U.S. District Judge J. Thomas Greene is considering reducing the sentence of a convicted pornographer because the federal government refuses to allow another man accused of similar crimes to face a possible prison sentence.
On Sept. 14, 1988, Greene sentenced LeJay Winkler of Yorba Linda, Calif., to 18 months in prison and fined him $50,000, on his guilty plea to two counts involving pornography and the mails.Immediately after the sentencing, then-U.S. Attorney Brent D. Ward praised the term and said he expects "more, and more severe" sentences in other cases.
But then the Justice Department decided it would not prosecute Avram C. Freedberg of Stamford, Conn., on 17 felony counts in Utah.
A mail pornography indictment was returned by a federal grand jury against Freedberg and his company, Consumers Marketing Group. Under a negotiated plea agreement, Freedberg dropped a civil suit that had hung up prosecution of several pornography cases, and Consumers would plead guilty to one count in each of three states where it is charged.
Consumers would agree to pay a fine no greater than $600,000, total, among the three states. Freedberg personally would face no charges.
"This certainly doesn't seem like even-handed justice," Greene said.
Earlier he rejected the plea bargain, but then prosecutors said they would drop the case themselves and implement the agreement.
On Wednesday afternoon, Greene had lawyers for all parties before him: Freedberg, Consumers, Winkler and the U.S. attorney's office. The session was supposedly to set a trial date for Freedberg and to hear arguments by Winkler's lawyer for a reduction of sentence.
Greene asked Freedberg's lawyer, Elkon Abramowitz, whether he wants a trial date, under the Speedy Trial Act, "because if you do want that you've got it."
Abramowitz said he believes the U.S. attorney's office doesn't want to prosecute, and "at this point the defendant is entitled to dismissal under the Speedy Trial Act." The act requires a trial to begin within 70 days or the case is dismissed.
"I want the case set for trial so it can be dismissed within the 70-day period," he said.
"The court finds that it would be a useless act to set this case for a trial under the present state of the rec-ord," Greene said. But he ordered that the time provisions of the Speedy Trial Act don't apply in the matter.
He directed the prosecutors to report to him the fine imposed when Consumers is sentenced elsewhere.
Robert Moest, Los Angeles, representing Winkler, said allowing his company to plead guilty and pay a fine "was not an opportunity Mr. Winkler was offered . . . He's been hit hard in this case."
Unless Greene reduces the sentence, Winkler will be in prison at least until October, he told the Deseret News later.
Assistant U.S. Attorney Richard Lambert said both cases were part of a national effort to stamp out mail-order pornography. Most of these cases have not been settled, and Lambert said prison is a possibility in some.
In cases pending in Utah before U.S. District Judge David Sam and in Tennessee, "We expect . . . the government will urge lengthy, lengthy prison sentences," Lambert said.
Greene grumbled that Congress has imposed strict sentencing guidelines on the federal judges. "I wonder if they ought to impose similar guidelines on the United States attorneys offices," he said.
Lambert said the office is subject to plea bargaining guidelines.
Greene took Winkler's reduction request under advisement.