Amicus Curiae Brief — Sappenpenfield v. Indiana (Nos. 87-614, 87-470)

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Supreme Court, US

FILED

jul 7 1988

Nos. 87-470 and 87-614

JOSEPH F. SPANIOL, JR.

In The CLERK

Supreme Court of the United States

October Term, 1987

No. 87-470

FORT WAYNE BOOKS, INC..,

Petitioner,

vs.

STATE OF INDIANA, et al.,

Respondents.

STATE OF INDIANA,

Respondent.

On Petitions For Writs Of Certiorari To

The Supreme Court And Court Of Appeals

Of The State Of Indiana

BRIEF AMICUS CURIAE OF BOB CORBIN

AS ATTORNEY GENERAL OF THE STATE OF ARIZONA

IN SUPPORT OF RESPONDENTS

LAW AND ARGUMENT

SCOPE AND STANDARD

OF REVIEW: THE INDIANA

RACKETEERING STATUTES ARE

FACIALLY CONSTITUTIONAL ANTI

SHOULD NOT BE INVALIDATED U

THE CIRCUMSTANCES PRESENT

THESE CASES

The Indiana

Racketeerin Statutes

Under Review Must Be

Evaluate n Light Of

The Opinion Of the

Indiana Supreme Court

As Applied To The Facts

Proven Below And Not

On Hypothetical

Exaggerations

The Operation And Effect

I e indiana Racketeering

Statutes. When snvolving

ine Te cate Lense &

Obscenity, Has Been Given

Limiting Construction By

~ | —-—

> e ourts e Low > AWN . :

Unconstitutional

Ran “ation:

Pi ~i1Ca 40nS

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

Enterprises Corrupted By

Violations Of Obscenity

Statutes As Well As

To Businesses Corrupted

By Other Predicate

DT S6£66666ee¢e¢cc0

B. The Restraint Upon The

Distribution Of Materials

Not Adjudicated ps_ppecene

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

The Same Or Similar

Items in Commerce At

Other Locations ...... 43

SS ssn

Page

PD Woesedeedecdededsesincss 55

SE AE deawccascdsncedeenescess 57

GE Dc ctberdsddesdesectctiens 62

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

TABLE OF AUTHORITIES

Pages

Albright v. State,

S01 N.E.2d 488 (Ind. App. 1986). 41

American Booksellers Assoc. v. Hudnut,

771 F.2d 323 (7th Cir. 1985).... Gl

American Films v. State,

Arcara v. Cloud Books,

yy. ineceeeesese 54

Avenue Book Store v. Tallmadge,

SFP Gebe FOF CESS I cccccvceveces 30,

Beach v. State,

LGII N.E.2d 363 (Ind. App. 1980). 42

Broadrick v. Oklahoma,

SED Goble GOS GETS cocccccccecs 13

Brockett v. Spokane Arcades,

472 U.S. S91 (1985)....... 220 ee 13,

14,16,34

35,

Cooper v. Mitchell,

a U.S. 944 (1982)............ 51

Dombrowski v. Pfister,

Pages

——

F.C.C. vw. Pacifica.

438 U.S. 726 (1978)...........--

Flynt v. Ohio,

=~ > | eee 12,

Ford v. State,

394 N.E.2d 250 (Ind. App. 1979). 42

4447 Corp. v. Goldsmith,

504 Teva 559 (Ind. 1987)..... 8.10,

5297 Pulaski Highway v. Perryville,

S19 A.2d 206 (M.d. App. 1987).. 40

Guaranty Trust v. Blodgett,

Hagood v. State,

cb W.E.20 315 (Ind. App. 1979). 42

Heller v. New York

’

L13 Vews i583 ‘ek 3) “ee © @e® @ © * “ee © di

Huffman v. Pursue,

420 TS. 592 (1975) peeeeces

Lsaac v. State,

~~ ‘ > & 1193 (ind.

ry bk y ; ‘ rs :

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People ex rel. Van De Kamp

= =. os —

merican Art Enterprises

2243 mt Stes

. —- ai ‘ Rpt r . ’

(Cal. App. 1977)......4..

I ] | V . Ne , mr

fCOpse, €% Fer. var ve Kamp

American Art Enterprises.

re pic v I ALi€Cl,

128 Cal Rotr 563 ADT

976)

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“S09 W.Y.5.2d 349 (N.Y iT

978)

People v. Souter.

Cal.Rptr }

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Pages

Smith v. State,

GI3 W.E.Zd 652 (Ind. App.

i ee eee eee 6 « 4,2

Southeastern Promotions v. Conrad,

L420 U.S. 546 (1975).........6-- 3

Spokane Arcades v. Brockett,

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

‘an

State v. Baysinger,

397 eer: SEe (Ind. 979)...... ey,

State, ex rel Drost v. Superior Court,

4l . & < nad. “eee —~ <4

State, ex rel Ewing v. "Without

A Stitch ,

307 W.E.2d 911 (Ohio 1974)..... }]

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

Municipal Court,

396 E74 361 (Ind. 1979)..... 4,2

State, ex rel. Kidwell v.

