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Movies by Mail Trial Might Be Pushed Back Till The Fall

SALT LAKE CITY – [from]- Michael and Sami Harb, owners of Movies By Mail, were scheduled to have their day (or twelve) in court starting April 16. Although U.S. District Judge Ted Stewart has denied the defendants’ motion to dismiss the indictment, Michael Harb’s attorney Jerome Mooney said that there is at least one motion outstanding to suppress information gathered pursuant to a search warrant which the FBI served on Movies By Mail’s headquarters in Cleveland, Ohio.

“The Motion to Suppress is still pending,” Mooney told AVN. “That raised a couple of interesting issues. You know, it’s pretty hard to suppress a search warrant, but part of the claim was the fact that they create the case in Washington, they go and file something in Utah and then they use that as the basis for a search warrant in Cleveland. It really relates back to our venue-shopping claim. But the big part of our argument was that it became what’s called a general search warrant, because it just was too broad. Instead of focusing on what should have been meaningful to them in a search warrant – after all, they were saying okay, we have a reason to believe there’s a violation of the law with respect to Utah and with respect to these films – so the search warrant should have been limited essentially to Utah and these films, instead of expanding it to behaviors or conduct that involved lots of different sorts of films and documents that aren’t even closely related to the movies they were going to charge.”

According to an affidavit filed by Roger Wilcox, co-counsel with Paul Cambria and Barry Covert for Sami Harb, while the search warrant called for the seizure of the three movies eventually charged in the Utah indictment – Cocktails 5 from Extreme Associates, and Pure Max 18 and Max Hardcore Extreme 12 from Max World Entertainment – it also called for searches of all computers and equipment found on the Movies By Mail (MBM) premises, including, it turned out, approximately 14 hard drives and thousands of documents relating to customer orders – material in apparent violation of the Fourth Amendment’s requirement that a warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.”

“That’s exactly what it was, was a fishing expedition,” Mooney agreed. “The reality, however, quite frankly, is, it doesn’t really matter because they aren’t being prosecuted for anything other than the films that they [the FBI] bought.”

The original defense Motion to Dismiss targeted federal obscenity laws in general as well as the community standards concept embodied in two prongs of the “Miller test.”

“Defendants contend that they may lawfully distribute obscenity through secure channels, and that this right derives from at least two constitutional sources that are independent, but converge to protect both the right to possess and the right to distribute even materials that are obscene,” wrote Mooney and Wilcox in their memorandum accompanying the Motion to Dismiss. “The First Amendment requires the narrowest exclusion of speech from the realm of protected expression, while the substantive rights afforded by the Fifth Amendment’s Due Process Clause allow for the private use of obscene material in a person’s intimate activities.”

The defense argument was based largely on two Supreme Court decisions, Stanley v. Georgia, which affirmed the right of citizens to own even obscene material in the privacy of their own homes, and Lawrence v. Texas, the 2003 decision which struck down sodomy laws throughout the U.S., but more importantly affirmed citizens’ substantive due process right to sexual privacy.

The memo takes Justice John Marshal Harlan II’s dictum in Stanley concerning the “right to receive” sexual ideas, even allegedly obscene ones, in “the privacy of one’s own home” – “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds,” he wrote – and traces the expansion of the concept with Lawrence, where Justice Anthony Kennedy observed that, “Liberty protects the person from unwarranted government intrusions into a dwelling or other private places… [T]here are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence… Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct.”

While the Lawrence Court was obviously referring to sexual relations as “intimate conduct,” certainly purchasing sexual materials over the Internet, through mail order or even in a store is, in its own way, just as intimate.

The defense memo also traces the development of substantive due process liberty interests, citing everything from involuntary stomach pumping in Rochin v. California to the right to obtain birth control products in Griswold v. Connecticut, to the right to marry a person of another race in Loving v. Virginia.

“Lawrence logically must be construed to ensure protection of an adult’s substantive due process right to make personal choices concerning the purchase and enjoyment of materials used in relation to those marital choices,” the memo concludes – even if state borders and thousands of miles stand between a person and his/her choice of such materials.

The defense also argued that the Harb prosecution was vindictive, citing Obscenity Prosecution Task Force head (and former Utah U.S. Attorney) Brent Ward’s part in the “multiple, simultaneous prosecutions at both federal and state levels” of adult mail order companies – most notably P.H.E./Adam & Eve – in which the Department of Justice (DOJ) engaged in the late ’80s.

“In the instant case, dismissal of the indictment is required because there exists a realistic likelihood of vindictiveness sufficient to support a presumption of prosecutorial vindictiveness,” the memo states. “Government investigative records show that this prosecution (including the investigation leading up to it) did not originate with complaints from citizens in the District of Utah. Rather, this prosecution is the creation of the Obscenity Squad at Main Justice in Washington, D.C., which determined first that MBM and the Harbs would be targets, and then commenced and directed an investigation of defendant’s expression from FBI field offices in the Washington, D.C. area. The District of Utah was implicated only because officials in Washington, D.C. selected this forum over any others available to them (for instance, Ohio). Indeed, even after special agents in the Salt Lake City office became involved in the case, FBI agents in the Washington area continued to review the movies ordered in Salt Lake City, prepare affidavits describing these movies, and otherwise assist in the Utah grand jury presentation.”

