Alexander v. Thornburgh, Civ. No. 4-88-526.

Decision Date05 May 1989
Docket NumberCiv. No. 4-88-526.
Citation713 F. Supp. 1278
PartiesFerris J. ALEXANDER, Plaintiff, v. Richard THORNBURGH, in his official capacity only as Attorney General of the United States, Defendant.
CourtU.S. District Court — District of Minnesota




Randall D.B. Tigue, Minneapolis, Minn., for plaintiff.

Jerome G. Arnold, U.S. Atty., Mary E. Carlson, Asst. U.S. Atty., Minneapolis, Minn., for defendant.


DOTY, District Judge.

Plaintiff Ferris Alexander commenced this action seeking a declaration that certain provisions of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 90 Stat. 2143 (codified in scattered sections of 18, 21, 28, 29, 31 and 42 U.S.C.) ("CCCA"), are repugnant to the United States Constitution, and requesting an order permanently enjoining enforcement of the provisions in question. Three chapters of the CCCA provide the basis for plaintiff's constitutional challenge. First, plaintiff challenges those portions of the CCCA which amended the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. ("RICO") by adding state and federal offenses involving obscenity to the definition of "racketeering activity" contained in 18 U.S.C. § 1961(1). Second, he challenges the application of those portions of the CCCA establishing the Bail Reform Act of 1984, 18 U.S.C. §§ 3141 et seq., when the underlying offense consists of a violation of obscenity laws or of RICO when there are not two or more predicate offenses unrelated to obscenity. Third, plaintiff challenges those portions of the CCCA which establish the Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3673 and 28 U.S.C. § 991-98, and authorize the promulgation of the Sentencing Guidelines. According to plaintiff, the Sentencing Reform Act of 1984 is unconstitutional to the extent that it applies to obscenity offenses or RICO offenses when there are not at least two predicate offenses unrelated to obscenity.

Previously, defendant moved for an order preliminarily enjoining enforcement of RICO when there were not two or more predicate offenses unrelated to obscenity.1 That motion was denied. This matter is presently before the Court upon defendant's motion to dismiss and for summary judgment. The Court will grant those motions.


For many years, plaintiff has engaged in the purchase and sale of books, magazines, films and videotapes. Some of the materials purchased and sold are sexually explicit. On May 10 and 11, 1988, FBI and IRS agents executed search warrants at 23 bookstores, video outlets and theaters located in Minneapolis, St. Paul, Rochester, Winona and Duluth, Minnesota. Many of the bookstores, theaters and video outlets were owned by the plaintiff. Pursuant to the warrant, the agents confiscated three copies of allegedly obscene materials, including videotapes and magazines. Plaintiff further alleges that several of the employees have been subpoenaed by a federal grand jury.

Based upon the execution of these search warrants and the issuance of the grand jury subpoenas, plaintiff has concluded, and asserts here, that the United States intends to seek an indictment against him under obscenity and RICO statutes. Plaintiff has sought to restrain enforcement of the provisions in question, contending that they are vague and overbroad; constitute an unconstitutional prior restraint on presumptively protected speech; unconstitutionally chill protected speech; and authorize cruel and unusual punishment in violation of the eighth amendment to the United States Constitution.


Under RICO it is unlawful for any person to: invest income received from a pattern of racketeering activity in an enterprise engaged in interstate commerce; acquire an interest in an enterprise through a pattern of racketeering activity; or conduct the affairs of an enterprise through a pattern of racketeering activity. 18 U.S.C. § 1962. Racketeering activity is that activity commonly associated with organized crime such as gambling, dealing in narcotics or dangerous drugs, and extortionate credit transactions. See 18 U.S.C. § 1961(1). In 1984, based upon its observation that organized crime derives a large source of income from dealing in obscene materials, Congress amended RICO by adding state and federal offenses involving obscenity to the definition of "racketeering activity". 130 Cong. Rec. S433-S434 (1984).

In order to attack organized crime at its economic roots, Congress deliberately provided stiff criminal penalties and civil remedies for RICO violations. Russello v. United States, 464 U.S. 16, 26, 104 S.Ct. 296, 302, 78 L.Ed.2d 17 (1983). RICO's criminal penalties include imprisonment, fines, and mandatory forfeiture of any interest in property connected to the racketeering activity. 18 U.S.C. § 1963.2 Forfeiture under § 1963 is not limited to those assets of a RICO enterprise that are tainted by their use in connection with racketeering activity, rather a defendant's entire interest in "any enterprise which the person has established, operated, controlled, conducted, or participated in the conduct of in violation of Section 1962" may be subject to forfeiture. 18 U.S.C. § 1963(a)(2); United States v. Busher, 817 F.2d 1409, 1413 (9th Cir.1987).

