Petitioners Brief — Alexander v. United States

Supreme Court brief1993

Ask Donna

What actually matters in this document.

Text

No. 91-1526

—~

In The

Supreme Court of the United States

October Term, 1992

FERRIS J. ALEXANDER, SR.,

Petitioner,

Vs.

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

2 ¢

BRIEF OF PETITIONER

. ¢

JoHN H. WesTon*

G. RaNnpDatt GarRou

CatHuy E. Crosson

Ciypve F. Dewmnrt

Weston, SaRNo, GARROU

& Dewitt

433 N. Camden Drive,

Suite 900

Beverly Hil's, California 90210

(310) 550-7450

Counsel for Petitioner

“Counsel of Record

COCKLE LAW BRIEF PRINTING CO. 225-6964

OR CALL COLLBCT (402) %42-

QUESTIONS PRESENTED

Does RICO forfeiture constitute a prior

restraint of the kind condemned in Near vy.

Minnesota, of otherwise violate the First

Amendment, when applied to close a $25 mil-

lion Chain of bookstores, video stores, and the-

aters to confiscate all their property including

four years’ proceeds, and to destroy 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 videotapes and magazines.

violate the kighth Amendment?

LIST OF PARTIES

Petitioner FERRIS J. ALEXANDER, SR. and Respon-

dent UNITED STATES OF AMERICA are the only interested

partics remaining in this action. Petitioner previously notified

this Court of his belief that his co-defendants in the criminal

trial below (Delores Alexander, Jeffrey Alexander, and Wanda

Magnuson), did not pursue this matter on appeal and no

longer have an interest in the outcome of this proceeding.

Similarly, a civil case entitled Alexander v. Thornburgh, was

consolidated with this case in the Court of Appeals. However,

the petition for certiorari did not seek review of the civil case

and it is petitioner’s understanding that no parties thereto

seck this Court's review of that case.

TABLE OF CONTENTS

Page

TABLE OF CONTENTS | iii

TABLE OF AUTHORITIES |. v

OPINIONS BELOW |

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED. ... 2

STATEMENT OF THE CASE 2

SUMMARY OF ARGUMENT | 7

ARGUMENT...... 10

1. THE FORFEITURE AND CLOSURE OF AN

ENTIRE MEDIA BUSINESS, ALONG WITH THE

DESTRUCTION OF ITS INVENTORY, SOLELY

FOR THE SALF OF SEVEN OBSCENE ITEMS.

VIOLATES THE FIRST AMENDMENT BOTH AS

AN UNCONSTITUTIONAL PRIOR RESTRAINT

AND BY ITS OVERBREADTH............. 10

A. The Court Of Appeals Erred In Refusing To

Analyze These Sanctions Under The Height-

ened Levels Of Scrutiny Applicable In First

CC EEE 13

B. The Forfeiture And Closure of an Entire Media

Business, Exclusively For Obscenity Violations, Is

A Classic Prior Restraint Of The Sort This Court

Has Condemned As A Per Se Violation of The First

Amendment Ever Since Near v. Minnesota. .__.. 17

TABLE OF CONTENTS — Continued

Page

1. Of the various types of prior restraint con-

demned by this Court, the Near type is the

most unequivocal First Amendment viola-

SE ini pnee te benes Ses seedusbulanunce 17

Because RICO torteiture directly and indis-

criminately suppresses future presumptively

protected speech in retaliation for prior

unprotected speech, this Court's decisions

uniformly require its invalidation as an

unconstitutional prior restraint... ... ||. 20

+. In scores of cases invalidating padlock

orders, license revocation, and seizure of

the equipment and other property of the-

atres and bookstores as punishment for

obscenity violations, the lower federal and

State courts have universally concluded that

such remedies operate as unconstitutional

Ree ee 31

C. The RICO Act's Forfeiture Remedy Also Vio-

lates the First Amendment Because It Is Over-

broad In Its Censorial Effect Upon Protected

I A Ser ar ec Se 35

ll. THE TOTAL FORFEITURE OF A $25 MILLION

BUSINESS, IN ADDITION TO A SIX-YEAR PRISON

TERM AND $200,000 IN FINES, VIOLATES THE

TABLE OF AUTHORITIES

VPage

briomkat Cases

Adult Video Association v Barr, 960 2d 781 (9th

Cir 1992) 16, 3, 40, 47

Airport Commissioners of Los Angeles vo Jews for

Jesus, 482 U.S. 569 (1987) Ww

Alexander v. Thornburgh, 94% 2d 625 (th Cir

1991) 1, 6, 14

Arcara v. Cloud Books, Inc. 47% US 697 (1986)

8. 11, 16, 25

Arkansas Writers Project v Raglund, 481 US. 22)

(1987) 24, 25

Avon 42nd Street Corp. v. Myerson, %52 ¥ Supp. 994

(S.D.N_-Y. 1972) 32

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

(M.D.Fla. 1979). 32

Bongiovanni v. Hogan, *09 F Supp. 1364 (SDNY

1970)... .. 14

Browning-Ferris Industries of Vermont ». Keico Dis-

posal, Inc., 492 U.S. 257 (1989) 42. 43

Burson v. Freeman, __-:;oUS. _, 112 SCt 1846

See 27

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

(S.D.Ind. 1979), aff'd, 633 F.2d 27 (7th Cir. 1980) 32

City of Paducah v. Investment Entertainment. 791

F.2d 463 (6th Cir 1986) 32

Cohen v. City of Daleville. Alabama, 695 F Supp

1168 (M_D. Ala 1988) 32

TABLE OF AUTHORITIES — Continued

Page

Cornflower Entertainment, Inc. v. Salt Lake City

Corp., 485 F.Supp. 777 (D.Utah 1980).............. 32

Council for Periodical Distributors Association vy.

Evans, 642 F.Supp. 552 (M.D.Ala. 1986), aff'd,

SSe F.AW CSRS CEG Cie, OOBPD.... ccccccccccccccccce 12

Dexter v. Butler, 587 F.2d 176 (Sth Cir. en banc 1978).... 34

PHE, Inc. v. U.S. Dept. of Justice, 743 F.Supp. 15

See MEA dncdedccketccetcsucadeuubicocced . 12

Entertainment Concepts Inc. Ill v. Maciejewski, 631

ee DO MM cccccccccecéesescceendecksa 32

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .... 18

Fernandes v. Limmer, 663 F.2d 619 (Sth Cir. a 32

Forsyth County v. Nationalist Movement, ___ U.S.

> % | Ree aes Smee 18

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

$teGseRNEndat ads eeeadshetbedbebacdenees 8, 14, 15, 27

Freedberg v. U.S. Dept. of Justice, 703 F.Supp. 107

EL ESE Ee 2.1 Bet ii 9 ee 12

Freedman v. Maryland, 380 U.S. 734 (1965)........... 18

G.1. Distributors, Inc. v. Murphy, 336 F.Supp. 1036

ES Rn le 34

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

as cdesdesdaddduibecduadéssceececte: 32

Genusa v. City of Peoria, 475 F.Supp. 1199 (C_D.I.

1979), aff'd., 619 F.2d 1203 (7th Cir. 1980)......... 32

vii

TABLE OF AUTHORITIES - Continued

Page

Harmelin v. Michigan, ___ U.S. __, 111 S.Ct. 2680

Pccacadnecededscsvedssaeecses 4i, 42, 43, 45, 46

Heller v. New York, 413 U.S. 483 (1973).............. 27

Huffman v. Pursue, Lid., 420 U.S. 592 (1975) ......... 32

Intern. Soc. for Krishna Consciousness v. Eaves, 601

ee ccc ccideesiesekadeees 32

Interstate Circuit, Inc. v. City of Dallas, 247 F.Supp.

cc cckecadecneceesondebesseessus 34

Jenkins v. Georgia, 418 U.S. 153 (1974) .......... 12, 32

Jodbor Cinema, Lid. v. Sedita, 309 F.Supp. 868

i cia. ecaxcheanandetiesseneaseonsuss 34

Kingsley Books v. Brown, 354 U.S. 436 (1957)..... passim

L.M.E., Inc. v. Cit¥ of Hollywood, 605 F.Supp. 185

DE Pi icdutd duicedeesesuencedgetbeuaseienns 34

Lo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979) ....27

Maguin v. Miller, 433 F.Supp. 223 (D.Kan. 1977)...... 34

Marcus v. Search Warrant, 367 U.S. 717 (1961)

enbsatabnnkbbdundsedéddeddaukesendqokerasi 17, 27, 28

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

Tt Pi Grdceecteesseedt bnaueenkdeedesseese 32

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

Taxpayers For Vincent, 466 U.S. 789 (1984)..... 37, 38

Minneapolis Star & Tribune Co., v. Minnesota

Comm'r of Revenue, 460 U.S. 575 (1983)....... 24, 25

NAACP v. Alabama, 377 U.S. 288 (1964).......... 10, 38

vill

TABLE OF AUTHORITIES — Continued

Page

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

SE ED haidencuwekuhbia duane toteiee 8 on 32

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

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)....14

New York Times v. Untied States, 40% US 713 (1971)... 18, 20

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

vacated and remanded on other grounds, 423 US

976 (1975), order re-entered August 16, 1976

(unpub.), aff'd. 431 U.S. 961 (1977).............._.. 32

Oregon Bookmark Corp. v. Schrunk, 421 F.Supp. 639

oS RRA Spee PEPE CTS ree 32

Organization For A Better Austin v. Keefe, 402 US.

AR earn Sige lg 19, 22, 23, 26, 29

Osborne v. Ohio, 495 U.S. 103 (1990) ........... 45

Paris Adult Theatre I vy. Slaton, 41% US. 49 (1973)....4§

Playboy Enterprises, Inc. v. Meese, 639 Fk Supp. S81

I 6 akc candy chediemiie adateduiiidd tess. 12

Pollitt v. Connick, 596 F.Supp. 261 (E.D1La. 1984)... .. 31

Quantity of Copies of Books v. State of Kansas, 378

Soe RI MAE ACen 27, 28

R.A.V. v. City of St. Paul, = US. __—, 112 S.Ct. 2538

a Othe oak a oe ae! 18, 23, 24, 38

Robinson v. California, 370 U.S. 660 (1962)....41, 42. 44

Russello v. United States, 464 U.S. 16 (1983).......... 26

San Juan Liquors v. Consol. City of Jacksonville, 480

FU CRO GETTER. DOPOD onc ccccccccecccccccccens 32

TABLE OF AUTHORITIES — Continued

Page

Schad v. Borough of Mount Ephraim, 452 US. 6)

Sen Weductse dedatabebebeuddddedessike dcdcacns 15

Secretary of State of Maryland vy. Joseph H. Munson

Co., Inc., 467 U.S. 947 (198%4)...... 6... 37, 3%

Simon & Schuster v. New York Crime Victims Board,

U.S. __, 112 S.Ct. SOL (1991).... 15, 24, 27

Smith v. California, 361 U.S. 147 (1959)... 24

Solem v. Helm, 46% U.S. 277 a passim

Speight v. Slaton, 415 U.S. 333 a ia Nae 32

Stanley v. Georgia, 394 U.S. $57 (1969)............__ 45

Star Distributors, Lid. v. Hogan, 447 k Supp. 1362

IER 0S a ee a ee: 34

U.S. v. PHE, Inc., 965 &.2d $48 (10th Cir 12

United States v. Alexander, 736 & Supp. 96% (D.Minn.

Saad kdcmaehedhessuhbaokewas dd deaebécns. 1, 3, 4

PREETI, ee ae Na i ga 4%

United States v. Busher, 817 F.2d 1409 (9th Cir. 1987)....47

United States v. California Publishers Liquidating

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

‘eendudhedespelseéadsocnMecssbece 6¢ thus 34, 37, 39, 40

United States v. Harris, 903 F.2d 770 (10th Cir. 1990)... 47

United States v. Polak, 312 FSupp. 112 (E.D.Pa.

SPUaee bbls wen db acngibacdd ob 58 Gs cuccadiodckccecs 32

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

peheSdeuhedds bed ebnbaeteebocehbonsewseacahas 6, 13, 48

TABLE OF AUTHORITIES - Continued

- Page

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

WOMEN ua «habeas wie ond vacexee Ccknae ess aa 47, 48

United States v. Vriner, 921 F.2d 710 (7th Cir. 1991)... . 47

Universal Amusement Co.. Inc. v. Vance, 404 F.Supp.

Pe WN, IS Si edewcvbeddanees dicecdso oa... 34

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

(OUD COe, OR Dame IDTE) ww on occ ccccccacccevcccecee, 31

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

SU eb 2 o 8 oi 5 6b 6 dn dses cee us cdabciccess: 34

Yuclan Enterprises Inc. y. Arre, 488 F.Supp. 820

NN I 5.8 Wn ob a ak a he wc Caweccc ue, 32

State Cases

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

ee Me ee) 32

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

I 32

City of Minot v. Central Ave. News, Inc., 308 N.W.2d

inal tec eat en RRR rd SP Pc Oak Reet tal 3]

City of Seattle v. Biitner, 81 Wash.2d 747, 505 P2d

PE SPUR fore OES a eee ee eee 32

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

PEE Seo ae eek Cen 31

Europo Books, Inc. v. Pomerleau, 395 A.2d 1195

ee SE Vaan essa hues Gaeta eee 34

General Corp. v. Sweeton, 320 So.2d 668 (Ala. 1975) .... 31

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

SE PI 650 VenGongsie esto uac ee. i 31

TABLE OF AUTHORITIES —- Continued

Page

Gulf States Theaters of Louisiana v. Richardson, 287

I Ee Ove ca chupestaaeveoesneeness 31

Hamar Theatres Inc. v. City of Newark, 150

N.J.Super. 14, 374 A.2d S02 (IDTT).... 2... cc ccceees 32

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

ee og & Ft. | eee 31, 33

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

Cal.App.3d 369, 181 Cal.Rptr. 1 (1982)............. 32

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

og SE a renee ey Mea yr eeelnear pear yctr en rae Perr Pere er enn 32

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

ee ee OD os oo <5 co on bas ebcuecbeocdeen’ 31

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

ee ie Ree decreed bh ecadauswn' 32

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

Cal.3d 42, 130 Cal.Rptr. 328, 550 P.2d 600 (1976) .... 31

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

i So Grates esos bk caceceeh sew kedeiees 32

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

Cal.mee. Fan, 468 P.28 G46 CISTI)... cc ccccccevess 32

Porno, Inc. v. Municipal Court, 33 Cal.App.3d 122,

ee ee eS a nbs od ide SeGnneedess cesses 34

Sanders v. State, 231 Ga. 608, 203 S.E.2d 153 (1974) ..31, 32

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

Ye I, I ok coe cc eden secawauvevnwes 3]

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

i Mn doers 6 ikea shack Keene ween aeeeen 31

xii

TABLE OF AUTHORITIES — Continued

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

seheciel spon cag tsconieian, MEET TET Ee TAL aI ae 32

State ex rel. Field v. Hess, $40 P2d 1 165 (Okla. 1975)... . 31

State v. Bauer, 159 Ariz. 443, 768 P.2d 175 (Ariz. App.

