After the Search: Obscenity Busts and 2257 Inspections

This article originally ran as the cover story of the April 2017 issue of AVN magazine. Click here to see the digital edition. They have executed a search warrant on your premises. They probably took your computers. If you learn anything from this series of articles, back up your damn computers; and keep the backup offsite—not in your house! When it comes to prosecuting the adult industry, the government’s approach to this is to get the big guy, even when the “big guy” isn’t all that big. And this process starts with grand jury subpoenas. A federal grand jury arises from the Fifth Amendment’s protection, requiring a grand jury indictment for federal crimes: “a capital or otherwise infamous crime.” However, the function of the grand jury has grown well beyond that. The Supreme Court has long held that grand juries have very broad investigative powers, and federal prosecutors love this. In the context of federal obscenity prosecutions, this is what that means: The target of one of these obscenity investigations generally will be the central person(s) of the company under investigation. To meet that objective, the trick is for the grand jury to issue subpoenas, prepared by the federal prosecutors, to employees, so as to zero in on the identity and culpability of “Mister Big.” Now, the employees can claim their Fifth Amendment right against self-incrimination—actually, “not to be a witness against himself” (sic)—which they should do. Your gut reaction might be to send your company lawyer to represent the employees, which would be a really bad idea. The reason is that your attorney will be conflicted out when they come after you. Also, the employees might want to ask for a public defender; alternatively, you could retain independent counsel for them. That way, your regular attorney will be available to represent you in the long run. And that shouldn’t be very long. As soon as you become aware of a potential prosecution, you should deploy your attorney to negotiate with the prosecutors. The reason for that is, once there is an indictment, the court for the most part takes control of the case, leaving less latitude in resolving it. Now, for you small folks, there may be no way for you to finance a defense. You will have no choice but to request a public defender. The employees will appear before the grand jury, hopefully with the advice of counsel sitting outside the grand jury’s room. (Grand jury witnesses do not have the right to have counsel with them in the grand jury room.) Presumably, the employees will invoke the Fifth Amendment. However, that will not end things. The next step in the process is that they will haul the employees before the judge—this time they do have a right to counsel—and the judge will order them to testify before the grand jury. The result of that is simple: they will testify. However, there are benefits to that for the employees. If the government decides to prosecute an employee, they can’t use his/her testimony or anything derived from it in the trial because of the compelled nature of that testimony. If the government tries to do that, there is a thing called a Kastagar hearing, derived from a Supreme Court ruling in a case of the same name, where the government has a high burden of proving that none of the evidence that they will use against the employee was learned from his/her testimony. (It’s not quite that simple but that’s the nub of it.) Next, having assembled a case against you, the government will present all of the evidence to a grand jury and seek an indictment, the traditional function of grand juries under the Sixth Amendment. Federal grand juries have 23 members; it takes 12 to return an indictment—a “true bill” as opposed to a “no bill.” (Historically, an indictment was called a “bill of indictment.”) Government prosecutors’ batting average in obtaining indictments that they want is roughly 1.000, or for you non-baseball fans, nearly a sure thing. You won’t get much protection from the grand jury like the Sixth Amendment contemplated. Now, as noted, hopefully your lawyer has been engaging in dialogue with the lead prosecutor since the search. If so, it is likely that an arrangement can be made for you to surrender and post bond. The alternative is this: One Friday afternoon they will show up with an arrest warrant. You will spend the weekend in jail, appearing before a federal magistrate on Monday. Hopefully, you can post bond on the condition that you appear in the place where the indictment was returned. That leads to the venue issue. You can bet that the indictment will not be in your (reasonably liberal) district, like Miami, Las Vegas, San Francisco or Los Angeles. Nope, history teaches that it will be in places with an evangelical jury pool; most likely somewhere in the Bible Belt, like Oklahoma City, Tallahassee, Mississippi, etc. You get the idea. These are not very porn-friendly places! (Although they consume quite a bit of it.) It seems likely that many of the targets will be unable to finance a defense after indictment—surely not the larger ones who will have attorneys on call, the ones who will not need to know about public defenders. The federal public defenders are good but they are not experienced in defending obscenity cases. And this is a plea from the author: The Free Speech Coalition, financed by the big players, needs to create and finance a team of experienced obscenity defense lawyers to assist the public defenders, which is going to be a small group. Such a group can create a bank of requested jury instructions, pretrial motions, briefs, and so on. If not, federal defenders, as good as they are, will make some really bad law. As to 2257 inspections, they are on hold for now, but be prepared for them anyway for three reasons. First, the changed Supreme Court may create rulings that may bring them back. Second, it appears that they still can inspect with a warrant, even if you are a Free Speech member or live in the Third Circuit (see last month’s article). Finally, as has been said in this column many times before, if a minor slips through the cracks and you get sued or, worse, charged with a child pornography violation, compliance with 2257 is a potential defense. Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]/* */ More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.