United States v. Kilbride

Last updated
United States v. Kilbride
Seal of the United States Courts, Ninth Judicial Circuit.svg
Court United States Court of Appeals for the Ninth Circuit
Full case nameUnited States of America v. Jeffrey A. Kilbride and James Robert Schaffer
ArguedJune 8 2009
DecidedOctober 29 2009
Citation(s) 584 F.3d 1240 (2009)
Case history
Prior historyAppeal from the United States District Court for the District of Arizona
Holding
Affirmed, but remanded for a clerical correction.
Court membership
Judge(s) sitting Procter Hug, Jr., Betty B. Fletcher, Michael Daly Hawkins
Case opinions
Majority Betty B. Fletcher
Laws applied
18 U.S.C. § 1037(a)(3), 18 U.S.C. § 1037(a)(4), 18 U.S.C. § 1462, 18 U.S.C. § 1465, 18 U.S.C. § 1956

United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009) is a case from the United States Court of Appeals for the Ninth Circuit rejecting an appeal from two individuals convicted of violating the Can Spam Act and US obscenity law. The defendants were appealing convictions on 8 counts from the District Court of Arizona for distributing pornographic spam via email. The second count which the defendants were found guilty of involved the falsification of the "From" field of email headers, [1] which is illegal to do multiple times in commercial settings under 18 USC § 1037(a)(3). [2] The case is particularly notable because of the majority opinion on obscenity, in which Judge Fletcher writes an argument endorsing the use of a national community obscenity standard for the internet.

Contents

Background

Jeffrey A. Kilbride and James Robert Schaffer ran an unsolicited bulk email company called Ganymede Marketing, which sent hundreds of thousands to millions of spam emails a year. These emails advertised a variety of products, including sexually explicit websites, and a portion of them contained sexually explicit images. Kilbride and Schaffer set up Ganymede as a foreign shell company in an attempt to avoid US laws [3] and gave fake contact information both in the emails they sent and their website registrations. The FTC and AOL claimed to have received over 600,000 complaints relating to spam emails sent by Ganymede, before they were finally taken to court in Arizona for violating anti-spam and obscenity laws. [1]

On June 25, 2007, the United States District Court, D. Arizona found the defendants guilty of 8 counts: [4]

Following their conviction, Kilbride and Schaffer moved for acquittal or a retrial based on a number of arguments involving jury instructions and evidence pertaining to the obscenity charges. The District Court rejected these arguments and denied their motion. [4]

Subsequently, Kilbride and Schaffer appealed to the Ninth Circuit Court of Appeals (this case), arguing that: [1]

Opinion of the court

In the majority opinion, Judge Fletcher agreed with the defendants that there was a clerical error regarding counts 1-3 and remanded, but affirmed the other District court rulings. In each case, either the appeal was rejected outright, or error from the district court was recognized, but found not to be plain error or have significantly affected the outcome of the case.

Obscenity and community standards

The most involved and important section of the opinion deals with the defendants' argument that the instructions given the jury regarding determining obscenity were flawed. This argument focuses on the District Court's implementation of the Miller Test for determining that the images distributed by Kilbride and Schaffer were obscene and therefore not protected as free speech. The relevant section of the Miller Test states that to be obscene, "'the average person, applying contemporary community standards', would find that the work, taken as a whole, appeals to the prurient interest". [5]

The defendants challenged the instructions given to the jury on obscenity in two ways. First, they challenged that the jury was instructed to "apply the standards of communities outside their own community" [1] in contrast with precedent. [6] Second, they challenged that the court was even correct in applying a community standard given that email is not constrained to certain geographical areas or communities.

In response to the first challenge, the court cites precedent, suggesting that the "portion of the instruction explicitly and implicitly allowing jurors to consider evidence of standards existing in places outside of the district is clearly permitted under Hamling." [1] Additionally, they argue that referencing standards outside of the immediate community in no way prejudices jurors against the defendants.

