Petition for Writ of Certiorari — Boggs v. Summers

Court,

FILED

we PRITS5 mys 09

OO Cen K

IN THE

Suprene Cort of the United States

OCTOBER TERM, 1998

J.S.G. Boccs,

Petitioner,

Vv.

ROBERT E. RUBIN, BRIAN L. STAFFORD,

and JANET RENO,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

KENT A. YALOWITZ

Counsel of Record

ARNOLD & PORTER

399 Park Avenue

New York, New York 10022

(212) 715-1000

DENNIS G. LYONS

555 12th Street, N.W.

Washington, D.C. 20004

(202) 942-5000

May 3, 1999 Attorneys for Petitioner

WILSON - Epgs PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

71 Re

QUESTIONS PRESENTED

1. The First Amendment requires that any prior re-

Straint of expression take place under procedural

safeguards that protect against the dangers of a cen-

sorship system, including a uniformly imposed re-

quirement that the government bear the burden of

obtaining prompt judicial review Do these safe-

guards apply to expressive materials regardless of

their subject matter, or are they limited to alleged

obscenity, as the Court of Appeals held?

May a District Court declare expressive material to be

forfeited to the government as “contraband” where

the forfeited property was either not shown to the

court at all or was shown to the court ex parte?

Where works of fine art forfeited as “contraband”

are not in the District Court record, and the Court

of Appeals denies the owner’s motion to supplement

the record before it to include these materials, has

the Court of Appeals fulfilled its duty, present in

First Amendment cases, to “make an independent

examination of the whole record” (New York Times

Co. v. Sullivan, 376 U.S. 254, 284-86 (1964) )?

(i)

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED 0.20. cccoccccceccccceeseesceeeses i

TABLE OF AUTHORITIES 20000... cccccccccceceeceeeeeeeee. iv

OPINIONS OF OTHER COURTS ........ 1

IIT clinichiescvconcnsbncteuliseeeis ania ha 2

CONSTITUTIONAL AND STATUTORY PROVI-

SS, 5 | ae 2

aE Sls ra re 2

REASONS FOR GRANTING THE WRIT... 13

I. THE DECISION BELOW ERODES FIRST

AMENDMENT SAFEGUARDS AGAINST

PRIOR RESTRAINTS |e. 13

Il. THE DISTRICT COURT’S EX PARTE FOR-

FEITURE OF PROPERTY WARRANTS RE-

SE aihitodleidciaiicastdbshacdesinssscchocpineibeiecodcotacnekde cckse ihe: ' 20

III. THE COURT OF APPEALS’ REFUSAL TO

LOOK AT THE CORE EVIDENCE PRE-

SENTS A RADICAL DEPARTURE FROM

ACCEPTED JUDICIAL BEHAVIOR AND IS

OUT OF STEP WITH THE RULE IN OTHER

i 24

TELL TA 26

APPENDIX:

Court of Appeals Opinions la

Majority Opinion 00.00 la

Dissenting and Concurring Opinion .............. lla

District Court Opinion 0.000 16a

Order Denying Petition for Rehearing ................ 36a

Constitutional and Statutory Provisions Involved. 37a

(iii)

ee ee ee eee ee re

iv

TABLE OF AUTHORITIES

Cases: Page

Abourezk v. Reagan, 785 F.2d 1043 (D.C. Cir.

1986), aff'd by an equally divided court, 484 U.S.

ES _, FORRES Sree ete TD 13.3

Association for Reduction of Violence v. Hall, 734

fp F Fe fs Sh. eee 22

Bantam Books, Inc. v. Sullivan, 372 U.S. 58

CRITI \ccscrceasortadeocesaacseviaaueebistsatuantiet camembdiaicnias 14, 16, 18

Cantwell v. Connecticut, 310 U.S. 296 (1940)........ 16

Carroll v. President & Commrs. of Princess Anne

County, 393 U.S. 175 (1968) .......................-.- 15, 18, 22-23

Degen v. United States, 517 U.S. 820 (1996) .......... 21

Easley v. University of Mich. Bd. of Regents, 853

if § FE fs Re pee 25

Eastman Kodak Co. v. Image Tech. Servs., 504

I alle 24

FW/PBS v. Cit yof Dallas, 493 U.S. 215 (1990) ..14, 15, 19

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

|) ORRIN AL. Sth Me esr toe moe the i canindelenios 19

Freedman v. Maryland, 380 U.S. 51 (1965) ............ passim

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

RRC aceon eee em nD ans MOREE R MI COS passim

Fuentes v. Shevin, 407 U.S. 67 (1972) -.......202..0.00.... 21

Hague v. CIO, 307 U.S. 496 (1939) ......................... 15

Kinoy v. Mitchell, 67 F.R.D. 1 (S.D.N.Y. 1975)...... 22

Liberty Lobby, Inc. v. Rees, 852 F.2d 595 (D.C. Cir.

BE sic seddcataen Lonptenieceomma tain tet ieee 12

Liparota v. United States, 471 U.S. 419 (1985)...... 20

Marcus v. Search Warrants, 367 U.S. 717 (1961).... 18, 16

Miami Herald Pub. Co. v. City of Hallandale, 734

se Bek Le Rh | Rec ememcnnnnae 19

National Socialist Party of Am. v. Village of Sko-

Eg Fs 3 Ran Rem D neNe 15

Nebraska Press Assn. v. Stuart, 423 U.S. 1819

PRUE perocee a tae MNP ee e RN eE Tc TN ONCE 15

New York Magazine v. Metropolitan Trans. Auth.,

+ Be Be) 8) Ce Ae | eee 19

New York Times Co. v. Sullivan, 376 U.S. 254

EINE - siiscuiniislaciamubuciabacibladunediaddiamanbalaplasasscumeaciaiaumalad i, 12, 24

Vv

TABLE OF .. /? HORITIES—Continued

Page

New York Times Co. v. United States, 403 U.S. 713

ESIIIITE ©. ccntcsnacunicateeeannibedinakadnissiiadseeiiimietaapiamanaisiine 15, 18

Nutritional Health Alliance v. Shalala, 144 F.3d

Sy Ge Ge IED ccccnnnaneetisincesctigiiaeeteneectpesetieniiiiien 19

A Quantity of Copies of Books v. Kansas, 378 U.S.

SEE SEIITIEED ks:ic cccesnnsomnenensenteienantdanamuadsanialmeiaionclaiauneh 13, 18

Quarterman v. Byrd, 453 F.2d 54 (4th Cir. 1971).. 19

Regan v. Time, Inc., 468 U.S. 641 (1984) —............. 3

Reinhold v. Virginia, 151 F.8d 172 (4th Cir.

