A recent decision of the United States Court of Appeals for the 5th Circuit affirmed the Dallas obscenity convictions of Garry and Tamara Ragsdale. Coupled with the Department of Justice's recent "Help Wanted" poster, this is an ominous sign, not to mention a grim reminder of another Dallas case that started more than a decade and a half ago.
Many of the readers of this publication are too young to remember the 1990 Dallas case. In any event, the case was a part of what was called Operation Woodworm, the second such operation during the reign of the Reagan/Bush the Elder administrations. The first, Operation PostPorn, was a series of prosecutions of adult mail-order businesses, which in those days advertised their wares via catalogues rather than Web pages. Operation Woodworm was directed to the then relatively small handful of adult video manufacturers in the San Fernando Valley in Los Angeles. Needless to say, they fell far short of their objective of ridding the country of adult mail-order companies and adult video manufacturers.
The Investment Enterprises case was aimed at one of the Obscenity Unit's prime targets: Great Western Litho & Bindery, the printing company that produced the boxes for the majority of adult videos, and the printing company's owner. Great Western, mind you, was never claimed to have ever sent a videotape anywhere, much less in interstate commerce. The videos the jury ultimately found to be obscene – only after many days of deliberation, several claims that it was hopelessly deadlocked, and instructions demanding the jury reach a verdict one way or another – were shipped by a company independent of Great Western.
But it was aiding and abetting that nailed Great Western and its owner, whose brother-in-law ran the company that shipped the videos. Notwithstanding the conviction, however, the trial judge overruled the government's motion to forfeit millions of dollars in assets involved in the production and distribution of the offending videos, including buildings, bank accounts, equipment, and more, finding that the few videos that were found obscene were an inconsequential part of the huge business.
The opinion of the Court of Appeals was a disaster, affirming the convictions (although the relatively short sentences already had been served) and reversing the denial of the forfeiture motion. The opinion, the only one ever construing the obscenity-forfeiture statute (18 U.S.C. §1467), gutted the entire notion of "proportionality" that Congress put into it after considerable deliberation.
Age of reason
After Bush I was ousted, President Clinton's attorney general, Janet Reno, redirected the obscenity prosecutors' efforts toward child pornography and other more meritorious pursuits. Ed Meese's anti-obscenity juggernaut was stopped cold.
Fast forward eight years to the Bush II administration, which promised to re-energize the obscenity prosecutions. John Ashcroft, a religious zealot, was named to the post of attorney general, marching in lockstep with the religious right. But eight months and 10 days after Rev. Ashcroft's Feb. 1, 2001 confirmation, 19 of Osama bin Laden's henchmen derailed Ashcroft's grand plan to send the entire smut industry to jail and/or church. During the "War on Terror" that ensued, there were but a handful of quiet obscenity prosecutions, but no war.
One such prosecution is the focus of this month's column: The Ragsdales'. It all started in the 1990s, when Garry Ragsdale, a Dallas police officer (obviously, not in the vice division), started a side business of selling, first, nutritional supplements, and then adult videotapes over the then novel World Wide Web. In April 1998, a Berlin resident named Oliver Chalet contacted the Dallas Police Department by email, reporting that he had found a website operating out of Dallas that was advertising for sale videotapes of actual rapes, having no clue that the merchant was one of Dallas' Finest moonlighting as an adult-video merchant.
The Dallas Police Department conducted an internal-affairs investigation once they figured out Ragsdale's station in life, a Dallas police officer said to have had an outstanding record. Teaming up with the feds, they did the usual search-warrant thing, seizing all kinds of evidence and soon after firing Ragsdale both for failing to obtain permission for his outside employment and for engaging in conduct adverse to the department.
Ragsdale was initially charged with a misdemeanor in state court, but the charges eventually were dropped. For reasons not clear, the federal investigation also seemed to die. Then, in 2003, on the eve of the expiration of the statute of limitations, a federal grand jury in Dallas returned an indictment against Ragsdale and his wife. The court appointed Dallas attorney F. Clinton Broden to defend Ragsdale, apparently finding that Ragsdale did not have the wherewithal to hire counsel. Broden was studying for the bar exam when the Great Western case went to trial, the last federal obscenity case (other than child pornography) known to have been tried in Dallas.
Real rape
Notwithstanding the proliferation of hardcore content, especially on the Internet, between January of 1993, when the Clinton administration pulled the plug on obscenity prosecutions, and the Ragsdale's 2003 trial, this was pretty rough material, as described by the Court of Appeals:
"[The second half of the first tape] depicts in graphic detail, among other things, her being hoisted up by her ankles upside down with chains and then being sodomized with various objects and seemingly tortured with hot wax. She is also flogged with a whip by a female dominatrix and subsequently sodomized with a baseball bat, which is secured in place with heavy rope.
"[The second video in part appears] as if the man hits her and cut [a woman who appeared to have been kidnapped] with a knife. Thereafter, the video shows protracted close up shots of male and female genitalia engaged in a variety of sexual acts that the prosecution argued was again nonconsensual by the female."
Part of the problem defending the case was that the material was touted as being real rapes, not acting—"Ground Zero" materials.
The trial court found, and the Court of Appeals agreed, that the tapes were obscene, that there was no need to translate the Non-English-language tapes, that comparable videos purchased in Dallas should be excluded, that testimony of Dallas attorney Andrew Chatham about his many acquittals and his expertise on Dallas community standards should be excluded, and that the fact that another attorney had advised Ragsdale that the videos were not obscene should be excluded.
In late September, the jury convicted both Garry and Tamara Ragsdale; and the court sentenced them to 33 and 30 months, respectively. And this is real time, since federal inmates serve roughly 86 percent of their sentences. They were released on bond pending appeal, but things are looking grim for them now that the Court of Appeals has upheld their conviction. Significantly, the argument that tossed out the Extreme Associates case was not raised in the trial court, and therefore deemed waived.
The type of materials involved in this case are believed by many to be most in harm's way if the threatened avalanche of federal obscenity prosecutions comes to fruition, and perhaps even if it does not. And whether it will is an interesting question.
The Washington Post recently uncovered the fact that the DOJ had posted a "want ad" for 10 good men and/or women to join the obscenity prosecution team, and that other members of the department, in response, more or less ridiculed the source of the memo and snickered about the promised obscenity crackdown in general. And a recent MSNBC poll suggested that about 87 percent of the respondents were against the crackdown. With Bush's ratings at an all-time low, one wonders whether the department can stay the course.
It seems that chasing merchants of the category of tapes that the Ragsdales were hawking is a likely scenario, regardless of what else happens. Targeting that type of material is believed by prosecutors to improve the odds of a conviction, because the material certainly is the most vulnerable – female victims, which ups the odds of prosecutorial sympathy from male jurors – and because the small-time merchants of such things usually will wind up with appointed counsel, rather than a team of FALA veterans.
Certainly there are those in the DOJ with dreams of press conferences announcing, "Operation Somethingorother, with coordinated raids across the country." And if the wars of the Reagan/Bush I years reignite, it will be very interesting to find out how juries react. Nobody really is sure.
What is sure is that President Bush doesn't have the votes to repeal the right to trial by jury. He is, however, doing what he can in the Supreme Court Building to whittle away at the First Amendment—except, of course, the Free Exercise clause.
Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since the early 1980s. He can be reached through AVN Online's offices or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information, all of which is received with interest. Books, are encouraged to be submitted for review but will not be returned. This column does not constitute legal advice, but rather serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
