I was indicted on two counts of criminal copyright infringement in January 2019. To be honest, I was quite excited. I saw it as a chance to fight for something I believed in – real copyright reform – and possibly go to jail for a short time while continuing that fight. To me, it was a way to raise awareness about the very real problem of "Orphan Works."
However, the night before my indictment, there were signs of trouble. The prosecutor at the time, James Moore, had filed a motion for detention, aiming to convince the magistrate judge that I was a danger to society.
I was prepared to go to jail, demand a speedy trial, and continue the fight. But my lawyer talked me out of it. "Doug, this could take years; it's a complicated case. You don't want to go to county jail."
So I was released on bail... and I waited... And waited... And waited...
Aside from several more failed attempts by Mr. Moore to have me detained, nothing much happened until the mail fraud charges were added. My lawyer said, "This gives them some leverage. Jim really wants you in prison."
Why So Eager for Prison?
Why did Mr. Moore want me in prison so badly? This wasn't a violent crime, and I believed they would have a hard time proving damages.
Conjecture Time: The government was running out of time. The statute of limitations on the Walmart Theft Ring was up in October 2019.
So the trial was set for October. I said to my lawyer, "I thought it was a complicated case. Find a way to extend it."
His answer: "The date's pretty solid. The government wanted to have it earlier..."
I'm sure they did.
Heidi's Plea and the Government's Offer
Heidi had actually pleaded guilty to mail fraud in April 2019. The government kept it sealed until just before the trial. I have my theories on why they did that, too. But let's stick to the facts for now.
I have zero animosity or hard feelings about Heidi pleading guilty. Quite the opposite. As I've said before, my only regret was getting her involved in this mess. I love Heidi and always will.
After her guilty plea was revealed, I met with my lawyer. The conversation went something like this:
MY LAWYER: "In an unusual move, the government has offered to let Heidi go if you plead guilty to the 3 charges."
ME: "Then I'm pleading guilty."
(Slight pause. Thoughts of the Walmart Theft Ring peek through the clouds of my anxiety.)
ME: "...But, what happens if the government doesn't get the information they're looking for out of me? What guarantee would I have that they wouldn't just charge Heidi with something else?"
MY LAWYER: "No 100% guarantee, but the offer is coming from the government."
ME: "Can I talk to Heidi first?"
MY LAWYER: "No."
ME: "Can you talk to Heidi?"
MY LAWYER: "No."
ME: "Can you talk to her lawyer and ask him if she wants me to plead guilty?"
My lawyer pulled out his phone.
MY LAWYER: "Let's find out."
I sat there while the two lawyers had a very brief, legalese-filled conversation. My lawyer hung up his phone.
MY LAWYER: "That answers that. No."
ME: "Um, she doesn't want me to plead guilty or..."
MY LAWYER: "He won't ask her the question."
A Difficult Decision
As part of my bail restrictions, I couldn't have any contact, direct or indirect, with Heidi or the other 50 people named as witnesses in my case. At first, I was very upset with Heidi's lawyer. This was a potential chance to get his client free of the charges, no felony record at all.
After several days of deep consideration, I decided to go to trial.
Conjecture Time (again): What if Heidi's lawyer didn't even know about the government's offer to set her free if I pleaded guilty? Did I screw this up even worse?
I may never know, and I still struggle with that decision to this day.
Threats and Pressure
There was no doubt in my mind that the government threatened to prosecute members of Heidi's family to get her to plead guilty. I know this for a fact because I saw the letter from Prosecutor James Moore sent to Heidi. It was very similar to this one he sent my lawyer:
Attached is a letter which provides an update regarding the investigation of Douglas Gordon. I anticipate without a willingness of Mr. Gordon to plead guilty to negotiated charge(s) in an Information that he will be charged in a multi-count wire fraud conspiracy and criminal copyright infringement indictment. By charging a conspiracy, others who may not have realized significant commercial advantage or private financial gain will be held criminally responsible. Please let me know prior to January 12 as to whether your client has any willingness to accept responsibility.
Thank you and all of the best to you during this holiday season.
Jim
The only difference between the two letters was that Jim named Heidi's family members who would be charged with conspiracy.
We're nearing the end of "Copywronged," but there's still more to uncover. Next time, we'll delve into the government's last-minute tricks and shed more light on the behind-the-scenes workings of the Walmart Theft Ring.
Yay! How exciting! Join us!
Comments