Jeffrey Kilbride of Venice, Calif., was sentenced last week to six-and-a-half years and James Schaffer of Paradise Valley, Ariz., was sentenced to 5 ¼ years in prison. Both were fined $100,000 and forced to hand over $1.1 million of their $2 million in spam profit.
Both reportedly also had to pay America Online $77,500 after the conglomerate claimed to have had 1.5 million customers complain about spam.
Adult industry attorney Gary Kaufman of Los Angeles-based the Kaufman Law Group — who also represents adult social networking site SexSearch.com — told XBIZ that he has been hired by Schaffer to appeal his conviction.
Kaufman said he believes the conviction is unwarranted and the sentence is excessive.
"We believe that the government is going to use the sentence imposed in this case as a hammer to induce future indictees to cop a plea early on," Kaufman said. "We believe that there are unique and novel issues for the appellate court to address. We are hopeful that we will obtain a reversal on appeal.”
Kilbride has hired adult industry attorney Gregory Piccionelli of Piccionelli & Sarno to handle his appeal. Piccionelli said that this case should act as an industry wakeup call.
“For those in the business that think that the government would not sentence people to jail for the distribution of non-child pornographic material, they need look no further than this case to see that the government is serious about going after this business," Piccionelli said. "Unfortunately Schaffer and Kilbride may turn out to be the poster children for that vendetta."
The two men began their spamming operation in 2003, embedding hardcore pornography in mass emails, making it available and visible to anyone who opened the messages. When the CAN-SPAM act became law a year later, the two used international servers and mismatching "reply to" and "from" addresses, making it difficult to trace the spam emails.
The Justice Department said Kilbride and Schaffer registered their domains under the name of a "fictitious employee at a shell corporation" and that the two had set up in the Republic of Mauritius, another serious CAN-SPAM violation. They also used overseas banks to launder and hide money from the IRS.
Kilbride and Schaffer initially were charged in 2005. Schaffer also was charged with 2257 violations, after officials discovered he had not maintained appropriate records for the adult performers featured on Boobs.com, CumShots.com and FaceSat.com, three websites he operated overseas through The Compliance Company and Ganymede Marketing.