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Attorney Says Justice Dept. Sold Same 'Obscene' Material As His Client

Attorney Says Justice Dept. Sold Same 'Obscene' Material As His Client

AVN noted Wednesday that one of the interesting aspects of the recent Justice Department (DOJ) firing of several U.S. Attorneys was that two of them – Paul Charlton of the District of Arizona and Dan Bogden of the District of Nevada – were canned because they were "unwilling to take good [obscenity] cases" that had been presented to them by the Justice Department's obscenity unit. That unit is currently being run by former U.S. Attorney of Utah Brent Ward. 

But as we were examining some of the documents in the one obscenity case that Charlton did file – United States v. Five Star Video, LC, et al – an interesting coincidence leapt out ... and it's one that the Justice Department may have found so embarrassing that Charlton's firing may simply have been another casualty in the cover-up surrounding it. 

The document in question was a Motion to Dismiss filed by Richard Hertzberg, attorney for Five Star and others, on Aug. 31, 2006. Note the date, because it's significant. The Five Star defendants have been under indictment since last May 23rd for selling four sexually-explicit DVDs, all manufactured or distributed by JM Productions, to FBI agents perpetrating a sting operation based in Virginia. Five Star has one retail outlet and an Internet sales division, both located in Tempe. 

But Five Star isn't the biggest or best-known adult retailer in Arizona. That honor goes to the Castle Boutique, part of the Castle Megastore chain, which currently consists of 19 adult stores in several states. 

A few years ago, the Castle Megastores had financial problems, and eventually declared bankruptcy, along with another adult distribution company called Dexter Distributing. While undergoing reorganization under the U.S. bankruptcy laws, Castle has been and continues to be, according to Hertzberg's motion, "under the supervision of the U.S. Trustee's Office of the Department of Justice, and the United States Bankruptcy Court of the District of Arizona." 

"During its tenure in bankruptcy," the Motion continues, "it purchased from wholesalers, and sold and rented, multiple copies of the four indicted titles in this case. Evidence adduced at the hearing will reveal that Castle ordered and sold: 

"29 copies of the herein-indicted item Filthy Things  6 in 2005 and 2006; 

"16 copies of the herein-indicted item Gag Factor 15 in 2004 and 2005; 

"30 copies of the herein-indicted item Gag Factor 18 in 2005; 

"50 copies of the herein-indicted item American Bukake 13 in 2003 and 2004. 

"It is believed that Castle also rented out the indicted items. Although the shelf-life of the four indicted items had expired by the time these indictments came down, Castle was, after the indictment in this case, still selling one of the indicted items — Filthy Things 6. An investigator working for Defendants' lawyer was able to purchase one from Castle's store at 8802 N. Black Canyon, Phoenix, Arizona on May 28, 2006  and one from Castle's store at 21815 N. 26th Avenue, Phoenix, Arizona on June 1, 2006." 

In other words, while U.S. Attorney Paul Charlton was busy indicting Five Star and JM and their employees for interstate transportation of obscene materials – "obscene" under the community standards of the District of Arizona – trustees employed by the U.S. Department of Justice were selling and had sold those exact same titles ... and not just in Arizona, but had also shipped those titles to other Castle stores in Oregon and Washington state. 

To say the least, this presents the U.S. Attorney's office in Arizona with a problem: How can it legitimately argue that the four features under indictment violate Arizona's community standards for obscenity when other stores in the same state, all under the control of U.S. government employees, have been selling those same features – and in two instances, sold one of the features in two different locations several days after the indictment came down? 

But Hertzberg's motion takes that concept a step further, arguing that under the law, because of Castle's sales of the material, the Justice Department is legally barred ("estopped") from claiming at trial that the four features violated community standards. 

"The U.S. Trustee's office accepted the benefit of the sale and rental of the herein-indicted items, because it received payment from the Castle bankruptcy in substantial amounts at a time when Castle was acquiring money by selling the allegedly illegal items," Hertzberg wrote. "The U.S. Trustee of the DOJ and the U.S. Bankruptcy Court, having acquiesced in Castle selling multiple copies of the indicted items, should be estopped to claim that they exceed community standards... Under the doctrine of quasi estoppel the government is estopped to claim that the community standards are anything other than those Castle is being operated under." 

