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United States v. Various Articles of Obscene Merchandise

decided: September 15, 1977.


Appeal by the United States from the dismissal, by the United States District Court for the Southern District of New York, Honorable Marvin E. Frankel, Judge, of a complaint for the forfeiture and destruction, pursuant to 19 U.S.C. § 1305, of certain allegedly obscene material imported from abroad.

Moore, Smith and Mulligan, Circuit Judges.

Author: Moore

MOORE, Circuit Judge:

The Congress, obviously believing that it was reflecting the opinion of its collective constituencies throughout the Nation, has enacted a statute under the title of "Immoral articles; importation prohibited". 19 U.S.C. § 1305. Listed under (a) thereof is a curious assortment of immoral articles, e.g., those writings "advocating or urging treason or insurrection against the United States"; obscene publications; drugs for causing unlawful abortions; and lottery tickets. Entry of such articles into the United States is prohibited. The entire contents of any package containing a prohibited article are subject to confiscation "unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles contained in the package were inclosed therein without the knowledge or consent of the . . . . consignee . . . ." Additional censorship beyond some employee of the customs office is granted to the Secretary of the Treasury, who when not engaged in the fiscal affairs of the Nation may, in his discretion, read the books declared by customs to be obscene to decide whether they are "classics or books of recognized and established literary or scientific merit". If he so finds, he may admit them as long as they are only imported for "noncommercial purposes".

The procedure prescribed is equally interesting. The customs employee is directed to seize the in-his-opinion offending article to wait the judgment of a district court thereon. To this end, the customs employee must transmit the article "to the district attorney of the district in which is situated the office at which such seizure has taken place", and he, undoubtedly through one of his assistants, "shall institute proceedings in the district court" for the confiscation and destruction of the matter seized.

Some Assistant United States Attorney prepares a complaint whereby he demands judgment that the article is obscene and declares that he wants it destroyed. He attaches a schedule of all seized items (usually a week's collection) and prays that all interested persons be duly cited to answer. To all addressees he then sends a notice, giving them 20 days in which to file a claim, together with a form for such claim and answer. Upon receipt of such claims, if any, the matter is set for a so-called hearing before a District Judge. The notice to the addressees does not appear to advise them of their right to a trial by jury, but this right can be claimed.

The institution of court proceedings adds to the two primary censors, the customs employee and the Assistant United States Attorney, a District Judge and, potentially, three Court of Appeals Judges and nine Supreme Court Justices.

Against this procedural background, we turn to the facts of the case before us.*fn1 A young factory worker, a resident of Lancaster, Pennsylvania, had a friend in Germany who, knowing of the American's interest in matters pornographic, sent him, unsolicited, the pamphlet seized by customs (hereinafter referred to as Exhibit 8). Exhibit 8 consists of a dozen or more pages, in color, of a young man and two young women, in varying combinations, engaged in diverse postures of sexual acts. To avoid offending readers by using the English equivalents, the courts generally describe some of the acts by the Latin words fellatio and cunnilingus -- testimony to the fact that the Romans, as undoubtedly the Greeks, Egyptians and Assyrians before them, were quite familiar with these practices.*fn2 Since the customs officer did not inquire whether Exhibit 8 was shipped without the knowledge or consent of the consignee, we will assume that he would at least have been a willing recipient. Indeed, the young man from Lancaster later testified that he found the pictures of the type in Exhibit 8 more "entertaining" than watching football or baseball games. App. at 147-48.

Not surprisingly, Exhibit 8 was seized by the customs officer at the port of entry, namely, New York City. It was one magazine among a large number (over 500) of printed articles seized by customs officials at the time, all of which were listed in the same complaint filed in the district court. Schedule 1303, attached to the complaint and listing the articles seized as well as the mailing destinations, includes some 573 addressees located in some 48 states. Of the 50 states, only 2, Colorado and North Dakota, failed to have residents exhibiting some "prurient interest", or at least curiosity. Most of the items seized were listed only as "Illustrated Advertising". The titles of the other so-called magazines were "Weekend Sex", "Nympho", "Children Love", "Anal Sex", "Sexual Positions", and similar designations.

The addressees were duly notified of the seizure of their intended materials. A few of the comments made by those who replied are interesting: "I intend to fight for my right to choose my own reading material without Government censorship"; "I resent that anyone is censoring my mail . . . ." App. at 81, 97.

Of the 573 addressees, only 14 filed claims seeking release of the materials addressed to them. None of these fourteen were residents of the Southern District of New York. And only a doctor in California successfully convinced the Government to release the material addressed to him. He was the recipient of 19 magazines, including "Sex Art", "Nympho", and others. The Assistant United States Attorney apparently singled him out to inquire whether the 19 magazines were ordered "solely in connection with your medical practice". The doctor, a specialist in Obstetrics and Gynecology, replied that he had ordered the magazines "solely in connection with my gynecological practice . . . . to see if they would be useful in counseling patients with sexual problems". He did not foreclose the possibility that he might "personally become titillated if [he] should look at these representations", App. at 95, but his reasoning apparently satisfied the censors and he received his magazines. It may be asked why a diplomate in his field would need the 19 magazines when his lack of knowledge might have been remedied by the Kama Sutra or The Joy of Sex, which has been on The New York Times list of best sellers for months.

At the trial, only the Lancaster claimant, pro se, and an Assistant United States Attorney appeared. The claimant testified that the Mayor of Lancaster, not knowing precisely how to formulate a local policy regarding pornography after then-recent Supreme Court decisions [presumably Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973), and related cases], had "selected some citizens to try and formulate some sort of basis to go on of what the city should do dealing with obscene material". App. at 148. The claimant was himself a member of the resulting Lancaster Advisory Committee on Community Standards on Pornography. He produced a copy of a Lancaster newspaper which purportedly summarized the Committee's conclusion that "since [Lancaster] has tolerated restricted and X-rated movies to be shown, community standards have been acknowledged". The Committee recommended an end to all controls on pornography except where children were involved. App. at 148-49; Exhibit A.*fn3

Asked by the Court whether he desired to state his position, the claimant made one final comment, revealing rather sagacious consideration of the problem, saying "that it seems unusual for the United States Government to spend an awful lot of time and money and effort for one small mail article . . . . when there is obviously better use for that money to be spent in the judicial system . . . ." App. at 154. He then added that similar matter was available in New York and anywhere else in the country, a fact of which the Court could fairly have taken judicial notice.*fn4

The District Court, during the hearing, stated that "the interest of justice would be better served by a lawyer's presentation on both sides rather than your [claimant's] handling this for yourself as a layman" and suggested that claimant seek assistance from the American Civil Liberties Union (ACLU) or a member of a law faculty. App. at 157. With the same enterprise shown by his coming to New York to make his claim, the claimant has obtained aid from both. Thus, the District Court had the benefit of legal representation of ...

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