Sentencing Issues for Adult Webmasters

BY: LAWRENCE G. WALTERS, ESQ. & JEROME MOONEY, ESQ.
WESTON, GARROU & DEWITT

This article deals with an unpleasant topic: sentencing for obscenity-based prosecutions. No adult webmaster likes to obsess about the possibility of going to federal prison for merely operating an adult Website. However, with the Justice Department's recent public confirmation of the upcoming obscenity crackdown on Internet content,[1] this unpleasant concept has taken on a new importance. With 32 prosecutors, investigators and FBI agents spending millions of dollars to bring obscenity cases to courthouses across the country,[2] it is likely that one or more adult webmasters or content producers will be sentenced to a substantial amount of time in a federal penitentiary. As discussed below, most of those sentences will be the result of a voluntary agreement to accept a certain negotiated sentence as opposed to rolling the dice at trial. The United States Sentencing Guidelines provide unfortunate but substantial motivation for indicted defendants to accept responsibility for their actions, and plead guilty to certain offenses as opposed to exercising their right to a fair trial before a jury of their peers.

So how much time would a typical webmaster have to serve on the inside if he or she were prosecuted for common obscenity related offenses in the manner that the Justice Department has typically used in these cases? While each case is different, and involves its own set of unique circumstances and considerations, some common themes tend to run through obscenity cases allowing for useful calculations. As mentioned above, sentences in the federal system are calculated using the United States Sentencing Guidelines (USSG or the Guideline(s)). This system uses a number of factors to determine a Level, or numerical score. This number, or Level then places the individual on a line in a matrix which when factored to include prior criminal record, it any, results in a range of incarceration that sets a minimum and maximum period to be served.

The system of determining the Level is somewhat complicated removing human characteristics and considerations and replacing them with analysis of behavior and income in a fashion the IRS would envy. The analysis of any conviction begins with what is called a base offense level calculation that is dependent on the particular crime charged. For example, the base level offense for distribution of obscene materials is 10.[3] This is only a beginning point in the calculations. Other factors are then applied. For many convictions, including Obscenity, the money earned by the entity engaged in the alleged conduct is used to increase the offense level. Under a concept of relevant conduct this will include not just what the person entering the plea made, but can be expanded to all income (not just profit) from all related sources by all persons involved.

After the offense level is determined there are additional factors that can be applied, or that could result in reductions in some cases. For example; a person who not only pleads guilty, but accepts the allegations without minimizing or shifting blame can receive up to three levels in reduction for acceptance of responsibility. But a person who supervises others can receive up to four levels enhancement for being a supervisor or leader.

To show how this might work, some potential scenarios follow. Each scenario will result in a final Guidelines Calculation resulting in a sentencing range expressed by certain number of months; for example 37 to 46 months in prison. The judge makes the final determination, in every case, as to whether the defendant should be sentenced at the lower or higher end of the range or somewhere in between, and as the judge, he or she has broad discretion as to the specific sentence, so long as it falls within the permitted range.

Under certain very rare circumstances, the judge can choose to depart upwards from the permitted range, so long as legally sufficient reason is provided for such upward departure. In one recent federal obscenity case handled by our firm, the judge threatened to depart upwards by a full five levels given the egregious nature of the criminal conduct involved in that case. For those readers that are curious about this egregious criminal activity; it involved the sale and distribution of a single adult video tape depicting adults involved in fetish activities. Ultimately, the judge was persuaded against any upwards departure.

While the court has the ability to depart upwards, and impose a harsher sentence than contemplated by the Guidelines, under the Feeney Amendment to the PROTECT Act, passed in April, 2003, courts are no longer as free to depart downward and provide a more lenient sentence in obscenity cases.[4] With that in mind, consider the following typical scenarios:

A. Assumed Facts:

1. Adult content Website (Site or Company).
2. All revenues derived from memberships and downloads. Average monthly gross income to
site is $30,000. Site has been operating for two years.
3. Site contains movies that can be streamed or downloaded. Individual picture sets that can
also be viewed or downloaded. Forums for discussion and links to other adult sites. (Several of which are also owned by the owners of this site).
4. The Company created a portion of its content.
5. Material is main stream and does not intentionally contain bizarre content. All depictions are of adults.
6. The Company principals do not have prior criminal records.

B. Company and chief operating individuals are charged with multiple counts of distribution of obscene
materials in Salt Lake City, Utah, and a second indictment in Lexington, Kentucky.

C. First scenario - A plea is negotiated in either location to one count from each indictment.[5]

1. Guideline 2G3.1 would be applied:
a. Base offense level - +10
b. Value of distribution is set at $720,000, total gross
for the company over the two years. (2B1.1) +14
c. No enhancement for organizer or leadership
d. Maximum acceptance of responsibility - 3
e. Total offense level 21
With no criminal history 37-46 months in prison.
2. Same as 1 above except the individual is determined to be a leader, organizer or manager
and/or directed the activity of at least one other person.
a. From e. above 21
b. Enhancement for leadership (3B1.1) 2
c. New Total 23
With no criminal history 46-57 months in prison.
3. Same as 2 above, but government claims that ONE image out of about 10,000 depicted a
person bound in ropes. Even though not the subject of conviction, this image comes in
under relevant conduct because this Guideline groups behavior and would include all adult
material sold whether the subject of conviction or not.
a. Same as above 23 plus
b. Enhanced for sadomasochistic material + 4
c. New Total 27 With no criminal history 70-87 months in prison.

