Feds File Brief Opposing Max Hardcore Appeal

ATLANTA, Ga. - Attorneys for Paul Little, better known in the adult industry as "Max Hardcore," H. Louis Sirkin and Jennifer Kinsley, filed their appeal of Little's conviction last June on ten counts of interstate transportation of obscene material and posting obscene materials on the Web on January 21 - and now, just over two months later, the Justice Department has responded, attempting to refute the perceived factual and legal errors identified in the appellant's brief.

However, the government brief, authored by prosecutors Lisamarie Freitas and Edward McAndrew, glosses over many issues raised before and during Little's trial before U.S. District Judge Susan C. Bucklew, not the least of which are that Little never authorized (or "caused," as one of the government's arguments puts it) distributor JKG, Inc. to send the charged DVDs to the Middle District of Florida - a fact that JKG's owner, James Komurek, admitted during his testimony - and that the application of the Miller v. California obscenity "prongs," particularly those dealing with "community standards," to content available on the World Wide Web is, to say the least, problematic in light of the Supreme Court's refusal to revisit the Third Circuit's final decision in the Child Online Protection Act (COPA) case.

Freitas and McAndrew begin their argument with an attempt to disconnect the Supreme Court's 2003 decision regarding substantive due process privacy rights in Lawrence v. Texas from the Court's 1969 recognition, in Stanley v. Georgia, that Americans are completely free to possess even obscene materials in the privacy of their own homes. After reciting the litany of (pre-Lawrence) high court cases which affirmed federal obscenity laws, appellees state, "The petitioners in Lawrence presented a due process challenge to a Texas statute proscribing acts of homosexual sodomy occurring in the privacy of the home. Narrowly defining the liberty interest at issue to private sexual behavior in the home, the Supreme Court held that the statute violated the Due Process Clause," and back up their assertion by quoting from the Lawrence decision to the effect that "the issue 'does not involve public conduct or prostitution' and that the Texas statute involved an 'intrusion into the personal and private life of the individual.'"

Of course, sending an adult DVD either by mail or other common carrier to an adult who wishes to receive it also "does not involve public conduct or prostitution," and preventing citizens from purchasing discs for home use, even if they are deemed "obscene," could hardly be more of an "intrusion into the personal and private life of the individual" than if government agents had broken into the purchaser's home and seized the offending DVDs.

Indeed, the government cites no case law that deals directly with the effect of the Lawrence decision on purchases of sexually explicit material, much as it attempts to do so by citing the Third Circuit's reversal of Judge Gary Lancaster's dismissal of charges against Extreme Associates. However, the Third Circuit's decision did not at all deal with the substance of Lancaster's ruling; it merely claimed that Lancaster had overstepped his bounds and was precluded from applying Lawrence to sales of obscene material until the Supreme Court had approved doing so. That's a far cry from the appellees' claim here that in the Extreme decision, "the Third Circuit has rejected an identical claim that Lawrence created a due process right to commercial distribute obscenity."

The government also attempts to reject appellant's arguments that both the "community standards" and "taken as a whole" prongs of Miller were violated by extracting just five movie trailers from the entire maxhardcore.com site and attempting to judge them by the alleged "community standards" of central Florida.

"Significantly, the prosecution of Defendants was venued in the Middle District of Florida because Defendants chose to host their websites on computer servers in Tampa, Florida," the government brief argues. "The web hosting company's only facility was located in Tampa when Defendants become their customer... Thus, in a very real way, Defendants chose the venue of their prosecution."

Except that the testimony from the hosting company's agent, Charles Charmatz, was that Charmatz had never met Little, and Little had never visited the server facility to know where it was located.

