Stagliano Attorneys Call Obscenity Prosecution Retaliatory

Apr 12, 2010 3:30 PM PST
WASHINGTON — The U.S. government was accused Monday of initiating a prosecutorial strategy against John Stagliano that is "vindictive, retaliatory and improper."

The accusations were made by Stagliano attorneys, who are seeking to have his obscenity case dismissed.

Allan Gelbard, one of Stagliano's attorneys, told XBIZ that the Justice Department's criminal indictment was based in connection with an $11.2 million award Stagliano won against Kaytel Video Distribution.

"We believe strongly that the motive behind the obscenity case is a result of John bringing up copyright infringement claims," Gelbard said.

The Kaytel judgment involved some 64,500 counterfeit adult videos involving about 55 Evil Angel videos.

Stagliano counsel say that a review of discovery materials provided by the government showed that he wasn't even on the government's radar until he filed the Kaytel suit.

His attorneys say he and his companies are being penalized for "actions to protect its intellectual property rights in expression that is protected by the 1st Amendment" and that the "prosecution tramples both the right to free speech and the right to petition the government for redress of valid grievances."

"This case truly sets up a fear for defendants and innumerable others exercising their rights to seek copyright protection by registering their works with the Copyright Office could very well put them in defendant's position — defending against a criminal indictment," attorneys said in a motion made on Monday.

If U.S. District Judge Richard Leon doesn't throw out the case against Stagliano and his companies, his attorneys at least want the court to conduct an evidentiary hearing to determine the true basis of the prosecutors' decision to select Stagliano for prosecution. They also are asking, in the alternative, to determine whether prosecutors engaged in forum shopping, prohibited by the Justice Department's own internal guidelines.

In another motion, Stagliano attorneys have asked Leon to throw out the seventh count of the indictment, which alleges the distribution of obscene materials in a manner, which "may be available to minors."

"The cover page of the indictment clearly, and untruthfully, infers that the works were actually distributed to minors," a motion said. "Such evidence, argument and/or insinuation will be so prejudicial and inflammatory that the jury may be unable to follow and/or may consciously ignore any limiting instruction the court may give on the subject."

His attorneys also have filed a motion to move for a change of venue, if Leon doesn't dismiss all charges.

They point to the obscenity indictment of Barry Goldman, whose trial has been put on hold after the judge in the case moved over to the 3rd U.S. Circuit Court of Appeals. In the Goldman case, the defense claims that the Justice Department broke its own policy of transferring an indictment to another state.

Stagliano attorneys also contend that nearly all their witnesses and documents are based where most adult production studios operate.

"The expense, logistics ... it would be a nightmare," Gelbard said. "It makes more sense to have the trial in California."

Stagliano and his companies — Evil Angel Productions Inc. and John Stagliano Inc. —were indicted on seven counts for illegal possession, distribution and sale of the obscene materials.

FBI agents used the defendants' website to order two films, "Milk Nymphos" and "Storm Squirters 2 'Target Practice.'" An FBI agent in Washington also downloaded a free trailer called "Fetish Fanatic Chapter 5."

Stagliano's trial date is set for July 7.

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