# Petitioners Brief — Fort Wayne Books, Inc. v. Indiana > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0575%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Brief - **Published:** January 1, 1989 - **Citation:** 489 U.S. 46 ## Text JOSEPH F. SPANIOL, UR. ree FORT WAYNE BOOKS, INC., Petitioner, vs. STATE OF INDIANA, et al., Respondents. — ' AF ON PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT OF INDIANA - LY. x MA BRIEF FOR PETITIONER FORT WAYNE BOOKS, INC. LY ee Joux H. Westox* Davin M. Brown G. Raxpatt Garrov Browx, Weston & Sarno 433 N. Camden Drive, Suite 900 Beverly Hills, CA 90210 (213) 550-7460 Counsel for Petitioner Fort Wayne Books, Inc. *Counsel of Record Lee J. Kier 8252 EF. Lansing Rd. Suite 101 Durand, MI 48429 Of Counsel COCKLE LAW BRIEF PRINTING CO.. (800) 225-0ve4 or cal! coilect (402) 342-2831 1. Is Indiana’s civil RICO statute, authorizing pre- trial padlocking and post-trial forfeiture of entire com- municative businesses solely on the basis of two or more obscenity offenses, facially unconstitutional under the First Amendment as a prior restraint on protected expression! 2. Do the forfeiture, padlocking and other sanctions of Indiana’s civil RICO statute constitute an overly broad means of regulating the dissemination of obscenity in that they permanently restrain in the most sweeping fashion the prospective exercise of First Amendment rights? 3. Even in their operation upon materials alleged to be obseene, do the Indiana civil RICO statute’s pre-trial sanctions of mass seizure and padlocking lack sufficient First Amendment procedural safeguards where they can be imposed based solely upon an ex parte probable cause determination of obscenity? 4. Do seizure, padlocking and forfeiture sanctions such as those upheld by the Indiana Supreme Court, vio- late the First Amendment by unduly chilling the exercise of protected expression? ‘i LIST OP PARTIES The following is a list of all parties of record in the Indiana Supreme Court in No. 87-470 in addition to those appearing in the caption of the present petition: CINEMA BLUE OF FORT WAYNE, INC, EROTICA HOUSE BOOKSTORE, INC., 4447 COR- PORATION, WORLD VIDEO SYSTEMS, ISSI THEATER CORPORATION, PLAZA ENTERTAIN. MENT CENTER and BURTON GORELICK ap- peared as appellants in the Indiana Supreme Court. STEPHEN M. SIMS, Prosecuting Attorney for the 38th Judicial Cireuit, and STEPHEN GOLD. SMITH, Prosecuting Attorney for the 19th Judicial Cirenit, appeared as appellees in the Indiana Supreme Court. As previously indicated by letter to the Clerk of this Court, petitioner FORT WAYNE BOOKS, INC. believes that 4447 CORPORATION, WORLD VIDEO SYSTEMS, ISSI THEATER CORPORATION, CINEMA BLUE OF FORT WAYNE, INC., and EROTICA HOUSE BOOK- STORE, INC. have no interest in the outcome of this peti- tion. Accordingly, pursuant to Supreme Court Rule 19.6, petitioner believes the respondents before this Court to be : THE STATE OF INDIANA STEPHEN M. SIMS STEPHEN GOLDSMITH PLAZA ENTERTAINMENT CENTER BURTON GORELICK * There are no entities to list pursuant to this Court’s Rule 28.1. iti TABLE OF CONTENTS Page TABLE OF AUTHORITIES 0 Vv CE EEE 1 JURISDICTION 2 CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 3 STATEMENT OF THE CASE 00000000 4 CE _ CO EE ee, © SUMMARY OF ARGUMENT 200 Se 15 LL 22 I WHERE THE ONLY PREDICATE OFFENSES ARE OBSCENITY VIOLATIONS, INDIANA’S CIVIL RICO STATUTE VIOLATES THE FIRST AMENDMENT ON ITS FACE, BOTH AS A PRIOR RESTRAINT AND AS AN OVER- LY BROAD STATUTE WHICH RESTRAINS A SUBSTANTIAL AMOUNT OF CONSTITU- TIONALLY-PROTECTED SPEECH .000 A. Standard Of Review .’ B. As Applied To The Predicate Offense Of Ob- scenity, Both The Pre-Trial And Post-Trial Sanctions Of Indiana’s Civil RICO Statute Are Facially Unconstitutional As — sible Prior Restraints 0000000000... C. The Indiana Statutory Scheme Must Also Fall When Analyzed As An Overly Broad Law Which Restricts Substantial Amounts Of Constitutionally-Protected Expression Oo oo 26 iv TABLE OF CONTENTS—Continued Page D. This Court Has Jurisdiction To Consider The Facial Validity Of Both The Pre-trial And Post-trial Sanctions Authorized By In- diana’s Civil RICO Statute 0... 43 Il EVEN IN THEIR OPERATION UPON MATE- RIALS ACTUALLY ALLEGED TO BE OB- SCENE, THE PROCEDURES AUTHORIZED BY THE INDIANA RICO STATUTE VIOLATE VIRTUALLY EVERY PROCEDURAL SAFE- GUARD REQUIRED BY THE FIRST AMEND- a . 46 Ill AS APPLIED TO THE PREDICATE OFFENSE OF OBSCENITY, THE RICO STATUTE’S SEI- ZURE, FORFEITURE, AND OTHER CIVIL REMEDIES CREATE AN UNPRECEDENTED AND CONSTITUTIONALLY IMPERMIS- SIBLE CHILLING EFFECT UPON A VAST RANGE OF PROTECTED EXPRESSION 00. 5] ENE . ya 37 Cornflower Entertainment, Inc. v. Salt take City Corp., 485 F.Supp. 777 (D.Utah 1980) 2 38 Council for Periodical Distributors Ass'n v. Evans, 642 F.Supp. 552 (M.D.Ala. 1986) 0 «= OM (‘ox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) — 44 Entertainment Concepts, Inc. Ill v. Maciejewski, RS EE 37 vi TABLE OF AUTHORITIES—Continued Fernandes v. Limmer, 663 F.2d 619 (5th Cir. 1981) 38 Fort Wayne Books, et al. v. Indiana, et al., U.S. Sup.Ct. Docket 26 A-TB4 oo ccccccccccccscsscssvmerrsnemeretemeesesnsn 10 Freedman v. Maryland, 380 U.S. 51 (1965) 34, 35, 46, 47, 49 Gayety Theaters Inc. v. City of Miami, 719 F.2d gS Ee 37 Genusa v. City of Peoria, 475 F.Supp. 1199 (C.D. Ill. 1979), aff'd. 619 F.2d 1208 (7th Cir. 1980) 37 Hamling v. United States, 418 U.S. 87 (1974) . a7 Heller v. New York, 413 U.S. 483 (19738) passim Hudson Distributors v. Eli Lilly, 337 U.S. 386 (1964) . 44 Huffman v. Pursue, Ltd, 420 U.S. 592 (1975) 37 Hustler Magazine v. Falwell, — U.S. —, 108 S.Ct. i ea FSS res rene CuO te SC 20, 52 Intern. Soc. for Krishna Consciousness v. Eaves, 601 F.2d 809 (Sth Cir. 1979) cee 38 Jenkins v. Georgia, 418 U.S. 153 (1974) —. J-R Distributors, Inc. v. Eikenberry, 725 F.2d 2 (9th Cir. 1984), rev'd on other grounds sub nom. Brockett v. Spokane Arcades, Inc., 472 U.S. SII. sestihseeierpernieseeniesitintetinetietntsata daar tence 37 Kingsley Books, Inc. v. Brown, 354 U.S. 4386 ee es dd, 26, 29, 30 Kolender v. Lawson, 461 U.S. 352 ( “(1983) oe Lee Art Theatre, Inc. ishipnsnceste 392 U.S. 636 Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) 32 Marcus v. Search Warrants, 367 U.S. 717 (1961) _. passim — vii TABLE OF AUTHORITIES—Continued Page Marks v. City of Newport, Ky., 344 F.Supp. 675 (E.D.Ky. 1972) . Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974) .................. 44 MIC. Ltd. v. Bedford siete 463 U.S. 1341 A Siete ace Sees BS I Seen 43 Miller v. California, 413 U.S. 15 (1973) #2, 54, 56 Mills v. Alabama, 384 U.S. 214 (1966) 00000 45 Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983) 22, 23, 29 Mishkin v. New York, 383 U.S. 502 (1966) 20000 57 N.A.A.P. v. Alabama, 377 U.S. 288 (1964) 39, 40 N.A.A.C.P. v, Button, 371 U.S. 415 (1963) 0. 52 Natco Theatres Inc. v. Ratner, 463 F.Supp. 1124 (S.D.N.Y. 1979) . a TTT eid Se et 37 National Socialist Party v. Filan of Skokie, 432 U.S. 43 (1977) . a AE Meant: _.8, 20, 43, 48 Near v. ieaieste 283 U.S. 697 (981) . ret —: passim New York v. Ferber, 458 U.S. 747 (1982) 0 40 New York Times Company v. Sullivan, 376 U.S. FF eee 16, 20, 28, 60 Nihiser v. Sendak, 405 F Supp. 482 (N.D.Ind. 1974), vacated and remanded on other grounds, 423 U.S. 976 (1975), order re-entered August 16, 1976 (unpub.), aff'd. 431 U.S. 961 (1977) 0... 