Both parties, Isaacs and the government, plan to brief the issue and argue it pre-trial, according to a report obtained by XBIZ.
The introduction of national community standards were put in play after an appeals panel last year found it more logical for obscenity prosecutions.
The 9th U.S. Circuit Court of Appeals ruled in a CAN-SPAM case — U.S. vs. Kilbride, 584 F. 3d 1240(9th Cir. 2009) — that a national community standard to define Internet obscenity is more appropriate than a local one.
Attorney Roger Jon Diamond, Isaacs' attorney, said that it's to his advantage to be open to a national community standard using the Miller test, despite the fact that local community standards of the Central District of California would be beneficial.
U.S. prosecutors are advocating a local community standards instruction.
Isaacs was charged with two counts of using a common carrier and interactive computer service for interstate commerce in obscene films.
"Because the videos were from the Central District, you are looking at jurors from the Los Angeles, Orange and Ventura counties who typically are liberally minded," Diamond told XBIZ.
But Diamond noted that using a national community standards could create a legal maneuver that could benefit Isaacs.
"If the government were to press for a national community standard, they might have a problem finding an expert witness on the matter, because there are none," he said. "And we could move for a dismissal."
Attorney Colin Hardacre, who was involved in the Kilbride case, told XBIZ the Kilbride opinion left many unanswered questions, such as "what exactly is the national standard? Is it anything goes?”
“How do you prove what the national standard is?" asked Hardacre, of Los Angeles-based The Kaufman Law Group. "Through expert testimony from all over the country, or do we simply bring a laptop in and do Google searches for different buzzwords?”
Attorney Gary Kaufman, who also was involved in the Kilbride case, told XBIZ his firm "supports and encourages the Isaacs team’s decision to argue for a national standard instruction."
“While I was arguing this case during oral argument, I felt that the [9th Circuit] panel was receptive to the notion that times have changed and that a national standard for obscenity is the appropriate standard," said Kaufman, of The Kaufman Law Group. "While the Kilbride case dealt with Internet transmissions, I do believe that the 9th Circuit left the door open for all communications."
Isaacs case has been moved up in the court calendar at U.S. District Court in Los Angeles. The case is set for trial Feb. 8, with a motions deadline set for Oct. 22. U.S. District Judge George King earlier calendared an Aug. 2 trial.
Isaacs, who owns Stolen Cars Films and LA Media, was targeted by federal prosecutors over the distribution of “Gang Bang Horse — ‘Pony Sex Game,’” “Mako’s First Time Scat,” “Hollywood Scat Amateurs No. 7” and “BAE 20.”
Isaacs' obscenity case was put on hold last year after U.S. District Judge Alex Kozinski recused himself after it was revealed that he used a website to distribute sexually explicit photos and videos. Later, the 9th Circuit decided that Kozinski exercised “sound discretion” in declaring a mistrial because of “extraordinary circumstances.”