Petition for Writ of Certiorari — Dennis E. Pryba, Barbara A. Pryba, Educational Books, Inc. And Jennifer G. Williams v. United States

Supsame Court, U.S,

~

8921902 \} FILED

‘| JUN 5 1990

No. JOSEPH F. SPANIOL, JR.

ER«

eee

In The

Supreme Court of the United States

October Term, 1989

DENNIS E. PRYBA,

BARBARA A. PRYBA,

EDUCATIONAL BOOKS, INC.

and

JENNIFER G. WILLIAMS.

Petitioners.

us.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

lO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petition for Writ of Certiorari

LIPSITZ, GREEN, FAHRINGER,

ROLL, SCHULLER & JAMES

Paul John Cambria, Jr., Esq.

Counsel of Record

+2 Delaware Avenue, Suite 300

Buffalo, New York 14202-3901

» 16) 849-1333

Mary Good, I “uy

Cherie L. Peterson, Esq

Of Counsel

PL TT TE

Daily Record Corporation - on

Rochester New York (16589)

-

QUESTIONS PRESENTED

Whether the inclusion of obscenity as a predicate offense

under RICO (18 U.S.C. $1961 et seq.}, or the application of

RICO’s forfeiture provisions upon an obscenity conviction,

violates the First Amendment either as a prior restraint or as

an overly broad and unconstitutional subsequent punish-

ment.

Whether the Eighth Amendment requires a proportionality

review before a criminal defendant s interest in a RICO enter-

prise is ordered forfeited.

Whether the admissibility of expert testirnony in an obscenity

case has been unduly limited.

Whether contemporary community standards should be mea-

sured by an acceptance or tolerance standard.

Whether the elements of 18 U.S.C. §1962(d) require a finding

that a defendant personally agreed to commit two predicate

acts.

W hether prior state court convictions are admissible against a

defendant to prove the RICO predicate acts.

Whether the defendants’ right to the due process of law under

the Fourteenth Amendment was violated when the lower

court denied them the right and ability to intelligently exercise

their preemptory challenges.

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .......ccccccccccccces (i)

TABBED OF CUINTEINEG. 2 cccccceccccccccccccccces (ii)

TABLE OF AUTHIORITIES ......cccccccccccccces (iv)

ee eee ]

JURISDICTION OF THIS COURT ............... l

CONSTITUTIONAL AND STATUTORY PROVI-

SEUSS CUCU oc nceecosesseuneaseeeneeeel l

STATEMENT OF THE CASE...................-- 2

REASONS FOR GRANTING CERTIORARI —

POINT I

THIS CASE IS THE FIRST TO RAISE THE

QUESTION OF WHETHER POST-TRIAL FOR-

FEITURE, UNDER 18 U.S.C. §1961 ET SEQ.

(RICO), IS PERMISSIBLE UNDER THE FIRST

AMENDMENT TO THE UNITED STATES CON-

DESEO CUEES ccccceecesenssssesneenl 5

POINT II

REFUSAL TO GRANT CERTIORARI WILL BE

TAKEN AS TACIT APPROVAL OF A DECISION

WHICH PERMITS THE IMPOSITION OF A

PRIOR RESTRAINT UPON PROTECTED

EU EEEEEES cocccecececessenseseenee li

POINT III

THE DECISION BELOW AUTHORIZES THE

IMPOSITION OF A PRIOR RESTRAINT OR,

ALTERNATIVELY, AN OVERLY BROAD AND

UNCONSTITUTIONAL SUBSEQUENT PUN-

ts PPT 14

ill

POINT IV

THERE IS A DIRECT CONFLICT AMONG T..LE

CIRCUITS AS TO WHETHER THE EIGHTH

AMENDMENT REQUIRES A PROPORTIONAL-

ITY REVIEW OF THE FORFEITURE OF A

DEFENDANT'S INTEREST IN A RICO ENTER-

POINT V

THIS COUR7?’S GUIDANCE REGARDING THE

ADMISSIBILITY OF EXPERT TESTIMONY IS

NEEDED TO RESOLVE CONFLICTS AMONG

TM BAPOT ES CAUIER ES ccc ccccccccccccccscccces

POINT VI

CONFUSION ABOUNDS AS TO WHETHER

CONTEMPORARY COMMUNITY STANDARDS

ARE TO BE MEASURED ®Y AN ACCEPTANCE

OR TOLERANCE STANDARL .................

POINT VII

A CONFLICT EXISTS AMONG THE CIRCUITS

AS TO THE ELEMENTS OF 18 U.S.C. $1962(d) ..

POINT VIII

THIS COURT HAS NOT DETERMINED IF

PRIOR STATE COURT CONVICTIONS ARE

ADMISSIBLE TO PROVE RICO PREDICATE

POINT IX

CONTRARY TO ESTABLISHED LAW, THE

COURT IMPROPERLY LIMITED VOIR DIRE

AND PREVENTED PROPER EXERCISE OF

DEFENDANTS’ PREEMPTORY CHALLENGES

EEE TET TTT TITLE TT Ee

26

30

30

iv

TABLE OF AUTHORITIES

CASES . Page

Alexander v. Thornburg, 713 F.Supp. 1278 (D. Minn.

1989). suenedad ideedénidiusddedadanecueseuuenks 8

Arcara v. Cloud Books, Inc.,

Se ee Sc ckcccnducecaceenecacdd 8, 9, 10, 11, 14

Arizona v. Feld, 155 Ariz. 88, 745 P.2d 146 (Ariz. App.

1987), cert. denied, 485 U.S. 977 (1988)... ......... 8

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1968).... 16

Bartkus v. Illinois, 259 U.S. 121 (1959) .............. 29

Bates v. Little Rock, 361 U.S. 516 (1960)............. )

Carlock v. State, 609 S.W.2d 787 (Tex. Crim. App. 1980) 23

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975) . 18

Flynt v. State, 153 Ga. App. 232, 264 S.E.2d 669, cert.

denied, 449 U.S. 888 (1980) ............... cece eee 23

Fort Wayne Books, Inc. v. Indiana, ____U.S. , 109

Ss DEP CUEED Scakevcececcasccevsced 6, 7, 11, 15, 18, 20

Ginzburg v. United States, 383 U.S. 463 (1966) ....... 17

Hamling v. United States, 418 U.S. 87 (1974) ........ 25

In re Harris, 56 Cal. 2d 879, 366 P.2d 305 (1961)...... 24

Interstate Circuit v. Dallas, 390 U.S. 676 (1968)....... 5

Jacobellis v. Ohio, 378 U.S. 184 (1964)............... 14, 27

Kahn v. Uhited States, 300 F.2d 78 (5th Cir. 1962) benee 24

Keller v. State, 606 S.W.2d 931 (Tex. Crim. App. 1980) 25

i .

Landmark Communications, Inc. v. Virginia, 435 U.S.

PP GREED Sv ccedeseneecccessosesceneeceeneteces

Louisiana ex rel Gremillion v. NAACP, 366 U.S. 293

Marcus v. Search Warrants of Property, 367 U.S. 717

SNS 6owdh0:660606066666600606000000600059060008

Miller v. California, 413 U.S. 15 (1973) ..............

Miller v. United States, 431 F.2d 655 (9th Cir. 1970)...

Minneapolis Star and Tribune Co. v. Minneapolis Com-

missioner of Revenue, 460 U.S. 575 (1983). .........

NAACP v. Button, 371 U.S. 415 (1963)..............

Near v. Minnesota, 283 U.S. 697 (1931)..............

New York v. Ferber, 458 U.S. 747 (1982). ............

People v. Finkelstein, 11 N.Y.2d 300, 183 N.E.2d 661

PN 666 4SbRESOKE OSE EDSECEECOKKedadeeekedees

People v. Nelson, 88 Ill. App. 3d 196, 410 N.E.2d 476

(USB) . cccccccccccccccccccccccccccccccccccccces

People v. Thomas, 37 Ill. App. 3d 320, 346 N.E.2d 190

|. PPPPPETETTeTTTITITTTITTTrerrrrrrrirrre rere

Pointer v. United States, 151 U.S. 396 (1894) .........

Roth v. United States, 354 U.S. 476 (1957) ...........

