Motion To Dismiss Under Consideration In Max Hardcore Trial

TAMPA - The prosecution rested its case in Max Hardcore's federal obscenity trial late this afternoon, and Judge Susan C. Bucklew asked for the defendants' arguments on a "Rule 29 motion," otherwise known as a "motion to dismiss."

It had been a relatively uneventful day up to that point. The defense had played the final unplayed segments of two charged videos, Fists of Fury 4 and Pure Max 19, which finished up shortly after lunch, and the defense was permitted to call one of its witnesses, retired porn star Summer Luv, out of order.

Luv, who now works in the offices of a Las Vegas construction company, testified that she had shot about 15 scenes with Max Hardcore, and that although she had worked for several production companies including Elegant Angel, Metro, Simon Wolf and Red Light District, she enjoyed shooting with Hardcore most because the other companies "didn't care about you."

Luv then took the jury through a typical Max Hardcore shoot, noting that each time, he spent about an hour explaining what would be happening during the upcoming scene and making sure Luv would be okay with the various actions - anal sex, peeing, fisting and vomiting - to which the young starlet replied that she was, because "I'm kind of an extremist," and the action "piqued my interest." She noted that she had helped created the storyline of her humorous scene in Pure Max 19, where she played a Brazilian hooker, and that she was allowed to take breaks whenever she needed them during filming.

She also testified that since there was urination involved, both she and Max had drunk plenty of water two to three hours before the scene was to commence, so that whatever urine came out would be mostly water. She said that she was allowed to use a buttplug to stretch her ass before anal scenes, that the fisting was sometimes faked for stills, and that the sets were cleaned immediately after shooting was completed.

As to why Luv retired from adult, she said, "I grew up, I had a son, so I'm just being a mommy."

Under cross-examination by prosecutor Lisamarie Freitas, Luv testified that Hardcore paid her as much as $1500 for a scene, and in cases where he took her abroad to shoot, she was paid as much as $10,000, although she was sure of the exact figure.

After Luv was dismissed from the stand, the defense resumed its cross-examination of postal inspector Linda Walker who, under questioning by Max World Entertainment attorney Dan Aaronson, once again took the jury through her use of various Max Hardcore Web sites to purchase the five charged videos.

Under Aaronson's questioning, Walker reiterated that once she had decided on the DVDs she wished to purchase, clicking on a particular title would take her to the Website, which was where she would give instructions on where the videos were to be sent (Tampa, Fla.), and by what method she would pay (postal money order). She agreed that she knew she was buying the disks from Jaded, and that as far as her investigations had revealed, neither Max Hardcore nor Max World Entertainment (MWE) had had any ownership or control over Jaded Video, nor any input into where the videos which MWE had sold to Jaded would be sent, nor by what carrier they would be sent.

Hardcore's attorney Jamie Benjamin also questioned Walker, eliciting the information that it was another postal inspector based in Washington, D.C. who had directed her to purchase Max Hardcore videos, and that at no point had she ever conducted a survey regarding the community standards of the Tampa area.

It was at that point that the government rested its case, and MWE attorney H. Louis Sirkin took the podium to move that judgments of acquittal be entered for the defendants on all charges.

Sirkin's first argument dealt with Counts 1-5, the obscenity charges against the promotional trailers for the "Euro" versions of Max Extreme 20, Golden Guzzlers 7, Planet Max 16, Fists of Fury 4 and Pure Max 19 found on the Website. Since the Miller test for obscenity requires that the charged material be "taken as a whole," Sirkin argued that the jury had not been presented with sufficient information to do that, since only the five charged trailers had been played, and not any of the remainder of the Website, which a previous witness had testified contained at least 950 additional video clips.

Sirkin also attacked the "interstate transportation" portion of the charge, noting that Hardcore had no mens rea - "guilty knowledge" - that the servers upon which the charged Website material was stored were in Tampa, and that the company that hosted Hardcore's sites has multiple server locations worldwide. Moreover, he noted that the government hadn't even produced any evidence that either Hardcore of MWE had created the sites themselves; that it could easily have been an outside agency. He said that Hardcore's only knowledge of the hosting company was the bill MWE paid every month, and that although that bill came from Tampa, that that wasn't necessarily where the servers with his material were located.

More fundamentally, Sirkin asked that Hardcore and MWE be acquitted on all counts because Hardcore's material, rather than appealing to the "prurient interests" of the average person, was intended, rather, to appeal to persons with "atypical sexual proclivities" - those with specialized sexual interests generally of the "dominant/submissive" variety - and that the government had presented no evidence at all regarding that group, much less whether the Hardcore material would appeal to the "prurient interests" of that group. In so arguing, Sirkin was referring to the Supreme Court decision in U.S. v. Mishkin, where the defendant had been convicted of appealing to the prurient interests of what was then considered a deviant group: Gays.

