Eckstein v. Cullen

• Decision Date: 15 December 1992
• Docket Number: Civ. No. 92-847-A.
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Kathleen L. ECKSTEIN, Plaintiff, v. Richard CULLEN, Defendant.

803 F. Supp. 1107

Kathleen L. ECKSTEIN, Plaintiff, v. Richard CULLEN, Defendant.

Civ. No. 92-847-A.

United States District Court, E.D. Virginia, Alexandria Division.

October 14, 1992.

Order on Denial of Reconsideration December 15, 1992.

Victor Michael Glasberg, Victor M. Glasberg & Assoc., Alexandria, Va., for plaintiff.

Richard Parker, Asst. U.S. Atty., Alexandria, Va., for defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

This case presents important first, fourth, and fifth amendment challenges to the Government's seizure of sexually explicit materials from plaintiff's bookstore. Defendant has moved to dismiss this case pursuant to Rule 12(b)(6), Fed.R.Civ.P., and plaintiff has moved for return of property pursuant to Rule 41(e), Fed.R.Crim.P. For the reasons stated below, the Court grants defendant's motion to dismiss Counts I, II, III and V of the Complaint. The Court denies the motion with regard to Count IV of the Complaint. Finally, the Court grants the plaintiff's motion pursuant to Rule 41(e) and orders the return of plaintiff's property.

I. Facts

The facts relevant to disposition of this motion are largely uncontested. Plaintiff is owner of the Book N' Card bookstore in Falls Church, Virginia. Defendant is the United States Attorney for the Eastern District of Virginia. On Friday, April 24, 1992, a team of seven Federal Bureau of Investigation ("FBI") agents interrupted business at the Book N' Card bookstore in Falls Church, Virginia, at approximately 12:00 noon, one of the store's busiest times, to execute a search warrant for materials allegedly in violation of the federal obscenity laws, 18 U.S.C. § 1460 et seq. After ushering all of the customers out of the store, the F.B.I. agents secured the store and placed a "Closed for Inventory" sign on the front door. While one team of agents photographed the store, another group of agents began searching the adult magazines section for the allegedly obscene materials identified in the search warrant.

Specifically, the search warrant authorized the agents to seize two copies of thirteen sexually explicit magazines that a magistrate judge had previously found probable cause to be obscene.¹ But the search warrant did not stop there; it also authorized the seizure of:

Two copies of any other magazines or books depicting explicit sexual acts, actual or simulated, whether between persons of the opposite sex or same sex, i.e., sexual intercourse, including but not limited to genital-genital, oral genital, anal-genital, or oral-anal intercourse; bestiality; masturbation; sexual sadistic or masochistic behavior; bondage; pedophilic sex acts; coprophilia; and vaginal or anal insertion.

The sweeping breadth of this category of materials reasonably led the store manager, James Lawson, to the view that the "explicit sexual acts" described above would likely be found in most of the store's adult magazines. Accordingly, Lawson offered F.B.I. agents copies of all the store's adult magazines, for examination on their own time, so that the store could promptly re-open. The F.B.I. agents agreed, and Lawson wrote, by hand, a consent form, which he and two F.B.I. agents signed.² The agents then seized approximately 137 adult magazines in addition to the thirteen magazines specifically identified in the search warrant. Plaintiff claims that the 137 additional magazines were seized pursuant to the second paragraph of the search warrant. Defendant disagrees, arguing that the additional magazines were seized pursuant to the Lawson's valid consent.

Three days after execution of the search warrant, defendant wrote a letter to plaintiff's counsel informing plaintiff that she would not be prosecuted for any past violations of the federal obscenity statutes,³ but that if she continued to sell material in violation of the federal obscenity laws after June 1, 1992, she "should expect to be prosecuted for being in violation of those laws."⁴ To avoid future prosecution, plaintiff sought guidance from defendant as to what materials she could sell after June 1, 1992, without running afoul of the federal obscenity laws. She also sought the return of all the magazines that the Government did not intend to submit to the grand jury. In response, defendant refused to return any of the magazines or to provide plaintiff with an opinion as to which of the seized magazines were obscene. Instead, defendant referred plaintiff to caselaw construing the federal obscenity statutes under the test set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Thereafter, on May 31, 1992, the day before the expiration of the grace period, plaintiff submitted to defendant exemplars of every sexually explicit magazine in her store as of that date, again seeking guidance regarding which of them she might legally sell. Included in this batch of materials were copies of Penthouse and Playboy. Defendant again declined to give plaintiff any opinion concerning the legality of specific materials. Instead, defendant again referred plaintiff to the general obscenity standards found in Miller and its progeny.

