Dance Number Created by John Stagliano for the 2008 AVN Awards Show:

Originally written by Max Hardcore:

My friends,

Appologies for not posting up for a while, as I’ve been getting my ass kicked all over a courtroom in Tampa. As you know I’ve been convicted, and sentenced to an unbelievable 4 years in federal prison! I was also fined $85,000. Some people say it could have been worse. I say fuck that shit!

Me and my legal team, led by the incredible H. Louis Sirkin, believe we WILL WIN when our case goes before the US Court of Appeals.

As you can imaging, I’ve spent a bundle so far, so I can really use your assistance! Help me do what I can to beat back the evil government forces who want to control your life, and ban all adult entertainment!

I urge you to send what you can today, be it $20, $100, $1,000 or more, so we can put up the strongest case we can, send these fascist fuckers back to hell!

Make out Checks or Money Orders to:
Sirkin, Pinales & Schwartz, LLP
(Note on the check that it’s for the Max Defense Fund)

Then send them to:
Sirkin, Pinales & Schwartz
Attorneys at Law
920 Fourth & Race Tower
105 West 4th Street
Cincinnati, Ohio 45202-2726

You can also contribute by using a Credit or Debit Card! Call them at:
513 721-4876
(Say you want to contribute to the Max Defense Fund)

The final way to contribute if you have a Paypal account. Use as the recipient: MaxWorldSupport@gmail.com

Together we stand, divided we fall, C’mon now people lets, get on the ball!

Thank you!
Max Hardcore

Originally posted on AVN.com:
By Mark Kernes
October 3, 2008

TAMPA - At more than three hours, it was the longest sentencing hearing anyone could recall for a single defendant convicted of transporting obscene materials.

This morning, U.S. District Judge Susan G. Bucklew sentencd director Paul Little, aka Max Hardcore, to 46 months in federal prison for distributing obscene material through the mail and the Internet. Little was fined a total of $7,500 and his company was fined a total of $75,000.

AVN spoke to defense attorney H. Louis Sirkin about the proceedings. Note from DefendOurPorn: Louis Sirkin is also on the legal team for John Stagliano.

“The judge took a recess before she imposed sentence,” Sirkin told AVN. “And she came back and relieved all of us pretty quickly. She said right away that she believed a sentence within the guidelines was appropriate, so we knew right away where she was starting from.”

Federal sentencing guidelines are a complicated affair, and thanks to the Supreme Court decision four years ago in U.S. v. Booker, they’re now “advisory” rather than mandatory - but they’re all about the numbers, and violations which have nothing to do with the charges immediately before the court can nonetheless affect a sentencing’s bottom line.

“The judge followed the advisory guidelines, found that it was a level 22, and gave him the minimum which is 46 months because he was in category 2,” Sirkin explained. “When the mailing [of the "obscene" material] was done, he was on probation for a DUI, so he got three criminal history points because of that, which put him into category 2 [a "second offender"] of the sentencing guidelines, which put him in a sentencing range of 46 to 57 months, and if he had been in category 1, he would have been in a guideline range of 41 to 47 months.”

“She did impose a fine substantially, and I mean overwhelmingly, below the corporate guidelines for the corporation,” Sirkin continued. “The corporate guideline fine range was $1.2 million to $2.4 million; she imposed a $75,000 fine on the corporation, and she imposed the minimum fine on Max of $7,500. The only thing that she did, she ordered the fines to be paid immediately, and I don’t know what his ability to pay that is.”

Sirkin’s partner, Jennifer Kinsley, noted that Little and his corporation would also have to pay $5,000 in “special assessments,” fees which are standard in every criminal case.

Perhaps more importantly, Little will be allowed to self-surrender, probably to Lompoc Federal Correctional Complex, which is about 175 miles north of Los Angeles, when he receives notice to do so from the U.S. Marshals Service. The notice is expected to take four to six weeks to arrive.

“She allowed him self-surrender, which was over the opposition of the government,” Sirkin noted. “The probation department said that during the pretrial assessment, he had done everything that was asked of him, and California pretrial confirmed that, so she saw no reason not to allow him to do self-surrender.”

