The Top Fifteen Obscenity Prosecution Stories of 2007

  

 The Top Fifteen Obscenity Prosecution Stories of 2007

 

By Attorney J. D. Obenberger

obiwan@xxxlaw.net
 

     This end-of-2007 wrap-up was commissioned by XBIZ and ran as a front-page, above-the-fold story in its last print edition in 2007. It summarized the biggest obscenity stories of the year and made some observations about what might be expected in the future - the future in which we now live. It serves also as a snapshot of cases that were then in progress.

From Northern Virginia to Southern California, federal and state prosecutors and grand juries across America continued to bring criminal obscenity charges against adult operators during 2007. Some few of the cases were widely reported in the adult trade publications, while others were barely reported at all. My purpose in this article is to bring to the fore those cases brought, pending, or resolved in 2007 that are most useful in taking the temperature of the waters in which the adult producers and distributors swim..  

A smart operator will pay close attention to the pending cases as they emerge and play out for several important reasons. First, the nature of the content charged (and at least in the case of Max Hardcore, the identity of the defendant) gives a fair indication of what attracts the interest of law enforcement and prosecutors. Whether the result in the end is acquittal or otherwise, that punitive interest can be very expensive and very scary. Second, the results in these cases may be of predictive help in assessing whether content is likely to be legally obscene. Finally, understanding the sentences and forfeitures imposed provides a reality check to connect the reader with the ultimate downside of high-risk decision-making in adult content selection. 

1. The Ray Guhn/Come on Her Face Case: Florida v. McCowan. In mid-2006 a criminal complaint was filed in North Florida, in Escambia County, against three operators of an adult website, www.cohf.com, which featured glazing facial Bukkake, group sex, and gangbangs with numerous male performers typically accompanied by one or two female performers. The charges included obscenity, racketeering, money laundering, and prostitution. Clinton McGowan a/k/a Ray Guhn, an inventor holding patents and successful venture capitalist in a wide variety of mainstream international investments, faces ninety years in prison. 

When the cops came for McGowan, they came in force with a SWAT team that simply commandeered his house and pointed a rifle to his head, according to published accounts. 

The Northern part of Florida amounts to a cultural continuation of Alabama, but the Pensacola area has never been noted for gracious Southern hospitality to the adult industry. Moreover, Florida has been the home of the ugliest kind of prosecutorial gamesmanship in obscenity cases for a long time. (Ask Chris Wilson, mentioned below, who was jailed over Christmas 2005 for nowthatsfuckedup.com. while the State unsuccessfully played procedural games in order to have him remain in custody indefinitely.) In the latest of these perversions of the judicial process, in July 2007, the indictments in Escambia County were dismissed so that the same case might be immediately resurrected and reindicted in the presumably even more conservative adjoining Santa Rosa County. The new judge denied a motion to transfer the case back to Pensacola finding that the defense had not adequately established bad faith in the procedure. A full array of motions attacking the existence and applicability of the Florida obscenity statute have been filed and more are on the way. In the latest development, in October 2007, the Santa Rosa County Judge has ruled that the jury will be instructed to apply the community standards of four Florida counties, including Escambia County to determining whether the elements of obscenity are proved by the State under the statute and the Miller test. 

The website is no longer operated by the persons charged, but by foreign operators. The case, and a variety of motions based on the statutes and the constitution, is pending and obviously the defendant is fighting like hell through Larry Walters.

[Update: In the end, all of the defendants took a plea and all of them were sentenced to incarceration.]
 

2. Kansas 

At least four brick and mortar adult operators were indicted for obscenity in September 2007 by a Kansas special grand jury Johnson county, convened as the result of a petition drive organized by moralizer Philip Cosby and his Kansas City chapter of the National Coalition for the Protection of Children and Families (NCPCF). Amazingly, the indictments include Halloween costumes and devices designed to preserve penile rigidity. To illustrate the contemporary cultural attitudes in that state, it should be noted that the Kansas Supreme Court, last year, deposed a sitting judge whose browsing activity included websites featuring naked women, which was detected by an examination of his chamber’s computer browser history. Another grand jury in Wyandotte County is about to roll out.
Spirit Halloween was indicted for the costumes on September 26, but the charges were dismissed on the State’s motion on October 10th, apparently because the prosecutor felt that the State could not meet its burden of proving the costumes obscene. The indictment and immediate dismissal may suggest something about the level of hysteria that NCPCF has created among the people living in Kansas. Priscilla’s was indicted for various sex aids, including the vibrating ring, and possession with intent to sell the sex video “Teen Cum Targets”. Hollywood at home was indicted for promotion of four video titles: “Real Female Masturbation 13” (New Machine), “Anal Machines” (Vamp), “Hellcats 12” (Evil Angel), and “Don’t Kiss Me, I’m Straight”.  (HIS) A writer familiar with the content observed that Hellcats twelve featured solo female urination in panties without accompanying sex, oral, vaginal, anal, and group anal sex. Gringo Loco was indicted for the sale of one. Those two cases are quite fresh and obviously remain pending now. 

