PHOENIX – Tastes differ. For some, the high point of the second day of the Five Star Video obscenity trial might have been watching Christie Lee get her mouth fucked by two faceless guys in the opening scene of Gag Factor 18, one of the allegedly obscene videos Five Star is accused of selling across state lines.
For others, however, the high point might have been when FBI Special Agent Tod Price admitted on the witness stand, under cross-examination by attorney Richard Hertzberg, that the reason he didn't buy the four charged DVDs directly from JM Productions, but rather used the company that popped up as the third result of a Google search for what Price described as "harder-core adult material," was because his superiors "didn't want to prosecute [an obscenity] case in L.A. County."
Sadly for Chris Ankeney and Ken Graham, the principals of Five Star Video, LC and Five Star Video Outlet, LC, their retail website was that third Google result – and that third result was chosen because the second result – JM itself was at the top of the list – was already under investigation by another FBI agent, so it was unavailable for the FBI sting that resulted in the four charged features being shipped to two phony names at a mail drop in the Falls Church, Va. area.
All of that information, however, came at the very end of the second day of the Five Star trial. The entire morning was spent watching the last hour of Filthy Things 6, another charged video, plus some of the "extras" included on the disk: The interviews with stars Audrey Hollander, Sierra Sinn, Cindy Crawford and Bailey.
In total, the feature and extras were playing simultaneously on 23 screens in Courtroom 604 of the Sandra Day O'Connor Federal Courthouse: One 15-inch screen to the right side of Judge Roslyn O. Silver's elevated seat, one similarly-sized screen in front of her court clerk, one in front of each team of attorneys, one in front of each of the 15 jurors who had been selected the previous day to hear the case, and one 46-inch flat-screen monitor mounted on the north wall of the courtroom for all the spectators to see.
But although the jury had already seen Audrey being fucked, slapped and anally dildoed by Otto Bauer and Rick Masters; seen Sierra Sinn later laughing about the staged "forced" sex with Otto and then screwing him herself; seen Cindy Crawford "kidnapped" by Jenner, then turn the tables and ask him to fuck her ass, laughing while he slapped and spit on her; and seen Dirty Harry doggie-fuck Bailey in the ass while looking at a porn magazine he'd laid across her back, defense attorneys Hertzberg and Jeffrey Douglas seemed unworried, because thankfully, the law requires that all allegedly obscene works must be considered as a whole ... and once the DVD extras began playing, the entire mood in the courtroom seemed to change.
Among other things, the extras showed Audrey and Otto preparing for their scene, setting up the giant plastic dildo that would be shoved up her ass, discussing how the d.p. with Rick would be choreographed, and perhaps most importantly, letting the audience know that she and Otto were married. They showed director Jim Powers relating his conception of the video as a whole, explaining how the Cindy Crawford scene might seem familiar because it was essentially a restaging of a scene from Filthy Things 1 which Powers felt hadn't come off just as he'd planned, so he wanted to try it again. They showed him discussing the impending sex with various performers, giving suggestions as to how it should be staged, and expanding the audience's point of view to show some of what goes on behind the scenes as the sex is being performed for the camera. In all, they put an artistic frame around the entire production ... and if it's art, it's not obscene.
After the final extra was shown, Assistant U.S. Attorney Paul Rood put Price back on the stand, and after a couple of questions from him, it was the defense's turn to cross-examine him.
Price had testified that he had spent six months with the Obscenity Task Force, and Hertzberg wanted to know more about that unit. Price said that it was composed of both FBI agents and postal inspectors, and although it was an FBI task force, it reported to attorneys in the U.S. Department of Justice ... and that the task force had "targets," of which JM Productions was one. Price said he had gone to JM's website and reviewed material there which he felt could be recommended for prosecution. He also testified that he could have purchased the DVDs in question from the JM site ... but when Hertzberg asked why, then, he had bought them from Five Star's site, the prosecution objected and the judge sustained the objection.
But Jeffrey Douglas, attorney for Ken Graham, was also interested in why Five Star had been targeted. Under questioning by Douglas, Price revealed that when he did his Google search, there were "many producers" who were being looked at as potential targets for prosecution because they made what Price described as "harder-core adult material," the definition of which would be the subject of later questioning by Douglas.
