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Third-Party Record Keepers Beware

Third-Party Record Keepers Beware

August 12, 2009
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" Conspiracy is a prosecutor's best friend. "

In addition to '2257, there are two federal statutes of which aspiring third-party record keepers need to be aware. They are 18 U.S.C. § 2, aiding and abetting, and § 371, conspiracy. You will see that being a third-party record keeper may not be such a desirable line of work, especially in view of the Obama Administration's apparent course of not jettisoning the Justice Department's obscenity prosecution efforts.

We start with Criminal Law 101. The theory underlying all of this is that multiple criminals acting together stand to get into more damaging mischief than one person acting alone. So the law responds accordingly. Aiding and abetting is what it says, helping in the commission of a crime. Fundamentally, aiding and abetting requires three elements: First, someone must commit a crime; second, the aider must know about it; and, third, the aider must assist in the completion of the crime. Then, the aider is just as guilty as the primary criminal.

Conspiracy is a prosecutor's best friend. All that is required is an agreement to commit a crime. Once there is an agreement, the crime of conspiracy is complete. So for example, if two people conspire to rob a bank and then do rob the bank, they each can be convicted of two crimes, conspiracy and robbery. If they agree to rob a bank but, when they get to the bank, they find five police cars parked out front (who got wind of the plan), and for that reason change their minds, they still can be convicted of conspiracy but not robbery.

Now, apply those principles to the record keeper situation. Remember, the knowledge element of obscenity is simply a general knowledge that the material is sexy. Someone can be convicted of obscenity by distributing a motion picture that he has never watched. Knowing what kind of movie it is generally is enough.

The third-party record keeper arguably facilitates the distribution of the target movie because, according to the law, the movie cannot be distributed without 2257 compliance. Is that aiding and abetting? Nobody wants to be the defendant in the test case. Is it conspiracy? There is an agreement that the producer will distribute the materials, essentially, "You send out the movie and I will keep the records." That is dangerously close to an agreement saying, "You rob the bank and I'll drive the getaway car."

Some critics probably will say, "DeWitt is out of his mind; he's teaching the prosecutors how to prosecute." To the contrary, take it from an ex-prosecutor that there is no topic more near and dear to the hearts of prosecutors everywhere than conspiracy and aiding and abetting. Prosecutors are well-schooled in how to make conspiracy cases, which include some very prosecution- oriented evidentiary rules. The purpose of this is to teach the readers what the prosecutors most certainly already know.

Clyde DeWitt is a Los Angeles and Las Vegas attorney whose practice has been focused on adult entertainment since 1980. He can be reached at clydedewitt@earthlink.net. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.


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