37 Organization for a Better Austin v. Keefe, 402 ft = eee . | ’ { 41 forfeit the entire inventory of every bookstore, newsstand, video-store, theater, motion picture studio or newspaper in a chain of such businesses, but can also: (1) seize all neu- tral instrumentalities necessary to engage in future pre- sumptively protected expression (e.g., motion picture pro- jectors, printing presses, ete.) ; (2) padlock all such busi- nesses; (3) revoke all applicable business licenses and corporate charters; and (4) enjoin all members of the ‘‘enterprise’’ from ever again engaging in the type of business which the enterprise operated. Moreover, as construed and applied by the respondent Indiana authori- ties, the statute authorizes the forfeiture of the real prop- erty of any landlord who rents his store or building to an ‘‘enterprise’’ which subsequently produces, distributes, sells, rents or exhibits two or more obscene items.2”?” A more pervasive restraint on protected expression could hardly be imagined. Where, as here, a statutory scheme imposes a substan- tial restriction on constitutionally-protected expression, a strict standard of scrutiny is required to determine wheth- er the purposes underlying such a law could possibly neces- sitate so severe a restraint. Schad v. Burough of Mount Ephraim, 452 U.S. 61 (1981). In Schad, this Court applied a strict standard of scrutiny in striking down a zoning ordinance that pro- hibited all live entertainment (see fn. 7, 452 U.S. at 68 and accompanying text), and concluded that ‘‘|t}he Borough has not established that its interests could not be met by 27 See Amicus Brief of Burke Mendenhall filed herein in support of Petition for Writ of Certiorari. 42 restrictions that are less intrusive on protected forms of expression.’’ Jd. at 74. Similarly, Indiana cannot justify its inclusion of ob- scenity violations as conclusive evidence of racketeering activity, subjecting the violator to the panoply of repres- sive RICO sanctions. If punishment is the purpose of in- eluding obscenity as a RICO trigger, then the statute is broader than necessary because existing criminal obscenity statutes in Indiana were created precisely for the purpose of punishing such violations. If the purpose is not punishment, but the dismantling of the business in order to prevent the possibility of any future violations, then such purpose not only constitutes the essence of prior restraint but is also clearly overbroad where, as here, the only predicate acts consist of allegedly illegal speech activities.% See Arcara v. Cloud Books, Inc., supra, 106 S.Ct. at 3178 (concurring opinion of Justices O’Connor and Stevens). As Near v. Minnesota, supra, clearly held, the intentional restriction cf all future ex- 28 State and federal governments have limited discretion in establishing punishments for obscenity violations, as contrasted to other crimes. As stated in Smith v. California, supra: “The existence of the State’s power to prevent the dis- tribution of obscene matter does not mean that there can be no constitutional barrier to any form of prac- tical exercise of that power.” 361 U.S. at 155. Smith recognized that “[t}he ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller it in fact there is to be found in his shop an obscene book” (id. at 152), but went on to point out that the state has no “power to restrict the dissemination of books which are not obscene.” (Id.) See also Roth v. United States, 354 U.S. 476, at 488 (1957) and Miller v. California, 413 U.S. 15, 23-24 (1973). ae ee A i, ee ee ee ee eae ee ee ees | f t - : \ 43 pression solely because of past unlawful expression ‘‘is of the essence of censorship.’’ 283 U.S. at 713. For all the foregoing reasons, both the pre-trial and post-trial sanctions of Indiana’s civil RICO statute are facially unconstitutional as applied to those whose only predicate offenses are obscenity violations. D. This Court Has Jurisdiction To Consider The Facial Validity Of Both The Pre-Trial And Post-Trial Sanctions Authorized By Indiana’s Civil RICO Statute. This Court has jurisdiction to review the facial valid- ity of both the pre-trial and post-trial sanctions at issue in this case consistent with 28 U.S.C. § 1257’s jurisdictional limitation that this Court only review ‘‘final’’ judgments from the state courts. The Indiana Supreme Court’s ruling has finally de- termined that the civil RICO Act’s pre-trial restraints on First Amendment expression imposed in this case are con- stitutional and shall remain in effect pending trial. That determination is sufficiently final to invoke this Court’s jurisdiction under 28 U.S.C. § 1257. National Socialist Party of America v. Village of Skokie, 432 U.S. 48 (1977); M.1.C. Ltd. v. Bedford Township, 463 U.S. 1341 (1983) (per Justice Brennan as Circuit Justice) ; Cf. Renaissance Arcade and Bookstore v. County of Cook, — U.S. —, 106 S.Ct. 9 (1985) (per Justice Stevens as Circuit Justice). As the pre-trial sanctions included an order that peti- tioner’s business be padlocked pending trial, the prior restraint issue is necessarily presented in_petitioner’s challenge to the pre-trial, as well as post-trial, sanctions. The Indiana Supreme Court also finally determined that the post-trial sanctions under Indiana’s civil RICO 44 statute are immune from First Amendment scrutiny where the only predicate offenses are obscenity violations. In- deed, by upholding the pre-trial seizures which are statu- torily authorized only for the purpose of preserving assets for post-trial forfeiture, and by expressly concluding that the post-trial forfeiture remedy would not pose an uncon- stitutional prior restraint, the Indiana Supreme Court gave a concrete, non-speculative interpretation of the per- missible scope of the statute’s post-trial forfeiture rem- edies. This Court’s prior decisions establish beyond doubt that such a determination is of sufficient finality to invoke this Court’s jurisdiction. Where, as here, a federal issue has been finally decided by the highest state court and further trial proceedings are pending in which the party seeking review might prevail on non-federal grounds, thereby precluding review of the federal issue by this Court, this Court has deemed such rulings to be ‘‘final,’’ particularly where, as here, ‘‘a re- fusal immediately to review the state court decision might seriously erode federal policy.’’ Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 482-483 (1975).% Accord Hudson Distributors v. Eli Lilly, 337 U.S. 386 (1964) [finding fi- nality under these circumstances where federal policy recognized preemptive effect of federal antitrust laws over parallel state regulations], and Miami Herald Pub- lishing Co. v. Tornillo, 418 U.S. 241, 247, fn. 6 (1974) [find- ing finality under these cireumstances where federal policy is to vindicate First Amendment rights]. This Court’s rationale for finding jurisdiction in Miami Herald, supra, is particularly pertinent here: 2 A thorough summary of these types of “finality” cases is presented in Cox, 420 U.S. at 482-485. we a, Mle ~ 45 ‘‘Whichever way we were to decide on the-merits, it would be intolerable to leave unanswered, under these circumstances, an important question of freedom of the press under the First Amendment; an uneasy and unsettled constitutional posture of {the statute] could only further harm the operation of a free press. Mills v. Alabama, 384 U.S. 214, 221-222 (1966) (Douglas, J., concurring).’’ 