TAMPA - AVN senior editor Mark Kernes traveled to Tampa this month to attend the federal obscenity trial of controversial adult video director Max Hardcore.
Hardcore and his company Max World Entertainment were indicted by a federal grand jury in May 2007 on charges of distributing obscene matter through the U.S. mail and the internet. If convicted on the ten counts against him, the director faces up to 50 years in prison and the forfeiture of all merchandise, profits and property associated with the "obscene" matter, including his home in Altadena, Calif.
AVN is proud to present the industry's most complete coverage of this important legal case. Reports will be updated daily in this space on AVN.com.
Day 1: 'Taken as a whole' to be a major issue in obscenity case
Practically from the moment court convened this morning before Judge Susan C. Bucklew in the case of United States v. [Max Hardcore] and Max World Entertainment, issues that could determine the entire course of the obscenity trial were hard-fought between the prosecution and the defense.
At primary issue was the government's contention that it was not required to show all of the footage on the five DVDs which it had charged in Counts 6-10 as being obscene, although it said it would show the entirety of the five promotional video clips - one but one under two minutes long - that form Counts 1-5 of the indictment.
Rather, argued prosecutor Lisamarie Freitas, the government planned to play only selected sections of the five DVDs - two to two-and-a-half hours in all, including some non-sex footage - and then send the DVDs back with the jury to the jury room when it came time to deliberate, with the judge instructing the jurors to watch the complete movies and extras there.
"The issue is," Freitas' co-counsel Edward McAndrew later argued, "who the jury might blame for having to watch it" - referring to the approximately eight-and-a-half hours of material that the government had charged in its indictment.
"The government chose to buy five videos; they could have bought one," responded prominent First Amendment attorney H. Louis Sirkin, one of the attorneys representing Maxworld Entertainment, noting that the government could withdraw any of the charged videos from the case if it wanted to.
The problem for the government is the Supreme Court's Miller test, from its seminal obscenity decision in Miller v. California. That ruling requires any material charged as obscene to be "taken as a whole" - and the defense's position is that excerpts taken from a charged work hardly meet that requirement.
Moreover, it's certainly possible to infer from McAndrew's statement that he may not expect the jury to play the five DVDs in their entirety if left to their own devices in the jury room ... and if they did not, no one outside of the jury itself would ever know.
After more than 20 minutes of argument on the issue at the end of the day, Judge Bucklew stated that she would have to watch the DVDs in their entirety before she could make a decision, and the prosecution handed the five DVDs to her as court recessed, noting that it would also send out a letter stating just which portions of the DVDs it intended to play for the jury if the judge ruled in its favor.
The judge did make some rulings, however. The defense, in the person of Jennifer Kinsley, Sirkin's partner, had argued that the jury should be informed that all of the performers in the charged footage had voluntarily consented to perform the sex acts depicted, lest the jury somehow infer that any of the acts were non-consensual. The judge agreed that Kinsley could give that information to the jury.
Finally, both sides argued over whether the "community standards" prong of the Miller test required that the Middle District of Florida, the site of the trial, "accept" the videos in question in order for the defendants to be acquitted - the prosecution's position - or whether the community need only "tolerate" them - a lower standard sought by the defense. After a short but case-law-heavy argument from both sides, the judge ruled that the defense could indeed refer to the community's "toleration" of the charged material when it presented its case.
Also involved in the case are First Amendment defenders Jeffrey Douglas and Ft. Lauderdale-based Jamie Benjamin, representing Max Hardcore, and Benjamin's partner, Dan Aaronson, defending Max World with Kinsley and Sirkin.
But all of the above arguments served as bookends for the day, the middle portion of which was taken up in selecting the jury itself. A panel of 40 Middle District residents was assembled in the courtroom, and Judge Bucklew, who had earlier denied the defense's request to submit a detailed questionnaire to the jury pool, herself asked the majority of the questions in determining which of the panel would sit on the trial jury.
The judge's questions covered such areas as the potential jurors' employment, their backgrounds, their religiosity, their membership in any religious or secular pro-censorship groups; whether any of them regularly listened to Rush Limbaugh or Howard Stern (score: Limbaugh 1, Stern 0); whether any of them owned personal computers and had ever seen sexual material on the Web; whether any owned a VCR or DVD player (all did); and whether any regularly read newspapers or watched the news on TV (most did one or the other, often both).
In deciding what questions to ask, the judge disclosed her dislike of questions that began with, "Do you believe" and "Do you feel," and specifically rejected the defense's request that she ask whether any potential juror had any "moral convictions" regarding adult material.
But although she didn't ask the question, at least three jurors made their religiously-based dislike of the material known during the questioning.
One also said that since he had four daughters, he wouldn't be able to look at the movies and be impartial about the performers vomiting and drinking piss within them.
Another potential juror also disclosed that she was unable to look at anyone vomiting without getting nauseous herself, and she was eventually excused for that reason, with the judge agreeing with Kinsley's contention that if the woman vomited while the movies were being played, that that might prejudice the rest of the jury against the material.
In the end, 12 jurors and one alternate were selected, including one licensed practical nurse, one statistician, one insurance claims examiner, a nurses' manager, a credit manager, an attorney's assistant, a museum worker, a pawnbroker and a civil engineer.
Day 2: Judge reconsiders ruling on showing excerpts of charged Max movies
It was at the very end of the day's proceedings that Judge Susan C. Bucklew dropped her bombshell.
The jury had just been excused after watching the first 41 minutes of Max Extreme 20, one of the five DVDs charged in the government's 10-count obscenity indictment against Max Hardcore and his company, Max World Entertainment.
"I'm thinking of reconsidering my earlier ruling," the judge said, after just having watched Catalina and Taylor Rain sucking Max's cock, deep-throating it, getting fucked in the ass and being peed upon.
"I think it would be very difficult for the jury to sit through five of these," she opined, adding that she was considering reneging on her statement at the start of the proceedings today, that she would urge the prosecution to play all of the charged videos in their entirety.
