Five Star Case Goes To The Jury

PHOENIX – After a day of jury selection, and nearly four days of testimony (much of which consisted of playing three of the four JM videos charged as obscene) and legal argument, during which four of the original six defendants were dismissed from the case or ruled to be not guilty by Judge Roslyn O. Silver, it seemed almost anticlimactic when the case was finally given to the jury for deliberation late Wednesday afternoon.

The defense case, which began Wednesday morning, lasted just under two hours, and included just four witnesses. First was FBI agent James Mackie, recalled to the stand to verify, when he and his team had searched the Five Star premises in early April of 2006, where they had found copies of Filthy Things 6, Gag Factor 15 and 18, and American Bukkake 13 in the facility, how many other videos had been warehoused there, and how those videos were stacked on the warehouse shelves. Mackie also testified to the relative locations of co-owner Chris Ankeney's office and the warehouse, and on cross-examination, Mackie revealed that Ankeney's door was about 50 feet from the warehouse entrance.

The second and third witnesses were Five Star employees Ethan Singer and Nathan Garrett, who described Ankeney's daily duties at Five Star, which both said did not include any management of nor ordering for the company's website business,; that those functions were the province of Ankeney's partner, Ken Graham. Both were also asked to rate their own proficiency on computers, which both put as "average," but said that on a scale of 1 to 10, Graham was an "8 or 9," while Ankeney was a "1 or 2."

During cross-examination, both admitted that Five Star did stock JM videos, and that sexually explicit videos could be found in other places in the offices besides the warehouse and the company's retail store, Five Star Video Outlet.

Finally, defense attorney Richard Hertzberg called investigator David Michael Pain, who had been hired to canvas retailers in the Phoenix area and to purchase materials similar to the videos charged in this case. Notably, Pain bought several copies of Hustler magazine plus one copy of Cheri magazine at several stores located within Phoenix's Sky Harbor International Airport, and Pain gave some brief testimony as to the magazines' contents, which included free DVDs also containing material similar to the JM videos.

The testimony concluded, Hertzberg once again moved for the dismissal of all charges against the defendants. Arguing first for Ankeney, Hertzberg noted that both of the employees had said that his client had had nothing to do with the operation of the website through which the FBI had purchased the DVDs on trial in this case, and moreover, that with some 60,000 or 70,000 DVDs in the company warehouse, comprised of approximately 20,000 different titles, and with less than one-twentieth of one percent of those consisting of JM titles, it was entirely plausible that, as the defense had long contended, Ankeney had no idea of the content of the JM videos that Five Star stocked – and such knowledge (scienter) was necessary for the jury to convict Ankeney of the obscenity trafficking charges.

Prosecutor Ken Whitted reminded the court that the credibility of the employee witnesses was a matter for the jury; that the government was not required to prove that Ankeney knew what was being sold on Five Star's website; and that the jury could infer, from the mere existence of the JM videos at the Five Star location, that Ankeney knew what types of action were portrayed in the videos, and thus was guilty of complicity in their sale.

"It is incomprehensible that he would not know the character and content of the material sold," Whitted declared.

Hertzberg countered that the FBI had found no JM product in the outlet store, which several witnesses had testified was Ankeney's major concern at the business, and that videos were store in the warehouse with their spines facing outward, implying that Ankeney may very well never have looked at the front cover of a JM video and therefore had no inkling as to its content. Whitted responded that the mere fact that Five Star was in the business of selling sexually explicit videos meant that Ankeney was responsible for any sale the company made, including the JM videos.

In the end, Judge Silver accepted Hertzberg's arguments and dismissed all charges against Ankeney, leaving the two corporations, Five Star Video LC and Five Star Video Outlet LC, as the sole remaining defendants. Whitted appeared visibly upset at this development, since it meant that even if both corporations were convicted of the charges, the most that could happen would be fines levied against them, and the government would have no warm body to announce that it had put in prison.

After the luncheon recess, Judge Silver went over her intended jury instructions and either accepted or rejected the recommendations made by both sides for inclusion therein.

Stating that, "I'm a minimalist regarding instructions," the judge rejected most of the prosecution and defense proposals, including Whitted's standing objection to the instruction that in order to convict the defendant corporations, the jury would have to find that, even though there were no humans left in the case, the corporate defendants were aware of the "character and content" of the JM videos sold.

Hertzberg also objected to the judge's failure to include in her instructions language that explicitly stated that if the jury is unable to determine, from the evidence presented, the community standard of the community in question – which community, indeed, Judge Silver left undefined in her final instructions – that the jury should not attempt to set such a standard itself, but instead should acquit the defendants for lack of adequate proof of their guilt. The judge replied that she would not include such an explicit instruction, but that Hertzberg could argue the point during his summation.

