United States v. 50 MAGAZINES

• Decision Date: 24 February 1971
• Docket Number: 4507.,Civ. A. No. 4411
• Citation: 323 F. Supp. 395
• Parties: UNITED STATES of America v. 50 MAGAZINES, located on the premises known as 1 Pomfret Street, Providence, Rhode Island, being a certain three-story brick commercial building in the District of Rhode Island. UNITED STATES of America v. NINE (9) CARTONS OF PRINTED MATTER located on the premises known as 77 Coggeshall Street, Providence, Rhode Island.
• Court: U.S. District Court — District of Rhode Island

323 F. Supp. 395

UNITED STATES of America

v.

50 MAGAZINES, located on the premises known as 1 Pomfret Street, Providence, Rhode Island, being a certain three-story brick commercial building in the District of Rhode Island.

UNITED STATES of America v. NINE (9) CARTONS OF PRINTED MATTER located on the premises known as 77 Coggeshall Street, Providence, Rhode Island.

Civ. A. Nos. 4411, 4507.

United States District Court, D. Rhode Island.

February 24, 1971.

Lincoln C. Almond, U. S. Atty., and Joseph C. Johnston, Jr., Asst. U. S. Atty., Providence, R. I., for plaintiff.

Leonard Kamaras, Providence, R. I., for defendants.

OPINION

PETTINE, District Judge.

These cases rest upon a determination of the constitutionality of the procedures employed by petitioner in bringing the allegedly obscene magazines and books in question before this Court. The novelty of those procedures justifies their detailed consideration.

FINDINGS OF FACT

50 MAGAZINES

On September 15, 1970, petitioner made application for a warrant to search the premises of Imperial Distributors, Inc., located at 1 Pomfret Street, Providence, Rhode Island, wherein the respondent 50 magazines were alleged to be located, and seize said magazines, together with all documents relating to their purchase. The magazines were specifically identified by title in the warrant.

An affidavit in support of the application was submitted by one Frank A. Allain, a postal inspector whose duties included investigation of obscene matter transmitted through the United States mails. The affidavit recited that Mr. Allain had been shown a parcel containing the 50 magazines named in the warrant, which parcel was addressed to Imperial Distributors and bore a return asdress of "Henry Roberts, Vendesgade 25, Copenhagen, Denmark." He stated therein that "the magazines consist mainly of pictures of nude men and women performing various sex acts, group sex acts, men performing homosexual sex acts, or poses of men and/or women which emphasize the genital areas."

Attached to the affidavit was an order blank bearing the return address of "Sct. Claus, Box 46, DK-2620, Albertsland, Denmark," and a circular containing illustrations from what appeared to be some 80 or more magazines and films offered by "Sct. Claus." The affidavit set forth the following connection between the respondent 50 magazines on the one hand and the order blank and circular on the other: 1) 4 of the magazines whose front page is featured in the circular are among the 50 in the parcel sent to Imperial Distributors; and 2) Mr. Allain's experience as a Postal Inspector gave him reason to believe that it was the usual practice for circulars to be sent out along with order forms by Danish and Swedish firms distributing magazines of this nature, and that shipment was made only following receipt of payment. He therefore asserted in the affidavit that he had reason to believe that a circular offering the 50 magazines here in question, as well as a cancelled check or money order receipt representing payment therefor, were located on the premises of Imperial Distributors.

Simultaneous with the application for the search warrant, petitioner filed a petition for an order to show cause why a seizure of the magazines recited in the search warrant should not be executed, the petition alleging that the magazines were delivered though the mails in violation of 18 U.S.C. § 1461,¹ and that they were subject to forfeiture both under 18 U.S.C. § 1465² and 19 U.S.C. § 1305.³ In support of these contentions, the petition alleged that a Customs Segregator, one John Skerry, had opened the package containing the magazines, had inspected them and had found them to contain "* * * photographs of men and women in various states of undress and performing various sexual acts, both homosexual and heterosexual."