Russello v. United States, 464 U.S. 16 (1983) .........

Saliba v. State, 475 N.E.2d 1181 (Ind. App. 1985).....

Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)

Sedelbauer v. State, 428 N.E.2d 206 (Ind. 1981), cert.

denied, 455 U.S. 1035 (1982) ............. cee ences

vi

Page

Simmons v. Union News Co., 382 U.S. 884 (1965)..... 1]

Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979) 19

Smith v. United States, 431 U.S. 291 (1977)......... 17, 27, 30

Solem v. Helm, 463 U.S. 277 (1983) ........2-0 ee eee 21

Southeastern Promotions v. Conrad, 420 U.S. 41 (1975) 13, 17

Speiser v. Randall, 357 U.S. 513 (1958) .............. 12

State v. Anderson, 354 S.E.2d 264 (Ct. of App. 1987),

rev'd, 366 S.E.2d 459 (1988) ......... jasnaeenhees 23

State v. Jungclaus, 176 Neb. 641, 126 N.W.2d 858 (1964) 24

United States v. Adams, 759 F.2a 1099, cert. denied, 474

8 ere 28

United States v. Andreadis, 366 F.2d 423 (2d Cir. 1966) 29

United States v. Battista, 646 F.2d 237 (6th Cir.}, cert.

Genie, GEOG. FORD eee bce sccccesccccccccces 27

United States v. Busher, 817 F.2d 1409 (9th Cir. 1987) . 21, 22

United States v. Carter, 721 F.2d 1514 (11th Cir. 1984). 28

United States v. Carver, 260 U.S. 482 (1923).......... 1]

United States v. Erwin, 793 F.2d 656 (Sth Cir. 1986)... 29

United States v. Grande, 620 F.2d 1026 (4th Cir.), cert.

denied, 449 U.S. 830 and 449 U.S. 919 (1988)....... 22

United States v. Horak, 833 F.2d 1235 (7th Cir. 1987).. 21

United States v. Joseph, 781 F.2d 549 (6th Cir. 1986)... 28

United States v. Leisure, 844 F.2d 1347 (8th Cir.), cert.

denied, U.S. , 109 S.Ct. 324 (1988) ........ 28

United States v. Myers, 49 F.2d 230 (4th Cir.), cert.

Seed, SES Us GSS CESSES occ tccccccescescucess 29

a |

Vu

United States v. Neopolitan, 791 F.2d 489 (7th Cir. }, cert.

denied, 479 U.S. 940 (1986) ........ cece cece nceeee

United States v. Persico, 621 F.Supp. 842 (S.D. N.Y.

P68 06600b0565456000050650-006056606660000%

United States v Pinkus, 579 F.2d 1174 (9th Cir. 1978). .

United States v. Rhodes, 779 F.2d 1019 (4th Cir. 1985).

cert. denied, 476 U.S. 1182 (1986). ........ 2.2.2...

United States v. Ruggiero, 726 F.2d 913 (2d Cir.). cert.

denied, sub nom, Rabito v. United States, 469 U.S. 83]

United States v. Tille, 729 F.2d 615 (9th Cir. 1984). cert.

denied, 469 U.S. 845 (1984) ..................005.

United States v. Turkette, 452 U.S. 576 (1981) ........

United States v. 2,200 Paper Back Books, 565 F.2d 566

PP CPi Midechdeedevddaauuseuneaaenossncnns

United States v. Various Articles of Obscene Merchan-

dise, Schedule No. 2102, 709 F.2d 132 (2d Cir. 1983).

United States v. Walsh, 700 F.2d 846 (2d Cir. 1983)....

United States v. Whitehead, 849 F.2d 849 (4th Cir. 1988)

United States v. Winter, 663 F.2d 1120 (1st Cir. 1981).

cert. denied, 460 U.S. 1011 (1983).................

United States v. Womack, 166 U.S. App. D.C. 35, 509

F.2d 368 (D.C. Cir. 1974), cert. denied, 422 U.S. 1022

lJ) PPPPPPPTTTIrirTrirrirrrrrrrrrirrrrrrr Tere

Vance v. Universal Amusement Co.. Inc.. 445 U.S. 308

BRT a Oe eye a a en ee ee eee

LO

vill

Page

Western Business Systems, Inc. v. Slaton, 492 F.Supp.

Se ee GN DE occcncodecsseseetenscendbnece 8

Womack v. United States, 294 F.2d 204 (D.C. Cir.}, cert.

Gented, 3635 U.S. SIP (ISGD) ... cc ccccccccccccccccs 24

Woodruff v. State, 11 Md. App. 202, 273 A.D.2d 436

See ececeedscndcucceneUibSedensbeedadcedeesen 24

Yudkin v. State, 229 Md. 223, 182 A.D.2d 798 (1962). . 24

STATUTES AND RULES

1S U.S.C. Seatiow LOGHZ)... cc ccccccccccccccccccces 2

PP es SED BUD socccccsccectesvesseccesececs 7

BD Ga, SI BOGE « cccccccccccccccscccccsees 7

Fe ies ND BE snes cédccvcsccucecvtecnesees 19

BP See SUD BOD a ho vcccccnccccsecccccesees 2

SB U.S.C. Seaton WGGBie) 2... ccccccccccccccccccsccess 2

SP aes SND BREED occ ceccncccccecvesccesccoccclie Mt

BO DK, BO BGG cc ccccccccccccwssccceccecess 5

Ariz. Rev. Stat. Ann. Section 13-2301 (1989). ......... 7

Ariz. Rev. Stat. Ann. Section 13-2313 (1989).......... 7

Ariz. Rev. Stat. Ann. Section 13-2314 (1989).......... 7

Cal. Penal Code Section 186.2(a)(20) (Deering Supp.

PEN SONU Sd esdudddcbeubddbatoneeueeceecessecce 7

Cal. Penal Code Section 186.3 (Deering Supp. 1985). . . ri

Conn. Gen, Stat. Section 53-394 (1989) .............. 7

Conn. Gen. Stat. Ann. Section 53-3°7 (1989) ......... 7

Ga. Code Ann. Section 16-14-3(9)( A) xiii) (Supp. 1989) ry

I ee

Ga. Code Ann. Section 16-14-7 (1988)

Ind. Code Ann. Section 34-4-30.5-2 (Burns 1986). .

Ind. Code Section 34.4-30.5-3(b) (1982)

Ind. Code Ann. Section 35-45-6-1 (Burns 1985)

New York Public Health Law, Section 2330

Virginia Penal Code Section 18.2-274.

Virginia Penal Code Section 18.2-38]

MISCELLANEOUS

130 Cong. Rec. 433 (January 30, 1984}

United States Constitution, Amendment |

['nited States Constitution. Amendment 8

STATUTES AND RULES

SP eee SND DEED oc eccccovcccccecesoooseses l

PP es SE SUED Sendenccecesececescceesocess 3, 6

BP ee SD BOUUNEP occccdeccceccveccesonceses 6

BP Ges SD EEE caviccococceseccccsocessdecese 21]

SP Gee SUD SERED ccocccccceccsscesovceccecs l

Se es SED DEED ceccccecccccovcesoosnceces l

BP Ge SR Gc cccccccccescosecodeseces 1, 35, 36

PP as SD BED cveccdccdkcoccsncedeccocesees 4

Ariz. Rev. Stat. Ann. Section 13-2301] (1989).......... 6

Ariz. Rev. Stat. Ann. Section 13-2313 (1989).......... 6

Ariz. Rev. Stat. Ann. Section 13-2314 (1989).......... 6

Cal. Penal Code Section 186.2(a(20) (Deering Supp.

