WASHINGTON, D.C.—Although it's been more than 10 months since attorneys for John Stagliano and his companies John Stagliano Inc. and Evil Angel Productions filed their motions before Judge Richard J. Leon to dismiss the eight-count obscenity trafficking indictment against the producer, Justice Department attorneys Channing Phillips and Pamela Satterfield nonetheless have filed an additional motion in the case.
Its purpose? To limit the use, during trial, of statements Stagliano has made on reason.tv, the video channel of the libertarian-oriented Reason Magazine, and in an interview conducted by the Los Angeles Times.
But considering that Judge Leon, who gained prominence last November for ruling that five detainees being held at the Guantanamo Bay prison were entitled to habeas corpus hearings, has not given any indication when he will rule on the existing motions, including Motions to Dismiss filed by attorneys Alan Gelbard and Paul Cambria on October 30 and 31 of last year, Cambria told AVN that the prosecutors' latest move confuses him.
"Usually, they file these Motions in Limine based on what they think Lou [co-counsel H. Louis Sirkin] and I are going to say," Cambria opined, "and this time around, I guess they decided to do this, but frankly, I'm not seeing any reason for it."
Specifically targeted in the government's motion are statements Stagliano made on reason.tv, including, "I didn’t know I was breaking the law... What law? Somebody’s going to interpret that I was breaking the law. That’s just really bad," and "DVD sales are going down rather rapidly right now, and people are consuming their pornography on the Internet. And the community standard of the Internet is very different"; and to the L.A. Times, where he asked, "Aren't we already at the point where a government official can get you on some law somewhere if he doesn't like you? Isn't that what an obscenity law really is? I have no idea when I'm breaking this law."
In support of their Motion in Limine, Phillips and Satterfield argue that "Defendant Stagliano’s public statements to the press, were they to be uttered at trial, would be improper, inflammatory and irrelevant because they are false, misleading and do not relate to any of the issues the jury must decide in this case."
Specifically, they cite Ashcroft v. American Civil Liberties Union—the original COPA case, known as "COPA I"—in support of the concept that internet content may be judged by the community standards of any geographic area where the material is accessed, and also Hamling v. United States to argue that whether Stagliano knew he was breaking the law in sending or posting the adult material charged is irrelevant, since according to the Hamling decision, that would "permit the defendant to avoid prosecution by simply claiming that he had not brushed up on the law."
But COPA I was hardly the last word on community standards, since in reconsidering the case after the U.S. Supreme Court remanded it, the Third Circuit Court of Appeals not only reiterated its assessment that local standards should not be applied to content available on the World Wide Web, but added that the Child Online Protection Act (COPA) was also vague and overbroad—findings that were eventually upheld at the conclusion of the trial of the case. And what continues to be interesting about Hamling is that in almost every other crime in the United States Code, mens rea—the proverbial "guilty mind"—is a necessary element of the offense... but not for trafficking obscenity.
"I think it's ridiculous," said Sirkin of the Motion in Limine. "Number one, he's got a First Amendment right to talk. Number two, what he may say if he testifies, certainly, anything that would be objectionable when he testifies, they have a right to object to, and third, there's no obligation that he even take the witness stand nor can they put him on the witness stand."
Of course, if Stagliano did choose to testify at trial, the government could introduce the reason.tv interviews to attempt to impeach his testimony, but as Sirkin noted, "John really has not said anything incriminating, which I have to say, what they're saying he said shows a great deal of intellectual perception on his part."
But, Cambria noted, Motions in Limine of this sort are hardly uncommon in obscenity prosecutions.
"They try to do this in all the cases," Cambria said. "They try to put us in handcuffs, straitjackets and gags before we get to trial. The last case Lou and I tried together [Rick Krial/After Hours Video], they filed a motion saying we were going to do this and we were going to say that and we were going to say the other, and right down the line, our response was, 'Well, you don't know what we're going to say until we say it. And when we do, if you think it's improper, you object and we'll make our argument."
"I think we've all seen the types of Motions in Limine that they've filed before we get started in trial," Sirkin agreed, "that the lawyers not be allowed to mention that obscenity is protected by the First Amendment, and they not be allowed to talk about what's tolerated; that the standard is 'acceptance,' and all that, so they start with that kind of bull-crap. And the answer that I usually come back with is, 'John's got a stable of experienced lawyers and we certainly know the rules of evidence, and we know them better than probably any government attorney they would bring against us, so when we try a case, it's going to be entirely proper.' I said that to Judge Silver [in the Five Star Video case] when they started all that bullshit down there. I said, 'Judge, we're all experienced. Why are they anticipating that we're going to do something that's wrong? If we do it, they can object.' And she really – that really seemed to turn the corner with her. I mean, we're going to respond to it, but I just can't imagine that something out of the blue like this gets filed."
Moreover, Sirkin thinks that the motion may be representative of the government's fear that its case isn't strong enough to get a conviction.
"To me, the stuff that we've got in Washington with John is different than we've seen in some other cases," he said, "And it's really not what the government seems to be making it out to be. In watching the movies that have been charged, all the people in them are really having a great time."
Another possible reason for the motion being filed at this time, of course, is the 2010 election. If Judge Leon rules on the parties' motions before the end of the year, unless he grants the defense's Motions to Dismiss, the trial of the case could start as early as late spring or early summer, '10... just in time for campaign season.
"He has to rule on the motions, which he hasn't done yet, and I don't believe he's one that you can push around," Sirkin noted. "Whether it will become a campaign issue, I can't predict. The thing that's still amazing to me is that we're still seeing [Obscenity Unit head] Brent Ward's name on these pleadings. I'd hoped that with the new administration, we'd have seen a change there."