In so stating, the judge said that she was mindful of the Miller test's requirement that the videos in question be "taken as a whole," and she said that she thought it would be a bad idea for the prosecution to play just excerpts from the videos, and then have the defense play those same videos in their entirety, because she felt the jury should not have to sit through playing of any of the material twice.
Prosecutor Lisamarie Freitas argued that playing the entire movies would be repetitive, since similar sex acts appear throughout the material, and renewed her offer to let the defense play whatever footage on the disks that the prosecution didn't play. She also claimed that the rules of evidence allowed "summaries" of documents to be presented during trial, with the full documents sent back to the jury room with the jury during deliberations.
But defense attorney H. Louis Sirkin reminded the court that obscenity charges presented a special case within the law, and that the Miller test did not countenance "summaries" of alleged obscene material.
Sirkin argued that the law required that the charged videos needed to be viewed not only "as a whole," but also in the order that the material had been presented on the DVDs, and opined that it would be "more disruptive and more time-consuming" to play the disks "piecemeal" rather than straight through. Besides, he reiterated, "There's nothing that says they [the prosecution] have to go forward on all five videos," and that attempting to play only excerpts or to play the scenes out of order would be "prejudicial and unfair."
But while Judge Bucklew stated that she didn't think the government would have to play the entire 510 minutes for the videos to be admissible into evidence, she left the issue by advising the prosecutors to seriously consider playing all of the charged material.
However, by the end of the day, it was unclear whether the judge would even allow the defense to play the full videos during its case in chief, although she had definitely forbade them from playing the disks while cross-examining postal inspector Karen Walker, the person who had ordered the DVDs sent to Tampa in the first place.
The trial had begun much more peacefully, though. Freitas began her opening statement by assuring the jury that they were not here "to legislate or create policy" regarding sexually-explicit material, and that "we're certainly not here to present evidence attacking the adult industry," but rather simply to enforce the Miller standard, which she briefly outlined to the triers of fact.
Sirkin, on the other hand, speaking for defendant Max World Entertainment, told the jury that they would find that none of the charged material had been made in Florida, that Max Hardcore didn't host a Website in Florida, and that none of the DVDs ordered by the government's agents had been sold or mailed by Max Hardcore, but rather by Jaded Video - a company which had been given immunity in order to testify against Hardcore. He also noted that all of the material had been produced with consenting adults, and predicted that they would find that the materials, when viewed as a whole, weren't obscene.
Jeffrey Douglas, representing Max Hardcore personally, said that he would reserve his opening statement for later.
The prosecution's first witness was James Fottrell, a computer forensics specialist who testified that he had done a "traceroute" search on the Website maxhardcore.com, and had also downloaded the contents of that site - including roughly 950 .wmv video files, some of which were promotional trailers designated "Euro Version" - to a hard drive. He further testified that at least five of those video files were "available to the public," including the "Euro" trailers for Max Extreme 20, Pure Max 19, Golden Guzzlers 7, Fists of Fury 4, and Planet Max 16 - which the prosecution then proceeded to play for the jury ... and the approximately 15 legal interns from around the courthouse who had gathered in the audience for the presentation.
One bone of contention was the accuracy of the "traceroute" report that Fottrell had created, as well as some of the site ownership information attached to it. After lengthy argument, during which Douglas pointed out that almost since the inception of the Internet, people had engaged in "spoofing," or creating false data on the 'Net, the prosecution agreed to withdraw the alleged site ownership data.
During cross-examination, defense attorney Jennifer Kinsley brought out the fact that although the traceroute report seemed to indicate that maxhardcore.com was hosted in Tampa, it was not uncommon for the Web address of a Website and the physical location of the server on which it is hosted to be entirely different. She also got Fottrell to admit that he had done his Website capture from his office in the Washington, D.C. area rather than in Tampa, and that when he had said that the trailers charged in the indictment were "available to the public," he had failed to mention that a username and password - in other words, a paid subscription to the site - would be required in order to view the trailers online.
The prosecution also presented Charles Charmatz, an employee of Hostway Corporation, whose subsidiary, Candid Hosting, had provided the server on which maxhardcore.com was situated, and who said that that server was located just one block from the Sam M. Gibbons U.S. Courthouse where the trial was taking place. On cross-examination, however, Hardcore's attorney Jamie Benjamin brought out Charmatz had never met Max Hardcore, and that to his knowledge, Hardcore had never set foot in the Hostway server facility in Tampa.
Freitas co-prosecutor Edward McAndrew then called Marcus Bohn, general counsel for fulfillment company CCBill, to the stand. Bohn testified that CCBill's records listed Max Hardcore (under his real name) as the principal of maxhardcore.com, catalinaxxx.com and pissedonpornstars.com, all of which CCBill collected receipts for and passed along to Hardcore.
Finally, Freitas called Linda Walker, who testified that she had placed orders for three of the charged DVDs through the maxhardcore.com Website, one through catalinaxxx.com and one through pissedonpornstars.com; that when she had clicked on the links to order each of the DVDs, she had been redirected each time to the jadedvideo.com site, and that when she paid for the videos by postal money order, she had sent all of the money orders to a company named JKG, Inc. in Irvine, California.
It was at that point that Freitas started playing Max Extreme 20, which included an opening statement by former porn star Catalina to the effect that no minors were allowed to watch the material, that the video should not be played in areas where it was illegal to present such material, and that all of the sex acts contained therein were being performed by consenting adults. The sex-play between Catalina, Taylor Rain and Max Hardcore has been referenced earlier, and though Freitas indicated that she would play at least the rest of Max Extreme 20, how much if any of the rest of the charged videos would be played remains in doubt.
The implications of the failure to play all of the charged footage are enormous, and it was clear that the prosecution now faces a dilemma. If it elects, as it has previously promised, to play simply excerpts from the charged material, such a practice would appear to render the jury unable to make a judgment on the material "taken as a whole," while if it does play the full eight-and-a-half hours of material, not including extras, it runs the risk of either offending the jury's sensibilities or putting it to sleep.