One can only imagine the consternation Charlton must have felt when he received a copy of Hertzberg's motion on or shortly after Aug. 31. Did he immediately call Brent Ward, complaining that he'd been hung out to dry when, after filing obscenity charges that the Bush administration had been pushing him (and other U.S. Attorneys) to do, he finds that government representatives have been selling the indicted materials in another store just a few miles away? Did he tell Ward that, under the official Canons of Ethics, he (Charlton) could hardly argue to a jury, even if the court denied Hertzberg's estoppel motion, that the indicted features violated Arizona's community standards when government agents had been selling them for years? 

We may never know if Charlton and Ward had such a conversation, or what was said during it ... but we do know one thing: On Sept. 20, just three weeks after Hertzberg filed his motion, Ward sent an e-mail to Kyle Sampson, Attorney General Alberto Gonzales' chief of staff. Titled "Obscenity cases," Ward wrote, "We have two U.S. Attorneys who are unwilling to take good cases we have presented to them. They are Paul Charlton in Phoenix (this is urgent) and Dan Bogden in Las Vegas. In light of the AG's [Attorney General's] comments at the NAC to 'kick butt and take names', what do you suggest I do? Do you think at this point that these names should go through channels to reach the AG, or is it enough for me to give the names to you? If you want to act on what I give you, I will be glad to provide a little more context for each of the two situations." 

"This is urgent"! Considering that there was only one federal obscenity case in the District of Arizona, what involving "obscenity cases" could possibly have impelled Ward to write to Gonzales' chief of staff requesting that Charlton be removed urgently? 

We also know, from examining records produced several days ago by the Justice Department in response to requests from the Senate Judiciary Committee, that Charlton was not on the original list of attorneys to be fired that was sent by Sampson to chief White House Counsel Harriet Miers on March 2, 2005, nor Sampson's memo to Miers of Jan. 1, 2006, but he does show up as a "Tier 1" replacement in what appears to be Miers' response to Sampson dated Feb. 10, 2006. Charlton is missing, though, from the list in a Sampson memo of April 14 to Dabney Friedrich. 

Of the documents produced, Charlton's main "claim to fame" is as the subject of a July 26 e-mail from Rachel Brand, Assistant Attorney General for the Justice Department's Office of Legal Policy, wherein Brand discusses Charlton's policy of only prosecuting marijuana smuggling cases where the amount involved is 500 pounds or above, though there are various exceptions to that policy. Nothing in the memo mentions obscenity cases, however. 

As of a Sept. 13 e-mail from Justice Department spokesperson Monica Goodling to Kyle Sampson, though, Charlton is back on the list of "USAs [U.S. Attorneys] We Now Should Consider Pushing Out," along with four other fired attorneys, and heads the (alphabetical) list on the Nov. 15 "Plan For Replacing Certain United States Attorneys." 

Because at least one of the U.S. senators from the state where a U.S. Attorney has resigned or been fired has historically been consulted as to that person's replacement, the Bush administration, which had planned to choose its own replacements, discussed with DOJ's Sampson some strategies for not offending such senators. To that end, Sampson apparently drew up the five-step Nov. 15 Plan, which included a warning that the U.S. Attorney and his "home state Senator" should be informed of the firing "simultaneously", and in a section titled "Prepare to Withstand Political Upheaval," listed several excuses that should be used to respond to "[d]irect and indirect appeals of the Administration's determination to seek these resignations" – again, with the admonition that, "Recipients of such 'appeals' must respond identically." Boilerplate scripts were supplied. 

Charlton's "home state Senator" was Republican Jon Kyl, who most recently has been in the news as the sole senatorial objector to a bill that would reverse the section of last year's PATRIOT Act amendments which allowed the Justice Department a free hand in appointing replacement U.S. Attorneys. Could that have anything to do with the circumstances under which Charlton was fired? Only time (possibly) will tell. 

In any case, however, when it came to deciding who would inform the home state Senator that the U.S. Attorney had been fired, Attorney General Gonzales himself was designated to speak to Kyl, while all other firings were delegated either to Harriet Miers or someone in the White House's Office of Political Affairs. Could this have anything to do with Charlton's apparently having been fired over the Five Star case? We may never know. 

As of this writing, the Five Star case has not been dismissed, although the original judge assigned to the case has recused himself, and at least one staff attorney at the Justice Department has either quit her involvement the case or been involuntarily reassigned. 

The questions surrounding the official reactions – or overreactions – to Hertzberg's Aug. 31 Motion to Dismiss, however, will not go away, and hopefully, the Senate Judiciary Committee will take a hard look at the circumstances of Paul Charlton's firing ... and possibly also at the Bush administration's obsession with mounting federal obscenity cases even when local U.S. Attorneys think they're unwinnable.

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Mark Kernes

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