The U.S. attorney's office filed a request Friday to dismiss an obscenity indictment against a Connecticut company and its owner - an effort to get around a federal judge's refusal to accept a plea agreement in the case.
The identical agreement would be implemented, but it wouldn't be called a plea arrangement anymore. Instead, after the indictment is dropped, new charges will be filed and guilty pleas entered.The U.S. attorney's office is prepared to appeal if U.S. District Judge J. Thomas Greene refuses to dismiss the indictment. The legal argument is that nobody can force the government to prosecute if it believes that isn't in the interest of justice.
It's also the government's theory that while a judge must approve a plea agreement, he has no authority to deny a motion to dismiss charges.
On Nov. 28, Greene rejected a plea agreement in the mail pornography prosecution of Consumers Marketing Group and its president Avram C. Freedberg, both of Stamford, Conn.
The agreement was negotiated among federal prosecutors in three states, the Justice Department's Obscenity Enforcement Unit and Freedberg.
Consumers Marketing does business as Private Showcase Video, Dirty Dick's Dynamite Discount Den and Expose Theater, according to the indictment returned July 1 by a federal grand jury in Salt Lake City.
In November Greene said the proposed plea agreement made him concerned "whether the integrity of this court's being compromised."
The agreement included a maximum fine of $600,000, although the Utah charges alone against Freedberg and Consumers Marketing Group carried maximum possible penalties of $13.5 million if they were convicted on all counts.
At one point, Greene wondered, "How did $13.5 million get squozen down to 600,000? Tell me."
Under the agreement, in Utah all but one count against Consumers Marketing was to be dismissed, the company would plead guilty in Utah, Delaware and Mississippi, the fine would be paid, Consumers' $100,000 worth of sexually explicit material would be surrendered and the company would go out of business. In exchange, Freedberg himself would not be prosecuted.
Green is now asked to approve the same deal. But it is couched in terms of a straight dismissal, to be followed by filing of one new charge against Consumers Marketing in each of the three states. Then Consumers is supposed to enter the guilty pleas.
This is not a standard plea agreement, says the new motion. It says Consumers "will waive indictment (and) enter a guilty plea to one count of an information (a criminal charge) which will be filed in the United States District Court for the District of Utah . . . separate and distinct from those alleged in the indictment."
Next Consumers will plead guilty to separate one-count felony charges that will be filed in Mississippi and Delaware, it adds. The three U.S. attorneys involved and Freedberg have agreed that the government will recommend a total fine of $600,000.
"Finally, the government's case against the defendants is not without practical problems," admits the motion, which was signed by Assistant U.S. Attorney Richard Lambert.
"As the court is aware from the defendants' motion to dismiss, defendant Freedberg was one of the few nationwide distributors of sexually oriented materials who complied with the law requiring periodic purchase from the U.S. Postal Service of the . . . list containing names of individuals desiring not to receive sexually oriented mailings."
It says Freedberg and Consumers apparently used these lists to delete names from his mailings. Also, in 1983 the Postal Service held some of his materials but then allowed them to be mailed.