President Bush has famously said that when it comes to prosecuting the war in Iraq, he would listen to what his generals on the ground have to say, and abide by their advice. Of course, he hasn't done that – and oddly enough, it turns out that his commanders in the U.S. Department of Justice (DOJ) have failed to heed the advice of their "generals" on the ground as well.
On Friday, the DOJ released more than 3,000 pages of e-mails regarding the firings of eight U.S. Attorneys (USAs). Political activists – not to mention staffs of senators and representatives on their houses' respective judiciary committees – are rapidly sorting through all the data, trying to figure out just what did motivate the DOJ – specifically, Attorney General Alberto Gonzales and his deputy Kyle Sampson – to replace the well-performing USAs. In the process, document analysts have come across some startling revelations, not the least of which is this statement from Brent Ward, the current head of the Obscenity Enforcement Task Force, to Matthew Friedrich, Chief of Staff and Principal Deputy Assistant Attorney General of the Justice Department's Criminal Division:
"It has now been more than 10 months since I arrived here," Ward wrote on Aug. 29, 2006. "In that time two cases have been indicted. Only one of them was initiated by the FBI. In light of this the Task Force would have to be considered a failure so far." [Emphasis added]
(The "two cases" to which Ward refers would be U.S. v. Five Star Video and JM Productions, and perhaps the Texas tax/obscenity case U.S. v. Wedelstedt. U.S. v. Extreme Associates would have been before Ward's tenure, and U.S. v. Karen Fletcher was filed after the date of this email.)
According to the emails, Ward saw the failure as traceable to both the USAs in the field and to the FBI, both of which, he claimed, were refusing to follow the investigation and prosecution strategies developed in Washington.
"If we can't resolve it soon," Ward wrote to Friedrich, "the difficulty of getting USA [U.S. Attorney] cooperation in key districts is going to lead to a showdown with the FBI. Once the FBI realized that CDCA ["Central District of California" – likely referring to Debra W. Yang, the U.S. Attorney for that area, who "resigned" in October, 2006 to join a Los Angeles law firm] straight-armed us on our Orange County case (which has been hanging for 4-5 months) and once the WFO SAC [Washington Field Office Special Agent in Charge] and I sat in a meeting with Paul Charlton in Phoenix and heard him thumb his nose at us, the Bureau knew this obscenity initiative could be heading for disaster."
AVN.com has spoken to several attorneys familiar with adult industry prosecutions, and none were willing to hazard a guess as to what company the "Orange County case" referred to, but clearly, Ward's meeting with Charlton would have had to do with the Five Star/JM case which had been filed the previous May. The timing of Ward's email – Aug. 29 – may have been coincidental, but recalling that Richard Hertzberg's Motion to Dismiss the Five Star indictment was filed on Aug. 31, and that he may have communicated the contents of the motion to Charlton – that Hertzberg had evidence that a government-run store had been selling the indicted videos at the same time that Five Star had – before that filing, Charlton's conveyance of that same information to Ward may have been the basis for Ward saying that Charlton had "thumb[ed] his nose at us."
"I definitely think that that is a likely inference of what happened," said Jennifer Kinsley, who along with H. Louis Sirkin represents some of the Five Star defendants. "We highly suspect that is what happened."
Ward's email continued its speculation that because of Yang's and Charlton's recalcitrance, the FBI went into "defensive mode."
"They are now doing only a very minimal amount of spade work on a case before sending me a '60-day letter' giving me 60 days to secure USA cooperation to prosecute or the case will be closed," Ward wrote. "These 60-day letters are now piling up."
Certainly, the Justice Department under the Bush administration would like nothing better than to put every adult company, both Web-based and brick-and-mortar, out of business, but again, it would only be speculation as to which companies were the subjects of the 60-day letters that were "piling up." However, a "pile" suggests that there were more than five or six "cases" that Ward thought were worth pursuing.
To his email to Friedrich, Ward attached copies of correspondence he had had with the U.S. Attorney for Nevada, Daniel Bogden, wherein Ward had set up a meeting between himself, Bogden, Matthew Buzzelli, an Obscenity Prosecution Task Force attorney and several FBI agents to "discuss a case we wish to present to you."
Again, none of the industry attorneys were willing to guess to which Nevada-based production company or retailer Ward was referring, but whichever it was, Bogden's response to Ward essentially said that the Nevada U.S. Attorney's office was too understaffed to handle it.
