NEWARK, N.J.—In papers filed yesterday in U.S. District Court for the District of New Jersey, Barry Goldman's attorney Lisa Mack sought to have the court dismiss the nine counts of mailing obscene material with which Goldman has been charged.
Among the grounds upon which Mack bases her claims are the government's "outrageous conduct" in prosecuting her client; that the feds violated Goldman's right to a speedy trial—a reference to the fact that Goldman was first indicted on these same charges more than a year ago in Montana, which charges were dismissed by a federal magistrate there—and that the federal obscenity statute "violates substantive due process"—a reference to the U.S. Supreme Court's holding in Lawrence v. Texas that, "[t]he issue is whether the majority may use the power of the State to enforce [moral or religious] views on the whole society through operation of the criminal law," and concluded that, at least as to private sexual conduct that does not involve minors or non-consenting adults, public conduct or prostitution, such conduct should not be a crime.
One notable revelation in the Motion to Dismiss is that for the first time since Harry Reems and the Deep Throat prosecutions of the mid-'70s, an actor has been federally charged with distribution of obscene material.
"Barry Goldman is a retired chemicals salesperson, and he is also a member of the BDSM sexual community," Mack writes in the Motion to Dismiss. "As a hobby, he periodically acted in adult movies, including the three movies at issue here. Bacchus Studios, a company owned by Saul Kaminsky and located in New York City, produced the movies. Bacchus Studios sold the videos through websites owned by Mr. Kaminsky, namely, www.tortureportal.com and www.masterofpain.com, as well as through various (unrelated) websites that offer clips of videos for sale. Mr. Kaminsky’s websites were inactive as of 2007. In addition to his web sales, Mr. Kaminsky rented a booth at the Adult Video News ('AVN') Convention in Las Vegas in January, 2006, which Mr. Goldman staffed, to promote his company's movies."
Indeed, a Web search confirms Kaminsky's ownership of the two charged sites, although the forfeiture allegation accompanying Goldman's New Jersey indictment seeks to forfeit both sites from Goldman himself. Kaminsky is not mentioned once in the charging documents.
Mack also traces the strange history of the government's interest in Goldman, from FBI agent Angela McCravy's investigation of TorturePortal.com while it was under construction in May of 2006, and her ordering of six movies—including Torture of a Porn Girl, Defiant Crista Submits and Pregnant & Unwilling—from Goldman in July of 2006, six months after the company's appearance at the Adult Entertainment Expo, to be sent to Virginia.
"Mr. Goldman is not charged with these movies or alleged mailings, and he never has been," Mack notes.
However, on an undisclosed date, McCravy ordered an additional two movies sent to Virginia, and it is those movies which form the basis for the first two counts of Goldman's indictment, which allege that those two movies were sent during the same month as the previous six.
But although McCravy recommended that obscenity charges be brought in the Southern District of New York (SDNY), since TP Productions, the producer of the movies, was based in New York City, and the website registered to Kaminsky gives a Belle Harbor, N.Y. address, the U.S. Attorney's Office (USAO) for the area declined to prosecute Goldman there—and when McCravy then suggested prosecuting Goldman in New Jersey, his then state of residence, nothing came of that suggestion either.
"It is unclear whether the government approached the USAO for the DNJ [District of New Jersey] and that office declined, as did USAO-SDNY, or if the government never sought to try Mr. Goldman here," Mack writes. "It is clear, however, that the government (until now) never prosecuted Mr. Goldman in his home state, the state in which the allegedly illegal activity occurred."
Similarly, the feds never indicted Goldman in Virginia—a reasonably conservative state—either, although it could have done so since the movies in question were twice sent to that area. Indeed, it waited more than a year to have yet another FBI agent, Dan Bradley, order the same movies to be sent to Montana after a July 11, 2007 FBI memo cryptically claimed, without further explanation, "This case has been formally accepted for prosecution by the U.S. Attorney’s Office for the District of Montana."
But even that single alleged mailing by Goldman to Montana wasn't good enough for an indictment, because the U.S. Attorneys Manual at the time required that where a "case is to be based solely upon test purchases by postal inspectors, it may be venued in the district of receipt where the government has some information showing that there were prior mailings into the recipient districts by the individual involved." Oops!
Of course, that was hardly an insurmountable problem for a determined Obscenity Prosecution Task Force; it simply had Bradley order more copies of the charged videos sent to Montana addresses, once in August of 2007 and once in March, 2008, and voilà: The previous orders became "prior mailings into the recipient districts by the individual involved"!
Interestingly, however, only the third mailing formed the basis of Goldman's eventual Montana indictment, which as noted in AVN's previous coverage, was ordered to be transferred to the District of New Jersey. Although the government originally opposed the transfer, and even petitioned the Ninth Circuit Court of Appeals to review the Montana District Court's decision, it later withdrew its motion and proceeded to seek and indictment in New Jersey... for the previously uncharged mailing to Virginia, one of the previously uncharged mailings to Montana, as well as the mailing that formed the basis of the Montana indictment.
It is this serpentine road to Goldman's New Jersey indictment that led Mack to move that the present case be dismissed because of the government's "outrageous conduct," which she argues "violates the Due Process Clause."
