DOJ Filed False Declaration In 2257 Litigation

LITIGATION

Pursuant to the Protect Act, the DOJ issued new 2257 regulations addressing adult pornography on the Internet, which became effective in June of 2005.  In response, the U.S. adult industry filed suit in Colorado District court seeking a temporary restraining order, which was converted to a motion for preliminary injunction; Free Speech Coalition, Inc. et al., v Gonzales (05-cv-1126).

The plaintiffs were Free Speech Coalition, Inc. (FSC), the non-profit trade association of the U.S. adult entertainment industry; Lenjo, Inc. (dba as New Beginnings), a wholesaler of adult materials; and David Connors, an adult performer/producer who operates Dave Cummings Productions.  A number of the court documents can be found on FSC’s website.

Discovery in a U.S. federal civil suit falls under Chapter V of the Federal Rules of Civil Procedure, Rules 26-37.  Rule 33 covers Interrogatories, of which the response must be signed under penalty of perjury.

In July, 2005, the government filed a response to the plaintiff’s first set of interrogatories/admissions, including No.5 at pages 5-7:

5. Identify any document, study, report, or other information within Defendant’s possession that any Plaintiff or any of Plaintiffs’ members have been involved with or linked to the creation, dissemination, or distribution of actual child pornography. For the purposes of this interrogatory, assume that Plaintiffs’ membership includes all corporate entities in the United States that produce material depicting adults engaged in actual sexually explicit conduct.

Because the master list of FSC members was sealed, the government limited its response to corporate entities:

Subject to these objections and qualifications, Defendant is unaware of any non-privileged report or study that references the involvement of specific “corporate entities,” defined as specified supra, with child pornography.

And the declaration was made by:

I, Richard A. Hertling, hereby declare that the foregoing responses are true and correct.

This was false.  At the time of the July, 2005 filing, material owned or distributed by the following commercial adult companies had been charged or prosecuted as actual child pornography, including six that fit the definition of “corporate entit[y]”.

Als Scan, Inc.: Incorporated in Maryland and a member of FSC, 37 images from alsscan.com were charged as child porn in 2003.  The 8 females were alleged to be no older than 13 by the state of Massachusetts.

Digital Palette, Inc.: Administers the colorclimax website, and contracts with Color Climax for the digital Internet rights of their inventory, which includes footage and images of the Tove Jensen loop “Teenage Tricks” prosecuted as child porn by the DOJ.

Filmfare Video Labs, Inc.: Incorporated in Delaware, they distributed the “Blue Vanities” tapes, through their website, bluevanities.com, and through the mail.  B.V. tapes #80 and #82 contain footage prosecuted as child porn by the DOJ.

NewPath Inc.: Incorporated in Missouri, they bought and resold others’ video tapes as their own thru their recently closed website, adultvid.com.  These tapes included B.V. tapes #80 and #82, which contain the Tove and Christa footage prosecuted as child porn by the DOJ.

Caballero Control Corp.: Incorporated in California, they produced/distributed the Swedish Erotica adult movies, which includes #293, “Patsy Learns To Play”, the U.S. title of Tove Jensen’s “Teenage Tricks”, prosecuted as child porn by the DOJ.

A&B Video: Corporate status unclear of the defunct Florida based company, but they owned/distributed the flashing footage prosecuted as child porn by the DOJ.

GM Video, Inc.: An FSC member, they owned/distributed the A&B Video flashing footage prosecuted as child porn by the DOJ.

Dave Connors Productions: Known as Dave Cummings, and a plaintiff in the FSC v Gonzales case, Connors produced and uploaded to his website images of himself with Melissa Bertsch (Melissa-Ashley), that were charged by the U.S. feds as child porn in 2003.

FALSE DECLARATIONS

Knowingly making a false declaration in a court proceeding is a violation of 18 USC 1623:

(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined under this title or imprisoned not more than five years, or both.

