Anti-Muslim filmmaker's probation case creeps

by **Mixed** Sat Oct 20, 2012 12:57 am

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Associated Press/Reed Saxon
- An unoccupied Los Angeles County Sheriff's Department patrol car is
parked across from the home, background, of Nakoula Basseley Nakoula,
the man who made the film "Innocence of
Muslims" that has sparked violent protests, in Cerritos, Calif.,
Tuesday, Sept. 25, 2012. The filmmaker has received death threats and
was forced into hiding, putting his home up for sale, after the
14-minute movie trailer rose to prominence. (AP Photo/Reed Saxon

CERRITOS, Calif. (AP) — The federal probation violation investigation
targeting the man behind the anti-Muslim video inflaming the Middle East
is proceeding slowly and privately, reflecting the explosiveness of the
case.

Federal officials have said nothing publicly
about the case, and neither has Nakoula Basseley Nakoula's attorney.
Nakoula has put his home up for sale and gone into hiding since violence
erupted over the 14-minute YouTube trailer for "Innocence of Muslims," a
crudely made film that portrays the Muhammad as a religious fraud,
womanizer and pedophile.

Enraged Muslims have demanded punishment for
Nakoula, and dozens have died in violent protests linked to the movie. A
Pakistani cabinet minister on Monday offered a $100,000 bounty to
anyone who kills Nakoula.

Meantime, First Amendment advocates have
defended Nakoula's right to make the film even while condemning its
content. President Barack Obama echoed those sentiments Tuesday in a
speech at the United Nations.

"We understand why people take offense to this
video because millions of our citizens are among them. I know there are
some who ask, 'Why don't we just ban such a video?'" he said. "The
answer is enshrined in our laws. Our Constitution protects the right to
practice free speech."

Against that backdrop, federal officials are
looking into whether Nakoula, 55, violated probation for a 2010 check
fraud conviction by uploading the trailer to YouTube. Nakoula was
sentenced to 21 months in prison and ordered not to use computers or the
Internet for five years without approval from his probation officer.

If he's found in violation, he could be returned
to prison. If not, he'll remain free. Either way, federal officials
will face criticism, either from those who say Nakoula's free speech
rights were trampled or from those who believe he should have been
punished for inciting violence with the video.

"This case breaks the mold," said Mark Werksman,
a defense attorney in Los Angeles and a former federal prosecutor. "If
the video hadn't gone viral, and caused the Arabic world to blow up, who
would care if this guy is using YouTube? It's all about politics with
this guy."

Because of the international complexity,
probation officials handling the case are taking plenty of time to make a
decision and likely are getting input from throughout the federal
government, said Lawrence Rosenthal, a professor at Chapman University's
School of Law in Orange.

"My best guess is decisions about this case are
going to be made at very high levels," Rosenthal said, surmising federal
prosecutors, Justice Department headquarters and even the State
Department may be weighing in.

Steven Seiden, a defense attorney representing
Nakoula in the probation matter, did not reply to questions by email
Tuesday and has not replied to several written requests for an interview
with him or his client. The U.S. attorney's office declined to comment.

In most federal cases, a probation officer who
decides someone has committed a serious violation submits a confidential
report to the sentencing judge, who then can pursue a probation
revocation hearing — a mini-trial of sorts — where probation officials
must prove the violation.

If the judge finds the individual in violation,
the court can return the defendant to probation, send him to prison or
impose additional terms of probation without prison time.

Normal cases can move very quickly — sometimes
taking days — once a probation officer has prepared a report, Werksman
said. In this instance, however, the political and diplomatic
ramifications likely have officials scrutinizing every step.

Probation officials first must be able to prove
there was a violation, and that could mean a lengthy investigation into
whether Nakoula or someone else posted the video on YouTube, said Heidi
Rummel, a former federal prosecutor and criminal law professor at the
University of Southern California's Gould School of Law.

In addition, the terms of Nakoula's supervised
release indicate he was allowed to use computers with prior approval
from his probation officer. It's possible he received approval to post
the trailer for "Innocence of Muslims."

"Usually the probation officer will be most
interested in preventing him from engaging in any kind of activity
related to the original crime, so another factor would be what kind of
permission did the probation officer give him?" she said. "Why would
(the film) be of concern in a bank fraud case? That's a whole nother
wrinkle."

If federal probation officials — or those above
them — decide not to proceed against Nakoula, the public likely will
never know what went into the decision or who was involved without a
court proceeding, Rosenthal said.

If the case does go before a judge, Nakoula
could argue he was singled out on a probation technicality for
exercising his right to free speech, Rosenthal said.

Either way, the outcome to the investigation
could take a long time and isn't as straightforward as it may seem, said
Rummel, the former prosecutor.

The issues are unusual for the probation revocation context and the allegations may be difficult to prove," she said.

"It's not like they have a couple dirty drug tests and two weeks later they're in court."