United States v. Lange

• Decision Date: 05 September 1972
• Docket Number: 26505 and 26621.,No. 26478,26478
• Citation: 466 F.2d 1021
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ed LANGE, doing business as Sun West, Defendant-Appellant (two cases). UNITED STATES of America, Plaintiff-Appellee, v. COMMANDER ASSOCIATES, INC., doing business as DSI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

466 F.2d 1021 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Ed LANGE, doing business as Sun West, Defendant-Appellant (two cases).

UNITED STATES of America, Plaintiff-Appellee, v. COMMANDER ASSOCIATES, INC., doing business as DSI, Defendant-Appellant.

Nos. 26478, 26505 and 26621.

United States Court of Appeals, Ninth Circuit.

September 5, 1972.

Peter J. Marx, Stanley Fleishman, Hollywood, Cal., for defendants-appellants.

Robert L. Meyer, U.S. Atty., David H. Anderson, Frederick M. Brosio, Jr., Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Before CHAMBERS, HAMLEY and CHOY, Circuit Judges.

CHOY, Circuit Judge:

These three cases consolidated on appeal involve the procedures whereby dealers in erotic magazines and materials are ordered not to mail such literature to persons who deem them objectionable. Commander Associates, Inc. (Commander) and Ed Lange, doing business as Sun West, Inc. (Sun West), in one of the two cases against him (Sun West, Number One), appeal from summary judgments granted for the government, enforcing Post Office prohibitory orders. In the third case (Sun West, Number Two), Lange appeals from a judgment after trial to a district judge, which enforced similar orders. We affirm the summary judgment against Commander and the judgment against Lange in Sun West, Number Two, on all counts. In Sun West, Number One, we affirm the summary judgment on counts two, four and five and we reverse the other counts.

The statute under which appellants were sued is 39 U.S.C. § 4009, "whereby any householder may insulate himself from advertisements that offer for sale `matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative.' 39 U.S.C. § 4009(a) . . ." Rowan v. United States Post Office Dept., 397 U.S. 728, 730, 90 S.Ct. 1484, 1487, 25 L.Ed.2d 736 (1970). An individual who has received material in the mail, which he believes to be objectionable, may initiate the process by notifying the Post Office that he wishes his name removed from the mailing lists of a specific mailer.

The Post Office then issues a prohibitory order, specifying the name and address of the complainant. The order directs the mailer and his agents or assigns to refrain from making "any further mailings to the designated addressees" and to "delete immediately the names of the designated addressees from all mailing lists owned or controlled" by them. The order also prohibits the sale, rental or exchange of mailing lists which include the complainant's name. The order takes effect thirty days after service upon the mailer. 39 U.S.C. § 4009(c).

If the Post Office learns that the mailer sent a second mailing to the designated addressee after the effective date of the order, the Department notifies the mailer and informs him that he has the right to request an administrative hearing on the matter. 39 U.S.C. § 4009(d). With or without a hearing, if the Post Office determines that a violation of the prohibitory order has occurred, it may request the Attorney General to seek judicial enforcement of the order. 39 U.S.C. § 4009(d). Finally, a third mailing in violation of the judicial decree may result in the exercise of the contempt power of the court. 39 U.S.C. § 4009(e).

In late 1968 and early 1969, several householders complained¹ pursuant to § 4009, that Commander and Sun West had mailed them material which each person determined to be "sexually provocative." There were nine complaints against Sun West, five of which make up Sun West, Number One and four of which are Sun West, Number Two. One complaint is the subject of the case against Commander.

The Post Office issued a prohibitory order for every complaint and served each on Commander and Sun West. Subsequently, the Post Office received further information that second mailings had been received by the complainants. The Post Office informed appellants of the alleged violations and of their right to an administrative hearing. Neither Commander nor Sun West asked for a hearing. The Post Office found that the orders had been violated and requested the Attorney General to seek judicial enforcement of the prohibitory orders.

In all three cases, the government moved for summary judgment based upon supporting documents contained in the administrative files of the Post Office. In Sun West, Number One and the case against Commander, the district judge granted summary judgment for the government. In Sun West, Number Two, the district judge denied summary judgment and at trial, the government's case was based entirely on the administrative files. Over objection by Sun West's counsel that the file contained inadmissible hearsay, the district judge admitted the file as a record prepared in the regular course of a business and rendered judgment for the government.

