Amicus Curiae Brief — Fort Wayne Books, Inc. v. Indiana

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............. iii

INTEREST OF AMICUS ............045: 1

SUMMARY OF ARGUMENT................ 3

LAW AND ARGUMENT ..............000 ?

I. SCOPE AND STANDARD

OF REVIEW: THE INDIANA

RACKETEERING STATUTES ARE

FACIALLY CONSTITUTIONAL AND

SHOULD NOT BE INVALIDATED UNDER

THE CIRCUMSTANCES PRESENT IN

THESE CASES ......5cceeues 7

A. Inc

er Statutes

nGer Review Mu:

aiustes ScBss 4

Sf The Indiana Racket

-utes, When involv!

The Predicate Offense ©

Joscenity, has Been Given

-imiting Construction

Il.

Page

CONSTITU IONALITY OF REMEDIES:

UNDER THE CIRCUMSTANCES PROVEN

TO THE COURTS BELOW, THE

INDIANA RICO/CRRA STATUTES WERE

APPLIED CONSTITUTIONALLY TO

THE PRESENT POINT IN THESE

CASES AND DUE PROCESS MUST BE

EXPECTED TO CONTINUE ..... 17

A.

The RICO/CRRA Remedies Of

Closure And Forfeiture

May Constitutionally Be

Applied To Business

terprises Corrupted By

Violations Of Obscenity

Statutes As Well As

To Businesses Corrupted

By Other Predicate

Di! tee eeeeeesee cc 27

The Restraint Upon The

Distribution Of Materials

ot udicate s scene

S$ Incidenta “To

Those Items Forfetted

As Property Assets Of

A Corrupt tater rise

re oes ot amoust t t

poe pons eae To An Unconstitutional

: Prior Restraint Upon

Gther Matertets v Materials Ok Aga inst

The Same Or Similar

Yceus Yn Commerce At

Other Locations ...... 43

ii

CONCLUSION wc cccccccccccccccccccens 55

APPEMDIR A cccccccccccccccccccccees 57

APPEMDIRA BD nccccccccccccccccccecess 62

CERTIFICATE OF SERVICE .........55. 64

iii

TABLE OF AUTHORITIES

Pages

Albright v. State,

o Be (Ind. App. 1986). 41

American Booksellers Assoc. v. Hudnut,

771 F.2d 323 (7th Cir. I1985).... 41

American Films v. State,

G13 W.E.27d I091 (Ind. App.

Beach v. State,

GIT W.E.7d 363 (Ind. App. 1980). 42

eeeeeecseee 13

Brockett v. otis Arcades,

- a el Re See 13,

14,16,34,

iv

F.C.C. v. Pacifica,

a Pe ns os cocecosee 55

Flynt v. Ohio,

ae Meseeeeeeeees 12,

24,35

Ford v. State,

olde 250 (Ind. App. 1979). 42

4447 Corp. v. Goldsmith,

504 NE ota S59 (Ind. 1987)..... 8,10,

4447 Corp. v. Goldsmith,

a79 Wed 578 (ind.

ode DUG CLISS) 2... cece wees 13

Hagood v. State,

aos N.E.Zd SIS (Ind. App. 1979). 42

45,50

Heller v. New York,

p= =e gas 51

Huffman v. Pursue,

Se wee ee Wc ccccceccece 50

Is v. State,

235 WET T193 (Ind

BBD. BUGS) ccccececcccccececess 42

Jenkins v. Georgia,

4i8 U.S. 153 ETO} 4) veeeeeseeees 48

Kingsley Pictures v. Regents,

3E0 9 a eb) ) eee 13

Massey v. City of Mishawaka,

378 N.E.2d 1% (Ind. App. 1978). 43

McCarthy v. Briscoe, )

553 F.2aq 1005 (Sth Cir. 1977).. 35

McNeal v. State,

7 (Ind. App.

DEED: cece eeeeGeesteececcoeccesss 42

Metromedia v. San Diego,

G53 U.S. GOO (19OB1)....... eee 13

Miller v. California,

2 2 Sp. go > 39,

47,50,56

Mishkin v. New York,

= ee gy.) Pee 13,39

Moore v. Sims,

Bee Was GE CROP OD ch cocccccess 34,43

Naked Cit Inc. v. Aregood,

607 F.Supp. 1246 (N.D. Ind.

DET Paceseeesedescecacceseeeeees 43

New York v. Ferber,

. ee go. : ee 13

vi

New York v. P.J. Video, Inc.,

“SO L.Ed. 2d O71 (1986)... ss eee 49,

Paris Adult Theatre v. Slaton,

G13 U.S. 49 CLOTS). cece cece cees 49,50

Peters v. State,

+ 1 (Ind. App.

People, ex rel. Van De Kamp v.

American Art Enterprises,

“~T42 Cal. Rptr. 338

(Cal. App. 1977). ..cccccccevees 14

People, ex rel. Van De Kamp v.

American Art Enterprises,

al. Rptr. 7 al. App.

DEE De cen abeeeeeesesecocececoes 14

1976). .ccccccccscces 14

People v. Kovner,

75 N.Y.S.2d 349 (N.Y. Sup. Ct.

People v. Souter,

78 Cal.Rptr. 111 (Cal. App.

Peters v. State,

1 (Ind. App.

DU cbesneeseseeSeeasoceccocees 41

Polykoff v. Collins,

+13 F.Supp. 584 (D. Ariz.

REP cevcceseeeeeseeeeeoccesoues 37

Pope v. Illinois,

C19GST) wcccccsccese 50,

Porter v. State,

0 (Ind. App.

DEM cceceseeeboceenevoceseveces 42

Richards v. State,

; (Ind. App.

| rrr y rr rrTiti ttre 41

Riley v. State,

350 meee SO? C1IDT9) ccccccccces 42

Roth v. U.S.,

TSE U.S. 876 (1987). ccccccccces 38,

49,50

Russello v. U.S.,

G64 U.S. 16 (€1983)...... eevee 28,

38

Saliba v. State,

475 N.E.2d 1181 (Ind. App.

rr rer TrTrTTTTT TTT tk 41

Sedelbauer v. State,

L278 N.B.2d 206 (ind. 1981)..... 42

Sedelbauer v. State,

455 N.E.2d 1159 (Ind. App.

nd. App.

viii

Smith v. State,

G13 N.E.2d 652 (Ind. App.

Southeastern Promotions v. Conrad,

G20 U.S. 546 (19/5)... .. ee eees 28

Spokane Arcades v. Brockett,

631 F.2d 135 (Oth Cir. 1980)... 31

State v. Baysinger,

397 WET sB0 (Ind. 979)...... 42

State, ex rel Drost v. Superior Court,

Lio N.E.2d 1247 (ind. 1981).... 42

State, ex rel Ewing v. “Without

A Stitch”,

307 N.E.2d 911 (Ohio 1974)..... 31

State, ex rel J.N.S., Inc. v.

Municipal Court,

396 a 361 (Ind. 1979)..... 42

State, ex rel. Kidwell v.

U.S. Marketing,

631 P.2d yy (Idaho 1983)...... 30,

State, ex rel. Sensenbrenner v.

Adult Book Store,

771 N.E.2d 13 (Ohio App. 1971). 14

State v. Feld,

; 6 (Ariz. App. 1987). 1,52,

56

State v. Sappenfield,

505 Ea 504 (Ind. App.

DSP cee geecececcceccccs Bae

21,28,40

State v. Voshart,

Fe) eee

U.S. v. Battista,

646 F.2d 23? (6th Cir. 1981)...

U.S. v. Busher,

9 (9th Cir. 1987)..

U.S. v. Cauble,

706 F.2d 1322 (5th Cir. 1983)..

U.S. v. Conner,

(lith Cir. 1985)..

