The Max Hardcore Obscenity Trial: Day 2

TAMPA - It was at the very end of the day's proceedings that Judge Susan C. Bucklew dropped her bombshell.

The jury had just been excused after watching the first 41 minutes of Max Extreme 20, one of the five DVDs charged in the government's 10-count obscenity indictment against Max Hardcore and his company, Max World Entertainment.

"I'm thinking of reconsidering my earlier ruling," the judge said, after just having watched Catalina and Taylor Rain sucking Max's cock, deep-throating it, getting fucked in the ass and being peed upon.

"I think it would be very difficult for the jury to sit through five of these," she opined, adding that she was considering reneging on her statement at the start of the proceedings today, that she would urge the prosecution to play all of the charged videos in their entirety.

In so stating, the judge said that she was mindful of the Miller test's requirement that the videos in question be "taken as a whole," and she said that she thought it would be a bad idea for the prosecution to play just excerpts from the videos, and then have the defense play those same videos in their entirety, because she felt the jury should not have to sit through playing of any of the material twice.

Prosecutor Lisamarie Freitas argued that playing the entire movies would be repetitive, since similar sex acts appear throughout the material, and renewed her offer to let the defense play whatever footage on the disks that the prosecution didn't play. She also claimed that the rules of evidence allowed "summaries" of documents to be presented during trial, with the full documents sent back to the jury room with the jury during deliberations.

But defense attorney H. Louis Sirkin reminded the court that obscenity charges presented a special case within the law, and that the Miller test did not countenance "summaries" of alleged obscene material.

Sirkin argued that the law required that the charged videos needed to be viewed not only "as a whole," but also in the order that the material had been presented on the DVDs, and opined that it would be "more disruptive and more time-consuming" to play the disks "piecemeal" rather than straight through. Besides, he reiterated, "There's nothing that says they [the prosecution] have to go forward on all five videos," and that attempting to play only excerpts or to play the scenes out of order would be "prejudicial and unfair."

But while Judge Bucklew stated that she didn't think the government would have to play the entire 510 minutes for the videos to be admissible into evidence, she left the issue by advising the prosecutors to seriously consider playing all of the charged material.

However, by the end of the day, it was unclear whether the judge would even allow the defense to play the full videos during its case in chief, although she had definitely forbade them from playing the disks while cross-examining postal inspector Karen Walker, the person who had ordered the DVDs sent to Tampa in the first place.

The trial had begun much more peacefully, though. Freitas began her opening statement by assuring the jury that they were not here "to legislate or create policy" regarding sexually-explicit material, and that "we're certainly not here to present evidence attacking the adult industry," but rather simply to enforce the Miller standard, which she briefly outlined to the triers of fact.

Sirkin, on the other hand, speaking for defendant Max World Entertainment, told the jury that they would find that none of the charged material had been made in Florida, that Max Hardcore didn't host a Website in Florida, and that none of the DVDs ordered by the government's agents had been sold or mailed by Max Hardcore, but rather by Jaded Video - a company which had been given immunity in order to testify against Hardcore. He also noted that all of the material had been produced with consenting adults, and predicted that they would find that the materials, when viewed as a whole, weren't obscene.

Jeffrey Douglas, representing Max Hardcore personally, said that he would reserve his opening statement for later.

The prosecution's first witness was James Fottrell, a computer forensics specialist who testified that he had done a "traceroute" search on the Website, and had also downloaded the contents of that site - including roughly 950 .wmv video files, some of which were promotional trailers designated "Euro Version" - to a hard drive. He further testified that at least five of those video files were "available to the public," including the "Euro" trailers for Max Extreme 20, Pure Max 19, Golden Guzzlers 7, Fists of Fury 4, and Planet Max 16 - which the prosecution then proceeded to play for the jury ... and the approximately 15 legal interns from around the courthouse who had gathered in the audience for the presentation.

One bone of contention was the accuracy of the "traceroute" report that Fottrell had created, as well as some of the site ownership information attached to it. After lengthy argument, during which Douglas pointed out that almost since the inception of the Internet, people had engaged in "spoofing," or creating false data on the 'Net, the prosecution agreed to withdraw the alleged site ownership data.

During cross-examination, defense attorney Jennifer Kinsley brought out the fact that although the traceroute report seemed to indicate that was hosted in Tampa, it was not uncommon for the Web address of a Website and the physical location of the server on which it is hosted to be entirely different. She also got Fottrell to admit that he had done his Website capture from his office in the Washington, D.C. area rather than in Tampa, and that when he had said that the trailers charged in the indictment were "available to the public," he had failed to mention that a username and password - in other words, a paid subscription to the site - would be required in order to view the trailers online.

The prosecution also presented Charles Charmatz, an employee of Hostway Corporation, whose subsidiary, Candid Hosting, had provided the server on which was situated, and who said that that server was located just one block from the Sam M. Gibbons U.S. Courthouse where the trial was taking place. On cross-examination, however, Hardcore's attorney Jamie Benjamin brought out Charmatz had never met Max Hardcore, and that to his knowledge, Hardcore had never set foot in the Hostway server facility in Tampa.

Freitas co-prosecutor Edward McAndrew then called Marcus Bohn, general counsel for fulfillment company CCBill, to the stand. Bohn testified that CCBill's records listed Max Hardcore (under his real name) as the principal of, and, all of which CCBill collected receipts for and passed along to Hardcore.

Finally, Freitas called Linda Walker, who testified that she had placed orders for three of the charged DVDs through the Website, one through and one through; that when she had clicked on the links to order each of the DVDs, she had been redirected each time to the site, and that when she paid for the videos by postal money order, she had sent all of the money orders to a company named JKG, Inc. in Irvine, California.

It was at that point that Freitas started playing Max Extreme 20, which included an opening statement by former porn star Catalina to the effect that no minors were allowed to watch the material, that the video should not be played in areas where it was illegal to present such material, and that all of the sex acts contained therein were being performed by consenting adults. The sex-play between Catalina, Taylor Rain and Max Hardcore has been referenced earlier, and though Freitas indicated that she would play at least the rest of Max Extreme 20, how much if any of the rest of the charged videos would be played remains in doubt.

The implications of the failure to play all of the charged footage are enormous, and it was clear that the prosecution now faces a dilemma. If it elects, as it has previously promised, to play simply excerpts from the charged material, such a practice would appear to render the jury unable to make a judgment on the material "taken as a whole," while if it does play the full eight-and-a-half hours of material, not including extras, it runs the risk of either offending the jury's sensibilities or putting it to sleep.

In any case, tomorrow may be a crucial day in the trial of Max Hardcore.

After the proceedings concluded for the day, Hardcore stated that he was confident that he would be vindicated by the end of the trial, and that he was defending his material not only for himself, but for everyone who produces sexually-explicit content.

"I'm standing tall because I know I'm in the right," he said. "I'm facing down the government because they have no right to tell the American people what they can watch in their own homes that's made by consenting adults, with consenting adults and for consenting adults."