In any case, tomorrow may be a crucial day in the trial of Max Hardcore.
After the proceedings concluded for the day, Hardcore stated that he was confident that he would be vindicated by the end of the trial, and that he was defending his material not only for himself, but for everyone who produces sexually-explicit content.
"I'm standing tall because I know I'm in the right," he said. "I'm facing down the government because they have no right to tell the American people what they can watch in their own homes that's made by consenting adults, with consenting adults and for consenting adults."
Day 3: Crucial Developments
This reporter has now learned an important lesson: Don't put away the notebook just because the judge has dismissed the jury for the day.
"I fail to understand why you-all are playing all these videos," an apparently exasperated Judge Susan C. Bucklew said to Dan Aaronson, one of the attorneys representing Max World Entertainment in the federal trial charging Max World and Max Hardcore with interstate transportation of obscene material.
As part of his cross-examination of postal inspector Linda Walker, Aaronson had begun to play the portions of Golden Guzzlers 7 which the prosecution had earlier refused to play, electing instead to allow the jury to see just 19 minutes of the compilation, including introductory material, copyright notices, the FBI anti-piracy warning, a promo encouraging sexually active people to get HIV-tested, a short segment of Max warning sensitive viewers not to watch what follows, and the disk's opening credits. She then proceeded to play one 11-and-a-half minute scene featuring Max, Fawna and Cloey Adams.
In all, the government played about 110 minutes from the four remaining charged DVDs - Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 - leaving more than six hours of material unseen by the jury which will be expect to judge the legal status of the four features, each of which is by law required to be "taken as a whole." It was for that reason that when prosecutor Lisamarie Freitas finished her direct examination of Walker, Aaronson asked that the remaining footage on the four DVDs be played - and after about 50 minutes of it had been played, the judge dismissed the jury for the day and made her comment.
Aaronson responded that, with all due respect, he didn't feel that he was required to disclose his trial strategy to the prosecution, while H. Louis Sirkin, also representing Max World, chimed in that the Miller test for obscenity required that the material be played.
The judge once again raised the argument that both she and the prosecution had previously made, that the DVDs themselves could be sent back to the jury room with the jury when it came time for deliberation, with instructions for them to watch the videos in the jury room as they were deliberating. But comments previously made by the prosecution regarding who would be "blamed" for making the jury watch the complete videos suggested that if that course were followed, there would be no way to know if the jury actually watched the entire videos. It was partly for that reason that the defense had insisted that the full videos be played in court.
The rapid-fire colloquy that followed Sirkin's statement was hard to follow, but at one point, the judge stated that it was the defense's choice to play the full videos, to which Max's attorney Jamie Benjamin responded that, no, it was the court's choice, because the videos had to be played at some point. Shortly thereafter, the judge cut the argument short, adjourning court for the day.
But it's not as if the day had been uneventful up until that point, however. Judge Bucklew opened the day's proceedings by noting that she was concerned about the jury having to watch more than eight hours of video.
"It would be my suggestion that we finish playing the DVD we're watching," the judge said, referring to Max Extreme 20, roughly 40 minutes of which had been played the previous afternoon, and then allow the government to play merely excerpts from the remaining disks, leaving the defense to play the remaining portions if it wished. "My suggestion is that you think about how you want to proceed," she concluded.
The prosecution then cued up Max Extreme 20 to the point where it had been stopped the day before and played the remaining 50 or so minutes, after which Judge Bucklew inquired of Ms. Freitas, "What have you decided to do?"
Freitas answered that the prosecution had decided, "We're going to play portions of the other videos."
At that point, Jeffrey Douglas, also representing Max Hardcore, renewed his objection to merely playing excerpts, arguing that not only did that course violate the Miller test's requirement that the work be "taken as a whole," but also that the prosecution's insistence that the material that it had elected not to play was "repetitive" was not a valid reason, since repetitiveness was part of the artistic message of the work, and the jury had a right to see that in action. Douglas recalled the prosecutions in the early '60s of comedian Lenny Bruce, who had incorporated the repetition of derogatory racial and ethnic terms into his act as a way of conveying to his audience the essential powerlessness of the slurs once they had been brought into the light of open discourse. Douglas also mentioned that in the Five Star Video/JM Productions trial in Phoenix last October, when the jury was polled after delivering its verdict, some jurors had said that it was the "innocuous material" on some of the charged disks that had led to their acquitting the defendants on some charges.
Douglas further argued that by allowing the prosecution to play merely excerpts from some of the charged videos, the judge was essentially conveying a message to the jury that the played segments were enough for them to base their verdict(s) on.
He also noted that computer forensics specialist James Fottrell, who had testified on Wednesday, had downloaded some 950 videos from the Max Hardcore Website, and opined that the government had not charged all 950 clips because it recognized that the jury would grow bored if required to see them all.
Douglas added that when it became known that the Phoenix jury was bored by the JM material that was being played, the government dropped charges against one video so the jury would not have to sit through a showing of it ... and that the prosecution was free to do the same thing in this case.
Finally, Douglas said, all the defense was trying to do was to comply with the U.S. Supreme Court's edicts on the matter, and that absent playing the entire videos, the defendants' fair trial and due process rights were being violated.
"It is our choice how we choose to present our case," Freitas responded, noting that although there are sometimes many hours of recorded wiretaps in drug cases, the government often plays only a small portion of the conversations. She said she understood that the videos had to be taken as a whole, but declared that the jury could watch the complete disks later.
"As to whether it's going to prejudice [one side or the other], this is not a tennis match," Freitas analogized, charging that in insisting that all of the remaining footage be played, the defense was trying to desensitize the jury to the material.
At that point, Judge Bucklew cut off argument and ruled that the prosecution could proceed with just segments of the other four charged videos ... but that was not the end of the dispute.
After the short break that followed the previous argument, the judge announced that she had received a note from one of the jurors asking that only clips of the remaining videos be played - a development that somewhat mirrored what had happened in the Five Star/JM trial. The judge then asked the defense team if it still intended to show the full movies if the prosecution failed to do so.
