By Mark Kernes
10/17/2007
PHOENIX
– One observer described the events taking place in Courtroom 604 of the Sandra
Day O'Connor Federal Courthouse yesterday as "high drama," but that
term barely scratches the surface.
The day began shortly after 8:30 a.m. with reported major
tactical differences between Assistant U.S. Attorney Paul Rood and U.S.
Department of Justice attorney Kenneth Whitted, both of whom have been active
in prosecuting the case against Five Star Video LC, Five star Video Outlet LC
and its employees, Chris Ankeney and Ken Graham, and JM Productions and its
principal Jeff Steward. Voices were reportedly raised, but this reporter was
not in the room to observe that.
Just a few minutes later, however, the government was ready
to offer a deal. Since U.S. District Court Judge Roslyn O. Silver had ruled
last week that the feds could not force Steward to take the witness stand to
authenticate certain business records obtained from JM under subpoena, the
government had a real problem on its hands to prove that JM had indeed shipped
the four DVDs in question to Five Star, which DVDs eventually wound up in the
hands of FBI Special Agent Tod Price in Falls Church, Va.
Therefore, once Judge Silver had convened court for the day,
Rood proposed to offer Five Star a last-minute plea deal: In return for
Ankeney's and Graham's cooperation in authenticating the JM records, the
government would agree to let the corporation plead guilty to counts 1-4 of the
indictment, which charged interstate transportation of obscene materials;
dismiss the charges against Ankeney and Graham personally; accept a $20,000
fine from the corporation and place it on five years' probation, during which
time it would agree to go out of business entirely; and immunize the
corporation against having to face similar obscenity charges in Virginia, where
the allegedly obscene DVDs had been received.
Judge Silver, however, was obviously none too happy. Trial
was supposed to start on Tuesday, a panel of potential jurors had been chosen,
and here the government was attempting to circumvent that process and possibly
force a delay in the proceedings.
H. Louis Sirkin, counsel for JM Productions, was none too
happy about the turn of events either.
"I can't oppose their [the government's] offer,"
Sirkin told the court, "but to go to trial at this time would prejudice my
client."
Sirkin went on to explain that his defense strategy had been
based on the fact that all of the defendants would be tried together, and that
none of them would suddenly be transformed into witnesses for the government,
even for the limited purposes of identifying business records.
"We came this morning prepared for trial in a certain
way," he said. "We've been sandbagged."
Attorney Allan Gelbard, representing Jeff Steward
personally, agreed.
"We haven't had a chance to interview" Ankeney and
Graham, added Jennifer Kinsley, co-counsel for JM – a process she considered to
be crucial for preparing an adequate defense.
Judge Silver inquired why the government was proposing this
plea arrangement so late in the game?
Rood replied that it was because of the government's
continuing problem with authenticating JM's business records – a fact that
would take on crucial significance later that afternoon – and that he had not
received permission from his superiors until that morning to extend the offer
to Five Star.
Rood also noted that neither Ankeney nor Graham had been in
trouble with the law before, and he suggested that accepting a plea from Five
Star would send a message to other adult video retailers and distributors in
the area that they should take another look at the types of videos they were
selling.
Judge Silver was not convinced.
"This is a sad state of affairs for everyone," she
stated. "There will be no pleas taken at this time by this court."
However, Judge Silver did agree to take the plea offer under
advisement and rule on it later ... which created yet another problem for the
JM defense.
"We don't know what direction to go in," Sirkin
stated, adding that the specter of a possible plea agreement hanging over the
proceedings was unfair to both his and Gelbard's clients. "We need to know
... what the evidence will show" in order to prepare a proper defense, he
added.
"I am not inclined to accept plea agreements
whatsoever," Judge Silver said finally, and prepared to begin picking a
jury.
The remainder of the morning and early afternoon were then
spent culling a jury panel of 15 from the 59 potential jurors – 12 jurors who
would eventually decide the case and three alternates, any of whom would serve
if one or more of the panel jurors were unable to fulfill his/her duties. All,
however, would hear the evidence as it was presented.
Even the jury selection was not without its surprises,
though. Judge Silver asked various questions of the panel, such as whether any
of them had relatives in law enforcement, or whether they personally knew any
of the parties involved, or whether any of them had been involved in criminal
or civil legal proceedings themselves. Several identified themselves in
response to some of the queries, but in each case, when the judge asked whether
their previous experiences would affect their ability to decide the case
fairly, each said it would not.
However, when Judge Silver told the potentials that it would
be their job to judge the facts of the case and hers to judge the law and
instruct them on that law and how to apply it, one juror objected.
He was, he said, a libertarian, and it was his understanding
that the jury could be the judges of both the facts and the law of the case.
However, when Judge Silver asked him if he could accept her instruction only to
judge the facts and not the law, he said he could.
The principle to which that potential juror was referring is
known as "jury nullification," a concept that was affirmed by Chief
Justice John Jay in the 1794 case of State
of Georgia v. Brailsford, where the Chief Justice wrote in his opinion,
"It is presumed,
that juries are the best judges of facts; it is, on the other hand, presumed
that courts are the best judges of law. But still both objects are within your
power of decision… you [juries] have a right to take it upon yourselves to
judge of both, and to determine the law as well as the fact in
controversy."
The jury selection proceeded fairly uneventfully, although
several observers took note of the relatively large number who had been
convicted of DUI, and the number who at some time had owned trucks which had
either been stolen or burglarized.