U.S. v. Ginsburg,

773 F.2d 798 Cth Cir. 1985)...

U.S. v. Godoy. |

, (9th Cir. 1982)....

U.S. v. Grande,

620 F.2d 1026 (9th Cir. 1980)..

U.S. v. Huber,

603 F.20 30/7 (2nd Cir. 1979)...

U.S. v. Lizza Indust.,

‘ n ir. 1985)...

U.S. v. Martino,

(5th Cir. 1982)...

U.S. v. McManigal,

708 F.2d 276 (/th Cir. 1983)...

U.S. v. Pryba,

674 F.Supp. 1502 (1987)

674 F.Supp. 1504 (1987)

674 F.Supp. 1518 (1987)

x

29,32

678 F.Supp. 1218 (1988)

678 F.Supp. 1225 (1988)

680 F.Supp. 790 (1988)

(E.D. Va.). ccc cccccccceeecesseeces 25,

U.S. v. Roberts,

(7th Cir. 1984)... 29

U.S. v. Thevis,

-Supp. 134 (N.D.Ga. 1979). 32

U.S. v 37-Photographs,

402 U.S. 363 eIOVT} ee eee ye 13,29

U.S. v. West Coast News,

t r. 1966)... 40

U.S. v. Zielie,

734 F.2d 1447 (llth Cir. 1984). 29

Vance v. Universal Amusements,

Van Sant v. State, |

(Ind. App.

41

Whiting v. Rox Ltd.,

293 E74 385 (Ohio C.P.

Woodruff v. State,

773 A.2d G30 (Md. App. 1971)... 40

Young v. American Mini Theatres,

hy U.S. 50 (19/6)..... eee eees 33

Zeitlin v. Arnebergh,

383 P.2d 152 (Cat. BOT) ccccccse 40

xii

INTEREST OF AMICUS

Bob Corbin is the duly elected

Attorney General of the State of

Arizona. As Amicus herein, he has a .

fervent interest in the outcome of this

case. He seeks guiding rules of law to

enable himself and other prosecutors in

Arizona to constitutionally enforce the

Arizona RICO statutes, A.R.S. § 13-2301

et seq., in conjunction with Arizona's

felony obscenity statutes, A.R.S. §

13-3501 et seq.

The application of Arizona's RICO

laws to obscenity is the subject of

State v. Feld, 155 Ariz. 88, 745 P.2d

146 (Ariz. App. 1987), cert. denied,

__, U.S.___, - 99 L.Ed.2d 482 (3-28-88),

which is now pending in the Superior

Court of Maricopa County and may be

directly affected by this Court's

disposition of the instant Indiana

ele

cases. Like Indiana and the several

other states with racketeering statutes

which include obscenity offenses as

predicate crimes, Arizona patterned the

organized crime laws upon the federal

RICO statutes, 18 U.S.C. § 1961 et seq.

Due to the gross misrepresentations

of law and fact contained in the

Petitions for writs of certiorari and

the briefs for Petitioners herein, your

Amicus desires to submit his position on

the Scope and Standard of Review and the

Constitutionality of Remedies involved

in this review of the Indiana cases, its

RICO/CRRA statutes, and the Opinion of

its Supreme Court and Court of Appeals.

SUMMARY OF ARGUMENT

I. SCOPE AND STANDARD OF REVIEW

The Indiana racketeering statutes

are not facially unconstitutional under

the test of Watson v. Buck, and are

capable of constitutional application to

the predicate offense of obscenity. As

applied in the Indiana Supreme Court

cases below, the civil forfeitures were

limited to preservation of assets for a

brief period until a prompt trial could

have been held. In the criminal case

from the Indiana Court of Appeals, the

only remedy sought was conviction for

the racketeering acts of distributing

obscenity. These cases all involve

hard-core pornography and no other

application of RICO laws is before the

Court.

II. CONSTITUTIONALITY OF REMEDIES

The facts before the Court show

these cases to be consistent with other

criminal and civil applications of RICO

laws to other predicate offenses. These

cases are still in their pre-trial

stages and further construction and fact

finding would have been necessary to

decide on appropriate remedies to be

granted to the State of Indiana. Any

hypothetical applications which could be

considered overbroad or vague are not

before the Court and were not sanctioned

by the Indiana Supreme Court and Court

of Appeals. Other federal and state

obscenity and RICO cases would have

guided and limited the application of

the RICO remedies below, and the First

Amendment nature of obscenity cases does

not preclude the progress of fashioning

a remedy for obscenity offenses under

RICO. Due Process is well established

in these cases and the state courts must

be presumed to be willing and ready to

follow such precedent.

Assets of businesses corrupted by

obscenity should be subject to

forfeiture and restraining orders, since

a racketeering enterprise is merely a

tool of the crime and a conduit or

depository of ill-gotten gains which

should be reformed under RICO. When

applied by the courts, as was done

below, RICO laws can effectively punish

the obscenity offenders and their

property without unreasonable restraint

or chill on legitimate expression. The

only logical chill to be expected would

be for other businesses to cease traffic

in the types of illegal materials found

obscene and a predicate to these RICO

actions. Since these all involve

hard-core pornography, the only chill

-5-

could be against the same or similar

materials and this would be a reasonable

result. No such chill has yet occurred,

but the law is entitled to have such a

reaction in order to obtain compliance

with valid obscenity laws in the face of

a major law enforcement problem.

LAW AND ARGUMENT

I. SCOPE AND STANDARD OF REVIEW:

THE INDIANA RACKETEERING STATUTES ARE

FACIALLY CONSTITUTIONAL AND SHOULD

NOT BE INVALIDATED UNDER THE

CIRCUMSTANCES PRESENT IN THESE

CASES.

A. The Indiana Racketeering Statutes

Under Review Must Be Evaluated In

Light Of The Opinion Of The

Indiana Supreme Court As Applied

To Facts Proven Below And

Not On Hypothetical

Exaggerations.

Many years ago, this Court

announced a rule of deferring to state

courts the interpretation of state

statutes. Watson v. Buck, 313 U.S. 387,

401-02 (1941). The one exception to

this wise rule, so much ignored in

present-day actions under 42 U.S.C. §

1983 (See Appendix A), was set out at

402:

It is of course conceivable that

a statute might be flagrantly and

patently violative of express

constitutional prohibitions in

aBe

every clause, sentence and

paragraph, and in whatever manner

and against whomever an effort

might be made to apply it.

The Supreme Court of Indiana, and

the Court of Appeals of Indiana,

reviewed these cases in light of the

First Amendment to the U.S. Constitution

to determine whether the “statutes

constitute facially unconstitutional

prior restraints in their application to

the predicate offenses of obscenity”.

4447 Corp. v. Goldsmith, 504 N.E.2d 559,

560 (Ind. 1987). State v. Sappenfield,

505 N.E.2d 504, 506 (Ind. App. 1987)!

Petitioners disagree with the conclusion

of the Indiana courts that the

RICO/CRRA“ statutes do not violate

Hereinafter referred to as "4447

Corp." and "Sappenfield”.

2 “RICO/CRRA" refer to Indiana's 1980

Racketeer Influenced and orcas

Organizations Act (Ind.Code § 35-45-6-1

et geq.) and Civil Remedies for

Racketeering Activity statute (Ind.Code

§ 34-4-30.5-1 et seq.).

the U.S. Constitution, but it is untrue

that the state courts below found the

statutes “immune from First Amendment

scrutiny". Brief for Petitioner Fort

Wayne Books, Inc., at 22; 3 Brief for

Petitioners (Sappenfield, et al.), at

15-16."

This was but the first of the

many exaggerations of law and fact

proposed by Petitioners in their briefs.