WP ns + 68.0 685 Wah buauccdeductdauer leslie ok: 32

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

State v. Henry, 302 Or. 510, 732 P2d 9 (Or. 1987). .... 46

State vy. Jenkins, 230 Ga. 726, 199 S.E.2d 183 (1973)... . 32

State vy. Kam, 748 P.2d 372 (Hawaii 1988)............. 46

DockeTED Cases

State v. Smith, Ariz. Ct.App. Case No. 1 CA-CR

MPU eaih teenies ee woe Lee 46

CONSTITUTIONAL PROVISIONS

United States Constitution:

PURI, WOE. D, COUMID Fanconi coco ceecncen 44

First Amendmem.............................. passim

Efgnth Amendment............................. passim

Arizona Constitution................................. 46

FEDERAL STATUTES

United States Code:

I i 34

ed cedscxesice nd ieraltea dite CN 4

xiii

TABLE OF AUTHORITIES —- Continued

Page

I UN rg cg ain ea passim

SO tie gs a ge ek a De 4

Sun a cc, i a eB a ot 4, 30, 37

es: Oe EE ode Gao dks Seceeaceeues 4, 21, 37

Pe Oe Es 5 4c vntcneuedébedenecees Se

rae Ct Ng ne er ee ee 6

Ba AL ad Ree ee Bind See 43

a I ca ca aut cas Pilws os uso eee nie 2

Statutes At Large:

F Se ee ree 43

MISCELLANEOUS

lan A. J. Pitz, Letting the Punishment Fit the Crime:

Proportional Forfeiture Under Criminal RICO’s

Source of Influence Provision, 75 Minn. L. Rev.

ae he a ree Ue ae weld oe 46, 47

James R. Maxeinor, Bane of American Forfeiture Law

— Banished At Last?, 62 Cornell L. Rev. 768, 787

DE odibhahinkeaanshabeedsssussaveieneaeen 43, 44

Kathleen F. Brickey, RICO Forfeitures As “Excessive

Fines” Or “Cruel and Unusual Punishments,” 35

ee es : cuneanueecceseécdcceses 46, 47

Craig W. Palm, RICO Forfeiture and the Eighth

Amendment: When Is Everything Too Much?, 53 U.

Sa te SO 4 wo aoe coeaehadeasawes 42, 43, 47

XiV

TABLE OF AUTHORITIES — Continued

Page

John L.. Roberts, The Eighth Amendment As Applied

To RICO Criminal Forfeiture, 10 W.N. Eng. L. Rev.

ie ko. NA ee SER SR RoE SL lle AN, ea 47

Vernon M. Winters, Criminal RICO Forfeitures and

the Eight Amendment: “Rough” Justice Is Not

Enough, 14 Hast. Const. L.Q. 451 I i at 46, 47

William W. Taylor Ill, The Problem of Propor-

tionality in RICO Forfeitures, 65 Notre Dame L..

ec i ee 43, 44, 46, 47

No. 91-1526

In The

Supreme Court of the United States

October Term, 1992

— @

FERRIS J. ALEXANDER, SR.,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

BRIEF OF PETITIONER

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 at page | of the Appendix to the Petition for Writ

of Certiorari (hereinafter “C.A.”). The Court of Appeals’

unreported order denying rehearing and rehearing en banc is

set forth at C.A. 163. The District Court’s reported opinion

deciding the forfeiture issue, United States v. Alexander, 736

F.Supp. 968 (D. Minn. 1990), is reproduced at C.A. 163; its

unpublished Judgment Including Sentence Under The Sen-

tencing Reform Act is reproduced at C.A. 125. The District

Court’s forfeiture order of August 6, 1990 is reproduced at

C.A. 134 and its final orders of forfeiture appear in the record

as docket entry nos. 273 and 282-291.

JURISDICTION

This Court granted a writ of certiorari to review the decision

of the United States Court of Appeals for the kighth Circuit

affirming Petitioner's conviction and sentence of forfeiture. This

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

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First and Kighth Amendments to the United States Con-

Sutution are reproduced at C_A. 164. The forfeiture provisions of

the federal RICO statute (18 U.S.C. § 1963) are reproduced in their

enurety in the Appendix at the end of this brief.

STATEMENT OF THE CASE

This case starkly presents the issue whether the govern-

ment may, Consistent with the First and Eighth Amendments,

invoke the forfeiture provisions of the RICO Act, 18 U.S.C.

§ 1963, to confiscate entire media businesses in retaliation for

obscenity offenses. Solely because seven items (four maga-

vines and three videotapes) were found obscene at trial, the

government used these provisions to dismantle and destroy

Petitioner's chain of bookstores and video stores. Even before

this Court acted on the certiorari petition, the government

sold most of the real property which housed these media

businesses, and burned their inventories of books and films.

Petitioner Ferris Alexander formerly Owned and operated

numerous bookstores, video stores and theaters in Minnesota,

primarily in the Minneapolis/St. Paul area. He also distributed

books, magazines, and videotapes wholesale. These businesses

were largely devoted to selling or renting erotic materials, pre-

sumptively protected by the First Amendment and which Petitioner

believed to be within local community standards.!

' Peutioner’s businesses were notably successful: the government

alleged that their annual revenues were in the millions of dollars. In

addition to the local popularity of the erotic materials his businesses

In 1989, however, the government charged Petitioner

with multiple obscenity and KICO/obscenity violations. The

indictment (R.1)? charged 34 obscenity counts based on the

alleged obscenity of six magazines and seven videotapes, and

three RICO counts predicated exclusively on those obscenity

charges. '

Petitioner challenged obscenity-predicated RICO forfei-

tures in his pre-trial motions, and Magistrate Janice Sym-

chych initially held the forfeiture provisions of 18 USC.

§ 1963 facially unconstitutional for overbreadth, on grounds

that 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. (C.A. 72-74.) Citing the numerous

federal decisions striking down padiocking orders and license

revocations as overly broad penalties for obscenity convic-

tions, the magistrate also concluded that RICO forfeitures

operate as an impermissible prior restraint. 736 F.Supp. at

989-991. (C.A. 78-81.) She therefore recommended that the

trial court hold RICO forfeiture facially unconstitutional as a

prior restraint. Jd. at 981, 98%, 990. (C.A. 58, 8&1, 119.)

The district court, however, held that the RICO forfeiture

remedy was neither overbroad nor a prior restraint, on

offered for sale and rental, official acquiescence reinforced Petitioner's

belief that the materials he disseminated were within the bounds of com-

munity standards. He had not been prosecuted since he was acquitted of

obscenity charges in the mid-1970's, and local officials had subsequent y

announced that they would not prosecute for obscenity unless the materials

involved bestiality or children. Nor, prior to the alleged conduct in this

case, had there been any federal obscenity prosecutions in the district since

his earlier acquittal.

2 “R.” refers hereinafter to district court docket entries.

% The indictment also alleged tax offenses, and Petitioner was con-

victed of four tax violations. Those convictions are immaterial to the issues

before this Court, as they were completely unrelated to the RICO counts

and the resulting forfeiture.

grounds that the First Amendment imposes no limitation on

the penalties the government may exact for obscenity

offenses. 736 F.Supp. at 978-980. (C_A. 51-55.) The trial

court deemed the First Amendment irrelevant, because “the

law . . . teats an obscenity charge the same as any other

criminal charge, be it bank robbery, narcotics trafficking, of

firearms violations.” Jd. at 980. (CLA. §§.)

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.” /d. (C.A. 54.) In fact, these forfeitures ultimately

closed virtually every adult erotica outlet in the Twin Cities

area.

Following a jury trial, Petitioner was acquitted on 16

obscenity counts and convicted on 18 counts, based on the

determination that seven of the thirteen charged items -

Slightly more than half — were obscene. Based exclusively

upon these seven obscene items Petitioner was also convicted

of the three RICO/obscenity counts. (C.A. 125.)

For these offenses, the ailing 73-year-old Petitioner was

sentenced to concurrent terms requiring his incarceration for

six years. The trial court also assessed him well over

$200,000 in fines and costs. (C.A. 127-128, 132, 133, 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 crim-

inal empire and now must pay for its destruction.” (CA. 162.)

In addition to these harsh criminal penalties, however, 18

U.S.C. § 1963(a) required the trial court to order a total

forfeiture,* extending to Petitioner's entire chain of retail

* Title 18 U.S.C. § 1963(a)1)-(2) compel the trial court to order

forfeiture of any interest a convicted RICO defendant has acquired or

maintained in violation of § 1962, and any interest in, security of, claim

against, or property affording a source of influence over any enterprise

which has been conducted in violation of § 1962. Together, these sections

bookstores and video stores, along with his wholesale media

distribution business which warchoused an extensive inven-

tory. The forfeiture order of August 6, 1990, basically encom-

passed all of the assets associated with Petitioner's ten

operating wholesale and retail media businesses, including

the real estate that had housed them, their bank accounts, and

all the personal property necessary to conduct these busi-

nesses. Included in the latter category were film projectors,

iclevision monitors, video cassette players, cash registers,

Shelves, all office equipment, and three company vehicles

(two vans and a trailer) used to transport media materials.

Most dramatically in terms of its direct and immediate impact

upon expression, the forfeiture order authorized the govern-

ment to confiscate these bookstores’ and video stores’ exis-

ting inventories of untold thousands of books, magazines, and

videotapes. (C.A. 134.)°

The court also ordered forfeiture of over $8.9 million in

cash assets, under the government's theory that this amount

constituted proceeds obtained from “racketeering activity”

require the blanket forfeiture of the enterprise and were so applied in this

case to completely extirpate Peutioner’s speech businesses.

The language of § 1963(a)(3) appears to require forfeiture only of

property constituting or derived from proceeds ohained from “racketeering

activity,” and if properly construed as limited to the actual proceeds from

the sale of the seven obscene items, Petitioner would not challenge the

constitutionality of this provision. However, the tial court applred this

provision to forfeit a wide range of assets, particularly the $8.9 million

alleged as proceeds from the overall conduct of the enterprise for four

years. See C.A. at 144-145. As the courts below construed this provision, it

too 1s Challenged as unconstitutional.

> Technically, the forfeiture order of August 6, 1990 simply ordered

the forfeiture of petitioner's interest in all of the assets described above (as

well as some other properties not mentioned here). Final orders of fortei-

ture were subsequently entered as against the entire world (R.273 and

282-291). These final orders of forfeiture included all the items specifically

described above.

—

from 1985 through 1988, even though all but seven of the

hundreds of thousands of items sold over that period were

presumptively protected materials.

The Eighth Circuit Court of Appeals affirmed Peti-

tioner’s Conviction, rejecting his arguments that RICO forfei-

ture of an entire expressive business for obscenity offenses

violated the First and Eighth Amendments. (C.A. 21-25.)

Relying entirely upon the Fourth Circuit's decision in United

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

concluded First Amendment analysis was simply irrelevant.

Alexander v. Thornburgh, 943 F.2d 825. 834-835. (C.A. 21,

23.) The court apparently also adopted the Fourth Circuit's

conclusion in Pryba that it need not review this sentence

under the Eighth Amendment. /d. at 835-836. (C.A. 25.)

After the Eighth Circuit affirmed Petitioner’s conviction,

but before that court had even denied rehearing, the govern-

ment destroyed all of the presumptively-protected inventories

of books, films, and magazines it had seized from Petitioner’s

warehouse and nine retail outlets.© Federal marshals in Min-

neapolis trucked three tons of magazines, videotapes, and

other inventory to a garbage processing plant, where the

magazines were burned and the videotapes destroyed by

crushing.’

Additionally, despite the pending petition before this

Court, the government sold most of Petitioner's real property

as quickly as it could dispose of those properties by quitclaim

deed. To date the government has sold nine of the ten parcels

Of real property; it has also sold virtually all of the busi-

nesses’ equipment necessary for the future dissemination of

: s The RICO statute expressly prohibits the defendant, as opposed to

third parties, from even applying for any type of stay order to preserve the

; an assets pending the conclusion of any appeal. See 18 U.S.C.

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

constitutionally-protected materials. Most recently, the gov-

ernment sold to the City of Minneapolis a parcel of Peti-

tioner’s real property appraised at $145,000, for the price of

$1.8 .

The RICO Act does not require the government to pro-

vide an itemized inventory of the confiscated property.

Accordingly, the government has never filed any document in

this case itemizing the forfeited property or estimating its

value. Because the government also seized Petitioner's busi-

ness records, it is impossible to estimate accurately the total

value of the property the government has sold or destroyed.

However, Petitioner estimates the value of his forfeited busi-

nesses at $25,000,000.°

SUMMARY OF ARGUMENT

When predicated solely on prior speech violations, the

forfeiture provisions of the federal RICO statute represent a

unique and dangerous threat to the security of First Amend-

ment freedoms, not only for the erotic entertainment industry,

but for all communications businesses. In this case, pursuant

to the mandatory forfeiture provisions of 18 U.S.C. § 1963,

the government seized and destroyed all of the countless

thousands of magazines, books and video tapes from peti-

tioner’s wholesale warehouse and nine separate bookstores

and video stores solely because seven of thirteen charged

items were found obscene at trial. None of the other thou-

sands of destroyed media items were even alleged to be

obscene. In addition to the mass destruction of these untold

thousands of media materials, the government has also confis-

cated and sold almost all the real and personal property

necessary for the business prospectively to disseminate con-

Stitutionally protected expression.

* This transaction involved property at 341 E. Lake St. in Min-

neapolis and closed on July 29, 1992, one month after certiorari had been

granted.

% This is the estimated combined value of the hard assets of the

businesses and the businesses’ value as going concerns.

The Court of Appeals upheld this mass destruction of a

media business upon the erroneous theory that the First

Amendment imposes no limitation upon the scope of punish-

ment which government may exact once it has obtained two

or more Obscenity convictions. Yet, in Arcara v. Cloud Books,

Inc., 478 U.S. 697 (1986), this Court, while upholding a

closure of a bookstore for prostitution and lewd conduct,

nonetheless emphasized that had the triggering violations

involved expression (such as, e.g., obscenity), First Amend-

ment scrutiny would be required. Similarly, in Fort Wayne

Books v. Indiana, 489 U.S. 46, 67 (1989), this Court made

Clear that “the state cannot escape the constitutional safe-

guards of our prior cases by merely recategorizing a pattern

Of obscenity violations as ‘racketeering.’ " The Court invali-

dated RICO seizures, concluding that “[iJt is incontestable

that these proceedings were begun to put an end to the sale of

obscenity ... , and hence we are quite sure that the special

rules applicable to removing First Amendment materials from

circulation are relevant here... . ” /d. at 66. In light of these

Clear statements by this Court, the Court of Appeals’ conclu-

sion that First Amendment considerations are irrelevant here

is plainly unsupportable.

