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."
Risling reported from Los Angeles.