I i a 25

Riley v. National Federation of Blind of N.C., Inc.,

i es ee CE a 16

Robinson v. Hanrahan, 409 U.S. 38 (1972) ............. 21

Ross v. Kemp, 785 F.2d 1467 (11th Cir. 1986) ........ 25

Salinger v. Random House, 818 F.2d 252 (2d Cir.

TUTTI sistssniciindseinabiahinsidipolipiteliletitl tg aia oe inn 25

Sarnoff v. American Home Prods., 798 F.2d 1075

Pe (Oi: MIIIIIIED -s.-:csccsccectucanereceuecantncdeaccaciscsus auaanals 25

Senate of the Comm. of Puerto Rico v. United

States Department of Justice, 823 F.2d 574 (D.C.

I FIO acviics scoctssskseaeetstesteenetinatinnetinapeaaadasiianaiiecieaiaaiealem 25

Shuttlesworth v. Birmingham, 394 U.S. 147

<< _, FRERRRERRE ee aereseee ae ee Meee Re ee MD NCI 15, 18, 19

Sierra Club v. United States Army Corps. of

Eng’rs, 771 F.2d 409 (8th Cir. 1985) .........0020002.... 25

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

Be CIID wicnhsrctishinnicidlidsacabinaraciibinaecaiai ian anos 6, 14, 19

Telco Communications, Inc. v. Carbaugh, 885 F.2d

SE Be Ga BD seieccciticaniicccedodndiaiinitie cundis 19

United States v. Diebold, Inc., 369 U.S. 654

S| EE Ee eM P RARS T. 2S EME ie Ne 24

United States v. Hall, 801 F.2d 356 (8th Cir.

| LL ES ETT AREY STS TE SEN I eM oN 17

United States v. Johnson, 434 F.2d 827 (9th Cir.

ER Ee Fe Ren ii NTR AS Pn el 17

United States v. J.B. Williams Co., 498 F.2d 414

+ Gs Se} ee 23

United States v. James Daniel Good Real Property,

Ge Wh: Ge CIE ecceenncceccdineeecaneaeeniann 21, 22

vi

TABLE OF AUTHORITIES—Continued

Page

United States v. Jiang, 140 F.8d 124 (2d Cir.

ED dieniinndiiiaiiitiniipasiaiaaeaiiiaai ima e eae 25

United States v. Kimmel, 672 F.2d 720 (9th Cir.

TD seicennsntiincsintitntinainnitbeiiialitabaciaiiites ieee 25

United States v. Miranda-Santiago, 96 F.3d 517

Ce Gs HED wiistissitniineiniabaeiaae 25

United States v. Preciado-Cordobas, 923 F.2d 159

ph Ds | ene ne amen eae 25

United States v. Thirty Seven Photographs, 402

os CE COD Acccennticeaniintaaeieeeeeees 16

United States v. Wilson, 116 F.3d 1066 (5th Cir.

ED: cistinsisnticstiicimteininnsianuiaiesa ene 24

United States v. X-Citement Video, Inc., 518 U.S.

BG Ge cesisctscmiiniabinninrintnieanciense ee ~ 20

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

SE SITITD vecciunsssiesieteinbiheiaitiiarsintineiadeh alia eect ee 6

Walker v. Wegner, 624 F.2d 60 (8th Cir. 1980)...... 19

Constitution, Statutes, and Rules:

petits Rig: TIE Ts iscticsininieciielactaniiaiaaateadt ait ona passim

te cs AIO secccntencsenioksnnnenecdsinadaniaeeocnsien 2, 22

Sr Ns TE Ek cinsiicccctinsibbiaiecdescena ae oan 20

ls Ue GIEUE icthsdctnirssiicevdennitekeinkotbhianiicadcataaoumn aaa 20

es OF TO kcvcnsstskdsonsbncieabecamdenaiaaen anon 2, 16, 20

Be ee te IE ecctuniniasniicvainacmindaecainieaiete ee 2

Be ls OF IE wise sniicincnnratsiduiieschiettectatiadeca cates guaeeamna 20

Be Ie SION viceessiscodencedseachioscineticaeene nie 2

Se Es Eis COUP ccevinccsiinadacincitasinsiehdgibitectallcsbasciceaceicah eereeain ae enc 1

Treatises:

Edward J. Devitt, et al., 'ederal Jury Practice &

Instructions (4th ed. 1990) 20.00.0000... cece cece 17

J. William Moore, Moove’s Federal Practice (3d

I ID Crseciccdeeenttanenecristhiniencle ia ere es 26

IN THE

Supreme Court of the Vinited States

OCTOBER TERM, 1998

No.

J.S.G. BoaGs,

“ Petitioner,

ROBERT E. RUBIN, BRIAN L. STAFFORD,

and JANET RENO,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

J.S.G. Boggs, by his undersigned counsel, respectfully

petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the District of

Columbia Circuit in this case.

OPINIONS OF OTHER COURTS

The majority and dissenting opinions of the Court of

Appeals (App. la) are reported at 161 F.3d 37. The

opinion of the District Court (App. 17a) is reported at

987 F. Supp. 1.

1This petition is not filed on behalf of any corporation. See

S. Ct. R. 29.6.

2

JURISDICTION

The Court of Appeals entered judgment on November 6,

1998 and denied a timely filed petition for rehearing on

February 3, 1999. Petitioner invokes this Court’s juris-

diction pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The texts of the First and Fifth Amendments, and of

18 U.S.C. §§$474 and 504, are reproduced in the

appendix.

STATEMENT

Petitioner, J.S.G. Boggs, is an internationally respected

artist. His work graces the permanent collections of the

Smithsonian Institution, the Museum of Modern Art, the

British Museum, and the Art Institute of Chicago. He

received formal training in fine arts at Columbia Uni-

versity; lectured at Brown University; served as a Fellow

in Art and Ethics at Carnegie Mellon University; and

published scholarly work.

Boggs has been known to use actual-sized interpreta-

tions of money in his work. This case arises out of en-

forcement efforts by the United States Secret Service un-

der color of 18 U.S.C. § 474 directed against certain of

Petitioner's works of art. As the case comes to this

Court (on summary judgment for the government), the

record evidence is that the works of art are not counter-

feit money. The works of art at issue are not themselves

in the record—improperly, for reasons described below.

But affidavits in the record from an Ivy League art pro-

fessor, a museum curator, a distinguished art historian,

and a commercial printer uniformly support Boggs’ posi-

tion that the art is readily distinguishable from money.

The lower courts in this case declared the works of art

contraband and forfeited to the United States under the

3

counterfeiting statutes. The District Court did so ex parte

and the Court of Appeals affirmed without examining

even one of them, whether an original or a reproduction

—a review “sine scrutatione.”