Others border on the hysterical and

absurd. This Court, however, cannot

review these cases so capriciously. The

Supreme Court of Indiana gave an

authoritative construction to these laws

and remanded the cases for trial,

further hearings, and further

applications to the facts to

3 Hereinafter referred to as "Fort Wayne

Brief".

4 Hereinafter referred to as

"Sappenfield Brief".

be later proven in the trial courts.

stated in 4447 Corp., at 566-567:

The Marion Circuit Court

entered its ex parte seizure

order upon a showing of

probable cause to believe a

violation of the RICO statute

involving the property in

question had occurred. As we

construe the RICO statute, a

showing of prior convictions

for the alleged obscenity

violations was not required.

In order to prevail in the

forfeiture action, appellee

Goldsmith will of course have

to show the existence of the

obscenity violations in order

to prove a violation of

Ind.Code § 35-45-6-2 has

occurred. It is at trial on

the forfeiture and other

requested CRRA remedies that

the question of whether the

materials are obscene will be

litigated. A final determin-

ation of that question was not

necessary at the hearing on

the petition for seizure.

[Id. at 566.)

* * +

At the point a seizure order

is entered there has been a

judicial determination that

there is probable cause to

believe violation of Ind.Code

§ 35-45-6-2 involving the

property has occurred. The

reason for an adversary

-10-

hearing on the seizure of the

property would be to determine

whether the property had been

unlawfully seized. Generally,

a defendant would initiate

such action by the filing of a

motion to vacate the seizure

order, as was done in the

instant cases, and we would

expect the court to hold a

prompt adversarial hearing on

such a motion. If no motion

to vacate is filed, or if the

motion is denied, there will

be a full adversarial hearing

on the merits of the

forfeiture action. Although

Ind.Code § 34-4-30.5-3(a) does

not specifically provide a

time frame for that hearing,

we would interpret the statute

to require the hearing on the

question of forfeiture to be —

held within a reasonable time.

Thus a defendant whose

property has been seized

pursuant to Ind.Code

§ 34-4-30.5-3(b) is afforded

due process by a prompt adver-

sarial agen on a motion to

vacate the seizure order

and/or by a hearing on the

question of forfeiture held

within a reasonable time after

the CRRA complaint and

petition for seizure have been

filed. In the instant case,

appellants were afforded a

hearing on their motions to

dismiss the complaints and to

vacate the seizure orders

Because the proceedings were

ite

halted by the filing of the

interlocutory appeals, there

has been no opportunity for

trials on the merits of the

CRRA complaints. At this

stage we can discern no

violation of appellants’ due

process rights.

Transfer is granted and the

opinion of the Court of

Appeals is vacated. The

causes are remanded for

further proceedings not

inconsistent with this

opinion. [Id. at 567.]

B. The Operation And Effect Of The

Indiana Racketeering Statutes,

When Involving The Predicate

ense scenity, Has been

Given Limiting Construction By

The Courts Befow To Avoid.

Unconstitutional Applications.

The granting of the Petitions for

writs of certiorari in these cases, 99

L.Ed.2d 268, may have been improvident,

for want of jurisdiction as not final

judgments within 28 U.S.C. § 1257, Flynt

v. Ohio, 451 U.S. 619 (1981). Neverthe-

less, this Court is still bound by the

interpretations placed on the state laws

by the courts below (and by further

-12-

{

{

.

!

i

:

:

-

:

S

constructions that could and would take

place in the "future proceedings" in the

trial court and on re-appeal), and this

Court must review the Indiana RICO/CRRA

statutes as if originally written in the

way construed. Guaranty Trust v.

Blodgett, 287 U.S. 509, 513 (1933);

Kingsley Pictures v. Regents, 360 U.S.

684, 688 (1959); Mishkin v. New York,

383 U.S. 502, 507-08, 510-11 (1966);

U.S. v. 37-Photographs, 402 U.S. 363,

369-73 (1971); Ward v. Illinois, 431

U.S. 767, 772-73, 776 (1977); Metromedia

v. San Diego, 453 490, n.26 (1981);

Brockett v. Spokane Arcades, 472 U.S.

491 (1985) ("Brockett II").

In so doing, the "substantial

overbreadth doctrine" applies.

Broadrick v. Oklahoma, 413 U.S. 601

(1973); Village of Hoffman Estates v.

Flipside, 455 U.S. 489, 494-95, n.5

(1982); New York v. Ferber, 458 U.S.

-13-

747, 772 (1982); Brockett II, supra at

503-04, n.12 (1985).

Amicus submits that obscenity

statutes are not “pure speech" regu-

lations, as are political or religious

dialog or verbal expression cases. As

held in People v. Souter, 178 Cal.Rptr.

111 (Ct. App. Cal. 1981), paying actors

and actresses to engage in explicit sex

acts before a camera in order to produce

pornography is a violation of prosti-

tution and pimping statutes. See also:

People v. Fixler, 56 Cal. App.3d 321,

128 Cal. Rptr. 363 (1976); People, ex

rel. Van De Kamp v. American Art Enter-

prises, 75 Cal. App.3d 523, 142 Cal.

Rptr. 338 (1977); People v. Kowner, 409

N.Y.S.2d 349 (N.Y. Cty., Sup.Ct., 1978);

People, ex rel. Van De Kamp v. American

Art Enterprises, 177 Cal. Rptr. 776

(Cal. App. 1981); State, ex rel.

Sensenbrenner v. Adult Book Store, 26

obte

+ On mee ere:

Ohio App.2d 183, 271 N.E.2d 13 (Franklin

County, 1971), aff'd 35 Ohio St.2d 220

(1973), cert. denied 421 U.S. 934

(1975). The distribution of such

hard-core pornography is therefore

exploiting the work of prostitutes, and

is at least a mixture of conduct and

speech. Modern hard-core pornography

should not be elevated to the protected

class which political, and religious

expression deserves. In the obscenity

law area, the rule of substantial

overbreadth should apply, as stated in

Watson v. Buck, supra at 402, and as

this Court stated in Hoffman Estates,

455 U.S., at 494-95, Footnote 5:

5. A “facial” challenge, in this

context, means a claim that the law

is “invalid in toto--and therefore

incapable of any valid

application."

Corollary to this are the rules

("wait until it's time to look" and

"look only at what's before you")

-15-

discussed and followed in Brockett II,

at 501-02:

We call to mind two of the

cardinal rules governing the

federal courts: "'[o]ne, never

to anticipate a question of

constitutional law in advance

of the necessity of deciding

it; the other never to form-

ulate a rule of constitutional

law broader than is required

by the precise facts to which

it is to be applied.'" United

States v. Raines..., quoting

verpool, New York &

Philadelphia 5.5. Co. v.

ng a lon cases,

Raines also held that

"| Jindred to these rules is

the rule that one to whom

application of a statute is

constitutional will not be

heard to attack the statute on

the ground that impliedly it

might also be taken as apply-

ing to other persons or other

situations in which its

application might be unconsti-

tutional."

Amicus urges the Court to keep

these principles at the forefront of

this review. The Petitioners and the

Amicus in their support argue this case

as a picture of Armageddon, but it is

-16-

presented through the looking glass.

Other state courts and legislatures

nationwide are watching and we also

deserve the reasonable review to which

the Supreme Court of Indiana is enti-

tled.

IL. CONSTITUTIONALITY OF REMEDIES:

UNDER THE CIRCUMSTANCES PROVEN TO

THE COURTS BELOW, THE INDIANA

RICO/CRRA STATUTES WERE APPLIED

CONSTITUTIONALLY TO THE PRESENT

POINT IN THESE CASES AND DUE PROCESS

MUST BE EXPECTED TO CONTINUE.

