United States v. Goldman, CR-08-98-BLG-RFC (D.Mont., March 30, 2009)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION

 

UNITED STATES OF AMERICA,                 )                                                             Cause No. CR-08-98-BLG-RFC

 Plaintiff,                                      

v.                                                               )            ORDER 

BARRY GOLDMAN,                                     

Defendant.                                    )

Currently pending before the Court is Defendant’s Motion for Change of Venue. The government opposes Defendant’s motion. The matter is fully briefed and the Court is prepared to rule.

BACKGROUND

Defendant is charged by Indictment with three counts of Mailing Obscene Matter in violation of 18 U.S.C. § 1461. The Indictment alleges that the Defendant d/b/a ‘Torture Portal’, ‘Masters of Pain’, and ‘Bacchus Studio’, sent three DVDs through the United States mail, to a location in Billings, Montana.

The Indictment stems from an investigation by FBI Agent Angela McCravy from Falls Church, Virginia. Agent McCravy met Defendant in January 2006 which she was working in an undercover capacity at the Adult Entertainment Expo, a pornography convention, in Las Vegas, Nevada. Defendant provided Agent McCravy his business card and a flyer and told her she could contact him if she was interested in purchasing movies. On July 14, 2006, Agent McCravy placed a monitored phone call to Defendant in Manhattan, New York, and requested information on how to order videos. Defendant returned the call and provided McCravy the ordering, mailing and payment instructions. On July 27, 2006, McCravy ordered six videos: Punishment of Crista; Porn Store Girl; Bondage Model #1; Bondage Model #2; Breaking of Crista; and Defiant Crista.

On July 31, 2006, FBI Agent Ndubisi Nwachuku picked up the six DVDs at a post office box in Northern Virginia. He delivered the DVDs to McCravy that day. These DVDs were not charged in the Indictment.

On August 30, 2007, FBI Agent Daniel Bradley from Falls Church, Virginia contacted Defendant via e-mail regarding the cost of certain videos. Agent Bradley received a reply e-mail with instructions on the preferred method of payment and how to order the videos. Agent Bradley purchased a money order from a post office in Chantilly, Virginia and mailed it to “Barry, 38 Park Street, Jersey City, New Jersey, 07304.” Agent Bradley requested that the videos be sent to “Dan Mason, PO Box 1631, Emigrant, Montana 59027.” Agent Bradley ordered three videos: Defiant Crista Submits; Torture of a Porn Store Girl; and Pregnant and Willing.

On March 31, 2008, FBI Agent Daniel Bradley from Manassas, Virginia ordered three DVDs from Goldman. Agent Bradley requested the same DVDs as he did in August 2007, but he requested they be sent to an undercover address in the vicinity of Billings, Montana.

On April 7, 2008, FBI Agent Dan Vierthaler from Billings, Montana checked the undercover postal box and discovered that there was a package from Jersey City, New Jersey in the box. The package was addressed to “Dan Wright, PO Box 152, Billings, MT 59103 ” and had a return address of “B. Goldman, 30 Park St., Jersey City, NJ 07304.” The package contained the three DVDs that Agent Bradley had ordered.

On July 18, 2008, FBI Agent Thomas Kapp from Manassas, Virginia reviewed the following videos: Defiant Crista Submits; Torture of a Porn Store Girl; and Pregnant and Willing; and determined that they contained allegedly obscene material.

On August 21, 2008, a Montana Grand Jury returned an Indictment against Defendant for the March 31, 2008 order. Defendant made his Initial Appearance in  Montana on September 16, 2008. Defendant was found to be indigent and was appointed counsel. Defendant was released back to New Jersey and is currently residing in New Jersey. 

Defendant requests that venue be transferred to New Jersey based on Federal Rules of Criminal Procedure 18 and 21(b).

 

ANALYSIS
Rule 18

 

Rule 18, F.R.Crim.P. governs the place of prosecution and trial Federal Court and states:

 
Unless a statute or these rules permit otherwise, the government must prosecute an offense in a district where the offense was committed. The court must set the place of trial within the district with due regard for the convenience of the defendant and  the witnesses, and the prompt administration of justice.

 The purpose of Rule 18 is to enact the “venue or vicinage provisions of the Constitution,” found in Article III, Section 2, clause 3 which places venue “in the States where the said Crimes shall have been committed.” “The Constitution, which protects venue rights in Article III, [section] 2, and the Sixth Amendment, states that a defendant must be tried in both the state and the district where the crime was committed.” United States v. Angotti, 105 F.3d 539, 541 (9th Cir. 1997).

Title 18 U.S.C. § 3237 states:

 

(a) Except as otherwise expressly provided by enactment of Congress, any offense against the United States begun in one district and completed in another, or committed in more than one district, may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed.

