Alexander v. United States

• Decision Date: 28 June 1993
• Docket Number: No. 91-1526,91-1526
• Citation: 509 U.S. 544,125 L.Ed.2d 441,113 S.Ct. 2766
• Parties: Ferris J. ALEXANDER, Sr., Petitioner v. UNITED STATES
• Court: U.S. Supreme Court

509 U.S. 544

113 S.Ct. 2766

125 L.Ed.2d 441

Ferris J. ALEXANDER, Sr., Petitioner

v UNITED STATES.

No. 91-1526.

Argued Jan. 12, 1993. Decided June 28, 1993.

Syllabus ^*

After a full criminal trial, petitioner, the owner of numerous businesses dealing in sexually explicit materials, was convicted of, inter alia, violating federal obscenity laws and the Racketeer Influenced and Corrupt Organizations Act (RICO). The obscenity convictions, based on a finding that seven items sold at several stores were obscene, were the predicates for his RICO convictions. In addition to imposing a prison term and fine, the District Court ordered petitioner, as punishment for the RICO violations, to forfeit his businesses and almost $9 million acquired through racketeering activity. In affirming the forfeiture order, the Court of Appeals rejected petitioner's arguments that RICO's forfeiture provisions constitute a prior restraint on speech and are overbroad. The court also held that the forfeiture did not violate the Eighth Amendment, concluding that proportionality review is not required of any sentence less than life imprisonment without the possibility of parole. It did not consider whether the forfeiture was disproportionate or "excessive."

Held:

1. RICO's forfeiture provisions, as applied here, did not violate the First Amendment. Pp. ____.

(a) The forfeiture here is a permissible criminal punishment, not a prior restraint on speech. The distinction between prior restraints and subsequent punishments is solidly grounded in this Court's cases. The term "prior restraint" describes orders forbidding certain communications that are issued before the communications occur. See e.g., Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357. However, the order here imposes no legal impediment to petitioner's ability to engage in any expressive activity; it just prevents him from financing those activities with assets derived from his prior racketeering offenses. RICO is oblivious to the expressive or nonexpressive nature of the assets forfeited. Petitioner's assets were forfeited because they were directly related to past racketeering violations, and thus they differ from material seized or restrained on suspicion of being obscene without a prior judicial obscenity determination, as occurred in, e.g., Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127. Nor were his assets ordered forfeited without the requisite procedural safeguards. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, 103 L.Ed.2d 34, distinguished. His claim is also inconsistent with Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568, in which the Court rejected a claim that the closure of an adult bookstore under a general nuisance statute was an improper prior restraint. His definition of prior restraint also would undermine the time-honored distinction between barring future speech and penalizing past speech. Pp. ____.

(b) Since the RICO statute does not criminalize constitutionally protected speech, it is materially different from the statutes at issue in this Court's overbreadth cases. Cf., e.g., Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574-575, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500. In addition, the threat of forfeiture has no more of a "chilling" effect on free expression than threats of a prison term or large fine, which are constitutional under Fort Wayne Books. Nor can the forfeiture be said to offend the First Amendment based on Arcara's analysis that criminal sanctions with some incidental effect on First Amendment activities are subject to First Amendment scrutiny where it was the expressive conduct that drew the legal remedy, 478 U.S., at 706-707, 106 S.Ct., at 3177. While the conduct drawing the legal remed here may have been expressive, "obscenity" can be regulated or actually proscribed consistent with the Amendment, see, e.g., Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498. Pp. ____.

2. The case is remanded for the Court of Appeals to consider petitioner's claim that the forfeiture, considered atop his prison term and fine, is "excessive" within the meaning of the Excessive Fines Clause of the Eighth Amendment. The Court of Appeals rejected petitioner's Eighth Amendment challenge with a statement that applies only to the Amendment's prohibition against "cruel and unusual punishments." The Excessive Fines Clause limits the Government's power to extract payments as punishment for an offense, and the in personam criminal forfeiture at issue here is clearly a form of monetary punishment no different, for Eighth Amendment purposes, from a traditional "fine." The question whether or not the forfeiture was excessive must be considered in light of the extensive criminal activities that petitioner apparently conducted through his enormous racketeering enterprise over a substantial period of time rather than the number of materials actually found to be obscene. Pp. ____. 943 F.2d 825 (CA8 1991), vacated and remanded.

REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and THOMAS, JJ., joined. SOUTER, J., filed an opinion concurring in the judgment in part and dissenting in part. KENNEDY, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, and in Part II of which SOUTER, J., joined.

John H. Weston, Beverly Hills, CA, for petitioner.

Kenneth W. Starr, Washington, DC, for respondent.

Chief Justice REHNQUIST delivered the opinion of the Court.

After a full criminal trial, petitioner Ferris J. Alexander, owner of more than a dozen stores and theaters dealing in sexually explicit materials, was convicted on, inter alia, 17 obscenity counts and 3 counts of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). The obscenity convictions, based on the jury's findings that four magazines and three videotapes sold at several of petitioner's stores were obscene, served as the predicates for his three RICO convictions. In addition to imposing a prison term and fine, the District Court ordered petitioner to forfeit, pursuant to 18 U.S.C. § 1963 (1988 ed. and Supp. III), certain assets that were directly related to his racketeering activity as punishment for his RICO violations. Petitioner argues that this forfeiture violated the First and Eighth Amendments to the Constitution. We reject petitioner's claims under the First Amendment but remand for reconsideration of his Eighth Amendment challenge.

Petitioner was in the so-called "adult entertainment" business for more than 30 years, selling pornographic magazines and sexual paraphernalia, showing sexually explicit movies, and eventually selling and renting videotapes of a similar nature. He received shipments of these materials at a warehouse in Minneapolis, Minnesota, where they were wrapped in plastic, priced, and boxed. He then sold his products through some 13 retail stores in several different Minnesota cities, generating millions of dollars in annual revenues. In 1989, federal authorities filed a 41-count indictment against petitioner and others, alleging, inter alia, operation of a racketeering enterprise in violation of RICO. The indictment charged 34 obscenity counts and 3 RICO counts, the racketeering counts being predicated on the obscenity charges. The indictment also charged numerous counts of tax evasion and related offenses that are not relevant to the questions before us.

Following a 4-month jury trial in the United States District Court for the District of Minnesota, petitioner was convicted of 17 substantive obscenity offenses: 12 counts of transporting obscene material in interstate commerce for the purpose of sale or distribution, in violation of 18 U.S.C. § 1465; an 5 counts of engaging in the business of selling obscene material, in violation of 18 U.S.C. § 1466 (1988 ed. and Supp. III). He also was convicted of 3 RICO offenses which were predicated on the obscenity convictions: one count of receiving and using income derived from a pattern of racketeering activity, in violation of 18 U.S.C. § 1962(a); one count of conducting a RICO enterprise, in violation of § 1962(c); and one count of conspiring to conduct a RICO enterprise, in violation of § 1962(d). As a basis for the obscenity and RICO convictions, the jury determined that four magazines and three videotapes were obscene. Multiple copies of these magazines and videos, which graphically depicted a variety of "hard core" sexual acts, were distributed throughout petitioner's adult entertainment empire.

Petitioner was sentenced to a total of six years in prison, fined $100,000, and ordered to pay the cost of prosecution, incarceration, and supervised release. In addition to these punishments, the District Court reconvened the same jury and conducted a forfeiture proceeding pursuant to § 1963(a)(2). At this proceeding, the Government sought forfeiture of the businesses and real estate that represented petitioner's interest in the racketeering enterprise, § 1963(a)(2)(A), the property that afforded petitioner influence over that enterprise, § 1963(a)(2)(D), and the assets and proceeds petitioner had obtained from his racketeering offenses, §§ 1963(a)(1), (3). The jury found that petitioner had an interest in 10 pieces of commercial real estate and 31 current or former businesses, all of which had been used to conduct his racketeering enterprise. Sitting without the jury, the District Court then found that petitioner had acquired a variety of assets as a result of his racketeering activities. The court ultimately ordered petitioner to forfeit his wholesale and retail businesses (including all the assets of those businesses) and almost $9 million in moneys acquired through racketeering activity.¹

The Court of Appeals affirmed the District Court's forfeiture order. Alexander v. Thornburgh, 943 F.2d 825 (CA8 1991). It...