Judge Tosses 2 Counts of Stagliano Obscenity Indictment

WASHINGTON, D.C.—Saying that government Exhibit 9, the CD-R allegedly containing a copy of the trailer to Fetish Fanatic 5 that was dowloaded from the Evil Angel website, was inauthentic because it was not an accurate representation of the material, Judge Richard J. Leon ruled that the exhibit could not be part of the government's evidence, and ruled that the disk must excluded from the jury's consideration.

The judge was ready with his ruling as court convened at 10:30 this morning—perhaps surprisingly because since the trial was adjourned last evening, the prosecution had filed two motions to prevent the exclusion of the disk, and the defense had filed a reply. And although none of the documents was long, they raised legal issues that the judge and his staff would have had to consider before he could make his ruling.

The judge opened his decision by thanking counsel for their pleadings overnight, then launched into a recapitulation of the events of Wednesday afternoon, which included the government's first presentation of the evidence; how the CD containing the trailer delivered no audio track at all as the judge, jury and attorneys watched the CD play on the courtroom monitors, and eventually froze in mid-play with one minute and 53 seconds still left to go on the trailer; how prosecutor Pamela Satterfield stated, after a short recess, that the CD was "corrupted" but that she had a back-up copy; how the defense objected to the copy's use without a verification that it was identical to Exhibit 9; how, after another break, Satterfield reported that Exhibit 9 was in fact playable, but defense counsel who had observed the playback had noticed "glitches" in both the exhibit and its copy—glitches that seemed to appear randomly, and in at least one case froze the video image for at least 10 seconds while the audio continued to play.

These problems, Judge Leon ruled, were insurmountable if either disk were to be used as evidence before the jury, because "The trailer here does not depict illegal acts; it is the illegal act," he said, and that if the jury could not rely on either disk to accurately represent what FBI Special Agent Daniel Bradley had seen and allegedly downloaded from Evil Angel's website, it could not pass muster as evidence under Federal Rule of Criminal Procedure 901.

While he had previously ruled that the jury need not watch every frame of the two movies and one trailer charged as obscene in the government's indictment, the judge affirmed that the jury had to have at least the opportunity to look at all of the material, and with the glitches in both the exhibit and its copy, they could not reliably do that—and that therefore, all counts of the indictment relating to the charged trailer would have to be dismissed from the case or modified.

These would include Count 3, where the defendants were charged with "knowingly use an interactive computer service and other facilities and means, in and affecting interstate commerce, for the purpose of distributing  obscene matter, that is, a motion-picture trailer identified as 'FETISH FANATIC CHAPTER 5,'" and Count 7, where the defendants were charged with "knowingly us[ing] an interactive computer service to display an obscene image, that is, a motion-picture trailer identified as 'FETISH FANATIC  CHAPTER 5' in a manner available to a person under 18 years of age."

The ruling also affected Count 6, where it required the removal of mention of the trailer as one of the items that the defendants had "knowingly possess[ed] with the intent to distribute obscene motion-picture films ... which had been shipped and transported in interstate commerce."

"As a practical matter, that will dispose of two counts and part of a third," the judge told the attorneys for both sides. "I trust this will be a valuable lesson for the FBI and the Justice Department."

After the ruling, Stagliano's attorney Paul Cambria asked the judge for a recess in order to "reboot" the defense strategy for the case, and the judge recessed the trial until 2:15 this afternoon.

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