ATLANTA—It's the day Paul "Max Hardcore" Little has been waiting for for over a year: The showdown between his attorney, H. Louis Sirkin and U.S. Department of Justice prosecutor Edward McAndrew before the Eleventh Circuit U.S. Court of Appeals.
Little and his company, Max World Entertainment, had been convicted on five counts each of mailing obscene material and five counts each of posting obscene material on the internet, but according to Sirkin, the appeals panel seemed more interested in an event that occurred after testimony had been completed.
As reported here, when the jury had finally reached a unanimous decision on the charges after more than two full days of deliberations, one juror was seen crying as the verdicts were read, and she later told Little and his defense team—Sirkin, Jennifer Kinsley, Jeffrey Douglas, Jamie Benjamin and Dan Aaronson—that several of the other jurors "just beat on us and beat on us and beat on us until we gave in."
But what wasn't revealed until after the verdicts was that the crying juror was upset in part because the previous evening, her employer had called and left a message that because she had been away from her job for so long—the trial took two full weeks—she was being fired. In fact, the juror had sent a note to Judge Susan C. Bucklew memorializing that fact and describing her distress over the situation, but Judge Bucklew made no mention of that fact during the deliberations, nor did she contact any of the attorneys to apprise them of the situation.
"I think the issue that really stood out was the one dealing with the question about the juror," Sirkin told AVN in an exclusive interview. "They seemed to be very receptive and concerned about the juror issue, the one who got fired. He [Senior Judge Emmett Ripley Cox] said, 'Well, how do you know what the note said?' And I said, 'Well, she came to our hotel afterwards. We know that she was distressed and we know she was crying when the jury was polled,' and I said, 'In addition, I was able to read what the note to the judge said from the order that Judge Bucklew had entered denying our motion for a new trial, where she said, "I got fired last night over that,"' and I said, 'The Court should have advised counsel; we should have been aware of it, and as a matter of fact, the Court never told us; we learned it from the juror who came to us and told us.' So we'll see what happens. We think that's a good issue on the integrity of the system."
Sadly, the appeals panel, consisting of Judge Cox, Judge Charles R. Wilson and Judge Susan H. Black, allowed each side just 15 minutes of oral argument, so Sirkin had to struggle to get in all of the points he wanted to emphasis from his appellate brief.
For instance, though a continuing issue had been made at trial of the fact that prosecutors McAndrew and Lisamarie Freitas had asked for permission not to play the five charged movies—the "European versions" of Max Extreme 20, Pure Max 19, Golden Guzzlers 7, Fists of Fury 4, and Planet Max 16—in their entirety for the jury—a clear violation of the obscenity standard under Miller v. California—Judge Bucklew refused to rule on the issue until the trial was over. This forced the defense to play whatever portions the prosecution had refused to play, possibly scoring points for the prosecution, since McAndrew had stated before the trial even began that, "The issue is who the jury might blame for having to watch it."
"That's pretty much all in the brief, and you have limited time, so you've really got to go," Sirkin explained. "We only had 15 minutes a side, so you had to really blitz. I mean, getting to the sadomasochism issue, I had to really blitz to get anything in on that, which I think is an important national issue."
Sirkin was referring to the fact that, according to testimony from defense expert Dr. Michael Brannon, the Max Hardcore videos were meant to appeal to an "identifiable paraphilic group," namely dominants/submissives, and during her charge to the jury, Judge Bucklew instructed them that the "community standard" to be applied to the videos and website trailers was the standard of that particular group, rather than to the sensibilities of ordinary citizens. However, during sentencing, Judge Bucklew increased Little's sentence based on the fact that his movies contained sadomasochistic behavior, as noted here. Sirkin raised that as an appealable issue before the Eleventh Circuit panel.
"What I basically said is, there's no other area of sexual activity with adults that gives any add-ons except for this 'sadomasochism,'" Sirkin told AVN, "and I said that really, that's included, I would think, in a consideration of whether the material is presented in a patently offensive way. So there's an aspect of double-counting, but number two, that add-on is content-based, and being content-based, the government's got to be able to sustain a position like that; the government's got to show that they're serving a compelling interest, and I don't think they can do it where there's actors playing the roles."
Sirkin also noted the testimony of actress Summer Luv, who testified that prior to beginning her scene, Little spent an hour explaining to her exactly what action would be taking place on camera, and obtaining her approval to engage in the dominance play.
Another important issue that Sirkin argued was the question of whether Little was actually responsible for sending the five charged DVDs to the Middle District of Florida in the first place, since the order had been filled by prominent adult distributor JKG, Inc. d/b/a Jaded Video.
"The big thing to me was, to be guilty of violating the mail thing, you have to do the mailing, but you also have to mail unmailable material, and it's not unmailable until it's been declared to be obscene," Sirkin recounted. "And I said, 'How can you say that something that's presumptively protected is unmailable? It's not been declared.' And then the other argument that came up was this bit about forseeability. I said, 'Look, there are four ways it could be delivered that Jaded could use. One is, I guess you could yourself transport it across country and deliver it, or you could use UPS or FedEx or the mail, and because you used one of those four, here, the government specifically alleged that you had knowledge—they have to prove that you had knowledge that you would use one in particular, because that's how they made the allegation. And criminal laws are to be strictly construed in favor of an accused, and so I think you really need to be able to show that.' That was pointed out, that he [Little] did not choose the method of the distribution, and the government made the order over the internet; they ordered it and then she [postal inspector Linda Walker] sent out the money by US Postal Service, and Paul Little wouldn't know that; he wouldn't know that it came as a money order and that it was to be directed to a post office address, so that was completely Jaded. So there were some questions from Judge Cox regarding that, but they really didn't go heavy into that."
Yet another portion of the argument revolved around the five trailers posted on the maxhardcore.com website, with Sirkin arguing that yesterday's decision in U.S. v. Kilbride and Schaffer, which established that, at least in the Ninth Circuit, the "community standard" for determining the possible obscenity of a work is now officially the entire nation.
"I got the typical crap of, 'Oh, well, that's the Ninth Circuit' on yesterday's decision," Sirkin said, referring to the nostrum that Ninth Circuit decisions are the ones most often reversed by the U.S. Supreme Court. "We did deliver to them a copy of yesterday's opinion from the Ninth Circuit, which is very good on that issue. The question that came up was, 'Well, there was no majority on that from the Supreme Court.' I said, 'You're correct, there was a splinter, but there seemed to be somewhat of a consensus that they're all saying the same thing, and that really needs to be more expanded when it's dealing with the internet.'"
"You know, I've left that court in the past thinking absolutely I've won, and I've lost, but this one, I'm kind of in the middle," Sirkin summarized. "I'm cautiously optimistic, particularly on that juror issue. I think it's a real good issue, which goes to the integrity of the proceedings. I was able to say, and I think the affidavit we filed from her said that she was a hold-out, and they needed unanimous [verdicts], and there was no reason for us not to be told about the situation while they were deliberating."
As usual, there is no set time frame within which the Eleventh Circuit must announce its ruling on appellate matters, so keep checking back at avn.com for the Eleventh Circuit's opinion in this matter when it is announced.