"Defendants argue that the applicable 'community standards' should have been drawn from the Internet community, whatever that is, rather than from the Middle District of Florida," the brief continues. "Courts have repeatedly rejected attempts to nationalize the 'community standard' aspect of the Miller test. That the medium of dissemination is the Internet 'is not enough to render an entire line of Supreme Court decisions inapplicable given their analytical and other factual similarities to this case'," the government claims, quoting once again from the Third Circuit opinion in Extreme Associates - an opinion not reviewed by the U.S. Supreme Court. The government also references the high court's first COPA decision, whose durability is now dubious considering their failure to review the Third Circuit's striking down of the Child Online Protection Act.

"There is no 'nationwide' test for obscenity, much less some undefinable 'Internet community' standard," the brief continues, completely ignoring the very basis of the COPA ruling. "The applicable community standards are those drawn from the community into which, or from which, Defendants distributed their material."

Like Irvine, California, "from which" JKG sent the charged DVDs? And it's not as if Little had any control over "into which" community his Web pages could go! Indeed, the rest of the government's arguments regarding "community standards" assume the "sending" of a tangible product rather than the movement of electrons over wires and in cyberspace.

Regarding "taken as a whole," the government argues that since each movie trailer could be accessed individually from the maxhardcore.com website, that makes each one a "whole" unto itself. Such logic would allow the government to prosecute individual pictures in a magazine, or chapters (or individual words!) in a book.

"In that sense, it was no more difficult to determine here what constitutes the 'matter' than it would be if a defendant had a bookstore in a mall with a restricted access room where pornography was available," they write. "If a video in that room was obscene, it is obvious that the video constitutes the matter, not the entire contents of the separate room, the bookstore, or the entire mall."

Trouble is, in order to access the charged material, users had to pass through an "adults only" portal on the site's front page - one that had a specific warning that if one were offended by sexual material, one should proceed no further. That, it could be argued, in a sense, "bound" the trailers together with all the other material on the site into a single "work." The government's only other refutation of appellant's argument rests on the fact that Justice Anthony Kennedy's view of considering the entire website as a "whole" was joined by only two other justices, and therefore did not set precedent.

The Justice Department also argues that the fact that it refused to play the entire DVDs at issue during its case in chief, but merely selections from each, is insufficient to conclude that it violated its duty to have the jury consider the material "as a whole" - this despite the fact that McAndrew stated to the court his reason for doing so as, "The issue is who the jury might blame for having to watch it." Now, as far as he and his co-counsel are concerned, the fact that the defense wound up playing the full eight hours of material is sufficient for the appellate court to conclude that the prosecution had met its burden - and that's not even taking into account the amount of waffling Judge Bucklew did during trial regarding whether she would even allow the DVDs to be played in their entirety.

Toward the end of their brief, the government argues that Little's right to a fair trial was not infringed by the improper statements made by McAndrew during closing arguments, including, "if you stop Paul Little, you stop Max Hardcore. If you stop Jaded [JKG], Paul Little finds another distributor and goes on," and "if this material is okay in your community, he's going to continue pushing the limits," as well as references to pedophilia and child pornography, since all of Little's actors were (young-looking) adults.

Finally, Freitas and McAndrew argue that neither one juror's request, on the second day of trial, to view only excerpts of the charged DVDs, nor the fact that one juror was fired from her job in the middle of deliberations (and that the judge knew about it and failed to inform counsel) had any effect on the verdict.

Regarding that last point, "The juror's note provides no factual basis for concluding that the juror became actually biased against Defendants because of the termination," the government argues. "Nor did the note indicate that the juror was no longer able to deliberate."

Except that that juror sought out the defense attorneys at their hotel after the verdict had been delivered, wanting to apologize for having voted for conviction. She said that she and two others had held out for acquittal for over 14 hours - but who knows if her decision finally to capitulate was in part motivated by her worry about her (un)employment situation? Verdicts have been reverse for less!

In any case, Sirkin and Kinsley now have 15 days within which to respond to the government's filing, and then it's up to the Eleventh Circuit, at its own discretion, to set a date for oral argument. In the meanwhile, Little remains incarcerated at the Metropolitan Detention Center in downtown Los Angeles, for the crime of making movies.