“She allowed him, since he’s increased his drinking a little bit because of the stress of this, and he indicated that both his dad and his brother died of cirrhosis of the liver, she did order, if the Bureau of Prisons finds it appropriate, that he be allowed to go through an alcohol treatment program, and if that’s the case, it could knock some time off,” Sirkin added. “They still get 54 days a year of ‘good time’ after the first year. The rule of thumb is that you serve 85% of your time, which in Max’s case is about 39-1/2 months.”

The fine was actually a surprise to observers, because the government had argued that as far as the revenue that Little had earned from the sale of the five “obscene” movies and the five “obscene” trailers posted to his Website, the judge should take into account Max World’s entire stock of charged DVDs, rather than just the number of DVDs of those titles that Jaded Video, Max World’s distributor, had sold, and that the entire revenues derived from subscriptions to Max World’s various Websites should be counted as well. But Judge Bucklew rejected that argument.

“She accepted the probation officer’s recommendation that the financial, pecuniary gain be $40,000, which made it a six-level increase, and we did fight that it should only have been five,” Sirkin explained. “She rejected the government’s position that it should have been all the revenue to join the website, to subscribe to the Website, and she said there was no way to determine whether anybody had viewed any of those movies or trailers that were ultimately found to be obscene; therefore, that wouldn’t be fair. But she did include all the sales that the government was able to prove or to show of the five movies that had been mail-ordered, which equaled $40,000.”

“I tried to say, look, if you take the position the government is taking or that the probation department is taking,” Sirkin continued, “that means that if I’m Barnes & Noble and I sell Lady Chatterley’s Lover or Fanny Hill [two novels which had been found obscene in the mid-20th century] and it’s determined to be obscene, that means then that you should go across the country and look at all the sales that that book has sold at all the Barnes & Noble outlets and put them into a guideline level, and the pecuniary gain would go through the roof, and that would amount to a prior restraint, because nobody then would want to carry anything that is at all even questionable anywhere. She rejected the U.S. attorney’s position on that.”

The fact that the Internet was involved in the crime, and that some of his revenues were derived from his Websites, added points to the base guideline numbers.

“He’s category 2,” Sirkin explained, “and no matter what way you look at it, unless you do ‘acceptance of responsibility’ [for the crimes committed], when you’re dealing with the Internet, even with the most minute of pecuniary gain, you’re going to start at [level] 15, and if your use of the Internet in any way figures into your crime, you’re going to get 2 [additional levels]; that takes you to a 17. And if you’ve got any type of activity like spanking, slapping and so on, you’re liable to get hit with ’sadomasochism,’ which takes you to a 21. So even if you’ve got acceptance of responsibility, that puts you at a 19, which I believe is 21 to 29 months.”

Sirkin believes that the defense team - Sirkin, Kinsley, Jeffrey Douglas, Dan Aaronson and Jamie Benjamin - has several very appealable issues, not the least of which is that, despite the jury’s verdict, the fact remains that neither Little nor Max World mailed any movies to the Tampa area; that it was Jaded Video that did the fulfillment, and there was testimony at trial that the mailing to Tampa may have been against Little’s explicit orders.

There were also several aspects of the case which Sirkin thinks should give other adult producers pause.

“The reason it’s as high as 46 months is because of the criminal history,” Sirkin noted. “DUIs come back to haunt you, and people have to be aware of all of that. Jamie did argue that there should be a variance downward because the criminal history overstated his real history, but the judge didn’t buy that. But we reserved our right to appeal things with the sentencing. Now, in the event that the mail order counts would be thrown out, his guideline level would go down. His criminal history level would go down to 1, and secondly, the pecuniary gain would go down to 15. That would take him down to a level 21; it would knock off maybe as much as 16 to 20 months, and there is a real strong possibility that because the dollar figure came from the purchase of the mailed five movies, so if the mail order counts, which we have a very good legal issue involved with, were reversed, his sentencing guideline level would go down, and he would be subject to a much lighter sentence.”

Overall, however, Sirkin is pleased that he and his team members were able to accomplish as good an outcome as they did.

