230 F.3d 649 (3rd Cir. 2000), 00-5124, United States v Schedule No. 287 Alessandra's Smile

Docket Nº:00-5124
Citation:230 F.3d 649
Case Date:October 23, 2000
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 649

230 F.3d 649 (3rd Cir. 2000)





No. 00-5124

United States Court of Appeals, Third Circuit

October 23, 2000

Argued: Friday, September 22, 2000

On Appeal from the United States District Court for the District of New Jersey, D.C. Civ. No. 98-01559, District Judge: Honorable Joseph A. Greenaway

Page 650

[Copyrighted Material Omitted]

Page 651

Counsel for Appellant: Eugene B. Nathanson (Argued) 305 Broadway, Suite 200 New York, New York 10007 Counsel for Appellee:

Robert J. Cleary United States Attorney Steven D'Alessandro (Argued) Special Assistant U.S. Attorney Office of the United States Attorney 970 Broad Street, Room 700 Newark, New Jersey 07102

Before: Sloviter, Scirica and Garth, Circuit Judges


Garth, Circuit Judge

This appeal concerns 264 nudist magazines that were imported to the United States from France and Germany. The issue on appeal is whether those magazines are obscene and are therefore subject to seizure and forfeiture under 19 U.S.C. S 1305. The District Court found that the magazines were obscene and ordered their forfeiture. We hold otherwise and, therefore, reverse.


On March 25, 1998, at the Customs international Mail Facility in Jersey City, New Jersey, United States Customs Inspector Robert Maloney ("Inspector Maloney") discovered a shipment of two large boxes addressed to Alessandra's Smile, 625 Broadway 7D, New York, New York, 10012. Inspector Maloney opened the packages and examined their contents. The contents of the boxes included, inter alia, 264 magazines, all entitled either Jeunes et Naturels or Jung und Frei (the "magazines"). The magazines, which are either in French or German, are devoted to nudists' lifestyles. All of the magazines contain numerous photographs of nude persons, including adult males and females as well as nude minors and nude teenagers.

Subsequent to Inspector Maloney's discovery, Special Assistant United States Attorney Steven L. D'Alessandro of the United States Attorney's Office for the District of New Jersey examined the magazines and determined that all 264 magazines were obscene. The magazines were then seized pursuant to 19 U.S.C. S 1305(a), which prohibits importation into the United States from a foreign country of "any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing,[etc.]" and subjects such articles to seizure and forfeiture.

The Government filed a Verified Complaint in the United States District Court for the District of New Jersey on April 7, 1998, alleging that the content of the magazines is obscene and that, therefore, the magazines are subject to seizure and forfeiture under 19 U.S.C. S 1305. Appellant Alessandra's Smile, Inc. ("Alessandra's Smile") filed a Verified Answer with the Clerk of the Court on March 17, 1999 and a claim for the return of its property.

On February 23, 1999, the parties stipulated to all the relevant facts but, without waiving their rights to appeal, left open for ultimate determination whether the seized materials were obscene. They also consented to the District Court entering a judgment without a hearing after the District Court had ruled. The parties agreed that the following books are regularly available for purchase within the jurisdiction of the United States District Court for the District of New Jersey: David Hamilton, The Age of Innocence; David Hamilton, Twenty-Five Years of an Artist; and Radiant Identities, Photographs by Jock Sturges. In addition, it is undisputed that Naturally Nude Recreation Magazine ("Naturally"), published by Naturally Nude Recreation, located in Newfoundland, New Jersey, is distributed within the jurisdiction of the United States District Court for the District of New Jersey.

The District Court entered an Order on December 30, 1999 stating that "the materials subject to the claim of Alessandra are obscene and were imported in violation of 19 U.S.C. S 1305 and shall be forfeited to the Government and destroyed." The District Court issued an Opinion supplementing

Page 652

the Order on February 22, 2000, in which the District Court discussed each prong of the obscenity test announced in Miller v. California, 413 U.S. 15 (1973), and determined that the magazines met all three prongs of the test. Alessandra's Smile filed a timely Notice of Appeal on February 24, 2000.


Under Miller, "[t]he basic guidelines for the trier of fact" to determine whether a work is obscene and, therefore, subject to state regulation, are as follows:

(a) whether "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Miller v. California, 413 U.S. 15, 24 (1973) (internal citations omitted). We agree with the Second Circuit that all three prongs of the Miller test must be satisfied for a work to be found obscene. See United States v. Various Articles of Obscene Merchandise, Schedule No. 2102, 709 F.2d 132, 135 (2d Cir. 1983).

The first question we must answer is, what is our standard of review of the District Court's order?

In Bose Corporation v. Consumers Union of United States, Inc., the Supreme Court stated that "in cases raising First Amendment issues we have repeatedly held that an appellate court has an obligation to `make an independent examination of the whole record' in order to make sure that `the judgment does not constitute a forbidden intrusion on the field of free expression.' " 466 U.S. 485, 499 (1984). Therefore, though Rule 52(a) of the Federal Rules of Civil Procedure and, indeed, the Supreme Court and our own jurisprudence, see, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 287 (1982); Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 749 (3d Cir. 1990), instruct that a District Court's findings of fact "shall not be set aside unless clearly erroneous," Fed.R.Civ.P. 52(a), "[i]n [obscenity] cases, the Court has regularly conducted an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited." Bose Corp., 466 U.S. at 505.

In other words, when the fact finder, judge or jury, applies the Miller guidelines and determines that material is obscene, the appellate court must review the record independently to ensure that the determination does not violate the First Amendment. In conducting its independent review of a fact finder's determination of obscenity, an appellate court may not reverse the determination because it might have decided the case differently, as long as the determination of obscenity does not violate the First Amendment. As the Court observed in Miller,"[t]he mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged." 413 U.S. 15, 26 n.9 (1973). Therefore, we are obliged to review independently the record to determine whether the District Court curtailed protected speech in its determination that the magazines were obscene.1

Page 653

As we have stated, Bose Corp. established that appellate courts must conduct independent review of fact finders' determinations of obscenity to evaluate whether the determinations violate the First Amendment. However, the Court has not made clear precisely how this independent review applies to the three prongs of the Miller test. In Miller, the Court characterized parts (a) and (b) of the test as "essentially questions of fact." 413 U.S. at 30. However, in Jenkins v. Georgia, the Supreme Court read Miller to hold that part (b) of the Miller formula is nevertheless subject...

To continue reading