"It deserves reiteration at the outset that these movies were only ever allegedly mailed from New Jersey and that the government knew from day one that Mr. Goldman lived in New Jersey," Mack writes. "Yet New Jersey was given absolutely no consideration until the government had seemingly exhausted all other possibilities and was on the brink of facing a lack of jurisdiction. Two other jurisdictions that would have been the next logical alternatives, New York and Virginia, declined to prosecution or were deemed not suitable for prosecution. The government's blatant forum shopping—and make no mistake, the sole reason the government went to Montana was in search of just the right forum—flies not only in the face of fundamental fairness, it also directly contradicts the government’s own policy considerations in obscenity prosecutions."
Mack goes on to argue that since Goldman lived in New Jersey and allegedly sent the "obscene" movies from there, the government could have prosecuted him in that state "under any number of other federal obscenity statutes." But rather, it was the government's zeal to find a "friendly" (conservative) jurisdiction, one where it could be sure that an obscenity prosecution would find favor with a local jury, that led it to mount the five sting operations—two in Virginia, three in Montana—that preceded the current indictment.
Mack uses that same set of facts to urge the indictment's dismissal for being untimely.
"Despite conducting perhaps one of the simplest of all federal investigations—order movies, receive movies, watch movies—the government has taken three years to conclude its investigation, set up a sting operation, and ultimately end up right back in New Jersey," Mack recounts. "An examination of this case reveals that the investigatory efforts were neither complex nor involved, and that the delay was caused solely by the government's convoluted machinations and refusal to accept that this case was simply not worth the federal resources being poured into it."
Mack gives particular attention to the government's Writ of Mandamus to the Ninth Circuit, seeking to get the Montana indictment reinstated, terming it an "extraordinary measure" that capped three years of "forum shopping."
"Why these maneuvers were done is unknown, but one obvious possibility is to buy time on the speedy trial clock," Mack argues. "By dismissing the indictment, the government was able to exclude the delay between May 22 and August 18, when Mr. Goldman was arraigned, from the speedy trial clock. Otherwise, because the case had been transferred to New Jersey, docketed on May 20, and assigned to Judge Martini, Mr. Goldman would have been arraigned and the government would have had to have try him within two days. The government neatly sidestepped that deadline by dismissing a non-existent indictment and then filing a new indictment in New Jersey. Rather than a May or June trial, the government has now postponed Mr. Goldman’s trial for months, possibly into next year." [Citations removed here and below; emphasis in original]
And all this to prosecute an actor, even after Attorney General Michael Mukasey told Congress that the Obscenity Prosecution Task Force would be going after "those cases that are going to have the greatest impact on removing obscene materials"!
"The government’s manipulations are even more inexplicable given Mr. Goldman's insignificant status in the industry," Mack states. "Mr. Goldman is not a significant target, one whose prosecution would send shock waves through the adult industry or have a substantial impact on the industry. Yet the government scrambled to put together a prosecution in Montana of someone who doesn’t even rise to the level of a known figure in the adult entertainment world. And it has taken three years and untold resources to do so."
Mack uses Goldman's insignificance as one reason for dismissing the case, together with two (and possibly three) jurisdictions' refusal to prosecute him, the time and deviousness employed by the government to "forum shop," the fact that at most, he could get five years in prison, "the lowest maximum term among federal felonies," plus the difficulty, after this extended passage of time, in locating defense witnesses and determining the comparability of other materials sold in the district. (As AVN readers remember, the difficulty, after five years, of determining community standards and comparability of materials was among the reasons that the final federal indictment against PHE, Inc./Adam & Eve in Utah was dismissed.)
Finally, Mack argues that (as AVN previously pointed out) the government may have failed to give the grand jury guidance as to whether the charged material appealed to the "prurient interest" of a "clearly defined deviant sexual group," as required by United States v. Mishkin, when it obtained its indictment, and she moves for disclosure of the minutes of the grand jury session where the indictment was presented to determine if Mishkin were indeed followed. And lastly, she makes the substantive due process argument previously noted, citing the Supreme Court's having struck down several "state laws restricting or prohibiting liberties in a wide variety of contexts" such as interracial marriage, the right to bear children and to direct their education, the right of marital privacy, the right to use contraception, the right to abortion, and the right to sexual privacy.
"Substantive due process has evolved to specifically include a right of privacy in the sanctity of the home, a right of sexual privacy for unmarried persons, a right of privacy to make choices regarding childbirth, a right of privacy in the body, and ultimately a right of consenting adults to make many choices regarding sexuality without fear of prosecution," Mack states. "As society's perception of and attitudes toward sexuality have become more tolerant and more liberal, so have the courts' interpretation of the Due Process Clause in this context. The liberties guaranteed by substantive due process have moved out of the marital bedroom and into the public sphere of commercial interactions and private interactions between consenting adults."
Mack takes her cue from the Lawrence decision, which says in part, "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."
"In light of the Supreme Court's holding in Lawrence, as well as the liberalization of both society's attitudes regarding adult sexuality in general and court rulings on this subject in particular, Mr. Goldman respectfully requests that this Court reconsider and reevaluate the federal obscenity law with which he is charged and ultimately hold that this law violates the substantive component of liberty guaranteed by the Due Process Clause," Mack argues, noting however that the Third Circuit's ruling in the Extreme Associates case would be binding on the New Jersey district court, but she wants to preserve the Lawrence argument for appeal.
The government, of course, will have an opportunity to respond to Mack's motion, and at press time, no date had been set for argument on the motions.