After the luncheon recess, the judge allowed Whitted and Kinsley to
conduct a short voir dire
(questioning) of the potential jurors for their respective sides.
Whitted asked which jurors had not lived in Arizona during
2005 and 2006, the years in which the current controversy had unfolded, and
which jurors did not live within 50 miles of Phoenix. Those questions
undoubtedly went to the issue of "community standards" – one of the
three prongs for the Supreme Court's Miller test for obscenity – and suggested
that the prosecution would maintain that anyone who had lived in Arizona during the years at issue and lived within 50
miles of Phoenix would be aware of the community
values of Phoenix.
Kinsley asked whether any of the potentials had talked to a
friend or family member while filling out their juror questionnaire – a series
of questions which the judge had used to pre-screen potential jurors for
obvious conflicts and problems – and whether any had had conversations about
the subject matter of the trial? Interestingly, one of the panel admitted that
she had discussed the case with a relative who worked "in a porn
distribution business in Cleveland,
Ohio."
Kinsley also asked whether any of the jurors would feel
uncomfortable watching the DVDs at issue – Filthy
Things 6, Gag Factor 15 and 18, and American Bukkake 13, which Kinsley noted would contain scenes of
man/woman sex, fellatio, anal sex, multiple partners and several other sexual
acts. Four jurors said they would be uncomfortable watching the material, but
could do so if the judge required it, while one said she would be unable to
watch the features at all.
Finally, a jury was chosen, consisting of nine women and six
men, and the parties began their opening statements.
"This particular trial is about truth and
standards," Witten
told them. He said the "truth" would be the actions of the
defendants, adding, "The evidence will show ... that the defendants
distributed into your community materials that are obscene [and that] will depict
sexual conduct that is ... vile, perverted and profane."
Whtted also described the
process by which FBI agents surfed the Internet, found Five Star's retail site
and ordered various DVDs to be sent to two "cover" names in the Falls Church, Va.
area. He maintained that JM had shipped those DVDs to Five Star, and that Five
Star had then sent the DVDs to Virginia – DVDs which he claimed contained
depictions of "sexual conduct that we feel violate the obscenity laws of
the United States."
"Five Star sold sexually explicit DVDs to a government
agent; there's no question about that," announced Richard Hertzberg,
attorney for Five Star Video, Five Star Video Outlet and Chris Ankeney.
"The government has to prove that these movies are legally obscene – and
that's where the action is in this case."
Hertzberg added that the government must prove what the
community standards are in Phoenix, and that he
would offer evidence of what those community standards are, including the fact,
he said, that comparable features were being sold even at stores located in Phoenix's Sky
Harbor International
Airport.
Whitted
objected to that statement, and the attorneys met at sidebar with the judge to
discuss the issue, after which Hertzberg quickly completed his opening
statement. Jeffrey Douglas, counsel for Ken Graham, declined to make an
opening, as did Allan Gelbard for Jeff Steward. However, Sirkin made one which
he said would be "short and sweet" – which it was.
"The government must prove that [JM]
Productions transported obscene DVDs into the state," Sirkin stated.
"The government can't prove that." He then took his seat.
At that point, the judge called a recess, and after the
jurors left the room, Whitted
made a surprising statement: The government was moving to dismiss all charges
against JM Productions and Jeff Steward.
The issue was, once again, the authentication of JM's
business records. Witten
had maintained that the mere fact that the government had served a subpoena on
JM, and that the company had allegedly turned over certain "business
records" to the government in response to the subpoena should be
sufficient for the government to claim that those records were in fact official
business records of JM Productions.
Normally, in legal proceedings, any documents introduced
into evidence must be authenticated by someone with personal knowledge of such
documents, who can attest to their truth and accuracy; otherwise, the documents
would be considered "hearsay" and be inadmissible.
One acknowledged exception to the hearsay rule is for
business records, where records kept in the normal course of business can be
introduced in a trial even though the person who prepared such records has not
been called as a witness to say that he/she had prepared them. However, in such
a case, someone must testify that the records at issue were in fact kept in the
normal course of the business that's at issue in the proceedings – and the only
person who could possibly do that in this case would be JM owner Jeff Steward.
However, Steward had steadfastly refused to so testify,
maintaining that for him to be forced to do so would be a violation of his
Fifth Amendment right not to be a witness against himself – and that's where
the government's case against him and JM struck a wall. Earlier, the
prosecution had tried to get around that problem by dropping the charges
against Ankeney and Graham in exchange for their testimony that they had
received copies of the records in question from JM, but the judge had scotched
that tactic. And if Whitted
and Rood couldn't prove that JM had shipped the DVDs at issue to Five Star,
then the government had no case against him ... and therefore had to drop the
charges.
"Un-fucking-believable!" was Steward's reaction to
his new-found freedom, but neither he nor his attorneys were willing to discuss
the development further at that point.
Judge Silver then brought the jury back into the room,
noting that as they could see, there were fewer people at the defense table,
but that they were instructed not to draw any inferences from that fact.
Rood called as his first witness FBI Supervisory Special
Agent Tod Price, who described his actions in searching for sexually explicit
material over the Internet, and ordering nine DVDs from Five Star's website,
four of which ended up being charged in this case. He described how he had
ordered them, by what means they were received – both by UPS and regular mail –
and what happened to them once they were in the FBI's hands.
The remainder of the afternoon was taken up by playing for
the jury the first hour of Exhibit 4A, also known as Filthy Things 6, and at roughly 4:30 p.m., the judge recessed the
trial until 9 a.m. Wednesday morning.
Previous Story 
