Petition for Writ of Certiorari — Alexander v. United States

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No. , L OFFICE OF THE CLERK |

In The 3

Supreme Court of the United States

October Term, 1991

FERRIS J. ALEXANDER, SR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari To The

United States Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

JoHN H. Weston*

CatHy E. Crosson

G. RANDALL GarRROU

Ciype F. Dewnt

WeEsTON, SARNO, GARROU & Dewitt

433 N. Camden Drive, Suite 900

Beverly Hills, California 90210

(310) 550-7460

Attorneys for Petitioner

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-283

QUESTIONS PRESENTED

Does RICO forfeiture constitute a prior restraint of

the kind condemned in Near v. Minnesota, or other-

wise violate the First Amendment, when applied to

close a $25 million chain of bookstores, video stores,

and theaters, to confiscate all their property including

five years’ proceeds, and to burn their inventories,

solely on the basis of seven obscene videotapes and

magazines?

Does the forfeiture of a $25 million media business

along with a six-year prison term and fines in excess

of $200,000, all as punishment for seven obscene vid-

eotapes and magazines, violate the Eighth Amend-

ment?

LIST OF PARTIES

Petitioner Ferris J. Alexander, Sr. and the United

States of America as Respondent are the only parties to

this action. Former Attorney General Richard Thorn-

burgh, named in his official capacity as defendant in the

civil case consolidated below with this one on appeal,

was not a named party in the criminal case, United States

v. Alexander, wherein Petitioner now seeks this Court’s

review. Petitioner has separately notified this Court of his

belief that his co-defendants in the criminal trial below

(Delores Alexander and Jeffrey Alexander, who were

acquitted, and Wanda Magnuson), who did not pursue

this matter on appeal, no longer have an interest in the

outcome of this proceeding.

TABLE OF CONTENTS

Page

Nee ese co ead ce cececcccccocece i

EE IEEE SESE OTTO OTT ETT ET TT TY ii

Ne cee ee cetccscccecceessocce iii

PPPS ere rer re rerere eee reeeieeeeeeeee 1

eee ee ects cccccccccccoccecce 1

Constitutional and Statutory Provisions Involved... 2

EET TET ETE LTTE TE 2

REASONS FOR GRANTING THE WRIT ........... 8

1. MASSIVE FORFEITURES OF COMMUNICA-

TIVE BUSINESSES FOR OBSCENITY OFFENSES

ARE PROFOUNDLY AT ODDS WITH FIRST

AMENDMENT DOCTRINE AS CONSISTENTLY

APPLIED BY THIS COURT AND THE LOWER

RCE r eee eas becscccesesccceccccc: 14

A. In Holding That Obscenity Violations Justify

Blanket Forfeitures of Expressive Busi-

nesses, the Court of Appeals’ Decision Con-

flicts with This Court’s Prior Decisions in

Near v. Minnesota and Numerous Other

Cases Proscribing Such Remedies for

Speech-Related Offenses................... 15

B. The Eighth Circuit’s Decision Upholding

RICO Forfeiture Also Conflicts With Deci-

sions of Numerous Other Circuits, and of

Innumerable State Courts, Striking Down

Indistinguishable Remedies for Obscenity

a eee abececccecescece: 21

TABLE OF CONTENTS - Continued

Page

THE FORFEITURE OF A $25 MILLION BUSI-

NESS, IN ADDITION TO A SIX-YEAR PRISON

TERM AND $200,000 iN FINES, IS GROSSLY

DISPROPORTIONATE PUNISHMENT FOR DIS-

TRIBUTING SEVEN OBSCENE ITEMS, AND

THE COURT OF APPEALS’ SUMMARY REJEC-

TION OF PETITIONER’S EIGHTH AMEND-

MENT CHALLENGE DIRECTLY CONFLICTS

WITH DECISIONS OF THIS COURT AND OF

THE NINTH, TENTH, AND SEVENTH CIR-

Appendix D: Order of the Eighth Court of Appeals

denying Petition for Rehearing and Sug-

GUO ccncncvesecesesecccausvccescendessaenees 26

SIN eo vce cecsctncscdeddcusecedcustecsecseass 30

APPENDIX ©

Appendix A: Alexander v. Thornburgh, 943 F.2d 825

Gees GOR TOG ER cc cescccccccccces App. 1

Appendix B: United States v. Alexander, 736 F. Supp.

968 (D. Minn. 1990)............ App. 27

Appendix C: Judgment and Forfeiture Orders of

the United States District Court for

the District of Minnesota....... App. 125

gestion for Rehearing En Banc. ..App. 163

Appendix E: Constitutional and Statutory

FOOUEIOED, ccccccccccscesccccess App. 164

TABLE OF AUTHORITIES

Feperat Cases

Alexander v. Thornburgh, 943 F.2d 825 (8th Cir.

POU co ccccescneesversecctdsscncunevesseseces

American Library Association v. Barr, ___

1992 WL 27165 (Fed. Cir. 1992)...............

Avon 42nd Street Corp. v. Myerson, 352 F. Supp. 994

Ss DOU eccdaccesecseuncuccconnchecerdh

Bayside Enterprises, Inc. v. Carson, 470 F. Supp. 1140

SE : DUPE eccadcccccdccwcccntecsusceaeus

Chulchian v. City of Indianapolis, 477 F. Supp. 128

Ss Ce CUE Gbnerneenecctckbnsccesescnseds

“— of Paducah v. Investment Entertainment, 791

tf 3 , § See pee

Cornflower Entertainment, Inc. v. Salt Lake City

Corp., 485 F. Supp. 777 (D. Utah 1980)........

Entertainment Concepts Inc. Ill v. Macieiewski, 631

- ff ge Ree ore

Fernandes v. Limmer, 663 F.2d 619 (5th Cir. 1981).

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989)

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)

Gayety Theaters, Inc. v. City of Miami, 719 F.2d 1550

SO GE PN ci vdtuschvecednsaiiccecctecees

Genusa v. City of Peoria, 475 F. Supp. 1199 (C.D. Ill.

SU a hdc donccudawenSapencceecsceséccusedss

i ae ec SS fina Soe oanens

Page

TABLE OF AUTHORITIES - Continued

Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) .....

International Society for Krishna Consciousness v.

Eaves, 601 F.2d 809 (5th Cir. 1979) ............

Jenkins v. Georgia, 418 U.S. 153 (1974) ...........

]-R Distributors v. Eikenberry, 725 F.2d 482 (1984),

rev'd. on other grounds sub nom. Brockett v.

Spokane Arcades, 472 U.S. 491 (1985)........ 11,

Marks v. City of Newport Ky., 344 F. Supp. 675 (E.D.

BED CPE edccevessodscseconeccceesececessese

Members of City Council of the City of Los Angeles v.

Taxpayers For Vincent, 466 U.S. 789 (1984).....

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241

Pb es ddveseenebuciecnceoedscdsstevecedees

Minneapolis Star & Tribune Co. v. Minnesota Comm’r

of Revenue, 460 U.S. 575 (1983).............. 8,

Natco Theatres Inc. v. Ratner, 463 F. Supp. 1124

SE CEPED nen bdccdoddctncdccuccusccssenes

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

New York Times v. Sullivan, 376 U.S. 254 (1964)

asec dbubbadousunacnudvadidicidabnbads 14,

Nihiser v. Sendak, 405 F. Supp. 482 (N.D.Ind. 1974) ....

Oregon Bookmark Corp. v. Schrunk, 321 F. Supp. 639

EE DE oc cceckiccuicndsetanseuneensee

Organization for a Better Austin v. ea 402 US.

keel emai eaten, VaR heh pipe apie

Polykoff v. Collins, 816 F.2d 1326 (9th Cir. 1987). .

24, 25

17, 19

16, 30

‘eon ae

Pollitt v. Connick, 596 F. Supp. 261 (E.D. La. 1984)...

. 22

poooae

vii

TABLE OF AUTHORITIES - Continued

Page

Robinson v. California, 370 U.S. 660 (1962)............ 27

San Juan Liquors v. Consol. Cit Po) of Jacksonville, 480

F. Supp. 151 (M.D. Fla. 1979) ......... 6660 e eee eees 22

Simon & Schuster v. New York Crime Victims Board,

__._ US. __, 112 S. Ct. 501 (1991) ..... 11, 17, 18, 19

Smith v. California, 361 U.S. 147 (1959) .............. 14

Solem v. Helm, 463 U.S. 277 (1983) .............+.. 27, 28

Speight v. Slaton, 415 U.S. 333 (1974) ...........0005. 22

United States v. Alexander, 736 F. Supp. 968 (D.

BE, DOU cc ccccdicccoseccdesectessessceds 1, 5, 6,7

United States v. Angiulo, 897 F.2d 1169 (1st Cir

Bs 0c ccccvccccscvcecssccccvcessecsscnecevcecess 28

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

(ode cacdenckeéeessskdbececseeneeaneseséesins 27, 28, 29

United States v. California Publishers Liquidating

Corporation, 778 F. Supp. 1377 (N.D. Tex. 1991) ..

United States v. Harris, 903 F.2d 770 (10th Cir. 1990) .27, 28

United States v. Pryba, 900 F.2d 748 (4th Cir. 1989)

(anbineendueecEcssisunsdencednnsadcesesuseses 7, 21, 28

1989)....... Reale GAG DDs ngs NERD 28

United States v. Vriner, 921 F.2d 710 (7th Cir. 1991) .27, 28

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

fe EB PPPTITTTITiTirrreee 21, 23

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

Sn cc dcecsdcddcndcccccscdeseenseeseesesscesess 21

viii

TABLE OF AUTHORITIES - Continued

Page

Whitney v. California, 274 U.S. 357 (1927)............. 8

Yuclan Enterprises Inc. v. Arre, 488 F. Supp. 820 (D.

Er cteks cunkutéuden bea dbbGudwasesidess 22

State Cases

Alexander v. City of St. Paul, 303 Minn. 201, 227

a te 23

City of Delevan v. Thomas, 31 Ill. App.3d 630, 334

Pe SEE Sn ds ccntdcccbbuessesescsnesestess 23

City of Minot v. Central Ave. News, Inc., 308 N.W.

Se EE CUED cnccvcdcsucksasedeccvecceseseuss 22

City of Seattle v. Bittner, 81 Wash.2d 747, 505 P.2d

SS nasdeonsnccncneeresscasenteucdnceveveds 23

Commonwealth ex rel. Davis v. Van Emberg, 347 A.2d

PREY CE a nad adeusbhadsShidnedoccan kee ceces 22

Giarrusso v. D'Iberville Gallery, 295 So.2d 891 (La.

PE SNC Aidcdacunkedsueccuidessutsdsiwsvieesss 22

General Corp. v. Sweeton, 320 So.2d 668 (Ala. 1975),

— e FF fs rrr 22

Gulf States Theaters of Louisiana v. Richardson, 287

Se PS Mn ccc cneneednesusscstesecdenads 22

Hamar Theatres Inc. v. City of Newark, 150 N.J.

Super. 14, 374 A.2d 502 41977) peubdebveebseccoseee 23

Kansas v. A Motion Picture Entitled “The Bet,” 219

A. GG, DEF Fea POW COPED cc cccccccccccccccccece 22

Kuhns v. Santa Cruz Co. Bd. of Sup’rs., 128 Cal.

App. 3d 369, 181 Cal. Rptr. 1 (1982).............. 23

Mitchem v. State ex rel. Schaub, 250 So.2d 883 (Fla.

EERE IPS RAT? Shoe et rae ene) ste Tae 22

TABLE OF AUTHORITIES - Continued

Page

New Riveria Arts Theatre v. Davis, 219 Tenn. 652,

G12 S.W.2d GOO (IDET) ... nn evcccccccsvcccvvveveees 22

Parish of Jefferson v. Bayou Landing Ltd., Inc., 350

So. BE TED CLB.1G77). wc ccscccccccccscsccscvevccees 22

People ex rel. Busch v. Projection Room Theater, 17

a\.3d 42, 130 Cal. Rptr. 328, 550 P.2d 600

(1976), cert. den. 429 U.S. 922 (1976)..........0505 22

People v. J.W. Productions, 413 N.Y.S.2d 552

SE We, TOGO ccc vccncccccvcscccccevecesccees 23

Perrine v. Municipal Court, 5 Cal.3d 656, 97 Cal.

Rptr. 320, 488 P.2d 648 (1971), cert. den. 404 U.S.

BED ROPER cc ccccccccccccesccvcsccccssccvescesess 23

Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974) .22, 23

Society to Oppose Pornography, Inc. v. Thevis, 255

So.2d 876 (La. App. 1972) ........2 66 cece cee ens 22

State ex rel. Blee v. Mohney Enterprises, 289 N.E.2d

S19 (Ind. App. 1972)........:ceccecceeccrcenvevess 22

State ex rel. Ewing v. “Without a Stitch”, 307 N.E.2d

PES GED TGS cc cccccccccccncecccccecsevcccccees 22

State ex rel. Field v. Hess, 540 P.2d 1165 (Okla. 1975).... 22

State v. Bauer, 159 Ariz. 443, 768 P.2d 1785 (Ariz.

App. 1990) ....... cece eccecececceeceennceneees 11, 23

State v. Feld, 157 Ariz. 88, 745 P.2d 146 (Ariz. App.

_ _, WFEPPTYTTITITOTT ITU TTT LP Le 11, 13, 24

CONSTITUTIONAL PROVISIONS

United States Constitution

ee passim

Eighth Amendment..............6. 500000005 7, 26-29

TABLE OF AUTHORITIES - Continued

Page

FEDERAL STATUTES

United States Code

Be I TE I a hae tickesncddaualcsesecsouce 2, 6

ee Cn SEC 6a bucesenapesdunscecanncenanased 2, 6

ee Se Me a ha hese ise ku eudenacesecesesieudan 12

Ss WE oc nuccccccncassckensesdeces passim

STATE STATUTES

Ariz. Rev. Stat. Ann. F

A iv aan cnbencadaccdeseenenspienens deat 13

Colo. Rev. Stat. Ann. °

fe Sida ete eeneeaces eb lames 13

ko SRT eee ree Tre rer rer Pee 13

PN can web Gdbbsheeskeesdautavenscceenn 13

Conn. Gen. Stat.

ES Ranke eeckeneUkehccadnaveceessiavewnsaees 13

ET cikcanaéesdusnenée kchih Cee ene Ke eee 13

Del. Code

Ps. .0sstuithacianeecedeeneeaakeaan’ 13

Nas Wa hNed 6ads osu che eke Nadas bkeee ckaeenee 13

Sp US ouch vu cauuniuens ones canes ennseusentecaee 13

itd

TABLE OF AUTHORITIFS — Continued

Page

Fla. Stat. Ann.

ED So divnveccconscandsccasesesanases 13

Ds neencccesesecbedccccsessecdensunsese 13

Ga. Code Ann.

ss vcccccccesccccctesssvecesunnas 13

ED vos ncuduvesivectcaneccccsedevenccses 13

EE cinussccenesunetenengsesiescseseussons 13

Idaho Stat. Ann.

Dh vc cecocskencetexccsveceuenecsansccs 13

PE Chidicnccbcacesknisccewsnsseccennannes 13

fs s.S © Bi. Peeerrrrrrrrerrirrreee 13

Ind. Code Ann.

DEED ov cwccsancescccesccescevcccaceucces 13

I rhb bcd rcenseneceweeendeneeessnensees 13

Nev. Rev. Stat.

Es. ¢- 40 aancuccn sthdasevstananesseecdebacnnes 13

DE apo n Gh buonesveusucdgnescucdannescancepes 13

N.J. Stat. Ann.

DS UD bon cvcaSunvcpcdanenecsesscescesCeonnes 13

Disa crcdanccccsvescdsonsdiuenssccecesscasnc 13

BD IID... cc cccccsecccesnccccssecesecsscuses 13

xii

TABLE OF AUTHORITIES — Continued

Page

N.C. Gen. Stat.

655696 4.0000cereonsenscenveesddetusuivese 13

CS CiReE Seu dtusondtekdeeheeseneeneuaduncewngs 13

Okl. St. Ann.

ee ee ee 13

TRUE su aiadagai vias bene eiaeansesed'e bis 13

Wash. Stat. Ann.

a oa ig ee ee 4 at 13

re i ai ge ne Se oe he 13

Wis. Stat. Ann.

is. ..5 55 uuu duagnedaenunacnraawes cds 13

Td) GitbteseadneibeisdetendvensseetRises 13

IRE re ee ee oak ert ee eee 13

MISCELLANEOUS AUTHORITIES

Attorney General’s Commission on Pornography,

ey SE OE I oc va linubnsdncatwesasddecesess 4

Denver Post, November 4, 1990....................0.. 4

J.R. Green, A Short History of the English People

DPS CeS cers n teal diddnsedewedédesesunwencesssses 26

No.

In The

Supreme Court of the United States

October Term, 1991

FERRIS J. ALEXANDER, SR.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Court of Appeals is reported as

Alexander v. Thornburgh, 943 F.2d 825 (8th Cir. 1991), and

is reproduced as Appendix A to this Petition. The Court

of Appeals’ unreported order denying rehearing and

rehearing en banc appears as Appendix D. The district

court’s reported opinion deciding the forfeiture issue,

United States v. Alexander, 736 F. Supp. 968 (D. Minn.

1990), is reproduced as Appendix B; its unreported sen-

tencing judgment and forfeiture orders are reproduced as

Appendix C.

JURISDICTION

The United States Court of Appeals, Eighth Circuit,

entered its opinion in this case on August 30, 1991, and

denied Petitioner’s motion for rehearing on October 30,

1991. Petitioner has filed this petition within the exten-

sion this Court granted him, until March 16, 1992. This

Court therefore has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following constitutional provisions and statutes

are reproduced at Appendix E:

United States Constitution, amendment |

United States Constitution, amendment VIII

United States Code:

18 U.S.C. § 1465

18 U.S.C. § 1466

18 U.S.C. § 1961(1)(B)

18 U.S.C. § 1962(a), (c)-(d)

18 U.S.C. § 1963(a).

STATEMENT OF THE CASE

This case presents the long-simmering issue which

this Court in Fort Wayne Books v. Indiana concluded was

unripe but recognized to be vitally important: whether on

the basis of past speech subsequently determined to have

been obscene, the government may confiscate and

destroy an entire communicative business, including its

large inventory of protected materials. The issue is

unquestionably ripe in this case, where the government

has obtained a final forfeiture order, and has closed vir-

tually every adult bookstore in the Minneapolis/St. Paul

area.