It is undisputed that Boggs has never defrauded any-

one into believing that his works are really currency.

The Distict Court in this case held that “no one seriously

suggests [and no jury could find] that Mr. Boggs has any

intent to defraud.” Boggs v. Bowron, 842 F. Supp. at

557. The District Court also noted that Boggs “alters

some of the design elements from genuine bills, such as

replacing the signature of the Secretary of the Treasury

with his own, changing the portrait on the front, or cre-

ating a denomination that does not exist. Boggs travels

the country bartering his work for goods and services by

explaining to merchants that he is an artist.” App. 17a.

The Secret Service has repeatedly challenged Boggs’

position—apparently on some sort of principle, for no

person has ever complained to any law-enforcement au-

thority about being defrauded by Boggs or by anyone

else using his art. Apparently, the governmental interest

is in “preserving the integrity” of a “property” interest in

the “design and appearance” of currency. See Brief for

Appellants in Regan v. Time, Inc., 468 U.S. 641 (1984)

at 14. One Treasury spokesman has publicly condemned

artistic activities that would “defame the intrinsic value”

of currency, adding: “[a]fter all, this is the currency of

the United States of America, and that stands for some-

thing.” Calvin Sims, “In Recycling of Greenbacks, New

Meaning for Old Money,” New York Times, May 22,

1994 at 1, 26.

The Secret Service’s efforts to obtain prosecution of

Boggs have failed. Three successive United States At-

a ne en |

torneys in three separate Districts have all declined

prosecution.

By the time of the events in question in this case, the

Secret Service knew about Boggs and his status as an

artist. In 1990, Secret Service agents in Tampa concluded

that Boggs lacked any criminal intent, and on their recom-

mendation the United States Attorney for the Middle

District of Florida declined prosecution.

The Warrantless Seizure. In March 1991, a Secret

Service agent in Cheyenne, Wyoming “confiscated” fifteen

works of art from Boggs. The agent had no warrant. De-

spite repeated demands, the Secret Service has refused

to return the fifteen works or seek an adversarial judicial

hearing approving the seizure. Like his counterpart in

Florida, the United States Attorney for the District of

Wyoming declined prosecution.

In September 1992, Boggs was on the faculty of Car-

negie Mellon University in Pittsburgh, Pennsylvania. A

Secret Service agent in Pittsburgh read a newspaper article

about Boggs and opened a new investigation. The agent

interviewed Boggs, read a report that the Cheyenne agent

had written, looked at the fifteen works of art seized in

Cheyenne, and submitted the materials he had gathered to

the United States Attorney’s Office for the Western Dis-

trict of Pennsylvania. On November 4, 1992, that office

advised the Secret Service that “there is not enough at

this time to merit prosecution of Boggs.” Court of Ap-

peals Joint Appendix (“J.A.”) 234.

There matters stood on November 30, 1992, when an

Assistant United States Attorney read another newspaper

article about Boggs and an anticipated performance-art

event called “Project Pittsburgh,” in which the public itself

would barter with Boggs’ art over the coming year with

the cooperation of a number of local merchants. Public

ee

5

barter of locally or privately issued “script” is common in

the United States. See, e.g., Edward A. Gargan, “Giving

Money Local Color,” New York Times, May 28, 1998

at Bl, B8. The newspaper reported that the Project

would commence with a public performance by Boggs

on December 2.

The Prior Restraint. The day that the newspaper re-

port came out, according to internal Secret Service docu-

ments, “there was a major discussion of this case” at-

tended by the United States Attorney, four Assistant

United States Attorneys, and two representatives of the

Secret Service’s Pittsburgh field office, including the Spe-

cial Agent in Charge. J.A. 234. The Secret Service had

developed no new evidence of potentially criminal activity

—only the newspaper article was new—so the government

still had no basis to Proceed with prosecution. Nonethe-

investigation powers to effect a prior restraint on Boggs.

According to a Secret Service internal report, the “U.S.

Attorney stated that we cannot allow this man to Pass out

$1 million in Boggs bills in the Pittsburgh area.” J.A. 234.

Later that day, the Secret Service and the AUSA “agreed

that search warrants should be applied for and executed

So as to keep Boggs from Passing these bills.” J.A, 235.

Four Secret Service agents executed warrants on De-

cember 2 at Boggs’ home, studio, and office at Carnegie

Mellon University. These agents seized any and all im-

ages of money, including framed works of art (some

based on foreign currency including Swiss and British

currency), a “sketch” of a twenty-dollar bill, a “dupli-

cate of a million dollar note,” air fresheners, a sponge,

a calculator, a bow tie, match books, a whistle, and a

video tape of a BBC documentary film featuring Boggs.

In all, the agents seized more than 1300 items, including

hundreds of works of art.

nai

6

These actions were flatly contrary to this Court’s funda-

mental tenet that except in extraordinary circumstances

—and even then, only with adequate procedural safe-

guards—prior restraints on speech may not be used to

prevent potential criminal acts:

The presumption against prior restraints is heavier—

and the degree of protection broader—than that

against limits on expression imposed by criminal penal-

ties. Behind the distinction is a theory deeply etched

in our law: a free society prefers to punish the few

who abuse rights of speech after they break the law

than to throttle them and all others beforehand.

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

558-59 (1975); accord Vance v. Universal Amusement

Co., 445 U.S. 308, 316 n.13 (1980).

There was no question that these government agents

knew that the “Project Pittsburgh/Boggs Bills” they in-

tended to seize were art—and no question that only three

weeks earlier the United States Attorney had concluded

that the facts provided no basis for prosecution. Their

acts that day were—pure and simple—a prior restraint on

speech.

The Government's Unilateral Confiscation of the Prop-

erty. After the mass seizure—which ironically did not in-

clude seizure of the “Project Pittsburgh/Boggs Bills’—

government activity with respect to Boggs halted. In

1995, the United States Attorney in Pittsburgh formally

declined prosecution—the third formal declination of

prosecution of Boggs from the three United States At-

torneys who had considered the matter. Shortly after this,

Boggs’ counsel wrote to the government demanding re-

turn of Boggs’ property: “should the [government] decide

not to seek civil forfeiture—a determination that has been

unduly delayed—we expect all of our client’s property

7

to be returned promptly.” J.A. 166. The government

responded: “We will not file a civil forfeiture action, but

will merely keep the contraband.” J.A. 167.

Proceedings in the District Court2 Boggs commenced

an action in the United States District Court for the Dis-

trict of Columbia seeking (inter alia) return of the prop-

erty and demanding a jury trial. Boggs moved for sum-

mary judment, arguing that the warrantless seizure in

Cheyenne and the lack of any adversary hearing were

clear violations of the First Amendment's prohibition on

prior restraint without adequate procedural safeguards,

and that the universal remedy for the improper seizure of

property presumptively protected by the First Amendment

is the return of the material.