In fact, the government's mass destruction of expressive

businesses in this case was “the essence of censorship,” i.e., a

prior restraint, just as in Near v. Minnesota, 283 U.S. 697, 713

(1931), where the invalid statute authorized the courts to

suppress “the dissemination of future issues of a publication

because its past issues had been found offensive.” Unlike a

typical criminal punishment, the draconian sanction chal-

lenged herein directly suppressed expressive materials and the

means to disseminate them. Rather than simply jailing or

fining the Petitioner (which occurred in any event), the forfei-

lure provisions focused on suppression of his media business.

The fundamental error committed by the Court of

Appeals was to accept the government’s assertion that, under

Near, forfeiture cannot be a prior restraint because it was

imposed as “subsequent punishment” in a criminal case. How-

ever, Near suggested nothing of the sort. Near stated: “We

have no occasion to inquire as to the permissible scope of

subsequent punishment” (283 U.S. at 715, emphasis added),

Clearly implying that there was some tangible First Amend-

ment limit as to how far subsequent punishment may go.

Obviously the same First Amendment principles this Court

protected in Near would be violated if the very same sanction

stricken in Near were authorized by a criminal statute.

Accordingly, the criminal-civil distinction is unquestionably

an inappropriate formalistic test and the Court of Appeals

Clearly erred in adopting it.

Rather, this Court's prior restraint cases suggest that the

Only appropriate test for distinguishing a prior restraint from

a permissible punishment is that a sanction is an unconstitu-

tional prior restraint if it is imposed for a prior speech

violation and in every case where the statutory sanction is

imposed, it will immediately or inevitably suppress speech.

Because of this critical distinction, RICO forfeiture operates

as an unconstitutional prior restraint rather than a permissible

Criminal punishment.

Recognition of this distinction is critical if basic First

Amendment protections — both for individuals and communi-

cations businesses — are to survive. For example, if the chal-

lenged forfeiture were upheld, there would be no barrier to

expansion of the types of speech which could trigger forfei-

ture, to incluge “national security violations,” “disseminating

unauthorized or classified information”, or defamation.

Surely the First Amendment would not permit forfeiture of a

newspaper or broadcast network which committed such a

violation.

To sustain RICO forfeiture is to eviscerate the most

bedrock First Amendment principle: that government may not

preclude future, presumptively protected speech in retaliation

for prior unprotected speech. In essence, this case represents a

fundamental crossroads for liberty of the press in this country.

If the forfeiture of a media business for prior speech viola-

tions is not unequivocally rejected as an unconstitutional

prior restraint, laws empowering government to forfeit speech

businesses for prior speech violations will surely proliferate.

The First Amendment, as we know it, will simply cease to

exist.

Alternatively, massive forfeitures as a remedy for

unprotected speech are also overbroad because they inevita-

bly operate to censor protected speech. In contrast to the

typical overbreadth case where a law's prohibition includes

protected speech, here the proscribed conduct is all

unprotected but the sanction imposed for the violation is

impermissibly overbroad, in violation of First Amendment

rights. See, e.g., NAACP v. Alabama, 377 U.S. 288, 307-308

(1964).

Finally, although Petitioner's First Amendment claims

Should dispose of this case, the forfeitures imposed here

violate the Eighth Amendment guarantees against “excessive

fines” and “cruel and unusual punishment.” The forfeiture of

Petitioner's $25-million business, in addition to a six-year

prison term and some $200,000 in fines, is grossly dispropor-

lionate to the offense of distributing seven items found to be

obscene. Moreover, such forfeitures inherently violate the

Eighth Amendment because they revive the hated and much-

abused “forfeiture of estate” which the framers clearly sought

to abolish.

ARGUMENT

1. THE FORFEITURE AND CLOSURE OF AN ENTIRE

MEDIA BUSINESS, ALONG WITH THE DESTRUC-

TION OF ITS INVENTORY, SOLELY FOR THE

SALE OF SEVEN OBSCENE ITEMS, VIOLATES

THE FIRST AMENDMENT BOTH AS AN UNCON-

STITUTIONAL PRIOR RESTRAINT AND BY ITS

OVERBREADTH.

By deploying RICO forfeiture to destroy a media busi-

ness of which it disapproves, the government presents this

Court with an unprecedented assault on First Amendment

liberties. The government has targeted a communicative busi-

ness for destruction, and solely on the basis of seven items

determined at trial to be obscene, has invoked the ultimate

censorial weapon: RICO’s blanket forfeiture. By means of

this forfeiture, the government has closed down an entire

chain of bookstores, theaters, and video -stores engaged in

erotic speech, to which the government is openly hostile. It

has removed from circulation and burned or otherwise

destroyed those businesses’ vast inventories of books, maga-

zines, and videotapes. It also forfeited and sold all the neutral

real and personal property necessary for those businesses to

engage in all future expressive activity.

The decision below, denying the relevance of the First

Amendment in order to sustain this forfeiture, 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. If this

Court were to affirm, and to condone this forfeiture and book-

burning, it would signal a seismic shift in First Amendment

doctrine. For the first time, it would unleash government to employ

whatever remedies it chooses to punish unprotected speech, no

matter that the effect is to directly and indiscriminately preclude

future, protected speech.

Petitioner’s challenge invokes the traditional First Amendment

axiom that government may not directly and indiscriminately ban

future speech because of prior unprotected expression. Accord-

ingly, forfeiture of a media business purchased by a drug cartel

would be constitutionally permissible,'° whereas the forfeiture of

petitioner’s property must be invalidated."!

10 The government has sought to obfuscate the scope of the legal

issue regarding RICO/obscenity forfeiture, disingenuously contending that

“if bookstores, newsstands, publishing houses, and the like were immune

from forfeiture, drug lords and other criminals would waste no ume in

investing in those businesses, and insulating their criminal proceeds from

seizure.” (Cert. Opp. Br. at 6.) However, Petitioner challenges the constitu-

tionality of RICO forfeiture only where predicated exclusively on obscenity

violations. RICO forfeitures for drug crimes and other non-speech offenses

would be unaffected by this Court's determination that, as applied to

obscenity, RICO forfeiture is invalid. If drug money were invested ina

video store, forfeiture would no more violate the First Amendment than did

the padlocking order in Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986).

1! Petitioner agrees that proceeds from the sale of materials adjudi-

cated obscene would be forfeitable without offense to the First Amend-

ment.

Any departure from this rule would fundamentally jeop-

ardize expressive First Amendment rights throughout the

country. For example, the obscenity conviction revérsed in

Jenkins v. Georgia, 418 U.S. 153 (1974),'2 would today be a

RICO predicate offense permitting the government to confis-

cate the entire theater chain which exhibited the film, and

even the Hollywood studio which produced it. If the govern-

ment moved as aggressively as it has against Petitioner in this

case, it would have already dismantied the Georgia theater

and the Hollywood movie studio, burning their film libraries

and quitclaiming the real property before this Court would

ever have had a chance to rectify the error.

Similarly, both the present administration and local pros-

ecutors have frequently threatened even mildly erotic mate-

rials such as Penthouse or Playboy magazine.'* Accordingly,

should this Court uphold the forfeiture herein, emboldened

Prosecutors may well file RICO-obscenity charges against

Mainstream national bookstore or convenience store chains

where one of their outlets ignored local prosecutorial threats

and sold two issues of Playboy, Penthouse or Cosmopolitan,

in a particularly prudish community. Based upon an obscenity

verdict, the trial court would then be required to forfeit the

'* In that case, the major studio film “Carnal Knowledge,” starring

Jack Nicholson, Candice Bergen and Ann Margaret, was found obscene by

a Georgia jury, and the theater owner's conviction was affirmed by the

Georgia Supreme Court. This Court reversed the conviction.

'* See, e.g., Playboy Enterprises, Inc. v. Meese, 639 F.Supp. S81

(D.D.C. 1986); Council For Periodical Distributors Association v. Evans.

642 F.Supp. 552 (M.D.Ala. 1986), aff'd. 827 F.2d 1483 (11th Cir. 1987):

Freedberg v. U.S. Dept. of Justice, 703 F Supp. 107 (D.D.C. 1988); PHE.

Inc. v. U.S. Dept. of Justice, 743 F.Supp. 15 (D.D.C. 1990); and U.S. v

PHE, Inc., 965 F.2d 848 (19th Cir. 1992).

entire enterprise, ¢.g., the entire local boukstore or conve-

nience store, or even the national chain of stores.

Nor would the destruction of broad First Amendment

rights be limited to erotic expression. If this Court-were to

adopt the government's incredibly dangerous argument, noth-

ing would prevent government from passing new legislation

effectuating a stranglehold on the press and other media.

Predicates such as “jeopardizing national security,” “dissem-

inating unauthorized information” or defamation could all be

added to RICO or become triggering events under separate

statutes with forfeiture type remedies. Using such forfeiture

laws, the government could then simply forfeit the entire

assets of the offending newspaper company or broadcasting

business.

Indeed, if outright forfeiture of media businesses for any

violation of the criminal laws were found constitutionally

unobjectionable, there would be no end to the list of predicate

crimes that could be legislatively employed as triggering

offenses. The point is simply that First Amendment standards

of scrutiny must be employed where government seeks to

utterly destroy a media business solely because of one or

more prior speech violations.

A. The Court Of Appeals Erred In Refusing To

Analyze These Sanctions Under The Heightened

Levels Of Scrutiny Applicable In First Amend-

ment Cases.

The Court of Appeals was able to sustain the forfeiture

herein only by concluding that First Amendment concerns

become irrelevant once the government has obtained an

obscenity conviction. Following United States v. Pryba, 900

F.2d 748 (4th Cir. 1990), the Eighth Circuit panel untor-

tunately held that this egregious form of censorship does not

implicate the First Amendment because “ ‘[o]bscenity is not

protected . . . and a convicted racketeer may not launder his

dirty money by investing it in materials that involve protected

speech.’ " Alexander v. Thornburgh, 943 F.2d 825, 834-835.'4

In sharp contrast to the approach taken by the Court of

Appeals, this Court has consistently repudiated attempts to

linesse the First Amendment by resort to “mere labels” (e.¢.,

“Tacketeering activity”), holding that they cannot confer “tal-

ismanic immunity from constitutional limitations.” New York

Times Co. v. Sullivan, 376 U.S. 254, 269 (1964). In Fort

Wayne Books, lic. v. Indiana, 489 U.S. 46, 67 (i989), the

Court reaffirmed this principle in a pre-trial seizure context,

clearly mandating the application of First Amendment anal-

ysis in a RICO obscenity case: “(T]he state cannot escape the

constitutional safeguards of our prior cases by merely recat-

egorizing a pattern of obscenity violations as ‘racketeering.’ ”

The Court further noted:

“It is incontestable that these proceedings were

begun to put an end to the sale of obscenity... ,

and hence we are quite sure that the special rules

applicable to removing First Amendment materials

from circulation are relevant here... .

“The fact that the [state’s] motion for seizure

was couched as one under the Indiana RICO law -

instead of being brought under the substantive

obscenity laws — is unavailing. As far back as the

decision in Near v. Minnesota ex rel. Olson, . . . this

Court has recognized that the way in which a

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

consequence. .. . For example. in Vance v. Univer-

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

down a prior restraint placed on the exhibitions of

films under a Texas ‘public nuisance’ statute, find-

ing that its failure to comply with our prior case law

in this area was a fatal defect.” /d. at 66. (Citations

omitted. )

'* Of course, as noted above, Petitioner neither seeks the night to

“launder on dirty money,” nor disputes that proceeds from the sale of

specific materials determined to be obscene would be forfeitable.

Fort Wayne Books thus reaffirmed an essential principle

of Near v. Minnesota: that the Court will “cut through mere

details of procedure” to analyze realistically “the operation

and effect of the statute in substance.” 283 U.S. at 713. See

also Kingsley Books v. Brown, 354 U.S. 436, 441 (1957)

(“The judicial angle of vision in testing the validity of a

statute .. . is ‘the operation and effect.’ ") As Justice White

wrote in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68

(1981), “the standard of review is determined by the nature of

the right assertedly threatened or violated rather than by the

power being exercised or the specific limitation imposed.”

This Court most recently rejected formalistic attempts to

avert First Amendment analysis in Simon & Schuster v. New

York Crime Victims Board, __ U.S. __, 112 S.Ct. SO]

(1991), addressing the same arguments to which the govern-

ment resorts here. In Simon & Schuster, this Court held that

even where the state seeks to deprive criminals convicted of

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

remedy which targets and adversely impacts free expression

must survive the most searching scrutiny. Invalidating New

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

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, this Court dismissed arguments that First Amend-

ment scrutiny should not apply.

The state maintained that the discriminatory burden on

certain speech did not trigger First Amendment scrutiny

because the legislature did not intend to suppress speech

about crime, much as the government has argued RICO forfei-

tures 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

‘(illicit legislative intent is not the sine qua non of

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

concluded in Minneapolis Star, ‘{(wje have long

recognized that even regulations aimed at proper

governmental concerns can restrict unduly the exer-

cise of rights protected by the First Amendment.’ ”

112 S.Ct. at 509. (Emphasis added.)

That the Court of Appeals erred in refusing to apply

heightened First Amendment scrutiny is also demonstrated by

this Court’s opinion in Arcara v. Cloud Books, Inc., 478 U.S.

697 (1986). In Arcara, this Court upheld the one-year closure

of a bookstore due to repeated lewd conduct and prostitution

on the premises. Although this Court concluded that First

Amendment scrutiny was not required in analyzing the non-

speech-predicated closure sanction, both the majority opinion

and Justice O’Connor’s concurrence emphasized that where,

as here, a media business is to be permanently closed for

prior speech violations, such a sanction must be analyzed

under heightened First Amendment standards. The majority

noted that a “criminal [or] civil sanction” does require First

Amendment scrutiny “where it was conduct with a significant

expressive element that drew the legal remedy in the first

place, . . . or where a statute based on a nonexpressive

activity has the inevitable effect of singling out those engaged

in expressive activity.” 478 U.S. at 706-707. As applied in

obscenity cases, of course, RICO forfeitures both are trig-

gered by expressive conduct and inevitably single out those

engaged in expression,

Moreover, Justice O'Connor's concurrence in Arcara

additionally emphasized that “[i]f . .. a city were to use a

nuisance statute as a pretext for closing down a bookstore

because it sold indecent books .. . , the cases would clearly

implicate First Amendment concerns and require analysis

under the appropriate First Amendment standard of review.”