In contrast, the court agrees with the main point in the second challenge - that community standards are outmoded in the age of the internet. As Judge Fletcher writes in the opinion: "We agree with Defendants that the district court should have instructed the jury to apply a national community standard." [1] The court argues that email is different from other communication subject to community standards because "they cannot tailor their message to the specific communities into which they disseminate their speech and truly must comply with the standards of the least tolerant community in a manner the defendants in [precedent] did not." [1]

Since this position was novel and not clearly supported by precedent, the court turned to a supreme court case to find justification. Citing many different opinions in Ashcroft v. ACLU, 535 U.S. 564 (2002), [7] the court builds a case that the majority of justices view local community standards as a problem when applied to the internet. Additionally, evidence is provided that many justices do not see a national community standard to be a problem, or unconstitutional. In summary, Judge Fletcher writes: "Accordingly, five Justices concurring in the judgment, as well as the dissenting Justice, viewed the application of local community standards in defining obscenity on the Internet as generating serious constitutional concerns. At the same time, five justices concurring in the judgment viewed the application of a national community standard as not or likely not posing the same concerns by itself." [1]

Despite this huge shift in how the court is suggesting obscenity should be judged, the obscenity conviction in this case was confirmed. The court states that its reasoning, though distilled from "the various opinions in Ashcroft... was far from clear and obvious to the district court" [1] and so it is not a reversible error to be addressed.

Subsequent developments

Though the Ninth Circuit Court proposed new guidelines for judging internet obscenity, other Circuit Courts have chosen not to follow suit. In an unpublished opinion, the Eleventh Circuit Court rejected the idea of a national community standard, instead relying on a local one. [8] This has been interpreted [9] as proof that there is disagreement on whether the Ninth Circuit misinterpreted the Supreme Court's opinion. The Supreme Court has not directly weighed in on the matter since.

Prison escape and recapture

On December 27, 2013, Kilbride escaped from the federal prison in Lompoc. He was apprehended and returned to prison on December 28, 2013. [10] [11]

Related Research Articles

The Miller test, also called the three-prong obscenity test, is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court modifying its definition of obscenity from that of "utterly without socially redeeming value" to that which lacks "serious literary, artistic, political, or scientific value". It is now referred to as the three-prong standard or the Miller test.

CAN-SPAM Act of 2003 American law to regulate bulk e-mail

The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003 is a law passed in 2003 establishing the United States' first national standards for the sending of commercial e-mail. The law requires the Federal Trade Commission (FTC) to enforce its provisions. Introduced by Republican Conrad Burns, the act passed both the House and Senate during the 108th United States Congress and was signed into law by President George W. Bush in December of 2003.

United States v. Dominguez Benitez, 542 U.S. 74 (2004), was a United States Supreme Court case in which the Court ruled that, in a criminal proceeding in federal court, a defendant who does not alert the district court to a possible violation of Rule 11 of the Federal Rules of Criminal Procedure must show on appeal that the violation affirmatively affected his rights in order to obtain reversal of his conviction by guilty plea. Rule 11, which pertains to criminal prosecutions in United States federal courts only, governs the offering of plea bargains to criminal defendants and the procedures district courts must employ to ensure that the defendant knows of and properly waives his trial-related constitutional rights.

Batson v. Kentucky, 476 U.S. 79 (1986), was a landmark decision of the United States Supreme Court ruling that a prosecutor's use of a peremptory challenge in a criminal case—the dismissal of jurors without stating a valid cause for doing so—may not be used to exclude jurors based solely on their race. The Court ruled that this practice violated the Equal Protection Clause of the Fourteenth Amendment. The case gave rise to the term Batson challenge, an objection to a peremptory challenge based on the standard established by the Supreme Court's decision in this case. Subsequent jurisprudence has resulted in the extension of Batson to civil cases and cases where jurors are excluded on the basis of sex.

Strauder v. West Virginia, 100 U.S. 303 (1880), was a landmark decision of the Supreme Court of the United States about racial discrimination and United States constitutional criminal procedure. Strauder was the first instance where the Supreme Court reversed a state court decision denying a defendant's motion to remove his criminal trial to federal court pursuant to Section 3 of the Civil Rights Act of 1866.