3. Max in Tampa 

U.S. v. Little, Tampa, Florida. On May 31, 2007 the federal grand jury for the Central District of Florida handed down an indictment of Max Hardcore.

The indictment includes counts addressed to both delivery of DVD’s and Internet distribution, including one clip, me20europromo.wmv, only 1:47 in duration and other brief segments extracted from the site. The government has not alleged that any whole website operated by Max is an obscene work, but charges clips instead, continuing the pattern established in the Extreme Associates case. The DVD titles named in the indictment are “Max Hardcore Extreme 20 – Euro Edition,” “Pure Max 19 – Euro Edition,” “Max Hardcore Golden Guzzlers 7 – Euro Edition,” “Fists of Fury 4 – Euro Edition” and “Planet Max 16 – Euro Edition. The content is reported to include fisting and hard anal.

Max Hardcore was previously been tried in L.A. County under California state charges for material featuring urination, fisting, and depictions of adults performing as children, leading to a hung jury and a subsequent guilty plea to a non-porn city charge to avoid retrial. On October 5, 2005, his home office was raided by the FBI. Subsequently, the Federal Government filed an action for the civil forfeiture of his house. Authorities also are now also seeking the criminal forfeiture of the sites MaxHardcore.com, PissedOnPornStars.com and CatalinaXXX.com.

Any assessment of this case must address three issues: 1) Why Max? 2) Why Tampa? and 3) Why now, so late in the administration? It is my opinion that Max remains a special case in the eyes of prosecutors because they believe that the depictions in his videos not only cross all known and socially-accepted disgust lines, but because they regularly do so with a cold and sadistic stare aimed at the utter objectification of his performers, perhaps to their psychological injury. The case is brought in Tampa because the government wishes to establish that Max’s kind of content will be taken as obscene even outside especially conservative regions, believing that its offensiveness will be evident even in communities that are generally tolerant to controversial expression. It may hope that success will encourage US Attorneys in other parts of the country to bring cases. It is brought now because the hands at DOJ feel so strongly about Max and his content that they simply will not permit him to slip away due to the passage of time. Max’s content is also featured in the Movies by Mail case, highlighted below. This has been a continual crusade against him and it will continue into the foreseeable future. The case is pending.

[Update: Max was convicted on all counts, represented by Jeff Douglas and Lou Sirkin, though he was able to save his home from forfeiture. He was sentenced to prison where he remains at the time of this update. This was not an Obscenity Task Force case.]

4. Movies by Mail

U.S. v. Harb.  The operators of “Movies by Mail” were federally charged in Salt Lake City, Utah, one of the most conservative places in the nation,  with one count of conducting an obscenity business. The matter charged in the pending case derives from both Max Hardcore (“Pure Max 18” and “Extreme 12”) and Extreme Associates (“Cocktails 5”). According to the complaint, there are explicit depictions of gagging, coughing, the expulsion of fluid from the mouth, crying, forceful face-fucking by grabbing female’s hair, anal intromission of tubes, vaginal intromission of straws, use of straw to suck vaginal fluid contents, autofelching, continuing sexually after a performer’s request to “please stop”, and pig-tailed performers dressed in a pre-adolescent fashion being picked up at a playground and used sexually in these works. The case is pending and in the hands of Paul Cambria.

[Update: In the end, Paul Cambria pled his clients out.]

5. Red Rose 

U.S. v. Fletcher. Federal prosecution brought in Pittsburgh, in 2006 by ASA Buchanan, who also brought the Extreme Associates case. The content was exclusively text, particularly six stories concerning the seduction, torture, rape, of children of very tender ages, including violence and murder on a website operated by the defendant. The stories included "jandj.txt” a text description of the torture and sexual molestation of two-year-old ''Mina'', and the sexual molestation and murder of four-year-old "Cindy." 