The facts proven and presented to

the courts below are set out in the

Indiana Supreme Court opinion, 504

N.E.2d at 561-63, and in the Indiana

Court of Appeals opinion, 479 N.E.2d at

580-83. They show that this case is

still at the pre-trial stage where

motions are pending by the State for

temporary seizure of assets and by the

———

Defendants to modify or vacate the

seizure orders.

In Indianapolis, based on a

Complaint and Affidavits which seek to

prove the obscenity predicates within

the civil trial, the Trial Court ordered

the two operating stores to preserve the

status guo by listing their property and

securing their business equipment. The

third, yet unopened, store was ordered

sealed until the trial, which was set

for 72 hours after the temporary

restraining orders were signed. The two

open stores continued to operate and

sell their hard-core pornographic

materials. Thereafter, motions by

Defendants delayed the trial and the

resolution of pre-trial issues and

resulted in this interlocutory appeal by

the Defendants at their request. The

Court of Appeals stayed the padlock

order on the assets of the third store,

-18-

as well as the inventory and restraining

order on the other two stores, so there

tc a A Et

was no pending Trial Court order

restraining Defendants in Indianapolis

when the matter was heard in the Indiana

Court of Appeals and Supreme Court. The

Indianapolis Defendants, 4447

Corporation, et al., abandoned their

appeal after the Indiana Supreme Court

decision and have not petitioned this

Court for review, but further

proceedings would be bound by the

decision of this Court and any further

mandate of the Indiana Supreme Court

thereafter.

In Fort Wayne, the civil Complaint

showed 39 criminal convictions at three

stores to establish the predicate

illegal activity and the Trial Court

ordered assets seized pending

disposition. After Defendants' motions

to vacate or modify the orders

| ns

were heard and denied, the police seized

the assets. After the Trial Court

denied a second set of motions for

return, Defendants sought and received

an interlocutory appeal so their cases

could be consolidated with the pre-trial

appeal from Indianapolis that was then

pending in the Court of Appeals. One

year later, but before it released its

opinion, the Court of Appeals granted a

stay in the Fort Wayne cases and the

stores were allowed to re-open.

Therefore, there were no restrictions on

the Fort Wayne stores at the time the

Court of Appeals ruled and the cases

went to the Indiana Supreme Court. This

remains the status of these cases to

this day.

The companion cases of Ronald and

Connie Sappenfield and the Fantasy One

and Two stores are purely criminal RICO

informations alleging the RICO offenses

-20-

and the predicates of obscenity law

violations to be proven at the criminal

trial or trials. After the Court of

Appeals (Fourth District) ruled the

RICO/CRRA statutes inapplicable to

obscenity offenses (in 4447 Corp. v.

Goldsmith, 479 N.E.2d 578 (Ind. App. 4th

Dist. 1985)), the Trial Court dismissed

the RICO charges and the State appealed

to the Indiana Court of Appeals (First

District), which reversed after the

decision of the Indiana Supreme Court

(in 4447 Corp. v. Goldsmith, 504 N.E.2d

559 (Ind. 1987). State v. Sappenfield,

565 N.E.2d 504 (Ind. App. lst Dist.

1987)). No asset seizures were sought

or ordered in those cases.

Being the first uses of Indiana's

RICO/CRRA statutes in obscenity crime

contexts, these cases necessarily

required careful attention from the

Trial Courts involved. The trial in the

-21-

Indianapolis case had been set for 72

hours after the Complaint was filed, and

the Fort Wayne case was delayed by

defense motions so no trial date could

be set. Although Petitioners, Fort

Wayne Books, Inc. and the Sappenfields

and Fantasy stores, make hypothetical

assertions about the effect of the

pre-trial orders in the Fort Wayne and

Indianapolis civil cases, and the very

filing of the criminal charges in No.

87-614, the cases must be limited to

their posture and the facts presented

below. These cases all involve

so-called “adult bookstores" that sell

nothing but hard-core pornogrephy.

These are not legitimate theaters

showing “Hollywood” movies rated "PG" or

"R", not general public bookstores like

B.Dalton or Waldenbooks selling

cookbooks, fiction, sports, reference,

etc., and not chains of stores with

o22-

mixed goods like food, sundries, and

magazines or films, like convenience and

grocery stores. A review of the civil

pleadings, affidavits, and criminal

information shows these businesses

engaging solely in pictorial materials

of explicit sex acts.

The State prosecutors asked for

several RICO and CRRA remedies in the

civil cases and only for criminal

penalties upon conviction in the

criminal case. Whether any of these

remedies, or any others, would have been

granted would depend on the proof and

disposition at trial and on further

construction of the statutes and

evaluation of applicable remedies by the

Trial Courts below, had the cases

proceeded either before or after the

Indiana Supreme Court ruled.

-—_

This Court would normally reserve

ruling on pre-trial issues, Flynt v.

Ohio, supra, but it must also be

remembered that the Trial Courts would

have followed the Indiana Supreme Court

decision on the issues decided in 4447

Corp. The Trial Courts would further

have to consider the other issues,

arguments, and precedents for remedies

and procedures not covered by 4447 Corp.

In both Fort Wayne and

Indianapolis, only one pre-trial ex

parte order was issued, for temporary

asset seizure, yet the Trial Courts

devoted significant effort to the

resolution of motions on several novel

and complicated issues before the

appeals were certified. None of the

other remedies prayed for (affecting

licenses, other assets, business

continuation, etc.) were reached at

those pre-trial stages.

o2b-

ee Oe Oe eee |

Trial courts must continue to

interpret, limit, construe, and apply

the procedures and remedies to the

specific facts, in light of the special

First Amendment considerations attending

every obscenity-related case. As an

example, the stages of trial court

resolution of proof, guilt, punishment,

forfeiture, and procedure issues by the

U.S. District Court in the first federal

obscenity RICO action is illustrative.

See the several decisions of the Eastern

District of Virginia in United States v.

Pryba, et al., 674 F.Supp. 1502 (Oct. 8,

1987) (re: conflict of counsel); 674

F.Supp. 1504 (Nov. 3, 1987)

(constitutionality of RICO in obscenity

cases, forfeiture, prior restraint,

punishment, due process, ex post facto)

(cited in Fort Wayne Brief at 25); 674

F.Supp. 1518 (Nov. 18, 1987) (standard

of proof, proof of obscenity); Order of

-25-

ee ee ee ER.

Forfeiture, Order of Nov. 18, 1987

(unreported) (copy in Brief for

Petitioner Fort Wayne Books (Fort Wayne

Brief), Appendix B, App. 9) (post-trial

forfeiture Order of related assets upon

jury verdict, rights of innocent third

parties); 678 F.Supp. 1218 (Jan. 20,

1988) (motion for acquittal, sufficiency

of evidence); 678 F.Supp. 1225 (Jan. 29

and Feb. 12, 1988) (inadmissibility of

certain polls, community standards of

“acceptance” vs. "tolerance" or

availability); 680 F.Supp. 790 (Mar. 8,

1988) (state obscenity conviction

admissible).

A similar process was begun in

these cases. The Indiana courts cannot

be presumed to have intended to refuse

to consider prior restraint and due

process issues as the cases proceeded.

As in Pryba, the remedies to be applied

below would be limited to the special

=26-

circumstances presented in each case.

The stores in Fort Wayne and

Indianapolis were all devoted to

hard-core pornography and the Trial

Courts should have found, as they did,

that their assets needed to be preserved

while the determinations of liability

and forfeiture were determined as soon

as possible.

A. The RICO/CRRA Remedies Of

Closure And Forfeiture Ma

lied To

Constitutionally Be

Business Enterprises tht ch h Have

Orrupted By Other

Predicate Crimes.

The State in each of the civil

cases below assumed the burden of

proving the illegal obscenity

predicates, and the restraining-seizure

orders were intended to preserve the

assets only for the brief period until

the prompt trial could have been held.

