NEWARK, N.J. — Justice Department attorneys, in a brief filed Monday in the obscenity trial of Torture Portal operator Barry Goldman, said that the government’s internal policies are irrelevant to his prosecution.
Prosecutors, in the brief, asked a federal judge to deny Goldman’s motion to dismiss his indictment over an umbrella of due-process complaints, including that the government went against its own rules over picking on smaller adult distributors as opposed to larger fish and that it was inconsistent over choosing prosecutorial forums.
Government attorneys on Monday said the Justice Department targets not just large-scale operations, but small companies as well.
They cited U.S. Attorneys’ Manual code § 9-75.020 to state its case.
“Prosecution of cases involving relatively small distributors can have a deterrent effect and would dispel any notion that obscenity distributors are insulated from prosecution if their operations fail to exceed a predetermined size or if they fragment their business into small-scale operations,” the code reads.
Prosecutors noted that former Attorney General Michael Mukasey’s statements in the past on obscenity prosecutions are irrelevant to Goldman’s case and any statement made by an attorney general is a Justice Department “housekeeping matter.”
“While testifying before the Senate Judiciary Committee, Mr. Mukasey was asked what the department’s strategy was regarding the materials targeted in obscenity cases,” the brief said. “He answered by referring to a recent obscenity case prosecuted by the department — Paul Little, aka Max Hardcore — and stated that the department sought cases that would have the greatest impact on removing obscene materials which degrade our society and depict behavior that is disgraceful.”
Prosecutors also argued that Goldman’s attorneys were wrong in that the Justice Department violated an internal policy on venue.
Goldman was indicted by a federal grand jury in Montana; however, the Justice Department moved the case to New Jersey, where Goldman was indicted by another federal grand jury in July. The Justice Department said it filed a motion to dismiss the Montana indictment “in order to conform with the Justice Department’s policy on venue.”
His attorneys maintain that despite the fact that the movies were allegedly mailed from New Jersey and only from New Jersey and despite the fact that Goldman lived in New Jersey, the government wanted to keep from the grand jury that it initially opted for a Montana grand jury to apply its community standards.
Goldman’s attorneys said that § 9-75.400 of the U.S. Attorney Manual states that “if 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 district by the individuals involved.”
But the prosecution said that just because they initially overlooked the policy in the Goldman case, it doesn’t rise to the level of a due process violation, particularly because Goldman’s first grand jury indictment in Montana was promptly dropped and another took place in New Jersey as a corrective measure.
“First, there has been no showing that bringing the case in Montana was anything other than fair, right and just,” prosecutors said in a brief. “It is also irrelevant whether the government considered or requested prosecution in the Eastern District of Virginia or any other jurisdiction.”
Justice Department first learned of Goldman when he promoted his companies’ movies at AEE in Las Vegas in January 2006. The movies were sold through the web at TorturePortal.com.
In the recent indictment, Goldman later was indicted for violating 18 U.S.C. § 1461 and § 1467 for the distribution of “Torture of a Porn Store Girl,” “Defiant Crista Submits” and “Pregnant and Willing” through the mail. The videos all were mailed in 2006 and 2007.
If convicted, Goldman faces a maximum penalty of five years in prison and a fine of $250,000 on each of the eight counts charged in the indictment.
The Justice Department also is seeking forfeitures of all copies of the movies, as well as proceeds from the sale of the movies. In addition, they are seeking the forfeitures of domain names MastersOfPain.com and TorturePortal.com, as well as an email address, [email protected]