“I think that ultimately the way this thing worked out,” he said, “to go to trial and get the minimum without an acceptance of responsibility and all that kind of stuff, or agreeing to just immediately shut down a business, I think it’s incredible the sentence we ultimately came out with, so we put a lot of guts into it, and certainly, I think anybody else in the industry now who would get in trouble now have a great comparable to say why the minimum should be imposed.”

It’s just this sort of synchronistic accomplishment, which may be of benefit to others who get busted for arguably tamer material, that leads Sirkin to make the point that even the federal trial of one producer can and probably will affect future cases across the country - and that therefore, Little deserves the industry’s monetary as well as philosophical support.

“I really think it’s an important message to get out there,” he said. “I say it over and over and over again, but it really does matter, and this lack of support from the industry gets to be a frustrating situation for us guys out there on the forefront.”

Sirkin expects to file his Notice of Appeal within 10 days, and he expects that Judge Bucklew will allow Little to remain free while it is pending.

“The judge was very, very patient today,” Sirkin noted, “and she listened to Paul’s statement. She showed some degree of compassion; she was not nasty at all. And the two U.S. Attorneys, Edward McAndrew and Lisamarie Freitas, acted very professionally.”

“I think there was some interesting language that came out of McAndrew that the adult industry might want to see,” Sirkin said, returning to his earlier point, “although on the other hand, it’s still going to make some people think, ‘Well, I’m different; I’m not like Max, and I fit that other category that they’re not going to do anything about,’ but they never say specifically what they will leave alone and what they won’t leave alone. That changes with the wind.”

Originally posted on AVN.com:
by Mark Kernes
October 3, 2008

TAMPA - Director Paul Little, aka Max Hardcore, was sentenced today to 46 months in a minimum security prison on federal charges of distributing obscene videos through the mail and the Internet.

Little was fined $7,500 and his company Max World Entertainment was fined $75,000. The director was charged with 10 counts in all, plus another 10 counts for his company.

U.S. District Judge Susan G. Bucklew gave Little the minimum fines allowable by law. The recommended range for the fines was between $1.2 and $2.4 million.

Judge Bucklew also ordered Little to serve three years probation upon his release from prison, placed the company on five years probation and imposed a total of $5,000 in “special assessments.”

Attorney Jeffrey Douglas confirmed to AVN that he plans to appeal the sentence in the 11th Circuit U.S. Court of Appeals. The notice of appeal will be filed within the next 10 days.

Little has been advised to make no statements to the press. He is free pending his appeal.

Check back shortly for more details.

Original story posted on XBiz.com
By Bob Preston
September 23, 2008

CLEVELAND — A former Ohio public official has decided to maintain his guilty plea in a federal obscenity case that deals with adult pornography, not child porn.

Patrick J. O’Malley, 50, used to be the county recorder for Cuyahoga until a 2004 investigation. Officials obtained a search warrant and entered his home as part of divorce proceedings between O’Malley and his wife.

At the time, officials said they were looking for child porn on O’Malley’s computer. They found pornography, but it involved only adults.

An official report said that the adult content found on O’Malley’s compute “portrays a sadistic or masochistic conduct or other depictions of violence.”

O’Malley’s attorney, Ian Friedman, said that the adult content found on O’Malley’s computer “crosses the line.”

Free Speech Coalition Chairman Jeffrey Douglas told XBIZ that this case shouldn’t have much affect on the adult industry.

“By no means should anyone derive from this that the federal government has an agenda against BDSM,” he said, adding that the federal government had pursued “very few” prosecutions against content in the BDSM or sado-masochistic genre.

At the same time, Douglas lamented O’Malley’s guilty plea.

“It’s a tragedy for [O'Malley],” Douglas said. “Personal possession of obscene material is not a crime. Even assuming that the material was exceptional in some way, it is very defensible.”

Douglas noted that typically a defendant has to sell or transport obscene material in order for an action to be deemed a federal offense. Online reports indicate no such behavior by O’Malley.

U.S. District Judge David Dowd gave O’Malley the chance to change his initial guilty plea because Dowd had not told O’Malley everything about his initial plea agreement. O’Malley decided to keep the same plea.

