Leon today ruled that the prosecution, led by Criminal Division trial attorneys Pamela Satterfield and Bonnie Hannan, failed to give enough evidence to jurors to prove that any one defendant, including Stagliano, violated the law. On the original indictment, Stagliano faced up to 32 years in prison.
By granting the defendant’s motion to dismiss the case for lack of evidence, Leon likely short-circuited any future Supreme Court case resolving the circuit split over internet obscenity. The Stagliano case may be the last live Bush-era obscenity prosecution, and neither sets of counsel from the Ninth or Eleventh Circuit cases sought certiorari to hash out whether national or local community standards should apply in a jury’s assessment of obscenity sent over the internet.
Meanwhile, the grounds for appeal in the Stagliano case to the DC Circuit would appear to rest not on any First Amendment issue, but rather on Leon’s procedural and evidentiary judgment. However, I question whether there would even be an appeal in this case, given the Obama administration’s apparent return to more lax Clinton-era enforcement of federal obscenity law.
UPDATE: The Washington Post provides some stats:
“The government said, ‘We have been getting convictions on the most extreme stuff, so we can be a little more aggressive and put pressure on the entire industry,’ ” Richards said. “This case was the tail end of Bush administration obscenity prosecutions. Now it remains to be seen whether the Obama administration makes enforcement a priority.”
Justice Department statistics show prosecutors charged 361 defendants with obscenity violations during President George W. Bush’s years in office, nearly twice as many as under President Bill Clinton. In 2009, 20 defendants were charged, compared with 54 the previous year.
UPDATE II: Politico’s Josh Gerstein notes that “the judge’s ruling cannot be appealed.”