"I want to again reiterate my position, though, as to our severe manning and personnel shortages in the USAO [U.S. Attorney's Office], District of Nevada," Bogden wrote. "During our telephone conversation, you made a comment about this being some type of 50/50 split on manning and personnel, if our district were to accept such a case for prosecution. I told you then that such an arrangement is highly unlikely as we simply do not have available manning or personnel for such a working arrangement. Since our telephone conversation, our personnel situation has become more critical. We will be willing to meet and hear you ... out and review your case presentation but we have very limited capacity to undertake such a prosecutive matter with what we currently have going on in our office and district."
At that time, according to an Associated Press article, Bogden's prosecutorial staff, which usually numbered 40, was short eight attorneys, and was then preparing for the first phase of a trial for 42 members of the Hells Angels motorcycle club on racketeering charges as well as the corruption trial of a former Clark County commissioner in the Galardi bribery case, which involved coordination between the Nevada and Southern California U.S. Attorneys' offices, and which took many months to resolve. And certainly, in the only state where gambling is legal everywhere and casinos exercise great political power, the U.S. Attorney's office would have far more important issues to deal with than whether the residents of "Sin City" (or even the outlying areas) are having their "community standards" violated by adult videos.
"Who could doubt the wisdom of advice that Las Vegas is not a good venue?" assessed noted First Amendment attorney Paul Cambria. "Las Vegas would be the last place I would pick if I were doing the picking. Dominic Gentile represented the Perainos some years ago in the last big obscenity case in that town, and they were acquitted. I'm shocked that they would pick Las Vegas."
Ward, of course, didn't see it that way.
"For the FBI people to go to LV [Las Vegas] and sit and listen to the lame excuses of a defiant U.S. Attorney is only going to move this whole enterprise closer to catastrophe," Ward wrote.
"That's not just wrong," Bogden said of the "defiant" description, "it's flat-out wrong."
Ward saw the situation as one where local FBI officials were taking their cues from the USAs:
"The Bureau is positioning itself so that it can point the finger at DOJ and say, 'See, we investigated this case and DOJ couldn't find anyone to prosecute it.' ... We need to talk about some way to head this off. It is happening with regularity in the districts that are key to our strategy of hitting the producers on their own turf. Apparently neither Alice nor the DAG [Deputy Attorney General] has been able to overcome the objections of these U.S. Attorneys. Either we hit the big producers head on and on their own turf, or we give up on these districts and work the producers derivatively in other, more welcoming districts. In the latter case the impediment is that the FBI is still loath to work a case against a bricks and mortar outfit, which is where we would need to start (unless we begin with a contrived buy/bust using the Internet), even if the intention is to roll producers and distributors into the case. If we are going to give up on the key districts and go after a derivative strategy, the front office will need to become involved in the decision. The FBI is too locked into the key district approach to be dissuaded by me."
The producers' "own turf" would of course be Southern California, although there are a few well-known producers in Arizona and Nevada, and with Yang's "resignation" and Charlton's and Bogden's firings, it would appear that none of the relevant U.S. Attorneys were keen on cooperating with Ward. The question is, why?
That answer is known to everyone who deals in adult product in those locales, and likely to the (former) U.S. Attorneys there as well: The "community standards" in the tri-state area are so tolerant of adult material that it would be nearly impossible to find a jury that would convict any of the "big producers" on obscenity charges. That's why the FBI's preferred method has been to "work the producers derivatively in other, more welcoming districts" through Internet sting operations.
"It falls into what I said a long, long time ago," Cambria agreed, "and that is that the people in charge of these prosecutions for the Republican administration are out of touch with what the actual people with their feet on the street think about adult entertainment, and what's happening is, the local prosecutors, who know the pulse of the community, are trying to educate them and give them good advice, and it's obvious that it doesn't gel with their political agenda, so what do they do? They kill the messenger."
Incredibly, Ward's Aug. 29 email contains a handwritten note from Associate Attorney General Bill Mercer which appears to read, "DAG [Deputy Attorney General] wants to say, I've looked at the case, looked @ the ev [evidence] – doesn't understd [understand] (1) community standards." There's also an arrow from the "ev" pointing to the first line of Ward's email with the notation, "easier than a drug conspiracy." So apparently, Ward isn't the only DOJ higher-up who thinks that obscenity prosecutions should be a slam-dunk.
