PHOENIX – Late this afternoon, and over strenuous objections from prosecutor Ken Whitted, Judge Roslyn O. Silver dismissed all charges against Ken Graham, co-owner of Five Star Video LC and Five Star Video Outlet LC.
Judge Silver noted that the government had presented only one witness and one document that directly tied Graham to the website www.fivestardvd.com, from which FBI agent Tod Price had ordered the four DVDs originally charged as obscene. She further noting that that witness, former Five Star employee James Puckett, had testified that Graham, who lives in Las Vegas, was only on the Five Star premises in Tempe, AZ sporadically – "He'd be there for a week, gone for a week," Puckett said – and that Graham had only discussed shipping procedures generally with Puckett. Therefore, the judge ruled, the government had failed to show that Graham had the scienter – knowledge of the character and content of the charged videos – necessary to be found guilty of the charges of transporting obscene materials.
Whitted had argued that the fact that Graham was, according to domain name registrar Network Solutions, the registrant of the site www.fivestardvd.com was sufficient to prove that Graham "owned" the site, and was therefore responsible for any allegedly obscene materials sold through it, but Graham's attorney Jeffrey Douglas countered that the registrant of a domain name was not necessarily the owner, and didn't necessarily have any direct knowledge of what happened on the site – and that the government had failed to provide any evidence that Graham had such knowledge.
"Of course, we're overjoyed by the win," Graham said, referring not only to himself but to his father who had been in the courtroom throughout the trial, and to his sister who had been there today.
Not so happy was co-defendant Chris Ankeney, whose attorney, Richard Hertzberg, had failed in his motion to have the charges dismissed against his client.
Hertzberg had argued that Ankeney had had no connection to the website at all; that he had only been in charge of Five Star's retail store, Five Star Video Outlet; that Ankeney had not been familiar with either JM Productions, its owner Jeff Steward or the character of JM's product; and that the government had presented no evidence that Ankeney had affirmatively ordered any of the charged videos: Filthy Things 6, Gag Factor 15 and 18; and American Bukkake 13.
Whitted, however, countered that Ankeney was the on-site partner, noting that Puckett had put Ankeney at the Five Star location at least four days per week, and that Ankeney was the person who generally gave Puckett his assignments. Judge Silver felt that that was sufficient to impute to Ankeney knowledge of the products Five Star sold, though for that statement, she did not appear to distinguish between items for sale in the retail store and items for sale through the website.
All of the above took place outside the hearing of the jury, which had been dismissed at approximately 2:30 this afternoon, allowing the attorneys to argue several motions regarding admissibility of evidence – particularly material comparable to the DVDs charged here – and the motions to dismiss all charges. How the jury will react when it returns at 9 a.m. tomorrow and finds one less defendant and one less defense attorney in the room can only be a matter of speculation.