The judge will hand down O’Malley’s sentence on Oct. 3 in Akron, Ohio. When sentenced, O’Malley faces anywhere from six to 18 months in prison.

According to a local news report, O’Malley has since taken a job at an insurance company.

Note from Karen Stagliano: Speaking to Karen Fletcher’s lawyer, he reiterated what was said i the article that Ms. Fletcher is a long time agoraphobe. She willingly confines herself to her home, and the thought of leaving her home terrifies her, so a trial or the possibility of going to jail would have been very difficult for her. So she decided that in her case, agreeing to a plea bargain was the best thing for her personally.
If she had gone to trial, it is highly possible that she may not have been convicted, but we will never know.

Article originally posted at XBiz.com.
By Stephen Yagielowicz
August 7, 2008

PITTSBURGH — “Red Rose” website owner Karen Fletcher was sentenced today after pleading guilty to six counts of distributing obscenity online.
Fletcher’s plea concludes her three year fight against federal charges stemming from fictional stories which appeared on her website, and was entered before U.S. District Judge Joy Flowers Conti, who sentenced Fletcher to six months of house arrest; 5 years of probation; and a $1,000 fine.

Pittsburgh is the same venue where the Extreme Associates obscenity case is being pursued, although no action has been taken in the case since August of last year.

XBIZ has reported on the Red Rose case since the the closure of Fletcher’s website in October of 2005. It shuttered over stories that, among other topics, allegedly depicted the rape and torture of children and infants.

“I never thought I’d be in trouble for the written word,” Fletcher told XBIZ at the time of her site’s closure. “I had no pictures of a sexual nature on my site, adult or otherwise. [It seems] the only legal sex stories are those that involve a man and a woman consenting to missionary position sex in a dark room.”

Although many observers doubted that an obscenity conviction based solely on text-only content could be made in today’s society, Fletcher’s emotional state, including suffering from agoraphobia — a fear of public places — reportedly prevented her from carrying on the fight for her free speech rights.

“This plea was mandated by the client’s mental and emotional state. She cannot endure a week long trial in a public place, and would not likely survive any period of incarceration,” Lawrence Walters, an attorney representing Fletcher, told XBIZ.

Fletcher helped prevent minors from accessing the Red Rose site by charging a $10 monthly membership fee, and while allowing the posting of stories by members, prevented any images from being posted.

“In the end, I am confident that Free Speech rights will prevail, but it will probably take somebody willing to sit in a federal prison while their case is being hashed out in the appellate courts,” Walters added.

Originally posted at avn.com.
By Wade Garrett
September 17, 2008

WASHINGTON - A Florida producer has been charged by a federal grand jury in Billings, Mont., with distributing obscene DVDs through the mail, Acting Assistant Attorney General of the Criminal Division Matthew Friedrich and U.S. Attorney for the District of Montana William Mercer announced.

In a sealed indictment returned by the grand jury on Aug. 20, 2008, and unsealed Tuesday in federal court in Billings, Miami resident Barry Goldman, 58, doing business using the names Torture Portal, Masters of Pain and Bacchus Studios, was charged with three counts of using the mails to deliver DVDs containing obscene films to an address in Billings and one count that seeks forfeiture of certain assets of the defendant. The specific films named in the indictment are Torture of Porn Star Girl, Pregnant and Willing and Defiant Crista Submits, according to a Department of Justice press release.

Goldman was not available for comment at press time.

If convicted, he faces a maximum penalty of five years in prison and a fine of $250,000 on each of the three counts charged in the indictment.

The case is being prosecuted by Trial Attorney Kenneth Whitted of the Criminal Division’s Obscenity Prosecution Task Force and Assistant U.S. Attorney Marcia Hurd of the U.S. Attorney’s Office for the District of Montana. The investigation was conducted by the FBI’s Adult Obscenity Squad based in the Washington, D.C., field office, with assistance from the FBI’s Billings field office.

An indictment is merely an accusation. All defendants are presumed innocent of the charges, and it is the government’s burden to prove a defendant’s guilt beyond a reasonable doubt at trial.

