UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA, ) ) v. ) Criminal Case No. 08-93 (RJL) ) JOHN STAGLIANO, ) JOHN STAGLIANO, INC., ) EVIL ANGEL PRODUCTIONS, INC.,) FILED ) Defendants. ) AUG 0 ~ 2010 Clark, U.S. District &Bankruptcy Courts for the DlstRct of Columbia ~ MEMORANDUM OPINION (JulYl!-, 2010) [#53, 82]

The defendants John Stagliano, John Stagliano, Inc., and:Evil Angel

Productions, Inc., were charged in a seven-count Indictment with violating several

federal obscenity statutes. I In essence, the government accuseti'them of distributing

in interstate commerce two obscene movies titled "Milk Nymphos" and "Storm

Squirters 2 'Target Practice'" and a movie trailer titled "Fetish Fanatic Chapter 5" that

was posted on a website allegedly owned by the defendants. 2 Prior to the trial, the

defendants filed a Motion in Limine [#53] requesting that the Court compel the

I Among the statutes charged in the Indictment were: (1)

, transporting obscene matters for sale or distribution; (2)

, using a common carrier or interactive computer service to transport obscene matters; (3) 18 U.S.c. § 1466, engaging in the business of selling or transferring obscene matter; and (4)

(d), displaying obscene material on the Internet in a manner available to persons under 18. 2 Ultimately, I dismissed with prejudice Counts 3 and 7 and part of Count 6, all

involving the movie trailer, because the FBI's original disc containing the trailer was so defective that it was not sufficiently reliable to be introduced into evidence. As for the remaining counts involving the two full-length movies, I granted the defendants' motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure due to the inadequacy of the government's proof linking the defendants to the distribution of the movies into the District of Columbia.

L government, not only to introduce into evidence the entirety of the charged films, but

to publish the films in their entirety in open court as part of its case-in-chief.

Altogether, the two movies and the trailer take approximately five-and-a-halfhours to

play in real time. The government opposed the defendants' motion, indicating instead

that it would introduce the entire films into evidence but would limit the publication

of each film in open court to representative samples accompanied by a summary

witness, who would describe the remaining portions. On June 2, 2010, I denied the

defendants' motion without further explanation, but left open the question whether the

defendants could publish the entire films or, at the very least, whether they could

publish the remaining portions of the films as part of their cross-examination of the

government's witnesses or as part of their case-in-chief. The defendants promptly

filed another motion [#82], which the government did not oppose, seeking permission

to publish the entire films as they deemed appropriate. On July 13, in a ruling from

the bench, I articulated the rationale for my earlier decision denying the defendants'

first motion, and I announced my decision to deny their second. This Memorandum

Opinion sets forth more fully the reasoning for both rulings.

DISCUSSION

I. Motion In Limine To Compel Government To Publish Charged Films

As grounds for their initial Motion in Limine, the defendants contended that

the "as a whole" requirement of the obscenity test announced by the Supreme Court in

Miller v. California,

(1973), required the government to show each work

from beginning to end to satisfY its burden of proof. The "as a whole" requirement

2 applies to the first and third prongs of the Miller test. Under the first prong, the

government must prove beyond a reasonable doubt that, according to contemporary

community standards, the charged work, taken as a whole, appeals to the prurient

interest.

. Under the third prong, the government must prove beyond a

reasonable doubt that the work, again taken as a whole, lacks serious literary, artistic,

political, or scientific value.

The defendants argued that, unless the government

played the entire films to the jury in open court, there would be no "guarantee" that

the jurors would actually view the films in their entirety and thus be able to judge

them as a whole. Because jury deliberations are generally considered to be

sacrosanct, the defendants stressed that "the only way to truly ensure that the jury has

viewed the material as a whole would be to require the jury to view the material in

open court." (Defs.' Mot. in Limine [#53] at 6 (emphasis in original)). A conviction

in which the jury failed to view the films in their entirety would, according to the

defendants, violate their First Amendment and due process rights, since those films

cannot be adjudged obscene without evaluating the prurient appeal and serious

literary, artistic, political, and scientific value of the films, taken as a whole.