Id. at 708. Clearly, every justice in Arcara agreed that full

First Amendment standards of review are required when the

predicate crime which triggers a closure order is obscenity.'5

'S As the Ninth Circuit Observed in Adult Video Association v. Barr,

960 F.2d 781, 792 (9th Cir. 1992), First Amendment standards of review

come into play in reviewing RICO forfeitures based on obscenity, because

For all these reasons, the Court of Appeals unquestiona-

bly erred in concluding that First Amendment scrutiny is not

applicable where the government has destroyed huge quan-

tities of presumptively protected expression and has closed

down and forfeited an entire network of media businesses,

solely because seven of their thousands of media items were

ultimately found obscene.

B. The Forfeiture And Closure of an Entire Media

Business, Exclusively For Obscenity Violations, Is

A Classic Prior Restraint Of The Sort This Court

Has Condemned As A Per Se Violation of The

First Amendment Ever Since Near v. Minnesota.

1. Of the various types of prior restraint con-

demned by this Court, the Near type is the

most unequivocal First Amendment violation.

This Court has stricken a variety of governmental actions

and laws as invalid prior restraints. One of the clearest exam-

ples of prior restraint is a law requiring a license as a

prerequisite to engage in all future presumptively protected

speech activities. These laws are prior restraints,'® but will be

of “concern for protecting the public's right to receive, as well as the

defendant's right to engage in, non-obscene speech.”

“The forfeiture of assets derived from drugs, arson, fraud and

murder rarely, if ever, implicates a public nght of access 10

information. The forfeiture of assets loosely affiliated with

obscenity offenses, by contrast, hurts not just the defendant,

but also those members of the public who wish to obtain

sexually explicit and erotic videotapes. Government ‘is not free

to adopt whatever procedures it pleases for dealing with

obscenity . . . without regard to the possible consequences for

constitutionally protected speech.’ /d., quoting Marcus ¥.

Search Warrant, 367 U.S. 717, 731 (1961).

U.S. __, 112 S.Ct. 2395, at 2401 (1992), and cases there cited.

upheld if, facially, they allow no substantive discretion to the

licensor, and state sufficiently brief and specific time limits

within which the decision maker must grant or deny the

license. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215

225-229, (1990). )

Another type of prior restraint is the “item-specific” prior

restraint where government seeks to suppress the publication

or exhibition of a particuiur expressive work. For example, in

New York Times v. United States, 403 U.S. 713 (1971), the

government sought to enjoin publication of the Pentagon

Papers by The New York Times and The Washington Post. The

government argued that publication of these papers, contain-

ing Vietnam War information, would jeopardize national

security. Notwithstanding that argument, this Court adhered

to the settled principle that “[a}ny system of prior restraints of

expression comes to this Court bearing a heavy presumption

against its Constitutional validity” (id. at 714) and that “[t}he

Government ‘thus carries a heavy burden of showing justi-

fication for the imposition of such a restraint.’ ” Jd. Without

rejecting the notion that such a restraint could ever be valid,

this Court simply held that the government had not met its

extremely heavy burden of justification.

Nonetheless, in other item-specific prior restraint cases,

this Court has concluded that the government may overcome

its heavy burden and prospectively prevent publication or

exhibition of certain specific items, but only after they have

been proven to be unprotected.'’

| The forfeiture involved in the present case falls into a

third category of prior restraint which may be the most

'? See, e.g., Kingsley Books v. Brown, 354 US. 4% (19

Freedman v. Maryland, 380 U.S. 734 (1965), both of we me

procedures (injunction in Kingsley, individual film licensing in Freedman)

for imposing restraints directly on specific expression found to be obscene

(Compare R.A.V. v. City of St. Paul, __ US. __, 112 $.Ct. 2538, 2543

(1992), (obscenity is “speech,” but is suppressible speech.)

auth ania, ————

inimical to the First Amendment. Typified by the prior

restraints condemned in Near v. Minnesota, 283 U.S. 697

(1931), and Organization for a Better Austin v. Keefe, 402

U.S. 415 (1971), this type of prior restraint is almost univer-

sally found unconstitutional because it imposes a direct and

indiscriminate restraint upon future expression by a media

business and does so exclusively because of past unprotected

speech. It is the most unequivocal violation of the First

Amendment, for which this Court has never accepted any

attempted justification. As this Court summarized Near in the

subsequent case of Kingsley Books v. Brown, 354 U.S. 436

(1957):

“Minnesota empowered its courts to enjoin the dis-

semination of future issues of a publication because

its past issues had been found offensive. In the

language of Mr. Chief Justice Hughes, ‘this is of the

essence of censorship.’ 283 U.S. at p. 713. As such,

it was unconstitutional.” 354 U.S. at 445.

The reason these types of prior restraints are the most

clearly unconstitutional is readily demonstrated by comparing

them to the item-specific restraint stricken in New York Times.

In New York Times this Court held that government must have

an extremely compelling reason for prospectively restraining

even one item of presumptively protected expression.

In sharp contrast, in the Near type of prior restraint, the

government does not even seek a carefully limited restraint,

much less attempt to justify one. Rather, it indiscriminately

prohibits future presumptively protected expression simply as

retaliation for a prior speech violation. Regardless of whether

such a sanction may be characterized as “deserved punish-

ment” for the individual or media business in question, the

crucial feature, from a First Amendment standpoint, is that,

by focusing directly on the media materials, the forfeiture

order does not merely punish a wrongdoer, but deprives the

public of access to large quantities of presumptively protected

expression. Indeed, in the present case, the effect of these

forfeitures has been to eliminate virtually all outlets for erotic

materials from the Minneapolis/St. Paul area.

This comparison of the Near and New York Times types

of prior restraints highlights another important aspect of prior

restraint doctrine. In prior restraint cases, this Court has

always focused on the speech that is restrained, not on the

speech that triggered the remedy. The latter may sometimes

be enjoined or even destroyed, but protected or unspecified

speech may not be.

2. Because RICO forfeiture directly and indis-

criminately suppresses future presumptively

protected speech in retaliation for prior

unprotected speech, this Court's decisions

uniformly require its invalidation as an

unconstitutional prior restraint.

In Near v. Minnesota, this Court struck down a prior

restraint constitutionally indistinguishable from RICO forfei-

ture. At issue was a statute which authorized an injunction

against future publication in order to abate “malicious, scan-

dalous and defamatory” periodicals as a public nuisance.

“Minnesota empowered its courts to enjoin the dissemination

of future issues of a publication because its past issues had

been found offensive,” as this Court later characterized the

Near prior restraint in Kingsley Books v. Brown, 354 US. at

445.

Because Near had published defamatory matter in nine

previous editions of his periodical, The Saturday Press, the

trial court: (1) ordered the permanent abatement of The Satur-

day Press,'* necessarily prohibiting all future issues of that

magazine whether or not they were defamatory; and (2) per-

manently enjoined the defendants from ever again publishing

any scandalous or defamatory newspaper, whether under the

title “The Saturday Press” or any other. 283 U.S. at 706. This

'* The trial court also temporarily restrained the defendants from

publishing or circulating “any future editions of .. . The Saturday Press”

pending trial. 283 US. at 704-705.

)

Court squarely held both speech-preclusive remedies uncon-

stitutional: unprotected speech such as defamation could be

punished subsequent to its publication, but not by restraining

other presumptively protected speech in advance. For govern-

ment to preclude future speech in response to pest

unprotected speech, said Chief Justice Hughes, ts the

essence of censorship.” 283 U.S. at 713.

The forfeiture here is a prior restraint of expression for at

least three reasons. First, as to the countless thousands of

magazines and videos which the government destroyed, oaly

seven were found obscene. Accordingly, the overwhelming

majority were presumptively protected expression which were

supressed before they were sold to the public and before any

judicial determination that they lacked constitutional protec-

tion.

Second, by forfeiting both the ten parcels of real property

at which these businesses existed, as well as all of the equip-

ment necessary to operate these businesses (e.Z., cash regis-

ters, shelves, video projectors, etc.), the government directly

prevented these businesses from disseminating and continuing

to disseminate any other constitutionally protected materials

in the future. Accordingly, the forfeiture of these businesses

accomplished an extremely effective prior restraint of the

future expressive activity of these businesses, indistinguish-

able from the prior restraint impact of the abatement order

stricken in Near.

Third, the forfeited bank accounts and proceeds of the

businesses seized under 18 U.S.C. § 1963(a)(2) and (3), also

constituted a prior restraint. The statutory term “proceeds,” as

construed by the government, is extremely broad, represent-

ing gross receipts rather than mere profits. The forfeiture -

any media business’ gross revenues Over a lengthy period

will unquestionably force its closure, necessarily preventing

19 The four yours of gross revenues fortetted in the present —

seems typical, involving forfeiture of all revenues obtained dumng 198!

through 1988. C.A. 144.

all of the business’ future speech activities. Accordingly,

forfeiture of proceeds is a prior restraint as well.

As early as Near, this Court dismissed the government's

present arguments. The Court made clear that a blanket pro-

spective restraint is not “punishment in the ordinary sense,

but suppression.” /d. at 711. “Subsequent punishment for such

abuses as May exist is the appropriate remedy, consistent with

constitutional privilege,” ie. the right to be free from

restraints upon protected or unspecified speech. Jd. at 720.

| For all the reasons articulated in the landmark Near

opinion, both this Court and the state and lower federal courts

have consistently enforced as a per se rule the Near prohibi-

ion against broad prospective restraints upon presumptively

protected expression in retaliation for prior speech violations.

Because the lower courts have so universally repudiated the

particular species of prior restraint rejected in Near, cases of

this type have rarely reached this Court.

Forty years after Near, another case came before this

Court involving a broad and direct prospective restraint upon

presumptively protected expression. In Organization for a

Better Austin v. Keefe, 402 U.S. 415, 417 (1971), a real estate

broker obtained an injunction to prevent the Organization For

A Better Austin “ ‘from passing out pamph'ets, leaflets or

literature of any kind, and from picketing.’” The organization

had severely criticized the realtor for “blockbusting” tactics,

and he asserted that their picketing and leafletting violated his

rights to privacy. In striking the order down as an impermissi-

ble prior restraint, this Court emphasized that the doctrine of

prior restraint prohibits this type of open-ended order regard-

less of whether the predicate speech was protected or

unprotected:

“It is elementary, of course, that in a case of this

kind the courts do not concern themselves with the

truth or validity of the publication. Under Near y.

Minnesota, .. . the injunction, so far as it imposes

prior restraint on speech and publication, consti-

tutes an impermissible restraint on First Amend-

ment rights. Here, as in that case, the injunction

operates . . . to suppress, on the basis of previous

publications, distribution of literature ‘of any

kind.’” Jd. at 418. (Emphasis added.)

As these cases make clear, whether a remedy — be it an

injunction, denial of a license, or forfeiture - constitutes a

prior restraint does not turn upon the speech which triggered

the remedy, but rather upon what is restrained. A remedy

which indiscriminately precludes future protected or

unspecified speech operates as a prior restraint, and the fact

that it is triggered by unprotected or illegal speech does not

insulate it from First Amendment review.

Reaffirming this principle in Kingsley Books, Inc. v.

Brown, 354 U.S. 436, 441 (1957), this Court upheld a civil

injunctive procedure whereby the state could restrain the

dissemination of specific books judicially determined to be

obscene. The Court expressly distinguished this narrow

injunctive remedy from the broad prior restraint condemned

in Near, noting that the trial judge had “refused to enjoin ‘the

sale and distribution of later issues’ [of the obscene book -is]

on the ground that ‘to rule against a volume not offered in

evidence would . . . impose an unreasonable prior restraint

upon freedom of the press.’” /d. at 439. Observing that the

state had “studiously withh{eld] restraint upon matters not

already published and not yet found to be offensive,” the

Court reaffirmed that such a restraint would be “ ‘the essence

of censorship.’” Jd. at 445, quoting Near.

Indeed, many opinions of this Court have echoed the

concept articulated in Near and Keefe that the protections of

the First Amendment do not disappear where unlawful expres-

sion is being punished. As recently as this Court’s decision in

R.A.V. v. City of St. Paul, __ U.S. __, 112 S.Ct. 2538 (1992),

Justice Scalia, writing for the majority, noted that even when

government undertakes to regulate speech within one of the

narrow “proscribable categories,” such as obscenity, it must

do so with due regard for the broader principles of the First

Amendment. To say that obscenity and libel constitute catego-

ries of speech which may be censored is not to say “that they

are categories of speech entirely invisible to the Constitu-

tion.” 112 S.Ct. at 2543. “Our cases surely do not establish

the proposition that the First Amendment imposes no obstacle

whatsoever to regulation of particular instances of proscrib-

able expression, so that government ‘may regulate [them]

treely.""2° Jd. at 2543.

Similarly, in Simon & Schuster, supra, this Court struck a

law under the First Amendment even though it was chal-

lenged by one whose triggering crime was murder, clearly a

honspeech violation. Simply stated, this Court has consis-

tently ruled that First Amendment considerations do not evap-

orate merely because the triggering conduct may have been

unlawtul,

Here, the government has violated an even more bedrock

principle of First Amendment law than the ban on content-

based discriminations invoked in R.A.V. and Simon & Schus-

fer.*' In the Near prior restraint situation, as discussed above,

where government indiscriminately precludes future protected

or unspecified speech, the unlimited nature of the remedy is

its greatest essential evil. If there is any per se rule limiting

governmental interference with speech, it is the Near rule that

past speech abuses may not be redressed by measures which

directly and indiscriminately prevent disseminating presump-

lively protected expression in the future.

This Court has also invalidated laws which impose a

greater burden on speech-related businesses than on others.

See, e.g., Minneapolis Star & Tribune Co., v. Minnesota

Comm'r of Revenue, 460 U.S. 575 (1983); and Arkansas

Writers Project v. Ragland, 481 U.S. 221 (1987). The Court,

discerning the potential for governmental control of speech

through unequal taxation, struck the tax laws in those cases,

°° Along the same lines, in Smith v. California, 361 US. 147, 155

(1959), this Court recognized: “The existence of the State’s power to

prevent the distribution of obscene matter does not mean that there can be

ho constitutional barner to any form of practical exercise of that power.”

*! As this Court stated in Minneapolis Star: “Prior

restraints . . . Clearly strike to the core of the Framers’ concerns, leading

this Court to teat them as particularly suspect.” 460 U.S. at 583, n.6.

in order to prevent injury to important First Amendment rights.

Yet RICO forfeiture inflicts far graver injury to First Amend-

ment rights than the discriminatory taxation schemes in Ragland

and Minneapolis Star. The RICO forfeiture remedy operates not

just as a burden but as a ban on future speech. Whereas the unfair

taxation of businesses in Ragland and Minneapolis Star could tend

to deter speech, it has nowhere near the absolutely preclusive

impact of RICO forteiture.

