Analysis: Finding Clues in DOJ's Actions on Barry Goldman Case

JERSEY CITY, N.J.—The U.S. Department of Justice continues to send mixed signals to the adult entertainment industry regarding its philosophy on obscenity prosecutions—and producer/webmaster Barry Goldman finds himself in the middle of it.

In an indictment returned on July 24, Goldman faces eight counts of mailing obscene materials—three for the DVD titled Torture of a Porn Store Girl, three for the DVD titled Defiant Crista Submits and two for the DVD titled Pregnant & Willing—under 18 U.S.C. §1461, as well as one count under 18 U.S.C. §1467, which allows the government to "forfeit" (seize) "all obscene material produced, transported, mailed, shipped and received, and all property, real or personal, constituting or traceable to gross profits or other proceeds obtained from such offense(s), and all property, real or personal, used or intended to be used to commit or to promote the commission of such offenses."

As part of the "Forfeiture Allegation," the feds want to seize all copies of the charged movies, the gross profits derived from sale of same, and the websites and, as well as Goldman's email address.

Contrary to what was erroneously reported on in late July, the investigation of Goldman has been ongoing since 2006, and he was indicted in Montana in August of 2008 on one count of mailing obscene material for each of the three movies, as well as an obscenity forfeiture count. However, the three counts for Torture of a Porn Store Girl and three for Defiant Crista Submits suggest that those films were mailed to two different "sting" addresses besides Montana, and while Virginia is reported to be one of them, it is unknown where the third sting was based.

"I have been casually following this case since it was initially filed in Montana in August, 2008," First Amendment attorney Paul Cambria told AVN. "Defense counsel there was federal PD [public defender]. The case was originally brought in the District of Montana because the U.S. Attorney there [William W. Mercer] is one of the few, aside from Mary Beth Buchanan, who proved willing to bring obscenity prosecutions during the course of the Bush administration."

According to Wikipedia, for several months beginning in 2005, Mercer was detailed on "temporary assignment" to Washington, D.C., for then Attorney General Alberto Gonzales. However, when U.S. District Chief Judge Donald W. Molloy complained to Gonzales that Mercer was spending just three days per month in Montana, in violation of the residency requirements for U.S. Attorneys, Gonzales, at Mercer's request, had a provision added to the USA PATRIOT Act which retroactively gave permission for U.S. attorneys in Mercer's position—there were several, including Western Pennsylvania's Buchanan—to perform such "temporary assignments" legally. (Mercer was also part of Gonzales' legal "whitewash squad," as detailed here.)

In any case, Cambria reports that Goldman's public defender, David Merchant, successfully moved before U.S. District Judge Richard Cebull to transfer the case to the District of New Jersey since Goldman's only contact with Montana was to send videos to the FBI agent who ordered from there.

"This court is concerned with taking up Montana court time with out-of-state defendants who could potentially be prosecuted elsewhere," Judge Cebull wrote.

"When the case file was initially transferred to the District of New Jersey, the clerk's office there deemed the case 'transferred in error' because the government itself had moved to dismiss the indictment in Montana," Cambria continued. "Apparently, the government has now gone back to the drawing board and has had a new indictment issued by a grand jury in New Jersey. Any spin by DOJ about a policy preference favoring the district from which the material was sent is complete bullshit. The case is filed in New Jersey now by virtue of a federal court order in Montana rejecting the Task Force's true preference for forum shopping."

Indeed, Goldman himself was unaware of the new indictment when contacted by AVN on July 30, but when informed of it, declined to comment. Goldman's case has been assigned to Judge Joseph A. Greenaway in Newark, and his arraignment is currently scheduled for Aug. 18. However, that date may have to be pushed back since Goldman has yet to retain counsel. Notably, on June 19, President Obama nominated Greenaway, a former law professor, for a seat on the Third Circuit Court of Appeals.

However, the reindictment in New Jersey raises new questions about the Justice Department's commitment to prosecuting sexually explicit material made by adults for adults. While's Josh Gerstein incorrectly credits the move of Goldman's indictment from "socially conservative Montana to more urbane New Jersey" to a Justice Department choice—as Cambria pointed out, Judge Cebull granted the defense's motion to move the case from Montana to New Jersey, which the DOJ initially fought but later moved to dismiss the Montana indictment altogether—there are nonetheless signs that the Obama administration's Justice Department may be giving lower priority to adult obscenity, despite the fact that Brent Ward is still in the Obscenity Prosecution Task Force's driver's seat.

"The government has re-examined its charging decision," the Task Force attorneys wrote on May 22. "After further internal deliberation and consultation, the government has now determined that initiation of this particular prosecution in the district of receipt, although legally appropriate, is not consistent with an internal Department of Justice policy."

While the decision to reindict Goldman in New Jersey was undoubtedly at Ward's insistence, the trial's venue is in close proximity to New York City, long a mecca for BDSM movie production—and Gerstein quotes First Amendment attorney Larry Walters to the effect that venue "is everything in obscenity cases. It's the whole ball of wax."

"I'm actually surprised to hear they reindicted the case," Merchant told Gerstein. "In New Jersey, everybody’s going to shrug their shoulders and say, 'Who cares?'"

But while North Jerseyans may in fact be too urbane to convict a producer/webmaster of BDSM material—it would be a mistake to trust, as Gerstein seems to, the assessment of Jerseyan attitudes from a dedicated anti-adult crusader like Concerned Women for America president Janice Crouse—one recent development certainly seems to indicate that someone high in the administration is willing to give the finger to the Obscenity Prosecution Task Force: President Obama, perhaps on the advice of Holder, has nominated Daniel Bogden to reprise his role as U.S. Attorney (USA) for the District of Nevada.

As AVN readers will recall, Bogden was the one USA which the Justice Department Inspector General's report unequivocally concluded was fired in the December 2006 purge of nine USAs around the country because of his alleged refusal to prosecute obscenity cases. (It is also highly likely that Arizona's Paul Charlton was fired and Middle District of California's Debra Yang pressured to resign for that same reason.)

A more complete discussion of the circumstances leading up to Bogden's firing can be found here, but significantly, it was just one week after Brent Ward's meeting with Bogden in Las Vegas that Bogden's name was placed on an internal Justice Department list of USAs to be fired, and just one week after that that Ward formally sent an email to Gonzales' second-in-command Kyle Sampson claiming that, "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 comments at the NAC [National Advocacy Center] 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?"

As AVN also noted, at least some of the "good cases" Ward thought he had presented to Bogden were from Task Force staffers who had attended the 2006 Adult Entertainment Expo the previous January, looking for materials which Bogden, in a post-firing interview with the Las Vegas Sun, described as "fairly routine."

"They go in there, and in their super-sleuthing work, they come up with the name of an individual who may be selling obscene videos over the Internet," Bogden told the Sun.

These were exactly the sorts of cases that Bogden, a veteran prosecutor, recognized as unwinnable, but which Ward's less-experienced staffers, who may also have shared their boss's anti-porn zealotry, did not.

It seems highly unlikely that, if rehired by Obama, Bogden would change his assessment of the sorts of cases he believes could be successfully prosecuted—and more importantly, which could not—so Bogden's rehiring would indicate that the Obama administration, or at least the Holder Justice Department, may be taking a step back from the obscenity prosecution mania that characterized the DOJ under Gonzales and his successor Michael Mukasey.

And despite the fact of Barry Goldman's reindictment based on a long-standing investigation, the Bogden nomination may be the best indication yet that as far as the prosecution (and persecution) by right-wing religious zealots of adult-created sexually explicit material, change may indeed have come to Washington.