I denied the defendants' motion because it rested on a non sequitur. Central to

the defendants' argument was the premise that jurors cannot properly judge a work as

a whole unless they view it in real time from beginning to end. Common sense tells

us, however, that a juror need not view every frame of a film or, for that matter, every

word of a book or every page or picture in a magazine in order to determine whether a

given work, taken as whole, appeals to the prurient interest and lacks serious literary,

3 artistic, political, or scientific value. Thus, quite predictably, the defendants could

cite no federal case in which a court required the government to play every frame of

film, or read aloud every word of a book or magazine, in open court to ensure that the

jury judged it as a whole.

Indeed, the notion that a work need not be viewed in its entirety to be appraised

as a whole is entirely consistent with the logic behind the "as a whole" requirement.

It is clear from Miller and the cases leading to it that the Supreme Court sought to

prevent the government from introducing only those portions of a work that, it

believed, appealed to the prurient interest or lacked serious literary, artistic, political,

or scientific value without giving the jury access to the remainder of the work so that

it could evaluate the questionable portions in their proper context. To criminalize an

entire work based solely on isolated excerpts taken out of context would, of course,

stifle the free expression that the First Amendment was meant to foster. Indeed, in

Roth v. United States,

(1957), the Supreme Court expressly rejected an

earlier standard for determining obscenity that "allowed material to be judged merely

by the effect of an isolated excerpt upon particularly susceptible persons."

at 488-

89. The Roth Court went on to approve a jury instruction directing that "'[t]he books,

pictures and circulars must be judged as a whole, in their entire context, and you are

not to consider detached or separate portions in reaching a conclusion. ",

.

As I stated in an earlier opinion in this case, "[t]he purpose of the 'as a whole'

requirement is that any allegedly obscene material be judged, not in isolation, but in

the context of the work of which they are a part." United States v. Stagliano,

4 Supp. 2d 25,34 (D.D.C. 2010). In an unpublished opinion that I find persuasive, the

Eleventh Circuit explained that the requirement serves two purposes: "(l) it places

materials in their proper context so that a jury may properly determine if the material

is truly of prurient appeal; and (2) it ensures that any literary, artistic, political, or

scientific value endowed in the material by its surrounding context is not lost by

viewing the material in isolation." United States v. Little,

(l1th Cir. 2010) (per curiam) (unpublished).

The juror's task, therefore, is to view the potentially obscene parts of the work

in their proper context and, in so doing, to judge whether the work appeals to the

prurient interest and whether it lacks serious literary, artistic, political, or scientific

value. Each individual work must be considered as a complete work, not based on

isolated portions taken out of context. But that task in no way requires the juror to

view every bit of a work. Repetitive sexually-explicit portions that neither alter the

determination of a work's prurient appeal nor add some plausible literary, artistic,

political, or scientific value are entirely irrelevant to the "as a whole" analysis. Cf

(explaining that "[i]fthe website in which material is found does not alter the

determination of its prurient appeal or add some redeemable quality to the work, then

the website is not necessary for the 'taken as a whole' analysis").

Thus, it was no surprise that the defendants could not cite a single case from

the Supreme Court or from our Circuit that requires the jury to watch every frame of a

movie or read every word of a book or view every page or picture in a magazine to

satisfy the "as a whole" element of the Miller test. After all, the jury's duty is to

5 ensure that whatever portions of a given work are thought to make the work obscene

are judged, not in isolation, but in the context of the larger work. But to put those

portions into context does not necessarily require that the jury view the entire work

from beginning to end. The jury may rely, for instance, on summary testimony from

witnesses who have viewed the remaining portions of the work and are subject to

cross-examination. It is, after all, a common practice in federal court to allow

witnesses to summarize evidence at trial that will be available to the jury during its

deliberations. Rule 1006 of the Federal Rules of Evidence provides, for instance, that

the "contents of voluminous writings, recordings, or photographs which cannot

conveniently be examined in court may be presented in the form of a chart, summary,

or calculation." Fed. R. Evid. 1006. To provide context, the jury may also rely on

other excerpts from the work that either the government or defense presented at trial

or that the jury itself viewed during its deliberations.

