In Santa Rosa County last week four individuals from Escambia and Santa Rosa County entered pleas relating to state court charges of RICO, Florida Statute 895.03, which basically means “running a criminal enterprise by a pattern of criminal incidents.” In this particular case, the pattern of criminal activity allegedly occurred over a seven year period and stemmed from using local “models” or actors and actresses primarily from Pensacola as performers in sexually explicit movies. The movies were then uploaded to a website known in cyberspace under the screen name “Ray Guhn.” At it’s peak the website had 5000 subscribers. The only way to access the sight was to pay the $30 per month access fee. The website still exists but has been sold to a new owner. There are 100s of other similar sexually explicit sites as well as many sites which involve “harder core” pornography. I represented the General Manager of the web site. In exchange for pleas the state dropped some of the charges against the defendants and agreed to a range of imprisonment of two to four years for the General Manager and three to five years for the owner of the website. They faced a maximum sentence of 60 years plus but if convicted after trial they may have realistically received sentences ranging from 10 to 20 years.
The prosecutor, by merely by using the RICO statute, made the “Ray Guhn” case much more serious than a “simple” distribution of obscene materials case. Jerome Mooney, Esq., a past president of the First Amendment Lawyer’s Association, represented the owner of the web site. Mr. Mooney stated in a recent article about the case for the Adult Video News Magazine: “there were unique factual aspects of this case which made it different from the traditional obscenity case.” Specifically, in addition to the allegations of distribution of obscene material, the allegations involved a few of the performers claiming they had been provided controlled substances by one or more of the named defendants, that the use of escorts to make these films was legally prostitution and the mere payment of adult to perform sexual acts was a violation of Florida’s prostitution law. Most of these same performers have pending RICO charges alleged against them for their involvement in escorting services in Pensacola that will not be resolved until after the resolution of this case. These witnesses were cooperating with the prosecution in hopes their own sentences would be reduced.
If the case had proceeded to trial, the State would have attempted to offer evidence of numerous bad acts, charged and uncharged, of both my client and the other defendants. RICO carries with it a Level 8 on the Florida Criminal Code Punishment score sheet and enhances what otherwise might be simple misdemeanors to a first degree felony punishable by up to 30 years in state prison. The government would have had to have proven the Racketeering offense is supported by “predicate acts or incidents.” Specifically in the Ray Guhn case those predicate acts were prostitution, distribution of obscene materials and distribution of controlled substances. Because the defendant’s were additionally charged with Conspiracy, a level seven on the Criminal Code Punishment score sheet, to convict any of the defendants all a jury would have had to have found was that anyone one of the four defendants committed two incidents of either obscenity, prostitution or drugs within a five year period of time. A rather simple thing for the government to prove to establish such a serious crime. In exchange for pleas the government agreed to dismiss the conspiracy charges. The owner, who was solely charged with money laundering, entered a plea to that count, which is a Level 9 first degree felony.
It is because of the potential for abuse of the RICO statute, which was modeled after the act originally designed by the U.S. Congress to apply to organized crime under federal law, there are many appellate cases, including cases from the Florida Supreme Court as well as the U.S. Supreme Court, that caution prosecutors not to apply RICO to garden variety criminal undertakings to merely elevate what otherwise are less serious criminal law violations to a first degree felony. This often results cooperation of less culpable defendants who suddenly are facing long prison terms if convicted. Gross v. State, 765 So.2d 39 (Fla.2000), cautions the concept of a “criminal enterprise” is not to be applied to “garden variety criminal undertakings.” Id. at 49 n. 5.
The community in which the obscene materials were to be judged was Escambia, Santa Rosa, Okaloosa and Walton Counties, probably four of the most “conservative” counties in the State of Florida. The case ultimately should have no precedential value on what is or is not considered obscene in the four county area because there was no finding of obscenity by a jury.
In light of the my client and the other defendants sentencing not being scheduled to be heard until August 11, 2008, it is not appropriate or ethical to discuss their case or the government’s case in more detail at this time. This article regarding RICO and the reporting of the pleas in this case will be followed by an article attempting to make sense out of what is or isn’t obscene and what material is legal or illegal to possess. The law establishing the test for obscenity was devised in a 1973 U.S. Supreme Court case Miller v. California, a case decided 35 years ago before anyone thought there would be a community called “cyberspace.” This will be a challenging article to write. Last year I as invited to join the First Amendment Lawyers Association, an organization filled with intellectuls, professors of law and ardent defenders of the First Amendment. Although I am a just a trial lawyer, I have to say that the lawyers associated with this group are some of the best in the country at what they do, that is defend your right to be you and my right to be me.