=27<

Therefore, the requirements for due

process were met as set out by the Court

in Southeastern Promotions v. Conrad,

420 U.S. 546, at 560 (1975).

As pointed out by the Indiana

Supreme Court in 4447 Corp. at 564, and

by the Court of Appeals in Sappenfield

at 505, the RICO acts are designed as

strong medicine against the epidemic of

organized crime involvement in the

hard-core pornography racket, as they

are in other activities of organized

crime. See also: Russello v. U.S., 464

U.S. 16, 26-28 (1983). The central

theory of RICO is that the corruption of

a business through crime, whether drugs,

prostitution, arson, or obscenity, make

that enterprise subject to treatment as

an unlawful depository of economic

interests. Once corrupted, such an

enterprise may be treated as having

assets subject to forfeiture to prevent

-28-

unjust enrichment from contraband. See:

U.S. ~. 37 Photographs, 402 U.S. 363,

376-77 (1977). Im this regard, the

pre-trial seizure and restraining orders

in Fort Wayne (and Indianapolis) were

consistent with other orders to preserve

assets pendente lite, even though final

forfeiture cannot attach until after

verdict and proof of the related nature

of each asset to the crimes proven. See:

U.S. v. Ginsburg, 773 F.2d 798, 800-03

(7th Cir. 1985), U.S. v. Roberts, 749

F.2d 404, 409-10 (7th Cir. 1984); U.S.

v. Lizza Indust., 775 F.2d 492, 497-99

(2nd Cir. 1985); U.S. v. Zielie, 734

F.2d 1447, 1458-59, 1462-63 (llth Cir. 1984);

U.S. v. McManigal, 708 F.2d 276, 283-90

(7th Cir. 1983); U.S. v. Martino, 681

F.2d 952, 954-59 (Sth Cir. 1982); U.S.

v. Godoy, 678 F.2d 84, 86-88 (9th Cir.

1982).

Such pre-trial seizures or

restraining orders against assets, of

whatever kind, differ from nuisance

abatement actions where the only element

of the nuisance is the sale of obscene

items. RICO acts require additional

elements of proving the enterprise, the

illegal use of the enterprise to profit

from criminal activity, ana ae relation

back of the assets to the racketeering.

A business is not "closed" because of

past sales of obscenity, as in State, ex

rel. Kidwell v. U.S. Marketing, 631 P.2d

622 (Id. 1983), juris. noted at 454 U.S.

1140, app. dismissed by U.S. Marketing

(over the State of Idaho's objection to

the Clerk of this Court) at 455 U.S.1009

(contrary to the assertion in Avenue

Book Store v. Tallmadge, 459 U.S. 997

(1982) (Justice White dissenting) that

it was "by stipulation"), but is merely

subject to orders preserving

-30-

jurisdiction over assets for a brief

period until the trial court can

determine the propriety of forfeiture of

illegal proceeds of racketeering.

Although the final closure in nuisance

actions is proper, as in Kidwell, supra,

without offending Vance v. Universal

Amusements, 445 U.S 308 (1980), other

final remedies are also possible within

constitutional limits, as in Tallmadge,

supra (enjoining future sales of

“obscenity”") or State, ex rel. Ewing v.

“Without A Stitch", 37 Ohio St.2d 95,

307 N.E.2d 911 (1974), appeal dismissed

f.w.o.s.f.q. 421 U.S. 923 (1975). See

also: Spokane Arcades v. Brockett,

(Brockett I), 631 F.2d 135, at 139 (9th

Cir. 1980), aff'd. 454 U.S. 1022 (1981).

How an enterprise is proven to have

been corrupted is unrelated to what type

of enterprise it is. 4447 Corp. at 565.

The aim of the statutes is to prevent

-31-

criminals from intentionally using a

business scheme to make, launder, or

dispense proceeds of illegal acts and to

punish such unfair business practices by

divestment of such poison fruit. See:

U.S. v. Thevis, 474 F.Supp. 134 (N.D.

Ga. 1979); U.S. v. Conner, 752 F.2d 566,

575-78 (llth Cir. 1985); U.S. v. Cauble,

706 F.2d 1322, 1345-49 (5th

Cir. 1983); U.S. v. Martino, supra at

960-61; U.S. v. Grande, 620 F.2d 1026,

1037-39 (4th Cir. 1980); U.S. v. Huber,

603 F.2d 387, 392-97 (2nd Cir. 1979).

3

!

:

Trial courts require flexibility to

avoid constitutional problems yet

preserve the power to apply effective

sanctions in appropriate cases. U.S. v.

Busher, 817 F.2d 1409, 1413-16 (9th Cir.

1987). State and federal law

enforcement needs the RICO laws to deal

with the controlling parts of the

hard-core obscenity industry and "must

@32-

LR Re he EE See.

be allowed a reasonable opportunity to

experiment with solutions to admittedly

serious problems". Young v. American

Mini Theatres, 427 U.S. 50, 71 (1976).

The existence of the many

decisions, limiting and shaping the RICO

remedies to provide a firm fairness in

individual situations, strengthens the

constitutionality of the state and

federal laws in the obscenity area. The

state courts will be guided by these

principles and fashion remedies in ways

that are as consistent as possible.

These trial court decisions will then be

reviewed on appeal to further guarantee

their propriety. The non-final orders

and proceedings in the Indiana courts

below should have an opportunity to

develop under the facts of each case and

further add to the law of RICO as

applied to obscenity. The complexity of

this task is more reason to let the

-33-

state courts develop these issues rather

than a reason to interfere. Moore v.

Sims, 442 U.S. 415, 427, 429-30 (1979).

The hypothetical grounds presented

by Petitioners herein require this Court

to presume unconstitutional

interpretations by the Indiana courts.

This was the error of the Ninth Circuit

in Brockett v. Spokane Arcades (Brockett

II), 472 U.S. 491 (1985), and this Court

correctly ruled that the first inquiry

should be whether the statute would

receive an invalid interpretation or

application in the trial courts and if

so to declare such use improper and only

enjoin such use, or excise such

provision, if an unlawful use is the

only probable or possible use

forseeable. If a reviewing court cannot

say that a trial court will violate the

constitution, it must presume due

process will be afforded and allow the

-34-

cases to proceed. If the court finds

that the trial court will or could make

unconstitutional applications then the

correct interpretation should be

declared and presumed to be honored.

McCarthy v. Briscoe, 553 F.2d 1005, 1007

(Sth Cir. 1977). Only if an invalid use

is unavoidable, such as with a wholly

unsavable statute under the Watson v.

Buck test or a grievous fact situation

as in Dombrowski v. Pfister, 380 U.S 479

(1965), should the reviewing court sever

|

|

part of the law, or engage in partial

invalidation, or enjoin or forbid

certain applications. Brockett II,

supra at 502-05. This is especially

pertinent in pre-trial proceedings.

Flynt v. Ohio, supra at 622.

A common thread in the Brief for

Petitioner Fort Wayne Books is the

exaggerated reach or possible reach of

RICO and its enormous chilling effect.

-35-

In the Fort Wayne Brief at 13 and 23-24,

the assertion is voiced that the Indiana

Supreme Court sanctioned the closure of

all stores in a chain if two copies of

any item are found obscene. The state

Supreme Court's opinion in 4447 Corp. at

564 and 566-67, reads otherwise and

requires proof of a nexus between the

racketeering acts and the remedies

granted. Such an absurd situation was

not even before the Indiana Supreme

Court, much less discussed or approved.

The facts before the Court below

involved proof that certain stores were

connected to related and illega: sales

of obscene items and these stores had

assets directly related to those illegal

acts.

