The technical flaws in the original recording are such that it is impossible to verify that the recording shown to the jury is the exact same as it appeared to FBI agent Daniel Bradley who recorded it.
The judge’s ruling has the effect of dismissing counts three and seven of the indictment against Stagliano and partially impacting count six.
Count three accuses Stagliano and his corporations, "aided and abetted by each other, did knowingly use an interactive computer service and other facilities and means, in and affecting interstate commerce, for the purpose of distributing obscene matter, that is, a motion-picture trailer identified as 'Fetish Fanatic Chapter 5,' in violation of Title 18, United States Code, Sections 1465 and 2(a).”
Count seven accuses Stagliano and his corporations, "aided and abetted by each other, knowingly used an interactive computer service to display an obscene image, that is, a motion-picture trailer identified as "Fetish Fanatic Chapter 5," in a manner available to a person under 18 years of age in violation of Title 47, United States Code, Sections 223(d) and 2(a).”
Without the trailer as evidence, the government’s case against those two charges completely collapses.
Count six of the indictment accuses Stagliano and his corporations "aided and abetted by each other, while engaged in the business of selling and transferring obscene matter, did knowingly possess with the intent to distribute obscene motion-picture films, that is 'Milk Nymphos,' 'Storm Squirters 2,' 'Target Practice' and 'Fetish Fanatic Chapter 5,' which had been shipped and transported in interstate commerce in violation of Title 18, United States Code, Sections 1466 and 2(a).”
The government has lost part of the charge without the trailer as evidence.
Judge Leon, in deciding to throw out the trailer, said that the recording of the trailer does not depict illegal acts, the recording itself is the alleged illegal act, and therefore an imperfect copy is inadmissible as evidence.
“I trust this will be a valuable lesson to the government,” Leon said, referring to any future obscenity indictments. “Get your technical ducks in a row.”
“Good enough for government work is not good enough" for a criminal trial, he added.
After the judge’s ruling, court took a 25-minute break to allow the attorneys to confer. Then at 11:15 a.m. the judge released the jury at 2 p.m. to allow both sides to figure out what they are going to do now.
Meanwhile, in another development, Leon has filed an order to show cause to juror number 1725, Darian Mathis. The judge ordered him to appear in the courtroom tomorrow to show cause why the court should not hold him in contempt for failure to comply with the juror summons and to appear at the appointed time and place for possible service in the Stagliano trial.
In addition, the court order says failure to comply may result in the judge authorizing a U.S. Marshal to secure a warrant for his arrest.
More updates to follow.