Following an ex parte hearing at which the Court made it clear that it was authorizing merely a search of the premises of Imperial Distributors and not a seizure of the magazines, the Court signed the search warrant and granted the order to show cause, directed at the "distributors and sellers and all other persons interested in the sale or commercial distribution of the material as described." The search was conducted on September 15, 1970, during the course of which the package of 50 magazines was located, unopened, on the premises of Imperial Distributors. A further thorough search of the office turned up brochures and letters which Mr. Allain stated, in an affidavit of execution of the search warrant filed with this Court on September 21, 1970, related to the purchase of the magazines here in question. Although the search apparently was conducted in literal compliance with this Court's authorization of a search warrant only, it appears that Mr. Allain conducted the search attendant with members of the City's police department who seized virtually everything else in the store other than these 50 magazines, leaving intact only that parcel.

On September 16, 1970, petitioner served a subpoena duces tecum upon "the duly authorized officer or agent of Imperial Distributors" (hereinafter, claimants), ordering him to testify before this Court and to bring with him the brochures and letters set forth in the affidavit of execution of the search warrant.

On September 21, 1970, the Court held a hearing upon the show cause order at which both petitioner and claimants were represented by counsel. At that time, the Court heard testimony upon claimants' contention that no probable cause existed for the search, and after full consideration of the facts of this case and of the applicable law, ruled that probable cause had, indeed, been demonstrated for the search. During the course of the hearing, the package containing 50 magazines, which claimants had brought with them pursuant to the subpoena, was marked for identification, but was never introduced into evidence by claimants. At that time this Court inquired of counsel how it was to make a determination of obscenity prior to seizure, if any, without the magazines being offered into evidence. Petitioner argued that since this was an in rem action, the magazine themselves were a party before this Court, and thus the Court could examine them without their formal introduction into evidence. Claimants evaded this practical aspect of the instant case. Neither party has offered any authority on this point, either at the hearing, or in briefs which they filed subsequently with this Court.

9 CARTONS OF BOOKS

The procedural devices employed in the earlier action were used as a model for instituting this suit. The following factual differences exist, however: in this case, the affidavit presented in support of a search warrant was that of an F.B.I. Agent, one John Sullivan. It stated that on Tuesday, January 12, 1971, he was informed by one John Wood, an Air Freight Supervisor for American Airlines, that nine cartons of books had arrived in Boston, having been shipped from Los Angeles and destined for a Providence addressee. The affidavit further stated that a carton was broken open during handling, bringing the contents to the attention of Mr. Wood, who at some subsequent time gave three books from the shipment to Agent Sullivan.

At the hearing upon the order to show cause, however, a substantially different picture of the events leading up to Agent Sullivan's obtaining the three items emerged. Mr. Wood testified that two cartons were damaged during shipment. On one carton, the two steel bands of the type which surrounded the other eight cartons were completely missing and the sealing tape had been split open, allowing the flaps of the box to be raised without resistance. A second carton was badly crushed, according to Mr. Wood, apparently in such a way as to similarly allow access to the contents. In neither damaged box were the contents exposed, and only by lifting the flaps of the cartons could one determine the contents thereof. Mr. Wood testified that the airline being liable for lost or damaged goods, he pulled open the flaps of the damaged cartons to determine whether they were full (there being further testimony that no bill of lading accompanied this shipment).

It further appeared from Mr. Wood's testimony that he made a cursory examination of one or two magazines in the damaged cartons, and since "everything he had read and heard about this type of material" alerted him to contact the F.B.I., he requested Agent Sullivan to come to the airport in order to look over this "pornography." Though there is conflicting testimony on this point, I credit Mr. Wood's initial recollection and find as a fact that, before the arrival of Agent Sullivan and another F.B.I. Agent, he resealed the damaged cartons and then reopened them after their arrival to remove the three specimen items. The testimony is uncontroverted that Agent Sullivan personally removed at least two of the three items, and as to the third it is not material to the issue herein who actually removed it, since I find as a fact from the conflicting testimony that the cartons were opened and material taken out of each in the presence of the F.B.I. Agent. I simply find unconvincing the testimony regarding a mysterious envelope in which Mr. Wood, acting entirely on his own, assertedly set aside one of the items here in question, before Agent Sullivan's arrival.

The 9 cartons contained about one hundred copies each of just three different publications, and the government agent took a single copy of each title.

The petition for an order to show cause alleged, as the sole jurisdictional basis for this seizure, 18 U.S.C. § 1465, in that the books in question are "obscene, lewd, lascivious and filthy, and have been knowingly transported in interstate commerce."

A subpoena duces tecum was not issued in this case (apparently because Agent Sullivan already had in his possession a single copy of each title comprising the 9-carton shipment)....