Porno Case Is Dismissed; L.A. Diversity Cited

In a setback for the federal government’s campaign against major distributors of pornography, a judge Wednesday dismissed racketeering charges against a Woodland Hills video distributor, saying he could not find that the graphic, occasionally violent films he sold violated community standards.

U.S. District Judge David V. Kenyon, granting an acquittal in the only Los Angeles case brought in the Justice Department’s highly publicized crackdown on obscenity, said he could not conclude that films like “Kneel Before Me” and “Beyond DeSade” were “patently offensive” in an area as diverse as Los Angeles.

Need Positive Evidence

“The great majority of people in this town would be incensed by this,” the judge said. “I just do not believe that unless you have positive evidence of what the entire community believes in this area, that any judge could say what goes on in the so-called edge of this area, whether it’s obscene, or (merely) pornographic.”

“I cannot say beyond a reasonable doubt that community standards were violated,” Kenyon said in his oral decision.

The ruling represented the government’s first loss in a series of racketeering prosecutions launched throughout the country in 1987, and both prosecutors and defense lawyers predicted it could affect the way the government presents evidence in obscenity cases in large metropolitan areas like Los Angeles, where community standards are difficult to define.

“In a way, what the court did, which is of nationwide significance, is call into question the Supreme Court’s assumption that you can tell if material is patently offensive just by looking at it,” said defense attorney Stanley Fleishman. “The historic fact as I see it is that in America today, the American people tolerate virtually any sexual material.”

The case against Rubin Gottesman, owner of X-Citement Video Inc. and R. G. Sales Co. in Van Nuys, was filed under federal racketeering laws, which allow prosecutors to seize the assets of pornography distributors and effectively put them out of business. Under the statute, prosecutors had sought to seize Gottesman’s Woodland Hills home, his stock and ownership interests in both companies, his personal and corporate bank accounts, all office furniture and equipment.

The indictment was one of a series returned in a campaign prompted in part by the 1986 report of a Justice Department commission that found a link between some sexually explicit material and violence.

The four films alleged to be obscene in the present case included graphic depictions of group sex, oral sex, beatings and bondage. One included a gang rape scene in a mental hospital. One showed a woman committing suicide after she had been sexually attacked.

The Supreme Court, in its historic 1973 ruling on obscenity, held that only materials that are “patently offensive” when measured against contemporary local community standards and that appeal primarily to “prurient interests” can be adjudged obscene. But defense lawyers in this case argued that in metropolitan areas, it is virtually impossible to determine what may be offensive to the entire community.

“The scant evidence concerning contemporary community standards in the Los Angeles area suggests that there is found on the newsstands in the community a wide range of scenes of explicit sex, singly and in groups, including detailed portrayals of genitalia, sexual intercourse, fellatio, masturbation, bondage and sadism,” the defense argued in its motion to dismiss the charges.

Defense lawyers said the government’s failure to present expert testimony about community standards--electing instead to let the judge decide for himself, as a representative of the community--warranted dismissal, unless the judge could say beyond a reasonable doubt what such standards are.

Prosecutors did present one expert witness who testified that materials such as those cited in the indictment are not readily available on video shelves in Los Angeles, an indication, perhaps, that even purveyors of pornography consider them outside the scope of most films. But Kenyon said that may indicate only that the distributors “would say it’s not worth the risk” of potential prosecution.

Justice Department Sued

Indeed, the Adult Video Assn. has filed suit against the Justice Department in Los Angeles federal court seeking to enjoin racketeering prosecutions against pornographic film distributors. The lawsuit alleges that the prosecutorial campaign violates the First Amendment because it discourages distributors from carrying even soft-core porn for fear of tough racketeering penalties.

Adult film rentals have topped 104 million a year--nearly double the number of rentals two years ago--indicating the growing popularity of such films by mainstream Americans, the association contends.

Kenyon earlier in the trial expressed doubts about his ability to judge community standards without the testimony of experts.

“I think there are things the court could say without doubt that would be beyond what the community would stand for--way beyond,” Kenyon said. “So-called ‘snuff movies,’ where somebody was being killed right before your very eyes in a sexual way--could we all agree with that?”

But Kenyon, a Republican, former Marine captain and longtime jurist, said that the line, after that, becomes more complicated. “You come into a rather mixed bag that L.A. is, what it adds up to is that the line of demarcation may not be as precise, and therefore the judge may have to look further out on the horizon, if you will.”

Drew S. Pitt, a special Justice Department prosecutor, argued that the judge is as qualified as any juror to determine community standards. But after the judge’s ruling on Wednesday, Pitt said the department may re-evaluate its usual practice of allowing the films to speak for themselves. “This may indicate that we may have to present expert witnesses,” he said.

Pitt said Kenyon’s ruling may make the government’s job more difficult in prosecuting big-city obscenity cases. “You know, if we were in a much smaller town, where the population was smaller and not as diverse, it would be easier,” he said.

The fact that the majority of the nation’s pornography distributors are headquartered in Los Angeles also makes obscenity prosecutions more difficult here, Pitt added. “Because of that, I think the people in Los Angeles are more aware of it and may tolerate some of it more than they would if the industry wasn’t here.”

Face Other Charges

Gottesman and his sales manager, Steven Orenstein, 26, of Los Angeles, still face charges of interstate transportation of child pornography because of a series of films they distributed featuring porn queen Traci Lords. Lords was under the age of 18 when most of the films were made, though Gottesman testified Wednesday he had no idea she was a minor.

He testified that she was the biggest star in the business. “My educated guess, and I’m pretty well educated in that area, I know for a fact there are at least 120 films that she made,” Gottesman said. “She was No. 1, and there was no No. 2, she was so far ahead of everyone else. Her movies outsold everyone else 10 to 1.”

Last month, a federal judge in Santa Ana granted prosecutors’ motion to dismiss child pornography charges against three other men who hired Traci Lords to star in an adult film. The dismissal was granted after a federal appeals court ruled that the men could present a defense that they did not know Lords’ true age.

In the present case, Pitt said prosecutors may still be able to forfeit some assets under the child pornography statute, though the amount will depend on what assets they are able to trace to Lords’ films.

If convicted on the two child pornography counts, Gottesman could face up to 20 years in prison. Orenstein pleaded guilty in October and has not yet been sentenced.