U.S. Marketing,

631 P.2d 575 (Idaho 1983)..... 30,

State, ex rel. Sensenbrenner v.

Adult Book Store,

271 W.E.Zd I3 (Ohio App. 1971). 14

State v. Feld,

145 P.2Zd 146 (Ariz. App. 1987).

State v. Sappenfield,

505 TE 504 (Ind. App.

Ts oe ea ae eee ee « a)

Pages

State v. Voshart,

159 N.W.2d (Wisc. 1968)........ 40

U.S v. Battista,

$46 F.2d 737 (6th Cir. 1981)... 45

U. v. Busher,

si F.2d 1409 (9th Cir. 1987).. 32

U.S. v. Cauble,

706 F.2d [322 (Sth Cir. 1983).. 32

v. Conner,

557 F.2d 566 (llth Cir. 1985).. 32

U.S. v. Ginsburg,

173 F.2d 798 (7th Cir. 1985)... 29

U.S. v. Godoy,

2 (9th Cir. 1982).... 29

U.S. v. Grande,

620 F.2d 1026 (9th Cir. 1980).. 32

U.S. v. Huber,

603 F.2d 787 (2nd Cir. 1979)... 32

U.S. v. Lizza Indust.

775 F.2d 492 (2nd Cir. 1985)... 29

U v. Martino,

a F.2d 057 (5th Cir. 1982)... 29,32

U.S. v. McManigal,

708 F.2d 276 (7th Cir. 1983)... 29

U.S. v. Pryba,

.oupp. 1502 (1987)

674 F.Supp. 1504 (1987)

674 F.Supp. 1518 (1987)

Pages

U.S. v. Roberts,

149 F.2d 404 (7th Cir. 1984)... 29

v. Thevis,

31 F.Supp. | 134 (N.D.Ga. 1979). 32

U.S. 7-Photographs,

Tor Ee 13,29

1.S. v. 12 200-Ft. Reels,

ae | ewW-~« we! j ° 51

v. West Coast News,

__ Fd 855 (6th Cir 1966)... 4

14° F.7d 1447 (llth Cir. 1984). Z93

Vance v. niversal Amusements

~ B&5 . ‘e}:! (] BO) eeeeweevweeew1e545e0e1»eees si.

~ 49

Van Sant v. State,

vk} N.E.2d 229 ( ADT

linn h edn hnnwiab seat eneeeec 4

Village of Hoffman Estates v. Flipside,

“~ 5 We we “~ ¢ ‘ 4 — — oe . ‘ . 5

Ward v. Illinois

~ Ji U.S. (19/77) seeees : 13.4]

Watson v. Buck,

i a. aw Seen... ; ; 15

SUMMARY OF ARGUMENT

Tt. 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 aistribdbuting

obscenity. These cases all involve

hard-core pornography and no other

;

application of RICO laws is before the

CONSTITUTIONALITY OF REMEDIES

The facts before the Court show

these cases to be consistent with other

riminal and civil applications of RICO

ws to other predicate offenses. The

sses are still in their pre-trial

stages and further construction and fa

nding would have been necessary t

jlecide on appropriate remedies to be

granted to the State of Indiana. Any

hypothetical applications which coul

msidered overbroad or vague are not

before the Court and were not sanctione

y the Indiana Supreme Court and C

Appeals. Other federal and state

bscenity and RICO cases would have

guided and limited the applicatior

the RICO remedies below, and the First

nendment nature f bscenity ase: ioe

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".

)

~ "“RICO/CRRA" refer to Indiana's 1980

Racketeer Influenced and Corrupt

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

et seq.) 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; 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

Hereinafter referred to as "Fort Wayne

Brief".

Hereinafter referred to as

"Sappenfield Brief".

be later proven in the trial courts. As

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 f the

7 7 + mi

property would be to determin:

whether the property had beer

. »* 4 . co «™ .

unlawfully seized. General

a defendant would initiate

such action by the filing

tion to vacate the seizure

r, as was done in the

nmstant cases, and we would

et the court to hold a

pt 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 hearing 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

-ll-

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

Offense Of Obscenity, Has Been

Given Limiting Construction By

The Courts Below 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

o12-

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.

oie

747, 772 (1982); Brockett Il, 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. Kovner, 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. 7/76

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

Sensenbrenner v. Adult Book Store, 26

-14-

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”)

site

discussed and followed in Brockett Il,

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 fornm-

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

Liverpool, New York &

Philadelphia 5.5. Co. v.

Commissioners of Emigration...

