Conspiracy Charges—A Weapon in the FBI's Anti-Obscenity Arsenal

A cautionary tale for third-party record-keepers

Third-party record-keepers may be biting of a good deal more than they really wanted to chew when they set up shop. Consider this: A third-party record-keeper is performing a function that is indispensible to the distribution of adult content. After all, according to our friend 2257, this genre of content cannot be distributed without keeping records as required by that miserable statute.

So, when a third-party record-keeper keeps and indexes the records for a particular movie, he is agreeing with the distributor to facilitate its distribution–that’s called conspiracy if the film is deemed to be obscene. He also is facilitating the distribution by keeping the records and agreeing that his place of record-keeping be published on the label of the DVD or on a website—that’s aiding and abetting if the movie turns out to be obscene. For you technicians, the statutes are 18 U.S.C. sections 371 and 2.

The underlying theory—basic criminal law—is that conspiracy is a separate crime because one person cannot do so much mischief as an organized group of two or more. And if you help someone else commit a crime, you are equally guilty.

Worse, such a circumstance puts the third-party record-keeper in the same miserable position as any other federal obscenity defendant. “I didn’t know it was obscene!” Too bad; you knew the general nature of the material, which courts generally say is enough. And, by the way, you have the required copy of the material in your 2257 records, right?

Then there are the sentencing guidelines. They tend to hover around two and a half to three years in the hoosegow. A record-keeper is probably a minor participant, so that knocks you down by two offense levels, so maybe two to two and a half years. Not too consoling, is it?

Then there are the forfeiture provisions found in the obscenity and money-laundering statutes, so figure that the feds will forfeit pretty much everything you own. And add to that a six-figure defense tab.

Conspiracy is a prosecutor’s favorite weapon .In the first place, conspiracy has special evidence rules, rendering admissible everything said in furtherance of the conspiracy. Secondly, conspiracy is a separate crime. If two people get together to stick up some liquor store, they are guilty of not just robbery but also conspiracy, two independent crimes.

So, consider this miserable scenario. FBI drops in to inspect records at the office of the third-party record-keeper, zeroing in on some content that it finds to be very edgy. So, it checks out the records and copies them, which is the standard scenario for inspections. FBI returns a month later, this time with a search warrant and an arrest warrant.

Critics might accuse the author of tipping off the DOJ about new prosecution targets. Forget it! The worst prosecutor in the DOJ is well versed in the law of conspiracy. Behave accordingly!

Clyde DeWitt is a Los Angeles and Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at ClydeDeWitt@earthlink.net. More information can be found at ClydeDeWitt.com.