For one week, John Stagliano participated in a section of the LA Times online section titled Dust-Up.

http://www.latimes.com/news/opinion/la-op-dustup-2008-jun30-jul3,0,4673895.storygallery

Pepperdine University’s Barry McDonald, a free-speech scholar and former clerk for William Rehnquist, debates government regulation of pornography and obscenity laws with adult entertainment director, producer and distributor John Stagliano.

To see them, go to LATimes.com.

The subjects:
How harmful is porn?   July 3, 2008
John Stagliano says anecdotes aren’t enough to paint adult entertainment as an industry rife with abuse. Barry McDonald says the government needs to use all available tools to rein in the industry.

L.A.’s smut empire    July 2, 2008
Barry McDonald says we shouldn’t be so sure that the economic benefits of porn justify its social costs. John Stagliano replies that he’s afraid of what happens when any business is overly regulated by the government.

A judge’s porn collection   July 1, 2008
John Stagliano says the uproar of Judge Kozinski’s picture collection exposes the public’s reluctance to accept human sexuality. Barry McDonald replies that Kozinski did the right thing by recusing himself from an obscenity case.

Stuff so raunchy, it’s illegal  June 30, 2008
Barry McDonald details the legal tests and reasoning behind the enforcement of obscenity laws. John Stagliano says no one should be sent to prison for distributing images others don’t like.

XSF ‘08: Legal Obscenities Seminar
Stagliano assumes the role of freedom fighter as attorneys urge industry unity to defend 1st Amendment rights

Posted on XBizForum.com are video clips from the Legal Obscenities Seminar. Click on that link to watch the videos.

Original article from XBiz.com:

By Joanne Cachapero
Saturday, Jul 12, 2008

LAS VEGAS – On Thursday, in the one of the most well-attended XBIZ Summer Forum ‘08 seminars, more than 120 attendees turned out to hear a wide-ranging discussion on obscenity and the comments of recently indicted Evil Angel director/producer John Stagliano, as well as attorneys Lou Sirkin, Jeffrey Douglas, Lawrence Walters, Allen Gelbard and Greg Piccionelli. The panel was moderated by XBIZ’s Tom Hymes.
While last year’s hot legal issue was U.S.C. 18 2257 regulations for record-keeping, the hard-to-define subject of obscenity prosecution seemed to evoke more concern, especially in light of recent decisions in the Max Hardcore and Ray Guhn/TitanCash cases. Hardcore was an attendee at this year’s XBSF, but not present at the legal seminar.

Stagliano, who led off the discussion, was accompanied by wife Karen and Evil Angel director Joey Silvera, whose “Storm Squirters 2” is one of the titles named in the obscenity indictment.

Explaining his feelings on standing accused, Stagliano told the audience about being prosecuted based on the subjective decision of authorities at the Justice Department, who have claimed that his company’s movies are “obscene.”

“I’ve been thinking about why they did this to me” he said. Stagliano pointed out that he is facing 32 years in jail based on the prosecution’s dislike of his movies and that, somehow, the content threatens the rights of a community.

Stagliano went on to say that he believed the rights of the individual outweigh the rights of community, and that defending the rights of the individual is what the American Constitution is based on.

He noted also the decision in the Hardcore case, in which the defendant was found guilty on 10 counts of distribution of obscene materials.

“Some jurors in the Max Hardcore case wanted to acquit, but didn’t have the balls to stand up to the other jurors,” Stagliano pointed out. “But they believed in freedom in their hearts.”

Unlike in the Hardcore case and the Extreme Associates case that is currently being litigated, where the material in question is considered on the fringe of extreme sexual content, the Evil Angel material is closer to what most adult producers consider more “mainstream” content. Many adult producers have created DVD titles and online content featuring similar themes.

“John’s material is very middle of the road and I think the government doesn’t understand his material,” attorney Sirkin told XBIZ.

“We as lawyers, to be honest, you either believe in the 1st Amendment or you don’t. You either believe substantive due process rights,” Sirkin added. “My only criteria — that I don’t encourage anybody to make is that which is not being done by consensual, participating adults. As long as they are willing, and obviously, nobody should be hurt.