In a final attempt to determine which, if any, of her adult magazines might reasonably be deemed acceptable under local "community standards" governing obscenity, plaintiff wrote, by counsel, to every commonwealth's attorney, police chief, and sheriff within the Alexandria Division of the Eastern District of Virginia, inquiring whether there existed any guidelines or policies which she might consult to make the necessary determination regarding obscenity. Responding officials confirmed that Miller and its progeny, plus the state and local laws that mirror Miller, provide the only available guidance for determining whether certain material is obscene. In the absence of specific guidance as to which magazines she could safely sell, and desiring immunity from criminal prosecution, plaintiff, on June 1, 1992, removed all sexually explicit material from the shelves at Book N' Card and Old Town News. This action put at risk the economic viability of Book N' Card and Old Town News because the sale of sexually explicit materials accounted for approximately forty percent of the revenues of both stores. Perceiving herself as between the Scylla of criminal prosecution and the Charybdis of financial ruin, plaintiff filed this suit seeking injunctive relief and a declaration of her rights.

In her complaint, plaintiff alleges five causes of action. In Count I, plaintiff contends that defendant imposed an unconstitutional prior restraint on her protected speech activities, by threatening criminal prosecution unless plaintiff ceased selling magazines that defendant deemed obscene. Count II alleges that defendant constructively seized her inventory of sexually explicit magazines without due process of law by threatening criminal prosecution unless she stopped selling magazines which defendant deemed obscene. In Count III, plaintiff asserts that the federal obscenity law, 18 U.S.C. § 1466, is unconstitutionally vague as applied, because it fails to give her appropriate guidance regarding which sexually explicit magazines she may permissibly sell. Count IV sets forth plaintiff's allegation that, by refusing to return the non-obscene magazines, defendant has effected an improper seizure under the Fourth Amendment and also deprived plaintiff of her property without due process of law. Finally, in Count V, plaintiff seeks a declaration that she may freely trade, without the threat of criminal prosecution, in the sexually explicit magazines removed from her shelves.⁵

Shortly after filing the complaint, plaintiff filed a motion for expedited answer and discovery due to the economic urgency of this matter. The magistrate judge granted plaintiff's motion in material part on July 2, 1992. Under this expedited schedule, defendant filed a motion to dismiss the complaint, which is now ripe for disposition.⁶ Also before the Court is plaintiff's motion for return of property pursuant to Federal Rule of Criminal Procedure 41(e).

II. Analysis

A. Count III

1. Standing to Challenge the Obscenity Statute

The threshold issue on plaintiff's vagueness challenge to the federal obscenity statute, 18 U.S.C. § 1466 is whether plaintiff has standing to bring challenge to the statute. In Lujan v. Defenders of Wildlife, ___ U.S. ___, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), the Supreme Court found that to establish standing, at an "irreducible constitutional minimum," a plaintiff must show three elements:

First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally-protected interest which is (a) concrete and particularized ...; and (b) "actual or imminent, not `conjectural or hypothetical,'".... Second, there must be a causal connection between injury and the conduct complained of — the injury has to be "fairly traceable to the challenged action of the defendant,".... Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."

Lujan, ___ U.S. at ___, 112 S.Ct. at 2136 (citations omitted). See also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) ("plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief").

These principles, applied here, point persuasively to the conclusion that plaintiff has standing to challenge the alleged vagueness of § 1466. First, plaintiff has alleged an "injury in fact", that is, the loss of approximately forty percent of her revenues and the imminent demise of her business. This injury, allegedly incurred to avoid defendant's threat of prosecution, is clearly "concrete," "particularized," and "imminent." Second, this injury can "fairly ... be traced to the challenged action of the defendant." Plaintiff alleges that she ceased selling all of her sexually...