Adult DVD Empire to Plead to One Obscenity Count
July 23, 2010 Editorial and Commentary, Other obscenity and legal cases No Comments
Originally posted at AVN.com on July 23, 2010 by Mark Kernes
According to documents filed yesterday in U.S. District Court for the Western District of Pennsylvania, Adult DVD Empire, under its corporate name, Right Ascension, Inc., has been charged with “Mailing Obscene Matters,” based on an FBI postal sting carried out “on or about May 29, 2007″—and will plead guilty to that count within the next few days.
According to informed sources, Right Ascension was made aware of its possible indictment more than a year ago, when FBI agents raided the company’s warehouses in Warrendale and likely seized copies of the DVDs charged in this case: A Bounty of Pain, Shattering Krystal (both from Dan Hawke Productions), Extreme Tit Torture 18 and Pussy Torture 8 (both from Galaxy Entertainment). While no information on the raid was made available at the time, the course of the case suggests that there have been ongoing talks between the company and the U.S. Department of Justice (DOJ), possibly represented by Robert S. Cessar, Acting U.S. Attorney for the Western District since the resignation of Mary Beth Buchanan. The case itself would have been begun during Buchanan’s tenure.
Uncharacteristically, the pending charges come in the form of an “Information,” a method of charging an individual or company with a crime without the need for an indictment, and indeed, one of the documents filed with the court is a “Waiver of an Indictment,” signed by the company’s attorney, Gary B. Zimmerman, which reads in part, “I understand that I have been accused of one or more offenses punishable by imprisonment for more than one year. I was advised in open court of my rights and the nature of the proposed charges against me. After receiving this advice, I waive my right to prosecution by indictment and consent to prosecution by information.”
Normally, a defendant in an obscenity case would want an indictment, since that would require a prosecutor to convince a grand jury that there was probable cause to believe that a felony had been committed, so the waiver suggested that a plea arrangement is in the works.
Moreover, the Information indicates charges against only the company; no individual officers or employees have been named—again, something that was likely worked out beforehand.
Finally, the charge is simply “Mailing obscene or crime-inciting matter” (18 U.S.C. §1461) rather than the more serious §1462—”Importation or transportation of obscene matters”—or §1466—”Engaging in the business of selling or transferring obscene matter” (the same charges that were filed against John Stagliano). A §1461 charge, at least according to the portion of the Information Memorandum setting forth the penalties associated with the offense, carries no jail time (which, of course, it wouldn’t since only a corporation has been charged) but includes a term of probation of up to five years, and a fine of up to $500,000. Again, all of this suggests a plea deal—and indeed, according to information received from First Amendment attorneys Lawrence G. Walters and Clyde DeWitt, such a deal has already been negotiated.
AVN has learned that the corporation will plead guilty to the single charge, pay a $75,000 fine, and be placed on three years probation—which means that if Right Ascension is charged with another obscenity offense within that three year period, it will be considered to have violated its probation, and would be liable for the full penalties associated with the offense.
AVN has also learned from a bondage movie producer/distributor who wishes to remain anonymous, that within the past six months, Adult DVD Empire has sent back its entire stock of bondage and various other fetish tapes to their manufacturers, possibly in anticipation of the plea deal.
