Ninth Circuit Panel Rejects Isaacs' Appeal

PASADENA, Calif.—In what might be considered break-neck speed for the Ninth Circuit U.S. Court of Appeals, the three-judge panel which heard the appeal of adult producer/director Ira Isaacs on March 5 has already rendered its verdict, and it's bad news for Isaacs. The panel, consisting of Judges Ferdinand F. Fernandez, Susan P. Graber and Mary H. Murguia, rejected Isaacs' three basic appeals issues, finding that U.S. District Judge George H. King had not abused his discretion in finding that even though he had given an erroneous instruction to the jury regarding the definition of "prurient interest"—at one point, the judge had, in agreement with both U.S. Attorney Michael Grant and Isaacs' counsel Roger Jon Diamond, defined it as "an appeal to a morbid, degrading, and unhealthy interest in sex"—he later, in response to a question from the jury, revised the definition to "morbid, degrading, or unhealthy." [Emphasis added] Also at issue were the frequent interruptions of Diamond's closing argument by Grant pretty much whenever Diamond strayed from the facts of the case as elicited at trial and brought up what the court described as "matters of public knowledge." But the panel held that whether or not Grant's objections were well-taken, the issue of whether the interruptions would have affected the jury's verdict is "reviewed for an abuse of discretion," and citing the Ninth Circuit case of U.S. v. Spillone, the panel ruled that, "[t]he trial court did not abuse its discretion in requiring counsel to confine his remarks to the record." Additionally, Diamond brought up the fact that although Isaacs' first judge, the Ninth Circuit's own Chief Judge Alex Kozinski, had ruled that Isaacs was qualified to deliver opinion testimony as an art expert, when Judge King took over the case after Kozinski recused himself, King ruled that Isaacs was not qualified to give such opinion testimony, and that such ruling fatally limited the evidence the defense was able to present at trial. "The district court did not abuse its discretion in excluding Isaacs’ proposed expert testimony about artistic value, because its 'application of the expert-testimony standard was logical, plausible, and supported by inferences that may be drawn from the record'," the panel stated. "Isaacs is likewise unable to show that the district court abused its discretion by limiting his lay testimony where, as here, he makes no showing that the excluded testimony would have been 'helpful ... to determining' whether the works were obscene." Isaac's final objection was to the fact that during the voir dire of the jury in his last trial, an FBI agent was stationed at counsel table with Grant and used a computer to "perform searches of publicly available information during voir dire." "Isaacs concedes that his claim has no basis in existing law, and we see no reason to conclude that the district court’s actions during voir dire constituted an abuse of discretion," the panel ruled. Isaacs, who remains free on bail during the appeal process, may now request a rehearing en banc before the entire 11-member Ninth Circuit appeals panel, and Diamond told Patch.com that he would present that option to his client, even as he opined that Isaacs' prosecution was unwarranted in the modern era where attitudes towards sexual material have changed dramatically. "This case is a relic from the George W. Bush days," Diamond said. "It's been a big waste of money and resources." If Isaacs decides not to appeal, or his motion for en banc reconsideration fails, he would have to serve much or all of the four-year sentence handed down by Judge King, and pay $11,000 in fines and court costs, though some or all of that might be discharged due to Isaacs' bankruptcy. The three-judge panel's ruling can be found here.