Citing a long line of cases,

Raines also held that

ndred 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. CONSTITUTLIONALITY 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

site

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 quo 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

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

ele

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,

505 N.E.2d 504 (Ind. App. Ist 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

-2l-«

Indianapolis case had been set for 72

hours after the Complaint was filex

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

apolis 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 pornography.

These are not legitimate theaters

showing "Hollywood" movies rated "PG" or

“R", not general public bookstores like

B.Dalton or Waldenbooks selling

okbooks, fiction, sports, reference,

etc.. and not chains of stores with

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.

o2%e

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 444

Corp. The Trial Courts would further

have to consider the other issues,

arguments, and precedents for remedies

and procedures not covered by 444/7 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.

-24-~-

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 Virgii.ia 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

o2$-

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); 6/78 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 May

Constitutionally Be Applied To

Business Enterprises Which Have

Been Corrupted By Violations Of

Obscenity Statutes As Well As To

Businesses Corrupted 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.

o27<

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, sucipan

enterprise may be treated as having

assets subject to forfeiture to prevent

-28-

U.S. v. 3/ Photographs, 402 U.S. 363,

2 Ad

3 /6- (19/7/7). In this regard, the

pre-trial seizure and restraining orders

r--

: Llawnea a CT 14 rlie ar

mn Fort Wayne (and Indianapolis) were

consistent with other orders to preserve

;

’ " 7

assets pendente lite, even though final

forfeiture cannot attach until after

rerdict and proof of the related nature

of each asset to the crimes proven. See:

—

(om .

°)

-2?9-

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, and the 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 briei

period until the trial court car

determine the propriety of forfeiture of

illegal proceeds of racketeering.

Although the final closure in nuisai

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

rr , 4

constitutional limits, as in

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 (19/75). See

also: Spokane Arcades v. Brockett,

(Brockett 1), 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

f enterprise it is. 4447 Corp. at 565.

The aim of the statutes is to prevent

efile

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. Th +, 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).

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

o32-

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

~.*

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

athe

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 4/9

(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-

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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: Malum 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). And 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.5S., 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,

-41-

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

tr}

;

American Films v. State,

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

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

cr?

e¥)

cr?

—

re}

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

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

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

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

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

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[Incidental Only To Those Iter

Forfeited As Prope rty As set Of

A Corrupt Enterprise And Dos

Not Amount To An

Unconstitutional Prior

Restraint on Other Materia

Or Against e Same Or Simi lat

Items In Commerce At Other

Locations

i - & he

tioners, and their ami

hilling effect of RICO law or

‘ expression, ret they have

Dr ‘ > rhe irft et i WwW

is irt. ¢ } af beh’ ? . "

has in fact rred. The

e prier, at notes that the

irt . Appea granted a tay

eda the pad i ’ rhe rhres

Fort Wayne which meant tne

wed : resume perati

I ta { mention that :

t wWavTtieé | <<. ae ré eT

i perating t lay é ‘

: ’ r rT STaDpDny | rMmé

] t ene LT the indiana

1s ited above and i

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, bondage,

-46-

sado-masochism, bestiality, etc.

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 "PCV".

Cable services such as Playboy Channel

show extensive simulated sex ("medium

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

magazines such as Penthouse and Hustler

w\ PF

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

under any Miller based federal or state

law against any movies rated "R" or "PG"

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

1as been no unconstitutional chill if

the only result of obscenity and RIC

aws has been to keep "Hollywood" movies

from forcing actors and actresses t«

perform actual sex acts in MPAA rate

movies (which would automaticaly make

them ‘X"’). There has not been

.48-

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This effectively kills the power of the

courts in RICO actions to punish and

reform a corrupt business and its

operators when caught systematical]

violating obscenity laws. [If a persor

used drug or prostitution or gambling

proceeds to buy and run a bookstore or

grocery store, this Court should have

problem allowing forfeiture of the

inventories of books and food

other related interest in the

“legitimate” business. This would not

be a true prior restraint on those | Ks

eized because the government can se

them and all other businesses in the

country can sell those | ¥ ind evs

— , 44 ; , :

the defendants can sell those book

, 7

elsewhere. ust as the injunction

Avenue Book Store City t Tallmadge.

TO ee. — ————— he. — ltl.

supra, adds effectiveness t a nuisance

action, rather than enioininege only the

a “ei ré

eT being

ck in tra

rel. Kidw

ra, asset

erprise s

restraint

Late obs

reiture a

usiness,

speciti«

entory

se items

identa|! [

Lation I

ks. 4/8

‘Bh (1986

Video.

enity as

ensé ind

issetcts

1itie

aqire:

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¥<

APPENDIX A

History of Three State Obscenit

’ -

Law Challenges in Federa!

” -

sovereign News Co. v. Falke, 448 F.5

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

?v)

(invalidating Ohio obscenity definition

and enjoining entire statute); State

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, 44/7

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, 6/74

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

459 U.S. 864 (1982) (reversing

"Sovereign IL" 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. i145

(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).

itn

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.