SRE ccvechocsucncescocenesuscoscocevestceess: 6

Cal. Pema! Code Section 186.3 (Deering Supp. 1985). . . 6

Conn. Gen. Stat. Section 53-394 (1989) .............. 6

Conn. Gen. Stat. Ann. Section 53-397 (1989) ......... 6

Ga. Code Ann. Section 16-14-3(9 A) xiii) (Supp. 1989) 6

Ga. Code Ann. Section 16-14-7 (1988) .............. 6

Ind. Code Ann. Section 34-4-30.5-2 (Burns 1986)... ... 6

Ind. Code Section 34.4-30.5-3(b) (1982).............. 5

Ind. Code Ann. Section 35-45-6-1 (Burns 1985) ....... 6

New York Public Health Law, Section 2330........... &

Virginia Penal Code Section 18.2-274................ |

Virginia Penal Code Section 18.2-38] ................ |

ee caer eenetnanneel

MISCELLANEOUS

130 Cong. Rec. 433 (January 30. 1984)

lL nited States Constitution. Amendment |

lL nited States Constitution

Amendment 8 3 9

OPINIONS BELOW

On April 9, 1990, the United States Court of Appeais for the

Fourth Circuit affirmed the conviction of petitioners Dennis E.

Pryba, Barbara A. Pryba, Educational Books, Inc. and Jennifer

G. Williams.' That decision is not yet reported but is reproduced

in the Appendix at pages Al-A26 infra. The orders and decisions

of the United States District Court for the Eastern District of Vir-

ginia, at Alexandria, are also contained within the Appendix filed

simultaneously with this Petition.

JURISDICTION

The judgment of the Fourth Circuit Court of Appeals affirming

the convictions was entered on April 9, 1990. Jurisdiction of the

United States Supreme Court is invoked under 28 U.S.C.

§ 1254(1) and Rule 13.1 of the Rules of this Court. Federal juris-

diction in the District Court is invoked under 18 U.S.C. § 3231.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

L nited States Constitution, Amendment |

‘Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people peace-

ably to assemble, and to petition the Government for a redress of

grievances.

United States Constitution, Amendment 8

B&D Corporation owned the stock of defendant, Educational Books. Video

Shop, Ltd. and Marlboro News were subsidiaries of BAD Corporation. Each

of these corporations was dissolved by the order of forfeiture imposed in this

case |A-164)

to

“Excessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted.”

Statutory provisions 18 U.S.C. §§ 1465, 1961, 1962 and 1963

are reprinted in the Appendix to this Petition.

STATEMENT OF THE CASE

Dennis E. and Barbara A. Pryba were convicted of one count

of violating 18 U.S.C. § 1962(a) (participating in a pattern of

racketeering activity); one count of violating 18 U.S.C. § 1962(c)

(employed by a criminal! enterprise engaged in racketeering activ-

ities); one count of violating 18 U.S.C. § 1962(d) (conspiracy to

violate § 1962(a}); and seven counts of violating 18 U.S.C.

§ 1465(2) (transportation of obscene materials in interstate com-

merce for sale and distribution). Jennifer G. Williams was

charged with all of the above and convicted eof all, except for

Count I, a violation of § 1962(a). Educational Books, Inc. was

convicted of one count of violating 18 U.S.C. § 1962(a) and one

count of violating 18 U.S.C. § 1962(d).

At the time this indictment was filed, November 13, 1987, the

Prybas owned corporations which operated nine video rental

stores and three bookstores in northern Virginia. The video stores

stocked inventories of both general audience and sexually explicit

adult videos. The bookstores sold “adult” fare — that is, sexually

explicit magazines.

The Government alleged that an enterprise consisting of

defendants and the various unindicted corporate entities had

been formed in 1973 for the purpose of disseminating obscenity in

violation of 18 U.S.C. § 1465 and §§ 18.2-274 and 18.2-381 of the

Virginia Penal Code. The “pattern of rackeveering activity’ with

which Educational Books, Inc. was charged was based on 15

prior obscenity pleas or convictions of that defendant under the

Virginia Penal Code during the period of time from 1981-1984.

Beeman

The remaining defendants were charged with a ‘pattern of racke-

teering activity’ based on the rental or sale of four video tapes and

the sale of nine magazines (which had been purchased by federal

investigators).

The jury found that the four video tapes and six of the nine

magazines were obscene. These materials were worth $105.30 (A-

9},

Subsequent to conviction on November 10, 1987, the jury con-

sidered the forfeiture allegations and, on November 18, 1937,

returned its forfeiture verdict, finding that “defendants had cer-

tain interests and property which afforded them a source of influ-

ence over the enterprise’ and directing that all shares of stock in

B&D Corporation, Educational Books, Inc., Marlboro News,

Home Video Sales, Inc., and Video Shop, Ltd., be forfeited,

together with corporate assets, certain real estate and motor vehi-

cles (A-8-9). That verdict prompted the trial court's immediate

issuance of an order of forfeiture and the Government thereafter

padlocked the doors of the three bookstores and the nine video

rental shops.”

The Fourth Circuit affirmed the convictions and the order of

forfeiture, ruling that the ‘constitutionality of criminal sanctions

against those who distribute obscene materials is well estab-

lished” (A-10) and that neither the forfeiture of businesses

engaged in the sale of presumptively protected First Amendment

material, nor the inclusion of obscenity as a RICO predicate

offense. implicates either the First or Eighth Amendments to the

United States Constitution.

> Additionally, Dennis Prvba was sentenced to a term of three years on Count |

and terms of ten years on Counts II and III. The sentences on Count II and

Il] were suspended. and on those two counts, Pryba was sentenced to five

years probation to begin after his sentence of imprisonment. On Counts IV

through X, he was sentenced to concurrent terms of five years of probation on

each count to run concurrently with the sentences on Counts II and III. Pryba

was also fined $75,000 on Count II.

Barbara Prvba was sentenced to suspended terms of three years each on

Counts I II, IV, V, VI, VII, VIII, LX and X and a suspended term of ien

years on Count III. She was sentenced to concurrent terms of three years pro-

bation on all counts and fined a sum of $200,000 on Count III.

Educational Books, Inc. was sentenced to pay fines of $100,000 each on

Counts I and III.

Jennifer Williams was sentenced to concurrent terms of three years on

Counts If through X. The sentences were suspended and Williams was sen-

tenced to concurrent terms of probation of three vears on each of those counts.

Additionally. Williams was fined the sum of $250 on each of said counts for a

total of $2,250.

REASONS FOR GRANTING THE WRIT

POINT I

THIS CASE IS THE FIRST TO RAISE THE

QUESTION OF WHETHER POST-TRIAL

FORFEITURE UNDER 18 U.S.C. §1961 ET SEQ.

(RICO), IS PERMISSIBLE UNDER THE FIRST

AMENDMENT TO THE UNITED STATES

CONSTITUTION

The practical and legal essence of this case lies in the fact that

the sale of $105.30 worth of magazines and tapes found obscene

has resulted in the forfeiture of three bookstores and nine video

rental shops. The imposition of that sanction (which included,

additionally, the forfeiture of all the remaining Pryba assets, with

the exception of Barbara Pryba’s home and automobile) (A-164),

was by no means anomalous under 18 U.S.C. § 1963. Rather,

that provision authorizes the Government to take and liquidate,

not merely assets traceable to the obscenity but rather, any inter-

est or property ‘constituting or derived from any proceeds which

the person obtained, directly or indirectly, from racketeering

activity.” 18 U.S.C. § 1963.

Stated at its simplest, the use of obscenity as a predicate offense

unde: ‘he federal RICO statute will seriously hinder, if not oblit-

erate altogether, the viability of businesses which are presump-

tively protected under the First Amendment to the United States

Constitution. That foreseeably direct and dire consequence

stands as an affront to the First Amendment and generates a host

of practical questions as well; for those who operate the businesses

affected, those who would prosecute them and finally, for the

courts which are entrusted with the resolution of yet another facet

of this “intractable problem of obscenity.” Interstate Circuit v.

Dallas, 390 U.S. 676, 704 (1968) (separate opinion).

The issues which are discussed in these pages are novel in that

they have not appeared in the context of a post-trial RICO forfeit-

ure. But recent cases of this Court have resolved related issues

and have given intimations of questions to come, questions which

arise in the tangible and undisputed factual context of this case.

Mention of those cases highlights the appropriateness of a grant

of certiorari herein.

In Fort Wayne Books, Inc. v. Indiana, U.S. , 109

S.Ct. 916 (1989), this Court held that Indiana's RICO statute®

permitting the pre-trial seizure of material presumptively pro-

tected under the First Amendment, was a constitutionally unten-

able prior restraint, imposed without a final judicial

determination of the materials’ obscenity: “Valid grounds for sei-

zure is insufficient to interrupt the sale of presumptively protected

books and films.” Id. at 929.