The Court of Appeals’ decision below, sustaining

blanket RICO forfeitures in obscenity cases, creates a

dramatic split of authority in its conflict with decisions of

the Fifth, Sixth, Ninth and Eleventh Circuits, and

numerous state courts of last resort, all of which have

invalidated legally indistinguishable remedies for

obscenity violations.

Solely because Petitioner distributed seven maga-

zines and videotapes determined at trial to be obscene,'

the government has seized and closed his entire chain of

thirteen bookstores, theaters, and video stores formerly

engaged in disseminating officially-disfavored, albeit

First Amendment-protected, erotic speech. In addition to

confiscating all the related real and personal property

and bank accounts, government has now burned these

businesses’ entire inventory consisting of over one hun-

dred thousand books, magazines, and videotapes.

For over thirty years, Petitioner Ferris Alexander

operated a chain of retail bookstores, theaters and video

stores in the Minneapolis area;? he also conducted a

wholesale book, magazine, and videotape business.

Largely but not exclusively devoted to erotic materials,

these businesses were notably successful: the government

alleged that their annual revenues exceeded $5 million.

In addition to the enormous local popularity of the

erotic materials his businesses offered for sale and rental,

Petitioner reasonably believed that they were well within

the community standards of the Twin Cities area. Local

officials had not prosecuted him for obscenity since the

mid-1970s, when he was acquitted. Following several

such acquittals and dismissals of obscenity charges

against him, Minnesota officials announced they would

no longer prosecute for obscenity unless (he materials

involved bestiality or children, materials which Peti-

tioner’s business did not sell. To Petitioner’s knowledge,

1 Prior to this indictment, the Petitioner had received no

notice, much less any judicial determination, that either the

federal government or local authorities considered the mate-

rials obscene. Nor did the indictment allege any prior convic-

tions.

2 Operating primarily in the Twin Cities area, Petitioner

also operated businesses in Duluth and Rochester.

there had been no federal obscenity cases in the district

since his earlier acquittal.*

In 1989, however, the government indicted Petitioner

as part of its wide-ranging campaign to eliminate sexu-

ally-explicit materials from the marketplace. Under the

aegis of the Justice Department’s fledgling but ever-

expanding National Obscenity Enforcement Unit, the

government aggressively sought to destroy businesses

engaged in erotic speech, an objective it touted publicly.*

Apparently because the Petitioner conducted a highly

visible chain of businesses which dominated the Min-

neapolis market, the government targeted his “enter-

prise” for RICO forfeiture.

In May 1989, Alexander was charged under a 41-

count federal indictment with obscenity, RICO, and

* A mail order obscenity indictment was returned in

Duluth shortly before Petitioner’s indictment.

* The Meese Commission had touted RICO forfeiture as a

necessary means to “efficiently suppress the evils of obscenity.”

Complaining that ordinary obscenity prosecutions are not ade-

quate to the task of stemming the tide of the American public's

enthusiastic and growing consumption of adult entertainment, the

Meese Commission expressly advocated blanket forfeitures for

obscenity offenses as “an effective means to substantially elimi-

nate” businesses that disseminate erotica. Attorney General's Com-

mission on Pornography, Final Report 464 (1986). This strategy soon

became Justice Department policy.

As head of the Justice Department’s Obscenity Unit,

Patrick Trueman expressed the government's wide-ranging

designs to suppress erotic expression:

“To Trueman, whose squad has . . . helped put a half-

dozen major producers and distributors . . . out of

business, the neighborhood video store is the next likely

target.

“ ‘We'll prosecute the video store owner as well

as the producer and distributor,’ Trueman said.

‘You'll see that . . . as we announce more and more

indictments.” Denver Post, November 4, 1990.

various tax violations.® As the sole basis for the RICO

charges and attendant forfeiture allegations, the indict-

ment charged him with 34 obscenity counts, alleging that

five magazines and seven videotapes his businesses had

sold were obscene.®

United States Magistrate Janice Symchych sustained

Petitioner's pre-trial challenge to RICO and held the for-

feiture provisions of 18 U.S.C. § 1963 facially unconstitu-

tional for overbreadth, because they authorize the

wholesale forfeiture of expressive businesses without

regard for the censorial consequences thus visited upon

protected speech. United States v. Alexander, 736 F. Supp.

at 986-987. (App. 72-74.) Citing the numerous federal

decisions striking down padlocking orders and license

revocations as overly broad penalties for obscenity con-

victions, the magistrate also concluded that RICO forfei-

tures operate as an impermissible prior restraint. 736 F.

Supp. at 989-991. (App. 78-81.) She therefore recom-

mended that the trial court hold RICO forfeiture facially

unconstitutional as a prior restraint. /d. at 981, 988, 990.

(App. 58, 81, 119.)

5 Petitioner was convicted of four tax violations. The tax

charges are immater,ol to the issues Petitioner now raises,

however, as they were not predicate offenses for the RICO

counts, predicated solely on the alleged obscenity offenses.

rials violated community standards in a community where

there had been: 1) no federal prosecutions of such over-the-

counter, publicly prominent X-rated businesses since Petitioner

was acquitted in the mid-1970s; 2) no local obscenity prosecu-

tions against Petitioner’s businesses in memory; and 3) no

prosecutions at all for materials even remotely similar. Thus

despite Petitioner’s long-time status as a prominent state-wide

media fixture, and with no notice of its change of position, the

federal government targeted him for elimination in 1987. lron-

ically, several of the previously unprosecuted violations

occurred as early as 1984 and 1985.

The district court, however, sustained the govern-

ment’s objection to this recommendation, and held that

the RICO forfeiture remedy was neither overbroad nor a

prior restraint, on grounds that the First Amendment

imposes no limitation whatsoever upon the remedies the

government may impose for obscenity offenses. 736 F.

Supp. at 978-980. (App. 51-55.) The trial court deemed the

First Amendment irrelevant, because “the law . . . treats

an obscenity charge the same as any other criminal

charge, be it bank robbery, narcotics trafficking, or fire-

arms violations.” Id. at 980. (App. 55.)

The court also discerned in the impending wholesale

forfeiture of Petitioner’s bookstores, theaters, and video

stores “no necessary impact on expressive activity in the

future.” Id. (App. 54.) In fact, these forfeitures closed

virtually every erotica outlet in the Twin Cities area.

Following a three-month jury trial, Petitioner was

acquitted on 16 counts of obscenity, and convicted of 18

obscenity violations (involving a total of only seven

items) which were the sole predicates for three RICO

convictions.” (App. 127.) In its sentencing order, the trial

court assessed Mr. Alexander well over $200,000 in fines

and costs,* and sentenced him to concurrent terms of 36

to 72 months. (App. 127-128, 132, 133, 162.) The 73-year-

old Petitioner is currently serving this six-year prison

sentence, which he does not ask this Court to review.

? Specifically, the Petitioner was convicted of twelve

counts of transporting obscene material in interstate commerce

under 18 U.S.C. § 1465, and six counts of engaging in the

business of selling or transferring obscene material under 18

U.S.C. § 1466.

* The court imposed a fine of $100,000 and a special assess-

ment of $950 (App. 132), approximately another $100,000 in costs

of his incarceration and supervised release (App.133), and costs of

prosecution in the amount of $29,737.84. (App. 162). In ordering

Petitioner to pay the costs of prosecution, the court dismissed the

fact that it was dismantling an entire chain of communicative

businesses with: “Defendant created his criminal empire and now

must pay for its destruction.” (App. 162.)

In addition, however, although only seven items

were found obscene, § 1963 of the RICO Act required that

the district court order forfeiture of the entire chain of

thirteen retail bookstores and video stores, along with his

wholesale media distribution business. The forfeiture

order encompassed all assets associated with these

expressive businesses, including the ten parcels of real

property which had housed them, their bank accounts,

three company vehicles (two vans and a trailer), as well

as $8.9 million in estimated proceeds from the operation

of these communicative businesses for the years 1985

through 1988. (App. 135-147.) The court also ordered

forfeiture of all personal property, including:

“all 8mm projectors, television monitors .. . ,

video cassette tape players, video cassettes,

magazines, other printed material, shelving and

display material, . . . and other inventory.”

(App. 144.)

Accordingly, the government confiscated (and subse-

quently destroyed) these businesses’ inventories of over

one hundred thousand unlitigated, presumptively pro-

tected books, magazines, and videotapes, simply because

seven items on other shelves were found unprotectec.

The Eighth Circuit affirmed Petitioner’s conviction,

rejecting his arguments that RICO forfeiture of an entire

expressive business for obscenity offenses violated the

First and Eighth Amendments. (App. 21-25.) Relying

entirely upon the Fourth Circuit’s decision in United

States v. Pryba, 900 F.2d 748 (4th Cir. 1989), cert. denied, 111

S. Ct. 305 (1990), the court concluded First Amendment

analysis was simply irrelevant. Alexander v. Thornburgh,

943 F.2d 825, 834-835. (App. 21, 23.) The court apparently

also adopted the Fourth Circuit’s conclusion in Pryba that

it need not review this sentence under the Eighth Amend-

ment. Id. at 835-836. (App. 25.)

In October 1991, before the Court of Appeals had

even acted on the Petitioner’s rehearing petitions, the

government destroyed the entire seized inventory of First

Amendment-protected materials from his wholesale dis-

tribution business, bookstores, and video stores. The fed-

eral marshal’s office in Minneapolis trucked three tons of

magazines, videotapes, and other inventory to a garbage

processing plant in Elk River, Minnesota, where the mag-

azines were burned and the videotapes destroyed by

crushing.’

REASONS FOR GRANTING THE WRIT

This case squarely and dramatically presents the

issue of RICO forfeitures of entire media businesses for

numerically insignificant obscenity violations. In uphold-

ing such forfeitures, the decision below would destroy

the central guarantee of the First Amendment: that gov-

ernment cannot punish a disfavored speaker by stifling

future, presumptively protected speech, nor suppress a

book because another was found unlawful.

This Court recognized the importance of this issue in

Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46 (1989), which

was briefed and argued by Petitioner’s present counsel.

In Fort Wayne Books, this Court invalidated pre-trial sei-

zures of expressive businesses in RICO/obscenity cases,

but deferred consideration of First Amendment chal-

lenges to post-conviction forfeitures under the Indiana

RICO statute. The Court concluded the issue was not

ripe, where the state had not yet invoked such forfeiture

remedies.'® At the same time, this Court noted the impor-

tance of these issues, particularly because then as now,

* See Minneapolis Star Tribune, October 19, 1991 at 1B.

These methods of destruction are particularly apt given the

fate of “witches” in 17th century Salem, Massachusetts. “Men

feared witches and burnt women,” as Justice Brandeis wrote in

Whitney v. California, 274 U.S. 357, 376 (1927). “Witches” were

also put to death by crushing them under progressively heav-

ier weights of stone.

10 “[W]e do not reach the question of the constitutionality

of post-trial forfeiture .. . in this context. The case before us

does not involve such a forfeiture.” 489 U.S. at 65 n. 11.

“Petitioner's challenge to the constitutionality of

the use of the RICO statutes to criminalize pat-

terns of obscenity offenses calls into question

the legitimacy of the law enforcement practices

of several States, as well as the Federal Govern-

ment. Resolution of this important issue

. Should not remain in doubt. ‘Whichever way

we were to decide on the merits, it would be

intolerable to leave unanswered, under these

circumstances, an i — question of free-

dom of the press under the First Amendment;

an unsettled and uneasy constitutional pos-

ture .. . could only further harm the operation

of a free press.’ ” 489 U.S. 55-56, quoting Miami

Herald Publishing Co. v. Tornillo, 418 U.S. 241,

247, n. 6 (1974).

For these reasons, Justice Stevens would also have

decided the RICO forfeiture issue in Fort Wayne Books; he

urged the majority to invalidate post-conviction forfei-

tures as well as pre-trial seizures. 489 U.S. at 77, 84

(Stevens, J., concurring in part and dissenting in part)."'

This case presents a compelling occasion for doing

so; it is the paradigm case for which this Court was

presumably waiting when it deferred adjudication of the

issue in Fort Wayne Books. It concretely and non-spec-

ulatively presents an actual post-trial judgment which

starkly illustrates the constitutional abuses inherent in

RICO forfeitures for obscenity offenses. The government

has targeted a business engaged in erotic speech, and

solely on the basis of the seven items determined to be

obscene, it has imposed the RICO Act's ultimate, speech-

™ Similarly, Justice Scalia in FW/PBS, Inc. v. City of Dallas, 493

U.S. 215, 252-253 (1990) (concurring and dissenting opinion), wor-

ried that RICO’s “draconian sanctions for obscenity which make it

unwise to flirt with the sale of pornography . .

perversely render less effective our efforts, through a restrictive

definition of obscenity, to prevent the ‘chilling’ of socially valuable

speech. State RICO penalties for obscenity, for example, intimidate

not just the porn-shop owner, but also the general bookseller who

has been the traditional seller of new books such as Ulysses.”

stifling remedy: blanket forfeiture. By means of such

forfeiture, the government has closed down an entire

chain of 13 bookstores, theaters, and video stores

engaged in erotic speech, to which the government is

openly hostile. It has removed from circulation and

destroyed those businesses’ vast inventories of books,

magazines, and videotapes, and has carted them off to be

burned. !?

If upheld, this forfeiture will signal a seismic shift in

First Amendment doctrine, authorizing government for

the first time to employ whatever remedies it chooses to

punish unprotected speech, even if the effect is to broadly

preclude future, protected speech. This holding defies the

bedrock prohibition against prior restraint this Court

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

opens the door wide to governmental suppression of

officially-disfavored speech.

Such a rule fundamentally threatens the security of

First Amendment rights in this country. In its most imme-

diate and literal application, this rule would have

allowed the state in Jenkins v. Georgia, 418 U.S. 153 (1974),

to confiscate the entire theater chain or even the Holly-

wood movie studio once the obscenity conviction for

exhibiting the film “Carnal Knowledge” was upheld by

the Georgia Supreme Court. The federal government

could likewise use that state conviction as a RICO predi-

cate, and if it moved as aggressively as it has against

Petitioner in this case, would have already dismantled

the theater and movie studio, burning their film libraries

before this Court ever had a chance to rectify the error.

The decision below, approving such a forfeiture and

clearing the way for the government to burn First

12 That censorship was the government's intended goal is

confirmed by its closing these stores and destroying their

constitutionally protected inventory. Otherwise the govern-

ment would have sold them to prospective buyers who would

undoubtedly have been eager to acquire and continue to oper-

ate these lucrative businesses.

Amendment-protected inventories of media materials,

stands in direct conflict with this Court’s decisions in

Near v. Minnesota and its progeny. Under the rule of Near,

innumerable state and lower federal courts have invali-

dated such prospectively-censorial remedies for speech-

related offenses as per se violations of the First Amend-

ment.

The Court of Appeals could sustain RICO forfeitures

for obscenity only because it concluded that First Amend-

ment analysis did not apply at all, flagrantly disregarding

this Court’s plain holding to the contrary in Fort Wayne

Books, 489 U.S. at 66. As recently as its decision in Simon

& Schuster v. New York Crime Victims Board, _ U.S. __,

112 S. Ct. 501 (1991), this Court reaffirmed that even

where the state seeks to deprive criminals convicted of

non-speech offenses of “the fruits of their crime,” any such

remedy which adversely impacts free speech and press

must survive the most searching scrutiny.

The Eighth Circuit’s opinion also directly conflicts

with decisions of the Fifth, Sixth, and Eleventh Circuits,

and numerous state courts, which have all applied the

per se Near rule against prior restraints to invalidate

RICO forfeitures or less severe prospective restraints on

expressive businesses for obscenity offenses. The opinion

below is most squarely at odds with the Arizona courts’

resolution of the issue in State v. Feld, 157 Ariz. 88, 745

P.2d 146 (Ariz. App. 1987), cert. denied, 485 U.S. 977

(1988), in which the court specifically held that wholesale

RICO forfeitures for obscenity violations would consti-

tute a prior restraint, and therefore construed the state

RICO Act as limited to forfeiting only the materials judi-

cially determined to be obscene and proceeds from their

sale. The Arizona Supreme Court denied review in Feld

on August 4, 1987, and its rule has been consistently

reaffirmed in the Arizona courts. See State v. Bauer, 159

Ariz. 443, 768 P.2d 1785 (Ariz. App. 1990).

The decision below also conflicts with the decision of

the Ninth Circuit in /-R Distributors v. Eikenberry, 725 F.2d

482, 486 (9th Cir. 1984), rev'd. on other grounds sub nom.

Brockett v. Spokane Arcades, 472 U.S. 491 (1985), in which

the court struck down similarly overbroad penalties for

obscenity offenses under the First Amendment. High-

lighting the necessity for this Court’s guidance is the fact

that this issue of RICO forfeitures for obscenity is pend-

ing in the Ninth Circuit, in Adult Video Association v. Barr,

(Case No.90-55252, argued May 6, 1991).

A closely related question, whether the potentially

simi'ar obscenity forfeiture provisions of 18 U.S.C. § 1467

violate the First Amendment, is pending in the Fifth

Circuit.!3 Very recently in United States v. California Pub-

lishers Liquidating Corporation, 778 F. Supp. 1377 (N.D. Tex.

1991), the district court refused to order forfeitures under

the discretionary provisions of 18 U.S.C. § 1467, and

sharply rebuked the government for attempting to invoke

such patently unconstitutional remedies:

“Forfeiture under these circumstances of truly

de minimis use of the properties for the commis-

sion of the [obscenity] offenses simply serves no

legitimate end; that is, no end other than

destroying legal business enterprises simply

because their stock in trade is sexually related

materials.” 778 F. Supp. at 1389.

“(T]he government’s requested forfeiture or

Great Western’s printing facility is subject to

close First Amendment analysis and likely

would, if granted, constitute an impermissible

13 The importance of the obscenity /forfeiture issue to the

major media organizations is demonstrated by the challenge to

18 U.S.C. § 1467 brought by the American Library Association,

the American Booksellers Association, the Council for Periodi-

cal Distributors Associations, the International Periodical

Distributors Association, the Satellite Broadcasting and Com-

munications Associations of America, the Freedom to Read

Foundation, the Magazine Publishers of America, the Ameri-

can Society of Magazine Editors, and the American Society of

Magazine Photographers, in American Library Association v.

Barr, __ F.2d __, 1992 WL 27165 (Fed. Cir. 1992), in which the

court found their First Amendment claims nonjusticiable.

ele

prior restraint of expression under Near v. Min-

nesota and its progeny.” Id. at 1394.