It is inconceivable that any court

would order the closure or seizure of

other stores or assets not proven to be

connected to the specific

-36-

offenses proven. In light of the prior

decisions of this Court and the federal

courts cited above, it is unreasonable

to assume, even "for the sake of

argument", that a court would be willing

to find two sales of a magazine or two

rentals of a film to permit seizure of

all (or even any other) stores or their

inventories or business equipment. All

the stores and Defendants below were

specifically connected with several

specific crimes involving hard-core

obscenity. In this context the Indiana

courts began to fashion the due process

needed to safeguard the State's rights

to effective application of state law

while also safeguarding against

unconstitutional prior restraint. Some

restraint is always required by law, and

deterrence of crime is a legitimate

function of even obscenity statutes.

Polykoff v. Collins, 596 F.Supp. 584,

-37-

Se A RTT

591 (D. Ariz. 1984), aff'd. 816 F.2d

1326 (9th Cir. 1987). See also: Vance,

supra at 324-25 (Justice White

dissenting). This is more than obvious

in the modern world where obscenity

offenses are not only necessary but

inherent in the traffic in hard-core

pornography by today's porn industry.

As this Court recognized in

Russello, supra at 24-27, new weapons,

broadly defined, are needed to combat

this national disgrace, or else “whole

areas of organized criminal activity

would be placed beyond” the law. The

old maxim that “the law is presumed to

know what everyone knows” is embodied in

the historical treatment by this Court

of “hard-core pornography" as an obvious

form of unprotected criminal obscenity.

From Roth v. U.S., 354 U.S. 476 (1957),

through Manual Enterprises v. Day, 370

U.S. 478, 489 (1962), to Miller v.

California, 413 U.S. 15 (1973), this

Court has used “hard-core pornography"

as a shorthand term for “obscenity”.

Where penetration is clearly visible,

such “PCV porn” is such that everyone

knows it when they see it. See also:

Taylor, “Pornography and the First

Amendment", Criminal Justice Reform,

chapter 11 (D.C.: Free Congress Research

and Educational Foundation, 1983);

Milligan, "Obscenity: Malim in Se or

Only in Context: The Supreme Court's

Long Ordeal", 7 Capitol Univ. Law Rev.

631 (1978).

In Mishkin v. New York, 383 U.S.

502, at 506-08 (1966), this Court noted

that New York courts had limited their

obscenity statute to reach only

"hard-core pornography” and that this

limitation “is more stringent than the

Roth definition" and therefore "the

-39-

judgment that the constitutional

criteria are satisfied is implicit in

the application of" New York's statute.

(Emphasis added.) See also: U.S. v.

West Coast News, 357 F.2d 855, 857 (6th

Cir. 1966); State v. Voshart, 159 N.W.2d

1, 6 (Wisc. 1968); Woodruff v. State,

273 A.2d 436 (Md. App. 1971); Whiting v.

Roxy, Ltd., 293 N.E.2d 889, 891 (Ohio

C.P. 1973); Zeitlin v. Arnebergh, 383

P.2d 152 (Cal. 1973); 5297 Pulaski

Highway v. Perryville, 519 A.2d 206, 214

(Md. App. 1987). Amd see: Peters v.

State, 449 N.E.2d 311, 312-13 (Ind. App.

1983).

The use of the “hard-core rule”

gives limitation and guidance to

obscenity-RICO actions (as in the cases

below, 4447 Corp. and Sappenfield, and

Pryba, supra) as surely as the previous

obscenity decisions in Illinois gave

guidance on what was known as obscene in

-40-

that state. See: Ward v. Illinois, 431]

U.S. 767, at 771-73 (1977). The

“vagueness” of the "Miller Test" and

scienter rules, as they apply in Indiana

obscenity law (See: Sappenfield Brief at

25-30, Fort Wayne Brief at 53-61) is as

absurd in these cases as it was in Ward,

supra, and Hamling v. U.S., 418 U.S. 87,

118-23 (1974), in light of the many

Indiana obscenity cases interpreting and

applying these concepts. See: Van Sant

v. State, 523 N.E.2d 229 (Ind. App.

1988); Albright v. State, 501 N.E.2d 488

(Ind. App. 1986); American Booksellers

Assoc. v. Hudnut, 771 F.2d 323 (7th Cir.

1985), aff'd. 475 U.S. 1001 (1986);

Saliba v. State, 475 N.E.2d 1181 (Ind.

App. 1985); Sedelbauer v. State, 462

N.E.2d 244 (Ind. App. 1984); Richards v.

State, 461 N.E.2d 744 (Ind. App. 1984);

Sedelbauer v. State, 455 N.E.2d 1159

(Ind. App. 1983); Peters v. State,

she

supra, 449 N.E.2d 311 (Ind. App. 1983);

Porter v. State, 440 N.E.2d 690 (Ind.

App. 1982); Isaac v. State, 439 N.E.2d

1193 (Ind. App. 1982); McNeal v. State,

434 N.E.2d 127 (Ind. App. 1982);

Sedelbauer v. State, 428 N.E.2d 206

(Ind. 1981), cert. denied 455 U.S. 1035

(1982); State, ex rel Drost v. Superior

Court, 416 N.E.2d 1247 (Ind. 1981);

American Films v. State, 413 N.E.2d 1091

(Ind. App. 1981); Smith v. State, 413

N.E.2d 652 (Ind. App. 1980); Beach v.

State, 411 N.E.2d 363 (Ind. App. 1980);

State v. Baysinger, 397 N.E.2d 580 (Ind.

1979), appeal dismissed f.w.o.s f.q. 446

U.S. 931 (1980); State, ex rel. J.N.S.,

Inc. v. Municipal Court, 396 N.E.2d 361

(Ind. 1979); Hagood v. State, 395 N.E.2d

315 (Ind. App. 1979); Ford v. State, 394

N.E.2d 250 (Ind. App. 1979); Riley v.

State, 389 N.E.2d 367 (Ind. App. 1979);

Massey v. City of Mishawaka, 378 N.E.2d

14 (Ind. App. 1978).

In the face of this wealth cf

precedent to guide Defendants and the

state courts below (See also Appendix B

for state RICO cases), Petitioners must

be held to their burden to show beyond a

reasonable doubt that the Indiana

statutes are invalid, incapable of

constitutional application, and not

entitled to the presumption that they

are valid and will be validly enforced.

The record in the instant cases shows no

facial or applied invalidity that is not

or cannot be construed correctly by the

Indiana courts. See also: Naked City,

Inc. v. Aregood, 667 F.Supp. 1246 (N.D.

Ind. 1987); Moore v. Sims, supra at

429-30.

B. The Restraint Upon The

Distribution Of Materials Not

Kdjudicated As Obscene Is

Incidental Only To Those Items

Forfeited As Property Assets Of

A Corrupt Enterprise And Does

Not Amount To An

Unconstitutional Prior

Restraint Upon Other Materials

Or Against e Same Or Similar

Items In Commerce At Other

Locations.

Petitioners, and their amicus,

argue the chilling effect of RICO law on

legitimate expression, yet they have

offered no proof to the courts below,

nor to this Court, that any actual

restraint has in fact occurred. The

Fort Wayne Brief, at 10, notes that the

Indiana Court of Appeals granted a stay

that removed the padlocks on the three

stores in Fort Wayne which meant they

were "allowed to resume operations”.

Petitioners fail to mention that all

three Fort Wayne stores did re-open and

one is still operating today, selling

hard-core ("PCV") pornography of the

type found obscene in the Indiana

obscenity cases cited above and in such

ohhe

eases as Hamling v. U.S., 418 U.S. 15

(1974), and U.S. v. Battista, 646 F.2d

237 (6th Cir. 1981), cert. denied 454

U.S. 1046 (1981) ( Deep Throat). The

stores in the Sappenfield case were

never closed or restrained, the

operating stores in Indianapolis were

never closed or subject to seizure, and

the third store which had assets seized

in Indianapolis was released from its

restraining order.