The controlling principle is that whether a sanction violates

the First Amendment must be based upon “the operation and effect

of the statute in substance.” Near, 283 U.S. at 713. Since the

operation and effect of the laws stricken in Minneapolis Star and

Ragland was unconstitutional, a fortiori: the operation and effect of

a complete ban on future expression solely because of prior speech

violations must also be unconstitutional.

Moreover, this Court need not speculate about the operation

and effect of RICO forfeiture. Not only is the effect of this statute

apparent from the present facts (e.g., the virtual elimination of

erotic media stores in the Twin Cities and the massive destruction

of presumptively protected media materials), this total destruction

of a media business was both the Justice Department's clearly

intended purpose?? and also consistent with Congress’ intent in

22 While an illicit motive “is not the sine qua non of a violation of the

First Amendment,” Minneapolis Star, 460 U.S. at 592, nonetheless, where

ithe government has clearly pursued these remedies for the improper pur-

pose of destroying both protected sexually oriented expression to which it

is overtly hostile as well as unprotected expression, it commits the clearest

possible violation of the First Amendment. (See, e.g., Justice O'Connor's

concurrence in Arcara expressing the view that if government “were to use

4 nuisance statute as a pretext for closing down a bookstore because it sold

indecent books . . . the case would clearly implicate First Amendment

concems. .. ." 478 U.S. at 708.)

Here, evidence of the executive branch's censorial purpose is abun-

dant. First, in a typical RICO forfeiture, the only seized property which the

government will actually destroy is that which is contraband. By destroy-

ing, rather than selling, this vast inventory of presumptively protected

enacting this forfeiture statute, ie., to permanently disable any

media enterprise found to have committed two or more obscenity

violations.?* This disabling statutory purpose has certainly been

thoroughly effectuated in the present case.

na Because a broad prospective restraint such as RICO for-

leiture sO universally violates core First Amendment princi-

ples, this Court has essentially treated the Near type prior

restraint as a per se constitutional violation. In neither Near

nor Keefe did this Court hesitate to condemn the prospective

restraints Outright, nor did any member of the Court even

suggest that a compelling interest analysis was required.

expression (and, indeed, by doing so before this Court could even provide

appellate review), the government has clearly manifested a censorial desire

to remove all sexually oriented materials from public access, regardless of

their protected status.

Additionally, in the usual RICO forfeiture, the government sells the

forfeited business intact, allowing unrelated third parties to lawfully oper-

ale the business in the future. In this case, however, the government chose

to dismantle these presumptively protected businesses by separately selling

all of the real and personal property necessary to operate them. Indeed,

these businesses were far more valuable as going concerns than when “sold

for parts.” Recently the government quitclaimed one of petitioner's parcels

of real estate appraised at $145,000 by the U.S. Marshal for the mere sum

of $1. This conduct demonstrates a clearly unconstitutional purpose to

prevent the sale of all sexually oriented materials, not merely those which

are obscene. This is censorship at its worst.

Finally, additional evidence of the government's desire to suppress

constitutionally protected materials dealing with sex is found in the collec-

tion of cases referenced in note 13, supra. a

*% As this Court recognized in Russello v. United States, 464 U.S. 16

26-29 (1983), Congress’ purpose in enacting the RICO statute was to

destroy a RICO enterprise by making “an attack . . . on their source of

economic power itself.” (/d. at 27.) The forfeiture provision “was intended

to serve all the aims of the RICO statute, namely, to ‘punish, deter.

tacapacitate, and . . . directly to remove the corrupting influence from the

channels of commerce.’” Id. at 27-28.

Regardless of whether this Court should adopt Justice

Kennedy's suggestion of a per se rule against content-based

discriminations2*, this Court has always adhered to such a

rule when examining prior restraints of the Near variety.

Because a contrary rule would allow government enormous

discretion to stifle disfavored speech and speakers prospec-

tively, this Court has uniformly held that government may not

punish unprotected speech by flatly prohibiting future pre-

sumptively-protected speech.

This Court’s decisions prohibiting mass seizures of erotic

materials provide additional support for facially invalidating

RICO/obscenity forfeiture. See Marcus v. Search Warrants,

367 U.S. 717 (1961); Quantity of Copies of Books v. State of

Kansas, 378 U.S. 205 (1964); see also Heller v. New York,

413 U.S. 483, 491 (1973); Lo-Ji Sales, Inc. v. New York,442

U.S. 319, 327-328 (1979); Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46, at 62-63 (1989), all expressly reaffirming the

principles of Marcus and Quantity of Books.

The Court’s common rationale in Marcus and Quantity of

Books was that in the absence of procedures designed to focus

searchingly on the obscenity of every item, mass seizures run

the risk that some protected materials will be temporarily

removed from circulation simply because they are present at

the same location where obscene materials are sold. Although

these cases involved pre-judgment seizures, their First

Amendment rationale applies with even greater force to

24 Compare Justice Kennedy's concurrence in Simon & Schuster, 112

S.Ct. at 512-515, where, in the context of the content-based discrimination

presented by the Son-of-Sam law, he advocated adoption of a per se rule,

rather than the compelling interest analysis applied by the majority. The

rationale for such a rule was that 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. To like effect, see Justice Kennedy’s concurring opinion in

Burson v. Freeman, __ U.S. __, 112 S.Ct. 1846, at 1858 (1992).

invalidate RICO forfeiture premised on obscenity violations.

Here, protected materials are permanently, not temporarily,

removed from circulation, simply because some obscene

materials are found at the same location. The forfeiture herein

simply cannot be squared with the underlying premise of both

Marcus and Quantity of Books.

Finally, the Court of Appeals erred in adopting the gov-

croment’s assertion that RICO forfeiture is permissible

because it is part of a criminal statute and may be charac-

terized as “subsequent punishment” rather than a prior

restraint. This distinction clearly misses the constitutional

mark.

First, Near neither stated nor implied that the First

Amendment permits all subsequent punishments for speech

Violations. Quite to the contrary, Near noted that no criminal

punishment was involved in that case and then expressly

stated: “We have no occasion to inquire as to the permissible

scope of subsequent punishment.” 283 U.S. at 715 (emphasis

added). Obviously, by stating that it had no occasion to

inquire as to the permissible scope of subsequent punishment,

this Court neither endorsed all subsequent punishments nor

suggested a bright line distinction between “subsequent pun-

ishment™ and prior restraint. Indeed, by so Stating it clearly

implied there was some tangible First Amendment limit as to

how far subsequent punishment could go.

) Second, the mere fact that a sanction is imposed as part

of a criminal statutory scheme cannot provide the litmus test

separating the permissible from the impermissible sanction. If

that were the case, it would be permissible, after a criminal

conviction and under an appropriately worded criminal stat-

ute, to issue the very injunction stricken in Near! Similarly, it

would be absurd in the present case to suggest that Near

would have approved as a permissible “punishment” a sanc-

tion (1.e., forfeiture) whose “operation and effect” was indis-

tinguishable in any meaningful way from the very sanction

Near invalidated.

The principles which restrict prior restraints and which

control this case were clearly articulated in Near, Keefe and

Kingsley, supra. As the Court emphasized in Near and King-

sley, whether a statute imposes an impermissible prior

restraint or permissible punishment must be measured by its

“operation and effect,” and cannot be avoided by a facile

characterization of the sanction as “punishment.”

If the constitutional guarantee could be evaded simply by

a legislative determination that the forfeiture of a business is

a “punishment” (a classic example of a “talismanic label”),

the entire First Amendment prohibition against prior

restraints would be meaningless. Under so toothless a test,

nothing would prevent the most outrageous control of the

press and other media by government. Nearly every media

entity has, at one time or another, committed some speech

transgression, e.g., defamation, invasion of privacy,

obscenity, a “national security” violation, etc. Certainly,

media enterprises are constantly called upon to make their

best guesses as to whether particular expression falls within

the realm of constitutional protections. It is inevitable that

nearly every communications business will make an error of

judgment at some time or another.

Yet, if government at any level need only label a sanction

as a “criminal punishment” in order to forfeit a speech busi-

ness for one such “wrong guess,” the only media entities

which will ultimately survive are those which are approved by

government.

As noted above, the asserted distinction between “prior

restraint” and “subsequent punishment’ is neither meaningful

nor useful, because it would permit the imposition of the very

sanction condemned in Near if authorized by a criminal

statute. Instead, the appropriate analysis should focus on

whether the particular restraint is one which directly sup-

presses presumptively protected expression.

While many types of governmental sanctions will have

the effect of indirectly restraining expression, ¢.g., a jail

sentence or a fine, the hallmark of a sanction which is a direct

and impermissible prior restraint is that «f ts imposed for a

prior speech violation and in every case where the statutory

sanction ts imposed, it will immediately or inevitably suppress

speech. Petitioner submits that this test articulates the com-

mon rationale which both explains this Court's previous deci-

sions involving sanctions challenged as prior restraints and

also provides the only constitutionally appropriate method for

analyzing the endless variety of sanctions that will inevitably

arise in the future.

Under this limiting principle, it is clear that RICO forfei-

lure for prior speech violations must fall whereas typical jail

sentences or fines for obscenity violations remain valid. The

unlimited forfeiture required by 18 U.S.C. § 1963(a)(1) and

(2) will, in every RICO obscenity application, necessarily or

immediately suppress presumptively protected expression.

Even if one assumed that every single book and videotape in a

forfeited store were obscene, the forfeiture of the real and

personal property used in or necessary for dissemination of

future presumptively pretected expression would still, and in

every case, suppress the business’ ability to engage in future

presumptively protected expression.

In contrast, while imposition of a six month jail sentence

for an obscenity violation might have the effect of shutting

down the expressive business, it would likely not have that

effect in most cases. In the present case, for example, had

Petitioner’s only punishment been his six year jail sentence

and his $200,00Q fine, his ten businesses would have surely

remained open to the public. However, the statutorily manda-

ted forfeiture permanently eliminated the stores. As a result,

the public has been deprived of most of the local media

outlets for obtaining constitutionally protected erotic mate-

rials.

In sum, since RICO forfeiture aims directly at expressive

businesses based on prior speech violations and, in every case

directly compels the suppression of speech itself, and/or the

forfeiture of the neutral real and personal property used in or

necessary for engaging in presumptively protected speech

activities, it must be invalidated as an impermissible prior

restraint.

3. In scores of cases invalidating padlock orders,

license revocation, and seizure of the equip-

ment and other property of theatres and

bookstores as punishment for obscenity viola-

tions, the lower federal and state courts have

universally concivded that such remedies

operate as unconstitutional prior restraints.

Notwithstanding the clarity of the prior restraint doctrine,

in the early 1970s, state and local governments, in order (o

eliminate the “inefficiencies” of individual obscenity prosecu-

tions, adopted various novel and equally unconstitutional pre-

cursors to RICO forfeiture. They opted to prevent future

obscenity violations by simply shutting down the offending

media business; they would “punish” obscenity with a

padlocking order or by revoking or denying business licenses.

With virtual unanimity, an extraordinary number of state and

lower federal courts blocked these attempts to close bookstores and

theaters as “nuisances” by padlocking or injunction,”

25 The following cases have found nuisance laws unconsututional

which provide for the padlocking of businesses where obscenity offenses

have occurred in the past: Universal Amusement Co., Inc v. Vance, S87

F.2d 159, 164-166 (Sth Cir. en banc 1978) [as to this particular point, al! 14

judges of the en banc court were in agreement), aff'd. on other grounds,

445 U.S. 308 (1980); 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. Rpu. 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 Motu Picture Entitled “The Bet”, 219 Kan. 64,

$47 P.2d 760 (1976): Gulf States Theaters of Lousiana vy. Richardson, 287

So.2d 480 (La. 1974); New Riveria Arts Theatre v. Davis, 219 Tenn. 652,

412 $.W.2d 890 (1967); Society to Oppose Pornography, Inc. v. Thevis,

255 So.2d 876 (La.App. 1972); Giarrusso v. D Iberville Gallery, 295 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, S40 P.2d 1165 (Okla. 1975), Common.-

wealth 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 Lid., Inc. 380 So.2d 158 (La. 1977), overruling

or, allernatively, by revoking their licenses,2° upon a showing

that they sold or exhibited obscenity in the past.

LaApp., 341 So.2d 23; Muchem y. State ex rel. Schaub, 250 So.2d 883

(Pla. 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), onder re-entered August 16, 1976 (unpub.), aff'd. 431 US. 961

(1977), Huffman v. Pursue, Lid, 420 US, 592, 612, n. 23 (1975); of

Speight v. Slaton, 415 U.S. 333 (1974); State ex rel. Ewing v “Without a

Stach”, 307 N.B.2d 911 (Ohio 1974), |

°° In the following cases, courts have held unconstitutional laws which

allowed a permit to be revoked or denied because of a prior obscenity

violation: City of Paducah v. Investment Entertainment, 791 F.2d 463 (6th

Cur. 1986); Gayety Theaters, Inc. v. City of Miami, 719 F.2d 1550 (1 Ith Cir

1983); Entertainment Concepts Inc. III y. Maciejewski, 631 F.2d 497 S06

(7th Cir. 1980); Cohen v. City of Daleville, Alabama, 695 ESupp. 1168

(M.D.Ala. 1988); Genusa v. City of Peoria, 475 F Supp. 1199, 1207-09

(C.D. 1979), aff'd. 619 F.2d 1203, 1217-1220 (7th Cir, 1980): Corn-

flower Entertainment, Inc. v. Salt Lake City C orp., 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.Pla. 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. Myerson, 352 F Supp. 994

(S.D.N.Y. 1972); Oregon Bookmark Corp. v. Schrunk, 321 ESupp. 639

(D.Oregon 1970); Perrine v. Municipal Court, § Cal.3d 656, 97 Cal Rptr

320, 488 P2d 648 (1971), cert. den. 404 U.S. 1038 (1972); Kuhns v. Santa

Cruz Co. Bd. of Sup’rs., 128 Cal.App.34 369, 374-375, 181 Cal. Rptr. 1, 3-4

(1982); City of Seattle v. Bittner, 81 Wash.2d 747, $05 P2d 126 (1973):

Alexander v. City of St- Paul, 303 Minn. 201, 227 N.W2d. 370 (Minn,

1975); City of Delevan \. Thomas, 31 ILApp.3d 630, 334 NE2d 190

(1975), Hamar Theatres inc. v. City of Newark, 150 NJ Super. 14, 374

A.2d S02 (1977); People v. J.W. Productions. 413 NYS 2d 552

(N.Y.C.CrCt. 1979); State v. Bauer, 189 Ariz. 443, 768 P2d 175

(Anz. App. 1988); see also Intern. Soc. for Krishna Consciousness x

Eaves, 601 F.2d 809, 832-833 (Sth Cir. 1979); Fernandes v. Limmer, 663

F.2d 619, 629-630, 632 (Sth Cir. 1981); of. Marks v. City of Newport Ky

344 F Supp. 675 (E.D-Ky. 1972); Chulchian v. City of Indianapolis, 477

F Supp. L28, 131-132 (S.D.ind. 1979), aff'd., 633 F2d 27, 30 (7th Cir

) 2

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

Ga. 608, 613-614, 203 S.E.2d 153, 157 (1974), typifies the courts’

emphatic rejection of these prior restraints:

“The injunction closing the store and padlocking it

as a public nuisance necessarily halted the future

sale and distribution of other printed material which

may not be obscene, thereby . . . creating an uncon-

stitutional restraint upon appellant.