The point is well-taken, since historically, this has been the DOJ’s practice, and in fact, in 2002, then-Attorney General John Ashcroft issued an instruction to all U.S. Attorneys that all obscenity cases were to be coordinated through the DOJ’s D.C. office.

“At a minimum, the Government has engaged in blatant forum shopping,” the defense charged. “The only impetus for prosecution in the District of Utah flows from Government agents in Washington, D.C. To the defendants’ knowledge, this investigation was not commenced in response to a Utah citizen complaint to Postal Inspectors or FBI agents. Rather, this investigation was first targeted against MBM by agents in Washington and then the Government set its sights on Utah as the venue for prosecution in order to take advantage of community standards it perceives are more conservative than other jurisdictions and thus are more likely to produce a jury willing to convict defendants of obscenity than other venues in the United States.”

The defense used this bad faith effort to indict the Harbs in what is putatively one of the country’s most conservative areas – though one with the highest per-capita subscribers to online adult materials – to petition the Court to force the government to apply “national community standards” to the first and second prongs of the Miller test.

For this argument, the defense drew on the Supreme Court’s striking down of the Communications Decency Act, which would have limited all Internet content to a level that would not offend the most conservative areas of the country; its ruling in Ashcroft v. American Civil Liberties Union I (the first COPA decision), which recognized the universal nature of Internet access to adult materials; and the final COPA decision by the Third Circuit, cert denied by the Supreme Court, which found that COPA’s application of “community standards” only exacerbated both the geographic and overbreadth problems that plagued its COPA I and COPA II decisions.

It’s significant here that FBI agents didn’t walk into the MBM business and purchase the charged videos over the counter; they went to the MBM website and ordered them sent to a post office box in Utah, and eventually charged the Harbs with violation of 18 U.SC. §1466, “Engaging in the business of selling or transferring obscene matter,” rather than the more common §1461, “Mailing obscene or crime-inciting matter.” But the Internet being what it is, even if MBM had wanted to prevent Utah residents from being offered the DVDs it eventually sold to the FBI agent, it couldn’t – so the mere fact that a person in Utah could see MBM’s website on a Utah-based computer would seem to make MBM guilty of “engaging in the business of selling or transferring obscene matter.”

“Thus, the COPA analysis above is relevant to the 18 U.S.C. §1466 charges because MBM can no better control the geographic distribution of the Internet signal related to than any other Web retailer,” the defense argued, “and by charging the operation of an illegal business in obscenity on the basis of possession with intent to distribute (rather than specifying a particular means of actual distribution), the Government has exposed defendants to conviction under §1466 merely because they allegedly offered to sell the prosecuted movies through MBM’s Web site.”

So the fact that MBM couldn’t control where its offers to sell adult material went militates for applying a “national community standard” as a sort of middle ground between the Miller test requirements and the Third Circuit’s recognition that the World Wide Web is indeed worldwide.

The defense, however, offered the court an alternative to finding that the government had abused its venue-shopping power: transfer the case to the federal district where the defendants’ business is located.

“First, the individual defendants and their business, Movies By Mail, are located in Cleveland, which is in the Northern District of Ohio,” the Motion argued. “Additionally, the search of MBM’s business and records occurred in the Northern District of Ohio and the witnesses necessary to determination of suppression issues related to that search are located in the Cleveland area. Further, the search and seizure involved voluminous documents and the seizure of numerous hard drives, all of which were located in the Northern District of Ohio.”

The memo accompanying the Motion also cited the costs of transportation and lodging for the defendants and their attorneys if the case remains in Utah, as well as the disruption of the defendants’ business while such travel and hearings took place.

In any case, the Motion to Dismiss and for Change of Venue were denied, and it’s unclear how Judge Stewart will rule on the pending suppression motion, but Mooney says that the fact that it’s unresolved will push the trial date back several months from its original April 16 starting date – and possibly even more, if further motions are filed.

“We have a few things that we’re sort of batting around,” Mooney told AVN, “but nothing that I’d like to see published in an article on the Internet. Obviously we want to see how we come out on this phase of things, and if there’s changes of attitude, we’ll assess that then.”

“There’s a lot of things still going on and a lot of factors still in play,” he continued, “but it is highly unlikely we would go to trial on the April date. I’d say it’ll be delayed at least two or three months. Once you start delaying things, then you’ve got to look at everyone’s schedule. Summer is likely. I have a big trial in federal court here in L.A. that’s set to begin in August and that’s going to go on; I don’t see any way that that would not be going on, and that’s likely to take several weeks all by itself.”

Might that push the Harb case into the fall of 2009?

“Yes, it could,” Mooney agreed.

In the meantime, Movies By Mail continues to do business, although suffering from the same recession woes as many other adult businesses have.

“These are really nice people,” Mooney said of his clients. “It’s basically a small store in Cleveland that did mail-order, run by a couple of brothers who are just the kind of people you’d want to go out and have a drink with. They’re just great people, and I really hate to see this happening to them.”


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