The burden should be on Petitioners

to prove that unreasonable consequences

have followed the RICO statutes, as the

parties did in Dombrowski, supra. The

truth is that hard-core obscenity is out

of control and a major problem for law

enforcement. See also: "Project: An

Empirical Inquiry into the Effects of

Miller v. California on the Control of

Obscenity", 52 New York Univ. Law Rev.

928 (1977); "The Pornography Industry”,

Ee

OO

Boston Globe series of Feb. 13-18, 1983.

A question that begs itself from amicus

briefs such as from the Video Software

Dealers Association (VSDA) and American

Booksellers Association (ABA) (See: 99

L.Ed.2d 268), is whether the ABA members

desire to distribute hard-core "PCV"

pornography (they don't now) and whether

the VSDA video rental stores are really

chilled if they continue to rent

hard-core titles all across the country,

as they do. The obscenity laws of

Congress and the state legislatures are

supposed to prevent and "chill" the

traffic in obscenity, and "PCV porn" is

not arguably outside that legitimate

reach of those statutes.

Within the pornography industry,

there are well defined classes of

materials. Hard-core pornography

consists of "PCV" materials of

hetero-and homo-sexual acts, bendage,

-46-

a eee

ei. el

sado-masochism, bestiality, etc., as

well as the simulated material with

genitals displayed but no penetration

shown. Both actual and simulated were

included as “hard-core” by this court in

Manual Enterprises v. Day, supra and

Miller, supra at 24-25, but the porn

trades usually refer to hard-core as

only "PCV" and try to include simulated

("medium core") in with "soft-core".

Soft-core pornography rightfully

includes only nudity and little or no

sexual activity. Only so-called "adult

bookstores and theatres", and now many

"mom and pop" video stores, carry

hard-core "PCV" pornography, whereas

legitimate theater chains which show

Hollywood movies do not show any “7Gr’ «

Cable services such as Playboy Channel

show extensive simulated sex ("medium

core"), as do many "men's sophisticate"

magazines such as Penthouse and Hustler.

j ae

Hollywood movies which are rated "R" or

"PG" by the Motion Picture Assocition of

America (MPAA) show nudity and some

brief scenes of simulated intercourse

("soft-core"), like the scenes in Carnal

Knowledge, Jenkins v. Georgia, 418 U.S.

153 (1974), as well as magazines such as

Playboy and Playgirl. No reported or

-

®known obscenity case has been brought

onder any Miller based federal or state

law against any movies rated ''R" or "pc"

by the MPAA anywhere in the United

States and all known cases have involved

hard-core materials that explicitly show

"PCV" or graphic simulated sex. There

has been no unconstitutional chill if

the only result of obscenity and RICO

laws has been to keep "Hollywood" movies

from forcing actors and actresses to

“perform actual sex acts in MPAA rated

movies (which would automaticaly make

them "X"). There has not been

-48-

a

sufficient legitimate chill if the video

stores and “adult stores and theatres”

continue to distribute "PCV" materials.

If the effect of RICO and obscenity law

enforcement is to convince or force the

marketplace to remove hard-core

pornography, then this would not be

unreasonable under the First Amendment

and would be the legitimate aim of such

laws. See: Paris Adult Theatre v.

Slaton, 413 U.S. 49 (1973); Vance v.

Amusement Co. 445 U.S. at 324 (Justice

White Dissenting); New York v. P.J.

Video, Inc., 475 U.S. , 89 L.Ed.2d

871 (1986). See also: Agreement for the

Suppression of the Circulation of

Obscene Publications (1910,1949), 37

Stat. 1511; Treaties in Force 209 (U.S.

Dept. State, Oct. 31, 1956), cited in

Roth v. U.S., 354 U.S. 476, 485, n.5

(1957). Any unconstitutional chill or

prior restraint should be affirmatively

| -49-

eee ps

shown by Petitioners and they have

failed to offer any proof that any has

occurred anywhere. Petitioners really

seek permission to engage in the open

and notorious traffic in hard-core

pornography, and want freedom from the

reach of any obscenity laws, especially

those which could be the most effecive

such as RICO. This Court has already

recognized the propriety of obscenity

laws, Roth, Miller, Paris, Hamling,

supra; Pope v. Illinois, 481 U.S. ___ 95

L.Ed.2d 439, 107 S.Ct. 1918 (1987), and

if obscenity is subject to prohibition

as a criminal act, or even a civil,

quasi-criminal or nuisance violation,

Kingsley Books, Inc. v. Brown, 354 U.S.

436 (1957); Huffman v. Pursue, 420 U.S.

592 (1975); Art Theater Guild v. Ewing,

421 U.S. 923 (1975), then obscenity

should be subject to RICO laws. The

First Amendment is protected by the

-50-

presumption of protection accorded

allegedly obscene materials in the same

way criminal defendants are protected in

other cases by the presumption of

innocence. Once removed by proof beyond

a reasonable doubt in criminal cases or

by clear and convincing evidence or a

preponderance in civil cases, Cooper v.

Mitchell Brothers, 459 U.S. 944 (1982),

all that is left is an unlawful act. If

the presumption of protection were

absolute, no temporary seizures on

probable cause could occur prior to

trial in any obscenity case. P.J.

Video, supra; Heller v. New York, 413

U.S. 483 (1973); U.S. v. 12 200-Ft.

Reels, 413 U.S. 500 (1973). The

statutory and common law elements of

proving obscenity and scienter are the

due process protections to which

pornographers are entitled. These are

strict and complicated burdens for the

file

prosecution, Pope v. Illinois, supra,

and total immunity from enforcement is

not also warranted.

If the state can show a pattern of

racketeering by obscenity offenses, and

a relation to a business of assets used

in or derived from this illegal pattern,

then forfeiture is appropriate. The

Indiana Supreme Court was correct in

concluding that corruption is not based

on how the corruption occurs. 4447

Corp., at 564. The Arizona Court of

Appeals in State v. Feld, 745 P.2d 146,

152-56 (Ariz. App. 1987), cert. denied

__U.S.___, -99 L.Ed.2d 482 (1988),

upheld the purely criminal sanctions of

RICO to obscenity (such as were charged

in Sappenfield herein), but felt

constrained to eliminate most of the

restraining and forfeiture powers except

as to the exact items found obscene or

the exact dollar amount of those items.

o$2-

This effectively kills the power of the

courts in RICO actions to punish and

reform a corrupt business and its

operators when caught systematically

violating obscenity laws. If a person

used drug or prostitution or gambling

proceeds to buy and run a bookstore or

grocery store, this Court should have no

problem allowing forfeiture of the

inventories of books and food and any

other related interest in the

“legitimate” business. This would not

be a true prior restraint on those books

seized because the government can sell

them and all other businesses in the

country can sell those books and even

the defendants can sell those books

elsewhere. Just as the injunction in

Avenue Book Store v. City of Tallmadge,

supra, adds effectiveness to a nuisance

action, rather than enjoining only the

| specific items found obscene, and just

o9—

as a store can be closed for a year

after being found a nuisance because its

stock in trade is found obscene, State,

ex rel. Kidwell v. U.S. Marketing,

supra, assets of a racketeering

enterprise should be subject to seizure

or restraint, and forfeiture, if used to

violate obscenity laws. Closure and

forfeiture are penalties for corrupting

a business, not a direct suppression of

the specific books or films then in

inventory. Any restraint goes only to

those items at that store and is

incidental to a proper penalty for a

violation of law. Arcara v. Cloud

Books, 478 U.S. ___, 92 L.Ed.2d 568,

576-78 (1986). Therefore, Arcara and

P.J. Video, supra, support treating

obscenity as any other predicate RICO

offense and allow reasonable forfeitures

of assets or closure of the corrupted

business.