In addition to Hertling, who at the time was Deputy Assistant Attorney General, Office of Legal Policy, seven other DOJ officials contributed to the response (pg.12), including:

Laura Parsky…Criminal Division, Deputy Assistant Attorney General

Andrew Oosterbaan…Criminal Division, Child Exploitation and Obscenity Branch, Director

William Hall…Criminal Division, Child Exploitation and Obscenity Branch, Trial Attorney

At the time of Hertling’s filing, a number of DOJ employees had been informed directly or indirectly that “Blue Vanities” tapes distributed by Filmfare Video Labs, Inc., contained footage prosecuted as child porn, including:

* Assistant Attorney General, Criminal Division

* Assistant Director Criminal Investigative Division–FBI

* Several CEOS attorneys

* At least 3 DOJ attorneys

* At least 4 federal prosecutors

* At least 4 federal agents

QUESTIONS

More questions.  Did the DOJ subject Hertling to a perjury charge by refusing to acknowledge they have charged and prosecuted commercial adult porn as child porn?

Was expert testimony/Tanner Staging used in all those cases, and is that what the DOJ is protecting?

Is that why the U.S. feds are allowing the prosecuted footage of “Teenage Tricks”, “Group Sex”, “L**ita Climax”, and “Nineteen & Lovin It” to be commercially distributed?

If so, then which of the more than 50 public servants who are knowingly allowing said prosecuted footage to be distributed, will be called as a defense witness in the R Kelly child porn trial?

How many will be called to refute the testimony of Dr. Sharon Cooper?  What’s the trewthe?

U.S. Feds Say Female On “Nineteen & Lovin It” Is Underage

NOTE: NSFW=ADULT CONTENT

This is the third female whose prosecuted footage the U.S. feds are allowing to be distributed.

Female accused by U.S. feds of being underage in video footage. Defendant recognizes footage as flashing material from a legitimate adult distributor, A&B Video, and requests redacted copies of footage to assist in identifying the alleged female. Feds initially agree to the discovery request but later renege. The jury convicts. Feds made aware of origin of footage, but fail to follow up. Footage now distributed by GM Video, and advertised for sale, rental, VOD on the Internet, and over the counter in thousands of video stores. Child porn or adult porn, what’s the Trewthe?

THE FOOTAGE

Before trial, defendant’s attorney renews a request for the footage:

…of the first four girls on that tape which does not contain sexually explicit conduct of the alleged underage girl.

The prosecutor responds, identifying the tape as government exhibit 17-B, requesting clarification while describing the footage of the first four females:

…(on the tape you identify, female 1 parades and poses and masturbates in a room having a refrigerator by a dresser; female 2, a blonde in boots, uses a dildo while outside what appears to be a house and on a park bench; female 3, a different blonde wearing an open black blouse, is shown outdoors by patio doors, a hammock and a plant; and female 4, a dark haired possibly-Oriental female, is shown by a parked blue car; both of the latter females are also involved in graphic sexual displays).

In a follow up letter, the prosecutor again requests clarification:

Thus, if the copying you seek is possible, I don’t want to have the wrong four females’ images copied.

Later, after presented with the Blue Vanities exhibits, the prosecutor reneges on the discovery agreement.

During opening remarks, the prosecutor describes the footage for the jury:

…Exhibit 17-B will show a well-developed high-school-aged girl, most of the time she’s naked or just about so, putting on and taking off various combinations of lingerie, a leotard-type top or sheer scarves, while she poses and examines herself in a mirror. At various times she rubs lotion on herself, she rubs her breasts, she puts her hands to her crotch. At times the camera shows an extreme closeup of the vagina or of her nipple on one of her breasts…

Later, the case agent testifies they “determined” this female to be under the age of 18.

In a post conviction petition, the defendant identifies “female 1” as the alleged minor, describes the attempt to secure the footage, and in a footnote explains why it was needed, and why it was refused:

…requested a portion of the first female…and all of the footage of the next four females, including the pregnant flasher, as obscenity was not alleged. As indicated, females 2, 4 and 5 are, or were, part of A&B Video’s Flashing series of tapes. Their record keeper was waiting for the footage to research his files for the identity of the female alleged.