Douglas replied in the affirmative - but also raised the issue that the note appeared to indicate that at least one juror had prejudged the material in question, and he requested the right to voir dire that juror to see if that was the case, and also to see if he or she had discussed those views with the other jurors.
The judge denied Douglas' request at that time ... but after the luncheon recess, Jamie Benjamin raised the issue again. It seems that during lunch, Benjamin had been shown a copy of that day's St. Petersburg Times, which contained a headline reading, "Judge May Spare Jury Eight Hours of Violent Porn." T
he article had apparently been based on the discussion that had occurred at the end of Wednesday's session, as reported here yesterday. This, coupled with the appearance of the juror's note, suggested to Benjamin that at least one juror may not have followed the judge's instruction not to read or listen to any reports of the case in the news media. Benjamin also wanted to know if the juror who wrote the note had discussed it with any other jurors, as well as where the juror had written the note and where he or she had discussed the note with the court's security officer before it was delivered to the judge.
At that point, Judge Bucklew revealed an even more bizarre occurrence. One of the U.S. attorneys had told her (and later testified in the absence of the jury) that he had been riding on the elevator with a person who was going to the 14th floor, where the trial was taking place, and that the attorney remarked to his new companion, "You're not going to watch all that porn, are you?" Receiving no answer, the attorney repeated his remark, at which point the other person disclosed that he or she was a juror in the case, although that person was not wearing the required juror identification.
The judge ruled that the U.S. attorney's statement was harmless, but his testimony impelled Sirkin to object to the attorney's having referred to the material under consideration as "porn," which Sirkin has long considered to be a pejorative term for the sexually explicit material the adult industry produces.
That usage, plus the article in the newspaper, caused Sirkin to wonder if the jury was in fact following the judge's admonition not to read or listen to any media coverage of the trial, and whether they might violate the judge's order in the future? Sirkin then called for a mistrial on that basis, which the judge denied.
Freitas proceeded to play the three remaining video clips, Aaronson played part of the remainder of Golden Guzzlers 7, and the aforementioned argument ensued. Check back here tomorrow to see what the defense team's reaction to Judge Bucklew's statements will be.
Day 4: Witness Says Max Didn't Mail 'Obscene Videos'
In a surprise development, James F. Komurek, president and owner of JKG, Inc. and Jaded Video, testified this afternoon that it was his company, Jaded Video, that had sent the five allegedly obscene DVDs which Max Hardcore has been charged with mailing to Tampa.
Komurek, who had been given immunity by Andrew Oosterbaan, chief of the Child Exploitation and Obscenity Section of the U.S. Department of Justice, for any testimony he might give in the Max Hardcore trial, as long as he told the truth from the witness stand, admitted under cross-examination by Max World Entertainment attorney Dan Aaronson that Max Hardcore had no ownership or control over JKG or Jaded; that when Jaded placed an order for videos, including the so-called "Euro Versions," from Max World, Max Hardcore had no further control over the discs, and that Jaded could then ship those disks anywhere it pleased by any shipping method it pleased.
That testimony completely gutted the government's case regarding the five charged DVDs — Max Extreme 20, Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 — that had been ordered through links from maxhardcore.com, catalinaxxx.com and pissedonpornstars.com but all processed by Jaded Video's website jadedvideo.com and paid for by postal money orders received and cashed by JKG, Inc. In other words, aside from producing the features themselves, Hardcore and Max World had nothing else to do with those titles eventually being received by postal inspector Linda Walker in Tampa. It is therefore likely that Judge Susan C. Bucklew will have no choice but to grant a "Rule 20 motion" — that is, a motion to dismiss the interstate transportation charges — when the prosecution ends its case, which it is expected to do sometime on Monday. As things stand, all that is left of the prosecution's case is to complete the cross-examination of Walker, which is scheduled to include showing to the jury the portions of Fists of Fury 4 and Pure Max 19 which the prosecution had elected not to show during its direct examination. That presentation is predicted to take approximately four hours.
The day started out contentiously as well, with the defense team — Jeffrey Douglas and Jamie Benjamin representing Max Hardcore personally, and H. Louis Sirkin, Jennifer Kinsley and Dan Aaronson representing Max World Entertainment — having filed the previous evening a "Joint Motion for Mistrial and/or Recusal of Judge," based on the events of the previous day. Specifically, the defense pointed to the facts that Judge Bucklew had questioned the value of playing the remainder of the charged videos, and had refused to question a juror, who had written a note asking that only excerpts of the movies be played, as to whether he or she had disobeyed the judge's instructions and formed an opinion as to the guilt or innocence of the defendants, and whether he or she had discussed the case with other jurors — also a big no-no.
The judge denied the defense motion, and the remainder of Golden Guzzlers 7 was played. However, the judge had indicated that the showing of the rest of the unplayed videos might be interspersed with testimony from records custodians, a course that drew objections from the defendants. Aaronson argued that playing the movies in the sequence in which they were originally presented was important for their artistic value, and that breaking up the showings was prejudicial, in that it implied that the videos themselves were of lesser importance than the records evidence. Judge Bucklew denied the motion to play the videos as a bloc.
In any case, the judge's schedule did bring James Komurek to the stand that much more quickly, and his testimony appeared to completely exonerate Hardcore from all charges connected with the five DVDs. Interestingly, under questioning from Aaronson, Komurek admitted that his company still sells the charged DVDs and, incredibly, would still sell them to a customer in Tampa if they were ordered today — at least until the current trial established whether the DVDs did or did not offend the community standards of the Middle District of Florida, where the trial was taking place. Komurek said he might do so even over the objection of Hardcore and Max World!
Following the cross-examination by Aaronson and Benjamin, prosecutor Edward McAndrew attempted to "rehabilitate" the witness by referring to the 2257 notice and the copyright notice displayed on Hardcore's website, but the defense attorneys objected that such testimony was irrelevant. Judge Bucklew allowed the testimony, and denied Benjamin's motion for a mistrial on that basis, but it hardly refuted Komurek's earlier admissions.
