# Amicus Curiae Brief — Sappenpenfield v. Indiana (Nos. 87-614, 87-470) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0587%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1988 ## Text 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. ee 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 ho | 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 ii 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, iv Pages —— F.C.C. vw. Pacifica. 438 U.S. 726 (1978)...........-- Flynt v. Ohio, =~ > | eee 12, VW Fa 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. > . es ry bk y ; ‘ rs : : _ : _ "= a md ‘ . s _ | - : | ‘t iey C . 7 DT aw =x Sy "3" = ie ¥ 4 «r= : r 7 : el . 7 iy 7 ¢ . . nesiey ri LUT€ nece i 4s 77 rrr - oto a —_ . 7 ~ altel! i 4 : . ™ ’ .- my La i cK .-©€tl LSes ’ ay, —_— _ ya a a = . 4 '° LY, ~ ‘ t # . iwaka Ser = > as : 7 a | T.a »6 ane 78 .% + |. | > > > ~} 4 : aT shy . ~ | ~ eS. ll ee TT; . a : + y 4 r AU ; i . 7 " > . ‘cai y 4Le., Tar 7 = | rr - ; a 7 _ + 0.40 id A 4» > ’ , r me .' - . aT | Lé ¢ ,T,x TT =— ne a a ee a. - . 4 a = al : Lier 21iitoOrnia i i. | 77 = wr _oeeer . = : : ‘ ‘ . ot @S: . i -w : ’ ee, wr a rrr TTTE wa * a . a ims ry 7? - rr ss _ 7 7 ; : : . = . _ . x rT = ele - rT ’ : ; ‘ 4 : Ix / " \w TY . reroerT rT ry - “Te i. - Fe. ; ; 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) } saAnile VW kK own rr et i€ ¥ « : Vviiel “S09 W.Y.5.2d 349 (N.Y iT 978) People v. Souter. Cal.Rptr } 2 . 4m 4 3) oF i + ‘ “4. Li -—* 7 Sal rr oT, a : ei Be ; at " i Ss ~~. = =—T a a. Te 4 . : . , 4 , > > . : eT : . rT = " r a | re _ ’ A .. ‘.I ia OF 4 - : " ~ + . q : . > | : ,7Y x“, Ty x= 7 ' 4 " a + - : . > —_———_s wv = Or "or sy 4 r 1 = > > . : ; : . i ol tT am om J wy + . . J ] ° am * > . . ‘ 2UeT : . rr. _ J ~ W ¥ . > : 4 , . + _ ' > : . ’ , ier Le rrr ; ie ie | Tr Tr 7 : : * J ’ | = * l¢ ya ey (arte aw, 7 bow | i -_ J = ' > = on™ 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 . & 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 8) - 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 ’ " 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: a O ox - — 2) * + wr y ‘ + ’ - e For wayne Brier a i353 a 4. 7 -)- . ons + . “+t. : > > ho = : ™ Soc . ALI >. . ‘ . ; | i€ ‘ iia > . 4 : . a. 7 y ‘ me OUT Satric | e | SUT ¢ i + - _ \ y , + : — . ~ ’ a me lt 5 Vil LT +4 4 OTD i —_ > — . ‘. ; = . >} wy . . _ ; 00- , reads erwilse ana —_ > a > + an ‘= +e : .. > > res pt I iL i leXUS e_Lwee € . . . . . toe 7 44 eer ing ac S ana e remedies Va = a - »s% 4 ' + _ , cu JUCI a1 » | SUT ~~ la . tT} wa : > a T c “b a .4 nm baka co ¥¢ ©i Lc ie LmiGgia i IpT ele - 1. 34 4 - _ — : : Li€css ui S isseqd i 3/7) i vou , > . ~— eho * msi + ho | ~ a" > ci L€ i1€ ‘>’ ce ivw : _ ~ + + an + ‘~* .+ 7 y You ‘ oP’ | \ _-©el ait S Les weie . ’ > ola A m4 : 7 . | loec cL ec ‘ reiatedc a A LLLi©C#Rai 5ai . a . + com - + ho > — i « scene items and nese res 2 ii «+ - | «» 7 . ’ - ~h . S Sa. Ly TLeiaced lOS¢€ i era . . \ o . ’ > iS it I ©ivVaviée na aTLy LT : =) ” > > racer e LOSUTE I SEL ZUTE .