Hertzberg also wanted to put on the record that he objected to not having been allowed to present to the jury the fact that Castle Boutique, another local adult store which had been under bankruptcy protection in 2006 and was being administered by a trustee employed by the U.S. Department of Justice, had sold the exact same DVDs that were at issue in the current trial; and also that the judge had failed to admit several exhibits, include a stack of DVDs, purchased at area stores (notably Sky Harbor Airport) which the defense claimed showed the same sexual acts which the government was claiming were obscene as depicted in the JM videos. The judge reaffirmed her earlier rulings against both motions, then called the jury back into the courtroom and delivered her instructions.

Judge Silver was indeed "minimalist" in her instructions, reiterating that the jury is the trier of the facts, not the law; that their decision must be based on the evidence presented, not on supposition or on the arguments of counsel; and she then proceeded to define the elements of the offenses of the obscenity trafficking charges, including an explanation of the three-prong Miller test for obscenity.

Whitted gave the first closing argument, reiterating his opening statement that the case is about "truth and standards" – the "truth" being that "these movies ... were without question obscene." He claimed that in the three remaining videos (Gag Factor 15 had been withdrawn from consideration earlier), women were "basically dehumanized," "forcibly gagged with a penis," and he interpreted the term in the judge's instructions that the jury had to find the videos to be "patently offensive" to mean that they were "perverted," "vile," "profane," "repulsive," "morbid," "loathsome," "disgusting," "dehumanizing," "abusive," "sadistic," "overwhelmingly degrading to women" and "uncivilized."

"This type of material is beyond the pale of what is accepted in your community," Whitted claimed. "These movies are outside that standard." He also said of one of the performers in Filthy Things 6, "Women represent life [but] whatever this woman was doing was outside the pale of your community."

"There's a Latin phrase I want you to know: Res ipsa loquitur – 'The thing speaks for itself'," Whitted said. "These movies speak for themselves."

Although the defense table – Jeffrey Douglas, who had represented Ken Graham, had remained to assist Hertzberg even after his own client was acquitted – had made no objections during Whitted's closing, the prosecutor did not extend the same courtesy to Hertzberg.

Therefore, when Hertzberg began his presentation by charging that, "Higher-ups in the obscenity task force wanted to take down JM Productions and [Jeff Steward]," Whitted rose to object that those parties were no longer defendants in the case, and were not properly part of closing argument – an objection which the judge sustained.

The objection, as well as the fact that Whitted half-rose from his seat several times as if about to object to something else, seemed to throw Hertzberg "off his game," and led to an angry confrontation between the two attorneys after the jury had retired to deliberate.

However, Hertzberg did manage to get out several important points, including his position that the entire case was about community standards, which he said were demonstrated by the ready availability of similar videos in several outlets around the Phoenix area, including several at the government-managed Sky Harbor Airport.

"They have to prove it," Hertzberg declared, referring to the local community standards, noting further that no one had forced anyone to buy or view the charged videos.

"We sold it [the videos] to a fellow in Virginia who wanted it," Hertzberg stated.

However, after Hertzberg claimed that the government had presented no evidence of community standards – which, in fact, it had not – the judge sustained an objection from Whitted to the effect that the community standard had been defined, and that several hypotheticals which Hertzberg had posited regarding which "community" these videos were targeted to were not evidence.

"You've been asked to draw on your own knowledge of the community," Hertzberg finally got out, but noted that if the jurors thought back to their high school days and the people with whom they were friendly back then, they would recall that there had been few if any discussion of sexual preferences and experiences, suggesting that the jury should declare itself unqualified to judge what the sexual standards of the community are without explicit evidence of that standard ... which, he noted, the government had not presented.

He also pointed out that standards are not always what they seem, noting that even religious leaders like Ted Haggard and Jimmy Swaggart had both preached sexual fidelity, but that the first had employed a male prostitute while the second had hired several female ones, in contradiction to their stated standards. He then asked whether the reverends' flocks had been conned ... or were Haggard's and Swaggart's alleged moral values more reflective of the standards of the community at large?

"If your sin is that your sexual libido is a little over the top," Hertzberg began – at which point Whitted objected, and the judge refused to allow Hertzberg to finish his statement.

"Try us for what we did," Hertzberg finally pleaded, noting that his clients had simply sold discs in the same community where similar material could be purchased even at the airport.

With that, the judge had her clerk randomly select the three jurors who would now become alternates, and ordered the remaining 12 jurors to retire to the jury room to deliberate the charges.

Both Douglas and Hertzberg said they expected that the jury would either find the defendant corporations not guilty, or would become a hung jury, unable to come to a unanimous conclusion – but that one or the other result would occur sometime today.