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United States v. Various Articles of Obscene Merchandise

decided: May 25, 1979.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
v.
VARIOUS ARTICLES OF OBSCENE MERCHANDISE, SCHEDULE NO. 1769, DEFENDANTS-APPELLANTS



Appeal by the United States from an order and judgment entered in the United States District Court for the Southern District of New York, Pierre N. Leval, Judge. The district court declined to enter a default judgment against certain allegedly "obscene" articles that had been seized by the government pursuant to § 305 of the Tariff Act of 1930, 19 U.S.C. § 1305(a), and determined that some of the articles were not "patently offensive." These articles were ordered released to their respective addressees. The Court of Appeals vacated the district court's order, affirmed the district court's judgment in part and reversed it in part, and remanded for further proceedings.

Before Lumbard, Feinberg and Meskill, Circuit Judges.

Author: Meskill

This is an appeal by the United States from a judgment entered in the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, after a bench trial, finding certain items seized by the United States Customs Service not legally "obscene" and ordering their release to their respective addressees. For the reasons that follow, we affirm in part and reverse in part and remand to the district court for further proceedings.

Between September 15 and September 21, 1978, the United States Customs Service seized 132 lots of allegedly obscene merchandise from the mail arriving in New York from overseas and five different allegedly obscene 8 mm. films from an arriving passenger at John F. Kennedy International Airport. The seized items were destined for the addresses of well over 100 citizens in twenty-five states and Washington, D.C. The seizure was made pursuant to § 305(a) of the Tariff Act of 1930, 19 U.S.C. § 1305(a). On September 26 a warrant for the arrest of the seized articles was issued by the Clerk of the District Court for the Southern District; the next day the United States Marshal made the arrest.*fn1

On October 5, notice of this action was sent to each addressee. The notice read:

PLEASE TAKE NOTICE that the United States of America has commenced an action for the forfeiture and destruction of the below obscene material seized in New York, New York:

ADDRESSEE: MERCHANDISE:

( )

( )

If you wish to contest the forfeiture and destruction of such merchandise, you have twenty (20) days from the receipt of this notice to file a Claim and Answer with this office. If you wish, you may sign and return the attached form to the undersigned as your Claim and Answer. Failure to file a Claim and Answer will result in the destruction of the merchandise addressed to you.

The form is signed by the United States Attorney and the Assistant United States Attorney assigned to the case.*fn2 The "Claim and Answer" form attached to the notice read:

I hereby file a Claim to the below described merchandise which was addressed to me and which has been seized by the plaintiff pursuant to 19 U.S.C. § 1305:

ADDRESSEE: MERCHANDISE:

( )

( )

For my Answer to Complaint I deny that the merchandise seized is obscene and subject to forfeiture, but admit that the seized merchandise was sought to be imported into the United States through the Port of New York on the date set forth in Schedule "A" of the Complaint and that the merchandise was seized and is now in custody within the Southern District of New York. I demand judgment that the seized merchandise be forwarded to me.

Five persons signed and returned these forms; a sixth person claimed not by form but by letter.*fn3 Either just prior to, or at the same time as, the mailing of these forms, the government apparently also sent to the addressees something it calls an "assent to forfeiture" form.*fn4 At the trial below, the government attorney described this form as one that provides "an opportunity for the addressee to assent to an administrative forfeiture." The form read in relevant part as follows:

Sir: Assent is hereby given to the forfeiture of (the seized articles) now in your custody (and) the subject of your notice dated above. This assent is neither an acknowledgement that the materials being forfeited were solicited nor an admission that it was known that they are obscene.

On November 6 and November 8, notice was sent to the six claimants informing them of the date and time of the proceedings in the district court for the determination of the obscenity of the claimed items.*fn5 This notice read in part:

PLEASE TAKE FURTHER NOTICE that you may appear at the time and place of trial, in person or by an attorney, and contest on any appropriate grounds the right of the United States to seize and forfeit the materials you have claimed in this action. You need not appear, either in person or by attorney, to have the issue of whether or not the goods you have claimed are obscene presented to the Court and you will be advised of the Court's decision when it is rendered.

Trial was held on November 20. The government introduced into evidence all of the seized articles as well as the various items of correspondence sent to or received from the addressees. None of the addressees appeared at trial. During the trial, the government moved for entry of a default judgment against the allegedly obscene articles that were addressed to persons who either had failed to file a Claim and Answer or had filed an "assent to forfeiture." The district court denied the motion, and determined whether each of the Schedule 1769 articles was or was not "obscene." On November 24 the court ordered destroyed those materials portraying children engaged in sexual activity as well as ...


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