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 Web site.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 Web site. However, with the Justice Department’s recent public confirmation of the upcoming obscenity crackdown on Internet content1, 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 country2, 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 cases4. With that in mind, consider the following typical scenarios:

A. Assumed Facts:

Adult content Web site (“Site” or “Company”).

All revenues derived from memberships and downloads. Average monthly gross income to site is $30,000. Site has been operating for two years.

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).

The Company created a portion of its content.

Material is mainstream and does not intentionally contain bizarre content. All depictions are of adults.

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

Guideline 2G3.1 would be applied:

Base offense level: +10

Value of distribution is set at $720,000, total gross

for the company over the two years (2B1.1): +14

No enhancement for organizer or leadership: +0

Maximum acceptance of responsibility: – 3

Total offense level: 21

With no criminal history: 37-46 months in prison.

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.

From e. above: +21

Enhancement for leadership (3B1.1): +2

New Total: 23

With no criminal history: 46-57 months in prison.

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.

Same as above: 23 plus

Enhanced for sadomasochistic material: + 4

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.

Guideline 2G3.1 would be applied:

Base offense level: +10

Value of distribution is set at $720,000, total gross for the company over the two years: +14

Leader/organizer: +2

Total level: 26

With no criminal history: 63-78 months in prison.

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.

Same as above: 26 plus

Leader organizer (4 instead of 3): +2

Enhanced for sadomasochistic material: + 4

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.

Continued on next page…

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.