Obviously, the use of RICO forfeitures in obscenity

cases remains a pressing issue of tremendous practical

importance, given the many on-going prosecutions under

both federal and state RICO and obscenity statutes.'4 In

light of events subsequent to the Fort Wayne Books deci-

sion, particularly given the government’s use of RICO’s

over-reaching remedies in this case to seize and to burn

entire inventories of books, periodicals, and videotapes,

this question has now gone unresolved for far too long.

; 4 In addition to the federal RICO provisions directly at

issue here and potentially implicated in the scores of pending

federal obscenity cases around the country, at least 15 states

have their own RICO or similar provisions prescribing whole-

sale forfeiture in retribution for obscenity. See Ariz. Rev. Stat.

Ann. § 13-2301 et seq. (West Supp. 1991); Colo. Rev. Stat. Ann.

§ 18-17-103(5)(b)(VI), -105(1)(b), -106(2) (West. Supp. 1991);

Conn. Gen. Stat. §§ 53-394, 53-397 (Supp. 1991); Del. Code

§§ 1502(9)(a)(7), 1504(b), 1505(b) (Supp. 1991); Fla. Stat. Ann.

§§ 895.02(1)(a)(29), 895.05(2)(a) (West. Supp. 1991); Ga. Code

Ann. §§ 16-14-3(9)(A)(xii), 16-14-6(a)(5), 16-14-7(a)(Supp. 1991);

Idaho Stat. Ann. §§ 18-7803(a)(8), 18-7804(f) (Supp. 1991); III.

Stat. Rev. ch. 38, J 11-20 (Smith-Hurd Supp. 1991); Ind. Code

Ann. §§ 34-45-6-1(2)(4), 34-4-30.5-3 (West Supp. 1991); Nev.

Rev. Stat. §§ 207.420, 207.460 (Michie 1991); N.J. Stat.

Ann. §§ 2C:41-1(e), 2C:41-3, 2C:41-4(a)(9) (West Supp. 1991);

N.C. Gen. Stat. §§ 75-D-3(c)(2), 75-8 (Supp. 1991); Okl. St.

Ann. §§ 1402(10)(v), 1405(A) (1991); Wash. Stat. Ann.

§§ 9A.82.010(14)(s), 9A.82.100(4)(f) (1991); Wis. Stat. Ann.

§§ 946.82(4), 946.86(1), 946.87(2)(a)(1991). Enforcement of these

Statutes varies widely, from Arizona where the courts have

precluded such forfeitures by means of a limiting interpreta-

tion in State v. Feld, 745 P.2d 146 (Ariz. App. 1987), to Florida

where the state is aggressively seeking forfeitures in obscenity

cases.

I. MASSIVE FORFEITURES OF COMMUNICATIVE

BUSINESSES FOR OBSCENITY OFFENSES ARE

PROFOUNDLY AT ODDS WITH FIRST AMEND-

MENT DOCTRINE AS CONSISTENTLY APPLIED

BY THIS COURT AND THE LOWER COURTS.

The application of the RICO forfeiture remedy to

destroy entire expressive businesses is riddled with

defects under the First Amendment, whether viewed

from the perspective of facial overbreadth,'> or as creat-

ing the pall of self-censorship condemned in Smith v.

California, 361 U.S. 147 (1959), and New York Times v.

Sullivan, 376 U.S. 254, 278-279 (1964). Most clearly of all,

however, the court below ignored the per se rule against

prior restraints this Court announced in Near v. Minne-

sota, which dozens of state and federal courts have

applied to strike down similar, if less drastic, prospec-

tively censorial remedies for obscenity violations.

Because the decision below is not only grievously in error

but has already exacted such an irreparable toll in terms

of Petitioner’s First Amendment rights and those of the

public, this Court’s review is urgently required.

Quite simply, if the Court of Appeals’ myopic vision

of the First Amendment prevails, then all expressive net-

works are subject to wholesale confiscation for even de

minimis errors of judgment. Newspaper chains, publish-

ing houses, television and radio networks, and movie

studios will all be chilled by the potentially lethal Sword

15 Cf. Members of City Council of the City of Los Angeles v.

Taxpayers For Vincent, 466 U.S. 789, 797-798 (1984), in which

this Court noted that such speech-suppressive statutes are

“unconstitutional on their face because .. . any

attempt to enforce such legislation would create an

unacceptable risk of the suppression of ideas. In

cases of this character a holding of facial invalidity

expresses the conclusion that the statute could never

be applied in a valid manner.”

of Damocles this sub silentio overruling of Near v. Minne-

sota would place over their heads for unprotected com-

municative conduct.

A. In Holding That Obscenity Violations Justify

Blanket Forfeitures of Expressive Businesses,

the Court of Appeals’ Decision Conflicts with

This Court’s Prior Decisions in Near v. Minne-

sota and Numerous Other Cases Proscribing

Such Remedies for Speech-Related Offenses.

In allowing the government to forfeit and destroy

media businesses, the court below has ignored this

Court’s prior decisions. Most fundamentally of all, it

erred in concluding that because obscenity is a crime, the

First Amendment in no way limits the remedies the gov-

ernment may employ in obscenity cases. This Court's

decisions mandate an entirely contrary conclusion: that

the First Amendment interposes a per se rule against

direct prior restraints upon presumptively protected

future expression.

As this case so vividly demonstrates, the RICO Act

requires the blanket forfeiture of any “enterprise” — book-

store, theater, network, or museum - involved in dissem-

inating two “obscene” works. It therefore grants

government authorities the power to impose an institu-

tional “death sentence” upon speakers like Petitioner

who have engaged in even limited examples of unlawful

speech in the past.

In Near v. Minnesota, this Court struck down an anal-

ogous prior restraint, invalidating a statute which autho-

rized an injunction against future publication in order to

abate “malicious, scandalous and defamatory” periodi-

cals as a public nuisance. Because nine previous editions

of the Saturday Press contained such matter, the trial court

had enjoined both its future publication and other, similar

expression. The Court squarely held this remedy uncon-

stitutional: unprotected speech such as defamation could

be punished subsequent to its publication, but not by

restraining other unlitigated speech.

Thus, although materials adjudicated obscene and

proceeds directly attributable to their sale may be for-

feited, to effect closure of the business itself by forfeiting

all its assets, instrumentalities, and communicative inven-

tory has a qualitatively different censorial effect by

directly suppressing other, presumptively-protected mate-

rials which would be distributed in the future.

Petitioner in this case was found to have distributed

only seven obscene items over a thirty-year history of

engaging in protected erotic expression. Even if he had

suffered many more convictions for unprotected speech,

the rule prohibiting prior restraint would be the same

under Near, 283 U.S. at 720, where the Court observed:

“It does not matter that the newspaper or peri-

odical is found to be ‘largely’ or ‘chiefly’

devoted to the publication of such derelictions.

If the publisher has the right, without previous

restraint, to publish them, his right cannot be

deemed to be dependent upon his publishing

something else.”

This Court has consistently repudiated government's

attempts to finesse the First Amendment by resort to

“mere labels,” which cannot confer “talismanic immunity

from constitutional limitations.” New York Times Co. v.

Sullivan, 376 U.S. 254, 269 (1964). In Fort Wayne Books v.

Indiana, 489 U.S. at 67, the Court reaffirmed this principle,

clearly mandating the application of First Amendment

analysis to these provisions of the RICO Act: “[T]he state

cannot escape the constitutional safeguards of our prior

cases by merely recategorizing a pattern of obscenity

violations as ‘racketeering.’ ”

“As far back as the decision in Near v. Minnesota,

this Court has recognized that the way in which

a restraint on speech is ‘characterized’ . . . is of

little consequence. . . . For example, in Vance v.

Universal Amusement Co., 445 U.S. 308 (1980), we

struck down a prior restraint placed on the exhi-

bitions of films under a Texas ‘public nuisance’

statute, finding that its failure to comply with

our prior case law in this area was a fatal

defect.” Id. at 66. (Citations omitted.)

Most recently in Simon & Schuster v. New York Crimes

Victims Board, __ U.S. __, 112 S. Ct. 501 (1991), this

Court staunchly reaffirmed that such remedies even for

non-speech-related criminal activity violate the First

Amendment where they operate invidiously to curtail

protected speech, rejecting out of hand the state’s formal-

istic arguments that First Amendment scrutiny should

not apply. In Simon & Schuster, the Court invalidated New

York’s “Son of Sam” law, which required that any pub-

lisher or other “entity” pay over to the Crime Victims

Board any funds it owed a person “accused or convicted

of a crime” under a contract to produce a book or other

work describing the crime.

First, this Court dismissed the state’s contentions that

First Amendment scrutiny should not apply, arguments

which closely track those the government advances in

defense of RICO forfeiture in obscenity cases. The state

maintained, for example, that the discriminatory burden

on certain speech did not trigger First Amendment scru-

tiny because the legislature did not intend to suppress

speech about crime, much as the government has argued

RICO forfeitures for obscenity are constitutionally

immune because they allegedly are not intended to censor.

The Court dismissed this contention as

“incorrect; our cases have consistently held that

‘{iJllicit legislative intent is not the sine qua non

of a violation of the First Amendment.’ .. . As

we concluded in Minneapolis Star, ‘[w]e have

long recognized that even regulations aimed at

proper governmental concerns can restrict

unduly the exercise of rights protected by the

First Amendment.’” 112 S. Ct. at 509.

Next, in Simon & Schuster the state attempted to avert

First Amendment scrutiny by reference to the fact that the

law focused its requirements on any “entity” rather than

specifically on the media. Likewise, the government has con-

tended that the First Amendment is not relevant in this case

because RICO forfeitures target “racketeering enterprises,”

and constitute “punishment” rather than “prior restraint.”

This Court has without hesitation rejected such disin-

genuous, formalistic sophistries, noting in Simon & Schuster,

112 S. Ct. at 509, that such an argument

“falters on both semantic and constitutional

grounds. Any ‘entity’ that enters into such a con-

tract [is] by definition a medium of communica-

tion... . In any event, the characterization of an

entity as a member of the ‘media’ is irrelevant for

these purposes. The Government’s power to

impose content-based financial disincentives on

speech surely does not vary with the identity of the

speaker.”

Similarly, the government's talismanic invocations of “rack-

eteering” attempt to mask semantically the fact that where

obscenity is the predicate offense, by definition RICO forfei-

ture applies to destroy the entire media business of which

the unprotected speech was but a minute part. And on

constitutional grounds, the government cannot escape First

Amendment scrutiny of this censorial remedy merely on

grounds that it is “punishment” for “criminal activity.” As

this Court made clear in Simon & Schuster, where speech is at

stake this assertion merely begs the question whether such

“punishment” exceeds the bounds set by the First Amend-

ment. Certainly, this Court would not allow New York to

impose the same invidious burden on “crime stories” simply

by recharacterizing it as “punishment” rather than as restitu-

tion to victims.

The unconstitutional flaw in New York’s victim com-

pensation scheme was that it discriminatorily burdened,

and inevitably would act to curtail, protected speech on

the basis of its content: the law singled out speech about

one’s crimes. Because this law invidiously burdened

speech on the basis of its content, the Court subjected it

to strict scrutiny and concluded the content-based law

was not necessary to advance the state’s objective of

compensating crime victims. Even assuming that the

escrowed income represented “the fruits of crime,” the

—

Court said, the state had no compelling need to single out

the proceeds of protected “storytelling.” 112 S. Ct. at 510.

RICO forfeiture poses much graver constitutional prob-

lems, for two reasons. First, the RICO forfeiture remedy is so

broad that it operates not just as a burden but as a complete

prospective ban on future speech by the offending business.

Whereas the confiscation of funds under the Son of Sam law

would certainly tend to chill and inhibit speech, it did not

have the absolutely preclusive effect of RICO forfeiture. Sec-

ond, the triggering criminal conduct is itself speech. Whereas

the New York law singled out speech by specifying its

proceeds as the sole source for compensating the speaker's

crime victims, the conduct triggering liability was hard-core

crime such as murder which did not implicate speech in the

first instance, and thus open the door wide for government

to target speakers of whom it does not approve.

The fact that the disfavored speech itself triggers RICO

liability has a double significance. It means first of all that by

definition, the draconian RICO forfeiture remedy will oper-

ate to shut down those businesses which were engaged in

speech activities. Second, it means that the statute wreaks its

destruction when the government has targeted officially-

disapproved speech for obscenity prosecution, armed with

the ability to eradicate the offending speaker from the mar-

ketplace of ideas, information, and entertainment. For these

reasons, the First Amendment concerns are even more

heightened here than in Simon & Schuster, and the courts

below fundamentally erred in holding essentially that First

Amendment scrutiny does not apply.

Justice Kennedy, concurring in Simon & Schuster, would

have simply applied a per se rule to hold that the Son of Sam

law’s content-based discrimination violated the First Amend-

ment, rather than the compelling interest analysis the major-

ity applied 112 S. Ct. at 512-515. He pointed out that because

the New York statute singled out speech for a burden on the

basis of its content, it raised First Amendment problems over

and above the content-neutral burdens that invoked compel-

ling-interest analysis on equal protection grounds in cases

like Minneapol.s Star & Tribune Co. v. Minnesota Comm’r of

Revenue, 460 U.S. 575 (1983). Government will never have

sufficient justification for discriminating against protected

speech on the basis of its content, Justice Kennedy suggested,

and to apply even a compelling-interest balancing test

“might be read as a concession that States may censor speech

whenever they believe there is a compelling justification for

doing so.” 112 S. Ct. at 513.

Justice Kennedy’s concerns are certainly realized in this

case, where the government has violated an even more

bedrock principle of First Amendment law: the Near v. Min-

nesota prohibition against prior restraints. If there is any per

se rule limiting governmental restraints on speech, it is the

rule from Near that past abuses of free speech cannot be

redressed by measures which broadly and directly prevent

one from speaking in the future. Because a contrary rule

would allow government enormous discretion to stifle dis-

favored speech and speakers prospectively, this Court has

held in Near and subsequently that government simply can-

not punish offensive, unprotected speech by suppressing

other, presumptively-protected speech in the future.

In the forfeiture context, “content neutrality” is a First

Amendment vice, because it permits the government to sup-

press unlimited quantities of expressive materials, regardless

of their content, solely because other material on an adjacent

shelf has been determined obscene, just as in Near the state

forbade future publication of the Saturday Press because past

editions were deemed defamatory. Indeed, this sort of blan-

ket restraint of future speech is such an egregious First

Amendment violation that after the Court first denounced it

in Near, to the knowledge of Petitioner’s counsel it has come

before this Court in only one other case, Organization for a

Better Austin v. Keefe, 402 U.S. 415, 417 (1971), in which the

Court invalidated as a prior restraint a content-neutral order

enjoining the distribution of “ ‘pamphlets, leaflets or litera-

ture of any kind.’ ”

This Court made clear in Fort Wayne Books that the prior

restraint doctrine, and all other principles of First Amend-

ment review, fully apply in the RICO/obscenity context.

Although Fort Wayne Books left undecided the issue of

RICO’s post-conviction forfeiture remedies, the result is

equally clear under this Court’s prior decisions. The RICO

Act as applied in obscenity cases is the most incomparably

censorial legislative measure in memory, and the court below

erred dangerously in upholding its application to destroy

media businesses. RICO forfeitures must be invalidated as an

overbroad response to obscenity offenses, if the bedrock rule

of Near v. Minnesota is not to be eviscerated, and the chilling

effect doctrine rendered meaningless.

B. The Eighth Circuit’s Decision Upholding RICO

Forfeiture Also Conflicts With Decisions of

Numerous Other Circuits, and of Innumerable

State Courts, Striking Down Indistinguishable

Remedies for Obscenity Violations.

The Eighth Circuit’s decision below, and the Fourth

Circuit’s opinion in United States v. Pryba, create a dra-

matic split of authority between those circuits and at least

four circuits, along with innumerable state courts, which

have struck down even less restrictive penalties for

obscenity for overbreadth or as patently invalid prior

restraints.

Following the unequivocal rule of Near, a multitude

of courts have rejected attempts to punish obscenity by

means of prior restraints considerably less drastic than

RICO’s outright forfeitures. With virtual unanimity, state

and federal courts have blocked attempts to close book-

stores and theaters as “nuisances” by padlocking or

injunction, or by revoking their licenses, upon a showing

that they have sold or exhibited obscenity in the past.'®

tional nuisance laws which provided for the padlocking of

businesses where obscenity offenses occurred in the past: Uni-

versal Amusement Co., Inc. v. Vance, 587 F.2d 159, 164-166 (5th

Cir. en banc 1978), aff'd. on other grounds, 445 U.S. 308 (1980);

(Continued on following page)

Prior to these two RICO cases, virtually every court

to consider the issue concluded that such statutes are

(Continued from previous page)

Pollitt v. Connick, 596 F. Supp. 261, 269-272 (E.D.La. 1984); People ex

rel. Busch v. Projection Room Theater, 17 Cal.3d 42, 130 Cal. Rptr. 328,

550 P.2d 600 (1976), cert. den. 429 U.S. 922 (1976); General Corp. v.

Sweeton, 320 So.2d 668 (Ala. 1975), cert. den. 425 U.S. 904 (1976);

Kansas v. A Motion Picture Entitled “The Bet”, 219 Kan. 64, 547 P.2d

760 (1976); Gulf States Theaters of Louisiana v. Richardson, 287 So.2d

480 (La. 1974); New Riveria Arts Theatre v. Davis, 219 Tenn. 652, 412

S.W.2d 890 (1967); Society to Oppose Pornography, Inc. v. Thevis, 255

So.2d 876 (La. App. 1972); Giarrusso v. D'Iberville Gallery, 25 So.2d

891 (La. App. 1974); State ex rel. Blee v. Mohney Enterprises, 289

N.E.2d 519 (Ind.App. 1973); Sanders v. State, 231 Ga. 608, 203 S.E.2d

153 (1974); State ex rel. Field v. Hess, 540 P-2d 1165 (Okla. 1975);

Commonwealth ex rel. Davis v. Van Emberg, 347 A.2d 712 (Penn.

1975); City of Minot v. Central Ave. News, Inc., 308 N.W. 2d 851 (N.D.

1981); Parish of Jefferson v. Bayou Landing Ltd., Inc. 350 So.2d 158

(La.1977), overruling La.App., 341 So.2d 23; Mitchem v. State ex rel.

Schaub, 250 So.2d 883 (Fla.1971). See also Nihiser v. Sendak, 405 F.

Supp. 482, 491-492 (N.D.Ind. 1974), vacated and remanded on other

grounds, 423 U.S. 976 (1975), order re-entered August 16, 1976

(unpub.), aff'd. 431 U.S. 961 (1977); Huffman v. Pursue, Ltd, 420 US.

