NEWARK, N.J.—After federal defender Lisa Mack's excellent brief detailing the multi-year machinations the U.S. Department of Justice (DOJ) used to snag adult performer Barry Goldman in an interstate mailing of obscene materials sting, there wasn't much prosecutors Bonnie Hannan and Pamela Satterfield could do—except ignore it.
"Evidence of the former prosecution in Montana is irrelevant to these proceedings," the Justice Department attorneys wrote in their Response To Defendant's Opposition to the Government's Motion in Limine. "The jury in this case will be charged with deciding whether or not the defendant, on three separate occasions, mailed obscene movies from New Jersey to locations in Montana and Virginia. ... The defendant seeks to admit into evidence the entire procedural history of this case and the internal decision-making process in the Department of Justice, but these matters shed no light on the issue of whether the defendant mailed obscene materials in violation of the laws of the United States. Providing the jury with such information will not help them assess whether or not the government has proven its case using the Miller standard."
As far as the government is concerned, the fact that it first tried to manufacture jurisdiction—by having FBI agent Angela McCravey order the movies in question (Torture of a Porn Store Girl, Defiant Crista Submits and Pregnant and Willing) to be sent to Montana and Virginia to overcome the Attorney General's prohibition on indictments in jurisdictions where potential defendants have had no or minimal prior contact—is irrelevant.
Similarly, the Justice Department's refusal, more than three years ago, to indict Goldman for the same movies in his home state of New Jersey—or in the Southern District of New York, where the movies' producer was based—was equally of "no probative value."
"The only evidence which would be relevant to these proceedings regarding the movies sent to Virginia and Montana is any factual evidence that proves that these movies were mailed by the defendant to those jurisdictions," Hannan and Satterfield claim. "Beyond that, it adds nothing to the case to speculate why the government ordered the defendant’s movies into Virginia and Montana. The defendant, by introducing such highly speculative information, would do nothing more than inflame the passions of the jury by insinuating that the government had bad motives in its investigation of these alleged crimes. Such evidence would be unhelpful and even confusing to the jury. It is not proper to look at the alleged motives of the government in bringing this case originally in Montana and eventually indicting the case in New Jersey."
Yeah! Only someone who's old enough to remember disgraced president Richard Nixon's "enemies list," which the IRS used as a roadmap to mounting tax audits, or unindicted co-conspirator Vice President Dick Cheney's outing of CIA operative Valerie Plame to silence her husband's criticism of his administration's Iraq War policy, could possibly question whether the Gonzales/Mukasey Justice Department had "bad motives" in targeting Goldman—or in bringing obscenity cases to begin with, absent any citizen complaints about unwanted receipt of the material.
"There has been no showing that the government engaged in prosecutorial misconduct or violated the defendant’s Due Process rights by bringing this case originally in Montana," the prosecutors further claim. "Even if the government had selected Montana because it thought Montana would be a favorable venue to the government, the courts support such a choice."
But as noted in AVN's previous coverage of this case, the U.S. Attorney's Manual doesn't, limiting cases "based solely upon test purchases by postal inspectors" to being prosecuted in the district where the material was received only "where the government has some information showing that there were prior mailings into the recipient districts by the individual involved." And it's doubtful that the attorney general meant that prohibition to be sidestepped by having postal inspectors (or FBI agents) place multiple orders to be sent to the recipient district just to establish a record of "prior mailings."
And if the Justice Department's code of conduct doesn't prohibit its attorneys from "forum shopping" obscenity cases into districts where no ordinary citizens have ordered and/or complained about the movies simply because the attorneys have assessed that they have a greater chance of getting a conviction, it clearly should.
Hence, it's just a bit disingenuous for Hannan and Satterfield to claim that "it is the sole province of the jury to apply its 'contemporary community standards' to determine what is obscene under the standards set forth in Miller. Juries, not prosecutors or investigators make that decision."
In fact, in the last 20 years, the Justice Department has brought just one federal obscenity case in the world's main nexus of adult movie production, the Central District of California: Ira Isaacs. Yet that would seem to be the logical venue to bring almost all federal obscenity charges.