At the end of the day, the judge reiterated a position she had earlier taken and backed away from several times — that she would consider preventing the defense from playing the remainder of the unplayed DVD footage — and questioned both sides as to how long they predicted the remainder of testimony would last. It was at this point that the defense said it intended to call an internet expert to do a live Google search to determine how much sexually explicit material of the type charged in this case was potentially available in the Tampa area, and Judge Bucklew seemed intrigued by the concept ... but said she would rule on its admissibility when the trial resumed on Monday.
Day 5: Prosecution Rests; Judge Weighs Motion to Dismiss
The prosecution rested its case late this afternoon, and Judge Susan C. Bucklew asked for the defendants' arguments on a "Rule 29 motion," otherwise known as a "motion to dismiss."
It had been a relatively uneventful day up to that point. The defense had played the final unplayed segments of two charged videos, Fists of Fury 4 and Pure Max 19, which finished up shortly after lunch, and the defense was permitted to call one of its witnesses, retired porn star Summer Luv, out of order.
Luv, who now works in the offices of a Las Vegas construction company, testified that she had shot about 15 scenes with Max Hardcore, and that although she had worked for several production companies including Elegant Angel, Metro, Simon Wolf and Red Light District, she enjoyed shooting with Hardcore most because the other companies "didn't care about you."
Luv then took the jury through a typical Max Hardcore shoot, noting that each time, he spent about an hour explaining what would be happening during the upcoming scene and making sure Luv would be okay with the various actions - anal sex, peeing, fisting and vomiting - to which the young starlet replied that she was, because "I'm kind of an extremist," and the action "piqued my interest." She noted that she had helped created the storyline of her humorous scene in Pure Max 19, where she played a Brazilian hooker, and that she was allowed to take breaks whenever she needed them during filming.
She also testified that since there was urination involved, both she and Max had drunk plenty of water two to three hours before the scene was to commence, so that whatever urine came out would be mostly water. She said that she was allowed to use a buttplug to stretch her ass before anal scenes, that the fisting was sometimes faked for stills, and that the sets were cleaned immediately after shooting was completed.
As to why Luv retired from adult, she said, "I grew up, I had a son, so I'm just being a mommy."
Under cross-examination by prosecutor Lisamarie Freitas, Luv testified that Hardcore paid her as much as $1500 for a scene, and in cases where he took her abroad to shoot, she was paid as much as $10,000, although she was sure of the exact figure.
After Luv was dismissed from the stand, the defense resumed its cross-examination of postal inspector Linda Walker who, under questioning by Max World Entertainment attorney Dan Aaronson, once again took the jury through her use of various Max Hardcore Web sites to purchase the five charged videos.
Under Aaronson's questioning, Walker reiterated that once she had decided on the DVDs she wished to purchase, clicking on a particular title would take her to the JadedVideo.com Website, which was where she would give instructions on where the videos were to be sent (Tampa, Fla.), and by what method she would pay (postal money order). She agreed that she knew she was buying the disks from Jaded, and that as far as her investigations had revealed, neither Max Hardcore nor Max World Entertainment (MWE) had had any ownership or control over Jaded Video, nor any input into where the videos which MWE had sold to Jaded would be sent, nor by what carrier they would be sent.
Hardcore's attorney Jamie Benjamin also questioned Walker, eliciting the information that it was another postal inspector based in Washington, D.C. who had directed her to purchase Max Hardcore videos, and that at no point had she ever conducted a survey regarding the community standards of the Tampa area.
It was at that point that the government rested its case, and MWE attorney H. Louis Sirkin took the podium to move that judgments of acquittal be entered for the defendants on all charges.
Sirkin's first argument dealt with Counts 1-5, the obscenity charges against the promotional trailers for the "Euro" versions of Max Extreme 20, Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 found on the maxhardcore.com Website. Since the Miller test for obscenity requires that the charged material be "taken as a whole," Sirkin argued that the jury had not been presented with sufficient information to do that, since only the five charged trailers had been played, and not any of the remainder of the Website, which a previous witness had testified contained at least 950 additional video clips.
Sirkin also attacked the "interstate transportation" portion of the charge, noting that Hardcore had no mens rea - "guilty knowledge" - that the servers upon which the charged Website material was stored were in Tampa, and that the company that hosted Hardcore's sites has multiple server locations worldwide. Moreover, he noted that the government hadn't even produced any evidence that either Hardcore of MWE had created the sites themselves; that it could easily have been an outside agency. He said that Hardcore's only knowledge of the hosting company was the bill MWE paid every month, and that although that bill came from Tampa, that that wasn't necessarily where the servers with his material were located.
More fundamentally, Sirkin asked that Hardcore and MWE be acquitted on all counts because Hardcore's material, rather than appealing to the "prurient interests" of the average person, was intended, rather, to appeal to persons with "atypical sexual proclivities" - those with specialized sexual interests generally of the "dominant/submissive" variety - and that the government had presented no evidence at all regarding that group, much less whether the Hardcore material would appeal to the "prurient interests" of that group. In so arguing, Sirkin was referring to the Supreme Court decision in U.S. v. Mishkin, where the defendant had been convicted of appealing to the prurient interests of what was then considered a deviant group: Gays.
Finally, regarding the charges of interstate transportation of obscene materials using the U.S. postal service (18 U.S.C. §1461), which included the charge of aiding and abetting such transportation, Sirkin argued that not only did Hardcore and MWE have nothing to do with mailing the charged DVDs to Tampa, by U.S. mail or any other method, but they also did not have the "guilty knowledge" that such mailings would be taking place, nor to which location the videos would be sent. In fact, Sirkin said, since MWE had sent the disks it sold to Jaded Video in Irvine, Calif. by UPS, it had every reason to believe that Jaded Video would fulfill its orders to customers by UPS as well - and that was significant because sending obscene material by "common carrier" is a different charge than 18 U.S.C. §1461, and neither defendant had been charged with that crime.
