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UNITED STATES v. VARIOUS ARTICLES OF OBSCENE MERCH

September 18, 1981

UNITED STATES of America, Plaintiff,
v.
VARIOUS ARTICLES OF OBSCENE MERCHANDISE, SCHEDULE NO. 2098, Defendant



The opinion of the court was delivered by: HAIGHT

MEMORANDUM OPINION AND ORDER

The United States commenced this action pursuant to 19 U.S.C. § 1305(a) for the forfeiture and condemnation of various articles of allegedly obscene merchandise. The items in question, seized by authorized agents of the United States Customs Service at the time of the items' attempted importation into the United States at the port of New York, are listed in the schedule appended to this opinion as Appendix A. A warrant of arrest, notices of the pendency of the action, and notices of trial were duly sent to the several addressees. All procedural requirements have been complied with. One claimant appeared and gave testimony. He is Major Anthony Dowd, United States Air Force, the addressee of the twelve video cassettes which comprise seizure no. 06977/011 in the attached schedule.

 The items listed in the schedule were seized, and forfeiture is demanded, pursuant to 19 U.S.C. § 1305(a), which provides in relevant part:

 
"All persons are prohibited from importing into the United States from any foreign country ... any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material ... or other article which is obscene or immoral.... No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles ... were inclosed therein without the knowledge or consent of the importer ..., the entire contents of the package ... shall be subject to seizure and forfeiture...."

 While books, magazines and motion pictures enjoy First Amendment protection, if they contain material that is obscene in the constitutional sense they may be regulated by government, even to the extent of destruction, without offending constitutional guarantees. United States v. Various Articles of Obscene Merchandise, Schedule No. 1769, 600 F.2d 394, 402 (2d Cir. 1979), and cases cited. 19 U.S.C. § 1305(a) may be constitutionally applied to obscene materials sought to be imported for commercial dissemination, United States v. Thirty-Seven (37) Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971), and to such materials intended only for the importer's private, personal use and possession, United States v. 12 200-Ft. Reels of Super 8MM. Film, 413 U.S. 123, 93 S. Ct. 2665, 37 L. Ed. 2d 500 (1973).

 In Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), the Supreme Court articulated the guidelines by which state authorities may constitutionally proscribe obscene materials. The Miller definitions also control proceedings under § 1305(a). Schedule No. 1769, supra, at 401-02. Miller states:

 
"The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, supra, at 230, quoting Roth v. United States, supra, at 489; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct...; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." 413 U.S. at 24, 93 S. Ct. at 2615.

 Miller also gives examples of what may constitutionally be regarded as obscene:

 
"(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
 
"(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals." Id. at 25.

 The community standards to be applied are those pertaining at the port of entry, not those of the addressee's residence. United States v. Various Articles of Obscene Merchandise, Schedule No. 1303, 562 F.2d 185 (2d Cir. 1977). In the absence of a jury demand, the trial judge determines the "community standards" of the forum, considering as best he or she can "the entire community and not simply their own subjective reactions, or the reactions of a sensitive or of a callous minority," Schedule No. 1303, supra, at 192 (Mulligan, J., concurring and quoting Smith v. United States, 431 U.S. 291, 305, 97 S. Ct. 1756, 1766, 52 L. Ed. 2d 324 (1977)). The judge must make that determination with respect to each seized item, whether the particular addressee has filed a formal claim or defaulted. Schedule No. 1769, supra, at 398-400.

 Each of the items covered by the first ten seizure numbers (06977/001 through 010, listed on page 1 of Appendix A) is obscene within the definition of Miller v. California, supra. Their forfeiture and condemnation will be directed.

 The twelve video cassettes listed under seizure no. 06977/011 (page 2 of Appendix A), claimed by Major Dowd, present a somewhat more complicated situation.

 Major Dowd testified, and I find, that while he was stationed with the Air Force in Germany, he was president of the local video tape club. The video taping of movies was a popular hobby among United States forces stationed overseas, owing to the lack of American television. The club purchased a number of video tapes by mail from the United States, and made them available to club members. At the conclusion of his four-year tour of duty in Germany, Major Dowd taped approximately 500 movies, and mailed them to himself in New Jersey. The majority of these movies were, in the claimant's phrase, "family type films." They were not seized by the customs authorities. Only those cassettes referred to in the attached Appendix were seized. *fn1" ...


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