all, prosecutors will be asking Judge King to sentence Isaacs to a prison term of between 57 to 71 months—four years, nine months to six years, 11 months—but despite the Probation Officer's recommendation, they are also asking the judge to include more prison time for the "vulnerable victim" allegation, which if the judge agrees, could raise Isaacs' sentence to as much as seven years, three months behind bars.
In addition, the government wants to keep the 61-year-old Isaacs on probation for three years after he gets out, and is asking for a $10,000 fine plus a "special assessment" of $500.
Those fines would be in addition to the massive amount of property and materials which the government wants to seize from Isaacs' business and home, and in an Order issued Wednesday, Judge King agreed that Isaacs must forfeit ownership of 37 websites, 24 movies he created himself, the more than 1500 movies which he sold through his sites and for which he has master disks, and "All computers and computer servers, DVD players and burners, video equipment (including but not limited to cameras, editing, and video reproduction equipment), and blank electronic media, including but not limited to blank DVDs, CD-roms, VHS tapes, hard drives, and media covers and cases for such media, legally or beneficially owned by the defendant as of April 14, 2011."
Of course, what will happen Monday is anyone's guess. Federal sentencing guidelines are no longer mandatory, so it would be possible for Judge King to sentence Isaacs simply to a period of probation—but the government is allowed to appeal any major departure from the guidelines, and considering the vast amount of time and effort the Justice Department has put into the case, it surely would appeal a sentence that deviated at all from the recommendations.
But in the end, what this case does is bring to a close a period in political history that saw several obscenity prosecutions under Bush Attorneys General John Ashcroft and Alberto Gonzales as well as numerous instances of attempts to restrict Americans' rights to view, own and create sexually explicit materials—restrictions which the Obama administration has not reversed but also has not increased... but which likely would increase greatly under a Republican president and Congress.