PASADENA, Calif. — A federal appeals court today affirmed a lower court ruling over fetish filmmaker Ira Isaacs' obscenity conviction.
Isaacs, who has spent no time behind bars since the conviction in 2012, faces four years in prison over the mail distribution of "Mako’s First Time Scat, " "Hollywood Scat Amateurs #7," "Hollywood Scat Amateurs #10" and "Japanese Doggie 3 Way" — all deemed obscene by a jury.
Isaacs was convicted on one count of engaging in the business of producing and selling obscene matter,18 U.S.C. § 1466(a), one count of transportation of obscene matter for sale or distribution, 18 U.S.C. § 1465, one count of transportation of obscene matter, 18 U.S.C. § 1462(a), and two counts of mailing obscene matter, 18 U.S.C. § 1461.
He had appealed the final judgment in his third trial over obscenity charges; two other earlier trials had been declared mistrials.
Today's ruling by a three-judge panel of the 9th U.S. Circuit Court of Appeals — Judges Ferdinand Fernandez, Susan Graber and Mary Murguia — was based on several arguments made by Isaacs attorney Roger Jon Diamond, both in his appeal made last year and at oral arguments earlier this month.
Isaacs in one argument said that an alteration of jury instructions over the concept of "prurient interest" in the Miller test undermined the credibility of Diamond at the lower court.
The 1973 case, Miller vs. California, set a precedent on obscenity, making a film or artwork considered obscene only if three conditions are satisfied. One of the conditions ask whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest.
Diamond said he used the phrase "morbid, degrading and unhealthy" during closing arguments to define "prurient interest" but he also said "morbid, degrading or unhealthy" in reference to the lower court's jury instruction. The judge at the lower court, U.S. District Judge George King, instructed the jury that they could convict if a movie fit any of the three terms. But later King reinstructed the jury.
"Here, defense counsel himself used both conjunctive and disjunctive formulations in referring to the instruction during his argument, so it is unclear how the revision might have implied to the jury that Isaacs misled it as to the applicable law," the panel said in its ruling.
Isaacs also argued that the district court erred in sustaining objections. At oral arguments last month, Diamond told the panel that his closing argument was "substantially impaired" by a combination of constant interruptions and objections by the government and by King.
"I was instructed what to say and what not to say and I couldn't draw inferences; I couldn't do anything even though in an obscenity case [according to a Supreme Court ruling] all the government has to do in obscenity get the movie to the jury and let the jury look at the movie," Diamond told the panel last month.
The panel, however, ruled that the court did not abuse its discretion in requiring Diamond to confine his remarks to the record
Isaacs further challenged the district court’s exclusion of his proposed opinion testimony about "artistic value" but the panel rejected that as well.
Lastly, Isaacs unsuccessfully argued that the district court should not have permitted an FBI agent to sit with a computer at government counsel’s table and perform searches of publicly available information during voir dire.
The panel said it saw no abuse of judicial discretion and even noted that Isaacs conceded that the claim had no basis in existing law.
Isaacs, who was out on bond during the appeal, was unavailable at XBIZ post time for comment. His attorney, Diamond, declined comment at post time.
Isaacs, according to court procedure, can petition for a panel rehearing or an en banc (full court) rehearing over today's decision.