So long as the government introduces the entire work into evidence for the jury

to view as it sees fit during its deliberations, the government need not publish the

entire work to the jury in open court to satisfY its burden of proof. In that regard, I am

persuaded by an unpublished opinion from the Fourth Circuit, United States v. Adams,

(4th Cir. 2009) (per curiam) (unpublished), that the

government can indeed satisfY its burden by playing representative samples of a

charged work in open court with the aid of a witness-subject, of course, to cross-

6 examination-who can put the samples into context by summarizing the portions of

the work that are not shown. 3

The defendants' concern about the inviolability of the jury deliberation process

is, to say the least, overblown. It is no per se violation of the defendants' First

Amendment and due process rights if the jury deliberates for less than the amount of

time it would take to view all three films from beginning to end in real time. For

reasons that I just explained, Miller does not require that the jury view every frame of

the charged films, nor does it require that the jury view each film in real time. Indeed,

it would be acceptable as a constitutional matter for the jurors to fast-forward over

whatever portions of the film they have reason to believe contain gratuitous and

repetitive sexually-explicit activity that bears little relation to the plot, or that is

unnecessary to understand the meaning of the film. So long as the Court properly

instructs the jury on the legal requirement that they judge the prurient appeal and

literary, artistic, political, and scientific value of the film, taken as a whole, by

considering whatever portions of the film are shown at trial in their proper context,

the jurors are free to evaluate the evidence in any manner they wish in accordance

with those instructions. And, of course, it is well-established that "juries are

3 With little argument, the defendants hinted that the government's failure to play the entire films in open court could potentially violate the "best evidence" rule since the jury could base its decision on the summary witness's testimony about the films, rather than on the films themselves. This so-called "best evidence" rule provides that "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required." Fed. R. Evid. 1002. By introducing the original films into evidence in their entirety, the government clearly satisfied that rule. The use of summary witnesses, which is permitted by the Rules, is merely a tool of convenience, not a wholesale substitute for the actual films that are introduced into evidence at trial. 7 presumed to follow [the Court's] instructions." Richardson v. Marsh,

(1987).

Also unpersuasive is the defendants' claim that allowing the government to

play samples of the movies somehow

forces the Defendants into a 'Catch-22' of choosing between, on the one hand, playing the movies in order to show the jury context and to avoid waiving this issue on appeal, or, on the other hand, choosing to not play the rest of the movies and thereby allow the jury to falsely believe that these excerpts are representative.

(Defs.' Reply to Government's Opp'n to Defs.' Mot. in Limine [#72] at 6). I fail to

see how allowing the government to present its case in the manner that it wishes

would necessarily produce a no-win, "Catch-22" situation for the defendants. After

all, if the defendants play additional samples of the films as part of their case-in-chief

that add context favorable to their case or that demonstrate, for instance, the artistic

merit of the film not otherwise evident in the government's samples, then the

defendants will obviously benefit. That is hardly a "no-win" alternative. Indeed, it is

a potentially winning alternative to the extent that it strengthens the defendants' case.