418 U.S. at 247, fn. 6. In the present case, it would be equally intolerable to leave unanswered the question whether the forfeiture and license revocation remedies of a civil RICO statute can be applied to those whose only offense involves speech- rela‘ed conduct. As discussed further below, the chilling effect which such an unsettled status would create would have an intolerable impact on federal constitutional rights throughout both Indiana and the nation. It is also relevant that Chief Justice Burger’s majority opinion in Miami Herald cited with approval the concur- ring opinion of Justice Douglas in Mills v. Alabama, 384 U.S. 214, 221-222 (1966), which pointed out that ‘‘even had appellant been unwilling to concede that he has no defense—apart from the constitutional question—to the charges against him, we would [nonetheless] be warranted in reviewing this case” on grounds that “where First Amendment rights are jeopardized by a state prosecution which, by its very nature, threatens to deter others from exercising their First Amendment rights, a federal court will take the extraordinary step of enjoining the state prosecution.” Id. Accordingly, this Court has jurisdiction to review the constitutionality of the civil RICO statutory scheme in its entirety, and, petitioner respectfully submits, should do so. 46 II | The constitutional invalidity of this statutory scheme is further underscored by the fact that it is completely devoid of the procedural safeguards required under the First Amendment in any proceeding to sanction unpro- tected speech. Even as applied to materials actually al- leged and shown to be obscene, the civil RICO Act euther- izes proceedings which are void ab initio because they vio- late virtually every procedural rule this Court has doomed essential to ensure ‘‘the necessary sensitivity to freedom of expression.”’ Freedman v. Maryland, 380 U.S. 51, 58 (1965). As this Court emphasized in Spetser v. Randall, 357 U.S. 513, 525 (1958), “‘the line between speech uncondi- tionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finally drawn 7 2% The separation of legitimate from illegitimate speech calls for ... sensitive tools.”’ Accordingly, the Court later stressed, ‘‘a State is not free to adopt whatever procedures it pleases for dealing with obscenity ... without regard to the possible consequences for protected speech.”’ Marcus v. Search Warrants, 367 U.S. 717, 731 (1961). Obviously, the procedures authorized by the Indiana civil RICO stat- ute as applied to obscenity entail disastrous consequences for protected speech. 47 First, the statute on its face and as applied in this case authorizes the pre-trial seizure of the entire communi- eative ‘‘enterprise’’ pursuant to an ex parte hearing with- out notice to the defendants. Even if the entire contents of the bookstore were alleged to be obscene (as of course they are not here), this Court has unequivocally held that an adversary hearing must be afforded prior to any such mass seizure of allegedly unprotected materials. In Marcus v. Search Warrants, supra, and Quantity of Copies of Books v. Kansas, 378 U.S. 205 (1964), as detailed above, this Court held void ab initio proceedings which involved the mass seizure of communicative materials in the ab- sence of a prior adversary hearing ‘‘designed to focus searchingly upon the question of obscenity.’’ Marcus, supra, 367 U.S. at 732. If an ex parte injunction, which ‘‘represents the most devastating of restraints on constitutionally protected ac- tivities’’ (Walker v. City of Birmingham, 388 U.S. 307, 346 (1967)), cannot be imposed even upon allegedly ob- scene materials, a fortiort it cannot be imposed upon pre- sumptively protected expression as to which the statute renders any allegation of obscenity irrelevant. Any such seizure upon allegations that o/her material is unprotected constitutes a blatant and impermissible prior restraint. As vividly highlighted by the facts of this case, these pre-trial seizure and padlocking measures authorized by the RICO statute also create a restraint of indefinite dur- ation of the sort this Court condemned in Freedman v. Maryland, 380 U.S. 51 (1965), and more recently in Vance v. Universal Amusement Co., Inc., 445 U.S. 308 (1980). In Freedman, one of the basic First Amendment procedural requirements tais Covrt deemed necessary even for the 48 restraint of allegedly obscene materials was a final adjudi- cation within ‘‘the shortest fixed period compatible with sound judicial resolution.’’ 380 U.S. at 59. In Vance, this Court struck down a statute authorizing interim injune- tions of indefinite duration against named or unnamed obscene films, upon a preliminary finding of one or more obscene exhibitions in the past.*° The Indiana statute clearly transgresses this First Amendment procedural mandate, entailing no requirement of a final judicial determination within any specified period. The Indiana Supreme Court held only that trial was required within a ‘‘reasonable’’ time, hardly an ade- quate guarantee even for allegedly unprotected speech. Similarly, the Indiana RICO scheme fails to afford prompt or immediate appellate review of interim or final restramts upon expression, as required in National So- cialist Party of America v. Village of Skokie, 432 U.S. 43 1977). The gravity of this procedural failing is drama- tized by the facts of this case, in which petitioner filed an application for a stay in the state Court of Appeals within days of the trial court’s denial of its motion to vacate the ex parte seizure order. Despite continuous efforts to ob- tain prompt appellate review, the three Fort Wayne book- stores remained padlocked for more than a year before the Court of Appeals granted the stay. The statutory scheme also violates First Amendment requirements in establishing and apportioning the burden ” See also United States v. Thirty-Seven Photographs, 402 U.S. 363, 371-72 (1971), condernning “delays as long as 40 days and even six months between seizure of obscene goods and com- mencement of judicial proceedings,” and requiring final adjudi- cation within 60 days. ee ee a 49 of proof. In Speiser v. Randall, supra, 357 U.S. 518 (1958), this Court held that the burden of proof and the burden of going forward are of critical importance where ihe issue is entitlement to constitutional protection under the First Amendment. (This general principle was sub- sequently applied specifically. in Freedman v. Mary- land, supra, in the context of administrative censorship schemes.) As construed by the Indiana Supreme Court, however, the burden of proof and the burden of going for- ward is put entirely upon the defendant where the State obtains an ex parte order of seizure and closure. ‘‘Gen- erally, a defendant would initiate {a challenge to] such action by the filing of a motion to vacate the seizure or- der.’’ (Cert. App. 19.) The Court went on to note that if the defendant did not file a motion to vacate, then the only other remedy would be at a subsequent trial on the merits. Additionally, the ex parte seizure and closure order issues upon a mere probable cause showing, and the final forfeiture proceeding is conducted merely upon a civil preponderance standard of proof. However, this Court intimated in California ex rel. Cooper v. Mitchell Bros., 54 U.S. 90 (1981), that because of the importance of First Amendment interests, at least a ‘‘clear and convincing’’ standard is required in cases of this nature.*' Procedurally, the Indiana statute even in its opera- tion to suppress alleged obscenity perfectly illustrates the dangers of ‘ta scheme of governmental censorship devoid 3 The California courts applied this standard upon remand of the underlying civil action to enjoin the exhibition of al- legedly obscene films, People ex rel. Cooper v. Mitchell Broth- ers, 128 Cal.App.3d 937, 180 Cal.Rptr. 728 (1982). 