On April 26, the defense filed a motion to dismiss and a supporting brief generally challenging the federal obscenity statutes on constitutional grounds, and as applied to text descriptions without graphic illustration. These motions were denied on August 30, 2007. The defense is currently required to file additional motions by November 7, 2007. This is a Larry Walters case. The case is pending.

[Update: In the end, she took a plea to avoid incarceraton.]

 

6. Vomit Brazil 

U.S. v. Croce. Prosecution brought federally in Orlando. The defendant produced content in South America and fulfilled orders from the United States. According to the indictment, his videos and websites included scat, piss, vomit, Bukkake and fisting. Croce was the operator of vomitbrazil.com, among others. He pled guilty on June 8, 2007. He was sentenced in August 29th, 2007 to 3 years supervised release which shall be unsupervised if he leaves the United States and does not return, a $500 fine, and $98.000.00 in forfeitures, $40,000.00 of which had been paid by the time of sentencing. Defendant was ordered stay in the country, but shall not overstay his visa, to provide assistance to the government in the investigation or prosecution of another person who may have committed an offense as detailed in open court during the sentencing hearing..

 

7. LA Scat 

Ira Isaacs was indicted in the United States District Court for the Central District of Florida in Los Angles. The February, 2007 indictment relates to video titles described as

"Gang Bang Horse”, 'Pony Sex Game", "Mako's First Time Scat", "Hollywood Scat Amateurs No. 7", "Laurie's Toilet Show" and "Bae 20". The tapes were apparently promoted at the following sites, whose domains the government seeks to forfeit criminally: www.scatmovies.com, www.scatcinemax.com, and www.stolencarfilms.com. 

In late October, Isaac’s counsel obtained a stipulated order continuing trial proceedings, providing that counsel shall confer in February 2008 regarding a trial date. This case is pending.

[Update 6.15.11: The case is still going on, with a fresh batch of new (2011) indictments and news that the government has identified eight forensic experts that may testify in the expected 2012 trial. Isaacs is represented by Roger Diamond.]

 

8.J & M 

U.S. v. Five Star Video and JM Productions. This federal prosecution in Phoenix arose from the operation of an allegedly -obscenity business and delivery of four DVD videos, first from producer to retailer and then from retailer to a Postal Inspector in Northern Virginia, “Gag Factor 15”, “Gag Factor 18”, “American Bukkake 13”, and “Filthy Things 6”. One report suggests that a parody/satire of throat gagging torture in Abu Ghraib Prison was depicted.

 The case went to trial during October 2007. At trial, the individual defendants were dismissed by the judge because the government was unable to lay the foundation for the introduction of documents as business records necessary to establish their knowledge concerning the allegedly-obscene material. The obscenity case then went to the jury with respect to certain corporate defendants. Five Star Video LC and Five Star Video Outlet LC were convicted after five hours of deliberation with respect only to Gag Factor 18, and acquitted with respect to Filthy Things 6 and American Bukakke 13. Gag Factor 18 was described by someone familiar with its content as consisting of repeated scenes depicting female performers engaged in oral sex on male performers until they gagged and in some cases vomited, the copiousdisplay of facial saliva and semen, and accompanying harsh language towards the female performers.

 

9.McDonald Reversal in 5th Cir. 

U.S. v. Gartman and McDowell, Dallas. March 14, 2006. In an earlier case, U.S. v. Ragsdale, a former Dallas police officer and his wife were convicted by a jury on October 22, 2003, of operating an Internet Web site through which they distributed obscene videos “depicting rape scenes.” The investigation, according to the report, “into other potential targets, continues.” The conviction was affirmed by the Fifth Circuit in a reported decision. The Fifth Circuit stated that the material was advertised as the rape of a real woman and that it depicted the use of chains, sodomy with a baseball bat, the pursuit and rape of a hitch hiker while she is bound to a tree, and rape at knifepoint. 

The Ragsdale investigation led law enforcement to Ragsdale’s partner and his prosecution and conviction for distributing obscenity. An acquittal was obtained concerning a work featuring urination and defecation, but defendants were convicted in connection with a work that depicted the piercing of nipples by needles billed as sexual torture without accompanying sexually explicit acts. McDowell was convicted only of aiding and abetting the criminal distribution of obscene materials through the United States Mails (“Torture Video 23”) and was sentenced to 30 months imprisonment. He was acquitted of conspiracy to violate the obscenity statutes, using an interactive computer system to distribute obscenity, and one count of aiding and abetting. This conviction was reversed August 24 by the Fifth Circuit because there was no evidence that the defendant knew the US Mails would be used by his partners and associates and no reasonable inference of that knowledge arose from the evidence. 

