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Police Blotter: Porn spammers' guilty verdict upheld
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August 3, 2007
What: Notorious porn spammers, convicted by a jury in June, ask judge for an acquittal or a new trial.
When: U.S. District Judge David Campbell in Arizona rules on August 24.
Outcome: Request denied.
What happened, according to court records and other documents:
If you received porn spam a few years ago, there's a reasonable chance Jeffrey Kilbride, a California resident, and James Schaffer, an Arizona resident, are to blame.
The duo made millions with a simple business model: Churning out unsolicited junk e-mail with pornographic photos. When the recipient opened the message, sexually explicit images would appear touting a sex site. The two men earned about $1.4 million in revenue in 2003 alone from commissions on recipient sign-ups to various sites.
Enter the federal Can-Spam Act, which took effect on January 1, 2004. It legalized spam but at least required that spammers follow certain rules. Kilbride and Schaffer didn't.
Instead, they moved partly offshore. They hired a network specialist, Andrew Ellifson, to set up a bunch of servers in Amsterdam. It became operational and began flooding the Internet with porn spam in December 2003, just before Can-Spam took effect.
They also hired Christopher Compston, a citizen of the Isle of Man, to move their other business operations offshore. Compston connected them with Inter-Ocean Management in the African nation of Mauritius, which has a Web site boasting that it can "supply everything necessary to set up and support an international trading operation." Kilbride and Schaffer eventually created a Mauritius-based company called Ganymede Marketing.
As a computer programmer, they hired Kirk Rogers. He designed a randomization system that spewed spam to up to 43 million addresses. It cycled between different "From:" domain names on a daily basis. It included the recipient's username as the other part of the "From:" line. And in a devilish twist, it responded to opt-out requests by continuing to send porn-spam after 30 days had elapsed.
Finally, as someone to oversee the day-to-day operations of this illegal porn-spam operation, they hired Jennifer Clason at an annual salary equivalent of $108,000. Clason was in charge of, among other things, registering hundreds of domain names and coming up with "Subject:" lines such as "hey you" and "hello." Some included pornographic images (sent to the hapless recipients twice a week for five months) with lurid titles that the government claims are obscene. Some were viewed by children.
It was a clever enough arrangement, perhaps, but the defendants failed to take the final and necessary step to protect themselves from Can-Spam, which was moving offshore themselves. Because they stayed in the United States, they were indicted and arrested on criminal charges.
On June 25, a federal jury found Kilbride and Schaffer guilty of two counts of Can-Spam violations, two counts of obscenity, and conspiracy to commit money laundering.
Ellifson and Rogers had pleaded guilty to Can-Spam charges earlier. So has Jennifer Clason, who went on to found MommyJobs.com and defend her tenure as a bottom-feeding porn spammer in a post to its discussion board. Clason also reportedly runs porn sites including Hardcore-skank-porn.com.
After their jury conviction, Kilbride and Schaffer asked the judge for an acquittal or, as an alternative, a new trial. They claim, for instance, that the images were not obscene and argued that Juror 16 (who became the jury foreman) was looking at materials on the prosecutors' table that he was not supposed to see.
Judge Campbell rejected their request and upheld the verdict. He agreed with the jury on all counts and said that his questioning of Juror 16 revealed that no harm was done. "The court again concludes that Juror 16 did not view materials on the prosecution's table, was not biased, and therefore need not have been excused," he said.
Excerpts from Campbell's August 24 opinion:
Defendants attack the testimony of six individuals who received Defendants' e-mails and complained...
Defendants claim that the evidence at trial demonstrated that none of these witnesses received the Fist Action image, that the witnesses therefore lied on the witness stand, and that the evidence was therefore insufficient to support the obscenity convictions. The Court does not agree.
First, the premise of Defendants' argument is incorrect. Defendants assert that these individuals established the community standards necessary for the obscenity determination. In fact, none of these witnesses testified directly about community standards. Moreover, as the Court instructed the jury, community standards is a broader inquiry...
Defendants thus err in arguing that the testimony of the six e-mail recipients was the source to which the jury was directed for determining community standards. As the Court's instructions made clear, jurors were to consider all of the evidence and their own experience. This included evidence of comparable images sold at various locations in Arizona, as presented by Defendants.
Second, contrary to Defendants' argument, the evidence did not establish that the six recipients lied when they said they had received the Fist Action image. Defendants base this argument on the fact that none of the AOL complaints contain the identifiers for the Fist Action website. But as Eric Zeller testified, AOL retained only 3 to 5 percent of the complaints it received. Thus, it is entirely possible that the witnesses received the Fist Action image, forwarded it to AOL in a complaint, and the complaint was among the 95 to 97 percent not retained.
In addition, Defendants assert that the Fist Action image was not sent by Defendants until after June of 2004 when AOL had blocked all e-mails from Defendants. Jennifer Clason testified, however, that she began sending e-mails on behalf of Defendants in April of 2004 and sent the Fist Action image in bulk e-mails at least twice per week.
Her testimony supports the recipients' receipt of the Fist Action image through their AOL accounts. Moreover, Defendant Schaffer was sending the e-mails before Clason's involvement and was the one who directed Clason to send the Fist Action image. Thus, it is likely that Defendant Schaffer sent the Fist Action image in e-mails before Clason took over in April of 2004...
Defendants do not dispute that they transmitted the Fist Action and Ass Munchers images in interstate commerce, for sale, and with knowledge that they were sexually explicit. The only question at trial, therefore, was whether the images are obscene. The jurors reasonably could have found the images obscene even if they concluded that the six witnesses never received them.