50 of the constitutionally required safeguards,’’ Bantam Books v. Sullivan, 372 U.S. 58, 64 (1963). As the Indiana Court of Appeals characterized the statute: ‘Devoid of procedural strictures including the stan- dard of proof of a criminal prosecution, these civil remedies .. . may indeed curb the availability of ob- scenity but [cut] a broad swath into the realm of pro- tected expression as well.’’ 479 N.E.2d at 592. The Court of Appeals concluded, therefore, ‘that the seizure orders against these defendants and the statutes’ application to obscenity generally must be characterized as both substantively and procedur- ally unconstitutional . . .: as prior restraints of pro- tected speech, or as impermissible procedures for re- straining speech which may or may not be protected.’’ Id. at 598.*? Petitioner does not contend that a statutory scheme so fundamentally flawed under the First Amendment could be salvaged merely by proper ‘adherence to constitution- ally-required procedures. Rather, this recitation of pro- cedural deficiencies is merely to underscore the complete inappropriateness of the RICO statute’s remedies as a means of regulating obscenity, representing as they do the most ‘‘insensitive tools’’ yet devised for that purpose. The Georgia Supreme Court in Sanders v. State, 231 Ga. 608, 613-614, 203 S.E.2d 153, 157 (1974), struck down a closely analogous obscenity nuisance statute which au- thorized the permanent closure of a bookstore for one prior obscenity violation, the broad sweep of such a rem- 32 See the Court of Appeals’ entire discussion of the stat- ute’s procedural inadequacies at Cert. App. 58-70. > ae 51 edy “thereby precluding the application of ... procedural safeguards and creating an unconstitutional restraint”’ upon presumptively-protected communication. (Emphasis added.) Aptly summarizing the constitutional flaws at issue here, the Georgia Court concluded that an overbroad statute of this type: ‘‘ereates a chilling effect upon the exercise of free expression. We cannot throw out the protected to rid ourselves of the unprotected as these laws would re- quire ... We must use the deft, the precise and the remedial incision of the surgeon rather than the bludgeoning blow of the butcher to cut away cancer- our obscenity. If we do not, the body politic will suf- fer too mortal a blow from our zeal to have a decent society free of obscene publications but otherwise full of poetry and prose.’’ III AS APPLIED TO THE PREDICATE OFFENSE OF OBSCENITY, THE RICO STATUTE’S SEI- ZURE, FORFEITURE, AND OTHER CIVIL REMEDIES CREATE AN UNPRECEDENTED AND CONSTITUTIONALLY IMPERMISSIBLE CHILLING EFFECT UPON A VAST RANGE OF PROTECTED EXPRESSION. The pernicious effects of this draconian statute ex- tend far beyond its direct operation upon communicative businesses which may be targeted for seizure and for- feiture. The very existence of the civil RLCO statute with its extraordinarily severe penalties creates a chilling effect which would suppress indirectly what cannot be directly censored: a vast array of constitutionally-protected, non- obscene expression. The threat of pre-trial seizure and post-trial forfeiture of entire bookstores, theaters, video stores, or even chains of related communicative businesses, 52 merely for twice having disseminated materials subse- quently deemed unprotected, creates an unprecedented im terrorem effect which can only result in pervasive self- censorship of protected materials. From this perspective as well, the Indiana RICO statute facially violates the First Amendment requirement that any such regulation be ‘*narrowly tailored”’ to avoid the suppression of protected along with unprotected speech. This Court has continually recognized that because First Amendment freedoms ‘‘are delicate and vulnerable, as well as supremely precious in our societ,’’ they ‘‘need breathing space to survive.’’ N.A.A.C.P. v. Button, 371 U.S. 415, 483 (1963). The very ‘‘threat of sanctions may deter their exercise almost as potently as the actual appli- cation of sanctions,’ /d., creating ‘‘a continuous and per- vasive restraint on all freedom of discussion that might reasonably be regarded as within [their] purview.”’ Thornhill +. Alabama, 310 U.S. 88, 98 (1940). See also Hustler Magazine v. Falwell, — U.S. —, 108 S.Ct. 876, 880 (1988). Integral to this Court’s holding in Roth v. United States, 354 U.S. 476 (1957), that obscenity could be reg- ulated as unprotected speech, was the stipulation that such regulation must not infringe upon the untrammeled circulation of protected materials. “TS]ex and obscenity are not synonymous .... The portrayal of sex ... is not itself sufficient reason to deny material the constitutional protection of free- dom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ee eee a3 ages; it is one of the vital problems of human inter- est and public concern.” 354 U.S. at 487. Because protected expression must not get caught up in the nets designed to snare obscenity, the power to reg- ulate in this area must be strictly limited: “The door bar- ring federal and state intrusion into this area cannot be leit ajar; it must be kept tightly closed and opened onlv the slightest crack necessary.” Id. at 488. The Indiana civil RICO statute, if sustained, would rip that door from its hinges, by imposing an institutional! death sentence upon any communicative business civilly adjudged to have twice disseminated obscene material. These dramatically enhanced penalties for obscenity of- fenses, combined with the inherent vagueness of the ob- scenity definition and the closely related problem of sci- enter, can only serve to create an unprecedented regime of self-censorship. By making the dissemination of any sexually-explicit materials an ultrahazardous endeavor, these RICO statutes by their operation and by intent cast a chilling pall guaranteed to compel First Amendment bus- inesses to “steer far wider of the unlawful zone,” a result this Court long ago condemned in Speiser v. Randall, 357 U.S. 513, 526 (1958). Although this Court has struggled mightily to for- mulate an adequate definition of obscenity, the vagueness problem inherent in any such attempt persists. Whether or not one concludes that the vagueness of the Miller det- inition reaches a constitutionaliy intolerable level, the fact remains that the defendant charged with an obscenity of- fense almost never has advance knowledge that the ma- terial is obscene and therefore illegal. Unlike defendants 54 who have committed any of the other predicate RICO of- fenses, e.g. murder, robbery, or drug-trafficking, defen- dants alleged to have disseminated obscene materials may have done so fully and reasonably believing in the legality of their conduct. Clearly, it is diffieult if not impossible to predict what materials will be targeted for obscenity prosecu- tion and subsequently adjudged to be obseene. Literary classics and major motion pictures have been subjected to obscenity prosecution; “Carnal Knowledge” was deemed obscene at trial by the Georgia Supreme Court until this Court reversed in Jenkins v. Georgia, 418 U.S. 153 (1974). Issues of Penthouse, available at most newsstands and convenience stores, have been declared obscene, see Pent- house International, Ltd. v. McAuliffe, 610 F.2d 1353 (1980), and similar household-name magazines such as Playboy are frequently threatenca with obscenity prose- eution. See, e.g., Council for Periodical Distributors Ass’n v. Evans, 642 F.Supp. 552 (M.D.Ala. 1986). Compare State v. Walden Book Co., 386 So.2d 342 (La. 1980), find- ing Penthouse to be constitutionally protected. Even in formulating the current obscenity standard in Miller v. California, 413 U.S. 15, 23 (1973), this Court recognized that the regulation of obscenity “is an area in which there are few eternal verities.” Nevertheless, the Miller majority sought to eliminate the problem of “fair notice’’ by reducing to a tolerable level the inherent sub- jectivity in the identification of obscenity. The Court formulated what it considered to be a “bright line” dis- tinction between protected and unprotected erotic expres- sion: “Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of ob- 59 scene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct.” 413 U.S. at 27. In the intervening 15 years, changing social condi- tions and technology have greatly eroded any “fair no- tice” of illegality provided by anti-obscenity statutes, par- ticularly as mass popular viewing of X-rated videotapes has made “community standards” a more elusive concept than ever. With the advent of the “video revolution,” X-rated videotapes of the type formely regarded as “hard- core” have become standard viewing fare in American homes. Rentals of such videotapes, estimated to exceed 100 million units in 1986, are predicted to continue to increase dramatically.’ Most recently, Newsweek (february 1, 1988 at p. 44) reports the estimate that “more than 20 million Americans now watch at least one blue video each week.” Community standards, which have always been sub- ject to criticism as ‘‘vague and unascertainable,’’ such that the question of obscenity ‘‘is determined primarily by individual jurors’ subjective reactions to the materials .. . rather than by the predictable application of rules of law,’’ Smith v. United States, 341 U.S. 281, 314-316 (1977) (Jus- tice Stevens, dissenting) have become even less ascertain- able as a result of these developments. The statistics re- garding the popularity of adult, sexually-explicit films indicate a dramatic shift in community standards, toward widespread acceptance of graphie depictions of sexuality. The result has been the complete erosion of what the Miller Court believed at the time to be a ‘‘bright-line’’ standard— a category of ‘‘hardcore’’ materials which producers and 38 See Petition for Writ of Certiorari, pp. 24-27. 56 distributors were given ‘‘fair notice’’ to eschew, but many of which now represent protected expression.“ Given this situation in which the Miller guidelines have become increasingly amorphous, obscenity statutes not only fail to give ‘‘fair notice’’ to communicative busi- nesses, they equally fail “‘to establish minimal guidelines to govern law enforcement,’’’ another variety of vague- ness this Court recently condemned in Kolender v. Lawson, 461 U.S. 352, 358 (1983), quoting Smith v. Goquen, 415 U.S. 566, 574 (1974). As a result, obscenity statutes have increasingly come to ‘‘permit ‘a standardless sweep [that | allows policemen, prosecutors, and juries to pursue their personal predilections.’ ’’ 461 U.S. at 358, quoting 415 U.S. at 575. Their enforcement has become, predictably, ever more ‘‘arbitrary and erratic.’’ Paris Adult Theatre 1 v. Slaton, 413 U.S. 49, 88 (1973) (Brennan, dissenting). Just as vagueness continues to present constitutional difficulties in the regulation of obscenity, the closely-re- ad These changes in community standards have only exacer- bated the vagueness problems noted by Justice Brennan, dis- senting in Paris Adult Theatre | v. Slaton, 413 U.S. 49, 84 (1973): “Any effort to draw a constitutionally acceptable boun- dary . . . must resort to such indefinite concepts as ‘prurient interest,’ ‘patent offensiveness,’ ‘serious lit- erary value,’ and the like. The meaning of these con- cepts necessarily varies with the experience, outlook, and even idiosyncracies of the person defining them. Although we have assumed that obscenity does exist ..., We are manifestly unable to describe it in ad- vance, except by reference to concepts so elusive that they fail to distinguish clearly between protected and unprotected speech.” As Justice Scalia, concurring in Pope v. Illinois, — U.S. —, 107 S.Ct. 1918, 1923 (1987), has similarly observed, “it is quite im- possible to come to an objective assessment of (at least) literary or artistic value.” 57 lated issue of scienter also factors into the caleulus of chilling effect. As this Court noted in Mishkin v. New York, 383 U.S. 502, 511 (1966), “the Constitution requires proof of scienter to avoid the hazard of self-censorship of constitutionally protected material and to compensate for the ambiguities inherent in the definition of obseenity.’’ Subsequently, the element of scienter constitutionally re- quired for conviction of obscenity offenses has been de- fined as ‘‘knowledge of the contents|,| character and na- ture of the materials.’’ Hamling v. United States, 418 U.S. 87, 123 (1974). This scienter requirement has been reduced to the vanishing point in practical application, however: see Sherwin v. United States, 572 F.2d 196, cert. denied 437 U.S. 909 (1978), (conviction of obscenity on mere knowl- edge of material’s ‘‘sexual orientation’’); Sewell v. Geor- gia, 238 Ga, 495, 233 S.E.2d 187, appeal dismissed, 435 U.S. 982 (1978) (‘‘constructive knowledge’’ of material’s contents sufficient scienter for obscenity conviction). Par- ticularly in the case of the general distributor who desires to market a wide range of materials including the extra- ordinarily popular X-rated videos, for example, this very low threshold of scienter only exacerbates the ‘‘inherent ambiguities’’ of the obscenity definition and increases the peril of anyone disseminating erotic materials. Unable to make a safe judgment that much popular erotic material would be immune from prosecution, the distributor or video store operator has little choice but to engage in self- censorship of precisely the sort this Court wisely sought to preelude in Smith v. California, 361 U.S, 147 (1959). Even assuming these vagveness and scienter problems do not create an unconstitutional chilling effect in the con- 58 text of garden-variety obscenity prosecutions, the addi- tional factor of limitless confiseatory penalties in the form of civil RICO liability certainly exceeds First Amendment limitations in its deterrence of protected erotic expres- sion. The specter of RICO prosecution solely for two ob- seenity violations’ creates an informal regime of self- censorship at least as suppressive as that imposed by the strict-liability ordinance declared unconstitutional for that reason in Smith. Faced with the drastic seizure, forfeiture and other RICO sanctions, failure to discern accurately the ‘‘dim and uneertain line’’ separating protected expression from obscenity is fraught with the extreme peril of for- feiting the entire communicative business to the state. In- evitably, many book-sellers, theater and video store opera- tors will decide to exclude from their wares any and all sexually-oriented materials, the protected along with the unprotected, for fear of erring in the extremely difficult judgment as to whether any given item might now or at some later time be prosecuted as obscene. Following its decision in Roth that obscenity could be eriminalized as unprotected speech, this Court in Smith v. California, supra, was immediately confronted with an ordinance imposing strict liability upon a bookseller for possession of obscene material. The Court concluded this type of regulation would ‘‘work a substantial restriction 8 Under the Indiana RICO statute, predicate obscenity of- fenses include even display or dissemination of non-obscene “harmful matter” to minors, or display for sale of such material — 500 feet of a church or school, pursuant to I.C. § 35-49- 3-3. 39 on the freedom of speech and of the press’’ by its chilling effect, 361 U.S. at 150, emphasizing that ‘‘our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene.’’ Id. at 152. Noting the stricter standards applicable to regula- tion ‘‘having a potentially inhibiting effect on speech,’’ the court articulated the essential problem of such chilling legislation: if speakers are required to act at their peril, ‘*the free dissemination of ideas may be the loser.”’ Jd. at 151. A law like that in Smith is objectionable because it ‘‘tends to impose a severe limitation on the public’s access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge . . ., he will tend to restrict the books he sells to those he has inspected, and thus the State will have imposed a restriction upon . . . constitutionally protected as well as obscene literature. .. . The bookseller’s limita- tion in the amount of reading material with whiech- he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public’s access to | materials} the State could not constitutionally suppress directly. The book- seller’s self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered.’’ Jd. at 153-154. Likewise the Indiana RICO statute, authorizing the ulti- mate remedy of forfeiture merely for two sales or exhibi- tions of unprotected materials, makes First Amendment businesses ‘‘the strictest censors of their merchandise,”’ and ‘thas such a tendency to inhibit constitutionally pro- tected expression that it cannot stand under the Constitu- tion.’’ Jd. at 152, 155. 60 Knowledge of materials’ obscenity is not legally re- quired and is rarely possible under eurrent standards; the penalty imposed for a wrong guess upon that score thus becomes crucial in assessing a law’s chilling effect. Build- ing upon the Court’s concern in Smith to avoid self-cen- sorship, this Court in New York Times Company v. Sulli- ven, 376 U.S. 254 (1964), held that the ‘‘malice’’ stan- dard for libel actions by public figures was essential so that debate on public issues could remain ‘‘uninhibited, ro- bust, and wide-open.’’ 376 U.S. at 270. In New York Times, the Court addressed the scienter component of the equation so as to lessen the chill created by the intimidat- ing threat of large libel judgments. ‘‘A rule compelling the eritie of official conduct te guarantee the truth of all ... faetual assertions ... on pain of libel judgments vir- tually unlimited in amount’’ creates an intolerable degree of self-censorship, t/. at 279; so too does a rule compell- ing booksellers and others to guarantee the non-obscenity of all their wares, on pain of limitless RICO forfeiture judgments. The resulting ‘‘pall of fear and timidity . . . is an atmosphere in which the First Amendment freedoms eannot survive.’’ Jd. at 278. The facts of this case, and the equally egregious out- come of the first federal RICO/obscenity prosecution in United States v. Pryba, demonstrate that the in terrorem effect of this and other RICO statutes predicated upon obscenity is no idle, hypothetical threat to the exercise of First Amendment rights and the circulation of protected mtaerials. In Pryba, 674 F.Supp. 15044 (E.D.Va. 1981), the trial court upheld the constitutionality of the federal criminal RICO statute as applied to obscenity, concluding 61 as did the Indiana Supreme Court that the statute simply did not implicate the First Amendment at all, and that ‘‘whatever chilling effect [the RICO forfeiture provisions | may have is legitimate and intended.’’ 674 F.Supp. at 1513. The ensuing forfeiture order,*® like the forfeitures sought in this case, authorized the government to confis- cate the entire assets of five communicative businesses, including ‘‘the assets of three shops where customers could rent a variety of videocassettes, everything from family fare like the film ‘Star Wars’ to sexually-explicit tapes,” the New York Times reported.*’ This current wave of RICO/obscenity prosecutions and civil forfeiture actions sends an unmistakable message to any bookstore, periodical, video store, or theater which would make so bold as to disseminate any materials deal- ing candidly with sernality. Despite the enormous popu- larity of sexually-oriented films, and despite the fact that a great deal of such entertainment is clearly non-obscene and protected by the First Amendment, the obscenity ap- plication of RICO statutes represents highly politicized pressure aimed at curtailing all erotic expression, including 56 The Pryba forfeiture order is reproduced as Appendix B to this Brief, App. 9-13. dd As the Times further noted, “the Justice Department plans to seek a series of racketeering indictments this year designed to seize tens of millions of dollars from the distribution and sale of sexually-explicit material.” “U.S. Planning Major Drive Against Big Pornographers,” January 12, 1988. 62 protected materials.** The clear warning to all communi- cative businesses is to ‘‘steer far wider of the unlawful zone,’’ by self-censoring any materials which could pos- sibly trigger the confiseatory sanctions of the RICO Act. ee CONCLUSION As applied to obscenity, Indiana’s civil RICO statute is among the most severe threats to protected expression ever to come before this Court for review. Petitioner re- spectfully submits that this Court should strike the entire statute as facially unconstitutional in its application to obscenity and should reverse the judgment of the Indiana Supreme Court. DATED: May 12, 1988 Respectfully submitted, Joun H. Weston* Davin M. Brown G. RaxnpaLtu Garrou Brown, Weston & Sarno Counsel for Petitioner Fort Wayne Books, Inc. Lee J. Kier Of Counsel 38 ~=- The Pryba court, as noted above, frankly recognized that the RICO forfeiture provisions are ‘intended’ to have a chill- ing effect. 674 F.Supp. at 1513. Likewise the Meese Commis- sion candidly ack ged the unconstitutional purpose to ef- fect a prior restraint underlying these statutes: “RICO pro- vides an effective means to tantially eliminate obscenity businesses.’” Attorney General's Commission on Pornography, Final Report at p. 498 (July 1986). App. 1 APPENDIX A INDIANA CIVIL AND CRIMINAL RICO STATUTES CHAPTER 30.5 CIVIL REMEDIES FOR RACKETEERING ACTIVITY 34-4-30.5-1. Definitions—As used in this chapter: ‘‘Aggrieved person’? means a person who has an in- terest in real property or in an enterprise that: (1) Is the object of corrupt business influence (IC 35-45-6-2); or (2) Has suffered damages or harm as a result of corrupt business influence (IC 35-45-6-2). , ‘‘Enterprise’’ means the same as the definition of that term found in IC 35-45-6-1. [IC 34-4-30.5-1, as added by Acts 1980, P.L. 199, § 1; P.L.3808-1895, § 1.] 34-4-30.5-2. Action by prosecuting attorney to enjoin violation of IC 35-45-6-2—Orders.—The prosecuting at- torney in a county in which the violation occurs, may bring an action to enjoin a violation of IC 35-45-6-2. An action under this section may be brought in any cireuit or su- perior court in a county in which the violation occurs. If the court finds by a preponderance of the evidence that a violation of IC 35-45-6-2 has oceurred, it may: (1) Order a defendant to divest himself of any in- terest in any enterprise or real property; (2) Impose reasonable restrictions upon the future activities or investments of a defendant, including prohibiting a defendant from engaging in the same type of endeavor as the enterprise in which he was engaged in violation of IC 35-45-6-2; (3) Order the dissolution or reorganization of any enterprise ; App. 2 (4) Order the suspension or revocation of a license, permit, or prior approval granted to any enterprise by any agency of the state; (5) Order the forfeiture of the charter of a corpora- tion organized under the laws of Indiana, or the revo- cation of a certificate authorizing a foreign corpora- tion to conduct business within the state, upon finding that the board of directors or a managerial agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of IC 35-45-6-2 and that, for the prevention of future criminal activity, the public interest requires the charter of the corporation for- feited and thé corporation dissolved or the certificate revoked; and (6) Make any other order or judgment that the court considers appropriate. In any order or judgment made by the court under this section, the judge shall make due provision for the rights of innocent persons. [IC 34-4-30.5-2, as added by Acts 1980, P.L. 199, §1.] 