ATLANTA—Paul "Max Hardcore" Little has received another smackdown from the forces of righteousness, this time in the form of a general denial of his appeal on obscenity trafficking charges, courtesy of an Eleventh Circuit appeals panel composed of one Clinton appointee (Susan H. Black), one Bush I appointee (Charles R. Wilson) and one Reagan appointee (Emmett Ripley Cox).
The panel struck down nearly every appealable issue raised by Little's appeals counsel, H. Louis Sirkin and Jennifer Kinsley, who also represented him at his trial in Tampa 21 months ago. The lone exception was the trial court's use of the amount of money Little made ("pecuniary gain") from sales of the charged videos—the European versions of Max Extreme 20, Pure Max 19, Golden Guzzlers 7, Fists of Fury 4, and Planet Max 16—in determining his 46-month sentence.
"The U.S.S.G. [United States Sentencing Guidelines] says that the court may consider all relevant conduct, which is defined as 'all acts and omissions ... by the defendant ... that occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense'," the panel ruled. "Clearly, relevant conduct must be connected directly to the offense for which Appellants were convicted, the transmission and sale of obscenity in the Middle District of Florida. The district court directed the jury to use the community standards of the Middle District of Florida in determining whether the DVDs were obscene. Thus, the DVDs have only been established as illegal obscenity in the Middle District of Florida."
"Neither the district court nor the PSR [pre-sentence report] made any findings related to the geographic location from which the $40,340.50 was derived," the ruling continued. "While the sales of these DVDs in areas outside the Middle District of Florida are essentially the same conduct as the sale to the inspector inside the Middle District of Florida, they differ in one very critical way: they are not illegal sales of obscenity (at least not yet)."
Despite the panel's snarky assumption that Little may face still more obscenity charges for the five videos charged in this case, their point was simply that in all other geographic areas where the movies were sold, they were sold legally, and hence the proceeds of sales in those areas should not impact Little's sentence in the Middle District of Florida. For that reason, the panel remanded Little's sentence to be reconsidered by the trial judge, Susan C. Bucklew.
"After I came back from oral argument, I said the panel was not tremendously receptive to any issue," Sirkin recalled. "Now, it [the 'pecuniary gain' issue] can make a difference of at least five months, and potentially, if she [Judge Bucklew] has developed some heart, she could give him a lesser sentence. We certainly could make comparisons to the sentences that have been handed down in other cases, because subsequent to this one were the sentences of Rob [Black] and [Lizzie Borden], who each got a year and a day, and there was also the sentence of the guy in West Virginia [Loren Jay Adams] who was a second offender who only wound up getting 33 months, and the Harbs in Utah got a year and a day, and there's the Thomas case out of California where the guy only got probation. All of those may affect how the judge resentences Paul."
Nonetheless, the panel glossed over several important issues, perhaps most notably the fact that one juror advised Judge Bucklew during deliberations that she had been fired from her job because she had been on jury duty, yet the judge permitted deliberations to proceed without informing any of the attorneys involved that the juror had related a problem.
The situation, which could easily have affected the outcome of the trial, was dismissed by the appeals panel.
"The Appellants were not deprived of a fair trial when the district judge waited until after the verdict to address the situation involving a juror who had been fired during the trial," the panel wrote. "Appellants note that the juror was crying when the verdict was read and argue that this is proof that her termination from her job influenced her ability to deliberate, thus depriving Appellants of a fair trial. Once again the Appellants base their argument on pure speculation. There is no evidence that the fact that the juror was fired affected her decision during deliberations."
That's hardly a correct statement of the facts.
"We certainly did have a statement from her," Sirkin stated. "They ignored it. We didn't have her come in and testify, which we would have done had the court advised us of the situation during deliberations. That issue really pisses me off, in the sense that they're just pushing that off and saying we're just speculating that it didn't bother her. We brought her forward. We were unaware of it at the time it occurred so there was no ability to bring the matter up. We can't talk to the jurors [during the trial or deliberations], so the judge did not tell us about it and arbitrarily made the decision so that we couldn't really make the inquiry at the time. If she had wanted to, she could have discharged that juror and proceeded with an 11-person jury, but she didn't even give us that option, and it may be that she [the juror] lost her ability to argue."
"The presumption should have been that there was a problem and the court didn't give us the opportunity, and they [the appeals panel] should have looked at it most favorably to us," he continued. "We have case law in Ohio that says if a juror says they've read an article about the case or saw some publicity about it, it's automatically reversible error if the court does not bring them in and allow a voir dire of that juror as to whether it had any influence or whatever; it's assumed to be prejudicial, and here they just blew it off. They said 'you haven't been able to show whether it had any effect or impact on it,' and I argued that, the bottom line is, we were entitled to know it, and because the judge made the determination not to talk to that juror until after the verdict, that's not right. We should have known that the juror told the judge that she had a personal matter she wanted to talk to the judge about."
In fact, as noted here, the juror approached this reporter after deliberations had ended and asked if it would be possible to express her condolences to Little, which she and two other jurors did later that evening.
"We tried and we tried and we tried, but we just couldn't get through to those others," the juror, who was visibly crying during the reading of the verdict, told Sirkin and other defense counsel at their hotel. "They just beat on us and beat on us and beat on us until we gave in."
But the question remains, if the juror had not been fired and had not been worried where her next paycheck would be coming from, would she have acquiesced to the demands of the other jurors to finally vote "guilty," or might she have had the fortitude to stand her ground, continue to vote for acquittal as she had done for the prior two days, and force a mistrial?
Obviously, the appeals panel was unconcerned over this question.
Similarly given short shrift was the question of what "community standard" should be applied to the five trailers for the above-named movies which the Justice Department downloaded from Little's website and charged as obscene.
