Men Convicted of Spamming, Obscenity Free Pending Appeal
Court said appeal raises 'substantial question' of law.
By: Justin Bourne
Posted: 01/03/2008
SAN FRANCISCO
- James R. Schaffer and Jeffrey A. Kilbride, defendants in the first criminal
convictions under the CAN-SPAM Act, will remain free on bail pending appeals to
their convictions.
In an order issued late Wednesday, the U.S. Court of Appeals
for the 9th Circuit reversed the District Court's denial of bail pending appeal,
finding that the appellants had shown "by clear and convincing evidence" that
the appeal raises a "substantial question" of law or fact "likely to
result" in a reversal or order for new trial on all counts.
Schaffer and Kilbride were convicted of obscenity, money
laundering and criminal violations of the CAN-SPAM Act. Their obscenity
convictions were based on the online transmission of two images
emailed to adult website members.
Schaffer was sentenced to five years and three months in
jail, and Kilbride was sentenced to six years and six months.
"Schaffer and Kilbride were to begin serving their sentences
on Nov. 30, 2007, but will now remain home with their families until the appeal
is decided," Schaffer's appellate lawyer Gary Jay Kaufman told AVN Online.
He said the court's order was "a major first step in gaining
both vindication for Schaffer and Kilbride, and greater protection of our
First Amendment rights."
"The 9th Circuit Court of Appeals, fortunately, reversed the
District Court's decision to send my client to prison while the issue of his
and our First Amendment rights are adjudicated," Kilbride's appeals lawyer Greg
Piccionelli told AVN Online.
According to Kaufman, bail pending appeal is rarely granted
in cases such as this one.
"It is only allowed for those who establish that there are
substantial issues on appeal likely to result in reversal or new trial," he
said. "Schaffer and Kilbride's joint motion raised numerous
appellate issues, including a challenge to the applicable community
standard for obscenity and the criminal CAN-SPAM statute,
which are unconstitutionally vague."
Kaufman said he and Piccionelli are "ecstatic" about the court's
decision. He said the case could "change the legal standard
for obscenity in this Internet age."
