WASHINGTON, D.C.—Although little could top the events of Thursday morning, the afternoon session of the John Stagliano obscenity trial still delivered some surprises, not the least of which was partly a consequence of Judge Richard J. Leon having dismissed Counts 3 and 7, and part of Count 6, from the indictment.
As the judge reconvened court at about 2 p.m., Stagliano's attorney Paul Cambria informed His Honor that as requested, the defense team had discussed their future strategy... and felt that a mistrial was in order.
The problem was that although the charges relating to the trailer for Fetish Fanatic 5 had been dismissed from the case, prosecutor Bonnie Hannan had mentioned it several times in her opening statement. In fact, her first words were, "This case is about crossing the line," and referred almost immediately to Count 7, claiming that some of the charges related to the defendants making adult videos available to persons under 18. Later, she stated that anyone could see the trailer on the Evil Angel website for free, implying that there were no safeguards in place at all to prevent underage viewers from accessing the full five-minute trailer.
"That bell can't be unrung," Cambria charged, "so we would ask Your Honor to declare a mistrial at this time."
Judge Leon suggested that perhaps he could simply give a curative instruction to the jurors not to consider any of the testimony relating to the trailer, noting that the jury had seen only a silent version of the trailer's first three minutes, but Cambria replied that the portion of the jury questionnaire that all jurors had filled out which related to children's access to the material had evoked "volatile" responses from the potential jurors, so he argued that the issue was clearly an important one to them.
"They've seen the 'worst' video, if you will," Cambria said, and opined that any attempt to cure the situation with a jury instruction would be insufficiently effective.
Asked to respond, prosecutor Pamela Satterfield said she thought that a curative instruction would solve the problem, and noted that Hannan had never used the word "minor" in her opening; merely "persons under 18," which she apparently felt was a less hot-button term.
John Stagliano, Inc. counsel H. Louis Sirkin argued further that since so much of FBI Special Agent Daniel Bradley's testimony had concerned how he had gone to the Evil Angel website and clicked through several pages until he got to the one that would show him the trailer, that this amounted to too much information for the jury to simply ignore in their deliberations—an argument with which Evil Angel Productions, Inc. attorney Allan Gelbard agreed.
"There's no remedy for it except to start over," Sirkin declared, meaning that a mistrial was necessary.
Despite those arguments, Judge Leon denied Cambria's motion, and stated that he would give an instruction to the jury that he felt would solve the problem.
Some further discussion was had about Satterfield's wish to use the the first two "pages" of Exhibit 10 (actualy a single Web page broken into two parts) to refresh Agent Bradley's memory about the content of the "President's Message" from Stagliano that appeared thereon, and the judge eventually allowed her to do so strictly to refresh his memory. However, when she also attempted to introduce screen shots from the two charged movies, Milk Nymphos and Storm Squirters 2, so that the jury could have something they could immediately refer to during their deliberations, the defense team objected, noting that the movies themselves were the best evidence, and that the jury was free to watch any portion of them if it wanted to.
Thus the stage was set for Agent Bradley to continue his testimony, and after some questions from Satterfield about the "President's Message," which she used as a basis to have Bradley identify Stagliano from the witness stand, she turned the witness's questioning over to the defense, beginning with Cambria.
Speaking in measured tones, Cambria took Agent Bradley through the sequence of events which brought the two charged videos into his possession. Through the testimony, the jury learned that, using a government computer located in Virginia, the agent had looked at several adult websites before settling on placing his order with btmmailorder.com, the website of the Baltimore, Maryland-based company Komar. Btmmailorder.com did not have the two particular videos in stock, however, and had to have Evil Angel "drop ship" the DVDs to Bradley's designated District of Columbia undercover mail box—videos for which Bradley paid with a money order purchased in Virginia and mailed to Baltimore.
Bradley also testified that he himself had never been to the mailbox; that the package allegedly containing the DVDs had been picked up for him by another agent and delivered to Bradley at his office in Virginia, where he reportedly opened the package several weeks later and where he watched the movies. Later questioning brought out that Bradley had never viewed the movies in the District of Columbia.
Though Judge Leon had ordered the attorneys in the case not to talk to the press, the purpose of Cambria's questions appeared to be to establish the fact that except for an unopened package delivered to a District of Columbia mailbox, the transaction that eventually brought about the indictment against the defendants had had no other contact with the District of Columbia before the current criminal trial commenced—a situation that might form the basis for a successful "Rule 29" motion to dismiss the case altogether.
Allan Gelbard, representing Evil Angel Productions, Inc., had a different agenda during his questioning of the witness. Gelbard sought, through questioning Bradley about investigations he had performed relating to corporations in the state of California, to establish that "Evil Angel Productions, Inc." was not an active corporation at the time the agent had ordered the videos from btmmailorder.com—and in fact had been "suspended" from doing business by the California Secretary of State in 2005.
