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UNITED STATES v. VARIOUS ARTICLES OF OBSCENE MERCH

August 25, 1976.

UNITED STATES of America, Plaintiff,
v.
VARIOUS ARTICLES OF OBSCENE MERCHANDISE, SCHEDULE NO. 1303, Defendant.



The opinion of the court was delivered by: FRANKEL

FRANKEL, District Judge.

For 135 years, Congress has forbidden penetration of our shores by obscene materials. *fn1" The enactment currently performing that protective function is § 305 of the Tariff Act of 1930, 19 U.S.C. § 1305(a) (1970). *fn2" Customs personnel at our various ports staff this bulwark. They spend their time opening mail and packages, having evidently learned what to suspect. Materials believed to be of the forbidden kind are turned over to the United States Attorney for the district in which the port lies.

 In this district, the Customs Service makes a weekly bundle of the allegedly obscene items, which are then listed on a schedule and proceeded against by the United States Attorney's complaint in rem. The addressees receive notice that their mail has been opened and potentially condemned, and that they are entitled to claim it. Most ignore the notices, and their things are consigned by default to be destroyed.

 If a claim is filed, it is set down to be "heard." On the day noticed for the hearing, a judge of the court turns up to preside. There is present an Assistant United States Attorney, an expert from customs just in case, and usually no one else. (In over 10 years on this court, this incumbent has seen two exceptions before the instant case.) *fn3" With nobody present to quarrel, the judge solemnly inspects the "claimed" postal cards, photos, brochures, and the like, intones a finding, inter alia, that each "work, taken as a whole, appeals to the prurient interest," Miller v. California, 413 U.S. 15, 24, 93 S. Ct. 2607, 2615, 37 L. Ed. 2d 419 (1973), and sustains the Government's complaint.

 In the extraordinary case now before the court, for reasons that may include at least some suited to our Bicentennial Year, the 29-year-old claimant hied himself here from Lancaster, Pennsylvania, on the appointed day and demanded delivery of the magazine intercepted on its way to him from a friend in Germay. Appearing pro se and waiving a jury, he presented the few undisputed facts which are now found to raise issues of some consequence. At the court's suggestion, he thereafter procured some assistance from an attorney in Lancaster for the writing of a brief. The proceedings became prolonged, mostly because of delays incurred in plaintiff's and the court's work, government counsel having been diligent, prompt, and helpful throughout. Because both sides were interested in a reasonably deliberate decision, the usual requirement of speed in such matters was waived. *fn4"

 I

 Claimant attacks at the threshold the opening by Customs agents of his "first-class mail" *fn5" without prior judicial approval. Government counsel duly informs us that the Court of Appeals for the District of Columbia Circuit has lately issued a powerful opinion, though over a dissent, outlawing warrantless searches by Customs agents of letter-class mail arriving from abroad. United States v. Ramsey, 176 U.S.App.D.C. 67, 538 F.2d 415 (1976). As that Court observes, especially tellingly in the climate of our times, the values of both the First and the Fourth Amendments are implicated in troublesome fashion by the unchecked practice of border agents in opening letters as well as packages mailed here from overseas.

 On the other hand, until that recent decision, a substantial body of federal authority stood for a contrary view. The courts considering the issue had held that the standard, if it could be called that, for opening foreign mail is that of a border search. See, e.g., United States v. Doe, 472 F.2d 982 (2d Cir.), cert. denied, 411 U.S. 969, 93 S. Ct. 2160, 36 L. Ed. 2d 691 (1973); United States v. Beckley, 335 F.2d 86 (6th Cir. 1964), cert. denied, 380 U.S. 922, 85 S. Ct. 921, 13 L. Ed. 2d 807 (1965); Hogan v. Nebraska, 402 F. Supp. 812 (D.Neb.1975); United States v. Various Articles of Obscene Merchandise, Schedule No. 896, 363 F. Supp. 165 (S.D.N.Y.1973).That view has been applied to letters coming from abroad. United States v. Bolin, 514 F.2d 554 (7th Cir. 1975); United States v. Barclift, 514 F.2d 1073 (9th Cir.), cert. denied, 423 U.S. 842, 96 S. Ct. 76, 46 L. Ed. 2d 63 (1975). Although our Circuit has not specifically applied this holding to letter-class foreign mail, there has been dictum at the Circuit level and a holding of this court in line with the weight of precedent. See United States v. Doe, supra, at 984-985; United States v. Swede, 326 F. Supp. 533 (S.D.N.Y.1971).

 The broad question may be destined for resolution soon by the Supreme Court; the Government is seeking certiorari in United States v. Ramsey, supra. As with other issues in the instant case, the claimant's limited resources have afforded less than the intensive briefing the court would desire on this one. Our factual record is sketchy and far from ideal. This court is not prepared, in all candor, to add to the pertinent learning in the decisions of higher courts. In the circumstances, and since the claimant is hereinafter held to prevail on the more central and specific questions of this case relating to the receipt of allegedly obscene materials, the general propriety of opening letter-class mail from abroad may be bypassed at this level for present purposes.

 II.

 We come to the question of the applicable standard for determining obscenity, and whether the Government has sustained its burden of proof in this aspect.

 In a forfeiture proceeding under 19 U.S.C. § 1305(a), it is the Government's burden to prove by a preponderance of the evidence that the detained material is obscene. See United States v. One Reel of 35mm Color Motion Picture Film Entitled "Sinderella," Sherpix, Inc., 369 F. Supp. 1082, 1084 (E.D.N.Y.1972), aff'd, 491 F.2d 956 (2d Cir. 1974); United States v. One Carton Positive Motion Picture Film Entitled "Technique of Physical Love," 314 F. Supp. 1334, 1335 (E.D.La.1970). While that burden remains undischarged, the matter is presumptively embraced by the First Amendment. Before deciding whether the Government has satisfied its burden here, two threshold issues must be resolved: (A) which community's standards are to be applied in making the obscenity determination, and (B) if the applicable standards are not those prevailing in this judicial district, whether this court or a jury drawn from this district should make the requisite finding.

 A. Applicable Community Standard

 The claimant, among his other interesting attributes, was once a member of the Lancaster Mayor's Committee on Community Standards on Pornography. Whatever New Yorkers may prefer to believe, secretly or otherwise, he presented substantial (and uncontradicted) evidence that the community standard defining obscenity in Lancaster is far more stringent, i.e., libertarian, than that in New York. Under Lancaster's standards, it seems that nothing is to be outlawed as obscene that is (1) viewed by an adult in private and (2) not offered or purveyed to children. *fn6" Thus, while this court - bound in time and place and person - might conclude that no American jury could find the material in question other than obscene, that is scarcely a permissible mode of disposition under the precedents. The question of obscenity vel non, once the constitutional threshold is passed, *fn7" is one of fact, to be answered by local community standards. *fn8" See Miller v. California, 413 U.S. 15, 30, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973); Jenkins v. Georgia, 418 U.S. 153, 159, 94 S. Ct. 2750, 41 L. Ed. 2d 642 (1974). The diverse and far-flung communities of the United States may set ...


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