The government did not deny any of the factual allega-

tions supporting Boggs’ motion. The government also con-

ceded that—in general—warrantless seizures and failure

to seek a post-seizure adversarial hearing violate the First

Amendment and that an appropriate remedy for such a

violation is return of the seized property. Yet the

government argued that the bills were contraband per se

so that the First Amendment simply did not apply.

Boggs opposed the government's attempt to secure a

forfeiture without proving to a jury that the art in ques-

tion actually violated the counterfeiting laws. Boggs also

moved for a hearing. In response, the government made

2We are sorry to say that the proceedings in the lower courts

involved conduct that the Court will find extraordinary. We must

therefore ask the Court’s indulgence to present a lengthier descrip-

tion of these proceedings than would normally be expected in a

petition for certiorari.

3 Boggs also sought a preliminary injunction against prosecution,

which the courts below denied. Boggs v. Bowron, 842 F. Supp. 542

(D.D.C. 1993), aff'd, 67 F.3d 972 (D.C. Cir. 1995), cert. denied, 517

U.S. 11384 (1996).

8

some sort of ex parte, in camera submission to the Dis-

trict Court, to which Boggs was not privy. The record

contains none of the works submitted in camera to the

District Court or even copies of them.

The District Court made no transcript of the in camera

inspection. There is no record of exactly what items the

District Court reviewed. There is no record of how long

any particular item was studied. And there is no record

of whether the government presented any ex parte argu-

ment, although on appeal the government lawyers who

replaced the AUSA responsible for the ex parte submis-

sion denied that the ex parte submission included argu-

ment.*

The District Court did not invite Boggs to attend the

in camera proceeding, personally or through counsel. The

government provided Boggs no advance notice of its sub-

mission nor any specific description of which works of art

it put before the District Court. He had no opportunity

to present argument or witnesses. He had no opportunity

to place the alleged “contraband” in the context of the

other art that had been seized but which the government

was not contending was contraband. He had no oppor-

tunity to present arguments by counsel pointing to various

facts in the record tending to rebut the government’s as-

sertion that the pieces of art held to be “contraband” were

in fact contraband, including sworn statements not only

from plaintiff, but from four witnesses—an expert on

American painting, the Chairman of Brown University’s

Department of Visual Art, the curator of the Andy War-

hol Museum, and a printer with a lifetime of relevant in-

dustry experience. He had no opportunity even to present

4The AUSA responsible for the case died between the ex parte

submission and the Court of Appeals argument. He does not ap-

pear to have left any record of his conduct of the ex parte submis-

sion.

9

argument directed to the look and feel of the individual

pieces of art put before the District Court, not knowing

which they were out of the several hundred that had been

seized.

The District Court's Decision. Four business days after

the government mailed out a notice of this closed-door

session, the District Court granted summary judgment for

the government and dismissed the complaint.> It did so

without addressing the items that the government con-

ceded were not contraband (App. 32a n.4)—and thus

should have been ordered returned—and without address-

ing with specificity any of the items it held to be contra-

band.

The District Court acknowledged that Boggs’ work is

protected by the First Amendment (App. 23a n.2) and

that “Boggs accurately notes that the proper remedy for

the unconstitutional seizure and retention of property is

return of the material.” App. 30a. The Court added that

“the length of time that has elapsed between the seizures

and the government’s final decision not to prosecute—

almost two years—mitigates [sic] in favor of plaintiff's

claim for the return of his goods.” App. 30a-3la. And

the Court observed that each work of art is “unique such

that individual determinations” of their legality must be

made. App. 34a. :

However, the District Court held that the procedural

safeguards set forth by this Court in a line of cases in-

cluding Freedman v. Maryland, 380 US. 51 (1965), and

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

apply only in obscenity cases, and therefore were not trig-

gered by the warrantless seizure in Cheyenne or the mass

seizures in Pittsburgh. The District Court did not attempt

5 The record does not indicate whether the ex parte session took

place before or after the government mailed its notice.

10

to rationalize its inverted First Amendment hierarchy—in

which artistic and political speech receives no immunity

from a prior restraint effected with or without a search

warrant, but obscene speech (which ordinarily falls com-

pletely outside the ambit of First Amendment protection)

is SO protected.

Having rejected Petitioner’s application of First Amend-

ment doctrine, the District Court then went on to rule

that the art it had seen ex parte and in camera was con-

traband. The District Court explained that it had “ac-

cepted” the government’s “invitation” to “rule on the basis

of its own observations,” “conducted an in camera [and

ex parte) review of all of the Pittsburgh materials,” and

decided that “all of the items that the Secret Service con-

tends are contraband are, to this court’s satisfaction, re-

productions of genuine currency” and therefore “are con-

traband.” App. 34a-35a. Approximately 80 of the more

than 1300 seized items apparently fell into this category.

Id. Which they are, Petitioner knows not.

The District Court did not view all 1300 items that the

Secret Service had seized. Exactly how many items the

government put before it to view—and what they looked

like—cannot be ascertained from the record. The Court’s

opinion states only that it “examined all of the disputed

Boggs Bills seized in Pittsburgh.” App. 34a (emphasis

supplied). None of the seized items—contraband or not

—ever found their way into the record where they could

be examined by the public or by the reviewing courts.

They remain locked in the vault of the Secret Service,

where they have been since they were seized in 1991 and

1992. Boggs was not offered an opportunity to visit them

before, during, or after the in camera submission. He

has not seen them for many years.

The Court of Appeals’ Decision. A divided panel of

the United States Court of Appeals for the District of

11

Columbia Circuit affirmed. The panel agreed unanimously

that the First Amendment applied here and that “[t}he

Supreme Court has indeed held law enforcement officers

to a higher standard when presumptively expressive ma-

terials are involved because of the risk of prior restraint

and censorship.” App. 6a. But, following the District

Court, it held that “[t]he important First Amendment

concerns advanced by the Supreme Court in the obscenity

cases are not present to the same extent here.” App. 7a.

The panel reasoned that procedural safeguards are neces-

sary in obscenity cases because such cases require “‘signifi-

cant judgment,” even while conceding that the statute here

requires the exercise of “some judgment.” Jd. The panel

did not otherwise discuss the many decisions of this Court

holding—in a wide variety of contexts—that any system

of prior restraint requires adequate procedural safeguards

including specific and brief time limits and a prompt ad-

versarial hearing in which the government bears the bur-

den of going to court and the burden of proof once in

court.