United States v. Booker, 543 U.S. 220 (2005), is a United States Supreme Court decision on criminal sentencing. The Court ruled that the Sixth Amendment right to jury trial requires that other than a prior conviction, only facts admitted by a defendant or proved beyond a reasonable doubt to a jury may be used to calculate a sentence exceeding the prescribed statutory maximum sentence, whether the defendant has pleaded guilty or been convicted at trial. The maximum sentence that a judge may impose is based upon the facts admitted by the defendant or proved to a jury beyond a reasonable doubt.

<i>United States v. Extreme Associates, Inc.</i>

United States v. Extreme Associates, 431 F.3d 150, is a 2005 U.S. law case revolving around issues of obscenity. Extreme Associates, a pornography company owned by Rob Zicari and his wife Lizzy Borden, was prosecuted by the federal government for alleged distribution of obscenity across state lines. After several years of legal proceedings, the matter ended on March 11, 2009, with a plea agreement by Rob Zicari and Lizzy Borden.

United States v. Gonzalez-Lopez, 548 U.S. 140 (2006), is a United States Supreme Court ruling that the erroneous deprivation of a defendant's attorney of choice entitles him to a reversal of his conviction under the Sixth Amendment to the United States Constitution.

Blockburger v. United States, 284 U.S. 299 (1932), was a case in which the Supreme Court of the United States set an important standard to prevent double jeopardy.

<i>United States v. Weitzenhoff</i>

United States v. Weitzenhoff, 35 F.3d 1275 is a legal opinion from the Ninth Circuit Court of Appeals that addresses the confusing mens rea requirement of a federal environmental law that imposed criminal sanctions on certain polluters. The main significance of the court's opinion was that it interpreted the word "knowingly" in the statute to mean a general awareness of the wrongfulness of one's actions or the likelihood of illegality, rather than an actual knowledge of the statute being violated. Circuit Court Judge Betty Binns Fletcher authored the majority's legal opinion in this case.

<i>American Booksellers Foundation for Free Expression v. Strickland</i>

American Booksellers Foundation for Free Expression v. Strickland, 560 F.3d 443, is a decision of the Sixth Circuit Court of Appeals involving a constitutional challenge—both facially and as-applied to internet communications—to an Ohio statute prohibiting the dissemination or display to juveniles of certain sexually-explicit materials or performances. The Sixth Circuit panel declined to resolve the constitutional issue but, instead, certified two questions to the Ohio Supreme Court regarding the interpretation of the statute. The Ohio Supreme Court answered both questions affirmatively and placed a narrowing construction on the statute. Since the Ohio Supreme Court's decision, the Sixth Circuit has not reheard the case.

<i>Gordon v. Virtumundo, Inc.</i>

Gordon v. Virtumundo, Inc., 575 F.3d 1040, is a 2009 court opinion in which the United States Court of Appeals for the Ninth Circuit addressed the standing requirements necessary for private plaintiffs to bring suit under the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003, or CAN-SPAM Act of 2003, 15 U.S.C. ch. 103, as well as the scope of the CAN-SPAM Act's federal preemption. Prior to this case, the CAN-SPAM Act's standing requirements had not been addressed at the Court of Appeals level, and only the Fourth Circuit had addressed the CAN-SPAM Act's preemptive scope.

2014 term per curiam opinions of the Supreme Court of the United States

The Supreme Court of the United States handed down eight per curiam opinions during its 2014 term, which began October 6, 2014 and concluded October 4, 2015.

Davis v. Ayala, 576 U.S. 257 (2015), was a case in which the Supreme Court of the United States upheld a death sentence of a Hispanic defendant despite the fact that all Blacks and Hispanics were rejected from the jury during the defendant's trial. The case involved a habeas corpus petition submitted by Hector Ayala, who was arrested and tried in the late 1980s for the alleged murder of three individuals during an attempted robbery of an automobile body shop in San Diego, California in April 1985. At trial, the prosecution used peremptory challenges to strike all Black and Hispanic jurors who were available for jury service. The trial court judge allowed the prosecution to explain the basis for the peremptory challenges outside the presence of Ayala's counsel, "so as not to disclose trial strategy". Ayala was ultimately sentenced to death, but he filed several appeals challenging the constitutionality of the trial court's decision to exclude his counsel from the hearings.