Fairly technical issues of proof have emerged to decisively affect innocence or guilt this year not only for Mr. McDowell, but for a series of defendants in the J & M case, mentioned above. The lesson here is that the First Amendment and Constitutional Law may be the heart of obscenity defense, but the everyday general principles of law, including the rules of evidence, always remain immeasurably valuable to exploitation by defendants and their counsel whenever the government screws up and runs off half-cocked.
 

10. Le Video Store 

Louisiana v. Le Video Store. This pending case is defended by my office in St. Martinville, Louisiana. At the core of the material charged, there is Double Penetration, interracial sex, female urination on a concrete floor, and very gritty amateur swinger interracial orgy material with individuals who would not be considered attractive in mainstream pornography. Motions addressed to all of the constitutional issues by which obscenity statutes can be challenged were raised. The trial court denied the defense standing to argue the position of webmasters and Internet distributors. This holding was reversed by the Louisiana Court of Appeal, and the matter is now set again for hearing on those issues in December. 

[Update: In the end, there was a plea to a lesser non-obscenity offense.}

 

11. Chris Wilson Update. 

Florida v. Chris Wilson. This was a 2006 state obscenity prosecution of webmaster carrying user-submitted content in the context of an anti-Iraq War website, probably primarily precipitated by its political orientation. Wilson was represented by Larry Walters.After initial charges were brought and his release on bail, the webmaster continued operations in an adjoining county and was re-arrested for violation of bail on that ground, a hearing was held, and he was incarcerated. Ultimately, the webmaster gave up operations. The content included nailing a breast to a picnic table, fake snuff, blood, urination, and depiction of a female hanging herself, urinating, followed by a close shot of her face, apparently dead. In the end, Chris Wilson pled guilty to five obscenity misdemeanor charges, got a $500 fine and agreed not to work in the adult industry for five years.  He was also ordered to transfer his domain, nowthatsfuckedup.com to the Sheriff. According to the local newspaper, The Ledger, at the time of sentencing in Spring, 2006, “Polk County Sheriff Grady Judd said that after his office takes over the site, when anyone logs on, a posted message will inform them that the owner of the Web site was criminally prosecuted and the Web site is now in the possession of the sheriff's office.”. Well, not exactly. Nowthatsfuckedup.com now resolves to an under-construction page advertising Naked Soldiers, Nude Army Girls, Sex Toy Parties, Erotica Video, Lesbian Dating Service, and the like. Glad to see that the Sheriff got what he wanted, and what he wanted didn’t involve porn at all, but the liquidation of an anti-war website..

 

12. S & M Svengali in NY

U.S. v. Marcus, NYC March 5, 2007. “A man whom the New York tabloids called the  ‘S&M Svengali’ was convicted of sexually abusing a woman he photographed for his BDSM Web site, but acquitted of obscenity in regard to the site’s contents. The jury found Glenn Marcus, 53, guilty of sex trafficking and forced labor after deliberating for seven days. He was acquitted of obscenity.

13. Kilbride

U.S. v. Kilbride, District of Arizona, June 25, 2007. This case arose out of a porn spam operation and included prosecutions under CAN-SPAM, Money Laundering, Section 2257, and four counts of distribution of adult obscenity. The federal jury in Phoenix convicted on all obscenity counts. It is not clear what the email images depicted, but one report suggested images of fisting.

[Update: The defendants were convicted by a jury. On appeal, the Ninth Circuit found error at trial concerning the instructions, but concluded that it was not plain error, affirmed the convictions, and remanded on a technical matter. The defendants went to prison. The Ninth Circuit decision and some commentary is found in our Cases section.]

14. Extreme Associates 

U.S. v. Zicari (a/k/a Rob Black) and Janet Louise Romano (a/k/a Lizzy Borden) and Extreme Associates, a corporation. All three defendants were indicted on 10 counts of violating federal obscenity laws. The investigation began “after a special report aired on PBS’ Frontline, on February 7, 2002, entitled ‘American Porn.’ … in which Rob Black reportedly was filmed consensually beating a female and inviting the Attorney General to get him.  Extreme Associates is a significant producer and distributor of hard pornography, including video tapes depicting the rape of women.” Reportedly, the material also included depictions of adult performers in the role of sexualized children. 

Judge Lancaster  previously dismissed the case on constitutional grounds but was reversed by the US Court of Appeals. The US Supreme Court denied review, and so the matter is back in front of Judge Lancaster. 