 

Any offense involving the use of the mails, transportation in interstate or foreign commerce, or the importation of an object or person into the United States is a continuing offense and, except as otherwise expressly provided by enactment of Congress, may be inquired of and prosecuted in any district from, through, or into which such commerce, mail matter, or imported object or person moves.

 
 
Section 3237 allows the prosecution in any district in which such offense was begun, continued or completed, as well as the district where the matters moved through. 

Defendant places a great deal of emphasis on an argument that the Ninth Circuit has adopted the “key verb” test for determining whether venue took place in multiple locations. “In order to determine for venue purposes where a crime occurred ‘we examine the key verbs in the statute defining the criminal offense to find the scope of the relevant conduct.’” United States v. Corona, 34 F.3d 876, 879 (9th Cir. 1993).

    However, Defendant’s reliance on Corona is misplaced. The Corona Court applied the “key verb” test to crimes consisting of single, noncontinuing acts. Id. at 879-80. In Corona, the “verb test” was applied to the distribution of drugs, which is a unitary act. Mailing obscene matters is not a unitary act. The Corona Court stated that, “Crimes which are not unitary, but instead span space and time . . . may be considered continuing offenses under 18 U.S.C. § 3237(a).”

Title 18 U.S.C. § 1461 (mailing obscene or crime inciting matter) is a continuing crime, as the statute provides that a person is guilty of violating this section by knowingly using the mail to deliver obscene material. The act of mailing begins in one place and ends in another. The issue of whether federal obscenity crimes constitute a continuing offense was specifically addressed in United States v. Bagnell, 679 F.2d 826 (11th Cir. 1982). In Bagnell, the Defendant was charged with violating 18 U.S.C. § 1462 (use of common carrier for the interstate transportation of obscene material) and 18 U.S.C. § 1465 (interstate transportation of obscene materials). The Court of Appeals for the Eleventh Circuit held that “there is no constitutional impediment to the government’s power to prosecute pornography deals in any district into which the material is sent.” Bagnell, 679 F.2d at 830.

Defendant also relies on United States v. Rowe, 414 F.3d 271 (2nd Cir. 2005). The Rowe case involved a defendant who advertised child pornography in a chat room via the Internet from his home computer in Kentucky to a law enforcement agent’s computer in New York. Once indicted in New York, Rowe argued that venue was improper in New York and that the case should be moved to his home state of Kentucky. The district court rejected that argument, citing Section 3237(a), and concluding that the crime occurred in any district in which the advertisement occurred. The Second Circuit considered this matter on appeal and noted that the question of what a proper venue is for a Section 2251(c) prosecution was one of first impression, not only in the Second Circuit, but apparently in any circuit. Rowe, at 277.

    The Second Circuit in Rowe agreed that the advertisement offense was a continuing offense under Section 3237(a), and venue was proper in New York, where the advertisement was received. The court also cited to United States v. Thomas, 74 F.3d 701 (6th Cir. 1996), where the crime of distribution of obscene material via the Internet was found properly venued in any district into which the material was sent. Id. at 709. The Rowe Court agreed with the Thomas Court and noted that Section 3237(a)’s language was broad and that the advertisement via Internet regarding child pornography “can readily be described as an offense involving transportation in interstate commerce.” Rowe, at 279. The appellate court affirmed the district court’s facts supporting “substantial contacts,” a requirement under Second Circuit law for venue.

Rule 21

Rule 21(b) Fed.R.Crim.P. provides the court with authority to transfer a proceeding, or certain counts of a proceeding, upon the defendant’s motion, to another district “for the convenience of the parties and witnesses and in the interests of justice.” According to Federal Practice and Procedure, “Rule 21(b) has always been potentially useful, as a check against the prosecution’s power to choose an inconvenient forum in cases where several districts would be proper;” moreover, Rule 21(b) “implements the policy that venue should be chosen to minimize the inconvenience to the defense.” Charles A. Wright, Nancy J. King, Susan R. Klein, & Peter J. Henning , Federal Practice & Procedure vol. 2 §§ 341, 343 (3d ed., West 2000). “Rule 21(b) gives the court ample power in every case to provide for trial in the most convenient forum if the defendant makes such a request.” Federal Practice & Procedure vol. 2 § 343. The decision to transfer venue pursuant to Rule 21(b), however, lies in the sound discretion of the trial court and is reviewed for abuse of discretion. United States v. Polizzi, 500 F.2d 856, 899 (9th Cir. 1974).

    The Supreme Court has enumerated factors that courts should consider in determining whether to exercise their Rule 21(b) discretion: (1) the residence of the defendant; (2) the location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records likely to be involved; (5) disruption of defendant's business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibility of place of trial; (9) docket condition of each district or division involved; and (10) any other special elements which might affect the transfer. See Platt v. Minnesota Min. & Mfg. Co., 376 U.S. 240, 243–44 (1964).