So why weren't JM Productions, Max Hardcore, Extreme Associates and Evil Angel indicted in Los Angeles? Because prosecutors knew that their chances of obtaining a conviction under the "contemporary community standards" of L.A. were weighted on the side of free sexual speech. Hell, even the Chief Judge of the Ninth Circuit Court of Appeals looks at porn!
The DOJ's forum shopping is even more egregious when one considers that the U.S. Attorney's Manual itself suggests that that's is a bad idea. The manual puts the onus on prosecutors to justify their cases by mandating that "as a matter of fundamental fairness and in the interest of the efficient administration of justice, no prosecution should be initiated against any person unless the government believes that the person probably will be found guilty by an unbiased trier of fact." For instance, when a kidnapper or bank robber flees across state lines, there's little argument (outside of who'll get the positive publicity) about where that person will be tried, since the "contemporary community standards" regarding bank robbery or kidnapping are pretty much the same everywhere in the country. Not so, obviously, with alleged obscenity—so prosecutors have sought to bring cases in jurisdictions where they believe the allegedly "unbiased" triers of fact will be more likely, due to their conservative and/or religious beliefs, to convict.
But all the duplicity and evasion in the government's opposition brief appears to have inspired Lisa Mack and partner Louise Arkel to even greater eloquence in their Reply to the Government's Response.
"The government's arrogance toward those it prosecutes and toward the courts, whose approval it expects (but whose disapproval may simply be ignored), apparently knows no bounds," Mack and Arkel wrote, referring to the prosecutors' evasions regarding the reasons behind a Montana District Court judge's dismissal of their indictment of Goldman in that state.
"The government audaciously asserts that its choice of Montana was proper because that is 'where the defendant chose to do business,'" they continued. "It fails to mention that the only business Mr. Goldman allegedly 'chose' to do in Montana was in response to the government’s request. The government has produced not a scintilla of evidence that Mr. Goldman 'did business' in Montana other than the government-prompted action."
The defenders similarly call out the government for claiming that Goldman "solicited" an "undercover FBI agent" (probably McCravey) simply because Goldman may have talked to her while staffing the TP Productions booth at the 2006 Adult Entertainment Expo in Las Vegas, and notes that its charges against Goldman relating to the TorturePortal.com and MastersOfPain.com websites are ludicrous: "It fails to mention that it did not find Mr. Goldman on the website and that the website was defunct as of 2007, well before it brought the charges in Montana."
"The serpentine road that the government took to indict Mr. Goldman in New Jersey was the result of a deliberate and intentional search for the most favorable forum possible," Mack/Arkel charged in their Reply. "It was a search that required a sting operation to be set up, because the government had not a shred of proof that Mr. Goldman had ever done any business whatsoever in Montana. It was done in contravention of DOJ policy, both with respect to venue and to prosecutorial targets. It meant dragging a retired man in poor health and with extremely limited resources halfway across the country to answer for having allegedly mailed three movies, placing him under strict court supervision, and placing him under media and community scrutiny, until a federal judge refused to play the government's game and transferred the case to New Jersey. The government's conduct has been outrageous. Far from 'fair, just and right,' the government's pursuit of Mr. Goldman for having allegedly mailed three movies has been disproportionate to the alleged conduct, heavy-handed, and inexplicable." [Emphasis in original]
Mack and Arkel expand this argument by noting, as Mack did in her previous filing, that the government could have indicted Goldman in 2006 once Agent McCravey had ordered the three movies sent to Montana, but stalled by having McCravey order the same movies twice more into Montana to attempt to establish "proper venue" under the U.S. Attorney's Manual guidelines.
"Each of these purchases was for the exact same offense and involved the same movies," Mack/Arkel charged in the Reply. "For the government to contend that this investigation required additional time or additional resources is ludicrous. The only thing missing was just the right forum; that's what took the government those two additional years to obtain."