Ward's Aug. 29 email, toward the end, reiterates his position that one of the reasons for the lack of indictments is "that the FBI's squad is ineffective and its strategy is not working." The "strategy" referred to is likely the sting operations, and one of the reasons why that might not be working up to Ward's expectations is that many adult companies, mindful of past prosecutions and the "community standards" implicated by them, are more careful where they are willing to ship their product.
But Ward had a suggestion:
"Our whole approach to obscenity enforcement could be greatly improved, if the Task Force and the FBI squad were co-located. Some of the impediments that have hindered the effectiveness of the squad could be overcome, if we were in closer proximity... I think the success of the Task Force may hinge on turning it into a real task force by putting us together with the people we ought to be working with on a daily basis."
"Obscenity enforcement is likely to be limited in any event until the Bureau is willing to instruct field offices to cooperate with the USAOs in the initiation of cases," Ward continued. "Such FO [field office] cases should be coordinated by the WFO [Washington Field Office] squad (which I think would be a good use of its time). ... To get a case going in the vast majority of the districts it will take a USA or AUSA [Assistant U.S. Attorney] who is so highly motivated and so well situated that he can either persuade his SAC [Special (FBI) Agent in Charge] to initiate a case (highly unlikely), or he is willing to engage with local law enforcement to do so. There are few USAs or AUSAs who will make that effort. This can be changed, if the message is strong and urgent enough at the top. Also, I am working on a strategy that would at least provide USAs with information about possible targets in their districts in case they do have the necessary motivation to do something with it."
Ward's strategy is nothing new. Former Attorney General John Ashcroft, at a 2002 seminar for U.S. attorneys, FBI agents and religious leaders, announced a planned rewrite of Justice Department guidelines so that all obscenity cases would be coordinated through DOJ Washington, but since his tenure brought none, perhaps the guidelines were ignored. But again, Ward complains about the lack of enthusiasm of USAs to bring obscenity cases, reinforcing the cluelessness of the "situation on the ground" in the districts.
However, by Nov. 22, Ward was able to get the attention of Gonzales' second-in-command, Kyle Sampson, a fellow Utahan, on the issue of the JM prosecution. Ward had previously copied Sampson on an email he sent to Sigal Mandelker, Deputy Assistant Attorney General in the Criminal division, which noted that the Five Star case (which Ward refers to as the "JM Productions case") had been set for trial in July, 2007, and stated, "As you know, my position is that we will not be in the best position to prevail at trial without the active participation of an AUSA from that District, which has thus far been refused."
It's a tactic that Cambria well understands.
"It should be through the locals," Cambria explained. "It shouldn't be just Washington, because that gives us the opportunity to say, 'Why is somebody from Washington telling you about what's going on in your community?' I always include that in my closings. He [Ward] understands; he told me they have my summations and they use them in their training program."
"It is very exasperating to be in the position of not knowing what, if anything, has been done above me in the Department to secure the cooperation of the U.S. Attorney in this case, even after the passage of more than seven months since I began seeking help in gaining that cooperation," Ward's email continues. "I can only assume that something has been done by someone in the DAG's [Deputy Attorney General's] office, albeit without any apparent effect. I also assume that the AG has not yet personally weighed in. If that is the case, now is the time for him to do so."
"This case will become something of a benchmark, because it will be the first trial of a Task Force case," Ward's email concludes. "The outcome is bound to have an exaggerated effect on the level of participation and cooperation we can expect to receive from other U.S. Attorneys in future cases. For these reasons I request that the AG direct the U.S. Attorney in Arizona to immediately join with us in the prosecution of this case." [Emphasis added]
Two days later, Sampson assured Ward that "Charlton has been directed to provide an AUSA," which Kinsley states is one Paul Rood. Within a month after that date, however, Charlton had tendered his resignation as U.S. Attorney for the District of Arizona, and about one week after that, the original judge in the Five Star case recused himself. Just how much of that was as a result of Charlton's apparent recognition that the Five Star case was unwinnable is unclear.
What is clear is that the upper echelons of the Justice Department consider the Five Star case to be crucial to their ongoing effort to put adult production companies out of business – an effort that seems doomed to failure in light of Richard Hertzberg's Motion to Dismiss. That's unlikely to sit well with the anti-adult forces allied in support of federal obscenity prosecutions.
"You get the sense of Brent Ward being alone in the wilderness and recognizing it," commented First Amendment attorney Jeffrey Douglas. "The US Attorneys aren't helping; the FBI isn't. Even if I were not some sort of hardcore extremist, I think a fair reading of these emails makes it clear that nobody gives a rat's ass about it, and that's inspiring. It's positively inspiring."