Although the Court was urged to further determine whether a

post-trial forfeiture was likewise unconstitutional, it declined to

do so since there had been no post-trial forfeiture in Fort Wayne or

its companiou case, Sappenfeld v. Indiana. Id. at 928, fn.11. Jus-

tices Stevens, Brennan and Marshall, however, demurred; stating

that they would extend the Court’s holding to prohibit post-trial

forfeitures ‘‘based on nothing more than a ‘pattern’ of obscenity

misdemeanors.” Id. at 939 (Stevens, J., dissenting in no. 87-614

and concurring in part and dissenting in part in no. 87-470).

Petitioners seek a grant of certiorari in United States v. Pryba,

__F.2d___ _ (4th Cir. 1990) (reproduced herein at A-1-26), since

this case does squarely pose the question of whether the post-trial

forfeiture of bookstores and their inventories, solely on the basis

3 See, Ind. Code § 34-4 — 30.5-3(b) (1982).

ee

of a pattern of past obscenity convictions, withstands constitu-

tional scrutiny. Fort Wayne Books, Inc. v. Indiana, 109 S.Ct. at

938, fn.26.

Pryba is the first case prosecuted under the Federal Racketeer-

ing Influenced and Corrupt Organizations Act (RICO, 18 U.S.C.

$§ 1961 et seq.), where the only predicate convictions were for

crimes of obscenity.* The Court's determination of the validity of

post-judgment forfeiture in this case will have enormous impact

upon the future of RICO obscenity prosecutions, both state and

federal.°

RICO provisions, in general, were drafted in order to provide

prosecutors with ‘drastic methods” of curtailing undesirable

criminal activity. Russello v. United States, 464 U.S. 16, 26-29

(1983); United States v. Turkette, 452 U.S. 576, 586-593 (1981).

When, in 1984, obscenity was added to the list of predicate

offenses, prosecutors were handed a potent new means of attack-

ing obscenity and pornography and they vowed a commitment to

employ the RICO obscenity legislation to the fullest.° Their use of

post-trial forfeiture as their most effective means of reaching

obscenity (and the presumptively protected as well) has been vali-

dated by the Fourth Circuit in United States v. Pryba, and thus,

this Court's review of that decision and its analysis of the myriad

+ In 1984, the list of RICO predicate offenses was expanded to include obscen-

ity. See, 18 U.S.C. § 1961(1).

> As noted in Fort Wayne Books, 109 S.Ct. 916, several states have followed the

lead of Congress in including obscenity as a predicate offense under their state

RICO statutes. See, e.g., Ariz. Rev. Stat. Ann. § 13-239] (1989); Cal. Penal

Code § 186.2(a20) (Deering Supp. 1989); Conn. Gen. Stat. § 53-394 (1989);

Ga. Code Ann. § 16-14-3(9 A) xiii) (Supp. 1989); Ind. Code Ann.

§ 35-45-4-1 (Burns 1985). These states also permit post-trial forfeitures of

property. See, Ariz. Rev. Stat. Ann. §§ 13-2313-13-2314 (1989); Cal. Penal

Code § 186.3 (Deering 1985); Conn. Gen. Stat. Ann. § 53-397 (1989); Ga.

Code Ann. § 16-14-7 (1988); Ind. Code Ann. § 34-4-30.5-2 (Burns 1986).

© See, for example, New York Times, January 12, 1988, Col. 1, Justice Depart-

ment plans to front a new assault on obscenity via the federal RICO statute.

constitutional ramifications will have a substantial, concrete

impact on the proper application of RICO to obscenity law and

First Amendment precedent in general.

At present, the courts have come to no consensus regarding the

validity of post-trial forfeiture. In Western Business Systems,

Inc. v. Slaton, 492 F.Supp. 513 (N.D. Ga. 1980), the court

upheld the Georgia RICO forfeiture statute noting (as did the

Fourth Circuit in Pryba) that the forfeiture is unrelated to the

expressive nature of books and magazines but occurs because

they are items derived from crime, no matter how indirectly.

In contrast stands Arizona v. Feld, 155 Ariz. 88, 745 P.2d 146,

154-155 (Ariz. App. 1987), cert. denied, 485 U.S. 977 (1988).

Writing that forfeiture provisions predicated upon an obscenity

conviction were constitutionally permissible if they extended only

to assets which were the “‘ill-gotten gains’ of the racketeering

activity, the Court held that any further stricture upon a defend-

ant’s assets would “restrict future, presumptively protected

speech, rather than [punish] the distribution of unprotected

speech in the past.” Still other courts have opted to by-pass the

question altogether (see, e.g., Alexander v. Thornburg, 713 F.

Supp. 1278, 1294 (D. Minn. 1989), which further suggests that

certiorari review is appropriate at this juncture.

The Court's grant of certiorari would also necessarily clarify

the scope and proper application of the ruling in Arcara v. Cloud

Books, Inc., 478 U.S. 697 (1986). In Arcara, this Court deter-

mined that the one-year closure of a bookstore, based upon a past

finding of criminal conduct, did not constitute a prior restraint of

the sale and distribution of non-obscene materials. The Court

said: “The legislation [New York’s Nuisance and Abatement

Statute, New York Public Health Law, § 2330 et seq.| providing

the closure sanction was directed at unlawful conduct having

nothing to do with books or other expressive activity.” Id. at 707

(but see, concurring opinion of O’Connor, J., in Arcara v. Cloud

9

Books, 478 U.S. at 707, use of statute as pretext for suppressing

indecent books requires analysis under the appropriate First

Amendment standard of review).

United States v. Pryba, in contrast, does concern legislation

specifically directed towards books and theaters — forms of

expression which unequivocally enjoy the encircling mantel of

First Amendment protections. Thus, despite the ruling below.

petitioners contend that the First Amendment is implicated in

this case in a way that it was not in Arcara and that it remains for

this Court to illuminate the exact nature of the intersection

between the Constitution and post-trial forfeiture and the proper

mode of analysis to be applied.

Petitioners believe that because the legislation is so directly

related to the regulation of pure speech, the validity of any restric-

tion on that speech must be measured by the most stringent stand-

ards. See, Bates v. Little Rock, 361 U.S. 516, 524 (1960)

(“‘[w]here there is a significant encroachment upon personal lib-

erty, the State may prevail only upon showing a subordinating

interest which is compelling”’). In adding obscenity to a statutory

framework for the very purpose of employing forfeiture as a

means of suppressing obscenity (the supposed handmaiden of

organized crime), Congress also is directly (not incidentally) regu-

lating one of society's most precious commodities: the written

word. To seek to eradicate obscenity by means of forfeiture is to

make a conscious decision to permanently suppress books and

movies which are undeniably protected by the First Amendment.

The legislative decision to take that ominous step demands the

forceful response that this Court has historically made when First

Amendment freedoms are directly jeopardized by a governmental

body: “regulatory measures ... no matter how sophisticated, can-

not be employed in purpose or in effect to stifle, penalize, or curb

the exercise of First Amendment rights.’ Louisiana ex rel Gremil-

lion v. NAACP, 366 U.S. 293, 297 (1961).

10

In Arcara v. Cloud Books, 478 U.S. 697, this Court held that

First Amendment scrutiny would be applied to a statute regulat-

ing conduct which had an expressive element or to statutes which,

although having no such expressive element “impose({d] a dispro-

portionate burden on those engaged in protected First Amend-

ment activities.” Jd. at 704. Relying upon that rationale, the

Fourth Circuit, in Pryba, predicated its decision upon the fact

- that because obscenity is itself a crime, the contours of the punish-

ment imposed for the criminal activity need not be tested by First

Amendment standards. The Court said: “there is nothing so unu-

sual about obscenity convictions that they may not be used as

RICO predicate offenses. There is no constitutional protection

for materials adjudged to be obscene” (A-10).

Although obscenity itself is a crime, a past finding of obscenity

has never, in this Court's view, justified a ban on further commu-

nicative offerings on the basis of that past obscenity. Thus, in

Vance v. Universal Amusement Co., Inc., 445 U.S. 308 (1980),

the Court declared that the closure of a motion picture theater on

the ground that the theater had, in the past. shown obscene films,

created an unconstitutional prior restraint “of indefinite duration

on the exhibition of motion pictures that have not been finally

adjudicated to be obscene.” Id. at 309.