A&B VIDEO

A&B Video, based in Florida, was one of many that jumped into the amateur adult market in the ’80’s. The company appears to have been a distributor that packaged amateur and pro-am content from third parties. A number of well known adult film stars can be found early in their career on A&B videos, including Ona Zee, Ginger Thomas, Samantha York, Britt Morgan and Chessie Moore. Their tapes claim 2257 compliance, with a copyright warning and the record keepers were identified as either H. Samuelson or Anthony Papileo. They also cooperated with law enforcement on undercover operations; U.S. v Moore 916 F.2d 1131 (6th Cir. 1990).

a&b flashing tapesa&b preview tape #800 One of their product lines were Flashing Videos, which, like their other lines, could be viewed on Preview tapes. One of their Flashing Preview tapes, AB #800, contains previews from Flashing tapes # 13-16, 18-21, 23-25, 28, 30 and 33.

a&b flashing 24a&b flashing 24 Female No.2 described above on government exhibit 17-B (blonde in boots) is on FL-24. Screencaps of this preview footage from AB #800 can be found here. (NSFW)

a&b flashing 25a&b flashing 25 Female No.4 described on government exhibit 17-B (dark haired female) is on FL-25. Screencaps of this preview footage from AB #800 can be found here. (NSFW)

a&b flashing 19a&b flashing 19 Female No.5 on government exhibit 17-B, described above in defendant’s footnote (pregnant flasher) is on FL-19. Screencaps of this preview footage from AB #800 can be found here. (NSFW)

The five flashing segments identified on government exhibit 17-B were the copyrighted property of A&B Video. They went out of business several years ago, but at least 4 of the 5 flashing segments on government exhibit 17-B are now distributed by GM Video; including the footage the U.S. feds say is child porn. NOTE: Just so it’s clear, only one of the females was alleged to be underage.  The three females in the above images were not alleged to be minors.

Cover of GM Video Vol.16Female No.3 described above by the feds as;  “a different blonde wearing an open black blouse, is shown outdoors by patio doors, a hammock and a plant”; can be found on GM Video Vol.16, pictured at left.

GM VIDEO

GM Video bills itself as the “pioneers of reality porn” and were profiled in a November, 2001 issue of LA Weekly:

GM Video is the province of George Martin, a 58-year-old entrepreneur, family man and former nuclear Research and Development man, who, in the middle of a career slump shooting wedding videos, stumbled onto the party scene at Arizona’s Lake Martinez and inadvertently pioneered the amateur porn market. He launched GM in 1981, a year before Homegrown Video, the acknowledged market leader. GM currently offers over 200 specialty titles.

In addition to their own productions, they also buy footage from third parties who have properly documented the models. Their tapes and website maintain a 2257 compliance/disclaimer and a copyright warning. They are known for their public nudity tapes, but do have a hardcore product line called Nasty Amateurs (NSFW). Within this line is a series of tapes titled Nasty Amateur 1st Timers. At some point GM Video acquired the A&B Flashing footage described above and released it as part of their Nasty Amateur 1st Timers series, first on video (vol. 16),then on DVD under the title “Nineteen & Lovin It.” (NOTE: Female on cover is not the one alleged)

gm video pagegrab-"Naughty Girls"gm video pagegrab-"Nineteen and Loving It"DVD Coverlionsden

 

 

 

 

 

This DVD contains 4 of the 5 A&B flashing segments described above on government exhibit 17-B, including the footage of “female 1” who the U.S. feds say is underage.

This DVD is advertised for sale or rental on numerous web sites, including Lions Den, (NSFW) a well established adult superstore which offers the U.S. Postal Service as a shipping option. With respect to the females on “Nineteen & Lovin It,” Lions Den states (NSFW) explicitly:

The individuals appearing in this feature are verified to be 18 years of age or older.

(Note: Lions Den no longer advertises the video, but the pagegrab above documents that they did at one time.)

In addition, “Nineteen & Lovin It” is also offered as streaming VOD (video on demand) on numerous sites, with payment through the usual processors and thumbnails of the females.

UPDATE: There’s no reason to believe Martin and GM Video were aware of the above referenced. But apparently as a pre-caution, Martin has pulled the tape(s) from the GM site, and VOD access. But the truth of the matter is evident through the Internet Archive.

It’s clear the footage of “female 1” was part of A&B Video and is now part of GM Video, and that the U.S. feds have gone to great lengths not to investigate the prosecuted commercial footage.

It’s also clear that they don’t believe their own testimony. The question is why. What are they hiding, who are they protecting, and how many are involved? What’s the trewthe?