Kingsley v. Hendrickson, 576 U.S. 389 (2015), is a United States Supreme Court case in which the Court held in a 5–4 decision that a pretrial detainee must prove only that force used by police is excessive according to an objective standard, not that a police officer was subjectively aware that the force used was unreasonable.

McFadden v. United States, 576 U.S. 186 (2015), was a United States Supreme Court case in which the Court held that section 841 of the Controlled Substances Act requires the government to prove that to be in criminal violation, a defendant must be aware that an analogue defined by the Controlled Substance Analogue Enforcement Act with which he was dealing was a controlled substance.

Ginzburg v. United States, 383 U.S. 463 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to Federal obscenity laws. One of a trio of cases, Ginzburg was part of the Supreme Court's attempt to refine the definitions of obscenity after the landmark 1957 case Roth v. United States.

Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. ___ (2020), was a United States Supreme Court case related to trademark law under the Lanham Act. In the 9–0 decision on judgement, the Court ruled that a plaintiff in a trademark infringement lawsuit is not required to demonstrate that the defendant willfully infringed on their trademark to claim lost profit damages.

References

  1. 1 2 3 4 5 6 7 8 9 10 "584 F.3d 1240 (2009) / United States of America, Plaintiff-Appellee, v. Jeffrey A. Kilbride, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. James Robert Schaffer, Defendant-Appellant". Court of Appeals, Ninth Circuit. 8 June 2009. Retrieved 8 March 2011.
  2. 1 2 "18 USC 1037 - Fraud and related activity in connection with electronic mail". Open Jurist. Archived from the original on 2011-07-27. Retrieved 8 March 2011.
  3. ↑ "Jury Convicts Two Men for Running International Pornographic Spamming Business". United States Department of Justice. 25 June 2007. Archived from the original on 24 March 2011. Retrieved 8 March 2011.
  4. 1 2 "(2007) / United States of America, Plaintiff, v. Jeffrey A. Kilbride (2), James R. Schaffer (3), Defendants". United States District Court, D. Arizona. 24 August 2007. Retrieved 8 March 2011.
  5. ↑ "413 U.S. 15 (1973) / Miller v. California". Supreme Court of the United States. 21 June 1973. Archived from the original on 18 October 2015. Retrieved 8 March 2011.
  6. ↑ "418 U.S. 87 (1974) / Hamling et al. v. United States". Supreme Court of the United States. 24 June 1974. Retrieved 8 March 2011.
  7. ↑ "542 U.S. 656 (2004) / Ashcroft, Attorney General v. American Civil Liberties Union et al". Supreme Court of the United States. 29 June 2004. Retrieved 8 March 2011.
  8. ↑ "United States of America v. Paul F. Little" (PDF). U.S. Court of Appeals for the Eleventh Circuit. 2 February 2010. Archived (PDF) from the original on 13 June 2011. Retrieved 8 March 2011.
  9. ↑ Johnson, David D. (11 February 2010). "U.S. v. Little: Emerging Circuit Split on Whether National Community Standards Should Be Applied in Internet Obscenity Cases". Internet and E-Commerce Law Blog. Archived from the original on 12 June 2018. Retrieved 8 March 2011.
  10. ↑ "Inmate escapes from Lompoc prison camp | KSBY.com | San Luis Obispo, Santa Maria, Santa Barbara, Paso Robles". Archived from the original on 2013-12-30. Retrieved 2013-12-28.
  11. ↑ "Lompoc prison inmate back in custody | KSBY.com | San Luis Obispo, Santa Maria, Santa Barbara, Paso Robles". Archived from the original on 2013-12-30. Retrieved 2013-12-30.
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.