Should the Court, however, find that the criminal conviction of

obscenity removes the Pryba case from the Vance paradigm, a

question still arises as to whether the First Amendment is not

implicated either by virtue of the fact that the conduct sought to

be regulated has an express:ve element (triggering a variant of the

test of United States v. O’Brien, 391 U.S. 367 (1968)), or, because

the statute imposes a disproportionate burden on those engaged

in First Amendment activities. In Minneapolis Star and Tribune

Co. v. Minneapolis Commissioner of Revenue, 460 U.S. 575

(1983), the Court ruled that even when legislation is not directed

towards speech or activity with an expressive element, the First

ae

L]

Amendment is drawn into play where that legislation has the inev-

itable effect of imposing its burden upon those, such as the peti-

tioners in this case, whose very businesses, by virtue of the books

and magazines sold therein, receive special protections under the

First Amendment. Fort Wayne Books v. Indiana, 107 S.Ct. 916,

and Arcara v. Cloud Books, 478 U.S. 697, each — the first.

directly; the second, by implication — leave open the question of

how the First Amendment is affected by application of RICO for-

feiture to obscenity. The inevitable tension between the Constitu-

tional guarantees and the organized crime statute poses practical

and legal problems which are presented in tangible form in this

case. The grant of certiorari would, therefore, be appropriate.

POINT I

REFUSAL TO GRANT CERTIORARI WILL BE

TAKEN AS TACIT APPROVAL OF A DECISION

WHICH PERMITS THE IMPOSITION OF A

PRIOR RESTRAINT UPON PROTECTED

EXPRESSION

Although a denial of certiorari cannot be deemed a decision on

the merits, United States v. Carver, 260 U.S. 482, 490 (1923). it is

generally construed as approval of the decision below. See, e.z..

Simmons v. Union News Co. , 382 U.S. 884, 886 (1965) (Black, J..

dissenting from denial of certiorari). The repercussions of such a

denial in this case would dismantle, without benefit of any expla-

nation, the body of obscenity jurisprudence which the Supreme

Court has so painstakingly crafted.

If post-judgment forfeitures are permitted upon the basis of

obscenity convictions, prosecutors will have achieved a conven-

ient method by which to rid society of all that it deems undesir-

able: the sexually explicit as well as the obscene. The

constitutional pitfall of that endeavor, however, is that this Court

has stated repeatedly that, while obscenity itself is not entitled to

the protections of the First Amendment, sex and obscenity are net

synonymous and the former, a topic of universal interest and con-

cern, cannot be restricted under the guise of repressing the

obscene:

The door barring federal and state intrusion into this area

cannot be left ajar; it must be kept tightly closed and opened

only the slightest crack necessary to prevent encroachment

upon more important interests. It is therefore vital that the

standards for judging obscenity safeguard the protections of

freedom of speech and press for material which does not

treat sex in a manner appealing to prurient interest.

Roth v. United States, 354 U.S. 476, 488 (1957).

The Court's continued recognition that the sexually explicit

must not be confused with the legally obscene has led to its caveat

that the separation of one from the other necessitates the employ-

ment of sensitive tools, Speiser v. Randall, 357 U.S. 513, 525

(1958), and its exhortation to the courts that “‘a state is not free to

adopt whatever procedures it pleases for dealing with obscenity

without regard to the possible consequences for constitutionally

protected speech.” Marcus v. Search Warrants of Property, 367

U.S. 717, 731 (1961).

In Marcus v. Search Warrants of Property, the Court invali-

dated state statutory procedures permitting the pre-trial seizure of

material thought to be obscene on the strength of the conclusory

assertions of a single police officer. In condemning this process.

which resulted in the seizure of thousands of copies of presump-

i eemennmnnnneel

13

tively protected material, the Court reasoned that, for purposes of

search and seizure, obscenity was not the equivalent of gambling

paraphernalia or other contraband and could not be treated as

such. Id. at 730.

While, admittedly, Marcus concerned a pre-trial seizure, the

essence of the Court's holding was its fear that, absent procedures

designed to “focus searchingly’’ on the question of obscenity, the

non-obscene would be suppressed along with publications ulti-

mately determined to be illegal. “Procedures which sweep so

broadly and with so little discrimination are obviously deficient in

techniques required by the Due Process Clause of the Fourteenth

Amendment to prevent erosion of the constitutional guarantees.’

Marcus v. Search Warrants of Property, 367 U.S. at 733.

Should this Court allow the decision below to stand, on the

ground that forfeiture is a legitimate criminal sanction imposed

upon conviction, the essence of eavh of the precedents noted

above would be negated. The starting point of obscenity law has

been the recognition that whatever the basis for the regulation, '

great care must be used in structuring the processes so that books

or magazines, movies or videos will not be banned because of the

censor s fervid belief that they undermine our morals. Surely the

breadth and substance of that principal should not be diminished

by a ruling that permits the destruction of books because a shop-

keeper has been found guilty of past obscenity convictions.

This Court has beer: loathe to reject its constant and terrible

burden of defining obscenity with care and precision and of

applying that definition to the masses of material pressed upon

the Court. “Such an abnegation of judicial supervision in this

Be it that of the zoning power, City of Renton v. Playtime Theatres. Inc.. 475

U.S. 41 (1986); the penal statute. Miller v. California, 413 U.S. 15 (1973): or

the administrative licensor, Southeastern Promotions v. Conrad. 420 U.S. 4]

1O75)

14

field would be inconsistent with our duty to uphold the constitu-

tional guarantees.” Jacobellis v. Ohio, 378 U.S. 184, 187-188

(1964) (opinion of Brennan, J.). Petitioners submit that a refusal

to accept this case for review would be a similar derogation of duty

when the ruling below stands as an affront to perhaps the most

prized of our constitutional guarantees, a freedom of expression,

which, while not boundless, is not prematurely and unduly sti-

fled.

POINT Il

_THE DECISION BELOW AUTHORIZES THE

IMPOSITION OF A PRIOR RESTRAINT OR,

ALTERNATIVELY, AN OVERLY BROAD AND

UNCONSTITUTIONAL SUBSEQUENT

PUNISHMENT

A. Prior Restraint.

In Arcara v. Cloud Books, this Court held that the State's one-

year closure of the bookstore would not be a prior restraint since:

(1) the closure would not prevent the sale of the material at

another location; and (2) the closure was not being sought “on the

basis of an advance determination that the distribution of particu-

lar materials is prohibited — indeed, the imposition of the closure

order has nothing to do with any expressive conduct at all.”

Arcara, 478 U.S. at 706, n.2.

This case stands in contrast to Arcara in that both indicia of a

prior restraint are present. As note j earlier, the legislative deci-

sion to debilitate organized crime through its alleged connection

to obscenity was also a deliberate decision to substantially restrict

free expression. The decision to prosecute obscenity under a stat-

ute mandating forfeiture of the defendant's assets, which presum-

—_ — ~— 2 -eeipe

ably would usually include bookstores,’ was also a decision

directly affecting the sale and availability of materials protected

under the First Amendment. As such, post-trial forfeiture predi-

cated upon an obscenity conviction is indubitably legislation inti-

mately related to the regulation of free expression.

That the situation of obscenity within the RICO construct

bespeaks a deliberate legislative indifference to the fate of consti-

tutionally safeguarded materials is also reflected in the statements

of Senator Jesse Helms, sponsor of the legislation.’ In seeking the

inclusion of obscenity into RICO, Senator Helms revealed clearly

that he was concerned not only with the symbiosis between pur-

veyors of obscenity and organized crime; but also that he sup-

ported the legislation’s passage because of its moral component.

Helms stated:

In essence, pornography degrades the dignity and worth of

human beings by presenting a false picture of human sexual-

ity. It holds sexuality out as an end in itself, totally removed

from its proper and normal place as a means in marriage for

conjugal love and the procreation of children. Pornography

demans because it rejects the true meaning of sexuality.