Astoundingly, in affirming the judgment, the panel ma-

jority refused to look at the art in question and considered

the ex parte nature of the proceedings in the District

Court “insignificant.” App. 8a. The majority argued that

Boggs was “free to request access to the materials” sub-

mitted ex parte by the government (without acknowledg-

ing that the District Court entered judgment only four

business days after the government mailed its “notice of

in camera submission”). Id. No basis exists in the Fed-

eral Rules of Civil Procedure for this interesting proce-

dure: ex parte submission, notice thereof by mail, and

then a race to the courthouse with a “request for access.”

The majority begrudgingly admitted that its holding could

not be squared with cases forbidding ex parte evidence in

civil actions, arguing that “if there was error, we hold

that it was insignificant and Boggs could have avoided

12

any ill effect by proper motion below” (presumably in the

two days between receipt of the notice of ex parte sub-

mission and entry of the judgment). App. 8a. In her dis-

senting opinion, Judge Rogers observed that it is “im-

possible to characterize ex parte receipt of unknown ma-

terials not in the record as ‘insignificant.’” App. 15a n.7.

Poggs moved in writing for supplementation of the rec-

ord. Denying his written motion to supplement the record

and ignoring the substantive thrust of his brief—that re-

view was impossible absent a complete record—the panel

majority simply refused to look at the core, operative evi-

dence—the “contraband” art—on the theory that appel-

lant had waived the right to review on a complete record.

App. 8a, 10a.®

J iige Rogers dissented on this issue. She wrote:

Given that this case involves government regulation

—indeed, confiscation—of expressive materials, and

that art may at times imitate reality, this court is

obliged on de novo review of the grant of summary

judgment to look at the Boggs bills to determine if

they meet the statutory criteria for counterfeit cur-

rency.

Without viewing the bills, this court cannot determine

for itself whether the district court correctly applied

6 Buggs’ principal argument on appeal (Point I in his Brief)

was that the District Court’s acceptance of ex parte evidence and

failure to make a record required a remand at minimum. Boggs

expressly relied on Abourezk v. Reagan, 785 F.2d 1043, 1061 (D.C.

Cir. 1986), aff'd by an equally divided court, 484 U.S. 1 (1987), and

Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C. Cir. 1988)

(quoting New York Times Co. v. Sullivan, 376 U.S. 254, 284-86

(1964)). The government opposed a remand and argued in foot-

notes (a) that the Court of Appeals should look at the works of art

itself even though they were not in the record, and (b) that appel-

lant should have moved for an order instructing the government

to supplement the record even though the government did not so

move.

a

hart dis ibaa watteitetigs.

13

the law, or even if it applied the correct law. It is

not sufficient to rely, as the [majority] does, on

the district court’s recitation of the correct statutory

standards. Elsewhere in its opinion, the district court

described 18 U.S.C. § 474 as essentially objective,

yet it appears to incorporate a substantial degree of

subjectivity. In addition, the district court’s findings

that a sponge and bow tie are in the “similitude” of

actual currency raises questions about its statutory in-

terpretation that warrant scrutiny on appeal.

App. 12a-13a (footnotes omitted).

REASONS FOR GRANTING THE WRIT

I. THE DECISION BELOW ERODES FIRST AMEND-

MENT SAFEGUARDS AGAINST PRIOR RE-

STRAINTS

This Court has consistently held that any system of

prior restraint must meet certain fundamental procedural

safeguards, including a requirement that the restraint be

subject to prompt and meaningful judicial review. Gen-

erally, the burden of going to court and the burden of

proof in court must also rest with the government.

In Freedman v. Maryland, 380 U.S. 51 (1965), the

Court struck down a motion picture censorship statute

that failed to provide adequate procedural safeguards.

Building on earlier precedent,? the Court ruled unani-

mously that a motion picture censorship system was un-

constitutional because it did not (1) contain a specified,

brief period for the restraint, (2) provide expeditious judi-

cial review, and (3) impose on the government the burden

7A Quantity of Books v. Kansas, 378 U.S. 205 (1964): Marcus

v. Search Warrants, 367 U.S. 717 (1961). These cases held that

expressive materials may not be seized in anticipation of a criminal

prosecution without a prompt adversarial hearing, and that the

remedy for violation of this requirement is return of the seized

materials.

14

of going to court to suppress the speech and bear the

burden of proof once in court. The statute under review

in Freedman applied to all motion pictures (other than

newsreels), and the state conceded that the film at issue

would have qualified for a license had the exhibitor ap-

plied for one.

Ten years later, this Court recognized Freedman as

stating “[t}he settled rule is that a system of prior restraint

‘avoids constitutional infirmity only if it takes place under

procedural safeguards designed to obviate the dangers of

a censorship system.’” Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546, 559 (1975). In Southeastern

Promotions, the Court held unconstitutional a municipal-

ity’s refusal to license a production of the musical “Hair,”

because the denial of the license had been unaccompanied

by adequate procedural safeguards. The Court ruled

against the government not as an effort to protect ob-

scenity, but because “[i]nsistence on rigorous procedural

safeguards under these circumstances is ‘but a special in-

stance of the larger principle that the freedoms of expres-

sion must be ringed about with adequate bulwarks.’” J/d.,

420 U.S. at 561 (quoting Bantam Books, Inc. v. Sullivan,

372 U.S. 58, 66 (1963)).

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

(1990), the Court struck down a content-neutral licens-

ing system as failing to provide adequate procedural pro-

tections. The Court observed that “[t]he core policy un-

derlying Freedman” requires (1) that the restraint not

exceed a specified and reasonable time period, and (2)

that “there must be the possibility of prompt judicial

review in the event that the license is erroneously denied.”

Id., 493 U.S. at 228.

From the perspective of two and a half decades, Freed-

man’s author observed: “We have never suggested that our

|

/

{

a

15

insistence on Freedman procedures might vary with the

particular facts of the prior restraint before us. To the

contrary, this Court has continued to require Freedman

procedures in a wide variety of contexts.” FW/PBS, 493

U.S. at 239 (Brennan, J., concurring).

And in Fort Wayne Books, Inc. v. Indiana, 489 U.S.

46 (1989), the Court again struck down a prior restraint

that was not the product of adequate safeguards—this

time, a pretrial seizure of books alleged to be the fruits

of a racketeering enterprise. Writing for a Court that was

unanimous on this issue, Justice White explained that

“this Court has repeatedly held that rigorous procedural

safeguards must be employed before expressive materials

can be seized as ‘obscene.’” Z/d., 489 U.S. at 62. Of

course, the basis for the decision was not that obscenity

requires some sort of heightened protection. It does not.

Instead, this Court explained, “[i]t is the risk of prior

restraint . . . that motivates this rule.” /d., 489 U.S. at

63-64 (internal quotations and citation omitted).