592, 612, n. 23 (1975); of. Speight v. Slaton, 415 U.S. 333 (1974); State

ex rel. Ewing v. “Without a Stitch”, 307 N.E.2d 911 (Ohio 1974).

The following cases have held unconstitutional laws which

allow a permit to be either revoked or denied because of a prior

obscenity violation: City of Paducah v. Investment Entertainment, 791

F.2d 463 (6th Cir. 1986); Gayety Theaters, Inc. v. City of Miami, 719

F.2d 1550 (11th Cir. 1983); Entertainment Concepts Inc. Ill v. Macie-

jewski, 631 F.2d 497, 506 (7th Cir. 1980); Genusa v. City of Peoria, 475

F. Supp. 1199, 1207-09 (C.D.IIl. 1979), aff'd. 619 F.2d 1203, 1217-1220

(7th Cir. 1980); Cornflower Entertainment, Inc. v. Salt Lake City Corp.,

485 F. Supp. 777 (D.Utah 1980); Bayside Enterprises, Inc. v. Carson,

470 F. Supp. 1140 (M.D.Fla. 1979); San Juan Liquors v. Consol. City of

Jacksonville, 480 F. Supp. 151 (M.D.Fla. 1979); Natco Theatres Inc., v.

Ratner, 463 F. Supp. 1124 (S.D.N.Y. 1979); Yuclan Enterprises Inc. v.

Arre, 488 F. Supp. 820 (D.Hawaii 1980); Avon 42nd Street Corp. v.

(Continued on following page)

wis

facially invalid because they impose prior restraints of

the type struck down in Near. Four federal circuit courts

had so held, first in Universal Amusement Co., Inc. v. Vance,

587 F.2d 159, 164-166 (5th Cir. 1978), aff'd. on other

grounds, 445 U.S. 308 (1980), in which all 14 judges of the

en banc panel agreed that a business could not be

padlocked because it had committed obscenity offenses.

The Sixth, Seventh, and Eleventh Circuits agreed, holding

that business licenses could not be denied or revoked in

response to obscenity violations. See City of Paducah v.

Investment Entertainment, 791 F.2d 463 (6th Cir. 1986);

Gayety Theaters, Inc. v. City of Miami, 719 F.2d 1550 (11th

Cir. 1983); Entertainment Concepts Inc. III v. Maciejewski,

631 F.2d 497, 506 (7th Cir. 1980).

As noted above, many state courts of last resort have

also struck down prospective restraints imposed as pun-

ishment for obscenity. Typical of their reasoning is the

Georgia Supreme Court's opinion in Sanders v. State, 231

Ga. 608, 613-614, 203 S.E.2d 153, 157 (1974):

“The injunction closing the store and padlocking

it as a public nuisance necessarily halted the

(Continued from previous page)

Myerson, 352 F. Supp. 994 (S.D.N.Y. 1972); Oregon Bookmark Corp. v.

Schrunk, 321 F. Supp. 639 (D.Oregon 1970); Perrine v. Municipal

Court, 5 Cal.3d 656, 97 Cal.&ptr. 320, 488 P.2d 648 (1971), cert. den.

404 U.S. 1038 (1972); Kuhns v. Santa Cruz Co. Bd. of Sup’rs., 128

Cal.App.3d 369, 374-375, 181 Cal.Rptr. 1, 3-4 (1982); City of Seattle v.

Bittner, 81 Wash.2d 747, 505 P.2d 126 (1973); Alexander v. City of St.

Paul, 303 Minn. 201, 227 N.W.2d 370 (Minn. 1975); City of Delevan v.

Thomas, 31 Ill. App.3d 630, 334 N.E.2d 190 (1975); Hamar Theatres

Inc. v. City of Newark, 150 N.J.Super. 14, 374 A.2d 502 (1977); People

v. |.W. Productions, 413 N.YS.2d 552 (N.Y.C.Cr.Ct. 1979); State v.

Bauer, 159 Ariz. 443, 768 P.2d 175 (Ariz. App. 1988); see also Intern.

Soc. for Krishna Consciousness v. Eaves, 601 F.2d 809, 832-833 (5th Cir.

1979); Fernandes v. Limmer, 663 F.2d 619, 629-630, 632 (5th Cir. 1981);

cf. Marks v. City of Newport Ky., 344 F. Supp. 675 (E.D.Ky. 1972);

Chulchian v. City of Indianapolis, 477 F. Supp. 128, 131-132 (S.D.Ind.

1979), aff’d., 633 F.2d 27, 30 (7th Cir. 1980).

future sale and distribution of other printed

material which may not be obscene, there-

by . . . creating an unconstitutional restraint.

“(T]he overly broad coverage contemplated

by this statute . . . creates a chilling effect upon

the exercise of free expression. We cannot throw

out the protected to rid ourselves of the

unprotected as these laws would require. . . . We

must use the deft, the precise and the remedial

incision of the surgeon rather than the blud-

geoning blow of the butcher to cut away can-

cerous obscenity. If we do not, the body politic

will suffer too mortal a blow from our zeal to

have a decent society, free of obscene publica-

tions but otherwise full of poetry and prose.”

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

1987), the court likewise concluded that the state RICO

statute’s post-conviction remedies including forfeitures

would be invalid prior restraints if they restricted future,

presumptively-protected speech. The Arizona court invali-

dated such forfeitures insofar as they extended beyond the

obscene materials themselves, or proceeds from materials

determined to be obscene, and construed the statute accord-

ingly. Citing J-R Distributors, 725 F.2d at 497, the court held

that proceeds from sales of protected materials could not be

forfeited, nor could neutral speech-facilitating property such

as bookshelves be confiscated.

In J-R Distributors, Inc. v. Eikenberry, 725 F.2d 482,

493-496 (1984), rev'd. on procedural grounds sub nom.

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985), the

Ninth Circuit invalidated a law which sought to regulate

obscenity by defining the business which disseminated it

as a “moral nuisance,” punishable by unlimited civil fines

calculated on the basis of the businesses profits.!7 The

7 Although denied precedential value by its reversal on

procedural grounds, the /-R Distributors treatment of this issue

has subsequently been implicitly endorsed in Polykoff v. Collins,

816 F.2d 1326, 1338-1339 (9th Cir. 1987).

court concluded this civil penalty provision was “an obvi-

ously unconstitutional feature” of the statute:

“The statute defines a ‘moral nuisance’ .. . as a

‘place’ where obscene materials . . . may ve

found. Thus, the civil fine, which is premised in

part on profits ‘attributable to the moral nui-

sance,’ may be based on profits from the sale of

protected materials in a place that is a moral nui-

sance solely because obscene materials were

also sold or exhibited there.” Jd. at 493-494.

The J-R Distributors court held that “it is impermissible, in

an anti-obscenity statute, to provide that the amount of a

fine shall be based, even in part, on the proceeds from

constitutionally protected material.” Id. at 494. The stat-

ute’s undue consequences for constitutionally protected

speech were the central concern:

“By focusing on the place where the obscene

materials are sold or exhibited rather than the

unprotected materials themselves, the civil fine

provision endangers protected speech. Courts

that have addressed similar issues have held

that abatement of a moral nuisance ‘must be

directed to the particular books or films which

have been adjudged obscene . . . rather than

against the premises in which the material is

sold, exhibited, or displayed.’ A contrary result

would allow the government to punish pro-

tected first amendment expression simply

because obscene speech was also disseminated

from the same place.” /d. at 494.

Similarly in the case at bar, once a few items were deter-

mined obscene, every transaction at every business Peti-

tioner owned was retroactively deemed illegal, and its

proceeds forfeited along with all the other assets, instru-

mentalities, and inventory.

The Eighth Circuit’s decision in this case unques-

tionably conflicts with the Ninth Circuit’s opinion in ]-R

Distributors, as it even more dramatically conflicts with

decisions of the Fifth, Sixth, and Eleventh Circuits. Given

the government's aggressive enforcement policies and the

patent detriment to important First Amendment interests,

a Court’s review of the RICO forfeiture issue is essen-

ial.

When the government is already setting flame to

inventories of protected books, magazines, and video-

tapes, this issue has too long gone unaddressed.18

Il. THE FORFEITURE OF A $25 MILLION BU

IN ADDITION TO A SIX-YEAR PRISON pal may

AND $200,000 IN FINES, IS GROSSLY DISPRO-

PORTIONATE PUNISHMENT FOR DISTRIBUT-

{NG SEVEN OBSCENE ITEMS, AND THE COURT

OF APPEALS’ SUMMARY REJECTION OF PETI-

TIONER’S EIGHTH AMENDMENT CHALLENGE

DIRECTLY CONFLICTS WITH DECISIONS OF

THE NIN

SEVENTH CIRCUITS. ec caeaaaaad

The sum of the penalties inflicted upon Petitioner is

shockingly disproportionate to the offense, amassing the

forfeiture of his $25 million business atop a six-year

prison term and over $200,000 in fines, all for distributing

seven magazines and videos deemed obscene. The court

below essentially refused to consider Alexander’s Eighth

Amendment challenge to this egregiously cruel and

unusual sentence, adopting the Fourth Circuit’s curious

position that no proportionality review is required of any

sentence less than life imprisonment without parole. In so

doing, it ignored this Court's interpretation of the Eighth

Amendment as requiring proportionality review, and is in

direct conflict with the Ninth, Tenth, and Seventh

'* “Play the man, Master Ridley; we shall this day light

such a candle, by God’s grace, in England, as | trust shall never

be put out.” — Hugh Latimer to Nicholas Ridley as they were

being burned alive at Oxford for heresy (October 16, 1555). J.R.

Green, A Short History of the English People (1874).

Circuits’ rule requiring proportionality in RICO forfeiture

cases. !?

On historical grounds as well as under this Court’s

current proportionality analysis, this sentence merits

close Eighth Amendment scrutiny and condemnation as

“cruel and unusual punishment,” and as an excessive

fine. In 1790, even before it passed the Bill of Rights, the

First Congress acted to abolish the common law doctrine

of forfeiture of estate. RICO forfeitures represent the only

significant revival of such blanket in personam forfeitures

ever since that time. This historical fact, in combination

with the mandatory, wholesale nature of the forfeitures

mandated by the RICO Act, should make a sentence like

that imposed on Petitioner immediately suspect under

the Eighth Amendment.

This Court’s contemporary approach to Eighth

Amendment issues likewise mandates careful review of

such a sentence. In Robinson v. California, 370 U.S. 660

(1962), the Court invalidated a statute making addiction

to narcotics a criminal offense. The 90-day jail term

imposed for this status offense was “cruel and unusual”

even though the jail time was

“not, in the abstract, a punishment which is

either cruel or unusual. But the question cannot

be considered in the abstract. Even one day in

prison would be a cruel ard unusual punish-

ment for the ‘crime’ of having a common cold.”

370 U.S. at 667.

In Solem v. Helm, 463 U.S. 277, 284 (1983), this Court

reaffirmed that the Eighth Amendment “prohibits not

only barbaric punishments, but also sentences that are

disproportionate to the crime committed.” Although

reviewing courts should grant the trial court and the

legislature substantial deference, “no penalty is per se

constitutional,” the Court noted, citing Robinson, 463 U.S.

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

United States v. Harris, 903 F.2d 770 (10th Cir. 1990); United

States v. Vriner, 921 F.2d 710 (7th Cir. 1991).

at 290. Most recently, in Harmelin v. Michigan, __ U.S. __,

111 S. Ct. 2680 (1991), seven members of this Court reaf-

firmed that the Eighth Amendment entails a guarantee of

proportionality in sentencing.

The Ninth Circuit consistently applied this Court's

Solem analysis in United States v. Busher, 817 F.2d 1409 (9th

Cir. 1987), concluding that the mandatory blanket forfei-

tures required by § 1963(a) raised proportionality ques-

tions even in a case implicating no First Amendment

interests. The court reversed and remanded the forfeiture

order, instructing the trial court to determine whether

blanket RICO forfeiture was disproportionate:

“The court should be reluctant to order forfei-

ture of a defendant's entire interest in an enter-

prise that is essentially legitimate where he has

committed relatively minor RICO viola-

tions . . . resulting in relatively little illegal gain

in proportion to its size and legitimate income.”

817 F.2d at 1415-1416.

In this case, not only was the Petitioner’s business

“essentially legitimate”: he engaged in a business pro-

tected by the First Amendment for over thirty years, the

miltions of protected transactions dwarfing the dissem-

ination of seven obscene items for which he now stands

convicted.

Busher has become a cornerstone case applying Solem

v. Helm, proportionality analysis to criminal forfeitures.

Two other circuits have adopted this Ninth Circuit rule,

in United States v. Harris, 903 F.2d 770, 777 (10th Cir.

1990), and United States v. Vriner, 921 F.2d 710, 712 (7th

Cir. 1991). Another has cited it with approval: United

States v. Angiulo, 897 F.2d 1169, 1211-1212 (1st Cir. 1990).

om also United States v. Robinson, 721 F. Supp. 1541 (D.R.I.

89).

In this case, however, the Court of Appeals repeated

the error of the Fourth Circuit in United States v. Pryba,

900 F.2d at 757, by adopting the anomalous view that

“Solem v. Helm does not require a proportionality review

of any sentence less than life imprisonment without the

possibility of parole.” 943 F.2d at 836 (App. 25.) “We

cannot conclude,” the court went on, “that the district

court abused its discretion in sentencing Alexander.” Id.

This cursory dismissal of Alexander’s Eighth Amend-

ment challenge to this extreme judgment for obscenity

offenses even ignores the fact that the trial court had no

discretion with regard to forfeiture because § 1963(a)

makes total forfeiture mandatory upon conviction.

The Eighth Circuit’s decision on this point, and those of

the Fourth Circuit on which it relied, clearly conflict with the

Ninth, Tenth, and Seventh Circuits’ application of propor-

tionality in Busher and its progeny, a conflict which urgently

requires this Court’s resolution. In this regard among others,

the court below has alarmingly misapprehended both Eighth

and First Amendment doctrine, and the broader implications

of its errors, particularly in their detriment to First Amend-

ment rights, even more urgently calls for redress by this

Court.

* * *

Whether from the perspective of the First Amendment's

or the Eighth Amendment's restrictions on governmental

power, the remedies the government has invoked below are

monstrously inappropriate and unacceptable. They should

be rejected because they exact far too great a cost from

communicative businesses for an error involving expression,

and because they extend too tempting an invitation for

government to suppress disfavored speech.

Libel, slander, invasion of privacy, and obscenity all

represent errors of judgment by media businesses. The

unprotected nature of such speech offenses is usually discer-

nible, if at all, only long after the challenged conduct. An

essential theme of this Court’s interpretations of the First

Amendment has been that its protection serves as a neces-

sary buffer between those engaged in controversial, robust,

or error-prone expression and those who would censor it.

The ultimate vice of the RICO forfeiture remedy as

approved by the court below is that the First Amendment

buffer will be diminished to the vanishing point, to the quick

detriment of all speech, not just erotica. Just as New York

Times v. Sullivan was predicated upon Smith v. California, First

Amendment protection for newspapers, movie studios, and

the electronic media will not long survive the deployment of

obscenity-predicated RICO forfeitures. For if unlimited pen-

alties may be assessed against media businesses for such

mistakes, then there is no constitutional impediment to

destroying our great newspapers with unlimited sanctions

for libel or jeopardizing national security.

There is simply no principled distinction between the

government’s destruction of Petitioner’s erotica businesses

because of seven wrong guesses about community standards

regarding obscenity, and silencing the New York Times for

improperly publishing the advertisement about Mr. Sullivan.

Both cases involve communicative material of interest to vast

segments of the American people; both involve isolated

instances of unprotected expression. Both were initially sub-

jected to harsh economic consequences fatal to their continu-

ing survival as media businesses, resulting in a total

embargo on their messages to the public. The New York Times

was ultimately reprieved by this Court. If Ferris Alexander is

not, then Mr. Sullivan may well still have the last laugh.

CONCLUSION

For all the foregoing reasons, Petitioner respectfully

urges this Court to grant a writ of certiorari and to reverse

the decision below.

Respectfully submitted,

JoHN H. WestTon*

CaTtHy E. Crosson

G. RANDALL GARROU

Ciype F. Dewitt

WeEsTON, SARNO, GARROU & Dewitt

433 N. Camden Drive, Suite 900

Beverly Hills, California 90210

(310) 550-7460

Attorneys for Petitioner

*Counsel of Record

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APPENDIX A

Ferris ALEXANDER, Appellant,

- v.

Richard THORNBURGH, in his official

capacity only as Attorney General

of the United States, Appellee.

UNITED STATES of America, Appellee,

Ferris Jacob ALEXANDER, Sr., a/k/a

Pete Saba, Peter Saba, Paul Saba, John

Thomas, Bob Olson, Jim Nelson, Jim

Peterson, James Peterson, Robert Carl-

son, Frank Netti, Appellant.

Nos. 89-5364, 90-5417.

United States Court of Appeals,

Eighth Circuit.

Submitted March 13, 1991.

Decided Aug. 30, 1991.

Rehearing and Rehearing En Banc

Denied Oct. 30, 1991.

Before JOHN R. GIBSON and WOLLMAN, Circuit

Judges, and FLOYD R. GIBSON, Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Following a four-month trial, a jury convicted Ferris

J. Alexander, Sr., on 24 counts! of a 41-count indictment.

' A jury convicted Alexander on one count of conspiracy

a to defraud the United States by impeding the lawful functions

of the Internal Revenue Service in violation of 18 U.S.C. § 371

(Continued on following page)

App. 2

The counts included conspiracy to defraud the IRS, the

sale of obscene magazines and videos, tax evasion, and

RICO violations. Alexander appeals from his convictions

and the application of the forfeiture provisions of 18

U.S.C. § 1963 (1988). Alexander argues that his conviction

of engaging in a conspiracy to defraud the IRS should be

reversed because: (1) the indictment alleged and the evi-

dence showed, if anything, multiple conspiracies and not

one conspiracy; and (2) the count was defective because it

charged a general conspiracy rather than a conspiracy to

violate a specific statute. He also argues that his convic-

tions for transporting obscene materials must be reversed

because the jury’s verdicts are inconsistent. He also

attacks the district court's? application of the forfeiture

provisions of RICO, arguing that the application of RICO:

(Continued from previous page)

(1988); two counts of filing false income tax returns in violation

of 26 U.S.C. § 7206(1) (1988); three counts of violating 18 U.S.C.