On February 1, 2007, the Defense filed its second Motion to dismiss which dealt with other constitutional issues related to the obscenity concept of a “work as a whole” and contemporary community standards. Though, on July 31, 2007 Judge Lancaster denied the motion to dismiss, he agreed to treat it as a motion in limine that should provide direction as to what the government must prove at trial in order to survive a motion for an acquittal. Case pending.

[Update: The Supreme Court denied certiorari from the adverse Third Circuit opinion. In the end, the defendants pled guilty.]

15. Virginia:  After Hours Video

After Hours Video and its owner Rick E. Krial, which recently opened as the first adult business in Staunton, Virgina was indicted on 16 felony and misdemeanor charges related to selling obscene movies by the grand jury on November 1, 2007.

The titles include: "Sugar Britches", "City Girls-Exxxtreme Gang Bangs", "The Video Adventures of Peeping Tom", "Tag Teamed 3 -The Art of Double Penetration", "Teen Angel -The Search for Snatch", "Teens Cumming of Age#4", "Erotica", "Teanna Kia is the Bitch", "5 People You Meet in Porn", "Big Loves - Thiclc for Diclc", "A Group Thing #I", "Hog Farm".
 

This prosecution was commenced shortly after the operator opened his store against protests and community agitation against its establishment. Florida is not the only state displaying evidence of prosecution gamesmanship: The indictment discloses that material was purchased on three different dates – so that the subsequent purchases might be charged as a second or subsequent offense – and thereby become punishable as felonies.

 This case is in the hands of Paul Cambria. It remains pending.

[Update: This went to the jury with Paul Cambria closing. The Obscenity Task Force from DC attended trial to give the local prosecutors a hand. The defendants were convicted of several obscenity counts, acquitted of several, and in the end. at least one of the stores closed as part of a post-trial deal,  which had been the prosecutor's object from the start. One juror was quoted as saying that group sex violated the community standards of Northern Virgina.]

 

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Observations About the State of Obscenity Prosecutions

 

The cases highlighted in this article speak for themselves – and about where obscenity prosecution now stands - with eloquence.  

By no means have all of the charged materials been deemed obscene by juries. But it has happened twice this year, in the J & M case and United States v. Kilbride, both in Phoenix, Arizona, a place seldom, if ever, listed among the most Bible-thumping American jurisdictions most hostile to porn. Fisting and extremely aggressive facial assaults with demeaning language were more than these juries could accept. For what it’s worth, at least one member of the J & M jury stated afterwards that the jury might have acquitted had they known of the availability of similar material in the Phoenix area. Maybe. But this judge did not permit the introduction of comparable material, holding that mere availability does not establish acceptance of the material. No one can or should assume that any member of any jury will be a customer of this industry nor that he or she will be fully aware of the range of adult materials produced. Therefore, when assessing content for potential risk, the question that always should be asked is how the material will play to people who don’t watch porn. The Cambria List still offers much value in wise content selection.  

It matters who you are. Especially if you are Max. Or if you have dared the Attorney General to come get you. As in everything else, size counts. Sizable defendants attract special attention. Obnoxious behavior invites prosecution, too.  

The most extreme kinds of content – torture, rape, scat, and urine - seem to invite prosecution everywhere. Harsh and insulting language and degrading treatment of performers, whether on camera or off, seem also to invite prosecution.  

If there is a hysteria or personal animus stimulating the prosecution, as in Kansas and Virginia, even run of the mill content can and will be indicted and charged in 2007.  

Nasty, ugly, and vindictive prosecutorial games are sometimes played by prosecutors and enforcement agents on the state level in Florida and Virginia, and it’s my guess that it depends on the legal culture of the jurisdiction to assess what’s likely to transpire. Some places are just nastier than others.  

In general, until the United States Supreme Court takes another look at obscenity (something that not all of us are necessarily hoping for), it is unlikely that the arguments asserting that the obscenity statutes are broadly unconstitutional when applied to willing adult customers, based on free speech and privacy principles, will prevail anywhere. As this writer has observed many times, the battle against repression will be won in jury trials, one case at a time, until the overpowering number of acquittals shall convince the prosecutors that the obscenity statutes no longer have teeth.

 

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Copyright 2007-2011 J. D. Obenberger. All rights reserved.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420. His e-mail address is obiwan@xxxlaw.net. 

J. D. Obenberger and Associates are available for consultation, representation, and defense of adult-oriented businesses.