“Acting does show extremes of what goes on in human life,” Sirkin offered, “whether we find the situations or the materials may seem to be degrading, it’s only degrading to the viewer, because for the people participating in it, it’s voluntary behavior.”

But the vague standards that exist for defining obscenity become increasingly murky, complicated by rapidly evolving advances on the Internet.

“Obscenity will remain a threat to anyone in this room,” said XBIZ columnist Piccionelli, addressing both DVD and online producers in the audience. “But in a digital environment, who is the most at risk?”

Piccionelli cited that most prosecutions were targeted at producers of extreme material and said while he would not discourage the right to distribute such material, that adult producers might consider the type of content they were willing to distribute as a business decision, in terms of determining how much risk to take.

Sirkin, who has provided counsel in numerous 1st Amendment cases including Extreme Associates and the JM/5-Star cases, raised the ever-looming debate over how courts determine what material is “obscene,” based on the Miller test’s criteria of materials being considered “as a whole” and being deemed obscene by community standards.

All the lawyers agreed that with the rapid changes in online distribution formats caused by the proliferation of Internet adult websites, the criteria are no longer accurately defined by standards set more than three decades ago.

“[The definition of] community is the core central feature of obscenity,” Piccionelli said.

In terms of defining a global Internet community where, reportedly, 12 percent of Google searches are adult-oriented, standards for obscenity become a grey area.

Walters pointed out that in the Ray Guhn pre-trial arguments, he used Google statistical data to show that the word “orgy” was searched more frequently in the trial venue in Pensacola than the phrase “apple pie.” He also utilized mail order statistics from adult retailer Adam & Eve to show that many residents of the area were purchasing adult products.

Douglas, who was part of the Hardcore defense team and has litigated many other obscenity trials, said that it was his opinion that most judges in state and federal courts were not willing to “put their neck out there” and hand down a ruling that could potentially determine standards for the definition of community on the Internet – especially with Internet law being mainly new and uncharted territory.

“I don’t think all judges are afraid,” attorney Gelbard told XBIZ. “A judge that is more technologically savvy — a younger judge that grew up in a more liberal time when he’s confronted with some of these issues, may well realize that prior law isn’t on point. It’s one thing for a judge to say that a court superior to me has spoken on this exact issue and I don’t have the authority to change this. It’s another thing to say that no one has spoken on this specific issue yet, so I have a clean slate to write with — and I think that may happen far sooner than later.”

Walters pointed out also that, when applying the “taken as a whole work” criterion of Miller, that there was an arguable point that websites must be taken as a whole, similar to a book or a magazine with pages and pages of content. The idea of juries being required to review entire websites in order to determine lack of significant social or artistic value might be enough to squelch prosecution of online producers, he said.

Gelbard, who is a member of Stagliano’s legal defense team, stated his opinion that the issue of obscenity is largely political and often prosecuted in order to appease right-wing religious factions or to secure funding for various Justice Department divisions that deal with obscenity, child pornography and crimes against women.

However, on an individual level, Gelbard cited the problem as being rooted in violation of an individual’s right to access legal material in the privacy of their own home. Adult producers like Stagliano, he said, were directly defending those rights to privacy laid down in the Constitution.

Aside from the discussion of many other related issues that forced the seminar to run over its time limit, the attorneys also urged action from adult industry members, in order to take a “front line” stance against obscenity prosecutions, but also to protect the individual right of free speech.

Piccionelli advised all adult online producers to add a disclaimer to their website, declaring the material contained within as legitimately produced content that was not child pornography. This, he said, would help to separate the often confused issues of adult content being associated with illegal child pornography and would also add significant social value to a website.

He also urged online webmasters to copyright their websites as a whole work, reinforcing the idea of the entire website being considered a whole work, in the event of obscenity prosecution.

Douglas urged industry members to join the Free Speech Coalition, of which he has been longtime chairman, as well as other civic groups including the American Civil Liberties Union and a local Chamber of Commerce.

“Be a small hero for your industry,” Douglas urged.