Sirkin also readopted his previous argument that the charged videos should have been played in their entirety as presented on the DVDs, rather than broken up with the government playing some scenes and not others, but Judge Bucklew quickly rejected that argument.
When it came her turn to argue, Freitas noted that she also would not deal with the concept that the government had not played all of the videos available on the various Max Hardcore Websites, since Judge Bucklew had already rejected that point during pretrial motions.
Instead, Freitas attempted to tie Hardcore to the mailed videos by noting that he had produced all of them, that Max World Entertainment was a corporation wholly owned by Hardcore himself, and that there were numerous indications on the Websites and even in the videos themselves that Hardcore had intended the videos to be sent to others for viewing. She said that the mere fact that Hardcore had sold the DVDs to an "agent" - Jaded Video - and the fact that he had contracted for space on Candid Hosting's servers for his Website material made out the government's case for "aiding and abetting," and that even though Hardcore and MWE didn't personally mail the disks, he should have known that Jaded would send the disks by some carrier, and that Hardcore had neither instructed Jaded not to send the videos to Tampa, nor to refrain from using the U.S. postal service to do so.
When Judge Bucklew asked for Freitas' response to Sirkin's argument that there was no evidence that the material appealed to the prurient interests of an "atypical sexual group," Freitas replied that there was nothing on the Websites that suggested that the material was directed to any such group (although she admitted that the site pissedonpornstars.com might be taken as such); that the sites merely said "adult entertainment" and that the site didn't appear to advertise the videos to any sexually deviant groups.
Sirkin answered Freitas' points by noting that once Hardcore and MWE had sold the DVDs to Jaded Video, they lost all control over what Jaded would do with them, and that Jaded was responsible for filling all of its own orders. He likened Freitas' argument to the situation of someone who bought a container of sour milk attempting to blame the "manufacturer" of the milk for the problem, rather than the grocery store where the milk had been purchased. Sirkin also referred to a recent Fifth Circuit case, U.S. v. McDowell, where the defendant had been acquitted because the government had failed to prove that the defendant had shared any intent to sell illegal material. Sirkin said that the government could make all the inferences it wanted as to what would be done with the DVDs once they were produced, but that it can't make out a charge of interstate transportation unless it could show that Hardcore or MWE knew the disks would be mailed to Tampa - and he also pointed out that the only sale the defendants were involved in was an intrastate sale from MWE in Pasadena to Jaded in Irvine.
Jeffrey Douglas, also representing Max Hardcore, then took the podium to note that while the government was claiming that the Mishkin case doesn't apply to the defendants because nothing on the Website targeted a deviant group, Edward Mishkin himself didn't market his gay material specifically to homosexuals; they knew to buy it because of the nature of the material itself, just as Hardcore's fans know to buy his material because of its dominance/submission themes. However, when Judge Bucklew claimed that there was a difference between gays and the groups Hardcore was apparently targeting, Douglas responded that the government would still have to identify the "deviant group" whose "prurient interests" the Hardcore material was appealing to, and it had not done so.
Douglas also shot down the government's contention that simply because Hardcore had put his (presumably constitutionally protected) material into the "stream of commerce," that that somehow made him responsible for what Jaded Video did with it. Since sexually explicit material is assumed to be legal unless and until a jury rules otherwise, Hardcore's selling and shipping the material to Jaded was a completely legal act - and in response to some laughter from the bench, Douglas went on to note that it didn't matter if the Court didn't like the material that had been presented; that reaction doesn't shift the burden of proving that Hardcore's material was unprotected by the First Amendment from the government to the defendants' having to prove that it is protected. Rather, it was the government's job to show that Hardcore had a "guilty mind" in sending the material to Jaded - something it had failed to do in its case in chief.
Judge Bucklew said that she would take the parties' arguments under advisement, and issue a ruling tomorrow.
Day 6: Expert Says Max Movies Appeal to 'Deviant Groups'
The sixth day of the Max Hardcore/Max World Entertainment (MWE) trial opened with disappointing news, as Judge Susan C. Bucklew denied most of the defendants' motions to dismiss the charges against the defendants.
Among the grounds for dismissal denied by the judge were that the material in question - particularly the five promotional trailers on the maxhardcore.com Website - had not been presented in their full context, in contradiction to the Miller test's dictum that such evidence be "taken as a whole"; that the government had presented no evidence that the charged material - five Web trailers and five DVDs - appealed to the prurient interests of the "atypical sexual group" - dominants/submissives - to which the defense has claimed the material is directed; that Hardcore himself had no knowledge that his Websites were being hosted in Tampa; and that Hardcore had no knowledge that the charged DVDs would be sent to Tampa via the U.S. mail.
On the other hand, the judge reserved her ruling on the question of whether Hardcore or MWE had "aided and abetted" the mailing of the five DVDs in question - Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 - to Tampa by Jaded Video, which had purchased the videos from Max World in the regular course of business. In so doing, she recounted many of the arguments given by both sides yesterday (see report here), but was unclear as to when she would issue her ruling on the motion.
The court then convened a "Daubert hearing" on the expertise of defense witness Dr. Michael Brannon, although prosecutor Edward McAndrew acknowledged that since the defense had agreed that Dr. Brannon would not testify as to opinions on the community standards of the Middle District of Florida (the applicable "community" for this obscenity trial), he would have no objection to the doctor's testimony. Hence, the hearing was brief, and covered little more than the doctor's educational and professional experiences.
Dr. Brannon testified that for roughly 11 years starting in 1988, he had taught human sexuality courses at both Broward County Community College and Nova College; that his students at Nova had been Ph.D. candidates in psychology; and that during that same period, he had treated patients with sexual problems, some involving "paraphilias" - obsessions with body parts or sexual practices that cause distress - in private practice as well. Dr. Brannon stated that he currently does sex offender risk assessments for the Florida Department of Corrections, which accounts for 10% of his practice.
