- The Washington Times - Friday, April 8, 2005

LEESBURG, Va. (AP) — A North Carolina man convicted in the nation’s first felony prosecution for illegal spamming was sentenced yesterday to nine years in prison, but the judge postponed the sentence while the case is appealed.

Jeremy Jaynes, 30, of Raleigh, N.C., will be free on bond until the appeals process concludes, which his lawyers estimate could take three or four years.

Circuit Judge Thomas Horne acknowledged in deferring the prison time that the law targeting bulk e-mail distribution is new and raises constitutional questions. Defense attorneys pointed out that a judge in Maryland ruled that an anti-spam law there is unconstitutional and that challenges have been made to a new federal law that closely resembles Virginia’s.

“I do not believe a person should go to prison for a law that is invalid,” Judge Horne said. “There are substantial legal issues that need to be brought before the appellate court.”

Jaynes was convicted in November for using false Internet addresses to send mass e-mail ads through an AOL server in Northern Virginia. Under Virginia law, sending unsolicited bulk e-mail itself is not a crime unless senders mask their identities.

Prosecutors said Jaynes used the name “Gaven Stubberfield” and other aliases to peddle pornography and sham products and services such as a “FedEx refund processor.” While prosecutors presented evidence of just 53,000 illegal e-mails, authorities believe Jaynes was responsible for spewing out 10 million e-mails a day, making him one of the top 10 spammers in the world at the time of his arrest.

Defense attorney David Oblon argued that nine years was far too long given that Jaynes was charged as an out-of-state resident with violating a Virginia law that had taken effect just two weeks before. He planned to challenge both the constitutionality of the law as well as its applicability to Jaynes.

“We have no doubt that we will win on appeal,” Mr. Oblon said after the hearing. “Therefore any sentence is somewhat moot. Still, the sentence is not what we recommended and we’re disappointed.”

Prosecutor Lisa Hicks-Thomas said she was satisfied with the judge’s ruling and confident the law would be upheld. “We’re satisfied that the court upheld what 12 citizens of Virginia determined was an appropriate sentence — nine years in prison,” she said.

Jaynes declined through his attorneys to comment after the hearing. He told Judge Horne just before the sentence was handed down that he never intended to cause harm and said that, even if he is acquitted on appeal, “I can guarantee the court I will not be involved in the e-mail marketing business again.”

Mr. Oblon said afterward that Jaynes wants out of the bulk e-mail business because “the legal process is very stressful, extremely expensive and very scary.”

Prosecutors and the judge said the nine-year sentence was meant to deter others from sending illegal spam.

Jaynes’ sister, Jessica DeGroot, was also convicted last year, but Judge Horne overturned the conviction, saying he saw “no rational basis” for a conviction. A third person charged, Richard Rutkowski of Cary, N.C., was acquitted by the jury.

Prosecutors and defense lawyers differ on the degree to which Jaynes profited from his crimes. Jaynes indicated on a presentence report that his net income over his lifetime amounts to less than $5 million, including legitimate business ventures like a restaurant and fitness club.

Miss Hicks-Thomas noted that Jaynes, while free on bond, has been renting a $2,700-per-month home in a country club community to conform with the requirement that he remain in Loudoun County while on bond.

“We believe the defendant is worth well over $4 [million] to $5 million,” Miss Hicks-Thomas said.

Judge Horne said that if Jaynes does indeed start serving his sentence, he may reconsider the nine-year term.

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