+ y v _o 2 + ¥ . nr ‘ 7 , a. S es I asse 5 DI ve c . _ > roe ry ._?- 4 cu ce es - > = ' L eT) cis ur ft as ,’ 1TT a . > nica | eT) e s ec i é l : e Sk ake » + : : Ee Le e] Lie€é y srr Té¢ = nn . it % — ’ ' 7. eu ~h > i a vet es S ati : _ 7-7 . » F 7 7 7 " . 4 7 . ~ ati > Sai ive ' 5a .+ : . i & e | 7 . © a ‘ea . . ‘ > . nr > ex ’ ai - i. _ ‘ ren » 4 ~- . 7 = « i ’ ’ ; ‘ : . > a | . fend le i ? e , nvoil ny VI > vy ,. I moa . Ine ‘ ern } Gq >» € nts onte ’ , rT) Y ¥ I Drio! the edaera I ; nat e . d t willir ] : r rw sei ré I es their pme Al Low were several! i- Te tne ndiart jue I ess e's rights sta Law a ? iit me y iw. iT iti Tre tat e 4 i 7 . r ay Fr y i r\ y > : ivita ; $— 4 —_ . ~— = _ 7 > . 7 : >; > - » : LT : | . ~ ’ | eT > « ITré 7 innerent 7 Tre ’ a a . ~ > . ‘ =. oh ’ A ~~ * pe i ~ ~ io cid . _U . & — > _ > « r 4 iy . Sel. > > - > _ 7 4 ‘ ; ; _ : . > ~— « iLca Lzka ; : _ r « ~ ?' . via . . ow w > > - ae ari i r ~ A ; . = i cne nist ri ai I nara re ft : FT . impr r -~h« b M «+ * 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 : , Vw - _ tr} ; a. , aa > b American Films v. State, (Ind. App. 1981); Smith v. State, 413 N.E.2d 652 (Ind. App. 1980); Beach v. WK cr? e¥) cr? o - — Zz re} rh . LA on VL 4 S Q. x ~ v0 -~ \O oo © rh 1979), appeal dismissed f.w.o.s. Ws 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 -Sai- . ‘ ‘ + : : 4 - - > . ; i . 1 3 ‘ Z Z > + m4 » . . . ° ‘ - od . . . v “ , _ . : a 7 7 ‘> . . 4 ¥ . > ‘ . : : cal a > : v . ' v . > . - . a Pr a > “ > + > +4 > ~ “ ’ ’ ‘ ' ‘ n n . . Higa : " " : ¢ v 0 > a Z ‘ + ’ . ~~ +4 - ’ ° , . > yi¢ . A " r4 7 - ‘ ‘ re a ' x s ; ‘ ‘ rw 4 , y n = " : e ‘ het a “ ’ _ . . . > a > - , . : > y PT 4 b ' > J , ’ j . : > - . ? 7 ‘ ws >. | + 1 f ‘ 3 ‘ 4 4 i £ be y : : [ 4 2 bs 4 £ 44 + - . “ " . r4 . +4 ’ t =" 2S" v _ i + w 7 “¥ ‘ ' > ‘ x ‘ | “¥ ‘ . > Mil . ,4 r 4 ¥ ‘ ‘ ‘ Vy . 4 ‘ Y i> . _ 4 . . ™ M ‘ + ’ : . ox | 1 ,4 7. . ‘+ +4 a U : ‘ ?' > a i+ . . " . 4 to ' - > (x 7 .* : y ° ' rr . ~ . + WU / > > « aa 7 ’ ‘ -~ > ‘ > . 4 ' : : . . . " yy - > +/ > > > > . ; ‘ ‘ , " w . - ~ » > _ a | 4 a 9 a > ‘ 7 : t » 5 > ’ wT T"L T+ [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 | ‘¥ ‘ : ~~ +4 ‘ 4 : . > / ‘ v > 4 ‘ ‘ ; ; ’ > ‘ OM we ra : ‘ ‘ om © ' aU +4 > 4-4 > : . _ “ ; ‘ U _ \ ‘ v = : v [ «ft a | 4 " ‘ . iJ v J Vv V) 4 > m j - : Ls = 4 i i . _ — j J j [ ‘ Ol i . iJ . - f Vv ' Vv ra ‘ . . 4 ‘ ‘ & r oo . : + " Jt > - al ’ 4 ~_ ' > 4 . of J vt = \ _ ; > > ‘ . = ‘ ‘ 1 = ‘ f " » | Z , oo Ci ot : >| 7 - . ” ont 4 ’ > mr . 7 ‘ : ' v > . 7 ’ j ’ .| ’ : ; > “ rv 7 ; ‘ J , - " y ’ | ' | V 4 Jk ‘ nm ‘ j - + 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: . & 71w _F' wv ~™ «= | = . , as ’ , 4 : 7°" ’ ~ _ — 4 y . — a . .* s+ . 7 . . w- Ona hh > Gu > a . : . an yu aT : > ‘ y . . ry Ss ; r€ reé it ¥ . > : .* > > APPENDIX A 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) A (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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0587%3A13. Public record. Not legal advice.