Kenneth Whitted, representing the US Department of Justice, moved this afternoon to dismiss six counts of interstate transportation of obscene materials by common carrier and three counts of engaging in a business of selling or transporting obscene material.
The basis of the dismissal was the government's inability to verify business records which the government claimed indicated that JM Prods sold the four charged videos – Filthy Things 6, American Bukakke 13, and Gag Factor 15 & 18 – to Five Star Video, LC and Five Star Video Outlet, LC.
Whitted had argued that the fact that the government had subpoenaed records from JM and that JM furnished certain records to the government was sufficient proof that the records were authentic. If the court had accepted that assertion, then the business records could have been shown to the jury under the business records exception to the rule barring hearsay evidence.
However, JM’s attorney, H. Louis Sirkin, argued that the mere production of the records by JM was insufficient to authenticate them. Sirkin contended that the only way the records could be authenticated would be for them to be identified by JM’s owner, Jeff Steward, and that if called to the witness stand for that purpose, Steward would invoke his Fifth Amendment right against self-incrimination.
After Judge Roslyn O. Silver ascertained that Witten’s stated basis was the only basis under which he believed the records could be introduced, and after denying that the records could come in on that basis, Judge Silver accepted the government's motion to dismiss all charges against JM and Steward.
The trial took place in Courtroom 604 of the Sandra Day O’Connor federal courthouse in Phoenix. Attorney Allan Gelbard represented Steward.