Walters and Sirkin agreed that, in respect to obscenity prosecutions, each adult producer should feel obligated to be a “foot soldier” and present a unified front in support of the industry.

As an example, Sirkin pointed out that in the Hardcore case, many retailers pulled Hardcore’s products off their shelves, fearing prosecution. Then, when the defense team went to gather evidence that Hardcore’s product was commonly sold in local adult retail stores, they ran into problems locating product, in order to show the court what was commonly available for sale. He encouraged adult producers, distributors and retailers to take a strong pro-pornography stance and not be swayed by fear of potential prosecution.

The Staglianos made an appeal for industry members to visit their new legal website, DefendOurPorn.org, where interested parties could follow the trial and get more information, as well as make donations.

An audience member suggested that perhaps the online industry might consider donating 25 cents to $1 from each membership, in order to fund legal defense and resources for adult producers, and that such a program might be facilitated by the payment processors.

Without time left for audience questions, the seminar ended with several audience members lingering to discuss their concerns. And though most adult producers clearly hope they would never have to retain the services of 1st Amendment attorneys or face prosecution, the reasons why they might be targeted still remain a mystery and a cause for concern.

“I think that any time that anyone is prosecuted, whatever the material may be, it has a chilling effect and it’s frightening,” Sirkin said.

From AVN.com:

By: Mark Kernes

Posted: 07/28/2008

TAMPA, Fla. — In an order issued today, U.S. District Court Judge Susan Bucklew has denied the motion by defendants Paul Little (a.k.a. Max hardcore) and Max World Entertainment for a new trial and/or a judgment of acquittal for the charges upon which they were convicted on June 5. Little and Max World had been charged with interstate transportation of obscene material and of posting obscene material on the Internet.

Among the multiple bases for new trial or acquittal contained in the defense motion, authored by Max World attorney Jennifer Kinsley, were three instances of jury irregularities; charges of bias against the defendants allegedly committed by Judge Bucklew herself; failure of the prosecution to produce enough evidence for the defendants to be found guilty; and several legal issues based on the Supreme Court’s ruling in Lawrence v. Texas.

Most of the issues raised in the defense motion have been chronicled in more detail in AVN’s comprehensive coverage of the trial itself. For instance, the defense had charged that Judge Bucklew had failed to perform due diligence in questioning the juror who had sent a note on the third day of trial questioning whether the jury had to sit through all five of the movies charged in the indictment: The “Euro” versions of Max Extreme 20, Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19.

“Defendants fault the Court for not asking the juror whether: (1) the note reflected a prejudgment of the evidence as obscene; and (2) the contents of the note had been shared with other jurors,” wrote Judge Bucklew in her order denying the motion.

But although Judge Bucklew claims that she “questioned the juror as to who wrote the note and found no basis for concluding that any prejudgment of the evidence or premature deliberations had taken place,” there is no evidence of questioning on those two subjects in the transcript; merely instructions to the jury, as the judge notes in her order, “not to discuss the case with anyone or to begin deliberating until the end of trial.” The judge also ruled that since the note had come from the one alternate juror, who played no part in the actual deliberations, the effects of the note or that juror’s possible discussions with other jurors “ring hollow.”

Another irregularity was the fact that an Assistant U.S. Attorney not related to the case had had a brief conversation with one juror in an elevator, saying to the juror, “You’re not going up there to watch that porn?” The defense argued that the question was pejorative and might have affected the juror’s opinion of the evidence, and that Judge Bucklew’s failure to question that juror about the conversation amounted to error. The judge disagreed.

Finally, the defense cites the fact that, one evening after deliberations were already under way, one of the jurors received a message from her employer firing her from her job. The attorneys argued that the emotional fallout from her dismissal may have affected the juror’s ability to deliberate — and indeed, the affected juror was one of three who had held out for acquittal for over 14 hours, but eventually — and, she later said, reluctantly — gave in to the majority and voted “guilty” on all charges. However, that juror was visibly upset, and the fact that she had been crying was evident as the foreman announced the verdicts in the courtroom. It was later discovered that the juror had sent a note to Judge Bucklew telling the judge of her firing, but that fact was not revealed until after the jury verdict was in. The defense has argued that the juror’s having been fired may have made her less able to maintain her beliefs that the defendant was not guilty of the charges.