In all three appeals, Sun West and Commander raise issues which are substantially similar. However, because one of the appeals is from a judgment after trial, the shape of certain issues differs according to the procedural context. Where necessary, this distinction is noted and discussed.

Commander and Sun West attack § 4009 on several constitutional grounds, only two of which merit discussion. First, they argue that the statute is defective because it punishes conduct without requiring that the government prove that the offender knew of and intended to commit the prohibited act; i. e., the statute is defective because it does not require proof of scienter, and thus violates their First Amendment rights of free expression through the mails.

Section 4009 requires the government to prove that the prohibitory order was properly issued in response to a householder's complaint and that a second mailing was made after the grace period of thirty days from the date of service of the order. At this stage of judicial enforcement of the Post Office order, we are not dealing with a criminal sanction. The judicial decree is in the form of a prohibitory injunction, a remedy which is civil in nature.

Therefore, we need not decide the question whether scienter is a necessary element of the government's burden of proof in a contempt action which might be pursued if a third mailing is made in violation of the judicial enforcement decree. The situation now before us does not present this issue.

Appellants' second constitutional contention is that the administrative procedures set up in § 4009 violate due process. An identical argument was rejected by the Supreme Court in Rowan v. United States Post Office Dept., supra, 397 U.S. at 738-739, 90 S.Ct. 1484, where the Court held that the administrative procedures comport with the notice and fair hearing requirements of the Due Process Clause. The actions of the Post Office personnel are merely the predicate for full judicial consideration of the case. Chief Justice Burger, speaking for a court that was unanimous on this point, stated in Rowan:

"It is sufficient that all available defenses, such as proof that no mail was sent, may be presented to a competent tribunal before a contempt finding can be made. See Nickey v. Mississippi, 292 U.S. 393, 396, 54 S.Ct. 743, 78 L.Ed. 1323 (1934)." 397 U.S. at 739, 90 S.Ct. at 1492.

We interpret this to mean that sufficient constitutional safeguards exist under § 4009 because the mailer is entitled to a trial de novo on the factual issues. Rowan v. United States Post Office Dept., supra, 397 U.S. at 739, n. 6, 90 S.Ct. 1484; cf. Rowan v. United States Post Office Dept., 300 F.Supp. 1036, 1046 (C.D.Cal.1969) (three judge court) (Hufstedler, J., specially concurring).

Aside from constitutional ramifications, the administrative process under § 4009 raises issues which require close scrutiny. The administrative files constitute the entire evidence in all three cases against Commander and Sun West. For the summary judgments against Commander and Sun West, Number One, the issue is whether the administrative files present uncontradicted evidence that there were no genuine issues of fact. In the case of Sun West, Number Two, the issue is whether the administrative files contain evidence which is sufficient to support a judgment for the government.

Before examining the specifics of each complaint, we must consider the contention made in all three appeals that the administrative files contain inadmissible hearsay. The standard of review on this issue is the same in all three cases.²

There are two types of hearsay in the administrative files. First are markings, notations and memoranda by Post Office personnel describing their own actions, which are clearly within both the business records and the governmental documents exceptions to the hearsay rule. La Porte v. United States, 300 F.2d 878, 880 (9th Cir.1962).

The second type of hearsay consists of householders' statements about mail from Commander and Sun West: initial complaints filled out on Post Office forms (with the advertisements attached) and letters or forms informing the Post Office that second mailings had been received after the prohibitory order. These parts of the files present an issue of first impression for this circuit: Are statements made by private citizens to administrative personnel within the business records exception to the hearsay rule? We hold that, on the facts of these cases, the statements are admissible.

The business records exception requires that the particular record must have been "made in regular course of any business" and that it was "the regular course of such business to make such memorandum or record . . ." 28 U.S.C. § 1732. In deciding whether these elements are present in the instant case, it is relevant to examine the "content and method of preparation of the document sought to be introduced." La Porte v. United States, supra, 300 F.2d at 880. See 1 Wigmore on Evidence (3d ed. 1940) § 8a, pp. 248, 249.

Taking first the initial complaints by the private householders, it is apparent that the...