More Fallout From U.S. Attorney Dismissals, DOJ Oversaw Sale of Obscene Materials

Michael Hayes
WASHINGTON — Reasons surrounding the dismissal of eight U.S. attorneys last year may still remain unclear as the House Judiciary Committee continues to investigate, but court documents reveal that one of the ousted prosecutors, Arizona U.S Attorney Paul Charlton, may have been put on the chopping block because of the JM Productions obscenity trial.

In an ironic twist of fate, the U.S. government may have supervised the sale of the four adult titles now at issue in the JM Productions obscenity trial, according to court documents.

In an Aug. 31 motion to dismiss the obscenity charges against Christopher Ankeney and Five Star Video, attorney Richard Hertzberg argued that the government had overseen the sale of the videos in question — “Filthy Things 6,” “Gag Factor 15,” “Gag Factor 18” and “American Bukkake 13.”

According to court documents, the government’s involvement in the sale of the indicted JM videos began some years earlier when another Arizona retailer, The Castle Megastore corporation, filed for bankruptcy.

Under the terms of the bankruptcy settlement, the U.S. Trustee’s Office of the Justice Department administered Castle’s business while it attempted to pay off its creditors. During that time, the U.S. government appointed Vern Schweigert and Mark Franks to run the day-to-day operations of the company. Between 2003 and 2006, Castle stores throughout Arizona sold more than 100 copies of the four indicted titles, according to court papers.

In the motion to dismiss, Hertzberg argued that the U.S. government, which oversaw Castle’s business, was estopped — barred — from bringing an obscenity charge against his client, Five Star, because it had in fact approved the sale the indicted materials.

“The court should dismiss this case because the government itself has acquiesced in a community standard that permits sale of the indicted materials,” Hertzberg wrote.

Hertzberg declined to comment to XBIZ on the case or the politics surrounding Charlton’s dismissal, saying only that the former was an ongoing criminal matter.

Free Speech Coalition Board Chairman Jeffrey Douglas told XBIZ the government’s position in the case against JM and Five Star is embarrassing and hypocritical.

“It is bizarre beyond belief that the federal government is engaging in the same behavior that they themselves are indicting others for engaging in on a much smaller scale,” Douglas said.

Less than a month after Herzberg’s motion to dismiss, Brent Ward, who heads Justice’s obscenity task force, emailed Attorney General Alberto Gonzales’ chief of staff, Kyle Sampson, to raise concerns about Charlton and another U.S. attorney, Dan Bogden, with respect to obscenity prosecutions in their districts.

“We have two U.S. attorneys who are unwilling to take good cases we have presented to them,” Ward wrote. “They are Paul Charlton in Phoenix (this is urgent) and Dan Bogden in Las Vegas. In light of the AG's [Attorney General's] comments at the NAC to 'kick butt and take names,’ what do you suggest I do? Do you think at this point that these names should go through channels to reach the AG, or is it enough for me to give the names to you? If you want to act on what I give you, I will be glad to provide a little more context for each of the two situations.”

In Charlton’s case, the emphasis that the matter was urgent suggests that officials in Washington were referring to the only obscenity trial in Arizona — the JM/Five Star litigation.

Ann Harwood, Charlton’s second in command, told reporters that she knew of no other obscenity case in Arizona.

At the time, no case had been filed by Bogden in Nevada.

Whether officials at Justice pressed Charlton to go forward with a case that could have been a potential embarrassment to law enforcement in Arizona, given the federal government’s involvement in the Castle bankruptcy, or whether Charlton balked at such a proposition is unknown. However, Judiciary Committee Chairman Rep. John Conyers Jr., D-Mich., has vowed to find out why eight U.S. attorneys, including Charlton and Bogden, were dismissed.

“We will get to the bottom of this crisis in our Justice Department with or without cooperation,” he said. “The U.S. attorneys are entrusted with tremendous power in our criminal justice system. Using the U.S. attorneys as political pawns undermines their critical work in fighting terrorism and risks subjecting the power of the prosecutor to partisan whims.”

One known element in the Charlton saga is Washington’s schizophrenic characterization of his suitability to hold the office of U.S. attorney. At times he was rated highly by the administration, while at other times his name appeared on memos of U.S. attorneys to be fired.

White House Counsel and former U.S. Supreme Court nominee Harriet Miers, who headed the Bush Administration’s review of the U.S. attorneys to be dismissed, vacillated on Charlton. His name was not on the original March 2, 2005 list of attorneys to be dismissed, nor did Sampson originally include Charlton in a Jan. 1, 2006 memo regarding the same issue. Charlton’s name does appear on a Feb. 10, 2006 memo on the same subject, but an April 14 memo from Sampson does not list Charlton as an attorney to be dismissed.

The case against JM and Five Star remains a pending matter in the U.S. District Court for Arizona. No trial date has been set.

At the same time Conyers released his documents from his investigation to the press, Gonzales announced that Sampson, who orchestrated what Conyers called a purge, had resigned.

While it is not uncommon for U.S. Presidents to replace all U.S. attorneys, doing so midterm is an unusual step.