130 Cong. Rec. 433 (January 30, 1984).

It is evident that, if this legislation was not passed specifically

for the purpose of removing the sexually explicit but non-obscene.

the fact that closure of adult bookstores would inevitably follow

was deemed a salutary by-product of the statutory scheme.

8 See, Fort Wayne Books, Inc. v. Indiana, 109 $.Ct. at 937 (Stevens, J.. dissent

ing in no. 87-614 and concurring in part and dissenting in part in no. 87-470).

noting that “the enforcement of Indiana's RICO/CRRA statutes has been

primarily directed at adult bookstores.”

' While the legislative purpose of a statute may. perhaps, not be assumed from

the statements of a supporter, surely it is proper to consider those statements as

positing at least some of the foremost concerns and motivations standing

behind the legislation

16

Thus, this case is far different from Arcara where the nuisance

law did not have the direct and irrevocable consequence of fore-

closing the community from access to publications with both a

general and adult content. Here, the resulting forfeiture of mate-

rial protected under the First Amendment was not incidental to

the legislation but a directly identifiable consequence of it.

Nor, for purposes of analyzing the issue of prior restraint, does

it matter that the restraint occurs after an obscenity conviction

and without the issuance of any injunction or order actually sup-

pressing that which has not been determined obscene. A prior

restraint can result from an informal system of censorship as well

as from a tangible injunction or order.

In Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1968), there

was no actual suppression of speech prior to its publication or dis-

semination. Rather, the “Rhode Island Commission to Encour-

age Morality in Youth” informally encouraged book sellers to

remove certain objectionable volumes from their shelves if they

did not wish the Commission to attempt to initiate obscenity pros-

ecutions. The Supreme Court held the activities of the Commis-

sion unconstitutional.

Although recognizing that the Commission was not actually

suppressing or regulatin~ obscenity, the Court ruled that, never-

theless, the Commission was guilty of an informal method of cen-

sorship:

‘We are not the first court to look through forms to the sub-

stance and recognize that informal censorship may suffi-

, ciently inhibit the circulation of publications to warrant

injunctive relief.”

Id. at 67.

Petitioners submit that an equivalent type of informal censor-

ship occurs when post-trial forfeiture is permitted. Few book

sellers will have either the temerity or the fiscal resources to face a

RICO indictment when the result may mean complete and final

closure of their businesses. The chilling effect is far more onerous

than that sanctioned by this Court in past cases. '° The difference

is in the type and degree of punishment imposed. While, of

course, all criminal obscenity penalties will have an inhibitory

effect on the distribution of protected material, the forfeiture of a

business and its assets constitutes the most extreme form of sup-

pression, both because of the final dismantling of the store and

also, because the books themselves must be forfeited to the Gov-

ernment. Our right to buy and read what we wish (except for the

very narrow band of obscenity) is so precious and so firmly

entrenched in our concept of a free society, that a statute which

permits the Government to take and destroy what it concedes are

legal ana legitimate publications, must be deemed pernicious. It

is for that very reason that the concept of prior restraint remains

intrinsic to First Amendment law: ‘‘a free society prefers to pun-

ish the few who abuse rights of speech after they break the law

than to throttle them and all others beforehand.” Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546, 559 (1975).

The forfeiture provisions of 18 U.S.C. § 1963(a) are also distin-

guishable from the closure in Arcara because. in that case. the

book seller remained free to continue his business at another loca-

tion. Conversely, the federal forfeiture statute does not operate as

simply a closure of the locus of the bookstore — instead, it necessi-

tates the sale of the building, destruction (or at least transfer to the

For instance, Smith v. United States, 43) U.S. 291. 296. n.3 (1977) (5-vear

prison term and $5,000 fine for first offense; 10-year term and $10.000 fine for

each subsequent offense); Ginzburg v. United States, 383 U.S. 463. 464-465

n.2 (1966) (5-year prison term and $5.000 fine)

Government) of the assets of the physical plant, including the pre-

sumptively protected material and the actual hardware, cash reg-

isters and the like.

In Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981),

the local government forbade live entertainment within the bor-

ough. The Court held that although the zoning power is

‘undoubtedly broad,” it still must be exercised within constitu-

tional limits and thus, could not legitimately infringe upon pro-

tected First Amendment activity unless its regulations were

narrowly drawn and furthered sufficiently substantial Govern-

ment interests. /d. at 68. Because the prohibition against any live

entertainment was neither a minimal nor incidental burden on

First Amendment values, the Court overturned it.

So, too, in this case, RICO forfeiture imposes an inordinately

heavy burden on free expression. Moreover, a primary effect of

the legislation will be the virtual disappearance of adult book-

stores which provide a form of entertainment which not only

receives the full protection of the First Amendment, see.

Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), but also is

in some demand by the general public. See, Fort Wayne Books v.

Indiana, 109 S.Ct. at 936, n.21 (Stevens, J.}.

Given that the penal statute at hand was drafted in order to reg-

ulate obscenity and given its deleterious effect on the dissemina-

tion and distribution of protected materials, petitioners submit

that a prior restraint has been effected and implore this Court to

grant certiorari in order to review and hopefully, obviate that

result.

B. Subsequent Punishment.

Shouid this Court be of the view that no prior restraint results

from imposition of forfeiture subsequent to an obscenity convic-

tion, it still remains to be considered whether the punishment of

19

forfeiture is not itself an unconstitutional and overly broad

response to the fight against organized crime/obscenity.

Despite the Fourth Circuit's holding that the First Amendment

was not implicated since the defendant had been afforded full due

process rights at a criminal trial, this Court has ruled explicitly

that:

“First Amendment protection reaches beyond prior

restraints” (Smith v. Daily Mail Publishing Co., 443 U.S.

97, 101 (1979)), and that:

“Even when a state attempts to punish a publication after

the event it must nevertheless demonstrate that its puni-

tive action was necessary to further the state interests

asserted.” Id. at 102, citing Landmark Communications,

Inc. v. Virginia, 435 U.S. 829, 843 (1978).

Given those precepts, if the case at bar is deemed entirely out-

side the realm of prior restraint, petitioners ask the Supreme

Court to grant the writ of certiorari in order to assess whether

post-trial forfeiture can ever comport with First Amendment doc-

trine, whether the Government's interests in suppressing orga-

nized crime are sufficiently furthered by forfeiture, and finally,

whether the means chosen to advance those interests are narrowly

enough drawn to satisfy the demands of the Constitution.

The breadth of the forfeiture statute is underscored by its very

language which demands the forfeiture of any interest in any

enterprise established in violation of 18 U.S.C. § 1962 as well as

any property constituting or derived from any direct or indirect

proceeds obtained from racketeering activity.

The amorphous quality of that language precludes a finding

that the legislation was narrowly tailored to meet First Amend-

ment concerns. On a practical level, it means that once the Gov-

ernment secures its two obscenity convictions (perhaps based on

20

facts as essentially innocuous as the sale of two copies of a hard

core magazine), the business concern selling those magazines

(again, quite possibly the general corner store or bookstore

chain), will be padlocked and the books and expressive materials

contained therein transferred to the Government. That result is

not unlikely under the RICO legislation and the probability of its

occurrence, as well as its horrific scope, should demand this

Court's attention. For despite all protestations that the statute is

constitutional as a criminal penalty, one which will be utilized in

even-handed fashion and with discretion, this Court has always

eschewed facile labels as a means of constitutional analysis. ‘As

far back as the decision in Near v. Minnesota ex rel. Olson, 283

U.S. 697, 720-721 (1931), this Court has recognized that the way

in which a restraint on speech is ‘characterized’ under state law is

of little consequence.” Fort Wayne Books, Inc. v. Indiana, 109

S.Ct. at 929. An unlawful prior restraint cannot escape constitu-

tional analysis merely by recharacterization of the restraint as a

sanction for a pattern of racketeering activity.

