from www.metnews.com – The Ninth U.S. Circuit Court of Appeals yesterday upheld the obscenity convictions of two men for sending unsolicited e-mail advertisements for an adult website.

Jeffrey Kilbride and James Schaffer began operating their bulk e-mail advertising business in 2003. Although it was initially operated as an American corporation, Kilbride and Schaffer later shifted their operation overseas, running it through a Mauritian company utilizing Internet servers in the Netherlands.

The e-mails included sexually explicit images and contained fictitious information as to the source and routing information of the message’s sender. Kilbride and Schaffer also provided a false contact person and phone number in the registration of the domain names they used.

If a recipient of one of their e-mails signed on to the advertised website and paid a fee, Kilbride and Schaffer earned a commission from the entity promoted.

In 2005, the men were indicted for fraud and conspiracy to commit fraud in connection with electronic mail, interstate transportation of obscene materials and conspiracy to commit money laundering

They were convicted on all counts following a three-week jury trial before U.S. District Judge David G. Campbell of the District of Arizona. Kilbride was sentenced to 78 months imprisonment and Schaffer was sentenced to 63 months.

On appeal, Kilbride and Schaffer argued that the district court had committed instructional error regarding the definition of obscene expression regulated by 18 U.S.C. Secs. 1462 and 1465.

Writing for the appellate court, Senior Judge Betty B. Fletcher explained that the test for obscenity involves an inquiry into whether the average person, applying contemporary community standards, would find the work, taken as a whole, appeals to the prurient interest.

“[T]he relevant community is not to be geographically defined in federal obscenity prosecutions, permitting the jury to apply their own sense of what contemporary community standards are, based on their own community,” she said, adding that evidence of standards of communities outside a district may help jurors gauge what their own sense of contemporary community standards are.

“Allowing jurors to consider such evidence is acceptable as long as jurors are properly instructed that they are to apply their own sense of what contemporary community standards are,” Fletcher added.

However, Fletcher agreed with the defendants that obscenity disseminated via e-mail should be defined according to a national community standard pursuant to Ashcroft v. ACLU, (2002) 535 U.S. 564.

In Ashcroft, the five justices concurring in the judgment viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns but did not see the application of a national community standard as posing the same concerns by itself.

This distinction between the constitutional concerns generated by application of national and local community standards was controlling, Fletcher reasoned, and so the district court erred in failing to instruct the jury to apply a national community standard.

“However, this error does not require reversal because the district court’s error was far from plain,” in light of the highly fragmented high court ruling in Ashcroft, she said.

Fletcher, joined by Senior Judge Procter Hug Jr. and Judge Michael Daly Hawkins, also rejected defendants’ claim that 18 U.S.C. § 1037, which criminalizes fraud in connection with electronic mail, was unconstitutionally vague and the obstruction of justice enhancement was error.

Although Fletcher acknowledged that the district court had created an ambiguity as to what is required to render a Sec. 1037 violation a felony while instructing the jury, she concluded that the error did not require reversal in light of the uncontradicted testimony that defendants had transmitting e-mails in volumes well exceeding 250,000 per day, which constituted a felony-level offense.

The case is United States v. Kilbride, 07-10528.