D. Second scenario - No plea is taken, case goes to trial in one location and there are convictions on at least one count that they find particularly offensive. The jury does not convict on most of the counts, and the second indictment is dropped (Yeah, this happens a lot). There is testimony of the involvement of at least one other person who took direction on at least one occasion.

1. Guideline 2G3.1 would be applied:
a. Base offense level - +10
b. Value of distribution is set at $720,000, total gross
for the company over the two years. +14
c. Leader/organizer + 2
d. Total level 26
With no criminal history 63-78 months in prison.

2. Same as above, but government claims that ONE image out of about 10,000 depicted a person bound in ropes. Note, the government used the same image as before, even though it was not the subject of conviction. It could even have been one of the acquitted counts, but if the judge decides by a preponderance of the evidence that it is obscene he can include it. The government also claims that the organization involved five or more persons.
a. Same as above 26 plus
b. Leader organizer (4 instead of 3) +2
c. Enhanced for sadomasochistic material + 4
d. New Total 32
With no criminal history 121-151 months in prison

E. Third scenario - Company goes to trial in both locations and loses both cases.

Each case would be exactly the same as in D above. There would be two sentences for the amount of time involved. The good news is that here because of relevant conduct and the fact that BOTH cases were based on the same amount of money, the sentences would run concurrently. The danger of course being that the greatest sentence would then govern.

F. Fourth scenario - One or more of the images or films involved a person under the age of 18, but over 16.

If created by the Company, a separate offense can be charged for EACH minor (2G2.1). The level is 27 (70-87 months) for producing the image. Two different minors increase it to 29 (87-108 months). And three to 30 (97-121 months). There could also be enhancements for leader/organizer and for “use of a computer.” This could be another 6 levels altogether. It should also be noted that if the offense is charged not as obscenity, but for the production of the material, a minimum mandatory sentence of 15 years may apply.

Whether created by the Company or not, the government could argue under 2G2.2 to use the base level of 17 in place of the base level of 10 above, thereby increasing all of the above by 7 levels. The difference would be, in C(1) above, it would go from 21 to 28 (78-97 months). In D(2) above, it would increase from 28 to 37 (210-262 months).

The above illustrates a few salient points:

1) The Sentencing Guidelines create an incentive for pleading guilty before trial. While all United States citizens have a right to go to trial when charged with a criminal offense, that decision is accompanied by some substantial costs if the defendant is ultimately found guilty. Under the USSG, an individual who accepts responsibility for his or her actions and tenders a guilty plea to one or more of the offenses charged will normally receive a three-point reduction in sentence, which usually shaves off many months in prison. Additionally, the prosecutors may take less aggressive positions on enhancement issues. Thus, each adult webmaster charged with obscenity will at some point be faced with the critical decision of whether to accept responsibility and plead guilty, or roll the dice with a trial and hope for the best with the people who chose to show up for jury duty that day.

The credit for acceptance of responsibility is one of the primary reasons why most indicted defendants in the federal system plead guilty instead of going to trial. Although it should be noted that pleading guilty alone may not be sufficient for acceptance of responsibility. The government has been known to threaten to object to the reduction where the individual does not agree with the government's view of the facts.

In addition, the government will likely provide significant motivation for the defendants to enter a plea of guilty to some offense, by charging numerous additional offenses, or threatening to add additional charges, if the defendant refuses to plead guilty. Potentially, an adult webmaster maybe facing charges relating to Section 2257 violations, credit card fraud, racketeering, money laundering, mail fraud or wire fraud, in addition to the standard obscenity charges. Alternatively, or in addition, the defendant may be looking at defending charges in multiple jurisdictions throughout the United States based on the same Website material, in the event that the government decides to bring charges in more than one jurisdiction B a common tactic in the past, although somewhat curtailed by previous federal court rulings.[6] Sometimes, the government will be inclined to dismiss or drop one or more of these additional charges in an effort to persuade the defendant to plead guilty to the offense that the government is most concerned about. This can sometimes be difficult when charges are brought in several different jurisdictions, with each jurisdiction desiring its own pound of flesh.

