# Petition for Writ of Certiorari — Alexander v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 544

## Text

p MHProre Court, UST

711526 iit, fk p
UY | MAR 16 t992
No. , L OFFICE OF THE CLERK |
In The 3

Supreme Court of the United States
October Term, 1991

4

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

1)

2)

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?

ii
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

iv

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

Vv

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

vi

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
22

‘eon ae

ry
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

ix

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

x

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

xi

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.

e

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

2

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.

3

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.

5

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.

© This federal indictment alleged that Petitioner's mate-
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.

6

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.)

7

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.

9

“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.”

10

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.

11

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.

12

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

13

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.

14

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.”

15

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.

16

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’

17

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

18

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

—

19

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

20

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

21

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.'®

© In the following cases, courts have held unconstitu-
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)

22

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

23

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).

24

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).

25

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

26

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).

27

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).

28

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

29

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

30

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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if ) App. 1

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,
v.

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.

V.

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.

© Alexander also argues that the court should have
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
v.

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).

a

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 ‘o

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0257%3A02. Public record. Not legal advice.