Shaffer-Kilbride Obscenity and CAN-SPAM Case Submitted for Decision After Oral Argument

LOS ANGELES — Oral arguments were heard on June 8 in the joint appeal of the first convictions in the Ninth Circuit for Internet Obscenity not involving child pornography and the first convictions ever under the Federal CAN-SPAM Act.

In June 2007, Jeffery Kilbride and James Schaffer were convicted in federal court in Arizona on charges of obscenity, money laundering, criminal spamming violations under the CAN-SPAM Act and conspiracy. The convictions stemmed from the defendants’ off-shore spam operation and the sending of two allegedly obscene images via e-mail. Schaffer and Kilbride were sentenced to five and six years in prison respectively and ordered to forfeit over $1,000,000. 

Legal firms The Kaufman Law Group and Piccionelli & Sarno subbed in on appeal and immediately secured the defendants’ bail pending appeal from the Ninth Circuit, after the Arizona District Court denied bail. Defense attorneys told this was a significant victory as bail pending appeal is rarely granted. 

Gary Jay Kaufman of the Kaufman Law Group and Greg Piccionelli of Piccionelli & Sarno — attorneys for James Robert Schaffer and Jeffrey A. Kilbride respectively — argued the case before a three-judge panel of the Ninth Circuit Court of Appeals. The argument focused on an unconstitutional jury instruction that allowed an Arizona jury to convict Schaffer and Kilbride of obscenity based on lay witness testimony as to community standards existing in places all over the country, including Ames, Iowa, and Boston, Massachusetts.

"The panel was very receptive to our arguments,” said Kaufman, who is cautiously optimistic about the outcome. "The law as it stands is that obscenity is judged by local community standards. We, of course, believe that a national standard is more appropriate for Internet communications. Whether the court agrees remains to be seen. But one thing we do know: it’s either one or the other, and in this case, the jury got neither. That was a reversible error. I hope that the court will agree.”

Piccionelli also found the tribunal willing to weigh options.

"The judges’ questions showed a clear appreciation of the problem of determining which community’s standards should apply to allegedly obscene content transmitted via the Internet. It was a problem brought front-and-center in this case by a jury instruction so erroneous that, to this day, no one knows just which community’s or communities’ standards were actually used by the jury to convict the defendants. I am hopeful that the court will not allow a situation like that to stand," Piccionelli said. "I am also hopeful that the court will take the next logical step to prevent this from happening again by requiring that content transmitted by the Internet be judged by a national community standard."

A decision is not expected until close to the end of this year.

“This case should be on everyone’s radar," said Colin Hardacre, also of the Kaufman Law Group. "If the Ninth Circuit finds that this instruction was not plainly erroneous, then Internet obscenity prosecutions will become a circus, with the prosecution and defense each bringing in witness after witness to testify to community standards in location after location where the material was allegedly viewed."