"The government claims it sought no 'tactical advantage' with the delay, but that was precisely its intent and exactly what it got," they added. "It was seeking what it believed would be the most receptive community for its prosecution and, correspondingly, the least receptive community for the defense. It had the advantage of being able to select the most receptive community for prosecution with the specific knowledge of the movies that were subject to prosecution. In addition, during the three years it took to bring this investigation to fruition, the government would logically have been aware that witnesses and evidence would become more difficult to locate because the movies were made well before 2006. It was aware that evidence of the applicable community standards and what was commonly available and accepted at that time would only become more difficult to obtain. Yet it now claims not only government efficiency but no prejudice to Mr. Goldman."
In line with this argument, Mack and Arkel renew their motion for access to the minutes of the grand jury proceedings which led to Goldman's indictment, to determine if the government may have misled the grand jury by failing to make it aware of the "deviant group" exception to the Miller test; that is, since the charged videos are meant to appeal to BDSM fans, the government should have made sure that the grand jury was assessing the videos based on their "prurient appeal" to that "deviant group," as required under U.S. v. Mishkin, rather than their possible appeal to the more general community.
"Mr. Goldman's belief that the government quite likely incorrectly instructed the grand jury using only the general Miller test, unmodified by the Mishkin standard, is based upon the government’s opposition to using the Mishkin standard in past obscenity prosecutions," Mack/Arkel wrote, referring to the prosecution of Paul "Max Hardcore" Little last year in Tampa. "Mr. Goldman's request respects the province of the grand jury by not seeking disclosure to him, only to the Court. Mr. Goldman has made the most limited and tailored request possible that is still cognizant of his constitutional rights, achieving an appropriate balance... Once this Court rules on the standard applicable, be it Miller or Miller as modified by Mishkin, Mr. Goldman will then move to dismiss the indictment if it was predicated upon the legally incorrect standard."
The defense also attacks the government's claim in its Response brief that any decisions within the Justice Department as to whether to prosecute Goldman are irrelevant to Goldman's obscenity trial.
"In his discovery request, Mr. Goldman seeks any information or belief rendered by any law enforcement or prosecution personnel that the material in question is not obscene," Mack/Arkel explained. "With this request, Mr. Goldman does not, as the government insists, seek to invade its 'deliberative processes.' Instead, Mr. Goldman seeks any determination by any other US Attorney Offices or other agents that this case should not be prosecuted. As noted in his moving papers, the USAO [United States Attorney's Office] for the SDNY [Southern District of New York] declined to prosecute this case. Mr. Goldman believes that this declination is exculpatory, and he seeks information concerning this and any other declinations."
Mack and Arkel also note that, similarly, Agent McCravey no longer pursued her investigation into Goldman's possible obscenity violations after the New York office declined to prosecute the material, and the defense attorneys seek information on why the investigation was closed at that point, and why it was later reopened.
"That information would likely come in the form of beliefs or information that the material is not obscene," Mack/Arkel argued. "While the applicable standard is that of the relevant community, law enforcement and the prosecuting offices would have to gauge that standard in order to be able to judge what to prosecute. On what basis did they make that decision? Mr. Goldman is entitled to know the metric they employed."
The defense request points up the essential unconstitutionality of obscenity prosecutions—an issue that may have resonance far beyond Goldman's own case. If U.S. Attorneys in New York City couldn't tell if Goldman's material was prosecutable under the obscenity statutes, or if they decided that it wasn't, yet the "head office" in D.C. came to the opposite conclusion, it seems reasonable to inquire into what objective standards (or "metric") each attorney who was involved in either decision used in making the decision. Such an inquiry might easily lead to the fact that there are no objective standards under which the "obscenity" of any particular work is judged, merely subjective guidelines regarding the work's appeal to "unhealthy" or "morbid" sexual appetites, its offense to subjective "community standards" and whether it has any "redeeming" literary, artistic, political or scientific value—another possibly subjective judgment.
One thing is certain: As the Goldman case proceeds, decisions on pretrial motions could easily impact current and future obscenity prosecutions, especially since the Justice Department no longer has religious fanatics at the helm. However, what effect the rulings by Judge Joseph A. Greenaway Jr. (or his successor, since Greenaway has been nominated for a Third Circuit appeals seat) will have on the DOJ's Obscenity Prosecution Task Force, still headed by the ultra-conservative Brent Ward, remains to be seen.