To be sure, as the Court of Appeals in this case ob-

served, the rule of Freedman has been applied frequently

to prior restraints on speech of a sexually explicit nature.

But—at least until now—such requirements have also ap-

plied without exception to a wide variety of speech on

subjects of every other kind and character, including pub-

lic assembly and parades by groups of every political per-

suasion,® traditional news reporting,® charitable fund rais-

8 National Socialist Party of Am. v. Village of Skokie, 482 U.S.

43, 44 (1977) (per curiam) (“[i]f a State seeks to impose a re-

straint of this kind, it must provide strict procedural safeguards”) :

Shuttlesworth v. Birmingham, 394 U.S. 147, 150 (1969): Carroll

v. President & Commrs. of Princess Anne County, 393 U.S. 175, 180

(1968) ; see Hague v. CIO, 307 U.S. 496 (1939).

9 New York Times v. United States, 403 U.S. 713, 714 (1971);

Nebraska Press Assn. v. Stuart, 423 U.S. 1819 (1975) (Blackmun,

J., in chambers).

16

ing,1° and—as in Freedman and Southeastern Promotions

—popular entertainment.

The Court of Appeals’ opinion in this case substantially

erodes these well-established First Amendment protections

against prior restraints—unless the expression at issue

happens to be obscene. So far as we know, the D.C.

Circuit opinion in this case is the first time a court has

provided obscenity more and better protection than other

speech—in this case, works of art made by a classically

trained artist.

Certainly nothing in this Court’s jurisprudence suggests

that the danger to be avoided with procedural safeguards

is limited to speech of a sexual nature—let alone obscen-

ity, which ordinarily enjoys no First Amendment protec-

tion at all. See United States v. Thirty Seven Photographs,

402 U.S. 363, 376 (1971).

The Court of Appeals recognized that this Court crafted

the First Amendment requirements of a warrant and a

prompt adversary hearing—which admittedly were not

met in this case—‘“because of the risk of prior restraint

and censorship.” App. 6a. That is true. This Court has

repeatedly explained that the warrant and hearing require-

ments serve as a procedural bulwark against prior re-

straints. See Fort Wayne Books, 489 U.S. at 63 (“It is

‘the risk of prior restraint’ . . . that motivates” the rule

that requires an adversary hearing) (internal quotation

omitted); accord Bantam Books, 372 U.S. at 66; Marcus,

367 U.S. at 724-29 (describing history of prior restraint

at common law and concluding that the framers fashioned

the First Amendment to prevent “the suppression of inno-

cent expression” that “inhered in the discretion confided

in the officers to exercise the power” of prior restraint).

10 Riley v. National Federation of Blind of N.C., Inc., 487 U.S.

781, B02 (1988); see Cantwell v. Connecticut, 310 U.S. 296 (1940).

Ste PE Rink ng ee Gea

ee eee

——.

—_

ee ee eS eee ee

17

Moreover, this Court has explained that the need to pre-

vent prior restraints “is obviously true for books or any

other expressive materials.” Fort Wayne Books, 489 U.S.

at 63.

Yet the Court of Appeals attempted to distinguish this

Court’s precedents on the theory—never expressed in the

cases—that “significant judgment” is needed to determine

if the seized materials are contraband in obscenity cases,

while saying that only “some judgment” is needed in this

case. App. 7a. The Court cited no case in support of this

theory and suggested no means to distinguish between sub-

ject matters like obscenity—which the Court of Appeals

said required “significant judgment”—and other subjects—

which the Court said required only “some judgment” and

accordingly can be forfeited through ex parte proceedings.

We note that in the “judgment” of the Secret Service, a

sponge and a bow tie with images of money on them are

“counterfeit” under 18 U.S.C. § 474, a statute that re-

quires the government to prove that the items bear “such

a likeness or a resemblance to a genuine obligation . . .

as is calculated to deceive an honest, sensible and unsus-

pecting person of ordinary observation and care dealing

with a person supposed to be honest and upright.” As

Judge Rogers pointed out in her dissenting opinion, the

standard “appears to incorporate a substantial degree of

subjectivity.” App. 13a.

To be sure, the Court of Appeals may have been led

astray because many cases expressing the Freedman re-

quirements arose out of seizures of sexually explicit ex-

11 United States v. Hall, 801 F.2d 356, 357-58 (8th Cir. 1986)

(reviewing cases dating back more than a century and concluding

“(t]he similitude jury charge has received general acceptance in

§ 474 prosecutions”) ; United States v. Johnson, 434 F.2d 827, 829

(9th Cir. 1970) ; see 2 Edward J. Devitt, et al., Federal Jury Prac-

tice & Instructions, § 29.12 (4th ed. 1990).

18

pression. But this Court has repeatedly applied the Freed-

man requirements to a wide variety of subject matters,

including business, politics, and popular culture. See

supra pp. 13-16 & nn.8-10. The Court has never suggested

(as the Court of Appeals held) that sex should receive

more and better protection than other forms of discourse.

Indeed, just the opposite is true:

In the present case [involving “political and social

expression” ], the reasons for insisting upon an op-

portunity for hearing and notice . . . are even more

compelling than in cases involving allegedly obscene

books. ... “It is vital to the operation of. demo-

cratic government that the citizens have facts and

ideas on important issues before them. ... On the

other hand, the subject of sex is of constant but

rarely particularly topical interest.”

Carroll, 393 U.S. at 182 (quoting A Quantity of Copies

of Books, 378 U.S. at 224 (Harlan, J., dissenting) ); ac-

cord Shuttlesworth v. Birmingham, 394 U.S. at 162 (Har-

lan, J., concurring).

The panel concluded its analytical justification for per-

mitting this prior restraint by stating that “the inquiry [in

this case] is not inherently content-based and thus poses

little risk of acting as a prior restraint on expressive ma-

terials.” App. 7a. But the panel’s assertion that the prior

restraint here was inoffensive because it was supposedly

content-neutral is simply not a correct statement of law.

“Any system of prior restraints of expression comes to this

Court bearing a heavy presumption against its constitu-

tional validity.” New York Times Co. v. United States,

403 U.S. 713, 714 (1971) (quoting Bantam Books, 372

US. at 70).

This Court has held repeatedly that even a content-

neutral prior restraint is unconstitutional if not accompa-

nied by adequate procedural safeguards—safeguards that

19

the panel acknowledged were lacking here. See FW/PBS

v. City of Dallas, 493 U.S. at 223 (striking down statute

without reaching whether it was content neutral); South-

eastern Promotions, 420 U.S. at 562 (procedural short-

comings were “unrelated to the standard that the board

applied”); Shuttlesworth, 394 U.S. at 155 n.4 (content-

neutral time, place, and manner regulation must provide

for “expeditious judicial review”).