Finally, regarding the charges of interstate transportation of obscene materials using the U.S. postal service (18 U.S.C. §1461), which included the charge of aiding and abetting such transportation, Sirkin argued that not only did Hardcore and MWE have nothing to do with mailing the charged DVDs to Tampa, by U.S. mail or any other method, but they also did not have the "guilty knowledge" that such mailings would be taking place, nor to which location the videos would be sent. In fact, Sirkin said, since MWE had sent the disks it sold to Jaded Video in Irvine, Calif. by UPS, it had every reason to believe that Jaded Video would fulfill its orders to customers by UPS as well - and that was significant because sending obscene material by "common carrier" is a different charge than 18 U.S.C. §1461, and neither defendant had been charged with that crime.

Sirkin also readopted his previous argument that the charged videos should have been played in their entirety as presented on the DVDs, rather than broken up with the government playing some scenes and not others, but Judge Bucklew quickly rejected that argument.

When it came her turn to argue, Freitas noted that she also would not deal with the concept that the government had not played all of the videos available on the various Max Hardcore Websites, since Judge Bucklew had already rejected that point during pretrial motions.

Instead, Freitas attempted to tie Hardcore to the mailed videos by noting that he had produced all of them, that Max World Entertainment was a corporation wholly owned by Hardcore himself, and that there were numerous indications on the Websites and even in the videos themselves that Hardcore had intended the videos to be sent to others for viewing. She said that the mere fact that Hardcore had sold the DVDs to an "agent" - Jaded Video - and the fact that he had contracted for space on Candid Hosting's servers for his Website material made out the government's case for "aiding and abetting," and that even though Hardcore and MWE didn't personally mail the disks, he should have known that Jaded would send the disks by some carrier, and that Hardcore had neither instructed Jaded not to send the videos to Tampa, nor to refrain from using the U.S. postal service to do so.

When Judge Bucklew asked for Freitas' response to Sirkin's argument that there was no evidence that the material appealed to the prurient interests of an "atypical sexual group," Freitas replied that there was nothing on the Websites that suggested that the material was directed to any such group (although she admitted that the site might be taken as such); that the sites merely said "adult entertainment" and that the site didn't appear to advertise the videos to any sexually deviant groups.

Sirkin answered Freitas' points by noting that once Hardcore and MWE had sold the DVDs to Jaded Video, they lost all control over what Jaded would do with them, and that Jaded was responsible for filling all of its own orders. He likened Freitas' argument to the situation of someone who bought a container of sour milk attempting to blame the "manufacturer" of the milk for the problem, rather than the grocery store where the milk had been purchased. Sirkin also referred to a recent Fifth Circuit case, U.S. v. McDowell, where the defendant had been acquitted because the government had failed to prove that the defendant had shared any intent to sell illegal material. Sirkin said that the government could make all the inferences it wanted as to what would be done with the DVDs once they were produced, but that it can't make out a charge of interstate transportation unless it could show that Hardcore or MWE knew the disks would be mailed to Tampa - and he also pointed out that the only sale the defendants were involved in was an intrastate sale from MWE in Pasadena to Jaded in Irvine.

Jeffrey Douglas, also representing Max Hardcore, then took the podium to note that while the government was claiming that the Mishkin case doesn't apply to the defendants because nothing on the Website targeted a deviant group, Edward Mishkin himself didn't market his gay material specifically to homosexuals; they knew to buy it because of the nature of the material itself, just as Hardcore's fans know to buy his material because of its dominance/submission themes. However, when Judge Bucklew claimed that there was a difference between gays and the groups Hardcore was apparently targeting, Douglas responded that the government would still have to identify the "deviant group" whose "prurient interests" the Hardcore material was appealing to, and it had not done so.

Douglas also shot down the government's contention that simply because Hardcore had put his (presumably constitutionally protected) material into the "stream of commerce," that that somehow made him responsible for what Jaded Video did with it. Since sexually explicit material is assumed to be legal unless and until a jury rules otherwise, Hardcore's selling and shipping the material to Jaded was a completely legal act - and in response to some laughter from the bench, Douglas went on to note that it didn't matter if the Court didn't like the material that had been presented; that reaction doesn't shift the burden of proving that Hardcore's material was unprotected by the First Amendment from the government to the defendants' having to prove that it is protected. Rather, it was the government's job to show that Hardcore had a "guilty mind" in sending the material to Jaded - something it had failed to do in its case in chief.

Judge Bucklew said that she would take the parties' arguments under advisement, and issue a ruling tomorrow.