§ 1962 (1988) (RICO), including conspiracy to engage in or

conduct an enterprise through a pattern of racketeering activ-

ity, receipt and use of income derived from a pattern of rack-

eteering activity, and engaging in the conduct of an enterprise

through a pattern of racketeering activity; twelve counts of

knowingly transporting obscene material in interstate com-

merce for the purpose of sale or distribution in violation of 18

U.S.C. § 1465 (1988); five counts of engaging in the business of

selling or transferring obscene material in violation of 18

U.S.C. § 1466 (1988); and one count of falsely misrepresenting a

social security number for the purpose of impeding the IRS in

violation of 42 U.S.C. § 408(g)(2) (1988) (now codified at 42

U.S.C.A. § 408(a7)(B) (West Supp.1991)).

2 The Honorable James M. Rosenbaum, United States Dis-

trict Judge for the District of Minnesota.

App. 3

(1) unconstitutionally criminalized non-obscene expres-

sive material; and (2) violated the first and eighth amend-

ments to the United States Constitution. He further

argues that the obscenity standards set forth in Miller v.

California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419

(1973), violate his due process and first amendment

rights. He also claims that the evidence was insufficient

to support his convictions of filing a false income tax

return, violating RICO, using a false social security

number, and on all other counts. Finally, in a separate

appeal, he appeals from the district court's’ entry of

summary judgment in his civil suit filed against the gov-

ernment arguing that the use of obscenity as a predicate

to RICO violated his first amendment rights. We affirm

the convictions, and the orders of summary judgment and

forfeiture.

The evidence presented at the four-month trial was

far-reaching and spanned a thirty year period. Only a

brief outline of that evidence is necessary for our pur-

poses, and we will provide further details as required in

analyzing the issues on appeal.

Alexander was in the adult entertainment business

for more than 30 years selling magazines, showing

movies, and eventually selling and leasing video cas-

settes. The evidence at trial established that Alexander set

up sham corporations and operated many of his busi-

nesses using false names and names of employees.

3 The Honorable David S. Doty, United States District

Judge for the District of Minnesota.

App. 4

For example, evidence showed that from 1959 to

1976, Alexander used the name of an employee, Kenneth

LaLonde, to conduct his businesses under the name of

Kenneth LaLonde Enterprises. In 1969, Alexander hired

an attorney, Robert J. Milavetz, who incorporated several

corporations under the name of Kenneth LaLonde Enter-

prises. Alexander obtained licenses required for these

businesses and opened bank accounts under LaLonde’s

name. Reports were also sent to the State of Minnesota

under the name of Kenneth LaLonde Enterprises. The

businesses were reported on LaLonde’s individual tax

return, and no corporate tax returns were filed.

Eventually, Milavetz had a falling out with Alexander

and Alexander began using other attorneys, including

Randall Tigue. In 1976, Tigue witnessed LaLonde’s signa-

ture as the incorporator of two more corporations. Alex-

ander consolidated the operation of his theaters and

bookstores under these corporations, and on May 1, 1977,

the name of LeRoy Wendling was substituted as the front

name used to conduct Alexander’s businesses. Alexander

opened bank accounts for these corporations under the

name of Wendling, another Alexander employee. These

corporations were also reported to state and federal agen-

cies showing Wendling as the owner. Corporate tax

returns were filed and signed with a signature stamp of

Wendling’s name.

Wendling filed his personal tax returns listing Alex-

ander’s income. This arrangement continued until the

end of 1980, when Wendling was fired, and the name

“John Thomas” was substituted on some of these records

and placed on the Wendling bank account. Alexander

App. 5

admitted that the name “John Thomas” was “the name

[he] used.”

On December 27, 1984, In Sok Na, another Alexander

employee, executed, as incorporator and first director, the

articles of incorporation for ten different corporations. In

Sok Na was a Korean immigrant and spoke little English.

Alexander testified that he formed these corporations to

avoid potential civil liability. The names of six of the

corporations were in Finnish and four were in a dialect of

the Philippines. None of these corporations filed tax

returns. Two of the corporations were used to buy real

estate and a bookstore.

In addition to using the names of LaLonde, Wen-

dling, and Na, Alexander used a number of other names

in operating bank accounts, obtaining licenses, and com-

plying with various state and federal reporting regula-

tions.

The government's evidence showed several examples

of the lengths to which Alexander went to conceal his

identity as the owner and operator of his various busi-

nesses. During the time Alexander ran his businesses

under the name of LaLonde Enterprises, Alexander sent

Milavetz to unemployment compensation hearings and

instructed Milavetz to appear on behalf of Kenneth

LaLonde or Kenneth LaLonde Enterprises. In one

instance, LaLonde signed a license application for one of

the theatres known as the “Flick.” LaLonde appeared

4 The translation of these corporate names was profane,

and the district court excluded the translation as having more

prejudicial value than probative value.

App. 6

before the St. Paul City Council in the licensing applica-

tion proceedings acting as the “owner” of the business.

After the City Council balked at granting the license,

Tigue advised the Council that he represented Alexander

and LaLonde and a lease existed between the two. Subse-

quently, Tigue filed a lawsuit in the United States District

Court against the City of St. Paul and its council members

on behalf of Alexander and LaLonde stating that a lease

existed between LaLonde and Alexander. The city council

subsequently granted the license in LaLonde’s name.

LaLonde testified that he became aware of the lawsuit by

reading about it in the newspaper, that he never had a

lease on the business, and that his signature verifying the

complaint, notarized by Tigue, was a forgery. In later

years, licenses were issued in LaLonde’s name without

his knowledge, but with the participation of Tigue, and

continued after LaLonde left Alexander’s employ.

The revenues generated from Alexander’s retail and

rental stores were brought to him at the central ware-

house and main office where the cash was commingled

and taken to various banks. Alexander deposited some of

the cash in various accounts and converted the rest into

large denomination bills, cashier checks, and money

orders. The cashier checks and money orders were pay-

able to various individuals and entities. All expenses

were paid out of Alexander’s primary bank accounts, and

all merchandise was shipped from California to his ware-

house, where it was wrapped, priced, and boxed for

distribution to Alexander’s retail outlets. Because of dis-

organized and incomplete records, the government had a

difficult time attempting to calculate Alexander’s income.

Nevertheless, the government estimated that Alexander

App. 7

underreported his 1982 gross receipts by $1,322,135 and

$1,416,883 in 1983.

Alexander testified about many of these details. He

confirmed that he used LaLonde, Wendling, and other

individuals’ names in the operation of his businesses, and

that revenues from the businesses were reported on

LaLonde’s and Wendling’s personal tax returns. He

admitted that he purchased properties and submitted

reports to state and federal agencies in other people's

names. He attributed many of these decisions to Tigue

and stated that he had no knowledge of some of the

various businesses. Alexander also admitted that he

signed a form on a Paine Webber investment account

using a social security number that was not his social

security number.

The jury found four magazines and three videos to be

obscene, and these findings were the basis for convicting

Alexander of transporting obscene materia’ “or the pur-

pose of sale, selling obscene materials, ai » RICO

counts.

After the return of guilty verdicts, the district court

reconvened the same jury to hear a portion of the forfei-

ture proceeding under 18 U.S.C. § 1963(a)(2). The jury

heard additional evidence, including Alexander’s testi-

mony regarding the forfeitability of his interest in the

enterprise and the property that afforded him a source of

influence over the enterprise. Thereafter, the district court

reconvened without a jury for a further evidentiary hear-

ing as to forfeiture of any interest Alexander had

acquired or maintained in violation of section 1962 and of

any property constituting proceeds obtained directly or

App. 8

indirectly from racketeering activity. The government

offered additional evidence of 30 magazines and 16 vid-

eos purchased or seized by the FBI during its criminal

investigation, and an additional 418 videos and 9 maga-

zines were admitted through the testimony of witnesses

who had appeared as representatives of Alexander’s

wholesale sources.

The court sentenced Alexander to terms of imprison-

ment ranging from 36 to 72 months, all terms to run

concurrently. United States v. Alexander, No. 4-89-85(1),

Order and Judgment of Sentencing. slip op. at 3 (D.Minn.

Aug. 13, 1990). In addition, the court imposed a fine of

$100,000 and a special assessment of $950, and ordered

Alexander to pay the costs of itis incarceration ($1,415.56

per month), his supervised release ($96.66 per month),

and the costs of prosecution ($29,737,84) Id. at 6-7. Finally,

pursuant to 18 U.S.C. § 1963(a)(2), the court ordered

forfeiture of Alexander's interest in ten of fourteen pieces

of commercial real estate in which the jury found beyond

a reasonable doubt Alexander had an interest or which

afforded Alexander a source of influence over the rack-

eteering enterprise and which the court concluded were

acquired, maintained, or derived from proceeds of the

racketeering activity.> Id. at 7 (incorporating Order and

Judgment of Forfeiture (Aug. 6, 1990)). Alexander for-

feited his interest in his wholesale business and thirteen

retail businesses (bookstores and video stores) that were

> Titles to the other four pieces of real estate Alexander

used for his magazine and video businesses were held in the

name of Dolores Alexander and were not forfeited to the

United States as a result of the jury’s forfeiture verdict.

App. 9

used in the criminal enterprise, and $8,910,548.10 in

monies acquired, maintained, or constituting proceeds

obtained from the racketeering activity in the years 1985

through 1988. United States v. Alexander, No. 4-89-85,

Order and Judgment of Forfeiture, slip op. at 6, 11, 1990

WL 117882 (D.Minn. Aug. 6, 1990). Alexander also for-

feited his interest in business assets and personal prop-

erty. Id. at 6-11. This appeal followed.

Alexander appeals the jury’s verdict on the conspir-

acy count (Count i) arguing that the count is defective in

two ways. The indictment alleged that over the course of

twenty years, Alexander engaged in a conspiracy to

defraud the United States by defeating the lawful func-

tions of the IRS. This has become known as a Klein

conspiracy, taking its name from United States v. Klein, 124

F.Supp. 476 (S.D.N.Y.1954), aff'd, 247 F.2d 908 (2d

Cir.1957), cert. denied, 355 U.S. 924, 78 S.Ct. 365, 2 L.Ed.2d

354 (1958).

Alexander contends that the district court must

reverse his conviction on Count | because the indictment

alleged a single overall conspiracy and the proof at trial

showed not a single conspiracy, but a series of separate

conspiracies. Kotteakos v. United States, 328 U.S. 750,

773-74, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). Alex-

ander argues that there was not just one conspiracy for

twenty years, pointing out that at the time the alleged

conspiracy started some key members were in high

school. He further argues that he had dismissed many of

the members of the alleged conspiracy and that they had

App. 10

no knowledge of later transactions. He asserts that look-

ing at the totality of the circumstances, this case is a

“series of scenes of a life of hustling” and not one con-

spiracy.

Whether a conspiracy is one scheme or several is

primarily a jury question. United States v. Wilson, 497 F.2d

602, 604 (8th Cir.), cert. denied, 419 U.S. 1069, 95 S.Ct. 655,

42 L.Ed.2d 664 (1974). As this court has stated:

The general test is whether there was “one over-

all agreement” to perform various functions to

achieve the objectives of the conspiracy. ... A

conspirator need not know all of the other con-

spirators or be aware of all the details of the

conspiracy, so long as the evidence is sufficient

to show knowing contributions to the fur-

therance of the conspiracy.

United States v. Massa, 740 F.2d 629, 636 (8th Cir.1984)

(quoting United States v. Zemek, 634 F.2d 1159, 1167 (9th

Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67

L.Ed.2d 341 (1981)), cert. denied, 471 U.S. 1115, 105 S.Ct.

2357, 86 L.Ed.2d 258 (1985) (other citations omitted).

We have also stated that “[t]he existence of a single

agreement can be inferred if the evidence revealed that

the alleged participants shared ‘a common aim or pur-

pose’ and ‘mutual dependence and assistance’ existed.”

United States v. DeLuna, 763 F.2d 897, 918 (8th Cir.), cert.

denied, 474 U.S. 980, 106 S.Ct. 382, 88 L.Ed.2d 336 (1985)

(citations omitted).

We are satisfied that the evidence supported a jury

finding of a single Klein conspiracy, spanning many years

and involving numerous individuals with the common

App. 11

goal of impairing and impeding the IRS in determining

the nature and extent of Alexander’s businesses. We

therefore reject Alexander’s argument that Count I was

defective because it failed to allege multiple conspiracies.

Second, Alexander argues that Count I of the indict-

ment is defective because it should have charged him

with a conspiracy to commit a specific crime under 26

U.S.C. § 7206(1) (1988), rather than a conspiracy to

defraud under 18 U.S.C. § 371. Alexander relies on United

States v. Minarik, 875 F.2d 1186 (6th Cir.1989), and United

States v. Mohney, 723 F.Supp. 1197 (E.D.Mich.1989).

In Minarik, the defendants were charged with will-

fully conspiring to defraud the United States by imped-

ing, impairing, obstructing, and defeating the lawful

functions of the Department of the Treasury in violation

of 18 U.S.C. § 371. 875 F.2d at 1188. The government did

not allege a conspiracy to commit an offense against the

United States - another provision of 18 U.S.C. § 371,

despite the fact that its evidence at trial and the bill of

particulars alleged that the conspiracy was one to violate

26 U.S.C. § 7206(4) (concealment of assets with intent to

evade or defeat assessment of tax). Id. at 1188-89. The

Sixth Circuit stated that when Congress has enacted a

specific statute addressing a given problem, thus creating

a specific offense, “[t]he court should require that any

conspiracy prosecution charging that conduct be brought

under the offense clause” of 18 U.S.C. § 371, rather than

under the defraud clause of that statute. Jd. at 1193. In

Mohney, a Michigan district court dismissed the first

count in an indictment alleging conspiracy to defraud the

government because the government's accusation in the

count was essentially a charge that defendants conspired

—

App. 12

to violate 26 U.S.C. § 7206, and therefore, under Minarik

the conspiracy had to be charged under the offense clause

of the conspiracy statute. 723 F.Supp. at 1203.

Minarik is quite limited, however, to its facts. As that

court explained:

[t]he “offense” and “defraud” clauses as applied

to the facts of this case are mutually exclusive,

and the facts proved constitute only a conspir-

acy under the offense clause to violate 26 U.S.C.

§ 7206(4)....

875 F.2d at 1187.

In Minarik, the defendants engaged in a narrow

course of conduct directed at one object - to sell a house

and get the money in an untraceable manner. This obvi-

ously is not the circumstance in this case in which Alex-

ander’s conduct is long-spanning, far-reaching, and

involves many activities and events. Moreover, Alexander

does not even argue that he lacked adequate notice of the

charge he had to defend, and at least one court has held

that this is the only holding of Minarik. United States v.

Reynolds, 919 F.2d 435, 438-39 (7th Cir.1990), cert. denied,

___ US. __, 111 S.Ct. 1402, 113 L.Ed.2d 457 (1991); see

also United States v. Bilzerian, 926 F.2d 1285, 1301 (2d

Cir.1991), pet’n for cert. filed, No. 90-1803 (May 22, 1991).

We do not believe that Mohney is applicable or persua-

sive. We reject Alexander’s argument that Count I was

defective because it alleged a violation of 18 U.S.C. § 371.

II.

Alexander next argues his convictions for transport-

ing and selling obscene materials must be vacated

App. 13

because the jury’s verdicts are inconsistent, and the

inconsistency mandaies a conclusion that there was insuf-

ficient evidence to support these convictions. Alexander

contends that the jury verdicts are inconsistent because

the jury found some items obscene in one count and not

obscene in other counts. Specifically, Alexander points

out that the jury returned a verdict of not guilty on some

of the counts involving the magazine the Fat Book, and

guilty verdicts as to other counts involving the same

magazine. He also says a verdict inconsistency is shown

by comparing the jury’s guilty verdict on Count XXXIX

involving the magazines “Sweet” and “Party,”® and not

guilty verdicts on ali counts involving the single sale of

the magazine “Sweet.” (Counts XXVI, XXVII and XL).

Alexander’s argument is spurious. The court

instructed the jury that when a count alleges two differ-

ent videotapes or magazines to be obscene, they must

find only one of them to be obscene in order to return a

guilty verdict.? The verdicts therefore are not inconsis-

tent.

6 The jury found some of these materials obscene, and

their titles insofar as they are not descriptive of the contents,

serve to create interest in the contents. As the argument is

directed at the inconsistency of the evidence, and not the

sufficiency, we believe it sufficient to simply identify the first

magazine by its last word “Party,” and the other by its first

word “Sweet.”

7 Alexander argues in his reply brief that the court's

instruction is constitutionally impermissible because the

instruction did not allow the jury to make a specific finding of

(Continued on following page)

App. 14

Alexander further argues that the jury did not apply

contemporary community standards, but instead made

impermissible distinctions based on values of taste,

morality, and cultural rejection, resulting in inconsistent

or compromise verdicts. Alexander’s argument asks us to

speculate on how the jury reached its verdicts, which we

may not do. The district court defined obscenity in accor-

dance with the definition of obscenity announced in Mil-

ler v. California, 413 U.S. 15, 24-25, 93 S.Ct. 2607,

2614-2615, 37 L.Ed.2d 419 (1973). Under its instructions,

the question of obscenity is one of fact to be determined

by the jury, and we cannot conclude that the jury’s ver-

dicts are inconsistent or the result of compromise. More-

over, this court has explained “ ‘inconsistency of a verdict

on separate counts of an indictment does not entitle a

convicted defendant to reversal of a judgment of convic-

tion.’ ” United States v. Martin, 933 F.2d 609, 612 (8th

Cir.1991) (quoting United States v. Bryant, 766 F.2d 370,

376 (8th Cir.1985), cert. denied, 474 U.S. 1054, 106 S.Ct. 790,

88 L.Ed.2d 768 (1986)). We reject Alexander’s argument

that his convictions for transporting and selling obscene

materials should be reversed because the verdicts are

inconsistent or the result of compromise.

(Continued from previous page)

which item in the two-item counts is obscene. Alexander, how-

ever, does not say that he objected to this instruction, and, in

any event, we see nothing impermissible about such an

instruction.

App. 15

III.

Alexander also argues in both his civil and criminal

appeals® that the legal standard of obscenity enunciated

in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37

L.Ed.2d 419 (1973), violates the fifth amendment’s due

process clause and the first amendment’s freedom of

speech provision. He claims that the rationales advanced

for criminalization of sexually explicit materials are fun-

damentally antithetical to the constitutional guarantees of

free speech and privacy. Alexander goes on to argue that

statutes criminalizing the distribution of obscefity are

inherently overbroad and that the Miller test fails to pro-

vide fair notice of prohibited speech and encourages arbi-

trary enforcement, which renders the federal obscenity

statute void for vagueness and unduly chilling free

speech.