In addition to imposing mandatory forfeiture, § 1963 confers broad power on the government to obtain preconviction orders restraining the defendant's use of property allegedly subject to forfeiture. 18 U.S.C. § 1963(d).3 Unlike those subsections of § 1963 governing forfeiture, subsection (d), providing for pretrial restraining orders, is not penal in nature but is intended to remove limitations on the effectiveness of forfeiture remedies by preserving the availability of forfeitable assets until the conclusion of trial. Section 1963(d)(1) authorizes the government to seek, and the courts to enter, injunctions and restraining orders before or after the defendant is indicted. Restraining orders issued after indictment may be issued solely on the basis of the indictment's allegations that the property described would be subject to forfeiture upon conviction. There is no requirement of a special judicial hearing either before or after the order is entered. 18 U.S.C. § 1963(d)(1)(A). Restraining orders may be issued prior to the filing of an indictment or information only after notice and an opportunity for a hearing is given to persons appearing to have an interest in the property, and only after a judicial determination is made that there is a probability that the government will prevail on the issue of forfeiture, that failure to enter the order will result in the property being made unavailable for forfeiture, and that the need to preserve the availability of the property outweighs any hardship to any party against whom the order is to be entered. 18 U.S.C. § 1963(d)(1)(B).

RICO's civil remedies provision authorizes courts to order: persons to divest themselves of any interest in a enterprise; restrictions on the defendant's future conduct, including prohibiting the individual from engaging in the same type of endeavor or enterprise; and dissolution or reorganization of any enterprise. 18 U.S.C. § 1964(a). Further, courts may enter pretrial "restraining orders or prohibitions, or take such other actions, including the acceptance of satisfactory performance bonds." 18 U.S.C. § 1964(b).

II. Bail Reform Act

The Bail Reform Act of 1984 replaced §§ 3141-3151 of Title 18 of the United States Code with provisions reflecting Congress' conviction that in addition to assuring the appearance of the defendant at judicial proceedings, the purpose of the bail laws is to prevent defendants from committing further crimes while awaiting trial. S.Rep. No. 225, 98th Cong., 1st Sess. 3, reprinted in 1984 U.S.Code Cong. & Admin.News 3182, at 3185-86. Thus, the 1984 Act provides for: an evaluation of a defendant's threat to the community as a factor in setting pretrial release conditions or in ordering detention, see 18 U.S.C. § 3142(b)-(c); the imposition of conditions of release other than financial conditions, 18 U.S.C. § 3142(c); mandatory penalties for crimes committed while on pretrial release, 18 U.S.C. § 3147; and postconviction incarceration pending appeal unless the defendant proves that release would not pose flight or safety risks and that the case is likely to be reversed on appeal, 18 U.S.C. § 3143(b).

The statutory scheme, however, continues to favor release pending trial. Unless a judge or magistrate finds that release on personal recognizance or an unsecured appearance bond will not reasonably assure defendant's appearance or will endanger another person in the community, the defendant must be released pending trial. 18 U.S.C. § 3142(b). Even if release on personal recognizance or unsecured bond will not meet the appearance and safety concerns of the Bail Reform Act, the judge or magistrate must then consider whether any condition or combination of the conditions listed in § 3142(c)(1)(B) will meet the Act's goals. If so, the judicial officer must order the pretrial release of the defendant under the least restrictive set of conditions. 18 U.S.C. § 3142(c)(1)(B). A judge or magistrate is permitted to detain a defendant only if, after a hearing under 18 U.S.C. § 3142(f), the judicial officer determines that none of the conditions will reasonably assure the defendant's appearance and the safety of the community. 18 U.S.C. § 3142(e). Further, unless the defendant is accused of a crime of violence, an offense for which the maximum sentence is life imprisonment or death, one of the enumerated offenses under Title 21, or a felony after having committed two or more of the first three offenses, the government bears the burden of production and persuasion on the issues of risk of flight and danger to the community. See 18 U.S.C. § 3142(f).

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14 cases
  • US v. Alexander
    • United States
    • U.S. District Court — District of Minnesota
    • January 24, 1990
    ...albeit in a declaratory judgment action context, to the pretrial restraint provisions of 18 U.S.C. § 1963(d). Alexander v. Thornburgh, 713 F.Supp. 1278, 1292-93 (D.Minn.1989). Judge Doty reasoned that some pretrial restraining or seizure orders could certainly be unconstitutional in nature.......
  • Alexander v. Thornburgh
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • October 30, 1991
    ...offenses. The district court granted the Attorney General's motion to dismiss and motion for summary judgment. Alexander v. Thornburgh, 713 F.Supp. 1278 (D.Minn.), appeal dismissed, 881 F.2d 1081 (8th Cir.1989). Alexander's appeal in that case has been consolidated with the appeal from his ......
  • Osterberg v. Peca
    • United States
    • Texas Supreme Court
    • February 8, 2000
    ...exercise of their First Amendment rights. The Osterbergs' challenge to section 253.131 thus misses the mark. Cf. Alexander v. Thornburgh, 713 F. Supp. 1278, 1290 (D. Minn.) (because constitutionality of the underlying obscenity statute had been established, "the defendant's assertion that p......
  • American Library Ass'n v. Barr
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 19, 1992
    ...the proceeds of sales of the material ensures the availability of the distributors' total forfeitable assets. See Alexander v. Thornburgh, 713 F.Supp. 1278 (D.Minn.1989); United States v. Pryba, 674 F.Supp. 1504, 1508 n. 16 (E.D.Va.1987), aff'd, 900 F.2d 748 (4th Cir.1990), issuing such ord......
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