Accordingly, for all the foregoing reasons, I rejected the defendants' rather

unusual effort to dictate how the government would present its case. 4

4As it turned out, the government showed in open court an approximately 50- minute excerpt from "Milk Nymphos" and a 35-minute excerpt from "Storm Squirters 2 'Target Practice. '" The FBI agent who summarized the remaining portions of each film was thereafter cross-examined by each defense counsel without any attempt, or even a request, to play any other portions of the two films. 8 II. Defense Motion To Publish The Charged Films In Their Entirety

Even though I denied the defense motion to compel the government to play the

charged films in toto, I reserved the question whether the defendants could play the

entire films or, at the very least, whether they could play the remaining portions of the

films as part of their cross-examination of the government's witnesses or as part of

their case-in-chief. The defendants raised essentially two arguments supporting their

contention that they were legally entitled to show the entirety of the charged films.

First, they reiterated their argument that Miller's mandate to take the works as

a whole required the jurors to view each charged work from beginning to end in real

time. Failure to do so, according to the defendants, would violate their First

Amendment and due process rights. For the reasons I just explained, however, one

need not, as a practical matter, view an entire work in order to take a fair measure of it

as a whole-that is, as a complete work. Nor does Miller, its progeny, and the case

law in our Circuit specifically require a juror to view the entirety of a charged work in

order to satisfy the "as a whole" requirement. Because a work need not be viewed in

its entirety to be judged as a complete work, the Miller test does not provide a basis

for the defendants' claimed entitlement to play the entire charged films on cross-

examination or as part of their case-in-chief.

Second, the defendants contended that their Sixth Amendment right to confront

the government's witnesses and to put on a defense means that they are entitled to

show whatever portions of the films are necessary to cross-examine the government's

witnesses or to establish their defense-including, if need be, the entire films. I do

9 not disagree that the defendants may show portions of the films that they can

demonstrate are needed to cross-examine the government's witnesses or to establish

their defense. The defendants do not have, however, a categorical legal right to show

in open court the entirety of the charged films.

Their right to confront opposing witnesses through cross-examination and to

put on a defense of their choosing, while robust, is nevertheless constrained by the

Court's power and discretion to control the mode by which the parties present

evidence. Under Federal Rule of Evidence 611, "the court shall exercise reasonable

control over the mode and order of interrogating witnesses and presenting evidence so

as to ... make the interrogation and presentation effective for the ascertainment of the

truth [and to] avoid needless consumption of time." Fed. R. Evid. 611. It is no aid to

the ascertainment of the truth, nor is it an efficient use of the Court's time, to allow

the defendants to play portions of the charged films containing gratuitous scenes of

repeated sexually-explicit activity that shed little or no light on the plot or meaning of

the films, that add no context to the excerpts already shown by the government, and

that no reasonable juror would find to lack prurient appeal or to have serious literary,

artistic, political, or scientific value. Accordingly, I declined to permit the defendants

to play the entire full-length films as of right. In that respect, I denied their motion.

I did rule, however, that the defendants were permitted to play those portions

of the films that they could demonstrate were necessary: (1) to cross-examine a

government witness; (2) to put the government's representative samples into context;

or (3) to show that the films did not appeal to the prurient interest or that they did not

10 lack serious literary, artistic, political, or scientific value. In short, absent a colorable

argument by the defendants that the additional segments they sought to play would

actually aid their defense, I refused to allow the segments to be played in open court

during the course of the trial, knowing, of course, that the jury would be free to watch

the entirety of the charged films during its deliberations.

CONCLUSION

The defendants took a particularly aggressive position regarding the procedural

approach to the trial of this case. In effect, they argued that a film-no matter how

long or sexually explicit-must be shown to the jury in its entirety in open court to

ensure that the jury satisfies Miller's mandate that the film be "taken as a whole" to

determine whether it appeals to the prurient interest or lacks serious literary, artistic,

political, or scientific value. Implicit in their argument is the flawed premise that a

work must actually be viewed in its entirety in order to be judged fairly as a whole. In

short, the defendants erroneously conflated the task of reviewing a film from

beginning to end in real time with the task of judging the film as a complete work.

Because the former is not necessary to accomplish the latter, I rejected the defendants'

argument and accordingly denied both of their motions.

,A

~United States District Judge

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