We summarily reject Alexander’s arguments. The dis-

trict courts did not err in rejecting Alexander's invitation

to overturn Miller. See Fort Wayne Books, Inc. v. Indiana,

489 US. 46, 57-58, 109 S.Ct. 916, 924-925, 103 L.Ed.2d 34

8 In his civil suit, Alexander sought: 1) a declaratory judg-

ment that the application of the RICO statute to obscenity

offenses violated his first amendment rights, and 2) a perma-

nent injunction prohibiting the application of the RICO statute

to obscenity offenses. The district court granted the Attorney

General’s motion to dismiss and motion for summary judg-

ment. Alexander v. Thornburgh, 713 F.Supp. 1278 (D.Minn.),

appeal dismissed, 881 F.2d 1081 (8th Cir.1989). Alexander's

appeal in that case has been consolidated with the appeal from

his criminal convictions, and to the extent the issues in his civil

appeal are not moot, the issues are discussed in this opinion.

App. 16

(1989) (reaffirming Miller). If this is to be done, it must be

done by the Supreme Court.

IV.

Alexander argues that the application of the forfei-

ture provision of 18 U.S.C. § 1962 unconstitutionally

criminalizes nonobscene expressive material. He argues

that sexually explicit expressive materials are not obscene

until a trier of fact in an adversarial judicial proceeding

utilizing the three-part test enunciated in Miller, 413 U.S.

at 23-24, 93 S.Ct. at 2614-2615, finds them to be obscene,

and that the Miller test must be applied to all material the

government seeks to restrain. Alexander relies on Marcus

v. Search Warrant of Property, 367 U.S. 717, 81 S.Ct. 1708, 6

L.Ed.2d 1127 (1961), and Vance v. Universal Amusement

Company, 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413

(1980), to support his position. Alexander argues that

Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357

(1931), requires that any law restricting speech be tested

for its operation and effect on protected speech, and that

Marcus and Vance applied such a test in refusing to

endorse obscenity laws that interfered with the sale of

nonobscene materials. In Marcus, the Supreme Court

invalidated the large-scale confiscation of expressive

materials without a prior adversarial hearing as an

impermissible prior restraint. 367 U.S. at 731-33, 81 S.Ct.

at 1715-17. In Vance, the Court prohibited the “padlock-

ing” of businesses for up to a year for past violations of

obscenity laws as an impermissible prior restraint. 445

U.S. at 317, 100 S.Ct. at 1162. Alexander recognizes that

these cases involved prior restraints, but argues that

these cases show the need for an adversarial proceeding

App. 17

focusing on the question of obscenity for all of the mate-

rials finally restrained.

Alexander continues in his argument focusing on

section 1962(c), which requires that an accused conduct

an enterprise through a pattern of racketeering activity.

The nub of Alexander’s argument is that to prove a

criminal enterprise under RICO, Miller requires the gov-

ernment to charge and prove that: (1) all the materials

sold by the enterprise taken as a whole are obscene; or (2)

all the materials sold by his enterprise considered as

individual works are obscene. He claims that the applica-

tion of section 1962(c) to this case has created the absurd

result of criminalizing the sale of millions of dollars of

non-obscene materials by an enterprise that during its 20

years of existence sold just four magazines and three

videotapes that were later found to be obscene.

The Fourth Circuit rejected many, if not all, of Alex-

ander’s arguments in United States v. Pryba, 900 F.2d 748

(4th Cir.), cert. denied, _ US. __, 111 §.Ct. 305, 112

L.Ed.2d 258 (1990). In Pryba, the defendants were con-

victed on seven counts of transporting obscene materials

in interstate commerce for sale and distribution, and

these counts, coupled with prior state obscenity convic-

tions, were used as predicate RICO offenses. The Pryba

defendants argued that the forfeiture order resulted in

“the confiscation and restraint of a vast inventory of

presumptively protected expressive material,” and the

application of the forfeiture provisions resulted in an

unconstitutional prior restraint of protected activity. They

also argued that the RICO forfeiture provisions violated

the first amendment because the provisions lacked the

App. 18

procedural safeguards necessary to insure that protected

expression was not erroneously suppressed. Id. at 753.

The Fourth Circuit’s answer to Pryba’s arguments

directly applies to the nearly identical arguments made

by Alexander. The court stated:

The forfeiture provided by 18 U.S.C. § 1467 does

not violate the First Amendment even though

certain materials, books and magazines, that are

forfeited, may not be obscene and, in other cir-

cumstances, would have constitutional protec-

tion as free expression. There was a nexus

established between defendants’ ill gotten gains

from their racketeering activities and the pro-

tected materials that were forfeited. The forfei-

ture did not occur until after defendants were

convicted of violating various obscenity statutes

and of participating in a racketeering activity,

and until after it was established beyond a rea-

sonable doubt that the proceeds from these

criminal activities had been used to acquire the

arguably protected publications.

Id. at 755.

The Pryba court rejected an argument that Fort Wayne

Books required a different conclusion and stated further:

The forfeiture of nonobscene books, magazines

and video tapes, after a conviction of racketeer-

ing involving the sale of obscene goods and

after the jury has determined that the forfeited

materials were acquired or maintained in viola-

tion of 18 U.S.C. § 1962 and afforded the Prybas

a source of influence over the racketeering

enterprise, does not violate the First Amend-

ment. The fact that some of the materials for-

feited are not obscene does not protect therm

«ete a

App. 19

from forfeiture when the procedures established

by RICO are followed, as they were in the pre-

sent case.

Id. at 756.

Alexander argues that the decision of the Fourth

Circuit in Pryba is not applicable as it dealt with a facial

challenge to the RICO forfeiture statute and not to the

unconstitutional application of section 1962.

We reject Alexander's distinction. As in Pryba, a jury

convicted Alexander on the RICO charges brought under

18 U.S.C. § 1962(c) and predicate obscenity offenses

under 18 U.S.C. § 1465. (Here, Alexander was also con-

victed under section 1466). Like Pryba, the jury found

some items charged in the indictment obscene, some not,

and was unable to reach a verdict on others. In both

cases, after the jury reached a verdict finding violations

of 18 U.S.C. § 1962, the same jury heard additional testi-

mony on the issue of forfeiture, found that the defendants

had an interest in property that gave them a source of

influence over the enterprise, and ordered that certain of

the assets, including the bookstores and video stores, be

forfeited. Pryba differed from the case before us in that

fifteen prior obscenity convictions of the corporate defen-

dant were introduced in evidence. Id. at 758. Neverthe-

less, with this exception, the facts in Pryba are nearly

identical to those here.

Furthermore, the government argues with persuasive

force that in addition to the thirteen magazines and vid-

eos that were introduced, it was prepared to ofter addi-

tional items not named in the indictment. On the state of

this record, Alexander may not now argue that the jury

App. 20

must have found all of the materials seized in the forfei-

ture proceedings obscene under Miller.

In his reply brief, Alexander asserts that Sable Com-

munications v. Federal Communications Commission, 492

U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989), further

supports his argument that the application of the RICO

forfeiture provision unconstitutionally criminalized the

sale of expressive material.

In Sable, the Supreme Court examined the constitu-

tionality of a federal criminal statute prohibiting the sale

of “indecent” or “obscene” commercial telephone mes-

sages. Id. at 117, 109 S.Ct. at 2832. The Court upheld the

criminal prohibition against obscene messages, but struck

down the ban on indecent messages. Id. Alexander argues

that based on Sable, the government cannot criminally

prosecute Alexander for selling non-obscene material any

more than Congress could criminalize the sale of non-

obscene messages.

Alexander’s argument misses the mark. Alexander

was not prosecuted for selling non-obscene material, and

Sable has no bearing on the facts presented in this case.

For the several reasons discussed, we reject Alexander’s

argument that the application of 18 U.S.C. § 1962 uncon-

stitutionally criminalizes non-obscene expressive mate-

rials.

Alexander next argues in both his civil and criminal

appeals that the application of the RICO forfeiture

et . e

App. 21

provisions violates the first amendment.’ Specifically, he

contends that the forfeiture results in an unconstitutional

prior restraint, imposes an unconstitutional chilling effect

on constitutionally protected expression, and is constitu-

tionally overbroad. The Fourth Circuit summarily

rejected these same arguments in Pryba, concluding that

“[o]bscenity is not protected by the First Amendment and

a convicted racketeer may not launder his dirty money by

investing it in materials that involve protected speech.”

900 F.2d at 756.

Alexander, like the Pryba defendants, relies on Fort

Wayne Books to support his position that the application

of the RICO forfeiture provisions causes an unconstitu-

tional prior restraint. There is, however, no similarity to

the procedural posture in this case and the pretrial seizure

condemned in Fort Wayne Books. 489 U.S. at 66, 109 S.Ct.

at 929.

Alexander’s convictions on obscenity counts may

serve as a predicate to a RICO violation, and do not

constitute a prior restraint. The First Amendment is not

violated when there is a nexus established between the

ill-gotten gains from racketeering activity and the pro-

tected materials forfeited. Pryba, 900 F.2d at 755.

Here, the RICO forfeiture provisions constitute a

crimii.>! penalty imposed following a conviction for con-

ducting an enterprise engaged in racketeering activities.

Courts have recognized the substantial difference

% The district court rejected Alexander's facial challenge to

the application of the RICO forfeiture provisions in United

States v. Alexander, 736 F.Supp. 968, 977-80 (D.Minn. 1990).

App. 22

between prior restraints and criminal penalties. See, €.g.,

Arcara v. Cloud Books, Inc., 478 U.S. 697, 705-06 & n. 2, 106

S.Ct. 3172, 3176-77 & n. 2, 92 L.Ed.2d 568 (1986); South-

eastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59, 95

S.Ct. 1239, 1246-47, 43 L.Ed.2d 448 (1975); Kingsley Books,

Inc. v. Brown, 354 U.S. 436, 441-45, 77 S.Ct. 1325, 1327-28, 1

L.Ed.2d 1469 (1957).

Alexander next argues that the forfeiture imposes an

unconstitutional chilling effect on protected expression.

The Supreme Court has directly addressed the chilling

effect from the application of the RICO forfeiture provi-

sions to obscenity offenses and to first amendment pro-

tected materials:

It may be true that the stiffer RICO penalties

will provide an additional deterrent to those

who might otherwise sell obscene materials;

perhaps this means . . . that some cautious book-

sellers will practice self-censorship and remove

First Amendment protected materials from their

shelves. But deterrence of the sale of obscene

materials is a legitimate end of state anti-

obscenity laws, and our cases have long recog-

nized the practical reality that “any form of

criminal obscenity statute applicable to a book-

seller will induce some tendency to self-censor-

ship and have some inhibitory effect on the

dissemination of material not obscene.” The

mere assertion of some possible self-censorship

resulting from a statute is not enough to render

an anti-obscenity law unconstitutional under

our precedents.

Fort Wayne Books, 489 U.S. at 60, 109 S.Ct. at 925 (citing

Smith v. California, 361 U.S. 147, 154-55, 80 S.Ct. 215,

219-20, 4 L.Ed.2d 205 (1959)).

Oe he Re A ra,

wt A aA bor

i i ed eo, ee

App. 23

We reject Alexander’s argument that the forfeiture

provisions have an unconstitutionally chilling effect on

first amendment rights.

We also reject Alexander’s argument that the reach of

the RICO forfeiture provisions is unconstitutionally over-

broad. In Arcara, the Supreme Court upheld the closure of

a bookstore that had been used as a front for prostitution.

The Court stated that criminal and civil sanctions are not

subject to “ ‘least restrictive means scrutiny’ ” because a

particular remedy “will have some effect on the First

Amendment activities of those subject to sanction.” 478

U.S. at 706, 106 S.Ct. at 3177.

Here, the court specifically and properly limited the

forfeiture to profits, ‘Teal estate, and businesses directly

related to Alexander’s interstate transportation and sale

of obscene magazines and videos. The forfeiture is not

unconstitutionally overbroad. '&

VL.

Alexander argues that his sentence, primarily the

forfeiture order, violates the eighth amendment prohibi-

tion against cruel and unusual punishments and exces-

Sive fines.

applied a remedy requiring forfeiture of proceeds which were

proportional or traceable to the sale of obscene material. There

is, however, no requirement that courts engage in such a test in

applying the RICO forfeiture provisions. See, e.g., United States

v. Regan, 858 F.2d 115, 119 (2d Cir.1988); United States v. Kravitz,

738 F.2d 102, 104-05 (3d Cir. 1984), cert. denied, 470 U.S. 1052,

10S S.Ct. 1752, 84 L.Ed.2d 816 (1985).

App. 24

The Supreme Court has set forth a three-part test for

determining whether a sentence violates the eighth

amendment. The test requires a comparison of: (1) the

gravity of the offense and the harshness of the penalty;

(2) the sentences imposed for the same or similar offenses

in the same jurisdiction; and (3) the sentences imposed

for the same or similar offenses in other jurisdictions.

Solem v. Helm, 463 U.S. 277, 290-92, 103 S.Ct. 3001,

2009-11, 77 L.Ed.2d 637 (1983).

A sentence imposed is entitled to “substantial defer-

ence” and we may only consider “whether the sen-

tence . . . is within the constitutional limits.” Solem, 463

U.S. at 290 and n. 16, 103 S.Ct. at 3009 and n. 16.

The district court imposed Alexander’s prison sen-

tence based on the Sentencing guidelines. 28 U.S.C. § 994

(1988). Alexander does not specifically attack his prison

sentence. Instead, he appeals from the forfeiture order

arguing once again that the income “from the two pat-

terns of racketeering amoun(t] only to an infinitesimal

percentage of his legitimate income,” and that when the

forfeiture is combined with the fine and prison sentence,

the “harshness” of the penalty is “amazingly unfair.”

Alexander cites one decision in which the Ninth Cir-

cuit remanded the case for a determination of whether

the forfeiture was grossly disproportionate or excessive,

United States v. Busher, 817 F.2d 1409, 1414-16 (9th

Cir.1987), and contends that this case should be followed

here.

Nevertheless, in the only other RICO-obscenity case

in the country, the Fourth Circuit held that the forfeiture

of a business with total annual sales of $2 million as a

App. 25

result of $105.30 of material found to be obscene did not

constitute a cruel and unusual punishment or an exces-

sive fine prohibited by the eighth amendment. Pryba, 900

F.2d at 753, 756-57. The Fourth Circuit added that it was

not even required to conduct a proportionality review

because the defendants did not receive a sentence of

sufficient severity. Id. at 757 (citing United States v. White-

head, 849 F.2d 849, 860 (4th Cir.), cert. denied, 488 U.S. 983,

109 S.Ct. 534, 102 L.Ed.2d 566 (1988); United States v.

Rhodes, 779 F.2d 1019, 1027-28 (4th Cir.1985), cert. denied,

476 US. 1182, 106 S.Ct. 2916, 91 L.Ed.2d 545 (1986)).

“Solem v. Helm does not require a proportionality review

of any sentence less than life imprisonment without the

possibility of parole.” Pryba, 900 F.2d at 757 (citation

omitted). We cannot conclude that the district court

abused its discretion in sentencing Alexander.

VII.

Finally, Alexander argues that the evidence was

insufficient to support his convictions on the tax counts,

social security counts, and all other counts. He adds in

his reply brief that the evidence was insufficient to sup-

port his RICO convictions, arguing that the government

failed to show that proceeds from a pattern of racketeer-

ing activity were invested in a criminal enterprise, or a

criminal enterprise existed as required by 18 U.S.C.

§ 1962. We have carefully reviewed Alexander’s argu-

ments and record at trial. We are satisfied that there is

ample evidence to support Alexander’s convictions on all

counts.

App. 26

Having carefully considered all of Alexander’s argu-

ments, we affirm Alexander’s convictions, and the orders

of forfeiture and summary judgment.

App. 27

APPENDIX B

UNITED STATES of America

Ferris ALEXANDER, et al.

Crim. No. 4-89-85(1).

United States District Court,

D. Minnesota,

Fourth Division.

Jan. 24, 1999.

ORDER

ROSENBAUM, District Judge.

This matter is before the Court pursuant to objections

made to a Report and Recommendation and an accom-

panying Pretrial Order each issued on September 30,

1989, by the Honorable Janice M. Symchych, United

States Magistrate. Magistrate Symchych’s recommenda-

tions and order are appended hereto. Also before the

Court are defendants’ objections to a Report and Recom-

mendation issued by the Honorable Patrick J. McNulty,

United States Magistrate, dated November 29, 1989. This

recommendation is also appended hereto.

In reviewing a report and recommendation, the

Court must consider the arguments and evidence, de

novo. 28 U.S.C. § 636(b)(1); Rule 72(b), Federal Rules of

Civil Procedure (Fed.R.Civ.P.); Local Rule 16(C)(2). After

review of the Reports and Recommendations, the Court

adopts each magistrate’s reasoning and holdings, except

Magistrate Symchych’s recommendations 1, 2, 4, and 5.

App. 28

In parts 1, 2, 4, and 5, Magistrate Symchych recom-

mended that the Court find the RICO pretrial Restraining

Order and consequent post-conviction forfeiture provi-

sions, each pursuant to 18 U.S.C. § 1963 (§ 1963), uncon-

stitutional, both facially and as applied. The magistrate

found these provisions to be unconstitutionally over-

broad and unconstitutional prior restraints. The magis-

trate, however, recommended against dismissing Counts

VI, VIL, and VIII.

The magistrate examined the language and scope of

§ 1963 and particularly examined this Court's Restraining

Order, dated May 30, 1989. The order in question was

issued upon the grand jury’s return of the indictment

herein. The relevant substance of the Restraining Order

will be set forth below. In her review of the Restraining

Order, the magistrate focused on its ex parte nature, its

recordkeeping requirements, and its probable impact on

the sale or distribution of protected materials. The magis-

trate then considered the same factors as they are impli-

cated by RICO’s forfeiture provisions. After her analysis,

she also recommended that the Court find RICO’s forfei-

ture provisions facially overbroad and a prior restraint.

The magistrate further urged the Court to strike

these forfeiture provisions as applied. Noting the indict-

ment identifies property which is to be forfeit in the event

of conviction, she found the forfeiture sections of the

indictment to be overly broad, encompassing “multiple

bookstores, theatres, and videotape rental establish-

ments,” at least some of which, she determined, were

presumptively protected by the first amendment. Id. at

13.

