A three-judge panel of the 9th U.S. Circuit Court of Appeals said that Isaacs isn’t entitled to have his case dismissed on double jeopardy grounds.
Isaacs' case was put on hold last year after Judge Alex Kozinski recused himself after it was revealed that he used a website to distribute sexually explicit photos and videos.
Attorney Roger Jon Diamond, who argued the case at the 9th Circuit on Dec. 10, contended that Isaacs shouldn’t be retried because there was no manifest necessity for the declaration of the mistrial, which was declared without Isaacs' consent.
Diamond wasn’t immediately available to comment on today’s decision because he is out of the country.
The 9th Circuit’s four-page ruling said that the federal judge who earlier ruled in the case found Kozinski’s recusal proper and that Kozinski exercised “sound discretion” in declaring a mistrial because of “extraordinary circumstances.”
“We find that a well-informed observer may reasonably have questioned Judge Kozinski’s ability to act as an impartial judge in Isaacs’ trial,” the court said. “In this case, the designation of another judge half way through the proceedings would not have removed the appearance of partiality concerning Judge Kozinski’s previous actions in the case.”
Isaacs, who owns Stolen Cars Films and LA Media, faces multiple obscenity-related counts in connection with distribution via the mail the videos “Gang Bang Horse — ‘Pony Sex Game,’” “Mako’s First Time Scat,” “Hollywood Scat Amateurs No. 7” and “BAE 20.”
Federal prosecutors allege that the films are obscene and have no artistic merit. Isaacs claims the films have both artistic and political value.
With today’s ruling, Isaacs' case is certain to be re-filed by the prosecutors with the Justice Department’s Obscenity Prosecution Task Force.
The Justice Department attorney representing the government, Michael A. Rotker, was unavailable for XBIZ comment at post time.