 Before examining each of the Rule 21(b) factors, the government discusses the test for determining whether or not materials are obscene, as set forth by the Supreme Court in Miller v. California, 413 U.S. 15, 24, (1973):

 

The basic guidelines for the trier of fact must be: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest… (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

 

The Hamling Court further addressed this and stated:

 

A juror is entitled to draw on his own knowledge of the views of the average person in the community or vicinage from which he comes for making the required determination, just as he is  entitled to draw on his knowledge of the propensities of a ‘reasonable’ person in other areas of the law. Citations omitted. 
Hamling, 418 U.S. 87 at 104-05, 94 S.Ct. 2887 at 2900-901 . 

The government relies on United States v. Mohney, 476 F.Supp. 421 (D.Haw. 1979) to support its argument that the proper venue is the community of receipt, but this Court is not bound by the decision of another district court. Additionally, the Ninth Circuit has not specifically ruled that venue is only proper in the community of receipt. Therefore, this Court must turn to Rule 21(b) and consider “the convenience of the parties and witnesses” and “the interests of justice.”
When looking at Rule 21(b), the first factor for the Court’s consideration is the residence of Defendant. Defendant resides in Jersey City, New Jersey, which is over 2000 miles from Billings. Defendant has no connection to Montana. He does not work here, he has never lived here and has only been here once, which was for his arraignment in this matter.
     The second factor for the Court’s consideration is the location of possible witnesses. Most of the law enforcement officers involved in this case are from Virginia. Defendant’s witnesses will be entirely from New Jersey, including himself and the actors in the films. The only witness who is not residing in New Jersey or Virginia is FBI Agent Dan Vierthaler, who resides in Billings.

    The third consideration is the location of events likely to be at issue. Almost all of the relevant events occurred in New Jersey. While the subject matter of the case is whether or not the materials sent through the mail are obscene and that is not location specific, it should be noted that the films were made in New York City, the actors all reside in New Jersey or New York, the tapes were sold via the internet based on a computer server in New Jersey. Additionally, the DVDs were stored in New Jersey and mailed from New Jersey. The entire FBI investigation was conducted from Virginia. The only event tied to Montana in this case is that there was a post office box rented by the FBI where the DVDs were shipped.

The fourth factor for the Court’s consideration is the location of documents and records likely to be used. This case involves three DVDs which have been provided to defense counsel in Billings. These DVDs all originated in Virginia, New York City or New Jersey. The only document located in Montana was the report by Agent Vierthaler from when he picked up the DVDs from the post office box and sent them to Virginia to be examined as part of the investigation. Most of the documents are in possession of the FBI in Virginia.

The fifth consideration is the disruption of Defendant’s business. Defendant is permanently disabled due to a back injury and receives social security benefits. He is not employed. This factor favors neither the government nor Defendant.

The sixth consideration is the expense to the parties. Defendant is indigent. The travel costs for his defense will be paid by taxpayers. If all of the witnesses and evidence are brought to Montana, the costs will be substantial. It is clearly more cost effective to hold trial in New Jersey, in order to minimize travel.

The seventh factor is the location of counsel. The government’s lawyers are located in Montana and Washington, D.C. Defense counsel also resides in Montana. Defendant’s proximity to his counsel is far from ideal. Defense counsel faces a burden trying to coordinate a meeting with Defendant, particularly because Defendant is prohibited from utilizing email or internet. According to defense counsel, he cannot meet with Defendant in person until immediately prior to trial because of the expense of travel. This severely hampers trial preparation. By transferring venue to New Jersey, Defendant would be assigned a Federal Defender in New Jersey, which would allow Defendant to meet face to face with his counsel.

Additionally, because one of the government’s lawyers lives in Washington, D.C., travel to New Jersey would certainly be easier and less expensive for said counsel

The eighth consideration is the relative accessability of the place of trial. Both New Jersey and Montana have easily accessible courts in Newark and Billings. However, the New Jersey court is more accessible for witnesses.

    The ninth consideration is the docket condition of each district or division involved. Both districts undoubtedly have a busy docket, but a case such as this is not likely to place an extreme burden on either location. Both places have adequate resources to pursue this matter, and this factor is neutral.

The tenth and final element to consider is any other special elements which might affect the transfer. As expressed in United States v. Bitner, Cause No. CR­07-143-BLG-RFC, doc. # 24, this Court is concerned with taking up Montana Court time with out-of-state defendants, who could potentially be prosecuted elsewhere. Defendant has never had any contact with Montana.

CONCLUSION

Based on these factors, Defendant’s Motion for Change of Venue [doc. #14] is GRANTED. The Court concludes that at this stage of the proceeding, it is in the interests of justice to transfer this case to New Jersey as this venue will minimize the inconvenience to the defense.

Dated this 30th day of March, 2009.

/s/ Richard F. Cebull

 

 

RICHARD F. CEBULL
U.S. DISTRICT COURT JUDGE


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