- i ee ee

App. 29

The government objects to these portions of the

Report and Recommendation, arguing RICO is intended

to provide powerful penalties, including forfeiture, to

those engaged in racketeering activity. The United States

then asserts that the nature of the RICO offense - be it

narcotics, arson, extortion, or obscenity - is of no

moment. The government further suggests RICO’s forfei-

ture and restraining provisions are in personam and lim-

ited to interests in property acquired, maintained, or used

in the actual violation of the RICO statute. As such the

government claims RICO’s forfeiture provisions are not

overbroad, even in the obscenity context. The govern-

ment concludes:

it is not the fact that the property is a bookstore,

that triggers the forfeiture provision, but rather

it is the owner's use of the property to conduct

his illegal activity (the nexus) that brings the

property within the ambit of the penalty provi-

sions.

Government's Memorandum, p. 9 (citations omitted).

On the question of prior restraint, the government

focuses upon the distinction between unlawful prior cen-

sorship and legitimate post-trial punishment. The gov-

ernment cites the language of Near v. Minnesota, 283 US.

697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), in support of the

difference it perceives:

[if] the object of the statute is not punishment, in

the ordinary sense, but suppression of the

offending newspaper or periodical in the future

then the statute constitutes a prior restraint. Id. at 711, 51

S.Ct. at 629. The government urges rejection of the magis-

trate’s recommendation to strike the Restraining Order.

App. 30

For their part, defendants support the magistrate’s

Report and Recommendation. Indeed, they argue her rec-

ommendation is too narrow. They point to Near’s pro-

scription of prior restraints and to subsequent cases

rejecting attempts to punish obscenity by means of

restraint “considerably less drastic than the outright for-

feitures imposed by RICO.” Defendants also raise the

spectre of differing community standards. They stress the

possibility that an obscenity conviction in one community

could lead to forfeitures in another community espousing

completely different values.

Analysis

I. The Restraining Order

The magistrate recommends lifting the Restraining

Order on the grounds of unconstitutional! overbreadth

and prior restraint, finding the authorizing statute uncon-

stitutional on its face and as applied. The Court addresses

each of these issues separately.

* Defendants cite City of Paducah v. Investment Entertain-

ment, 791 F.2d 463 (6th Cir.), cert. denied, 479 US. 915, 107 S.Ct.

316, 93 L.Ed.2d 290 (1986); Gayety Theaters, Inc. v. City of Miami,

719 F.2d 1550 (11th Cir.1983); Entertainment Concepts, Inc. Ill v.

Maciejewski, 631 F.2d 497, 506 (7th Cir.1980); Cornflower Enter-

tainment, Inc. v. Salt Lake City Corp., 485 FSupp. 777 (D.Utah

1980); Genusa v. City of Peoria, 475 F.Supp. 1199, 1207-09

(C.D.1N.1979), modified, 619 F.2d 1203, 1217-20 (7th Cir.1980).

i Se

App. 31

A. Facial Challenge to 18 U.S.C. § 1963(d)

1. Overbreadth

A statute is overbroad if it unconstitutionally

infringes upon free speech while regulating another

activity. In other words, a statute is overbroad “if in its

reach it prohibits constitutionally protected conduct.”

Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294,

2302, 33 L.Ed.2d 222 (1972). A law which arguably dimin-

ishes access to constitutionally protected materials is sub-

ject to first amendment overbreadth scrutiny. See Upper

Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389,

1391-92 (8th Cir. 1985).

The Court recognizes that invocation of the over-

breadth doctrine is “strong medicine,” which should be

utilized “with hesitation, and then ‘only as a last resort.’ ”

New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361,

73 L.Ed.2d 1113 (1982) (quoting Broadrick v. Oklahoma, 413

U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)).

In considering a facial challenge to a Congressional enact-

ment, the Court is mindful that it must “first ascertain

whether a construction of the statute is fairly possible by

which the question may be avoided.” Crowell v. Benson,

285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); See

Harman v. Forssenius, 380 US. 528, 535, 85 S.Ct. 1177,

1182, 14 L.Ed.2d 50 (1965). The Court must determine if

there exists a constitutional interpretation of the statute

which is consistent with Congress’ intent. United States v.

Thirty-Seven Photographs, 402 US. 363, 370-75, 91 S.Ct.

1400, 1405-07, 28 L.Ed.2d 822 (1971).

App. 32

Clearly, some RICO pretrial restraining orders have

no free speech implications whatsoever. Under 18 U.S.C.

§ 1963(d), restraints on property associated with RICO

gambling, arson, extortion, or narcotics charges would

not normally implicate the first amendment. Similarly, in

the obscenity context, an order can be narrowly crafted to

reach only those items which the grand jury has found

probable cause to believe are obscene.”

The Court is confident that judges issuing pretrial

restraining orders, pursuant to 18 U.S.C. § 1963(d), will

seek to do so in a manner consistent with the Constitu-

tion. This assurance has been held sufficient to deny

facial overbreadth challenges to statutes on first amend-

ment grounds. See Ferber, 458 U.S. at 773, 102 S.Ct. at

3363. The Court, therefore, declines to adopt the magis-

trate’s recommendation holding 18 U.S.C. § 1963(d)

facially unconstitutional in RICO prosecutions founded

on obscenity offenses. The Court concludes that such

pretrial restraining orders must be reviewed on a case-by-

case basis. See American Library Assoc. v. Thornburgh, 713

F.Supp. 469, 486 (D.D.C.1989). See generally Fort Wayne

Books, Inc. v. Indiana, 489 U.S. 46, __, 109 S.Ct. 916,

927-28, 103 L.Ed.2d 34 (1989).

? Whether these objects are ultimately forfeitable, pur-

suant to 18 U.S.C. § 1963(a)-(c), (e), is an entirely different

question, dependent upon a jury’s verdict that the property

was obtained, used, or maintained in connection with the

RICO violation beyond a reasonable doubt. United States v.

Pryba, 674 F.Supp. 1518, 1521 (E.D.Va.1987).

‘

App. 33

2. Prior Restraint

Near and its progeny counsel that any future restraint

of speech, because of past or anticipated content, is a

prior restraint. Near, 283 U.S. at 707-15, 51 S.Ct. at 628-30;

see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,

554-56, 95 S.Ct. 1239, 1244-45, 43 L.Ed.2d 448 (1975);

Organization for a Better Austin v. Keefe, 402 U.S. 415, 419,

91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971); Freedman v. Mary-

land, 380 U.S. 51, 57-60, 85 S.Ct. 734, 738-39, 13 L.Ed.2d

649 (1965); Bantam Books, Inc. v. Sullivan, 372 US. 58,

70-72, 83 S.Ct. 631, 639-40, 9 L.Ed.2d 584 (1963). Clearly,

“[aJny system of prior restraints of expression . . . bear{s]

a heavy presumption against its constitutional validity.”

Bantam Books, Inc., 372 U.S. at 70, 83 S.Ct. at 639.

Yet, net all prior restraints are impermissible. Near,

283 US. at 216, 51 S.Ct. at 631; Southeastern Promotions,

Ltd., 420 U.S. at 558, 95 S.Ct. at 1246. The cases make

clear, however, that particular judicial safeguards and

procedures must be followed before a prior restraint may

be imposed. Southeastern Promotions, Ltd., 420 US. at

559-60, 95 S.Ct. at 1247; Freedman, 380 U.S. at 58, 85 S.Ct.

at 739.

An ex parte pretrial order or injunction presents par-

ticular prior restraint difficulties. Under such an order a

defendant is required to “obey [the order] . . . pending

review of its merits and . . . [is] subject to contempt

proceedings” if he fails to do so. Vance v. Universal Amuse-

ment Co., Inc., 445 U.S. 308, 319, 100 S.Ct. 1156, 1161, 63

L.Ed.2d 413 (1980). An ex parte pretrial order directed at a

bookseller, at least some of whose wares have not been

found obscene by a grand jury, raises grave constitutional

App. 34

questions. The Supreme Court could have been speaking

of this threat when it said:

Invariably, the Court has felt obliged to con-

demn systems in which the exercise of such

authority was not bounded by precise and clear

standards. The reasoning has been, simply, that

the danger of censorship and of abridgement of

our precious First Amendment freedoms is too

great where officials have unbridled discretion

over a forum’s use. Our distaste for censorship -

reflecting the natural distaste of a free people ~

is deep written in our law.

Southeastern Promotions, Ltd., 420 US. at 553, 95 S.Ct. at

1244.

This Court has recently rejected a facial challenge,

albeit in a declaratory judgment action context, to the

pretrial restraint provisions of 18 U.S.C. § 1963(d). Alex-

ander v. Thornburgh, 713 F.Supp. 1278, 1292-93

(D.Minn.1989). Judge Doty reasoned that some pretrial

restraining or seizure orders could certainly be uncon-

stitutional in nature. Id. at 1292. He concluded, however,

that “[t}he mere fact that § 1963 may be applied in a

manner that results in an unconstitutional prior restraint

does not render that section unconstitutional on its face.”

Id. at 1292.

This Court agrees that the mere possibility of a statu-

tory restraint and a consequent penalty for trafficking in

obscenity does not impermissibly chill the exercise of first

amendment rights. Nor does the mere potential for stat-

ute-driven self-censorship comprise a constitutional infir-

mity. Fort Wayne Books, 489 US. at _, 109 S.Ct. at 926.

Indeed, “[t]hose who conduct their affairs close to the

Tees

- iia a

App. 35

boundaries of proscribed activity necessarily incur some

risks.” Polykoff v. Collins, 816 F.2d 1326, 1340 (9th

Cir.1987). Proper, and properly chilling, penalties for

obscenity, including fines, incarceration, and other crimi-

nal sanctions, have frequently been upheld. See Fort

Wayne Books, 489 U.S. at __n. 4, 109 S.Ct. at 922 n. 4 (and

cases cited therein); Polykoff, 816 F.2d at 1336-40; 511

Detroit St. v. Kelley, 807 F.2d 1293, 1298 (6th Cir.1986), cert.

denied, 482 U.S. 928, 107 S.Ct. 3211, 96 L.Ed.2d 698 (1987).

For these reasons, this Court finds that § 1963's pre-

trial restraining order authority, standing alone, is not

facially unconstitutional as a prior restraint. See generally

Alexander, 713 F.Supp. at 1290-1291.

B. The Restraining Order, as Applied

The magistrate, after recommending invalidation of

18 U.S.C. § 1963(d) on its face, recommended that this

Court strike the May 30, 1989, Restraining Order, as

issued, on first amendment grounds.

In Fort Wayne Books, the Supreme Court emphasized

procedural safeguards which must be followed prior to

the seizure of obscene materials. Fort Wayne Books, 489

US. at __, 109 S.Ct. at 927 (citing Marcus v. Search War-

rant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961)). A

seizure is permitted only if a “procedure ‘designed to

focus searchingly on the question of obscenity’ ” is pre-

sent. Id. at __, 109 S.Ct. at 927 (quoting Quantity of Books

v. Kansas, 378 U.S. 205, 210, 84 S.Ct. 1723, 1725, 12 L.Ed.2d

809 (1964)). The Supreme Court held:

App. 36

[w]hile the general rule under the Fourth

Amendment is that any and all contraband,

instrumentalities, and evidence of crimes may

be seized on probable cause (and without a war-

rant in various circumstances), it is otherwise

when materials presumptively protected by the

First Amendment are involved.

Id. at __, 109 S.Ct. at 927.

The magistrate correctly noted that the Restraining

Order differs significantly from that imposed in Fort

Wayne Books. Report and Recommendation, at 14. Nota-

bly, with the exception of those items seized pursuant to

search warrant, there has been no actual seizure of

expressive materials. The Restraining Order does not pro-

scribe continued traffic in the specific items which have

been charged as obscene in the indictment. The only

items detained were those seized pursuant to warrant

and held for evidence. Their duplicates, presumably,

remain for sale or rental on defendants’ shelves and

racks. The magistrate found, however, that the present

order could be characterized as generally freezing all of

defendants’ property and assets. Id. at 14-16.

All parties agree that under the terms of the Restrain-

ing Order, defendants have continued to conduct their

businesses — businesses they contend are almost exclu-

sively engaged in the dissemination of first amendment

protected materials. Nothing has been presented to sug-

gest that defendants have been significantly hampered in

the orderly conduct of these enterprises. The Court, how-

ever, must examine each aspect of the imposed order to

determine its validity in the face of the overbreadth and

prior restraint challenges.

at.

App. 37

1. Inalienability of Property and Interests in

Property

The Restraining Order prohibits the defendants from

the sale or transfer of identified real estate, personal

property, and various interests in property, absent

approval of the Ccurt. Restraining Order, 7 5, 6(b)-(d).

For purposes of this analysis, the Court assumes that

some of these property interests may have been secured,

maintained, or derived from the sale of obscene mate-

rials.* With the exception of the Court’s restraint on alien-

ability, defendants maintain their day-to-day interests in

the property and have regular control over its use.

a. Overbreadth

The Restraining Order, as imposed, clearly reaches

beyond the scope of allegedly obscene materials. The

order covers real estate, intangible interests in property,

and personal property, including “video cassettes, maga-

zines, [and] other printed materials.” Taken as a whole,

this property is inextricably bound to defendants’ ability

to exercise first amendment rights. The order, however,

explicitly permits continuation of defendants’ ordinary

course of business.* Restraining Order, ¥ 5. The order, as

* This assumption is in no regard tantamount to a holding

in this regard. For forfeiture purposes, the government must

prove the nexus between the property and the materials

beyond a reasonable doubt. Pryba, 674 F.Supp. at 1521.

* Ordinary course of business is defined in the order as:

the following types of expenditures and transactions,

made by the defendants directly or by and through

(Continued on following page)

App. 38

fashioned, grants to defendants the use of the property in

all respects save atypical transfers or sales.

(Continued from previous page)

A B Distributors, or Video Hits, Controlled Entities,

if such expenditures and transactions are made in

the ordinary course of business of the defendants:

(a) purchase of inventory, supplies and equipment in

an arm’s length transaction;

(b) payment of business liabilities including but not

limited to accounts payable, mortgage and contract

for deed payments, insurance premiums, license

fees, utilities and taxes which existed at the time of

the signing of this order and which arise hereafter;

(d) payment of reasonable business salaries not to

exceed $1,000 per week gross for any of the defen-

dants;

(e) payment, pursuant to an arm’s length transac-

tion, for the normal and average upkeep or mainte-

nance of any real property, equipment or furnishings

necessary for ordinary business operations;

(f) currency transactions including deposits and

bank transfers of funds from the accounts of the

Controlled Entities into the business account to be

established in accordance with this Order as directed

below;

(g) payment of reasonable attorney fees and

expenses;

(h) payment of ordinary living expenses upon

application by the defendants in accordance with

paragraph 12 of this Order.

Post-indictment Restraining Order, 4 1.

App. 39

In this same regard, the order does not absolutely

proscribe the sale or transfer of real estate, personal

property, or holdings. Such transactions may be consum-

mated with Court approval, which approval has been

granted in one instance. See Order, dated June 29, 1989. In

light of actual experience, therefore, the court finds that

this aspect of the order does not impermissibly impinge

upon defendants’ personal exercise of free speech. Fur-

ther, the order contains no provision forbidding the

acquisition of new property which might, itself, be used

in the exercise of free speech rights. Although the

Restraining Order does extend beyond allegedly obscene

materials, the Court finds that it does not burden those

materials in a fashion which renders it constitutionally

overbroad.

b. Prior Restraint

As set forth above, the Restraining Order imposes

control over, rather than seizure of, property. Had the

order called for the seizure of property, it may well have

run afoul of the rule in Fort Wayne Books. Fort Wayne

Books, 489 U.S. at ___, 109 S.Ct. at 928-29. Aside from

those few items seized for evidence pursuant to warrant,

the remaining books, films, and videotapes have

remained on defendants’ property and available for pur-

chase. Id. at __, 109 S.Ct. at 929. Although the Restrain-

ing Order necessarily arises out of defendants’ past

speech, the proscription upon sale or transfer of defen-

dants’ real estate or the personal property contained

therein does not impact upon defendants’ future speech

App. 40

or communication. See Near, 283 U.S. at 706, 51 S.Ct. at

627.

Certain of the property touched by the order, includ-

ing noncommercial and purely personal property, plays

no part in defendants’ exercise of first amendment rights.

As such, these items do not implicate the first amend-

ment.

2. Performance Bond

The order permits defendants to offer a performance

bond in lieu of compliance with its terms. Restraining

Order, J 11. No such bond has been posted nor has any

party challenged the provision. Therefore, the Court

declines to offer any opinion as to the propriety of such a

bond.

3. Bank Accounts

Paragraph 6(a) of the restraining order forbids the

transfer, sale, or concealment of:

all money, stock certificates, property or other

interest in any account, certificate or safe

deposit box maintained at any main or branch

office of the following financial institutions and

other partnerships and other corporations,

including but not limited to officers at the

addresses listed herein.

This restriction is subject to the provision permitting

routine transactions in the ordinary course of defendants’

businesses. Restraining Order. 7] 1 and 5.

App. 41

a. Overbreadth

The Restraining Order reaches all funds in desig-

nated institutions and, therefore, potentially touches

defendants’ ability to acquire and sell protected mate-

rials. But the Court finds that the “ordinary course” pro-

vision saves the order from constitutional flaw. Books,

magazines, videotapes, and films may continue to be

purchased, stocked, and sold as in the past. Auxiliary

property necessary for the dissemination of those goods

may also be obtained. Further, there is a provision for

major transactions out of the ordinary course, upon

approval of the Court. As such, the order maintains the

Status quo. It is not impermissibly overbroad since defen-

dants’ constitutional right to free speech are unimpeded.

The Restraining Order preserves that state of affairs

which allows defendants to vend protected materials.

b. Prior Restraint

The same “ordinary course” provision undercuts any

prior restraint argument. Had the right to use funds been

restrained, defendants’ ability to carry on their protected

speech activities would have been significantly impeded

~ a result clearly at odds with the first amendment. See

Fort Wayne Books, 489 U.S. at __, 109 S.Ct. at 928-29. But

this has not occurred. Under these circumstances, the

Court declines to strike § 1963, a provision which, on its

face and in fact, permits defendants to carry on their

regular business activity. The ordinary course provisions

are not content based. Defendants are free to garner such

App. 42

inventory as they choose and dispose of it as they see fit

consistent with their prior business practices.