Without review in this Court, other courts will be

tempted to follow the trail blazed by the D.C. Circuit, per-

mitting prior restraints on speech where, as here, judges

conclude that merely “some judgment” is required of the

censor, rather than “significant judgment.” It is no de-

fense of a system of censorship that it can be implemented

by censors of marginal ability rather than by Platonic

Guardians. Until now, the courts’ prohibition on prior

restraints has not been dependent on the quantum of

“judgment” the censor must exercise, but rather rested on

the tenet that such judgment must not be exercised at all

without adequate procedural oversight. Thus, the Sec-

ond, Fourth, Fifth, Eighth, and Eleventh Circuits have

all applied the doctrine requiring procedural safeguards

to a variety of cases that do not involve sex.1* The D.C.

Circuit stands alone in limiting the rule as it has.

12 Nutritional Health Alliance v. Shalala, 144 F.3d 220, 227-28

(2d Cir. 1998) (applying rule of Freedman to commercial speech) ;

New York Magazine v. Metropolitan Trans. Auth., 136 F.3d 123,

131-32 (2d Cir. 1993) (same); Telco Communications, Inc. v. Car-

baugh, 885 F.2d 1225, 1232-33 (4th Cir. 1989) (same); Quarterman

v. Byrd, 453 F.2d 54, 60 (4th Cir. 1971) (distribution of printed

material requiring approval of high-school principal); Fernandes

v. Limmer, 663 F.2d 619, 628 (5th Cir. 1981) (ordinance govern-

ing literature distribution and fundraising at airports); Walker v.

Wegner, 624 F.2d 60, 62 (8th Cir. 1980) (charitable solicitation) ;

Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 675-76

(11th Cir. 1984) (newsrack licensing ordinance).

a

20

Such a holding would be troubling in any context. It

is particularly troubling here, because the statute at issue,

18 U.S.C. § 474, was said by the lower courts to criminal-

ize the possession of any image that looks sort of like

money—even a novelty item like a sponge or a bow tie

with a picture of money on it. Violation of the statute

Carries a maximum prison term of 25 years—even more

severe than the fifteen-year penalty for actual counterfeit-

ing. 18 U.S.C. §§ 471, 472, 474, 3581(b)(2). This, to

protect the government’s “property interest” in the “inte-

grity” of the “design and appearance” of currency. See

supra p. 3.

As interpreted below, the statute covers a wide variety

of speech that bears no risk of promoting counterfeiting

or fraud. Dozens of publishers and advertisers every year

print millions of copies of the image of United States

currency, all “violations” of the statute as interpreted

below—that is, pictures including images of money. The

image of currency is commonplace. It is on the covers

and pages of popular magazines, billboards, coupons, and

clothing. The record in this case includes a survey show-

ing that dozens of popular magazines published more than

85 million copies of felony “violations” of the statute as

interpreted below in a single, six-month period. Thus the

courts have not only authorized governmental self help,

but have “criminaliz[ed] a broad range of apparently in-

nocent conduct,” Liparota v. United States, 471 U.S. 419,

426 (1985), in a way that interferes with “settled ex-

pectations that the contents of magazines and films are

generally [not] subject to stringent public regulation.”

United States v. X-Citement Video, Inc., 513 U.S. 64, 71

(1994).

Il. THE DISTRICT COURT'S EX PARTE FORFEITURE

OF PROPERTY WARRANTS REVIEW

The panel opinion establishes an interesting and dan-

gerous precedent by which the government may effect

21

forfeiture unilaterally. Henceforth, the government may

unilaterally seize anything it thinks is contraband and

then “merely keep” it. No further action need be taken

until the owner files a lawsuit, at which time the govern-

ment may cherry-pick samples of the “contraband,” bring

them to the district judge for an ex parte, in camera

examination, and the district judge can then give the

seizure a judicial imprimatur.

Forfeiture actions are not supposed to work that way.

Due process requires notice and an opportunity to be

heard before any forfeiture. Degen v. United States, 517

U.S. 820, 822 (1996); Fuentes v. Shevin, 407 U.S. 67,

80-81 (1972). Due process does not permit the govern-

ment to “merely keep” what it alone has determined is

“contraband.” Nor does it permit forfeitures to be de-

cided on the basis of ex parte submissions of the govern-

ment without the opportunity of the owner to be heard,

to offer testimony and other evidence, and to cross-

examine the government’s witnesses. According to the

Court of Appeals’ opinion, though, due process requires

the owner to make an urgent “request for access” (on

two days’ notice) or forever waive his right to the ordi-

nary adversarial process.

In Robinson v. Hanrahan, 409 U.S. 38, 39-40 (1972),

this Court reversed dismissal of a property owner’s action

for return of property on the ground that the owner did

not receive actual notice of the forfeiture hearing. Here,

there was not even a hearing. More recently, in United

States v. James Daniel Good Real Property, 510 U.S. 43,

48-49 (1993), this Court held it is impermissible even for

the government to seize property ex parte in anticipation

of a later public forfeiture hearing. In that case, the gov-

13 The notice did not say that access would be granted—it was

simply notice of a fait accompli.

pene

Sa

ee

22

ernment seized property owned by an individual convicted

of a narcotics offense. Under the forfeiture statutes in-

volved in that case, property purchased with the proceeds

of narcotics would be forfeited to the government. De-

spite the almost automatic nature of the forfeiture, this

Court held that the ex parte seizure and retention of

Good’s property was a violation of the Fifth Amendment,

under the “general rule that individuals must receive no-

tice and an opportunity to be heard before the Govern-

ment deprives them of property.” Jd. at 48.

Before joining this Court, Justice Ginsburg explained

why judgments are not supposed to be made on the basis

of ex parte submissions:

It is a hallmark of our adversary system that we

safeguard party access to the evidence tendered in

support of a requested court judgment. The open-

ness of judicial proceeding serves to preserve both

the appearance and the reality of fairness in the

adjudications of United States courts. It is therefore

the firmly held main rule that a court may not dis-

pose of the merits of a case on the basis of ex parte,

in camera submissions.

Abourezk v. Reagan, 785 F.2d 1043, 1060-61 (D.C. Cir.

1986), aff'd by an equally divided court, 484 U.S. 1

(1987); accord Association for Reduction of Violence v.

Hall, 734 F.2d 63, 67 (1st Cir. 1984) (“ ‘Our system of

justice does not encompass ex parte determinations on the

merits of cases in civil litigation.””) (quoting Kinoy v.

Mitchell, 67 F.R.D. 1, 15 (S.D.N.Y. 1975)). This prin-

ciple arises out of basic notions of fairness—exceptions to

the rule are therefore rare. Abourezk, 785 F.2d at 1061.

