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CHERRY v. SECRETARY OF TREASURY OF UNITED STATES

November 9, 1978

Fred CHERRY, Plaintiff,
v.
The SECRETARY OF the TREASURY OF the UNITED STATES, Defendant



CARTER, District Judge.

Plaintiff here challenges the constitutionality of 19 U.S.C. § 1305, both facially and as applied, and seeks to enjoin its enforcement. He claims that this statute, which prohibits the importation of obscene articles into the United States and provides for seizure and forfeiture of such articles, violates the First and Fifth Amendments in that (1) it fails to provide for a change in venue; (2) it allows the government rather than the claimant to retain possession of the seized articles during the pendency of the forfeiture proceedings; and (3) it does not permit the examination of such articles except in the jurisdiction where they are seized.

Background

 The plaintiff, Fred Cherry, has been a party to two other actions regarding similar issues. In United States v. Various Articles of Obscene Merchandise, Schedule 979, 73 Civ. 4146, a three-judge court in this district held that Cherry lacked standing to raise the same constitutional objections that he now advances. In the previous action customs officials had confiscated allegedly obscene material when it was on route to Cherry's Brooklyn address, and the three-judge court found that the absence of a provision permitting a change of venue did not injure Cherry since it merely required him to cross the Brooklyn Bridge from the Eastern District of New York to the Southern District of New York.

 The second case involving Cherry was the forfeiture action which generated the factual basis for the present suit. In United States v. Various Articles of Obscene Merchandise, Schedule 1350, 76 Civ. 791, Cherry contested the seizure of articles addressed to his winter residence in Puerto Rico. Judge Cooper of this court presided over a jury trial at which the materials were found to be obscene. Although Cherry raised his constitutional arguments as affirmative defenses in his answer in the forfeiture action, he did not pursue these contentions and the court made no ruling on them. *fn1" The forfeiture case was not appealed.

 Plaintiff then brought the instant action, seeking to have the statute in question declared unconstitutional. He attempted to overcome his earlier difficulty with standing by pointing to the more recent case where his inability to obtain a change in venue forced him to travel to New York to challenge the confiscation of materials addressed to his home in Puerto Rico. In August of 1976, plaintiff moved pursuant to 28 U.S.C. § 2282 to have a three-judge court hear his constitutional claim. *fn2" This three-judge court was then convened, *fn3" but shortly thereafter Judge Frankel rendered a decision in United States v. Various Articles of Obscene Merchandise, Schedule No. 1303, 433 F.Supp. 1132 (S.D.N.Y.1976), in which he held that the venue provisions of 19 U.S.C. § 1305 violate the First Amendment. Because of the similarity between that case and Mr. Cherry's claims, the instant case was placed on suspense pending the disposition of the government's appeal of Judge Frankel's decision.

 All appeals of Judge Frankel's ruling have now been exhausted, and the instant case may now be removed from the suspense calendar. The parties have agreed that their pleadings and communications with respect to the convening of a three-judge court may be taken as their submissions regarding a dismissal motion by the government. For the reasons set forth below, defendant's motion to dismiss the complaint is granted.

 Venue Provisions

 Plaintiff's first constitutional argument here is identical with that of the claimant in United States v. Various Articles of Obscene Merchandise, Schedule No. 1303, 433 F.Supp. 1132 (S.D.N.Y.1976) (Frankel, J.). *fn4" In that case, Judge Frankel found that the claimant's First Amendment rights were infringed because the fixed venue provisions made the preservation of these rights costly and troublesome. Id. at 1139. Judge Frankel suggested that the constitutionality of the statute as a whole could be preserved if the government notified potential claimants that the forfeiture could be challenged in the district of their residence. Id. at 1139.

 Rather than accept this suggestion the government appealed, and the trial court was reversed. United States v. Various Articles of Obscene Merchandise, Schedule No. 1303, 562 F.2d 185 (2d Cir. 1977). In its opinion the Second Circuit expressed considerable skepticism regarding the wisdom of devoting scarce governmental resources to the interception of supposedly obscene materials mailed from abroad. Id. at 188-89. The court, nevertheless, found that it was Congress' intent to confine venue in such cases to the port of entry where the seizure is made, Id. at 188-89, and that the "plenary power" of Congress with regard to the importation of obscene materials immunizes this provision from constitutional challenge. Id. at 189. The Supreme Court denied certiorari in that case, Sub nom. Long v. United States, 436 U.S. 931, 98 S. Ct. 2831, 56 L. Ed. 2d 776 (1978), and the opinion of the Second Circuit is therefore binding upon this court.

 The disposition by the Second Circuit appears to foreclose two aspects of constitutional arguments advanced by Cherry. Since 19 U.S.C. § 1305 has been held constitutional, Cherry has no general First Amendment claim. Furthermore, to the extent that he contends that the venue provision impairs his ability to prepare for trial by preventing examination of the seized materials outside of New York, the Second Circuit decision upholding fully the fixed venue provision disposes of this claim. *fn5"

 In recent correspondence with this court, plaintiff has asserted that his case should remain on the suspense calendar despite final disposition of the matter that triggered the assignment of this case to limbo. Cherry argues that a recent decision of this court, United States v. Various Articles of Obscene Merchandise, No. 78 Civ. 2475, July 28, 1978 (Leval, J.), alters the substantive standard for obscenity. That case, however, has no effect on plaintiff's present cause of action. Here, Cherry has disavowed any challenge to the substance of the obscenity laws *fn6" and has focused entirely on what he believes to be constitutionally defective procedures in 19 U.S.C. § 1305. Moreover, as to the question of whether the particular items that plaintiff imported were obscene, the determination of the jury in the forfeiture proceedings, No. 76 Civ. 791, is Res judicata. Therefore, plaintiff's constitutional attack on the venue provision is without merit.

 Possession During Pendency of Litigation

 Plaintiff's second argument is grounded in the Fifth Amendment. He contends that retention of the seized articles by the government during the pendency of the forfeiture proceedings constitutes a deprivation of liberty or property without due process. In the abstract, this argument is not without merit where the articles themselves are not hazardous instrumentalities and where the seized materials are easily duplicated so that there is little danger that destruction of the originals would prevent the government from prosecuting its case. However, the decisions of the Supreme Court present the plaintiff with an insurmountable barrier.

 In United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 376, 91 S. Ct. 1400, 1408, 28 L. Ed. 2d 822 (1971), a plurality ...


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