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November 28, 1979

UNITED STATES OF AMERICA, Plaintiff, against Various Articles of Obscene Merchandise, Schedule No. 1844, Defendant in Rem.

The opinion of the court was delivered by: LEVAL


This action raises the question whether concededly innocent, non-obscene and inoffensive books and other matter are required to be condemned, forfeited and destroyed if they were imported into the United States in a package together with any obscene article. As surprising as the proposition may seem, the government contends that this conclusion is required by the terms of the act of Congress providing for the forfeiture of obscene matter imported from abroad. Tariff Act of 1930, 19 U.S.C. § 1305 (1978). The government argues that the reviewing judge has no power or discretion to permit the entry into the United States of such inoffensive material or do otherwise than order its destruction upon a finding that upon importation it shared a package with obscene matter.

 The United States brought this action under § 1305 for the forfeiture of various allegedly obscene items which were seized by the Customs Service upon importation through the mails during August of this year. Judgment was entered on Oct. 16, 1979 ordering the forfeiture and destruction of all of the items submitted with the exception of one magazine and two order forms which were enclosed in Lot No. 11100/001. The government then moved for an amendment of the earlier judgment. With respect to the magazine, the government argued that the court erred in failing to find it obscene. As to the two order forms (and the magazine), the government argued that irrespective of their obscene or non-obscene character, they are required to be forfeited under the terms of § 1305 because they were imported in the same package with another magazine which this court determined to be obscene in the October 16 judgment.

 On the return date of the motion, the government advised that it wished to withdraw the part of the motion which challenged the admission of the non-obscene items on the basis of the "same package" theory. When asked at the submission whether this indicated a change of position or simply a decision not to press the issue in this litigation, the Assistant indicated the latter.

 Since the motion addressed to the order forms is withdrawn, I am not required to pass on it. On the other hand, being advised of the government's contention that the statute forbids the entry of inoffensive matter packaged together with the obscene, I must reconsider the legal basis of my earlier judgment.

 Turning first to the government's motion for reconsideration of the obscene character of the magazine, I find on reexamination that the government's position is well taken. I conclude that the magazine flunks all of the tests set forth in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973). Accordingly, it is ordered forfeited and destroyed in accordance with § 1305.

 I now turn to reconsider my judgment on the order forms in the light of the government's reading of the statute. I find no reported decisions in this circuit considering the question. In fact the government points to only one federal court opinion decision on the subject, Judge Sweigert's decision in United States v. 18 Packages of Magazines, 227 F. Supp. 198 (N.D.Cal.1963), which rejected the government's contention. *fn1"

 I find, as did Judge Sweigert, that the government's position is contradicted by the language of the statute, its purpose and its history. The government's interpretation of the statute would also raise serious questions of its compatibility with the first amendment.

 The language of the statute, first of all, seems to command the opposite conclusion. The statute begins by prohibiting the importation of obscene matter. It goes on to state that no obscene articles shall be admitted to entry. The government relies on the next sentence which states that all such obscene articles and (absent special circumstances indicating innocence of the importer) "the entire contents of the package in which such (obscene) articles are contained, shall be subject to seizure and forfeiture as hereinafter provided: . . .." The government apparently contends that those quoted words constitute a command for the forfeiture of the other items enclosed in a package with obscene merchandise. First of all, this argument misreads the language, which merely makes such items "Subject to seizure and forfeiture"; it does not command their forfeiture. More importantly, however, the government's argument overlooks the presence of the words "as hereinafter provided" and the subsequent provisions of the statute. The statute goes on to require the customs office to notify the district attorney who in turn is instructed to institute proceedings in the district court for forfeiture. Finally, the statute states, "Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section." (emphasis supplied) These words seem to me to contemplate an adjudication by the district court as to which of the seized materials are obscene and therefore are to be destroyed, and which of the materials seized are not obscene and therefore "shall not be excluded from entry".

 The collector of customs unquestionably is authorized to detain the entire contents of any package found to contain apparently obscene matter. But it does not follow that the inoffensive contents of the package must be destroyed upon an adjudication that any single item contained is obscene. To the contrary, the statute instructs that each item must be adjudicated on its own merits. See U. S. v. Various Articles of Obscene Merchandise, Schedule No. 1769, 600 F.2d 394, 398-400 (2d Cir. 1979), Aff'g in part and reversing on other grounds, U. S. v. Various Articles, 78 Civ. 4526 (S.D.N.Y.1978).

 To construe the statute in this fashion seems consistent with an apparent logical legislative purpose. Administrative convenience may well justify the temporary detention of an entire package found to contain obscene material without requiring the collector of customs to make an extensive examination justifying the detention of each item found in the package. Such temporary detention to await adjudication is all the more reasonable in the light of the requirement of prompt adjudication commanded by the Supreme Court's decision in United States v. Thirty-seven (37) Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971). A further justification may be in the difficulty for the collector of customs in instances to determine whether the various items in a package are separate and discrete or whether they should be judged together as parts of a single work.

 What valid legislative purpose would be served by the interpretation advanced by the government is difficult to understand. While in other times Congress might have felt that other materials had been contaminated by proximity to the offensive matter, See Tariff Act of 1842, 5 Stat. 566, that is not likely to have been the prevailing notion in 1930. If the provision were thought to have a punitive purpose, as arguably suggested by the exemption for innocent matter where obscene matter was "inclosed . . . without the knowledge or consent of the importer, owner, agent, or consignee" (a provision dating from an 1890 revision, 26 Stat. 615; See U. S. v. 18 Packages, supra, at 206), its operation would be unreasonably arbitrary and capricious. The extent of the penalty would turn capriciously on the manner of packaging; it would not be influenced by degrees of culpability or offensiveness. The arbitrariness is all the more egregious in view of the fact that the statute, as interpreted by the government, would be mandatory and admit of no equitably motivated exercise of discretion by either the judge, the United States Attorney or the collector of customs. *fn2"

 It is arguable, I suppose, that the government's interpretation can be justified by administrative convenience. While it is true that universal destruction would spare not only the collector of customs but also the United States Attorney and the court from the tedious task of separating the offensive from the inoffensive, such a legislative judgment would represent a highly questionable assessment of relative values. Where the offensive matter is packed together with materials of a type which are not entitled to first amendment protection, as where an obscene magazine is packed in a traveler's suitcase together with his clothing, it would seem sufficiently easy to distinguish the obscene from the non-obscene that no substantial administrative convenience would be served by requiring destruction of the suits, shirts, ties and shoes. Where, on the other hand, the obscene literature is packed ...

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