“(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 bludgeoning blow of the butcher to

cut away cancerous 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 pub-

lications but otherwise full of poetry and prose.”?’

Additionally, in both civil and criminal obscenity cases,

the courts have unanimously held that the state may not seize

or forfeit personal property (shelves, projectors, etc.) used to

d'sseminate obscene materials.2* In short, innumerable courts

2? This from a court which can hardly be characterized as “soft on

obscenity,” as, just one year earlier, it had upheld the obsceaity convicuon

of a theater manager for exhibiting the film “Carnal Knowledge” in State v

Jenkins, 230 Ga. 726, 199 $.E.2d 183 (1973), unanimously reversed by this

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

2 See, e.g., United States v. Polak, 312 FSupp. 112, 116 (E.D Pa.

1970) (ordering return of defendant's personal property; court ruled that

but even after a final determination of obscenity, citing Near), State of

Kansas v. A Motion Picture Entitled “The Bet”, 219 Kan. 64, 547 P.2d 760,

771 (1976) (enjoining enforcement of statute authorizing forfeiture and

destruction of movie projectors, theater seats, etc., upon proof of an

obscenity violation, on grounds that this was a pnor restraint on future

presumptively protected expression); State v. Feld, 155 Ariz. 88, 745 P.2d

146, 155 (Ariz.App. 1987), cert. denied, 485 US. 977 (1988) (RICO

have applied the per se rule of Near to invalidate prior

restraints considerably less drastic than RICO’s outright

confiscation of the entire media business including all its

protected inventory.

Very recently in United States v. California Publishers

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

the district court refused to order the RICO-like obscenity

forfeitures the government sought under the discretionary

forfeiture provisions of 18 U.S.C. § 1467, and sharply

rebuked the government for attempting to invoke such pat-

ently unconstitutional remedies:

forfeiture provisions unconstitutional as applied in obscenity case to autho-

rize post-conviction forfeiture of “bookshelves, cash registers, or similar

items” used for protected speech activities); Maguin v. Miller, 433 F.Supp.

223, 230 (D.Kan. 1977) (enjoining seizure of “property necessary for the

operation of theaters,” as such seizures would “constitute an impermissible

prior restraint”), Bongiovanni v. Hogan, 309 F Supp. 1364, 1366 (S.D.N_Y.

1970) (ordering retumm of movie projector lenses seized prior to trial);

Interstate Circuit, Inc. v. City of Dallas, 247 F Supp. 906, 911 (N_D.Tex. °

1965) (enjoining forfeiture of projection equipment, citing Near); G.1

Distributors, Inc. v. Murphy, 336 FSupp. 1036, 1038-1039 (S.D.N_Y.

1972) (ordering return of “items required in the conduct of” bookstore, on

grounds that seizure “effectively prevented” distribution of other, constitu-

tionally protected materials); Star Distributors, Lid. v. Hogan, 337 F Supp.

1362, 1364 (S.D.N_Y. 1972) (ordering return of property the seizure of

which “worked a complete and total restraint” on publisher's lawful First

Amendment activities and “deprived the public of an opportunity to receive

its non-obscene publications”); Porno, Inc. v. Municipal Court, 33

Cal.App.3d 122, 126, 108 Cal. Rpt. 797, 800 (1973) (ordering return of

projectors On prior restraint grounds); Europo Books, Inc. v. Pomerleau,

395 A.2d 1195, 1198 (Md. 1979) (enjoining practice of seizing projectors

on theory that this was as invalid a prior restraint as “to seize the printing

presses because the newspaper contains patently obscene matter”); see also

L.M.E., Inc. v. City of Hollywood, 60S F Supp. 185, 189 (S.D.Fla. 1985):

Jodbor Cinema, Lid. v. Sedita, 309 F Supp. 868, 876 (W.D.N.Y. 1970);

Ellwest Streo Theatre, Inc. v. Byrd, reported sub nom. Universal Amuse-

ment Co., Inc. v. Vance, 404 F Supp. 33, 51, 54-57 (S.D.Tex. 1975); Dexter

v. Butler, S87 F.2d 176 (Sth Cir. en banc 1978) (seizure of projectors based

on probable obscenity constituted bad faith harassment).

“Forfeiture under these circumstances of truly de

minimis use of the properties for the commission 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 of Great

Western's printing facility is subject to close First

Amendment analysis and likely would, if granted,

constitute an impermissible prior restraint of

expression under Near v. Minnesota and its prog-

eny.” Jd. at 1394.

In contrast to this avalanche of authority, the very few

lower courts which upheld RICO forfeitures or padlockings

based on prior obscenity violations did so by concluding that

First Amendment analysis does not apply because “obscenity

is not protected by the First Amendment.” However, for all

the reasons the overwhelming majority of lower courts found

the principles of Near applicable in the obscenity context,

they were wrong. The First Amendment simply cannot be

avoided by imposing a direct prior restraint as a sanction

under a criminal statute and then invoking the talismanic |abel

of “subsequent punishment.”

C. The RICO Act’s Forfeiture Remedy Also Violates

the First Amendment Because It Is Overbroad In

Its Censorial Effect Upon Protected Speech.

Just as RICO/obscenity forfeitures facially violate the

prior restraint rule of Near, they violate virtually every other

foundational First Amendment limitation, including the over-

breadth doctrine. Both as an overlapping complement and as

an alternative to prior restraint analysis, the facial over-

breadth doctrine also mandates reversal of the decision below.

This Court has rarely if ever been asked to hold a sanc-

tion for a speech offense - as opposed to the substantive

definition of the speech offense - void for overbreadth. The

more common First Amendment overbreadth case involves

legistation which exceeds its permissible scope by criminaliz-

ing of otherwise prohibiting constitutionally protected expres-

sion. As a doctrinal matter, virtually every overbroad sanction

which precludes future protected speech has been quickly

repudiated on prior restraint grounds, like the injunction in

Near The lower courts having so thoroughly repudiated

padlocking injunctions and license revocation for obscenity

offenses, for example, this Court has never before been con-

fronted with such an egregiously censorial remedy for

obscenity as RICO torteiture.

Until RICO forfeiture became a weapon in the govern.

men’s aggressive crusade against erotica, the federal govern.

ment had never dared to punish a speech offense by such

drastic and speech-suppressive means as confiscating an

emtire chain of media businesses and burning its presump-

lively protected inventory.

This case is therefore somewhat novel, if only because of

the extremes to which government has gone. Although RICO/

obscenity forfeiture is readily subject to invalidation as a

classic prior restraint, it is also overbroad. The forfeiture

provisions have been applied, as their mandatory language

requires, to confiscate not just contraband obscene materials

and proceeds from their sale, but Petitioner's entire chain of

bookstores, video stores, and theaters including the hundreds

of thousands of media items which comprised their inventory.

The government acquires all ownership rights to these mate-

tials and related property, so that it can destroy both the

materials and the businesses - as indeed the government has

done in this case.

As these facts vividly demonstrate, the RICO/obscenity forfei-

lure provisions provide a textbook example of facial overbreadth.

Because the government is authorized to invoke this remedy in

response to obscenity violations, in every case, this sanction will be

visited upon a defendant engaged in expressive activity, almost

invariably a media entity such as a theater or a bookstore chain °”

The scope of RICO’s mandatory forfeiture is such that it neces

sarily requires, as in this case and Pryba, torteiture of the entire

chain of media businesses. Thus the RICO Act targets expression

in the first instance, and then allows the government to confiscate

inventories Of protected expression along with the necessaly Micans

lor future expression.

As this Court has enunciated the overbreadth doctrine in

its prior cases, RICO’s provisions for blanket forfeitures” in

obscenity Cases represent the sort of overbreadth to which this

Court referred in Members of City Council of the City of Los

Angeles v. Taxpayers For Vincent, 466 U.S. 789, 797-79%

(1984), noting that such speech-suppressive statutes may be

both unconstitutional as applied to the defendant's conduct

and also

“unconstitutional on their lace 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.”

Likewise in Secretary of State of Maryland v. Joseph I

Munson Co., Inc., 467 U.S. 947, 967-968 (1984), the Cour;

observed:

2% Depending solely upon the prosecutor's discretion and creativity,

the RICO defendants in an obscenity case can casily include as CO-Cconspir-

ators every entity in the chain of production and distribution of the

allegedly obscene material, ¢ g., the studio which produced a film or the

printing company which printed a book or magazine. Convictions of such

defendants have already occurred in recent prosecuuons under the federal

obscenity laws. See United States v. California Publishers Liquidating

Corporation, 778 F Supp. 1377 (ND. Tex. 1991) (refusing to fortert assets

of company which printed the boxes for obscene videotapes).

” As noted previously, this facial invalidity affects only

§ 196%Ma\1) and (2) of the RICO Act; § 1963(a)3) ts susceptible of a

constitutional construction (which the courts below did not give it), lumit-

ing forfeiture to the actual obscene items and the proceeds from their sale.

“Where, as here, a statute imposes a direct restric-

tion on protected First Amendment activity, and

where the defect in the statute is that the means

chosen to accomplish the State’s objectives are too

imprecise, so that in all its applications the statute

Creates an unnecessary risk of chilling free speech,

the statute is properly subject to facial attack.”

Similarly, just last term in R.A.V. v. City of St. Paul, 112 S.Ct.

at 2542 n. 3, Justice Scalia noted that the petitioner had

properly challenged the ordinance as “ ‘overbroad’ in the

sense of restricting more speech than the Constitution per-

mits, even in its application to him.”

In virtually every imaginable application in the obscenity

con.cxt, RICO forfeiture clearly “imposes a direct restriction

on protected First Amendment activity,” a restriction so broad

that “any attempt to enforce such legislation would create an

unacceptable risk of the suppression of ideas.”

Perhaps most directly analogous is NAACP y. Alabama,

377 U.S. 288 (1964), in which this Court invalidated for

Overbreadth a sanction unduly restricting the prospective |

exercise Of First Amendment rights, even though the trigger-

ing conduct (involving both speech and non-speech activities)

was unprotected. In that case, Alabama had obtained an

injunction against the NAACP, prohibiting it from conducting

its activities within the state on various asserted grounds,

including the organization's failure to comply with state laws

requiring foreign corporations to register, and its allegedly

illegal sponsorship of consumer boycotts. 377 U.S. at 303,

307. This Court held that even if the NAACP’s activities did

violate valid state laws, the injunction permanently “denying

its members the right to associate” in the state was uncon-

Stitutionally overbroad. /d. at 306, 307-308.

“This Court has repeatedly held that a governmental

purpose to control or prevent activities constitu-

tionally subject to state regulation may not be

achieved by means which sweep unnecessarily

broadly and thereby invade the area of protected

freedoms. .. . ‘[T]he power to regulate must be so

exercised as not, in attaining a permissible end,

unduly to infringe the protected freedom.’ Cantwell

v. Connecticut, 310 U.S. 296, 304. ‘Even though the

governmental purpose be legitimate and substantial,

that purpose cannot be pursued by means that

broadly stifle fundamental personal liberties when

the end can be more narrowly achieved.’ Shelton v.

Tucker, 364 U.S. 479, 488.” Id. at 307-308.

More recently, Justice O’Connor’s opinion for the Court

in Airport Commissioners of Los Angeles v. Jews for Jesus,

482 U.S. 569 (1987), reaffirmed that facial invalidation is the

appropriate remedy for such substantially overbroad laws. In

Jews for Jesus, this Court held that a resolution banning all

First Amendment activities in the LAX terminal area was

facially unconstitutional for overbreadth. The Court unani-

mously concluded that regardless of whether the airport ter-

minal was a public or a non-public forum, the resolution was

overbroad “because no conceivable governmental interest

would justify such an absolute prohibition of speech.” 482

U.S. at 575.

Likewise, in this case, no further First Amendment anal-

ysis is necessary, because no conceivable governmental inter-

est can justify its confiscation of media businesses in

retaliation for unprotected speech.*! Because every use of the

statute to seize presumptively protected inventory and all the

other speech-facilitating property of a communicative busi-

ness is overbroad, facial invalidation is the required remedy.

As the district court observed in United States v. California

Publishers Liquidating Corporation, 778 F.Supp. at 1394,

wholesale forfeiture for obscenity offenses “simply serves no

legitimate end.” *?

3! To be sure, this rule is but another way of stating the Near rule

against prior restraints; overbreadth analysis of a sanction for speech

violations simply yields the same result.

32 Although the Ninth Circuit in Adult Video Association v. Barr, 960

F.2d 781 (9th Cir. 1992), ostensibly rejected the plaintiffs’ claim that

RICO/obscenity forfeitures are facially overbroad, 960 F.2d at 787, just

such an inchoate theory of overbreadth actually appears to be the basis for

Il. THE TOTAL FORFEITURE OF A $25 MILLION

BUSINESS, IN ADDITION TO A SIX-YEAR

PRISON TERM AND $200,000 IN FINES, VIO-

LATES THE EIGHTH AMENDMENT AS A

GROSSLY DISPROPORTIONATE PUNISHMENT

FOR DISTRIBUTING SEVEN OBSCENE ITEMS.

Ferris Alexander has received the most severe economic

sanction ever imposed in this country for obscenity offenses.

Merely for distributing seven erotic magazines and videotapes

he believed at the time to be constitutionally protected, the

ailing 73-year-old Petitioner has been sentenced to serve six

years in prison — a probable life sentence — and has been fined

some $200,000. In addition, the government has also confis-

cated virtually everything he owns: the business he had built

up over a thirty-year period of operating his bookstore, thea-

ter, and video store chain. On the basis of a few materials the

jury ultimately decided were obscene, the government has

utterly destroyed the Petitioner’s life and livelihood. Whether

analyzed as a “cruel and unusual punishment” or as an

“excessive fine,”** RICO forfeiture as applied in this case is

grossly disproportionate to the offense and therefore violates

the Eighth Amendment. Moreover, on its face RICO revives a

form of in personam forfeiture closely akin to the much-

the court's holding that “to the extent section 1963 mandates forfeiture of

more property than the Constitution will tolerate as punishment for an

obscenity offense, the statute is unconstitutional on its face.” Jd. at 790.