Dr. Brannon also testified that the five charged videos appeal to identifiable paraphilic groups, mainly dominants/submissives, but also sub-groups interested in urination, fisting and vomiting - and that such groups are considered lifestyle choices unless the activities cause distress, in which case the persons may require treatment to overcome the stressors.
After Dr. Brannon's Daubert testimony, the defense renewed its motions to dismiss, based on U.S. v. Mishkin, arguing that the charged material was intended to appeal to the so-called "atypical deviant groups," and there had been no testimony during the prosecution's case as to the videos appealing to the "prurient interests" of such groups.
Prosecutor Lisamarie Freitas countered that nothing on the maxhardcore.com Website, from which the trailers had been downloaded and the DVDs ordered, advertised the videos to such deviant groups, that the boxcovers on the site mainly depicted anal sex rather than the paraphilias, and noted that no case law says that videos that appeal to deviant groups can't also have sexual content, which could make them liable for prurient appeal to average viewers in the community.
Hardcore's attorney Jamie Benjamin responded that Dr. Brannon's testimony would help the jury understand the obscenity charges, and as to the advertising question, "To say people didn't know what they were ordering because of a picture I don't think is a valid criticism." MWE attorney Jennifer Kinsley added that it was interesting that the government was now relying on non-charged portions of the maxhardcore.com Website to support its argument on advertising, but wouldn't let the defense use those same portions to support its argument that the jury would not be able to take the site "as a whole."
At that point, Judge Bucklew, noting that "He's not a quack," admitted Dr. Brannon as an expert in the case, and brought the jury into the courtroom to hear his testimony.
After reiterating his testimony on his education and qualifications, Dr. Brannon went into more detail as to what constituted a "deviant group," defining them simply as "groups that stand out from average groups," and noting that dominants and submissives are one such group.
After watching the five videos indicted in this case, Dr. Brannon said that he consulted with colleagues who had had extensive experience with paraphilias, including Palo Alto-based Dr. Marty Klein, and a former colleague at Nova College, Dr. Timothy Moraney. Based on information from the two doctors, Dr. Brannon then went on the Internet to seek information on dominants/submissives and the subgroups within that genre, and found "more [Websites] than you can possibly imagine" - which, to him, meant more than 100 - dealing with mistress/slave play, bondage and restraints, urophalgia (consumption of urine) and vomiting.
Dr, Brannon said that in researching the paraphilias, he consulted the Diagnostic and Statistical Manual 4 (text-revised) - DSM 4 (TR) - which classifies sexual disorders, but noted that in the absence of distress over the paraphilic behaviors, the activities are not considered to be in need of treatment, but are simply an attraction. He also stated that the activities depicted in the five charged videos fit within both the DSM 4 (TR) and his own experiences with his patients as appealing to an identifiable paraphilic group. Later, under questioning by MWE attorney Dan Aaronson, the doctor said the videos would appeal specifically to fans of dominance/submission because much of the interaction between Hardcore and his partners took the form of "command language," a classic characteristic of dominance/submission. He also termed the actions where Hardcore urinates into the mouths of his sexual partners or causes them to fist each other and to induce vomiting as "the ultimate act of control" and "the essence of control," and that if the participants enjoyed such activity, it would not be considered a mental disorder, nor would it lead to a "shameful or morbid interest" in the behaviors - the classic definition of "prurient interest."
On cross-examination, Freitas brought out that the DSM 4 (TR) is not a legal document, and that the language of legal standards and psychological diagnoses are often not identical. She also asked the doctor about other paraphilias listed in the DSM 4 (TR) such as necrophilia and pedophilia, both of which the doctor acknowledged that he knew were illegal, but said that he had no opinion as to what depictions on the charged DVDs might be illegal.
After the lunch break, the defense called its final two witnesses, George Scott and Cynthia Rush, both private investigators (and former IRS agents), both of whom had found sexual material in the Tampa area and on the Internet similar to the material charged in the indictments at issue.
Scott testified that he had conducted a number of Internet searches, which he recreated in the courtroom, using search terms related to the charged material. For instance, one Google search included "pissing," "porn" and "video" and specifically excluded (as did all the searches) "trial," "juror" and "Max Hardcore," in order to eliminate all hits related to the current trial. That search brought up roughly 1.7 million pages, while "fisting," "porn" and "video" brought up 1.98 million. By contrast, a search for Heismann trophy winner "Tim Tebow" and "video" brought up just 306,000 pages; "David Cook" plus "American Idol" plus "video" brought 1.5 million pages; and the big "winner," "Rolling Stones," brought up 2.1 million. Scott said he had performed similar searches at a university library and a public library in the area, and had gotten similar results.
Scott also testified that he had viewed several DVDs purchased by his associate either in local adult stores - there are at least 54 in the tri-county (Pasco, Pinellas and Hillsborough) area - or sent to the Tampa area after being ordered over the Internet. Some titles included Pee-Tastic, Overflowing Assholes, P Is For Pleasure and German import Piss Schlampe. Scott testified that all of the titles contained material similar to that on the charged material, while Rush later confirmed that she had indeed bought the titles locally or had ordered through various Websites - including jadedvideo.com.
That testimony completed, the defense rested its case, and Judge Bucklew took up the question of what language she would use to charge the jury as to the law of the case.
Generally, the defense urged the court to take out language that referred to material that was either "obscene" or "indecent, immoral, lewd and lascivious," arguing that referring to both protected and unprotected speech in the same charge would be improper and prejudicial. The court agreed, and that extraneous language was stuck.
The defense had less success in getting the court to change language referring to the material's "acceptance" by the community to "toleration" by the community, but their biggest defeat concerned how the judge would tell the jury to define and apply "community standards."
Among other points, the judge denied defense requests that she tell the jury that the government had failed to prove community standards beyond a reasonable doubt; that the jury had a right to consider, as part of the "community," material available over the Internet; that the jury be reminded that it was to apply the community standards, not make them; and an instruction that if the jury could not determine the community standard to be applied, that it must acquit the defendants.
