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Five Star Case May Be on Fast Track
By: Mark Kernes (Courtesy of AVN.com)
Posted: 6/5/2006

PHOENIX – By order of U.S. District Magistrate Edward C. Voss, the indictment against Five Star Video and its owners, as well as JM Productions and its owner, was unsealed on June 1 – but that’s not the most interesting information on the court’s Scheduling Order.

"DATE OF MOTION DEADLINE: 15 days," reads the Order. "Defendant bound over to U.S.D.C. [United States District Court] for trial on 7/18/06 at 9:00 am in Ctrm. #601 before JUDGE ROSENBLATT."

"Check out this rocket docket!" was attorney Clyde DeWitt’s assessment of the situation.

Of course, the federal Speedy Trial Act of 1974 states that, "Trial must commence within 70 days from the date the information or indictment was filed, or from the date the defendant appears before an officer of the court in which the charge is pending, whichever is later," but to schedule a major federal obscenity trial just 58 days from the date of indictment seems a bit pushy, even if Arizona Republicans plan to use the indictment and trial in their 2006 election campaigns.

But the quick date may be essentially meaningless. It’s common for one side or the other in a criminal case to ask for a postponement of whatever trial date is scheduled, and if it’s the defense that makes the motion, it will be required to waive the Speedy Trial Act’s limitation.

In any case, the trial will be before Judge Paul G. Rosenblatt, a former state Assistant Attorney General for three years (1963-’66), Superior Court judge of Yavapai County (Prescott is its county seat) from ’73 to ’84, after which he was one of President Ronald Reagan’s mid-term judicial appointees to the federal bench. Judge Rosenblatt attained Senior status in 2003, but still hears cases.  

The Assistant U.S. Attorney assigned to the case is listed as Tim Duax.

AVN.com has also received a complete copy of the indictment, and the oddities of the first two pages, pointed out in our story of last Wednesday, continue through the rest of the document.  

Essentially, Five Star Video, L.C. and Five Star Video Outlet, L.C., as well as those companies’ principals, are charged with having shipped, by various methods, four allegedly obscene videos to "location[s] outside the State of Arizona," at least one of which is Northern Virginia, though the locations in Counts 6-8 are not identified. This is extremely odd, since heretofore, obscenity indictments have always identified the reception point[s] of the allegedly obscene material.  

Just as interesting is that Jeff Mike (JM) Productions and its principal are charged in Counts 9-14 simply with having shipped the videos in question "from a location outside the State of Arizona to a location within the State of Arizona." This strange verbiage most likely means that the vids were shipped from JM’s warehouse in the Los Angeles area to Five Star’s warehouse in Arizona, but the vagueness of the language suggests that the words may have some other meaning, and the lack of specificity regarding the recipient(s) of the product suggests that the government has no complaining witness regarding the JM product.  

Finally, Counts 15-17 charge all defendants with violation of 18 U.S.C. §1466, "Engaging in the business of selling or transferring obscene matter," yet though the defendants comprise two different companies, no conspiracy charge has been leveled at anyone.

This is all very weird.

Less strange, however, is Count 18 of the indictment, which seeks to forfeit from all of the corporate defendants, according to paragraph 2 of this count, "all obscene material produced, transported, mailed, shipped and received, and all property, real or personal, constituting or traceable to gross profits or other proceeds obtained from such offense(s), and all property, real or personal, used or intended to be used to commit or to promote the commission of such offense(s)." Specifically mentioned are all copies of the features in question – Gag Factor 15 and 18, American Bukkake 13 and Filthy Things 6 – as well as the domain name fivestardvd.com, but paragraph 4 of Count 18 allows the government to forfeit (seize) any of the companies’ property up to the value of any property referenced in paragraph 2 that can’t be located when forfeiture time rolls around.  

Finally, it’s worth noting that the indictment mentions the participation of "Brent D. Ward, Director, Obscenity Prosecution Task Force," in securing the indictment. Ward was present in the audience during the Senate Commerce Committee’s hearing on Internet pornography in Jan. 19 at which attorney Paul Cambria testified.  

As attorney Jeffrey Douglas, who represents one of the Five Star defendants, noted, "This prosecution represents a pointless and arbitrary waste of scarce investigative, prosecutorial and judicial resources." What’s even less clear is how the government expects to get a conviction based on what appears to be a vague and severely flawed indictment.


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