Thus, while conceivably the statute will have some efficacy in

deterring obscenity, whether or not connected to organized crime,

petitioners submit that it cannot pass constitutional muster when

the deleterious ‘‘operation and effect,”’ of the statute (in this case

the closure of nine video rental stores and three bookstores) so

heavily outweighs the Government’s interests asserted. As

stressed by this Court in NAACP v. Button, 371 U.S. 415, 433

(1963), the danger of overbroad legislation is its “susceptibility to

sweeping and improper application.’’ Because the penal sanction

under review seeks to control organized crime through the whole-

sale suppression of expression, its viability raises significant con-

stitutional questions of overbreadth, questions which should be

resolved by this Court.

eneereiennnieneel

2]

POINT IV

THERE IS A DIRECT CONFLICT AMONG THE

CIRCUITS AS TO WHETHER THE EIGHTH

AMENDMENT REQUIRES A

PROPORTIONALITY REVIEW OF THE

FORFEITURE OF A DEFENDANT'S

INTEREST IN A RICO ENTERPRISE

The Eighth Amendment guarantees that punishment will be

proportionate to the crime of which a defendant has been con-

victed. Solem v. Helm, 463 U.S. 277 (1983). However, the Fourth

Circuit has ruled that the Eighth Amendment does not reauire a

proportionality review of any sentence less than life imprisonment

without the possibility of parole. United States v. Pryba (A-18);

United States v. Whitehead, 849 F.2d 849, 860 (4th Cir. 1988);

United States v. Rhodes, 779 F.2d 1019, 1027-28 (4th Cir. 1985),

cert. denied, 476 U.S. 1182 (1986).

Thus, although the petitioners in the instant case argued to the

District Court and the Court of Appeals that the forfeiture sought

was disproportionaie to the crime in that the income derived from

the alleged pattern of racketeering activity amounted to only an

infinitesimal percentage of petitioners’ legitimate incoime, both

courts declined to conduct a proportionality review (A-18).

In direct conflict with this position, the Ninth Circuit has held

that where a plaintiff makes a prima facie showing that forfeiture

may be excessive, the district court must make a determination

that the interest ordered forfeited is not so grossly disproportion-

ate to the offense committed as to violate the Eighth Amendment.

See, United States v. Busher, 817 F.2d 1409 (9th Cir. 1987); and

see, United States v. Horak, 833 F.2d 1235, 1251 (7th Cir. 1987)

and, United States v. Walsh, 700 F.2d 846, 857 (2d Cir. 1983).

29

The Fourth Circuit, however, has reasoned that since in a

RICO case the magnitude of the forfeiture is directly keyed to

“the magnitude of the defendant’s interest in the enterprise con-

ducted in violation of the law,” forfeiture under § 1963 is per se

proportional. United States v. Grande, 620 F.2d 1026 (4th Cir.)

cert. denied, 449 U.S. 830, and, 449 U.S. 919 (1988). The Ninth

Circuit, in particular, has rejected that rationale as noted in this

excerpt:

The Fourth Circuit misapplied the eighth amendment's

requirement of proportionality. That the statute ties the

amount forfeited to a defendant's stake in an enterprise that

violated the law merely states the issue. As we have previ-

ously noted, RICO’s impressive breadth, and the interplay

of its subsiantive and punitive provisions, may result in for-

feitures of vast amounts of property as a result of relatively

minor offenses. In any one case the amount forfeited may |

have no relationship whatsoever to the severity of the wrong

committed. |

United States v. Busher, 817 F.2d at 1414-1415. n.9. |

The disagreement between these judicial camps on a novel

issue with significant constitutional overtones should, petitioners

submit, compel this Court's review.

23

POINT V

THIS COURT'S GUIDANCE REGARDING THE

ADMISSIBILITY OF EXPERT TESTIMONY IS

NEEDED TO RESOLVE CONFLICTS AMONG

THE LOWER COURTS

A. Public Opinion Polls

The defense in this case proffered an expert to testify as to the

results of a public opinion poll conducted for this case.'' Although

the lower court did not find error in the methodology used to con-

duct the poll, it excluded the results upon its determination that

the questions (1) were not relevant, and (2) did not completely

cover the content of the materials on trial.

The questions set forth in the survey were nearly identical to

those used across the nation. However, state and federal courts

have reached different conclusions as to the admissibility of these

surveys. For example, in People v. Nelson, 410 N.E.2d 476;

Saliba v. State, 475 N.E.2d 1181; and Carlock v. State, 609

S.W.2d 787 (Tex. Crim. App. 1980), the courts admitted survey

questions and results nearly identical to those posed here. On the

other hand, the courts in State v. Anderson, 366 S.E.2d 459;

Flynt v. State, 264 S.E.2d 669; People v. Thomas, 37 Ill. App. 3d

320, 346 N.E.2d 190 (1976), and the lower court here, ruled simi-

\| The survey questions asked were:

(1) whether he/she thought that the portrayal of ‘nudity and sex’ and

materials available to adults only had »ecome more or less acceptable

in recent years;

(2) whether he/she agreed or disagreed with the statement that adults who

want to should be able to obtain and view materials depicting ‘nudity

and sex;"

(3) whether he/she believed that he should be able to buy or rent materials

depicting “nudity and sex; and

(4) whether he/she agreed or disagreed with the statement that adults who

want to should not be able to buy or rent materials depicting “nudity

and sex.

24

lar questions and results inadmissible. These conflicting deci-

sions result from court confusion regarding contemporary

community standards and how they are gauged and thus, the

assistance of this Court is sought.

B. Comparable Materials

The court in Womack v. United States, 294 F.2d 204 (D.C.

Cir.) cert. denied, 365 U.S. 859 (1961), introduced the concept

that the existence of comparable materials may be relevant to a

showing that works are acceptable in the community. Since the

1961 Womack decision, numerous courts have faced the issue of

whether certain comparable materials are admissible in an

obscenity prosecution. The result is that:

There has been a considerable amount of confusion in the

courts as to the admissibility and function of comparison 2vi-

dence in obscenity cases. Some jurisdictions have held it

reversible error to reject such evidence, while others exclude

it rather summarily.

United States v. Womack, 166 U.S. App. D.C. 35, 41, 509 F.2d

368, 374 (D.C. Cir. 1974), cert. denied, 422 U.S. 1022 (1975):

comparing, Woodruff v. State, 11 Md. App. 202, 273 A.D.2d 436

(1971); [and] Yudkin v. State, 229 Md. 223, 182 A.D.2d 798

(1962); In re Harris, 3 Cal. 2d 879, 366 P.2d 305 (1961) with.

State v. Jungclaus, 176 Neb. 641, 126 N.W.2d 858 (1964): land]

People v. Finkelstein, 11 N.Y.2d 300, 183 N.E.2d 661 (1961 I;

and in the federal courts comparing, Kahm v. United States, 300

F.2d 78, 84 (Sth Cir. 1962) with Miller v. United States, 431 F.2d

655, 659 (9th Cir. 1970); and, see, United States v. Pinkus, 57

F.2d 1174, 1175 (9th Cir. 1978) (“The admissibility of ‘compara-

bles’ in obscenity prosecutions has been a subject of confusion.’

In addition to confusion on the threshold question of admissi-

bility of comparable material evidence, disputes have also arisen

as to the foundational basis required for admission of such evi-

dence. Specifically, various lower courts have seized on the words

of this Court in Hamling v. United States, 418 U.S. 87, 125

(1974), that “availability of similar material ... does not automati-

cally make [it] admissible.” Other courts have recognized that

widespread community availability may be accepted as circum-

stantial evidence of contemporary community standards. See.

e.g., United States v. 2,200 Paper Back Books, 565 F.2d 566, 571

(9th Cir. 1977); Keller v. State, 606 S. W.2d 931 , 933-934 (Tex. Cr.

App. 1980); United States v. Various Articles of Obscene Mer-

chandise. Schedule No. 2102, 709 F.2d 132, 137 (2d Cir. 1983).

In the case at bar, the defense offered the testimony of an expert

who had purchased many sexually explicit magazines and video-

tapes (comparable to those charged in this case) from diverse loca-

tions throughout the District, including general bookstores.

drugstores, news stands, grocery stores, and candy and gift shops.

Based on his extensive study, the defense attempted to introduce

the comparable materials so purchased. In excluding the evi-

dence, the trial court complained that the information ‘although

perhaps reflecting availability of the materials surveyed, fails to

evidence community acceptance” (A-110). In so doing, the court

ignored clear precedent establishing that widespread community

availability is probative of community acceptance.