34-4-30.5-3. Action by prosecuting attorney for for- feiiure of property—Orders—(a) The prosecuting at- torney in a county in which any of the property is located, may bring an action for the forfeiture of any property used in the course of, intended for use in the course of, derived from, or realized through, conduct in violation of IC 35- 45-6-2. An action for forfeiture may be brought in any cireuit or superior court in a county in which any of the property is located. Upon a showing by a preponderance of the evidence that the property in question was used in App. 3 the course of, intended for use in the course of, derived from, or realized through, conduct in violation of IC 35- 45-6-2, the court shall order the property forfeited to the state, and shall specify the manner of disposition of the property including the manner of disposition if the proper- ty is not transferable for value. The court shall order forfeitures and dispositions under this section with due provision for the rights of innocent persons. (b) When an action is filed under subsection (a), the prosecutor may move for an order to have property subject to forfeiture seized by a law enforcement agency. The judge shall issue such an order upon a showing of probable cause to believe that a violation of IC 35-45-6-2 involving the property in question has occurred. [IC 34-4- 30.5-3, as added by Acts 1980, P.L. 199, § 1.] 34-4-30.5-4. Seizure of property by law enforcement officer—Seizure without court order—Disposition pending forfeiture and final disposition—Return to owner.—(a) Property subject to forfeiture under this chapter shall be seized by a law encorcement officer upon court order. Seizure may be made without court order only if: (1) The seizure is incident to a lawful arrest or search, or to an inspection under an administrative inspection warrant; or (2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding under this chapter. (b) When property is seized under subsection (a), pending forfeiture and final disposition, the law enforce- ment officer making the seizure may: App. 4 (1) Place the property under seal; (2) Remove the property to a place designated by the court; or (3) Require another agency authorized by law to take custody of the property and remove it to an ap- propriate loeation. (c) Property seized under subsection (a) is not sub- ject to [replevin], but is considered to be in the custody of the law enforcement officer making the seizure, sub- ject only to order of the court. However, if a seizure of property is made in accordance with subsection (a), the prosecuting attorney shall promptly bring an action for forfeiture under section 3 [34-4-30.5-3] of this chapter. If an action is not filed within one hundred eighty [180] davs after the date of the seizure, the law enforcement agency whose officer made the seizure shall return the property to its owner. [IC 34-4-30.5-4, as added by Acts 1980, P.L. 199, §1.] 34-4-30.5-5. Actions by aggrieved person.—(a) An aggrieved person may bring an action for injunctive re- lief from corrupt business influence in a cireuit or su- perior court in the county of the aggrieved person *s resi- dence, or in a county where any of the affected real prop- erty or the affected enterprise is located. If the court finds, through a preponderance of the evidence, that the aggrieved person is suffering from corrupt business in- fluence, it shall make an appropriate order for injunctive relief. This order must be made in accordance with the principles that govern the granting of injunctive relief from threatened loss or damage in other civil cases, ex- App. 5 cept that a showing of special or irreparable damage to the aggrieved person is not required. The court may order injunctive relief only after the execution of a bond by the aggrieved person for an injunction improvidently granted, in an amount established by the court. In addition, the court may order a temporary restraining order or a pre- liminary injunction, but only after a showing of immediate danger of significant loss or damage to the aggrieved person. (b) An aggrieved person may bring an action against a person who has violated IC 35-45-6-2 in a cireuit or superior court in the county of the aggrieved person’s residence, or in a county where any of the affected real property or the affected enterprise is located, for dam- ages suffered as a result of corrupt business influence. Upon a showing by a preponderance of the evidence that the aggrieved person has been damaged by corrupt busi- ness influence, the court shall order the person causing the damage through a violation of IC 35-45-6-2 to pay to the aggrieved person: (1) An amount equal to three (3) times his actual damages ; (2) The costs of the action; (3) A reasonable attorney’s fee; and (4) Any punitive damages awarded by the court and allowable under law. (c) The defendant and the aggrieved person are en- titled to a trial by jury in an action brought under this section. App. 6 (d) An aggrieved person has a right or claim to forfeited property or to the proceeds derived from a feited property superior to any right or claim the state has in the same property or proceeds. (e) If the state is an aggrieved person, the attorney general has concurrent jurisdiction with the prosecuting attorney to bring an action under this section. [IC 34-4- 30.5-5, a added by Acts 1980, P.L. 199, 61; P-L. 308-1985, § 2.) 34-4-30.5-6. Collateral estoppel.—In any brought under this chapter, the principle of collatera estoppel operates to bar relitigation of the issues rr ly determined in a eriminal proceeding under IC 35-45-6-2. [IC 34-4-30.5-6, as added by Acts 1980, P.L. 199, § 1.) action CHAPTER 6 RACKETEER INFLUENCED AND CORRUPT ORGANIZATIONS (CRIMINAL RICO STATUTE) 35.45-6-1. Definitions.—As used in this chapter: ‘‘Documentary material’’ means any document, draw- ing, photograph, recording, or other tangible item con- ‘ ‘led data from which information can be taining comp ) obtained or can be translated into a usable form. ‘‘Enterprise’’ means a: (1) Sole proprietorship, corporation, partnership, business trust, or governmental entity; or (2) Union, association, or group, whether a legal entity or merely associated in fact. App. 7 ‘Pattern of racketeering activity’? means engaging in at least two [2] incidents of racketeering activity that have the same or similar intent, result, accomplice, vie- tim, or method of commission, or that are otherwise inter- related by distinguishing characteristics that are not iso- lated incidents; however, the incidents are a pattern of racketeering activity only if at least one of the incidents occurred after August 31, 1980, and if the last of the in- cidents occurred within five [5] years after a prior inci- dent of racketeering activity. ‘*Racketeering activity’? means to commit, to attempt to commit, or to conspire to commit a violation, or aiding and abetting in a violation, of a provision of IC 23-2-1, or of a rule or order issued under IC 23-2-1; a violation of IC 35-47; a violation of IC 35-49-3; murder (IC 35-42-1-1) ; battery as a class C felony (IC 35-42-2-1); kidnapping (IC 35 2-3-2); child exploitation (IC 35-42-4-4) ; robbery (1C 35-42-5-1) ; arson (IC 35-43-1-1) ; burglary (IC 35-43-2- 1); theft (IC 35-43-4-2) ; receiving stolen property (IC 35- 43-4-2) ; forgery (1C 35-43-5-2) ; fraud (1C 35-43-5-4) ; brib- ery (IC 35-44-1-1) ; offical misconduet (IC 35-44-1-2) ; con- flict of interest (IC 35-44-1-3) ; perjury (1C 35-44-2-1) ; tam- pering (IC 35-44-3-4) ; intimidation (IC 35-45-2-1) ; promot- ing prostitution (IC 35-45-4-4); promoting professional gambling (IC 35-45-5-4); dealing in cocaine or a narcotic drug (IC 35-48-4-1) ; dealing in a schedule I, IT, or TIT con- trolled substance (IC 35-48-4-2); dealing in a schedule IV controlled substanee (IC 35-48-4-3); dealing in a schedule V controlled substance (IC 35-48-4-4); or dealing in mari- juana, hash oil, or hashish (IC 35-48-4-10). [IC 35-45-6-1, as added by Acts 1980, P.L. 199, § 2; P.L.190-1984, § 1.] App. 8 35-45-6-2. Corrupt business influence—Penalty.