Unfortunately, RICO prescribes mandatory, total forfeitures upon convic-

tion of two obscenity offenses, and contrary to the Ninth Circuit's sugges-

tion is susceptible of no reasonable saving construction; it is simply

unconstitutional on its face.

*% For Eighth Amendment purposes, as noted below, RICO forfeitures

are tantamount to fines, because they entail essentially the same sort of

pecuniary punishment for a crime, distinguished only by the non-liquidity

of certain assets. This is not to say that the forfeitures and monetary fines

are equivalents for purposes of First Amendment analysis, because forfei-

tures unlike fines impose a direct and inevitable restraint upon protected

expression.

abused forfeiture of estate which the Framers clearly sought

to abolish under the Eighth Amendment.

The Eighth Amendment prohibits outrageous or barbaric

forms of punishment, “excessive fines,” and punishments that

are “cruel and unusual” because they are extremely dispropor-

tionate to the particular offense. In Harmelin v. Michigan, ___

U.S.__, 111 S.Ct. 2680 (1991), seven members of this Court

endorsed the holding of Solem v. Helm, 463 U.S. 277, 284

(1983), that the Eighth Amendment “prohibits not only bar-

baric punishments, but also sentences that are disproportio-

nate to the crime committed.”*4 This majority of the Court

concluded that the Eighth Amendment at least forbids

“extreme sentences that are ‘grossly disproportionate’ to the

crime.” 111 S.Ct. at 2705. Although a majority in Harmelin

agreed that reviewing courts should grant the trial court and

the legislature substantial deference, “no penalty is per se

constitutional,” as the Court noted in Solem, 463 U.S. at 290,

citing Robinson v. California, 370 U.S. 660 (1962). See 111

S.Ct. at 2704-2705 (Kennedy, J., concurring).

If divided in Harmelin as to the meaning of “cruel and

unusual punishment,” the Court was apparently unanimous in

the view that an “excessive fines” claim requires propor-

tionality review. Justice Scalia, in his opinion for the Court

joined by Chief Justice Rehnquist, concluded that the cruel

and unusual punishment clause requires proportionality

review only in capital cases, but apparently agreed with the

dissenters’ observation that the Eighth Amendment prohibits

disproportionate fines:

“There is good reason to be concerned that fines,

uniquely of all punishments, will be imposed in a

measure out of accord with the penal goals of retri-

bution and deterrence. Imprisonment, corporal Pun-

ishment and even capital punishment cost a State

money; fines are a source of revenue. As we have

34 See 111 S.Ct. at 2702-2709 (Kennedy, J., joined by O'Connor and

Souter, JJ., concurring in part and concurring in the judgment); 111 S.Ct. at

2709-2719 (White, J., joined by Blackmun and Stevens, JJ., dissenting);

111 S.Ct. at 2719 (Marshall, J., dissenting).

recognized in the context of other constitutional

provisions, it makes sense to scrutinize govern-

mental action more closely when the State stands to

benefit.”

lll S.Ct. at 2693 n. 9. Although this Court “has never

considered an application of the Excessive Fines Clause,”

Browning-Ferris Industries of Vermont v. Kelco Disposal,

Inc., 492 U.S. 257, 262 (1989), Justice Scalia indicated in

Harmelin that penalties such as forfeitures which entail a

built-in incentive for governmental abuse* are tantamount to

fines for Eighth Amendment purposes: “We relied upon pre-

cisely the lack of this incentive for abuse in holding that

‘punitive damages’ were not ‘fines’ within the meaning of the

kighth Amendment,” in Browning-Ferris. 111 S.Ct. at 2693 n.

9. Indeed, Justice O'Connor specifically noted in Browning-

Ferris that “[ijn current usage, the word ‘fine’ comprehends a

forfeiture.” 492 U.S. at 297 (concurring and dissenting opin-

ion).

Thus a majority if not the unanimous Court in Harmelin

would have agreed that the Eighth Amendment entails a

guarantee of proportionality in cases involving blanket RICO

forfeiture, either as a “cruel and unusual punishment,” or as

an “excessive fine.” This Court need not resort to propor-

tionality analysis, however, to reject RICO’s mandatory total

*S Blanket forfeitures of the RICO variety certainly offer a tempting

means for the government to fill its coffers. After RICO's forfeiture

provisions were strengthened in 1984, “forfeiture cases doubled each year

and the number of seizures grew by approximately 125 percent per year.”

The past few years have witnessed an increasing governmental appetite for

these funds: “In dollar terms, total forfeitures went from $27.2 million in

fiscal year 1985 to over $580 million in fiscal year 1989." Concerning

Oversight of the Asset Forfeiture Program, July 24, 1990: Before the

Senate Committee on Governmental Affairs, 101st Cong., 2d Sess. 71, 72

(statement by Cary H. Copeland, Director, Executive Office for Asset

Forfeiture), quoted in Craig W. Palm, RICO Forfeiture and the Eighth

Amendment: When Is Everything Too Much’, 53 U. Pitt. L. Rev. 1, 4

(1991).

forfeitures as a form of punishment outlawed by the Fighth

Amendment on historical grounds.

At its core, the Kighth Amendment forbids punishments

that by their very nature the Framers would have disapproved

as barbarous or prone to prosecutorial abuse, or that have

come to be viewed as such in accord. with our society's

evolving standards. RICO forfeiture is not only grossly dis-

proportionate in this particular case; it facially contravenes

the Eighth Amendment because it revives the in personam

forfeiture, a particularly objectionable, abuse-prone form of

punishment which the Framers particularly sought to abolish.

There is compelling historical and textual evidence that

the Framers firmly intended to abolish the forfeiture of estate

of which RICO forfeiture is the modern version. Before

Magna Carta, conviction of a felony resulted in automatic

forfeiture of all property. William W. Taylor III, The Problem

of Proportionality in RICO Forfeitures, 65 Notre Dame L.

Rev. 885, 893 (1990). These “forfeitures of estate” had been

eliminated from English common law for any offense other

than treason by the time of the Constitutional Convention, the

American Framers went further and prohibited forfeiture of

estate in the case of treason, under Art. III, sec. 3, clause 2.

Id. Also, the First Congress by its Act of April 30, 1790

provided “That no conviction or judgment for any of the

offenses aforesaid, shall work corruption of blood, or any

have been so disfavored under American law that until RICO

was enacted in 1970, there had been no known federal in

personam forfeiture proceedings since the Civil War.*’ Thus

“the fact that our society long ago rejected forfeiture of a

defendant’s goods and chattels upon... con-

viction . . . establishes that our society views forfeiture as

% Actof April 30, 1790, ch. 9, § 24, 1 Stat. 112, 117 (1790) (codified

at 18 U.S.C. § 3563 (1982)).

37 See James R. Maxeinor, Bane of American Forfeiture Law — Ban-

ished At Last?, 62 Comell L. Rev. 768, 787 (1977).

crucl and unusual punishment unless the property is the pro- -

ceeds of crime or related to crime in some clearly demonstra-

ble way.” Taylor, supra, at 893,

Quite apart from the historical evidence that this sort of

punishment facially violates the Eighth Amendment, the blan-

ket forfeiture of a multi-million dollar business for a few

obscenity offenses is grossly disproportionate by any stan-

dard. As punishment for an offense historically classified as a

misdemeanor in most jurisdictions where it is a crime at all,™*

the mandatory forfeiture order in this case is as inappropriate

as the punishment this Court disapproved in Robinson vy.

California, under 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 consid-

ered in the abstract. Even one day in prison would

be a cruel and unusual punishment for the ‘crime’

of having a common cold.” 370 U.S. at 667.

In Solem v. Helm, 463 U.S. at 292, the Court noted that in

assessing the gravity of the offense, the primary criteria are

the harm suffered by the victim and the defendant's cul-

pability. This multi-million dollar forfeiture of Petitioner's

assets is especially disproportionate when viewed in light of

these criteria, given that the offense involves no legal element

of injury and requires negligible proof of scienter. Unlike

many of the predicate crimes for RICO, obscenity is a minor,

malum prohibitum offense. Unfortunately, however, RICO

“does not limit itself to ‘serious criminality,’ and its

penalties do not adjust qualitatively to the moral

blameworthiness of the conduct. The number and

variety of predicate offenses, which can include

malum prohibitum as well as malum in se, might

Suggest that the statute should provide some inter-

nal way for modulating its sanctions, but the statute

provides no such method.” Taylor, supra, at 887.

*® See n. 39, infra.

First, in terms of the gravity of the offense, this Court has

never discerned a compelling governmental interest to justify

laws criminalizing obscenity, but has relied on the concept of

obscenity as a proscribable (if difficult-to-define) category of

speech which may be prohibited on the basis of “legitimate”

interests. See Paris Adult Theatre I v. Slaton, 413 U.S. 49, $7

(1973). In Osborne v. Ohio, 495 U.S. 103, 109-110 (1990),

this Court reiterated, as it had concluded in Stanley v. Geor-

gia, 394 U.S. 557 (1969), that the governmental interests in

regulating adults’ access to “obscene” materials are “weak”

and “paternalistic.” The Court again noted in Osborne that

“|wje found a lack of empirical evidence” to support the

state’s claim in Stanley that “exposure to obscene material

might lead to deviant sexual behavior or crimes of sexual

violence.” 495 U.S. at 109 n. 4.

Additionally, both the legal definition of the obscenity

offense and its social context render obscenity a victimless

and relatively nonserious crime. The offense requires proof of

nothing more than offering erotica for sale or rental to con-

senting adults; this case typifies recent federal obscenity

prosecutions in that it involves neither minors nor an uncon-

senting adult audience. Moreover, the obscenity predicate is

unique among the RICO offenses in that it requires virtually

no mens rea: the scienter element for obscenity approaches a

strict liability standard, requiring only knowledge of the

material's sexual content rather than knowledge of its

unpredictable legal status as obscenity. Even more so than the

crime of issuing a worthless check in Solem v. Helm,

obscenity is thus “ ‘one of the most passive felonies a person

could commit,’ ” involving “ ‘neither violence nor threat of

violence to any person,’ " and “ ‘viewed by society as among

the less serious offenses.’ " 463 U.S. at 296, quoted in Harm-

elin v. Michigan, 111 S.Ct. at 2705 (Kennedy, J., concurring).

Underscoring the nonseriousness of the obscenity offense

is the fact that the conduct for which Petitioner was convicted

under RICO is not even criminalized in many states.*® The

immense popularity of indistinguishable videotapes and mag-

azines further attests to the American adult populace’s sub-

Stantial acceptance of sexually-explicit fare, and thus the lack

of seriousness of the offense.*°

Even without the additional First Amendment concerns

this case raises, the federal courts have expressed serious

reservations about the inherent proportionality problems

RICO’s mandatory total forfeiture provisions create.*' In

” Five states - Alaska, Maine, New Mexico, South Dakota, and

Vermont — do not have obscenity statutes. In addition, the supreme courts

of both Oregon and Hawaii have held that criminal obscenity statutes

inherently violate those states’ consututional guarantees of free speech or

privacy. See State v. Kam, 748 P.2d 372 (Hawaii 1988); State v. Henry, 302

Or. 510, 732 P.2d 9 (Or. 1987). The issue is also currently pending before

the Arizona Court of Appeals, in State v. Smith, Case No. i CA-CR

89-1514; the trial court in that case having held that the Arizona obscenity

statute violated both the free speech and privacy provisions of the Arizona

Constitution.

#° As noted above with regard to the RICO Act's chilling effect, the

immense popularity of adult videotapes indicates widespread acceptance of

materials which could also be the subject of an obscenity prosecution. The

marketing statistics reveal approximately 400 million rentals of adult

videos per year. In 1989, video dealers reported that 47% of adult video

rentals were to couples or women alone. See Marcia Pally, Sense and

Censorship: The Vanity of Bonfires 67 (Freedom to Read Foundation

1991).

*' Commentators have discussed the troublesome proportionality

problems posed by RICO forfeitures in a wealth of law review literature,

generally concluding that the RICO Act should be amended either to limit

forfeitures to the actual proceeds of illegality, or to give the trial court

discreuon as to the scope and amount of the forfeiture. See William W.

Taylor, The Problem of Proportionality in RICO Forfeitures, 65 N.D.L.

Rev. 885 (1990); Ian A. J. Pitz, Letting the Punishment Fit the Crime:

Proportional Forfeiture Under Criminal RICO’s Source of Influence Provi-

sion, 75 Minn. L. Rev. 1223 (1991); Vernon M. Winters, Criminal RICO

Forfeitures and the Eighth Amendment: “Rough” Justice Is Not Enough,

14 Hast. Const. L.Q. 451 (1987); Kathleen F. Brickey, RICO Forfeitures As

“Excessive Fines” Or “Cruel and Unusual Punishments,” 35 Vill. L. Rev.

United States v. Busher, 817 F.2d 1409, 1415 (9th Cir. 1987),

Judge Kozinski for a unanimous panel held that where the

defendant makes a prima facie showing that a forfeiture may

be excessive, the trial court must make an Eighth Amendment

proportionality inquiry, considering the total penalty imposed

in light of the gravity of the offense.4? “Since RICO’s forfei-

ture provision is quite literally without limitation,” the court

emphasized, “it may well exceed constitutional bounds in any

particular case.” 817 F.2d at 1414. “The court should be

reluctant to order forfeiture of a defendant's entire interest in

an enterprise that is essentially legitimate where he has com-

mitted relatively minor RICO violations . . . resulting in

relatively little illegal gain in proportion to its size and

legitimate income.” /d. at 1415-1416.

Subsequently, in Adult Video Association v. Barr, 960

F.2d 781 (9th Cir. 1992), the Ninth Circuit relied in part on

Busher in resolving this very issue: whether blanket forfei-

tures may be imposed in obscenity cases. Rejecting blanket

forfeitures for RICO/wbscenity primarily on First Amendmeni

grounds, the court also cited Busher repeatedly for the propo-

sition that total forfeiture would be an inappropriate remedy

for obscenity offenses in all but the most exceptional circum-

stances. 960 F.2d at 790-791.

As the Adult Video Association court concluded, punish-

ing this victimless offense as severcly as murder for hire is

entirely incongruous and at odds with the Eighth Amendment.

905 (1990); John L. Roberts, The Eighth Amendment As Applied To RICO

Criminal Forfeiture, 10 W.N. Eng. L. Rev. 393 (1988), Craig W. Palm,

RICO Forfeiture and the Eighth Amendment: When Is Everything Too

Much?, 53 U. Pitt. L. Rev. 1 (1991).

