TAMPA - The court heard closing arguments today in the federal obscenity case against Max Hardcore and his company Max World Entertainment.
Judge Susan Bucklew reminded jurors that the government is required to prove its case beyond a reasonable doubt and that the defendants are presumed innocent. She then recounted the charges against Max Hardcore, which include five counts of distributing obscenity via the Internet and five counts of distributing obscenity via the U.S. Postal Service.
The judge stressed that the jury would have to find that the defendants knowingly caused the DVDs to be delivered by mail rather than another common carrier in order to convict Max on the five postal counts. The defense maintains that Max Hardcore could not have known that distributor Jaded Video was going to mail the DVDs to the Middle District of Florida.
Prosecutor: Max 'has been pushing the limits for years to make money'
"You know what you saw and you know how it made you feel," prosecutor Edward McAndrew told the jury in his closing argument.
McAndrew compared the Max Hardcore trailers and videos to watching murder or child pornography, calling the material "tough to stomach." He argued that the videos should be considered obscene because "you know it when you see it."
The prosecutor then called attention to the warnings that Max Hardcore gives at the beginning of each DVD, in which Max tells viewers not to watch if the material offends them.
"Do you know any other movies that do that?" McAndrew asked the jury.
McAndrew argued that the mail order charges should stick because the defendant "should have known" that Jaded Video could or would send the DVDs to the Middle District of Florida.
"You watched the videos and you don't need someone to tell you what you saw," McAndrew said, referring to Dr. Michael Brannon, an expert witness for the defense who testified yesterday about the material's appeal to a niche audiences such as BDSM enthusiasts.
"[Hardcore] has been pushing the limits for years to make money," the prosecutor said, commenting that the jury could "send a message" by convicting Max Hardcore.
Defense attorney H. Louis Sirkin immediately objected and moved for a mistrial because the judge had previously forbidden the prosecution to imply to the jury that a conviction could be used to 'send a message.'
Defense: Jaded Video shipped the videos, not Max
"Was this material purposely sent into this community?" asked attorney Jennifer Kinsley. "Certainly not."
Kinsley was the first of three attorneys to speak during the closing argument for the defense. She pointed out that while the government used a "trace route" program to discover the location of the server hosting Max Hardcore's websites, Max and his company had no way of knowing the sites were hosted in Tampa.
Kinsley stressed that Jaded Video received and shipped the order for the five charged DVDs, accepting a money order from postal inspector Linda Walker. There was no contact at all between Walker and Max Hardcore or his company, she said.
'This is not a case that you determine on what you believe'
Attorney H. Louis Sirkin spoke next.
"This is not a case that you determine on what you believe," Sirkin said, noting that the jury had no choice but to watch the videos - and that the defense had showed the full videos because the government would not.
"Those acts depicted on the screen were probably distasteful to all of you," Sirkin said.
Sirkin reminded the jurors that they probably have not talked to their friends and neighbors about sex, and that the government had presented no evidence of how the community viewed the sexual acts depicted in the videos. Therefore, Sirkin argued, the jury had no basis upon which to determine that the videos are obscene.
Sirkin directed the jury's attention to Dr. Brannon's testimony, arguing that the target audience for the videos would not find the acts depicted to be "morbid, shameful or unhealthy" - the qualities by which the law defines prurient interest, which in turn is used to define obscenity.
'This is play-acting; this is not reality'
The final defense speaker was attorney Jeffrey Douglas, who began by addressing the common way people handle material that they do not wish to see.
"If you started to watch it and you didn't like it, you turn it off and you walk away," Douglas said. "Nobody who saw these previews could get this movie by mistake."
Douglas reminded the jury that they cannot convict Max Hardcore simply because they might be repelled by his movies. He further noted that a sexual response to the material is necessary to determine prurience and if there were no sexual response there would be no prurience.
Douglas emphasized that Max Hardcore is simply a fictional character portrayed by the defendant on trial, Paul Little.
"This is play-acting; this is not reality," Douglas said, arguing that the "inability of the government to distinguish between a character and a real person" is a fatal flaw in the case against Max. He recalled for the jury the testimony of actress Melissa Nicoletti, who appeared as 'Summer Luv' in several of the charged videos, noting that the government referred to Nicoletti as 'Summer Luv' rather than her real name in describing her testimony for the jury.
Douglas compared the Max Hardcore character to Archie Bunker on the television show "All in the Family," describing the Max persona as "barely a cartoon of a human being."
Douglas contended that the government doesn't care about the community values of the Middle District of Florida, as evidenced by the fact that the prosecution granted immunity to Jaded Video in the case. He pointed that Jaded Video was shipping sexually explicit videos to Tampa "last month, last week, yesterday, today and probably tomorrow."
Douglas said that the government's lack of concern regarding Jaded Video's activities proves the real intent of the prosecution.
"They care about stopping Paul Little," he said.
The jury is expected to return a verdict tomorrow.