"Appellants argue, as many others recently have, that a local community standard is not the proper approach for judging Internet-based materials," the panel wrote, referencing calls by Supreme Court Justice Stephen Breyer and former Justice Sandra Day O'Connor for a national standard for obscenity. "The growing discord has arisen from the belief that the transmission of materials over the Internet is inherently different from the traditional, concrete, real world conveyance of materials. ... Appellants argue that their publication was different from that of the appellant in Miller [v. California] in that they did not direct their Internet publication at any one area. Appellants argue that applying a local community standard to the Internet results in an infringement upon First Amendment rights because the Internet publisher's materials can be judged according to the community standards of the strictest of communities, even though the Internet publisher never made any specific effort to direct the materials at that community. Appellants argue that the district court should have applied a national or Internet community standard rather than the local community standard of the Middle District of Florida."
"In support of this argument, Appellants rely heavily on the concurrences and dissent in Ashcroft [v. ACLU, the COPA case]," the panel's ruling continued. "Recently, the Ninth Circuit interpreted Ashcroft in such a way as to mandate a national community standard for Internet-based material. We decline to follow the reasoning of [U.S. v.] Kilbride in this Circuit. The portions of the Ashcroft opinion and concurrences that advocated a national community standard were dicta, not the ruling of the Court. As a result, the Miller contemporary community standard remains the standard by which the Supreme Court has directed us to judge obscenity, on the Internet and elsewhere." [Citations removed here and below.]
For Sirkin, however, that simply said that the court was shirking its duty to consider the changes in technology in society since the 1973 Miller decision.
"What happens is, we're stuck with the history of these cases from the '70s and the '80s," he charged. "It all really arose initially from brick-and-mortar stores, and the courts are unwilling to make a shift into the modern world, and it's very, very disappointing from the standpoint of having argued it, having to listen to the type of questions that come back, and the lack of concern with it."
"The most significant part of the opinion is that the court squarely disagreed with United States v. Kilbride, where the Ninth Circuit held that national standards apply to the Internet," agreed First Amendment attorney Clyde DeWitt. "That creates a split in the circuits, which is the most frequent reason for Supreme Court review."
But while establishing a national standard for obscenity would be important, the existence of the internet may give federal prosecutors an excuse to charge not only people who create sexually explicit material for sale and post it online, but also people who buy the material by downloading it from the internet to their personal computers.
"We really need to be able to get the courts to recognize that the internet is the most important information carrier of the modern age," Sirkin opined, "and I'm afraid, because of the record that it creates and the path that it creates, that all of a sudden, they're going to find that individuals who are receiving material like this—because they'll be able to independently put it together by the use of the internet service providers, and all that will be in print, so they'll know exactly what the people are in fact getting, and they'll be able to seize computers and really be able to analyze what the people really have looked at on their computers, and downloaded, and they'll be able to charge them with such things as receiving obscene material."
Also dismissed in the appeals court's decision is the fact that neither the judge nor the prosecutors wanted to play the entire charged movies for the jury, with the government taking the position that merely showing excerpts and allowing the jury to take the DVDs into the jury room for further viewing fulfilled the Miller requirement that the charged material be viewed "as a whole."
"The dilemma is, if you don't put the whole thing in, you're going to lose the benefit of having them see it in context, because you'll never know what they do in the jury room," Sirkin explained. "The argument that they [defense attorneys] all make is, if the material is not shown as a whole, it will give you the opportunity to ask for a directed verdict of 'not guilty' and the court's going to have to grant it because the jury didn't see the whole movie. It's not happening for a couple of reasons: Number one, the movie has been introduced, and you can't presume at that level that the jury will not look at the whole movie."
But is that a fair presumption, considering that on the first day of testimony, one of the alternate jurors sent Judge Bucklew a note asking that only excerpts from the movies be played?
"But he claims he didn't tell anybody," Sirkin responded. "That was the problem; it was just his individual thought."
"Number two, the judge must look at the evidence in the light most favorable to the government at that point," Sirkin continued, "and at that point, what had been presented is sexually explicit material that she could say that there's enough shown, potentially, and having some testimony from the person, the FBI agent or postal inspector, who watched the whole movie saying that every scene in the movie is very similar to that scene, that will give enough to get past the Rule 29 [motion to dismiss]. So if you don't then show it during your part of the case, you're taking the risk that the jury will never look at it as a whole and they'll judge it on these segments, the most shocking parts."
"It's a very dangerous move," he added. "I had that experience in 1984 or '85. Mike Murray and I tried a case in a small city outside of Cincinnati in a different county where the state did that: They didn't want to play any of the movies; they just introduced them, and what we ended up doing, we made a calculated decision to let it go through the government's presentation, and we made the Rule 29 motion and it got denied, and the very first thing that we did when we went forward with the defense was, we published the movies and played them in their entirety. We got hung juries in those cases, but this case I have now in Arkansas, they've sent out a new notice about discovery that, 'We've taken some clips from each of the movies that have been charged and developed it into a shorter version to present to the jury, and you can look at it at your convenience.' That's additional discovery that they feel they're required to give us, so here we go. I'm sure that the Arkansas case, though it's a state case, is somewhat being controlled by Washington and that's what they're trying to do: Just show the most shocking clips and ignore the rest."
The appeals panel made several other adverse rulings, including that Judge Bucklew's failure to recuse herself from the trial because of prejudicial statements made out of the presence of the jury did not rise to reversible error, and that a sentencing enhancement for depictions of sado-masochistic behavior was appropriate.
"It does not matter if the persons depicted in the materials actually were sadists or masochists or whether they were actually harmed," the panel said. "The focus of the enhancement is whether the material portrays such conduct. In this case, there is no doubt that the trailers on Appellants' websites and the DVDs portrayed sadistic and masochistic conduct."
No date has yet been set for Little's resentencing.