-54-

CONCLUSION

The Final Report of the U.S.

Attorney General's Commission on

Pornography (DOJ, 1986; Rutledge Hill

Press, 1986), although ridiculed (and

rightfully feared) by the pornographers,

speaks for itself and outlines the true

need for RICO in breaking up the

organized crime dominated hard-core

pornography syndicates. The

“intractable” obscenity problem will not

go away if the pornographers have

anything to do with it. F.C.C. v.

Pacifica Foundation, 438 U.S. 726, at

744, n.19 (1978). Now is the time to

guide law enforcement in making

effective use of RICO laws against the

obscenity industry. Just as law

enforcement in Arizona will suffer

=§3$-

greatly under State v. Feld, supra, the

whole country will continue to suffer if

the Indiana courts are reversed and the

RICO laws made ineffective in this

national organized crime business.

This may not be an easy road, free

from difficulty. But no amount of

“fatigue” should lead us to adopt a

convenient "institutional"

rationale - an absolutist,

“anything goes” view of the First

Amendment - because it will lighten

our burdens.

x * *

"Our duty admits of no substitute

for facing up to the tough

individual problem of

constitutional judgment involved in

every obscenity case."

Miller v. California, at 29-30.

Respectfully submitted,

lA

overt K. Corbin

Attorney General

State of Arizona

o ee

Bruce A. Taylor

Counsel of Record for Amicus

-56-

APPENDIX A

.-57-

APPENDIX A

History of Three State Obscenity

Law Challenges in Federal Courts

Ohio:

Sovereign News Co. v. Falke, 448 F.Supp.

306-408 (N.D. Ohio 1977) ("Sovereign I")

(invalidating Ohio obscenity definition

and enjoining entire statute); State v.

Ronald Burgun, 56 Ohio St.2d 354, 384

N.E.2d 255 (1978) (construing and

upholding Ohio obscenity statute);

Sovereign News Co. v. Corrigan, 610 F.2d

428 (6th Cir. 1979), cert. denied, 447

U.S. 923 (1980) (remanding "Sovereign I"

for reconsideration in light of State v.

Burgun); Sovereign News Co. v. Falke,

C77-230 (N.D. Ohio 1980) ("Sovereign

IL") (on remand, re-invalidating Ohio

law and rejecting State v. Burgun);

Turoso v. Cleveland Municipal Court, 531

-58-

F.Supp. 829 (N.D. Ohio 1980) (denying

habeas corpus, one of six habeas cases

where writ granted in four and denied in

two); Sovereign News Co. v. Falke, 674

F.2d 484 (6th Cir. 1982), cert. denied,

459 U.S. 864 (1982) (reversing

"Sovereign II" and following State v.

Burgun); Turoso v. Cleveland Municipal

Court, 674 F.2d 486 (6th Cir. 1982),

cert. denied, 459 U.S. 880 (1982)

(reversing writs of habeas corpus and

affirming denials of habeas writs and

upholding Ohio statute under State v.

Burgun)... (Sovereign News Co. v. Falke

dismissed by District Court parties

11-30-82).

Washington:

Spokane Arcades v. Ray, 449 F.Supp. 1145

(E.D. Wash. 1978) (invalidating in toto

Washington's new moral nuisance law,

Initiative 335), affirmed, Spokane

Arcades v. Brockett, 631 F.2d 135 (9th

-59-

Cir. 1980), affirmed summarily, Brockett

v. Spokane Arcades, 454 U.S. 1022 (1981)

("Brockett I"); Spokane Arcades v.

Eikenberry, 544 F.Supp. 1034 (E.D. Wash.

1982) (denying injunction against new

moral nuisance statute passed to replace

Initiative 335; upholding statute, and

abstaining in part), reversed, J-R

Distributors v. Eikenberry, 725 F.2d 482

(9th Cir. 1984) (Striking entire state

obscenity statute), reversed, Brockett

v. Spokance Arcades. 472 U.S. 491 (1985)

("Brockett II")... (The five suits were

then dismissed. )

Texas:

Universal Amusement Co. v. Vance, 404

F.Supp. 33 (S.D. Tex. 1975) (21 federal

suits throughout Texas ordered

consolidated, state obscenity nuisance

and search warrant statutes invalidated

and all prosecutions enjoined),

reversed, King Arts Universal Amusement

-60-

Co. v. Vance, 559 F.2d 1286 (5th Cir.

1978) (one of the cases, Dexter v.

Butler, was affirmed), King Arts

reversed on rehearing en banc, Universal

Amusement Co. v. Vance, 587 F.2d 159

(Sth Cir. 1978) (Dexter also re-affirmed

at 587 F.2d 176) (Texas nuisance

statute, as yet unused, invalidated in

toto), affirmed, Vance v. Universal

Amusement, 445 U.S. 308 (1980). Red

Bluff Drive-In v. Vance, 648 F.2d 1020

(Sth Cir. 1981) (consolidated challenges

to new Texas criminal obscenity

statutes-District Courts denied

relief-affirmed in part, abstention in

part after opinion on merits of

statute); Andrews v. State, 652 S.W.2d

370 (Tex. Cr. App. 1983) (construing and

upholding statutes and refusing to

follow advisory opinion of Red Bluff on

definitions).

-61-

APPENDIX B

-62-

anemia - m

oe ery =r ee er -

. ae

|

APPENDIX B

State Cases on RICO Actions

Martinez v. Heinrich,

oO. a. App. 1988)

DeRuyter v. State,

Sot So.2d 135 (Fla. App. 1988)

State v. Spooner,

520 Sort 336 (La. 1988)

State v. Champagne,

538 A.2d 195 fEsen. 1988)

People v. Milton,

(Colo. 1987)

Morgenthau v. Citisource, Inc.,

04 N.Y.S.2d 108 (A.D. IT Dept. 1986)

State v. Henderson,

riz. 1986)

Banderas v. Banco Central,

oO. a. App. 1985)

State v. 1979 Pontiac Trans Am,

G87 A.2d 722 (N.Y. 1985)

District Atty. of aeeens County v. McAuliffe,

»f 2 up.

Caldwell v. State,

321 S.E.2d 704 (Ga. 1984)

Waller v. State,

7 (Ga. 1983)

Hampton v. Thurmand,

S15 S.W.2d 310 (Mo. 1981)

Bowden v. State,

oO. 3 ote. Ewe

CERTIFICATE OF SERVICE

I hereby certify that on this 7th

day of July, 1988, three copies of the

foregoing Brief Amicus of Bob Corbin, as

Attorney General of the State of Arizona

in Support of Respondents, were sent by

U.S. Mail, postage prepaid, to:

Richard Kammen, Esq.

McCLURE, McCLURE & KAMMEN

235 N. Delaware

Indianapolis, IN 46204

(317) 632-6341

Attorney for Petitioners,

Sappenfield, et al.

John H. Weston, Esq.

BROWN, WESTON & SARNO

433 N. Camden Drive, Suite 900

Beverly Hills, CA 90210

(213) 550-7460

Attorney for Petitioner,

Fort Wayne Books, Inc.

Linley E. Pearson, Esq.

Attorney General of Indiana

William E. Daily, Esq.

Deputy Attorney General

Counsel of Record

Office of Attorney General

219 State House

Indianapolis, IN 46204

(317) 232-6217 o

Attorneys for Respondent

-64-

Stephen Goldsmith, Esq.

fe a me Attorney

19th Judicial Circuit

City County -— er. #560

Indianapolis, IN 46204

(317) 236-3522

Attorney for Respondent

All parties required to be served

have been served.

QV“5QYrr—

ruce A. Taylo

Counsel for Amicus