C. Ethnographic Study

In a further attempt to educate the jury as to contemporary

community standards, the defense wished to present the testi-

mony of Dr. Joseph Scott, a sociologist, criminologist and associ-

ate professor at Ohio State University with a background in

statistical methodology. He had conducted an ethnographic study

of the attitudes of the relevant adult community toward sexually

explicit material. An ethnographic study was described as a rec-

ognized methodology for making a qualitative assessment of com-

munity standards in a given area.

During the course of his ethnographic study, Dr. Scott visited

+9 video stores to determine the pervasiveness of sexuallv explicit

magazines and books; interviewed proprietors of these establish-

ments to determine the acceptability of the materials and spoke

with the editors of 17 newspapers and other publications concern-

ing complaints about obscenity or pornography during the year

prior to trial. The information gathered reflected the acceptable

nature of sexually explicit materials in the relevant geographic

area.

The judicial confusion regarding availability versus acceptabil-

ity of sexually explicit materials detailed in Point V, Sub. B.

supra, resulted in the exclusion of this expert's valuable informa-

tion. The lower court again failed to recognize that Lody of case

law which acknowledges that widespread community availability

is probative of community acceptance and petitioners thus ask the

Court to review this question.

POINT VI

CONFUSION ABOUNDS AS TO WHETHER

CONTEMPORARY COMMUNITY STANDARDS

ARE TO BE MEASURED BY AN ACCEPTANCE

OR TOLERANCE STANDARD

A recurring argument in obscenity prosecution centers around

whether contemporary community standards are to be measured

by an acceptance standard or a tolerance standard. '? Defendants

invariably -ite to this Court's repeated use of the word, tolerance.

when describing contemporary community standards. See New

(2 The lower court here specifically charged the jury that “contemporary com-

munity standards are set by what is. in fact. accepted in the adult community

as a whole, and not by what the community merely tolerates. ...” (A-2]).

York v. Ferber. 458 U.S. 747. 761, n.12 (1982); Smith v. United

States. 431 U.S. 291. 305 (1977): Jacobellis v. Ohio, 378 U.S. at

194

However. the lower court held here, as have other courts, that

contemporary community standards are to be measured by what

is in fact accepted in the community as a whole and .ct what is

merely tolerated. See. e.g.. United States v. Battista, 646 F.2d

237. 245 (6th Cir.). cert. denied, 454 U.S. 1046 (1981), and.

Sedelbauer v. State. 428 N.E.2d 206, 210-211 (ind. 1981), cert

denied, 455 U.S. 1035 (1982)

[hese divergent views on a crucial issue which repeatedly sur-

faces in obscenity prosecutions requires resolution by this Court

s€

POINT Vil

4 CONFLICT EXISTS AMONG THE CIRCUITS

AS TO THE ELEMENTS OF 18 U.S.C. § 1962(d)

Petitioners were c« ynvicted of RICO conspiracy on the basis of

‘urv instructions which did not require that the jury find that peti-

tioners had personally agreed to commit two predicate acts in a

RICC context. The court in Uucted States v. Winter, 663 F.2d

1120 (1st Cir. 1981), cert. denied, 460 U.S. 1011 (1983), specrfi-

cally outlined the two predicate act issue as follows. Although

Section 1961(5) states that a “pattern of racketeering activity

requires at least two acts of racketeering activities:

The statute. however. does not make clear the extent of the

activity in which each defendant must engage to be culpable

as RICO conspirators: must each RICO conspiracy defend-

ant agree that someone in the enterprise will commit two

predicate crimes, must each member agree to commit two

28

such acts individually, or must each member actually com-

mit two such acts individually?

Id. at 1136.

In answering this question, the Circuits are cleariy divided.

The First Circuit in United States v. Winter, determined that pro-

tection to those who might otherwise be convicted through guilt

by association would be afforded by the minimum requirement

that each defendant be shown to have personally agreed to com-

mit two or more specified predicate crimes. Similarly, the Second

Circuit required proof that the defendant, himself, at least agreed

to commit two or more predicate crimes. United States v. Rug-

giero, 726 F.2d 913 (2d Cir.), cert. denied sub nom, Rabito v.

United States, 469 U.S. 831 (1984).

Other courts have required only that each defendant agree that

members of the conspiracy will violate RICO through the com-

mission of two prescribed acts. See, United States v. Leisure, 844

F.2d 1347, 1367 (8th Cir. }, cert. denied, U.S.___., 109 §.Ct.

324 (1988); United States v. Joseph, 781 F.2d 549, 554 (6th Cir.

1986); United States v. Neapolitan, 791 F.2d 489, 491 (7th Cir.).

cert. denied, 479 U.S. 940 (1986); United States v. Adams, 759

F.2d 1099, 1116, cert. denied, 474 U.S. 971 (1985); United States

v. Tille, 729 F.2d 615, 619 (9th Cir. 1984), cert. denied, 469 U.S.

845 (1984); United States v. Carter, 721 F.2d 1514, 1528 (11th

Cir. 1984).

The Fourth Circuit has joined the ranks of the latter courts (A-

24). Resolution of the conflict among the Circuits will avoid its

inevitable recurrence in all future RICO prosecutions.

”)

POINT VIII

THIS COURT HAS NOT DETERMINED IF

PRIOR STATE COURT CONVICTIONS ARE

ADMISSIBLE TO PROVE RICO PREDICATE

ACTS

No controlling authority exists to settle the question of whether

a prior state court conviction is admissible for purposes of proving

the predicate acts of racketeering activity necessary to establish a

RICO violation. Although the court below upheld the introduc-

tion of various state court convictions of petitioner Educational

Books. Inc.."* the legality of such action has not been considered

by this Court and is seemingly in direct conflict with dual sover-

eignty considerations.

Since the concept of dual sovereignty prohibits the use of state

acquittals in the federal context as a bar to prosecution, Bartkus

v. Illinois, 359 U.S. 121 (1959), this Court should rule, as the logi-

cal converse, that the government cannot prove predicate acts fox

purposes of a federal RICO conviction through state court judg

ments

The District Court's decision, referred to by the F ourth Circuit, rehed on tw«

rulings which upheld use of a defendant's state court plea in a later non-R1CO

federal prosecution, United States v. Andreadis, 366 F.2d 423 (2d Cir. 1966)

and United States v. Myers, 49 F.2d 230 (4th Cir. |, cert. denied, 283 U.S. 866

1931). and .wo decisions holding a prior tederal court conviction admissible

n another federal proceeding to establish a RICO predicate act United

States v. Erwin. 793 F.2d 656 (5th Cir. 1986); United States v. Persico, 62!

F.Supp. 842 (S.D.N.Y. 1985)

30

POINT IX

CONTRARY TO ESTABLISHED LAW, THE

COURT SEVERELY LIMITED VOIR DIRE

AND PREVENTED PROPER EXERCISE OF

DEFENDANT'S PREEMPTOR Y CHALLENGES

This Court has long recognized the right of preemptory chal-

lenges as “one of the most important rights secured to the

accused,” Pointer v. United States, 151 U.S. 396, 408 (1894). In

obscenity matters, the Court has specifically recognived that it is

helpful to know “how heavil, the juror has been involved in the

community. Smith v. United States, 431 U.S. at 308.

To this end, petitioners requested that the trial court question to

what community organizations, if any, the prospective jurors

belonged. Refusing this request, the trial court advised that, at

most. it would ask whether the prospective juror belonged to any

community organization (without requiring that they be listed) or

if s/he belonged to no community organizations. However, the

trial court in fact did not ask any such question, and its refusal to

do so severely impaired the defendants’ ability to exercise intelli-

gently their preemptory challenges. Review is therefore merited.

CONCLUSION

For the foregoing reasons, petitioners respectfully request that

the Court grant this petition for writ of certiorari.

Respectfully submitted,

PAUL JOHN CAMBRIA, JR., ESQ.

Counsel of Record

LIPSITZ, GREEN, FAHRINGER,

ROLL, SCHULLER & JAMES

42 Delaware Avenue, Suite 300

Buffalo, New York 14202-390]

(716) 849-1333

MARY GOOD, ESQ.

CHERIE L. PETERSON, ESQ.

of Counsel