When it came Sirkin's turn, he elicited from the agent when he had first reviewed the two movies in question, and then when he had most recently reviewed them. Although it had escaped the attention of this reporter, Bradley apparently stated that he had seen them just last Wednesday in preparation for trial, and that he had done so at the behest of Satterfield, who had allegedly told him that the viewing had been suggested by Judge Leon himself! The significance of that statement did not become apparent until later, however.
Sirkin also asked the agent if he had, in addition to the movies themselves, also viewed the "extra" features on each disk. Bradley replied that he had, and had made summaries of those extras along with his summary of the actions depicted in the movies themselves. However, Sirkin brought out that Bradley had not described the content of the extras to the jury when Satterfield had asked him to summarize the movies' content for the jury—which Bradley maintained was because he had not been asked to do so.
On redirect examination, Satterfield brought out that the reason that Bradley had performed so many of his actions related to the case in Virginia was because that was where the FBI "satellite office" where he was assigned was located, and that that office was part of the "District of Columbia field office." She also elicited a reply from Bradley to the effect that the reason he hadn't described the "extras" to the jury was because he didn't consider them part of the movie itself.
The government next called to the witness stand Los Angeles Police Detective Michael Ozaki, a member of the city's Vice Squad, who testified that he had attended both the 2007 Erotica LA convention as well as the 2008 Adult Entertainment Expo (AEE) in Las Vegas—and took several photographs while he was there.
Hannan, who conducted the direct examination of the witness, had him identify several of the photographs as depicting the Evil Angel booth at each event, and Stagliano working the booth and talking with fans and customers. Hannan also had Ozaki identify several photos that he had taken of Evil Angel's offices in Van Nuys, California, and drew a laugh from everyone in the courtroom when he described a photo of Stagliano's wife walking into the office's front door, while in the window next to the door, there was a photo of a cat with the inscription, "Beware Of The Evil Pussy."
On cross-examination, Cambria brought out that hundreds of companies exhibit at the two conventions, which attract thousands of retailers and fans from all over the world.
"It's quite popular," Ozaki agreed, referring to the AEE. "The largest show."
Ozaki also admitted that he knew Stagliano had received many awards during the various AVN Award shows, although he had never attended one himself.
Gelbard questioned the detective about a woman shown in one of the photographs, an employee of Evil Angel. He drew from the witness the fact that he (Ozaki) had never seen one of the woman's paychecks, so he didn't know if Evil Angel's name was on it, but agreed that the phrase "Evil Angel" was nowhere on the facade of the company's offices.
After a brief recess, and after telling Judge Leon that the government's last proposed witness was not in the courthouse and could not be there for another two hours, the prosecution said that it was resting its case—except that it couldn't.
Cambria came to the lectern to point out that the problem with Agent Bradley's testimony had not been resolved. Apparently, in a sidebar discussion with the court, out of the hearing of reporters, one of the defense attorneys had brought up the fact that Bradley had apparently testified that he had viewed the two charged movies the previous Wednesday on orders, he said, from Judge Leon, delivered through prosecutor Satterfield. The judge was quick to deny that he had ever given Satterfield such an order, and all present appeared to take him at his word—but the situation left the court in something of a dilemma.
Sirkin wanted to put Satterfield on the witness stand to either confirm or deny that she had received such an order from Judge Leon, but to do so, she would have to recuse herself from trying the rest of the case. Moreover, if she testified, as expected, that she had not received such an order from the judge, that would appear to indicate that Agent Bradley had lied on the witness stand, and if that scenario proved accurate, the defense wanted the court to issue an instruction to the jury that the agent had lied on the stand, and that the jury should take that into consideration in evaluating the truth of his other testimony—if the judge didn't order the agent's entire testimony stricken from the record altogether! (AVN readers can imagine what that would do to the prosecution's case!)
Judge Leon said that he would take the matter under consideration and issue a ruling Friday morning... which left just one other unresolved matter: The planned testimony of actress Lorelei Lee.
As readers may recall, one of the first issues brought up by the defense in the trial was the request that Lee be allowed to testify from the witness stand under her stage name, since she feared that the revelation of her real name would have untoward consequences for the actress. Since then, as AVN has noted, the actress retained counsel of her own, Carmen Hernandez, and shortly after 5 p.m. on Thursday, Judge Leon asked Hernandez to explain why Lee couldn't reveal her real name to the jury.
What followed was an extended sidebar discussion which ended with Judge Leon promising to consider the arguments from both sides on the issue, and deliver a ruling when court reconvenes Friday morning at 10 a.m.