The opinion of the court was delivered by: FRANKEL
In two consolidated proceedings under Section 305 of The Tariff Act of 1930, 19 U.S.C. § 1305,
the Government seeks "the forfeiture, confiscation, and destruction of" twelve allegedly obscene paper-backed books mailed from French publishers to the claimant, Mel Friedman, in California.
The quarrel began when the Collector of Customs at the Port of New York "seized and held" the books and (months later) brought them here "to await the judgment of the district court * * *." The claimant has moved for summary judgment, claiming that the First and Fifth Amendments to the Federal Constitution invalidate Section 305 on its face, or, at least, as it has been applied in the circumstances of these cases. More specifically, he contends that:
(1) The statute is unconstitutional on its face because (a) contravening A Quantity of Copies of Books v. State of Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L. Ed. 2d 809 (1964), it provides for "seizure" of allegedly obscene books by customs officers in advance of judicial scrutiny, and (b) it allows suppression pending a judicial determination which may be excessively delayed under Freedman v. State of Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965).
(2) The statute has in any event been unconstitutionally applied because commencement of the libel proceedings was in fact delayed (and the books were meanwhile withheld by Customs) for periods of from three to six months, contrary to Freedman v. Maryland, supra.
While the parties have chosen to join issue exclusively on claimant's constitutional theses, we find it necessary only to be mindful of, but not to decide, these interesting questions. We hold that the statute, properly construed, has been violated by the long delays of the customs officers in presenting these matters for judicial decision.
As reported in the affidavits of two customs officials,
the pertinent and undisputed facts are these:
1. The administrative task and procedures in general.5 - To enforce the prohibitions in Section 305 against importation of obscene, treasonous, and other forms of banned writings, customs officers routinely inspect printed matter arriving from overseas. Where, as in this case, books come here by parcel post, they are given by the Post Office to customs representatives for the handling of this examination. The job is a large one. While exact figures have not been given us, we are told, and can obviously know, that the "number of articles which arrive in the Port of New York annually number in the thousands." Of the total books imported at New York in 1964, 620 were seized under Section 305. For the period January through October, 1965, the corresponding figure was 86.
In some respects the procedures followed by Customs in handling this assignment are designed both to promote speed and to favor admissibility. It takes an average of three days from arrival for a book to be referred to a customs representative for initial examination. If this representative finds no violation of the obscenity provisions, the book is released for delivery on his unreviewed determination. Review of this first judgment occurs only if the representative believes that a book may violate Section 305. In such a case the book goes, within a matter of hours, to the Division of Imports Control, where it is "given a screening" by an Administrative Aide. If the book emerges from this screening without being found obscene, the favorable judgment is, again, final, and release to the addressee follows.
The reviewers at this second stage are supplied with records of earlier decisions of the Bureau of Customs in Washington. Normally, where a book has previously been held obscene, the precedent is followed. In the case of a book not previously reviewed, a reviewer reads and reports upon it, with a recommendation, for the judgment of the Administrative Aide. The reading and reporting generally require from one to three days.
Where the Administrative Aide concludes, on precedent or de novo, that a book is within the prohibitions of Section 305, the addressee is informed of this by letter and told that he may request an administrative review, petition for release of the detained material, or consent to forfeiture. If no response is received within "a reasonable period,"
the case is sent to the Solicitor for the Port of New York for referral to the United States Attorney and the bringing of a proceeding under Section 305. If the addressee requests an administrative review, the book is sent for this purpose to the Bureau in Washington; there, again, it may either be released or detained for a judicial determination under Section 305.
In the course of these examinations in Washington (which sometimes include reconsideration of prior judgments on specific books in light of new court decisions), officials of the Customs Bureau occasionally consult with colleagues in the Treasury or other government agencies.
2. Proceedings in the instant cases. - The two books giving rise to the first of our two cases arrived in New York on February 9, 1965. "Since a prior determination had been made that each book was within the prohibition of Section 305 of the Tariff Act, there was no necessity for the preparation of a reviewer's report (or a reading of the book anew)."
Notwithstanding the apparent simplicity of the problem from the administrative view, over three months then elapsed (to May 18, 1965) before the Government filed its libel seeking judicial condemnation of the books.
On the day of the books' arrival, Miss Suske sent the claimant a form letter advising him that the books had been "seized" for violation of Section 305. The letter pointed out that the addressee's consent to forfeiture would be the easiest course for him, whereas his disagreement with the Customs judgment would be considered meaningful only if he adduced "evidence" he might deem "pertinent to support [his] claim." It read in substantial and pertinent part as follows:
"* * * If you have any reason to question the decision of this office that the above material is in violation of this provision of law, you may, of course, state your objections in writing or address a petition for the release of the material supported by such evidence as you deem is pertinent to support your claim. Merely unsupported statements or allegations will not be considered. Upon receipt of such a request, the detention will be given an administrative review. Should you thereafter be dissatisfied with this ruling, there is available to you a further judicial review when the United States Attorney institutes forfeiture proceedings looking toward the destruction of this merchandise.
"There is enclosed, herewith, an assent to forfeiture of the above-described merchandise. If you desire to sign this form and return it, marked for the attention of the undersigned, this will serve to expedite legal action - in which event, the prohibited merchandise will be disposed of in accordance with existing law and regulations without any further action on your part. If you do not sign this form, the seized material will, likewise, be disposed of by judicial proceedings in accordance with existing law."
The claimant retained California counsel, who on February 22, 1965, wrote to Miss Suske demanding immediate delivery of the books. The last of the three paragraphs in this letter said:
"In light of the rulings by Customs that Tropic of Cancer by Henry Miller, and Sexus by Henry Miller, are not obscene, and recent rulings by the United States Supreme Court and other competent tribunals giving broad protection to literature, I cannot believe that the books referred to are obscene. Accordingly, consent to destroy the books is denied. Demand is made upon you for the immediate delivery of the said books to my client."
But the books were neither delivered at this point nor given to the United States Attorney for institution of court proceedings. Instead, on March 1, 1965, Miss Suske sent the books to Washington for "administrative review," advising claimant's counsel of this action in a letter dated March 2. Two months later, on May 5, the Washington office informed Miss Suske that the books were believed to be obscene and that they should be referred to the United States Attorney for libel proceedings. Claimant's ...