4. Recordkeeping

Paragraph four of the post-indictment restraining

order mandates that:

All transactions . . . shall be recorded pursuant

to generally accepted accounting principles and

shall be evidenced by cash register slips, sales

receipt journal, bank deposits, numerical

invoices and order forms, disbursements, jour-

nal, checks, computer printouts, inventory lists,

and any other ordinary business record. The

defendants shall not use cashier’s checks,

money orders, or drafts to pay for any of the

ordinary business transactions or personal

expenses allowed herein or use said instruments

for the purpose of transferring funds. All

records and documents regarding the defen-

dants’ business transactions shall be maintained

and provided to the government on a weekly

basis.

Restraining Order, at 4.

The Court has approved, above, the portions of the

order permitting defendants to proceed with activities in

the ordinary course of business. Paragraph four simply

records those transactions in an orderly fashion. This

does not contravene the first amendment either for over-

breadth or on the basis of prior restraint.

App. 43

a. Overbreadth

Statutes which are overbroad, in a first amendment

context, limit access to, or availability of, protected mate-

rials. Upper Midwest Booksellers, 780 F.2d at 1391. Manda-

tory recordkeeping has been subjected to overbreadth

scrutiny. In American Library Association v. Thornburgh, 713

F.Supp. 469 (D.D.C.1989), the district court struck

imposed recordkeeping in the context of the Child Protec-

tion and Obscenity Enforcement Act, 18 U.S.C. § 2257.

The district court held that broad recordkeeping, which

required movie producers to record the names and ages

of all actors and actresses in their movies, was overbroad

and impinged upon the producer’s ability to make other-

wise protected motion pictures. Id. at 477-79. The district

court examined whether the recordkeeping demands

were “tailored precisely” to the evil of child pornography

or whether they infringed, prohibited, or otherwise hin-

dered the dissemination of free speech. Id. at 479.

The recordkeeping provision here does not suffer

from the same infirmities. The recordkeeping require-

ments are neither as demanding nor as broad as those

stricken in American Library Association. Regular financial

records are kept in the ordinary course of almost any

business. The order does not require defendants to under-

take any extensive procedure to comply. In the absence of

any significant problems, none of which have been

brought to the Court's attention, there does not appear to

be sufficient impact upon freedom of speech to warrant

the relief provided in American Library Association.

The recordkeeping, moreover, is “tailored precisely”

to the evil sanctioned by the RICO obscenity charges. See

App. 44

id. at 479. The requirement simply permits the tracing of

property which the grand jury asserts to be potentially

forfeitable. Other than requiring order and regularity in

financial transactions, the burden is minimal and does

not invalidate this portion of the order.

b. Prior Restraint

The recordkeeping aspect of the Restraining Order is

a prior restraint in only the most remote sense. The

weekly reporting requirement — certainly not an ordinary

business practice - potentially detracts from defendants’

available time and funds which might otherwise be avail-

able for protected speech. Yet, the order merely calls for

defendants to turn over records on a weekly basis. There

is no evidence of any significant burden on defendants’

businesses arising out of this procedure. Although defen-

dants may experience some minor inconvenience comply-

ing with paragraph four, the Court declines to declare

that inconvenience to be of constitutional dimension.

5. One Bank Account

Paragraph eight of the Restraining Order states:

All income from any source received directly or

indirectly by the defendants Ferris Jacob Alex-

ander, Dolores Alexander and Jeffrey Alexander,

their agents or assigns, and by or through any of

the Controlled Entities, corporations or partner-

ships in the ordinary course of business as

defined above shall be placed in one checking

account located at The Union Bank and Trust,

312 Central Avenue Southeast, Minneapolis,

App. 45

Minnesota and all expenses paid in the ordinary

course of business as defined above including

but not limited to employee salaries, inventory,

supplies, utilities, rent, mortgage or contract for

deed payments, insurance premiums, taxes and

general overhead shall be paid out of said

account.

a. Overbreadth

For many of the same reasons just discussed, this

requirement is not impermissibly overbroad. The require-

ment is something of a burden merely because it is

unusual. In addition, certain of the controlled entities are

located outside the Twin Cities metropolitan area.

The rationale underlying the provision and its actual

effect mitigate against a finding of unconstitutional over-

breadth. The requirement clearly provides a benefit in

terms of simplicity: all of defendants’ transactions, since

the date of the Restraining Order, are conducted through

one account. The only restriction on use of the funds is

that such use be in the ordinary course of business. There

is no proscription on the accession, maintenance, or sale

of any item whatsoever. In the absence of any content-

based restriction, this is not an impermissibly overbroad

requirement.

b. Prior Restraint

Since defendants’ funds remain available for acquisi-

tion and dissemination of arguably protected material,

the Court finds the single bank account requirement is

App. 46

not a prior restraint. The fact that some of defendants’

businesses are located at a distance from the Union Bank

and Trust may incidentally complicate some transactions.

See American Library Association v. Thornburgh, 713 FSupp.

at 477-79 (extensive investigative and traveling require-

ments may impermissibly infringement upon the exercise

of protected speech). Common sense suggests, however,

that many difficulties may be overcome through regular

mail or telephonic correspondence. But in the absence of

evidence of such difficulties, and none have been shown

thus far, the operant fact remains defendants’ unre-

stricted access to funds regularly used to purchase and

sell their wares. Defendants have expressed no diffi-

culties in conducting business operations out of one

account, and the Court stands ready to consider any

adjustments which may be appropriate. Upon the infor-

mation before the Court, however, paragraph eight is

constitutionally sound.

6. Monitoring

Paragraph nine of the restraining order provides:

The Federal Government shall designate an

individual with business and accounting experi-

ence to monitor the operations of the Controlled

Entities as well as of the defendants’ financial

affairs to ensure that the assets of said entities

and persons are not dissipated or wasted in

violation of this order. Said monitoring shall

include but not be limited to a twice monthly

review of the books and records of the Con-

trolled Entities and the defendants. The desig-

nated individual shall be compensated by the

App. 47

defendants as an expense in the ordinary course

of business.

Restraining Order, { 9.

This provision has not been implemented. In the

absence of any implementation, the Court expresses no

thoughts on its legality.

Having examined each aspect of the Restraining

Order, the Court concludes that the limitations placed on

defendants’ property pass constitutional muster. The

Court, therefore, declines to adopt the magistrate’s rec-

ommendation to lift the Restraining Order.

II. Post-trial Forfeiture

The magistrate recommended that the Court declare

18 U.S.C. § 1963(a)-(c), (e), RICO’s post-trial forfeiture

provisions, unconstitutional both facially and as applied.

She concluded the provisions were overbroad and a prior

restraint. Again, the Court addresses each question indi-

vidually.

A. Facial Challenge

In Fort Wayne Books, the Supreme Court declined to

assess the constitutionality of the Indiana RICO statute’s

post-trial forfeiture section in an obscenity context.5

> The Court specifically bypassed the question:

for the purpose of disposing of this case, we assume

without deciding that bookstores and their contents

(Continued on following page)

App. 48

Similarly, Judge Doty did not reach the issue.® Alexander

v. Thornburgh, 713 F.Supp. at 1294. At least one district

court, however, has upheld the constitutionality of the

forfeiture provision in the face of a prior restraint chal-

lenge. United States v. Pryba, 674 F.Supp. 1504, 1512

(E.D.Va.1987).

1. Overbreadth

Defendants claim RICO’s forfeiture provisions are

overbroad since property, some of it clearly protected

literature or video tapes, may be subject to seizure.

Defendants contend this impermissibly infringes upon

constitutionally protected expression.”

(Continued from previous page)

are forfeitable (like other property such as a bank

account or yacht) when it is proved that these items

are property actually used in, or derived from, a

pattern of violations of the state’s obscenity laws.

Fort Wayne Books, 489 U.S. at __, 109 S.Ct. at 928 (footnote

omitted).

This Court tinds that the present action for declara-

tory and injunctive relief also does not present the

opportunity to determine whether RICO’s forfeiture

provision is unconstitutional as a prior restraint

when the property forfeited consists of a defendant's

entire interest in an enterprise which sells materials

presumptively proiccted by the first amendment.

Alexander v. Thornburgh, 713 F.Supp. 1278, 1294 (D.Minn.1989).

? As a threshold matter, the Court rejects defendants’ sug-

gestion that the § 1963 language is unacceptably vague as

(Continued on following page)

App. 49

The broad language of RICO’s forfeiture provision

and the consequent penalties do not impermissibly chill

future expression. The Supreme Court, addressing this

issue in Fort Wayne Books’ pretrial restraining order,

noted:

It may be true that the stiff{] RICO penalties will

provide an additional deterrent to those who

might otherwise sell obscene materials; perhaps

this means . . . that some cautious booksellers

will practice self-censorship and remove first

amendment protected materials from their

Shelves. But deterrence of the sale of obscene

materials is a legitimate end of . . . obscenity

laws and our cases have long recognized the

practical reality that “any form of criminal

obscenity statute applicable to a bookseller will

induce some tendency to self-censorship and

have some inhibitory effect on the dissemination

of material not obscene.”

For Wayne Books, 489 U.S. at __, 109 S.Ct. at 925 (quoting

Smith v. California, 361 US. 147, 154-55, 80 S.Ct. 215,

(Continued from previous page)

written. The Court finds the RICO forfeiture language suffi-

ciently concise to pass constitutional muster. Absolute preci-

sion is not constitutionally mandated. See Pryba, 674 F.Supp. at

1511.

That there may be marginal cases in which it is

difficult to determine the side of the line on which a

particular fact situation falls is no sufficient reason

to hold . . . language too ambiguous to define a

criminal offense.

Roth v. United States, 354 U.S. 476, 491-92, 77 S.Ct. 1304, 1313, 1

L.Ed.2d 1498 (1957).

App. 50

219-20, 4 L.Ed.2d 205 (1959)). As noted previously, courts

have recognized that individuals and entities conducting

their businesses near the edge of proscribed activity nec-

essarily undertake some risks. Polykoff, 816 F.2d at 1340.

The Court, therefore, rejects the defendants’ suggestion

that RICO’s forfeiture language is impermissibly threat-

ening.

Substantively, defendants claim that RICO’s forfei-

ture provisions exact penalties of disproportionate size.

Clearly, a forfeiture is a penalty, requiring one who has

been convicted to disgorge that which has been accumu-

lated. Under RICO, it is a special penalty in that the items

to be surrendered must actually have been used in, or

derived from, the RICO pattern of violations. 18 U.S.C.

§ 1963(a)-(c), (e). Such a penalty is analogous to statutory

penalties which are indisputably permissible. Certainly,

the imposition of a fine following a conviction has been

approved, even when the fine is greater than any trace-

able amount of illegally garnered assets. Polykoff, 816 F.2d

at 1339; 511 Detroit, 807 F.2d at 1299; see Alexander, 713

F.Supp. at 1289.

More importantly, RICO guarantees an equivalence

between the forfeiture of assets and the criminal acts

Congress sought to proscribe when it passed RICO: that

which is to be given up in forfeit is the product and profit

of the RICO offense. In other words, property or assets

garnered as a result of proscribed activity is that which is

to be surrendered as a partial penalty. The fairness of this

scheme is assured by the fact that a jury must call for its

surrender upon proof beyond a reasonable doubt. Pryba,

674 F.Supp. at 1521.

App. 51

Of course, even in the absence of any forfeiture, the

same funds and assets could be lost to defendants pur-

suant to the general fine statute. The issue is that each

penalty, whether fine or forfeiture, may possibly deprive

defendants of the means to continue disseminating pro-

tected materials - and the public could lose access to

items which are in no way illegal or obscene.?

Realistically, bookstores, theaters, and places of pub-

lic discourse have faced regulation and possible seizure

before. While the issue has never been squarely

addressed, it does not appear that closures based upon a

fire code violation or health hazard would present prob-

lems of overbreadth. See Arcara v. Cloud Books, Inc., 478

U.S. 697, 705-07, 106 S.Ct. 3172, 3176-77, 92 L.Ed.2d 568

(1986). Similarly, the indictment before the Court charges

a tax violation which, if upheld after trial, could call for

substantial payment of amounts owing. The taxes and

penalties, as well as any fine amount, could touch on

protected assets in the event of seizure or sale.

The Court is disinclined to strike a statutory penalty,

which may otherwise be lawfully imposed, simply

because defendants have been charged with violating the

® 18 U.S.C. § 3571(b)(3) contemplates a fine of $250,000 per

felony conviction. See 18 U.S.C. § 1963. There are 48 counts in

this indictment.

% The magistrate concluded the fine and forfeiture penal-

ties were distinct on the basis that forfeiture could encompass

vast holdings of a defendant unrelated to the criminal activity.

The Court does not deem the distinction to be significant. A

fine exceeding $1,000,000 - certainly a possibility here - could,

in all likelihood, touch upon a significant portion of defen-

dants’ assets, some of them non-expressive.

App. 52

RICO obscenity provisions or because the res to be sur-

rendered has a speech or first amendment flavor. It is

clear that the Supreme Court has found obscenity to be

without first amendment protection. See Miller v. Califor-

nia, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419

(1973). Some publications or video materials may fall on

one side or the other of the protected speech/proscribed

obscenity line. But the law defines a point over which one

travels at his hazard. The mere fact that there is a penalty

for going beyond that point does not bar a dollar penalty,

either by fine or forfeiture.

2. Prior Restraint

For many of the same reasons, the forfeiture provi-

sions of 18 U.S.C. § 1963(a)-(c), (e) do not impermissibly

restrain free speech. Unlike administrative actions, such

as movie censorship, Freedman, 380 U.S. at 58, 85 S.Ct. at

738-39, and license revocation, City of Paducah v. Invest-

ment Entertainment, Inc., 791 F.2d 463, 470 (6th Cir.), cert.

denied, 479 U.S. 915, 107 S.Ct. 316, 93 L.Ed.2d 290 (1986),

which may not be undertaken without procedural safe-

guards, RICO’s forfeiture is only possible after a full trial.

At trial, the jury must find, beyond a reasonable doubt,

that the property to be forfeited was connected to the

illegal activity. Pryba, 674 F.Supp. at 1521.

In the same sense that a dollar fine presents no prior

restraint problems, Polykoff, 816 F.2d at 1338, and 511

Detroit St., Inc., 807 F.2d at 1298, the forfeiture of assets

does not impermissibly hamper defendants’ ability to

App. 53

speak in the future.'° As above, a fine can lawfully be

imposed in an amount far beyond a defendant's assets.

Under RICO, and the companion tax charge in this indict-

ment, the defendants face substantial fines. The possi-

bility of dollar loss, then, will be present even in the

absence of forfeiture. Any penalty, by fine or forfeiture, is

imposed only after trial and not before. “Behind the

distinction is a theory deeply etched in our law: a free

society prefers to punish the few who abuse rights of

speech after they break the law [rather] than to throttle

them and all others beforehand.” Southeastern Promotions

Ltd. v. Conrad, 420 U.S. at 558-59, 95 S.Ct. at 1246-47

or forfeiture is a deprivation of the right to speak freely:

this argument proves too much, since every civil and

criminal remedy imposes some conceivable burden

on First Amendment protected activities. One liable

for a civil damages award has less money to spend

on paid political announcements or to contribute to

political causes, yet no one would suggest that such

liability gives rise to a valid First Amendment claim.

Cf. Buckley v. Valeo, 424 US. 1, 96 S.Ct. 612, 46

L.Ed.2d 659 (197¢). Similarly, a thief who is sent to

prison might complain that his First Amendment

right to speak in public places has been infringed

because of the confinement, but we have explicitly

rejected a prisoner's claim to a prison environment

least restrictive of his desire to speak to outsiders.

See Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41

L.Ed.2d 495 (1974); see also Jones v. North Carolina

Prisoners Union, 433 U.S. 119, 97 S.Ct. 2532, 53

L.Ed.2d 629 (1977).

Arcara v. Cloud Books, Inc., 478 U.S. 697, 699, 106 S.Ct. 3172,

3177, 92 L.Ed.2d 568 (1986).

App. 54

(emphasis original). This policy is completely consistent

with Near and its progeny."!

Post conviction forfeiture necessarily deprives a

defendant of assets garnered in the past. There is no

necessary impact on expressive activity in the future.

American Library Association, 713 F.Supp. at 486.

The fact that criminal punishment - whether it

is by fine, incarceration, etc. - makes it physi-

cally difficult for the person to engage in First

Amendment activity does not make the punish-

ment unlawful “prior restraint,” as long as the

person legally is unrestrained to engage in

speech.

Id. at 486 n. 21. Deterrence is a goal of RICO, and forfei-

ture plays a role in that objective. This chill, if it is that at

all, is a “legitimate consequence of the RICO forfeiture

provisions or any other criminal penalty.” Pryba, 674

F.Supp. at 1512.

Defendants object to the RICO forfeiture penalties. In

their view, obscenity simply cannot be made a crime

without jeopardizing first amendment freedoms. Defen-

dants confuse sincerity of beiief with adherence to the

rule of law. This way lies anarchy. The Supreme Court has

held that obscenity may be criminalized consistent with

our Constitution. See, e.g., Ferber, 458 U.S. at 764-65, 102

S.Ct. at 3358; Smith v. United States, 431 U.S. 291, 304-05,

97 S.Ct. 1756, 1765-66, 52 L.Ed.2d 324 (1977); Miller, 413

11 “Liberty of speech and of the press is . . . not an

absolute right, and the state may punish its abuse.” Near v.

Minnesota, 283 U.S. 697, 708, 51 S.Ct. 625, 628, 75 L.Ed. 1357

(1931).

App. 55

U.S. at 23-24, 93 S.Ct. at 2614-15. As such, this court, and

the law, treats an obscenity charge the same as any other

criminal charge, be it bank robbery, narcotics trafficking,

or firearm violations. Were a defendant to be convicted of

operating a drug ring out of a bookstore, the first amend-

ment would not prevent seizure of that store, if the

requisite nexus was proven. This Court will follow the

law, and declines the invitation to strike RICO forfeiture

provisions in an obscenity case as a prior restraint.

B. As Applied Challenge

The Court, therefore, concludes that, on its face,

§ 1963 forfeiture may be imposed, in an obscenity con-

text, consistent with the Constitution. The actual forfei-

ture of property, however, has yet to take place.

Defendants’ first line of defense is the jury. Until the jury

renders its verdict, the Court will refrain from rendering

a decision on this forfeiture, as applied.

Accordingly, the Court adopts the Report and Rec-

ommendation dated September 30, 1989, in all respects

except parts 1, 2, 4, and 5. As to those parts, defendants’

motion to hold the forfeiture and restraining order provi-

sions of 18 U.S.C. § 1963 unconstitutional is denied.

Defendants’ motion to strike the Restraining Order of

May 30, 1989, and the forfeiture provisions of the indict-

ment is also denied.

The Court adopts in full the Report and Recomm

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