"It's the difference between the previous offer that had been made, which was 10 years, plus the risk that he was taking, which was a probable sentence of 15 to 20 years if he went to trial and got convicted, and the three years, which is a substantial difference from 15 to 20 years," explained Jerome Mooney, one of the team of First Amendment attorneys defending the quartet. "And this wasn't really an obscenity case; that's the biggest part of the problem."
For Guhn's part, obscenity was mainly one of the underpinnings for the racketeering and money laundering charges.
"The other two were prostitution and drugs," Mooney detailed, "and all the jury would have had to have done is believed two incidents of either obscenity, prostitution or drugs, so that was a huge risk. The client was adamant about there being a no-drug policy [on his sets], but there were still a number of performers who were willing to testify that they were supplied with drugs. I don't know how believable they were, but that's a risk. And there were allegations of extra-curricular pay activity, if you will."
In the almost exactly two years since Guhn was arrested, after neighbors in Escambia and Santa Rosa Counties complained that Ray Guhn Productions had shot adult movies using local talent at four locations in the area, the charges and countercharges regarding what the defendants did or didn't do have flown fast and furious, with Lawrence G. Walters, another member of the defense team, once noting, "The attempt to use the prostitution statutes to censor erotic movies has not been tried in Florida before."
In the end, however, Guhn pleaded simply to "unlawful financial transactions," a lesser included offense, which according to Mooney had to do with "the CCBill money that he received for sales and transferred into his account," adding, "That looks better on his record, obviously, than racketeering."
Importantly, Mooney noted, "The primary motivating factor for accepting the deal was unrelated to whether the material itself was culpable. It would have been something they would have had to have established as part of making their case in chief, but it is not specifically outlined anywhere in the plea. That's why I don't think it will have any real impact on obscenity prosecutions in the state, because it's really not an obscenity case."
"I think I can say, without going into specific details," he continued, "there were unique factual aspects of this case which made it different from the traditional obscenity case: The drugs and the prostitution allegations. They had witnesses that would have made those claims, and the jury would have had to do not only the normal evaluation - there were so many witnesses in this case! Normally, in an obscenity case, you don't have a lot of witnesses. This case was more about the production of the material than it was about the material itself."
Indeed, prosecutor Russ Edgar had supplied a potential witness list with 130 names, and the trial, which was to have begun on July 1, was expected to take approximately three weeks.
But because the obscenity allegations were not the primary focus of most of the charges against the defendants, Walters' plan, which was announced on the front page of Tuesday's New York Times, to use Google Trends to establish the sexual interests of the four-county "community" whose "standards" would have been at issue regarding the obscenity aspects, became secondary to the other factors involved in the racketeering and money laundering charges. In fact, only Dwyer's plea involved "wholesale promotion of obscene materials," while Craft and Stevens each pled only to one count of racketeering.
The Google approach had been used only once before, in the Max Hardcore trial in Tampa earlier this month, where the defense showed that searches for the combination of terms "fisting," "porn" and "video" brought up more results than searches for University of Florida quarterback and Heismann trophy winner "Tim Tebow," or "David Cook" plus "American Idol."
At three to five years, Guhn faces the most prison time, with Craft and Stevens facing two to four years each. It is not known what sentence Dwyer faces for his promotion of obscene materials charge.
"The judge will determine the sentence, which will be at least three years but not more than five years," Mooney said of Guhn. "That will take place Aug. 11. At that time, we'll present the evidence to the judge for sentencing and see what he does. We're of course looking at the three years, and the prosecution, as we know, will argue the five years, but I get a positive sense from the judge, so we expect the sentence will be in the lower range."
All of the defendants remain free on bail.