—(a) A person: (1) Who has knowingly or intentionally received any proceeds directly or indirectly derived from a pattern of racketeering activity, and who uses or invests those proceeds or the proceeds derived from them to acquire an interest in real property or to establish or to operate an enterprise ; (2) Who through a pattern of racketeering activity, knowingly or intentionally acquires or maintains, either directly or indirectly, an interest in or control of real property or an enterprise; or (3) Who is employed by or associated with an enter- prise, and who knowingly or intentionally conducts or otherwise participates in the activities of that enterprise through a pattern of racketeering activity; commits cor- rupt business influence, a Class C felony. [IC 35-45-6-2, as added by Acts 1980, P.L. 199, § 2.] App. 9 APPENDIX B ORDER OF FORFEITURE IN United E.D.Va. Crim. No. 87-00208.A ENTERED ‘Nov. is tee? IN THE UNITED STATES DISTRICT J Y COL FOR THE “ EASTERN DISTRICT OF VIRGINIA Alexandria Division UNITED STATES OF AMERICA ) Criminal Vv. No. 87-00208-A DENNIS E. PRYBA, BARBARA A. PRYBA, JENNIFER C. WILLIAMS, and EDUCATIONAL BOOKS, INC (Filed November 18, 1987) Seer re ee See ee ORDER OF FORFEITURE WHEREAS, in the Indictment, in the above-entitled case, vlaintiff, the United States of America, sought the forfeiture of certain properties of defendants Dennis E. Pryba and Barbara A. Pryba (hereinafter referred to as the ‘‘defendants’’) pursuant to 18 U.S.C. § 1963; AND WHEREAS, on November 10, 1987, a jury found the defendants guilty of 18 U.S.C. § 1962(a), (ce) and (d); . AND WHEREAS, on November 18, 1987, the same jury found that the defendants have certain interests in properties listed below which afforded them a source of influence over the enterprise in violation of 18 U.S.C. § 1963(a). App. 10 NOW THEREFORE IT IS ORDERED that the following properties are forfeited to the United States of America: 1. e- & m4 ye A parcel of property commonly known 4s 8411 Old acthewe Pike, Unit 15, Upper Marlboro, Maryland, part of the Penn Belt Industrial Condominium com- plex; purchased in the names of Dennis and Barbara Pryba on or about February 28, 1983 and recorded in the record office of Prince George’s County, Mary- land, in Deed Book 5652, Page 211. All shares of stock of B & D Corporation. All shares of stock of Educational Books. All shares of stock of Marlhoro News, Ine. All shares of stock of Home Video Sales, Ine. All shares of stock of Video Shop, Ltd. ll corporate assets of B & D Corporauon, located - 8411 Old Marlboro Pike, Upper Marlboro, Mary- land, including, but not limited to, inventory, United States “urrency, bank accounts (ineluding Citizens Bank & Trust account No. 037-0341 and National Bank of Maryland account No. eng a equip- ent, coin boxes, furniture, ures, t (incloding a 1981 Audi VIN No. WAUHC0438BN 03154), and all shares of stock in Educational Books, Ine., Marlboro News, Ine., and Home Video Sales. All corporate assets of Educational Books, Inc., lo- cated at 9158 Richmond Highway, Ft. Belvoir, Vir- ginia, ineluding, but not limited to, inventory, United States Currency, bank accounts (ineluding Ist Ameri- ean Bank of Virginia account No. 60055123), coin box- es, cash registers, movie machines, and fixtures. located All corporate assets of Marlboro News, Ine., at 7609 Marlboro Pike, Forrestville, Maryland, and 7425 Annapolis Road, Hyattsville, Maryland, ineluding but not limited to, inventory, United States Currency, 10. 11. App. 11 bank accounts (including Citizens Bank & Trust ae- count no, 0397258 and Sovran Bank account No. 46- 05290-3), furniture, fixtures, machinery, equipment, cash registers and projectors. All corporate assets of Home Video Sales, Inc., lo- cated at 8411 Old Marlboro Pike, Upper Marlboro, Maryland, including, but not limited to, United States Currency, bank accounts (including Ist National Bank of Maryland account No. 6215279-8), video machines, copy machine, vehicles (including a 1982 BMW 3201 VIN No. WBAAG4303C8069688), and all shares of stock of Video Shop, Ltd. All corporate assets of Video Shop, Ltd. which corpo- rate address is 8411 Old Marlboro Pike, Upper Marl- boro, Maryland, (d/b/a Video Rental Centers at the below-listed locations: including, but not limited to, video tape cassettes, United States Currency, bank accounts (including Maryland National Bank account No. 512012386, United Virginia Bank account No. 080-04-978, and First Virginia Bank account No. 0774- 0344), computers, safe, vehicles (including a 1986 Chevrolet Astro Van VIN No. 1GCDM15206B118910, a 1985 Chevrolet Blazer VIN No. 1G8CT1SB4F0210345, and a 1986 Chevrolet Sprint VIN No. JG1MR6852- GK806925). (a) 804 Rockville Pike Rockville, Md. (b) 10288 Festival Lane Manassas, Va. (ec) 6193 Livingston Rd. Oxon Hill, Maryland (d) 9156 Richmond Hwy. Ft. Velvoir, Va. (e) 8328 Richmond Hwy. Alexandria, Va. (f) 13711-A Jefferson Davis Hwy. Woodbridge, Va. App. 12 (g) 277 S. Van Dorn Van Dorn Plaza Alexandria, Va. (h) 3525 S. Jefferson St. Leesburg Pike Plaza Bailey’s Crossroads, Va. (i) 13748 Smoketown Road Dale City, Va. IT IS FURTHER ORDERED that the Attorney General is authorized to seize the property and dispose of it in accordance with law. IT IS FURTHER ORDERED that the United States shall publish notice of this Order and its intent to dispose of the property in such manner as the Attorney General may direct. Any person, other than the defendant, assert- ing a legal interest in the property shall, within thirty (30) days of the final publication of this notice, or his receipt of direct written notice, whichever is earlier, petition the Court for a hearing to adjudicate the validity of his al- leged interest in the property. The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner’s right, title, or interest in the property, the time and circumstances of the petitioner’s acquisition of the right. title, or interest in the property, and additional facts supporting the pe- titioner’s claim, and the relief sought. IT IS FURTHER ORDERED that following the Court’s disposition of all petitions filed, or if no such petitions are filed following the expiration of the period specified for the filing of such petitions, the United States App. 13 shall have clear title to the property and may warrant good title to any subsequent purchaser or transferee, Dated: 11/18/87 /s/ T.8..Ellis, 111 UNITED STATES DISTRICT JUDGE By: /s/ Renee Spivey Deputy Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0575%3A10. Public record. Not legal advice.