“The Court decided to wait until after the jury concluded its deliberations to speak with the juror, as the note concerned matters unrelated to the case and was purely a personal matter relating to the juror,” Judge Bucklew argued in her order. “Defendants seem to argue that had the Court spoken to the juror before a verdict was reached, the Court would have had to excuse the juror from jury service and declare a mistrial. This argument is wholly speculative. After the jury’s verdict was published to the Court, each juror was polled as to whether the verdict as published was their verdict. Significantly, each juror — including the juror in question — said that the verdict as published was their verdict.”

It is likely that an appeals court will take a look at the full circumstances of that juror’s mental state during deliberations, along with an affidavit which that juror is expected to file concerning that mental state and how it affected her ability to deliberate. It is also legally questionable whether Judge Bucklew should have withheld the juror’s condition from the defense while deliberations were still in progress.

Judge Bucklew spent just one paragraph in the order reiterating her failure to dismiss the charges based on Little’s substantive due process rights under the Fifth and Fourteenth Amendments, merely citing and reiterating her pretrial rulings on that subject. She similarly dismissed the defense’s argument that the “community” whose “standards” should govern material posted on the World Wide Web is the entire world, as recently affirmed by the Third Circuit in its COPA ruling.

The defense motion also took Judge Bucklew to task for failing to recuse herself from the trial after having made numerous remarks that could easily be seen as prejudicial against the defendants, mostly regarding the necessity to play the entirety of the movies charged in the indictment — a clear requirement of the Miller test for obscenity, which states that the charged material must be “taken as a whole.” AVN’s reporting of the trial noted numerous instances where the judge questioned the need to play the full videos for the jury, which remarks formed the basis for a mid-trial defense Motion for Mistrial and/or Recusal of Judge.

However, while Judge Bucklew admitted that, under the Eleventh Circuit rules, a judge should recuse him/herself “when a judge’s remarks in a judicial context demonstrate such pervasive bias and prejudice that it constitutes bias against a party,” she defended her own actions by claiming that “[n]either a trial judge’s comments on lack of evidence, rulings adverse to a party, nor friction between the court and counsel constitute pervasive bias.” An examination of the trial transcript, which an appeals panel is likely to do, should reveal that Judge Bucklew’s comments went far beyond mere “friction” between the Court and the parties, and were not merely “comments on the lack of evidence” — in fact, the Court was attempting to withhold such evidence from the jury — nor could her comments be described merely as “rulings adverse to” the defense.

Finally, Judge Bucklew rejected the defense’s claim that neither Little nor Max World had committed the crime of mailing obscene matter into the Middle District of Florida — a fact clearly attested to by one of the prosecution’s own witnesses, James Komurek, owner of distributor JKG, Inc., which had performed the actual mailing — and that the government had therefore failed to present sufficient evidence of the defendants’ guilt. Judge Bucklew merely noted that she had rejected that argument when the defense had presented it pre-deliberations, and that her opinion of the arguments had not changed. She similarly rejected the defense’s claim — also the subject of a pre-deliberation motion — that the government had failed to present sufficient evidence that the Hardcore material violated the community standards of its intended audience, whom defense witness Dr. Michael Brannon had described as an “atypical deviant group.”

According to Judge Bucklew, the Supreme Court’s ruling in Paris Adult Theater I v. Slaton absolved the government of a requirement that it prove community standards — and, “Further, the verdict itself evidences the fact that the jury was able to determine that the charged materials violated the community standards of the Middle District of Florida.” (Can anyone say, “Cart before the horse”?)

In short, Judge Bucklew denied all of the defense’s motions for new trial and/or acquittal. However, it is almost certain that all of those issues, and several more, will be raised in Little’s and Max World’s appeal of the verdict to the Eleventh Circuit Court of Appeals, which will be filed shortly after the judge sentences the defendants, at a hearing currently scheduled for Sept. 6.

-Posted on DefendOurPorn.org on August 6, 2008