As this Court explained, in another case invalidating

a prior restraint on speech:

The value of a judicial proceeding, as against self-

help by the police, is substantially diluted where the

————————————

Se ee Pe NS ee

23

process is ex parte, because the Court does not have

available the fundamental instrument for judicial

judgment: an adversary proceeding in which both

parties may participate.

Carroll, 393 U.S. at 183.

The panel majority attempted to excuse the District

Court’s radical departure from accepted judicial conduct

by blaming the victim, who was supposedly “free to re-

quest access to the materials” between his receipt of the

“notice of in camera submission” and the entry of judg-

ment two days later. The majority suggested that Boggs

was at fault because he did not make a “timely objection

to the submission below” in those two days. App. 8a.

“If there was error,” the majority asserted without further

discussion, “we hold that it was insignificant and Boggs

could have avoided any ill effect by proper motion be-

low.” Id. Boggs did not initiate the ex parte, in camera

proceedings; the government did. The Court of Appeals

majority dreamed up a remedy called a “request for ac-

cess to items seen by the court but not in the record”—

a procedure that is a stranger to the Federal Rules of

Civil Procedure. Judge Rogers noted that “it is impossible

to characterize ex parte receipt of unknown materials not

in the record as ‘insignificant.’” App. 15a n.7.

Forfeiture on contested fact issues should not be de-

cided on the basis of ex parte review of the evidence.

Boggs presented affidavits from distinguished witnesses

that his art did not meet the standard required for a vio-

lation of the statute in question. Boggs would have been

entitled to a jury in a civil forfeiture case. See United

States v. J.B. Williams Co., 498 F.2d 414, 422-23 (2d

Cir. 1974) (Friendly, J.) (collecting numerous cases).

He should not have been compelled—through government

intransigence—to put his fate in the hands of a single

individual making unexplained determinations outside the

24

record, outside public scrutiny, and outside effective ap-

pellate supervision.

III. THE COURT OF APPEALS’ REFUSAL TO LOOK

AT THE CORE EVIDENCE PRESENTS A RADICAL

DEPARTURE FROM ACCEPTED JUDICIAL BE-

HAVIOR AND IS OUT OF STEP WITH THE RULE

IN OTHER CIRCUITS

On appeal from an order granting summary judgment,

a reviewing court is supposed to examine the record de

novo, drawing all reasonable inferences in favor of the

appellant. See Eastman Kodak Co. v. Image Tech. Servs.,

504 U.S. 451, 466 n.10 (1993); United States v. Diebold,

Inc., 369 U.S. 654 (1962) (per curiam). Furthermore,

in cases that implicate First Amendment issues, “an ap-

pellate court has an obligation to make an independent

examination of the whole record.” New York Times Co.

v. Sullivan, 376 U.S. 254, 284-86 (1964).

Yet the panel majority in this case actually refused a

written request that it review the core, operative evidence

—which was, bizarrely, not in the record! We have found

no other such case in any context—let alone in a con-

tested forfeiture action over expressive material admittedly

entitled to First Amendment protection.

The panel divided on this issue. The majority con-

tended that Boggs waived his right to review on a full

record. That contention was a transparently ex ante ra-

tionalization: Boggs complained, in Point I of his brief

to the Court of Appeals, that review was impossible based

on the absence from the record of the core evidence and

expressly requested a remand to the District Court. Re-

mand to supplement the record is not a novelty. It is the

way other courts of appeals deal with insufficient records.

For example, in United States v. Wilson, 116 F.3d 1066,

1081 (Sth Cir. 1997), the record did not reflect the Dis-

25

trict Court’s disposition of an in camera review of poten-

tial Brady material. The Fifth Circuit remanded for sup-

plementation of the record, under seal if necessary. Re-

mand—rather than the D.C. Circuit’s novel “waiver” the-

ory—has also been the rule in the First, Second, Fourth,

Sixth, Seventh, Eighth, Ninth, and Eleventh Circuits.* So

far as our research has revealed, no other court of appeals

has ever before refused a request for supplementation on

a theory that the party seeking to supplement the record

waived its right to do so.

Yet in this case, the majority below refused even to

look at the art. The majority appears to have punished

a litigant under a theory of “waiver” for complaining to

the Court of Appeals rather than the District Court about

his adversary’s ex parte submission dehors the record,

holding that he should have raced to the District Court

with a “request for access” in the two days before that

Court entered judgment.

This was an abdication of the Court of Appeals’ role.

An appeal should be decided on the record—the real rec-

ord, not what the District Court chose to put in it. “Re-

view of decisions based upon in camera examinations is

difficult in the best of circumstances,” Senate of Puerto

Rico v. Department of Justice, 823 F.2d 574, 589 (D.C.

Cir. 1987), and is impossible where, as here, the in camera

14 United States v. Miranda-Santiago, 96 F.3d 517, 519 (1st Cir.

1996); United States v. Jiang, 140 F.3d 124, 129 (2d Cir. 1998);

Salinger v. Random House, 818 F.2d 252 (2d Cir. 1987); Reinhold

v. Virginia, 151 F.3d 172, 175 (4th Cir. 1998); Easley v. Univer-

sity of Mich. Bd. of Regents, 853 F.2d 1351, 1358 (6th Cir. 1988);

Sarnoff v. American Home Prods., 798 F.2d 1075, 1079 (7th Cir.

1986); Sierra Club v. United States Army Corps. of Eng’rs, 771

F.2d 409, 413 (8th Cir. 1985); United States v. Kimmel, 672 F.2d

720, 722 (9th Cir. 1982); United States v. Preciado-Cordobas, 923

F.2d 159 (11th Cir. 1991) ; Ross v. Kemp, 785 F.2d 1467, 1477 (11th

Cir. 1986) (en banc).

26

evidence never makes it into the record. It is therefore an

axiom of appellate practice that, “if the record lacks suf-

ficient information to indicate the factual basis for the

trial court’s finding, then no review is possible since the

circuit court cannot determine if the finding was errone-

ous.” 19 J. Wm. Moore, Moore’s Fed. Practice 4 206.03[6]

at 206-20 (3d ed. 1998). By refusing to supplement the

record, the D.C. Circuit put itself out of step with other

circuits, which have uniformly followed this practice.

CONCLUSION

This petition for a writ of certiorari should be granted.

May 3, 1999

Respectfully submitted,

KENT A. YALOWITZ

Counsel of Record

ARNOLD & PORTER

399 Park Avenue

New York, New York 10022

(212) 715-1000

DENNIS G. LYONS

555 12th Street, N.W.

Washington, D.C. 20004

(202) 942-5000

Attorneys for Petitioner