PITTSBURGH - Today was the day that U.S. District Judge Gary L. Lancaster had set aside for resolving the last pretrial issues before jury selection was to begin on Monday in the obscenity trial of Rob Black, Lizzy Borden and their company Extreme Associates.
But along the way, something unexpected happened.
"The government started to talk to us," stated H. Louis Sirkin, the primary attorney for the defendants. "They were willing to make concessions that made it seem that it was in everybody's best interests to resolve the case short of trial."
While going to trial on any criminal charges and placing one's fate in the hands of twelve local citizens can be dicey for any defendant, there is reason to believe that the government had an interest in settling the case as well: It had already been faced with one defeat by Judge Lancaster, who had dismissed all charges in January of 2003 in a well-reasoned opinion, the issues of which were not dealt with by the Third Circuit Court of Appeals when it reversed Lancaster's dismissal later that year. That meant that many of those issues would be preserved for possible rulings during the trial itself, and in the three years between the dismissal and the scheduled trial, Lancaster had given no indication that he had changed his mind on any substantial question raised by the defense. Therefore, rather than chance a stunning defeat in what the Department of Justice has regarded as its best existing obscenity case, the government chose instead to make a deal.
"There was significant give and take," Sirkin explained. "This thing's been around for a long time, and we do think that there are still issues to be resolved in regard to the sentencing that will be beneficial to everybody. The one thing that everybody's got to be concerned about, who has an Internet site, is what the government still wants to bullshit about in the Max Hardcore case, which is how much revenue they made from the subscriptions. They wanted a 16 level increase in Tampa [the site of Hardcore's conviction]; that would have taken him to, with all the different counts - Max could have gotten 25 years. It can really add up. That's not an issue here. As part of our agreement, they're not challenging that. There will be no requests for enhancement based on revenues."
"The only questions that remain, we have the right to challenge whether the material has sadomasochism," he continued. "There's no agreement on that, and that would add six points to the sentencing guidelines that we don't want included. Right now, we're at a level 12 in the guidelines, and the government is arguing for a level 18."
While several factors contribute to a defendant's placement within the federal sentencing guidelines, including prior criminal history - the defendants here have none - generally speaking, sentences in "Zone C" of the guidelines, of less than 16 levels, have certain advantages over sentences that fall within "Zone D" or higher.
" Zone C is 10-16 [months]; [level] 18 is in Zone D, which means it has to be served in a penitentiary," explained attorney and AVN columnist Clyde DeWitt. "Zones A, B and C - A is [level] zero to 8; B is 9 and 10, and C is 11 and 12 - are where there's some sentencing options available. For Zone C, according to the guidelines, 'the minimum term may be satisfied by a sentence of imprisonment or a sentence of imprisonment that includes a term of supervised release with a condition that substitutes community confinement or home detention according to the schedule in subsection E, provided that at least half the minimum term is satisfied by imprisonment.' So in other words, he [Rob] could do five months in Lompoc or someplace like that, and then five months in a halfway house or other community situation."
Level 18, on the other hand, calls for imprisonment for between 27 and 33 months, all of which must be served in a correctional facility.
Also at issue in the sentencing will be which set of guidelines to apply to the case.
"Rob was charged prior to the amendment of the sentencing guidelines that added two points for the use of a computer, and some points for the sadomasochism," Sirkin noted, "and we feel that the 2002 guidelines are applicable, so that that enhanced guideline won't be in it. So we have the right to argue that issue and we have the right to argue about sadomasochism, and if we're right, we're dealing with a level 12 offense. It won't even be a year. I don't know exactly what will happen, but we are looking hopefully for a very favorable sentencing that can be an example for other cases. And the guidelines today are advisory, so it's not a cast-in-stone thing, and we're not in front of [Hardcore's] Judge Bucklew."
"We have a good judge; [U.S. Attorney Mary Beth] Buchanan is still around, but we won't have sentencing until at least July, so whether she'll still be around then or not, I don't know," he continued. "For the most part, we've been dealing with Steve Kaufman from her office. He's generally been the lead courtroom guy for the government, although Buchanan herself argued the Third Circuit appeal, and he's been very, very much a gentleman. And we're optimistic of a sentence that will be very acceptable to everyone - well, I don't know if it will be acceptable to the government, but that will be acceptable to us; I don't care what the government thinks. But we won't be getting into those kind of battles with add-ons like happened with Max in Tampa. We think the plea agreement is in Rob Black's best interests for Rob Black, for Rob Zicari and Janet Zicari."
Another important aspect of the plea is that it is to one count for each defendant of "conspiracy to distribute obscene materials" rather than "interstate transportation of obscenity."
"That means that neither Rob nor Janet should have to register as sex offenders," Sirkin said. "Their plea was to conspiracy, not obscenity, and conspiracy isn't one of the registratable offenses."
AVN asked Sirkin whether the defendants' lack of finances may have affected the plea decision.
"Not really, because - I mean, it had some limitation on our ability to retain experts or whatever," he replied, "but other than that - because in general, you know my philosophy: Whatever happens economically happens economically. It's what the client wants to do, and we're in the case to the end. We have never shortcut a case because of inability to pay or whatever else. So it really had nothing to do with it. We always had kept the door open, and had the expectation that there would be a 'change of the guard' after the 20th. When Steve and I just casually started to make some talk, it seemed like this might be a situation that could be resolved, so it had absolutely nothing to do with finance."
But something Sirkin heard at the plea hearing before Judge Lancaster has given him pause regarding the Obama administration's - and in particular, the Holder Justice Department's - attitude toward obscenity prosecutions.
"The one thing I thought that was really interesting in the statement of facts given by the government today, they seemed to indicate that the investigation in Pittsburgh against Extreme started in 2000, and went from 2000 until they made their last buy in 2002," Sirkin recounted. "The indictment of course was in August of 2003; the significance of which is that it predated the Bush administration. It dawned on me - well, we were a little bit startled to hear that."
If the government's recitation of the facts of the case was accurate, and assuming Sirkin heard Kaufman's statement correctly - he'll be getting a copy of the hearing transcript later to make sure - it raises some question as to the dedication of Holder and his soon-to-be-confirmed Deputy David Ogden - both of whom were in the Janet Reno Justice Department at the end of Clinton's presidency - to sexual speech rights. However, more recent statements by the pair seem to indicate that obscenity prosecution won't be a priority with the new administration.
"I just thought I would point that out because everybody has been taking that as, you know, the gates have been wide open to believing that there would be no obscenity prosecutions under the Democrats," Sirkin said. "I think it can't hurt for all of us to watch carefully to see what happens over the next few months."