Day 7: Closing Arguments Reveal Prosecution's True Agenda
With one of the defense's motions to dismiss still outstanding, Judge Susan C. Bucklew brought the trial of Paul Little (better known as actor/director Max Hardcore) to its final stage on Wednesday, when she gave the 12-person jury the instructions they would need to consider the evidence and render their verdict, and gave the government and the defendants their opportunity to summarize the case from their respective points of view.
Most of the judge's jury instructions followed the form set down by the 11th Federal Judicial Circuit, within which the trial is taking place. She warned jurors that in their deliberations, they were only to consider the testimony and exhibits allowed into evidence, and that nothing she or the attorneys had said, including their opening and closing statements, could be considered in determining guilt or innocence.
The judge also read for the jury the charges in the indictment, which included five counts of transporting obscene materials - promotional trailers for the "Euro" versions of Max Extreme 20, Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 - in interstate commerce by use of the Internet with intent to distribute, and five counts of mailing obscene materials - those same movies - to the Middle District of Florida - specifically, to a postal inspector stationed in Tampa.
There were also, however, instructions specific to this case. For instance, the judge warned the jurors that despite the fact that in the videos they had seen, Max Hardcore and his female partners occasionally declared that they were under 18 years old, that there was no allegation that any minors had been used in the productions.
Judge Bucklew also accepted an important argument the defendants had raised the previous day, that when the jury applied the "prurient interest" prong of the Miller test for obscenity of the movies in question, they should decide whether the movies were intended to appeal to the average person in the community, or to the "intended and probable recipients" of the movies, an "atypical deviant group," as had been described the previous day by Dr. Michael Brannon to include dominants/submissives and fans of urination, fisting and vomiting. She also instructed them that if they should find that the appeal was to the "clearly defined deviant sexual group," they should decide if that appeal was to a "morbid, shameful or unhealthy" interest of that group, and warned that the jury "must not condemn [the material] by your own standards," but rather by the standards of the Middle District. Prosecutor Edward McAndrew had argued that the jury be allowed to decide the prurient appeal to both groups, based on his reading of U.S. v. Mishkin, the controlling Supreme Court case on the subject.
The instruction was important because it recognized that Hardcore's material does not, as Dr. Brannon testified, appeal to the same audience as would, for instance, a Vivid, Wicked, Red Light or Evil Angel title, and therefore should not be judged by the same standards. It also, however, proved somewhat difficult to understand, and was the subject of a question from the jury after approximately an hour's deliberation.
The judge also recognized that "freedom of expression is fundamental" to American society, but claimed that while "pornography" is legal, "obscenity" is not, and the jury must apply the accepted three-prong test to the material in question. In discussing "community standards," the judge told the jury that they may not consider or use standards they think should be accepted in the community, but rather what they feel the standards are, and noted that "mere availability [of the material in the community] is not acceptance."
Prosecutor McAndrew then took the podium - and did his best to confuse the issues through misdirection and half-truths.
"You know what you saw and you know how it made you feel," McAndrew said of the eight-and-a-half hours of video that had been played in court, thereby suggesting that the jurors use their personal standards to judge the material, rather than attempting to assess the standards of the entire community. He also compared watching the Hardcore videos to watching a murder being committed or to watching child sexual molestation, opining that the video material "was tough to stomach."
He also tried to distance himself from the substance of his own case by telling the jury that it was the defendants who had "made" them watch the full videos, after the prosecution had elected to play only excerpts from four of the videos in apparent violation of the Miller requirement that the material be "taken as a whole."
Turning to the specific charges, McAndrew displayed screen captures of the maxhardcore.com home page, bolstering his future argument on forfeiture of the defendants' assets - his home and all of his Internet domains - by noting, "Paul Little, in the fullest sense of the phrase, is all over these videos," and that several of the scenes were shot in Little's home.
Part of the defense contention is that Little did not know that his Websites were being hosted in Tampa, and that failing such "scienter," he could not be convicted of the interstate transportation charge regarding his sites. McAndrew called attention to a "traceroute" that his forensics expert, Michael Fottrell, had run on the Hardcore sites, the penultimate link of which had, he claimed, been to a Tampa-based server - although as Max World Entertainment's attorney Jennifer Kinsley later pointed out, such claim was based on Fottrell's understanding of airport city abbreviations ("TPA" for "Tampa") rather than actual knowledge. But, claimed McAndrew, Fottrell "knows where the Internet is" - a statement that is likely to come as a surprise to most Internet experts, since the Internet is "located" in the ethereal "cyberspace." But, McAndrew said ominously, Hardcore's site is "right around the corner from where you're sitting today," referring to the site of CandidHosting, Hardcore's former ISP.
In another attempt to prejudice the jury, McAndrew advised them to look at "Max Hardcore's Biography" on Hardcore's home page, which makes obviously exaggerated claims regarding Hardcore's history in the industry and the acceptance (or lack thereof) of Hardcore's movies by mainstream adult outlets.
Turning to the charges regarding the mailing of Hardcore DVDs to Tampa, McAndrew called attention to the fact that when attempting to buy one of the videos listed on Hardcore's site, clicking on a title redirects the customer to online retailer Jaded Video's Website. At that point, the customer would order the video from Jaded, pay Jaded for the material, and Jaded would send the video out to the customer. McAndrew conveniently ignored the fact that Jaded's owner, James Komurek, had testified that Jaded had purchased the Max Hardcore videos outright from Max World Entertainment for resale, that that Hardcore/Little had had no control over what Jaded did with the videos after the sale. Nonetheless, McAndrew charged that "Mr. Little knowingly caused the DVDs to be delivered by mail," and "They [Little and Max World] took steps to start the chain of distribution in motion." In other words, McAndrew was saying, the mere production of the videos in the first place made Little liable for what some third party did with them!
Worse, McAndrew called the jury's attention to the warnings that precede each Hardcore video, where either Hardcore or f