Price said that he had been told by one of his supervisors to search for other sites besides JM's that sold JM material, although he said that there was no internal FBI policy that dictated the number of JM retailers to be targeted. After Kenneth Whitted, co-counsel for the prosecution, objected to questions about internal FBI criteria, Douglas responded that the questions went to Price's credibility, since it appeared that he had targeted Five Star for obscenity prosecution for selling JM material without any reference to the community standards of Phoenix, and Douglas wanted to know what that connection was.
The judge agreed that she also had concerns about the community standards aspect, and noted that if the decision to prosecute Five Star had been arbitrary, then indeed it would have had no relationship to Phoenix's community standards, but that if there had been a reason that Five Star had been selected, the reasons for that selection might impact the community standards angle.
"Did it matter that Five Star was in Arizona?" Douglas asked.
"Not necessarily," was Price's cryptic reply, adding that the state didn't matter; he could have chosen any state including, Douglas then brought out, New Hampshire ... or Virginia, where the DVDs had been received.
Upon further questioning, Price admitted that he had never lived in Arizona and had taken no steps to find out the community standards of the area. Specifically, he admitted that, at the time of his investigation, he had never been to any store in the Phoenix Sky Harbor Airport, nor to the Castle Boutique, Hustler Hollywood, Smokin' Lingerie, Adult Shop or the Paradise Boutique – all retailers which sold videos which apparently were comparable to the ones on trial in this case.
Douglas then asked whether, if Price had known that every adult in Arizona had bought copies of the JM features at issue in the case, it would have impacted Price's decision to recommend prosecution of the four JM videos – a clear reference to the community standards issue – but Price never really answered the question.
Douglas questioned Price about whether he knew that, in order to do his assignment, he must familiarize himself with the elements of the crime; in this case, "obscenity." Price responded that he had gone to one seminar on obscenity, but that although the task force had been in operation for a year before he joined it, he was given no information by other members on community standards.
"Did the task force survey communities to determine what their community standards were?" Douglas asked.
"I believe they did not," was Price's eventual response.
If Price had had reliable information of Arizona's porn consumption, would it have helped him to do his job, Douglas then queried. Price responded that it wasn't up to him to acquire that data; that the information didn't exist in any case, and that it was his understanding that the jurors in a case are the triers of the facts – which presumably would have included how many Arizonans bought porn.
Douglas then returned to his earlier questions about why the videos on trial here had not been purchased directly from JM, and wanted to know if Price had chosen to go after a "third party" retailer on his own?
"No," Price answered, saying that he had heard conversations among others in the Department of Justice regarding the targeting of "third party" retailers.
Douglas then turned to Price's criteria in picking the videos he had chosen for prosecution, and there ensued a long discussion of what types of depictions would move Price to recommend that a certain video be prosecuted. Douglas established that it had to be something more than simply a video of a topless woman, and he later established that it had to be more than a man and a woman having "vanilla" sex with each other.
"Depictions of a violent nature, to me, is hardcore," Price eventually said, explaining that that was the reason he had targeted Filthy Things 6. He again stated that there were no written guidelines as to what action to target, but that his supervisor had later agreed that the JM videos which Price had recommended for prosecution were "harder-core."
Finally, Price said that his own personal guidelines for what action to target included violence; urination in combination with a sexual act; defecation on another person; bestiality and scenes involving multiple partners.
Was mutual agreement among multiple partners to have sex with each other a factor in deciding whether the scene was "violent," Douglas asked. Price said that it was not – and that he considered threeways to be a "multiple partner" scene.
It was then Rood's turn for redirect examination, and he established that it wasn't Price himself who made the final decision as to which videos would be prosecuted, and that in fact Price had submitted 14 DVDs for potential indictment, of which four became the focus of this case. And no, Price later answered, he wasn't interested in shutting down the entire adult industry; that wasn't a motivation for his targeting JM.
Finally, the judge allowed Hertzberg to ask "a few short questions," and that's when he brought out that the reason the JM videos involved in this trial had been purchased from Five Star rather than JM itself was because the government had not wanted to prosecute an obscenity case in Los Angeles County.
For the defense, at least, that admission was the high point of the day ... and the Christie Lee scene a definite anti-climax.