Goldman’s Attorneys Want Obscenity Charges Dropped

Sep 22, 2009 10:45 AM PST
NEWARK, N.J. — The attorneys defending Torture Portal operator Barry Goldman have asked a federal judge to dismiss his eight-count indictment on obscenity charges.

Goldman, through federal public defenders Lisa M. Mack and Louise Arkel, requested on Monday for U.S. District Judge Joseph A. Greenway Jr. to reject the indictments because FBI agents spent about three years making “controlled buys” of his movies to build their case and that the Justice Department was “forum shopping” to find an indictment.

Goldman last year 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."

Goldman attorneys also said in the motion that his distribution business was a “fragmented business operation” and that the Justice Department’s Obscenity Task Force’s own policies state that they should go after bigger fish.

“[T]he policy directs that bigger distributors are to be targeted, especially those who realize substantial financial rewards from a national-scale business,” the defense said. “Large-scale distributors with organized crime ties jump to the front of the prosecution line.

“[T]he 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.”

The motion described Goldman as a retired chemicals salesperson, who also is a member of the BDSM community.

“As a hobby, he periodically acted in adult movies, including the three movies at issue here,” the defense said.

The motion noted that the 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.

Goldman, 59, later was indicted by a federal grand jury 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.

Goldman’s attorneys also said in the motion that times have changed and that the court should reconsider federal obscenity laws in general.

“In light of the Supreme Court’s holding in Lawrence vs. Texas (which struck the sodomy law in Texas), as well as the liberalization of both society’s attitudes regarding adult sexuality in general and court rulings on this subject in particular, 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,” the defense said.

In a separate motion on Monday, Goldman’s attorneys filed an opposition to suppress evidence from his trial, slated to begin Oct. 27.

Justice Department attorneys earlier asked the court to exclude references to the prior Montana obscenity case filed against Goldman.

Goldman’s attorneys said Monday 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 during the entire period covered in the indictment, the government wanted to keep from the jury that it initially opted for a Montana jury to apply its community standards.

“The government’s attempt to avoid New Jersey despite the many and obvious links to New Jersey is telling,” the defense’s motion on evidence said. “It strongly suggests that the government did not believe that these movies violated New Jersey community standards.

“It reveals that the government does not want the jury to know about this previous attempt because the jury will immediately understand that even the government was unsure of the strength of its case and instead went forum shopping in attempt to strengthen its case — and that it came here only when it had nowhere else to go.”

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, SirBNY@aol.com.

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