2. Your cooperation is greatly appreciated. The government likes cooperative defendants. It makes the job much easier. U.S. Attorneys have a life too, and they appreciate anything that makes their prosecution easier, less time consuming, and more effective. This all raises the issue of Asubstantial assistance. The U.S. Attorney is empowered with the ability to ask the court for a reduction in the sentence either before sentencing, pursuant to U.S.S.G 5K1.1, or after sentencing pursuant to Fed. R. Crim. Proc. 32. Defendants often rack their brains in the attempt to come up with useful information for the government to be utilized in future prosecutions or investigations. This information is proffered to the prosecutor in an effort to convince him or her that the cooperation and information is useful, and should provide the basis for a sentence reduction under the Sentencing Guidelines. Most U.S. Attorneys offices have a limit of three levels decrease on such a motion, although once filed, the judge is not bound by their recommendation. While there is no guarantee that such information or assistance will result in any sentence reduction, most defendants who are looking at many months in prison will be all too willing to provide whatever information they can, if that information will shave a few months off of their already unfathomable sentence. Despite the tough talk in the industry about never cooperating with the feds or turning state's evidence, this will be an all too common scenario once the prosecutions begin in earnest, and the reality of federal sentencing hits home.

3. Money changes everything. Most adult webmasters are in this business to make a living. They seek to generate as much revenue as possible, under their current business plan. However, with the sentencing guidelines, the more money you gross the more severe the sentence. The potential sentence is enhanced based on pecuniary gain. U.S.S.G. 2G3.1(b)(1)(A). Those webmasters found guilty who make an inordinate amount of money will spend more time behind bars under the Sentencing Guidelines. While this is not a reason to intentionally decrease your revenue, it is important to note that the more successful a defendant is, the greater the sentence in the federal system. It should also be mentioned that any revenue, or other assets associated with the business, will likely be forfeited to the government in connection with any sentence. All such assets will be frozen immediately upon arrest, until final disposition of the case.

4. It is better to follow than to lead. The USSG impose enhanced penalties upon those individuals who can be fairly categorized as the “leader” or “organizer” of a group of other individuals who conspire to violate United States law. U.S.S.G. 3B1.1. To the extent that one is giving orders, making decisions, and holding him or herself out as the head of a particular business venture, the greater the likelihood is that additional points will be added to the Guidelines Calculation to arrive at a proposed sentence.

5. Hurt me, hurt me, hurts you. While most types of adult materials are treated the same for purposes of the Guidelines Calculation, the one exception is any materials that depict sadomasochistic activities. USSG 2G3.1(b)(2) . Sadomasochistic material raises the Guidelines Calculation by a full fourlevels. [7] Thus, when evaluating whether to add that S&M fetish gallery, consider the impact on potential sentencing. Of course, the fact that all models depicted in the images consented to that activity is of no consequence from a sentencing perspective. Additionally, the view of the government respecting what is S&M material might vary greatly from what is commonly considered in the industry. Any depiction demonstrating force, pain or restraint can be so construed.

6. The kids are (not) alright. The danger of distributing or creating erotic materials that depict even a single minor in one image cannot be over emphasized. Child pornography changes that base level offense from a 10 to a 27 (70 to 87 months), with additional enhancements for younger ages, use of a computer and additional minors involved. Under the PROTECT ACT there is now a minimum mandatory sentence of 15 years for this offense and much higher guidelines to reflect this change have been proposed. That is why adult industry attorneys have been preaching about the critical importance of age verification and Section 2257 compliance. A webmaster charged with child pornography offenses can also not count on any support from other industry participants, who will immediately tend to distance themselves from any allegation regarding the use of minors in adult materials.

Conclusion

This look at the USSG is sobering, and somewhat intimidating. The prosecutor ultimately controls the offense charged, and thus it is important to respect that prosecutorial discretion. In certain cases, the offense charged can be negotiated; particularly where competent legal representation is brought in before a grand jury returns an indictment on specific charges. In other cases, certain counts may be dropped or never charged as part of plea negotiations. While all adult webmasters hope that they are never charged with any federal offense; and if they are, they hope that they will prevail in the trial of any such offense; awareness of the realities of the sentencing issues in federal court is a must in the current political climate.

[1] L. Sullivan, Administration Wages War on Pornography, www.BaltimoreSun.com (April 6, 2004).
[2] Id.
[3] U.S.S.G 2G3.1.
[4] PROTECT Act at ' 513(a)(2).
[5] Under the Rules of Criminal Procedure, in circumstances where a plea is being negotiated one jurisdiction can agree to
the transfer of its case to another jurisdiction. This only works in situations were there is to be a plea. The advantage is
the ability to dispose of more than one case in a single proceeding, in a single state, and before a single judge.
[6] PHE, Inc. v. United States Department of Justice, 743 F.Supp. 15 (D.D.C. 1990).
[7] Id.

Note: For you prosecutors reading this article, do not cite it for the proposition that any of this is correct and valid; the above reflects DOJ's agenda and position, not that of the authors.

Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all
aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in much of the significant Free Speech litigation before the United States Supreme Court over the last 40 years. All statements made in the above article are matters of opinion only, and should not
be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL
Screen Name: Webattorney.

Jerry Mooney is of counsel to Weston, Garrou & DeWitt, and maintains offices in Salt Lake City, Los Angeles. Mr. Mooney has been an active criminal defense attorney for over 30 years,
he is a frequent speaker to attorney organizations on federal sentencing issues, has served on the American Bar Association Committee on the Federal Sentencing Guidelines, and is a member of the advisory counsel to Families Against Minimum Mandatory Sentences (FAMM).