9th Circuit Hears Ira Isaacs' Obscenity Conviction Appeal

Mar 5, 2014 4:00 PM PST

PASADENA, Calif. — A federal appeals court today listened to arguments made in an appeal on behalf of convicted fetish filmmaker Ira Isaacs.

Isaacs was found guilty in a third trial in April 2012 on five counts of violating federal obscenity laws over the mail distribution of "Mako’s First Time Scat, " "Hollywood Scat Amateurs #7," "Hollywood Scat Amateurs #10" and "Japanese Doggie 3 Way." Two earlier trials were declared mistrials.

Isaacs, who has spent no time behind bars since the convictions, faces four years in prison for the obscenity convictions.

On Wednesday, Isaacs attorney Roger Jon Diamond focused on possible errors made in regards to jury instructions and limitations he faced during his closing argument made in U.S. District Judge George King's courtroom.

The three-judge panel that heard the appeal today at the 9th U.S. Circuit Court of Appeals' Pasadena, Calif., courtroom consisted of Judges Ferdinand Fernandez, Susan Graber and Mary  Murguia

Diamond told the panel that his closing argument was "substantially impaired" by a combination of constant interruptions and objections by the government and by King.

"I was instructed what to say and what not to say and I couldn't draw inferences; I couldn't do anything even though in an obscenity case [according to a Supreme Court ruling] all the government has to do in obscenity get the movie to the jury and let the jury look at the movie," Diamond said.

"We as lawyers in arguing obscenity cases  have to be able to talk about common sense,  human condition,  psychological things, all things that are common knowledge," he said. "This court — Judge King — kept stopping me every inch of the way, saying it isn't in the record.

"I tried to tell this jury that the movie was never intended to be shown to 12 strangers in a well-lit courtroom," he said. "That's not the way the movies are intended to be shown.

"The government stopped me and the court stopped me because this is no evidence in the record. The movie itself is the evidence.

 "The closing argument was destroyed by the court .... I was called to the sidebar and admonished and warned and threatened by the court that I couldn't say or do certain things because it wasn't in the record. I couldn't do that. So you have to view this distraction in the context of the broader closing argument, which was totally undermined.

Diamond also argued against the presentation of a jury instruction over the concept of "prurient interest" in the Miller test, which was developed in the 1973 case Miller vs. California.

A film or artwork is considered obscene only if all of the following three conditions are satisfied:

  • Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law; and,
  • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Diamond used the phrase "morbid, degrading and unhealthy" during closing arguments to define "prurient interest" but he also said "morbid, degrading or unhealthy" in reference to King's jury instruction

King, on the other hand, instructed the jury that they could convict if a movie fit any of the three terms, but later that was reinstructed.

The Justice Department was presented by Assistant U.S. Attorney Jeffrey Zeeman, who argued that Diamond had not pointed to any specific errors that were consequential for the outcome, including  the prurience issue.

When asked whether Isaacs might have been prejudiced by two versions of the "prurient interest" definition had been stated to the jury by one of the jurists, Zeeman said he didn't believe there was any judicial indiscretion.

Zeeman held that if there was any error, it was made by Isaacs attorney, Diamond, and not the judge.

The 9th Circuit panel did not disclose when a decision would be made in the appeal.

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