42 Busher has become a cornerstone case applying Solem v. Helm

proportionality analysis to criminal forfeitures. Three other circuits have

adopted or cited with approval this Ninth Circuit rule that forfeitures must

be examined for disproportionality under the Eighth Amendment. See

United States v. Harris, 903 F.2d 770, 777-778 (10th Cir. 1990); United

States v. Vriner, 921 F.2d 710, 711-712 (7th Cir. 1991); United States v.

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

v. Robinson, 721 F.Supp. 1541, 1543 (D.R.1. 1989).

In refusing to apply proportionality analysis or otherwise

review this unprecedented punishment for obscenity under the

kighth Amendment,** the court below has eviscerated that

constitutional protection. Ostensibly deferring to the trial

court's discretion, the court of appeals ignored the fact that

under § 1963(a), the district court had no discretion to limit

the RICO forfeiture. Its deference to Congress, which added

obscenity to the list of RICO predicate offenses in haste and

without considering the anomaly and constitutional problems

involved, is misplaced.

Ferris Alexander operated his businesses for some thirty

years, in the course of which he distributed millions of media

materials protected by the First Amendment. He has been

abundantly punished by a six-year prison term and $200 000

in fines, for failing to anticipate that a jury would find seven

of the thirteen charged items to be illegal rather than constitu-

tionally protected. The total forfeiture of his multi-million

dollar business goes far beyond any legitimate need for

deterence or societal retribution for this minor offense. It is

egregiously disproportionate, facially suspect as an in per-

sonam forfeiture, and should be rejected as a constitutionally

inappropriate remedy.

- * * a

The catastophic forfeiture imposed on Petitioner repre-

sents perhaps the most egregious governmental suppression of

expression in our nation’s history. Solely on the basis of

seven speech violations, the government has utterly destroyed

a twenty-five million dollar media business under the tal-

ismanic labels of “racketeering” and “subsequent punish-

ment.”

If this Court should endorse this unprecedented takeover

of a speech business, it will not only signal the immediate end

4. The Eighth Circuit in its opinion below followed the erroneous

holding in United States v. Pryba, 900 F.2d at 757, that “Solem v. Helm

does not require a proportionality review of any sentence less than life

imprisonment without the possibility of parole.” See Cert. App. 25.

of the erotic entertainment industry, but, more importantly,

will confer upon government new-found power and weapons

with which to insure that only newspapers, broadcasters and

other media businesses approved by any current administra-

tion, will be permitted to exist. As stated by Chief Justice

Hughes in Near, this “is the essence of censorship.”

CONCLUSION

The forfeiture judgments entered against Petitioner,

except as they specifically relate to the seven items found

obscene at trial and identifiable proceeds from the sale of

those materials, constitute invalid direct prior restraints, are

overbroad and represent cruel and unusual punishment. They

and the portions of the RICO statute which made them man-

datory should be stricken and the judgment of the Court of

Appeals for the Eighth Circuit affirming them should be

reversed.

Dated: September 4, 1992

Respectfully submitted,

Joun H. Westron*

G. RANDALL GaARROU

Caruy E. Crosson

Criype F. Dewrrr

Weston, Sarno, Garrou & Dewirr

433 N. Camden Drive, Suite 900

Beverly Hilis, California 90210

(310) $50-7460

Counsel for Petitioner

*Counsel of Record

APPENDIX

18 U.S.C. § 1963. Criminal penalties

(a) Whoever violates any provision of section 1962 of

this chapter shall be fined under this title or imprisoned not

more than 20 years (or for life if the violation is based on a

racketeering activity for which the maximum penalty includes

life imprisonment), or both, and shall forfeit to the United

States, irrespective of any provision of State law—

(1) any interest the person has acquired or

maintained in violation of section 1962;

(2) any-

(A) interest in;

(B) security of;

(D) property or contractual right of any

kind affording a source of influence over;

any enterprise which the person has established,

operated, controlled, conducted, or participated in

the conduct of in violation of section 1962; and

(3) any property constituting, or derived

from, any proceeds which the person obtained,

directly or indirectly, from racketeering activity or

unlawful debt collection in violation of section

1962.

The court, in imposing sentence on such person shall order, in

addition to any other sentence imposed pursuant to this sec-

tion, that the person forfeit to the United States all property

described in this subsection. In lieu of a fine otherwise autho-

rized by this section, a defendant who derives profits or other

proceeds from an offense may be fined not more than twice

the gross profits or other proceeds.

(b) Property subject to criminal forfeiture under this

section includes-—

(1) real property, including things growing

on, affixed to, and found in land, and

(2) tangible and intangible personal property,

including rights, privileges, interests, claims and

Securities,

subsection (a) vests in the United States upon the commission

of the act giving rise to forfeiture under this section. Any

such property that is subsequently transferred to a person

other than the defendant may be the subject of a special

verdict of forfeiture and thereafter shall be ordered forfeited

to the United States, unless the transferee establishes in a

hearing pursuant to subsection (/) that he is a bona fide

purchaser for value of such property who at the time of

purchase was reasonably without cause to believe that the

property was subject to forfeiture under this section.

(d)(1) Upon application of the United States, the court

may enter a restraining order or injunction, require the execu-

lion of a satisfactory performance bond, of take any other

auction to preserve the availability of property described in

subsection-¢a) for forfeiture under this section-

(A) upon the filing of an indictment or infor-

mation charging a violation of section 1962 of this

chapter and alleging that the property with respect

to which the order is sought would, in the event of

conviction, be subject to forfeiture under this sec-

tion, or

(B) prior to the filing of such an indictment or

information, if, after notice to persons appearing to

have an interest in the property and opportunity for

a hearing, the court determines that-

(i) there is a substantial probability that

the United States will prevail on the issue of

forfeiture and that failure to enter the order will

result in the property being destroyed, removed

from the jurisdiction of the court, or otherwise

made unavailable for forfeiture; and

(ii) the need to preserve the availability

of the property through the entry of the

requested order outweighs the hardship on any

party against whom the order is to be entered:

Provided, however, That an order entered pursuant to subpara-

graph (B) shall be effective for not more than ninety days,

unless extended by the court for good cause shown or unless

an indictment or information described in subparagraph (A)

has been filed.

(2) A temporary restraining order under this subsection

may be entered upon application of the United States without

notice Of Opportunity for a hearing when an information or

indictment has not yet been filed with respect to the property,

if the United States demonstrates that there is probable cause

to believe that the property with respect to which the order is

sought would, in the event of conviction, be subject to forfei-

ture under this section and that provision of notice will

jeopardize the availability of the property for forfeiture. Such

a temporary order shall expire not more than ten days after

the date on which it is entered, unless extended for good

cause shown or unless the party against whom it is entered

consents to an extension for a longer period. A hearing

requested concerning an order entered under this paragraph

shall be held at the earliest possible time, and prior to the

expiration of the temporary order.

(3) The court may receive and consider, at a hearing

held pursuant to this subsection, evidence and information

that would be inadmissible under the Federal Rules of Evi-

dence.

(e) Upon conviction of a person under this section, the

court shall enter a judgment of forfeiture of the property to

the United States and shall also authorize the Attorney Gen-

eral to seize all property ordered forfeited upon such terms

and conditions as the court shall deem proper. Following the

entry of an order declaring the property forfeited, the court

may, upon application of the United States, enter such appro-

priate restraining orders or injunctions, require the execution

of satisfactory performance bonds, appoint receivers, conser-

vators, appraisers, accountants, or trustees, or take any other

action to protect the interest of the United States in the

property ordered forfeited. Any income accruing to, or

derived from, an enterprise or an interest in an enterprise

which has been ordered forfeited under this section may be

used to offset ordinary and necessary expenses to the enter-

prise which are required by law, or which are necessary to

protect the interests of the United Sates or third parties.

(f) Following the seizure of property ordered forfeited

under this section, the Attorney General shall direct the dis-

position of the property by sale or any other commercially

feasible means, making due provision for the rights of any

innocent persons. Any property right or interest not exercis-

able by. or transferable for value to, the United States shall

expire and shall not revert to the defendant, nor shall the

defendant or any person acting in concert with or on behalf of

the defendant be eligible to purchase forfeited property at any

sale held by the United States. Upon application of a person,

other than the defendant or a person acting in concert with or

on behalf of the defendant, the court may restrain or stay the

sale or disposition of the property pending the conclusion of

any appeal of the criminal case giving rise to the forfeiture, if

the applicant demonstrates that proceeding with the sale or

disposition of the property will result in irreparable injury,

harm or loss to him. Notwithstanding 31 U.S.C. 3302(b), the

proceeds of any sale or other disposition of property forfeited

under this section and any moneys forfeited shall be used to

pay all proper expenses for the forfeiture and the sale, includ-

ing expenses of seizure, maintenance and custody of the

property pending its disposition, advertising and court costs.

The Attorney General shall deposit in the Treasury any

amounts of such proceeds or moneys remaining after the

payment of such expenses.

(g) With respect to property ordered forfeited under this

section, the Attorney General is authorized to-

(1) grant petitions for mitigation or remission

to protect the rights of innocent persons which is in

the interest of justice and which is not inconsistent

with the provisions of this chapter;

(2) compromise claims arising under this sec-

tion;

(3) award compensation to persons providing

information resulting in a forfeiture under this sec-

tion;

(4) direct the disposition by the United States

of all property ordered forfeited under this section

by public sale or any other commercially feasible

means, making due provision for the rights of inno-

cent persons; and

(S) take appropriate measures necessary to

safeguard and maintain property ordered forfeited

under this section pending its disposition.

(h) The Attorney General may promulgate regulations

with respect to-—

(1) making reasonable efforts to provide

notice to persons who may have an interest in prop-

erty ordered forfeited under this section;

(2) granting petitions for remission or mitiga-

tion of forfeiture;

(3) the restitution of property to victims of an

offense petitioning for remission or mitigation of

forfeiture under this chapter,

(4) the disposition by the United States of

forfeited property by public sale or other commer-

cially feasible means;

(S) the maintenance and safekeeping of any

property forfeited under this section pending its

disposition, and

(6) the compromise of claims arising under

this chapter.

of forfeiture, restore forfeited property to victims of

a violation of this chapter, or take any other action

Pending the promulgation of such regulations, all provisions

of law relating to the disposition of property, or the proceeds

from the sale thereof, or the remission or mitigation of forfei-

tures for violation of the customs laws, and the compromise

of claims and the award of compensation to informers in

respect of such forfeitures shall apply to forfeitures incurred,

or alleged to have been incurred, under the provisions of this

section, insofar as applicable and not inconsistent with the

provisions hereof. Such duties as are imposed upon the Cus-

toms Service or any person with respect to the disposition of

property under the customs law shall be performed under this

chapter by the Attorney General.

(i) Except as provided in subsection (/), no party claim-

ing an interest in property subject to forfeiture under this

section may-

(1) intervene in a trial or appeal of a criminal

case involving the forfeiture of such property under

this section; or

(2) commence an action at law or equity

against the United States concerning the validity of

his alleged interest in the property subsequent to the

filing of an indictment or information alleging that

the property is subject to forfeiture under this sec-

tion.

(j) The district courts of the United States shall have

jurisdiction to enter orders as provided in this section without

regard to the location of any property which may be subject to

forfeiture under this section or which has been ordered for-

feited under this section.

(k) In order to facilitate the identification or location of

property declared forfeited and to facilitate the disposition of

petitions for remission or mitigation of forfeiture, after the

entry of an order declaring property forfeited to the United

States the court may, upon application of the United States,

order that the testimony of any witness relating to the prop-

erty forfeited be taken by deposition and that any designated

book, paper, document, record, recording, or other material

not privileged be produced at the same time and place, in the

same manner as provided for the taking of depositions under

Rule 15 of the Federal Rules of Criminal Procedure.

(1)(1) Following the entry of an order of forfeiture

under this section, the United States shall publish notice of

the order and of its intent to dispose of the property in such

manner as the Attorney General may direct. The Government

may also, to the extent practicable, provide direct written

notice to any person known to have alleged an interest in the

property that is the subject of the order of forfeiture as a

substitute for published notice as to those persons so notified.

(2) Any person, other than the defendant, asserting a

legal interest in property which has been ordered forfeited to

the United State pursuant to this section may, within thirty

days of the final publication of notice or his receipt of notice

under paragraph (1), whichever is earlier, petition the court

for a hearing to adjudicate the validity of his alleged interest

in the property. The hearing shall be held before the court

alone, without a jury.

(3) The petition shall be signed by the petitioner under

penalty of perjury and shall set forth the nature and extent of

the petitioner's right, title, or interest in the property, the time

and circumstances of the petitioner’s acquisition of the right,

title, or interest in the property, any additional facts support-

ing the petitioner's claim, and the relief sought.

(4) The hearing on the petition shall, to the extent

practicable and consistent with the interests of justice, be held

within thirty days of the filing of the petition. The court may

consolidate the hearing on the petition with a hearing on any

other petition filed by a person other than the defendant under

this subsection.

(5) At the hearing, the petitioner may testify and pre-

sent evidence and witnesses on his own behalf, and cross-

examine witnesses who appear at the hearing. The United

States may present evidence and witnesses in rebuttal and in

defense of its claim to the property and cross-examine wit-

nesses who appear at the hearing. In addition to testimony and

evidence presented at the hearing, the court shall consider the

relevant portions of the record of the criminal case which

resulted in the order of forfeiture.

(6) If, after the hearing, the court determines that the

petitioner has established by a preponderance of the evidence

that—

(A) the petitioner has a legal right, title, or

interest in the property, and such right, title, or

interest renders the order of forfeiture invalid in

whole or in part because the right, title, or interest

was vested in the petitioner rather than the defen-

dant or was superior to any right, title, or interest of

the defendant at the time of the commission of the

acts which gave rise to the forfeiture of the property

under this section; or

(B) the petitioner is a bona fide purchaser for

value of the right, title, or interest in the property

and was at the time of purchase reasonably without

cause to believe that the property was subject to

forfeiture under this section;

the court shall amend the order of forfeiture in accordance

with its determination.

(7) Following the court's disposition of all petitions

filed under this subsection, or if no such petitions are filed

following the expiration of the period provided in paragraph

(2) for the filing of such petitions, the United States shall

have clear title to property that is the subject of the order of

forfeiture and may warrant good title to any subsequent pur-

chaser or transferee.

(m) If any of the property described in subsection (a),

as a result of any act or omission of the defendant—

(1) cannot be located upon the exercise of due

diligence;

(2) has been transferred or sold to, or depos-

ited with, a third party;

(3) has been placed beyond the jurisdiction of

the court;

(4) has been substantially diminished in

value; or

(5) has been commingled with other property

which cannot be divided without difficulty;

the court shall order the forfeiture of any other property of the

defendant up to the value of any property described in para-

graphs (1) through (5).

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