U.S. v. Berke, 97-15769

• Citation: 170 F.3d 882
• Decision Date: 16 March 1999
• Docket Number: No. 97-15769,97-15769
• Parties: 99 Cal. Daily Op. Serv. 1889, 1999 Daily Journal D.A.R. 2419 UNITED STATES of America, Plaintiff-Appellee, v. Allan Marvin BERKE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 882

170 F.3d 882

99 Cal. Daily Op. Serv. 1889, 1999 Daily

Journal D.A.R. 2419

UNITED STATES of America, Plaintiff-Appellee, v. Allan Marvin BERKE, Defendant-Appellant.

No. 97-15769.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted April 17, 1998.

Decided March 16, 1999.

Paul Gaffney, Williams & Connolly, Washington, D.C., for the defendant-appellant.

Wendy M. Keats, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada; Lloyd D. George, District Judge, Presiding. D.C. No. CV-91-00473-LDG (LRL).

Before: SNEED and FLETCHER, Circuit Judges, and WALLACH, ¹ Judge, United States Court of International Trade.

Opinion by Judge FLETCHER; Concurrence by Judge SNEED; Dissent by Judge WALLACH.

FLETCHER, Circuit Judge:

Allan Berke ("Berke") appeals the district court's denial of his motion pursuant to Federal Rule of Civil Procedure 60(b) to vacate a portion of a consent decree as void. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Because we conclude that Berke's attack on the decree may not properly be brought under Rule 60(b)(4), we affirm.

Berke and four co-defendants were indicted in 1989 for violations of federal obscenity laws and operation of a criminal enterprise. As part of a plea agreement, Berke in June 1991 agreed to a consent decree (to which the parties stipulated following the initiation of a parallel civil RICO action) permanently enjoining him from involvement with the production, sale, or distribution of any sexually explicit materials. There is no dispute that the terms of the consent decree reach not only obscene materials, but also sweep in non-obscene sexually-explicit materials otherwise protected by the First Amendment. Some five years later, in July 1996, Berke filed a motion pursuant to Rule 60(b) seeking to vacate the consent decree, arguing that the injunction was "void" because it violated his First Amendment rights. ² See FED. R. CIV. P. 60(b)(4). The district court denied his motion.

A final judgment is "void" for purposes of Rule 60(b)(4) only if the court that considered it lacked jurisdiction, either as to the subject matter of the dispute or over the parties to be bound, or acted in a manner inconsistent with due process of law. See In re Ctr. Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir.1985); Jones v. Giles, 741 F.2d 245, 248 (9th Cir.1984). "A judgment is not void merely because it is erroneous." In re Ctr. Wholesale, Inc., 759 F.2d at 1448. Berke does not claim that there was any infirmity in the jurisdiction of the court that entered the consent decree. He does contend, however, that the proceedings relating to the entry of the decree fell short of the requirements of due process, insofar as the district court failed to establish explicitly, on the record, his voluntary waiver of the First Amendment rights potentially implicated by the consent decree. Given the record below, we have no difficulty concluding that Berke knowingly and voluntarily waived his First Amendment rights in connection with the entry of the consent decree. ³

The dissent mounts an eloquent and forceful attack on the merits of the injunction. This appeal, however, does not call on us to pass on the propriety of the course chosen by the prosecutors in the underlying action. We also express no opinion on the enforceability of the consent decree, should contempt charges ever be brought against Berke for its violation. Cf. Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1396-97 (9th Cir.1991) (finding unenforceable a settlement agreement that compromised the constitutionally-protected interests of the public). Consequently, our holding today is not the "dangerous precedent" the dissent fears; rather, we follow the established law of this circuit and hold simply that Rule 60(b)(4) does not compel reversal of the district court's ruling below. Whatever its other shortcomings, the consent decree at issue here is not "void" within the meaning of Rule 60(b)(4). See Tomlin v. McDaniel, 865 F.2d 209, 210 (9th Cir.1989).

AFFIRMED.

SNEED, Circuit Judge, concurring:

While I join Judge Fletcher's opinion, it is proper for me to observe that the dissent, in my eyes, while eloquent, is not as forceful as perhaps it appears to be to Judge Fletcher. Nevertheless, subject to that observation, I concur in her opinion.

WALLACH, Judge, dissenting:

It seems a law of nature, that the vilest forms of life prove so useful in maintaining the balance of their ecosystems. Bacteria which dispose of wastes and vultures of carrion both spring readily to mind. So it seems to be with pornographers such as Allan Marvin Berke ("Berke") and the First Amendment to the Constitution of the United States.

At issue in this case is a prior restraint on Berke's involvement with sexually explicit material that is fully protected by the First Amendment. In contrast to a criminal penalty or civil judgment following a trial, where the full impact of a law's sanction is deferred until all procedural and substantive issues have been heard by a court and exhausted on appeal, a prior restraint, "by contrast and definition, has an immediate and irreversible sanction." Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 559, 96 S.Ct. 2791, 49 L.Ed.2d 683 (1976). Because prior restraints, like the one at issue, involve an ever present threat of criminal contempt for disobeying a court order, such restraints have traditionally been perceived as more effective in suppressing expression than the threat of subsequent punishment. See id. at 559, 96 S.Ct. 2791. See also Lawrence H. Tribe, American Constitutional Law 1042 n.2 (2nd ed.1988) (noting that, even if a defendant was allowed to assert a constitutional defense in a prosecution for violating a court order, "it might well remain the case that prepublication restraints, especially those affirmatively singling out the would-be disseminator, would deter far more protected conduct than criminal statutes ordinarily would."). As the Court noted in Nebraska Press Ass'n, 427 U.S. at 559, 96 S.Ct. 2791 (citing A. Bickel, The Morality of Consent 61 (1975)), "[i]f it can be said that a threat of criminal or civil sanctions after publication 'chills' speech, prior restraint 'freezes' it at least for the time." For this reason, a long line of Supreme Court precedent has made clear that prior restraints constitute "the most serious and the least tolerable infringement" of First Amendment rights and, as such, are presumptively unconstitutional. Nebraska Press Ass'n, 427 U.S. at 559, 96 S.Ct. 2791.

For this reason, it is likely that had this restraint been imposed following a criminal or civil trial, and challenged on direct appeal, the government would be unable to justify a permanent restraint on Berke's First Amendment right to deal in sexually explicit--though not obscene--materials. Rather than appealing a court order directly, however, Berke is bringing a collateral attack on the Consent Decree that he entered into with Federal prosecutors. As the government observes, this is essentially an effort "to deprive the government of the chief benefit it bargained for in return [for dropping its criminal prosecution]--the permanent removal of [Berke's] corrupting influence from the pornography industry." Brief For The Appellee at 20. In addition, Berke's challenge also appears to directly contradict the well-established principle that most constitutional rights can be freely waived upon a showing of clear and compelling evidence. Id.

While these and other arguments advanced by the government are not without merit, they do not change the fact that Berke only agreed to waive his First Amendment rights, and the District Court only entered the resulting Consent Decree, after Burke was threatened with criminal prosecution for violating the Racketeer Influenced And Corrupt Organizations statute ("RICO"), 18 U.S.C. §§ 1961-68 (1988), and with indictment for federal income tax violations. In February 1989, Burke was indicted by a grand jury on ten counts of violating federal obscenity laws and operating a criminal enterprise. Brief For The Appellee at 5. Faced with the prospect of a criminal trial and a further indictment for income tax fraud, on March 18, 1991, Burke resolved the criminal charges against him by (1) pleading guilty to racketeering, obscenity, and tax charges; (2) agreeing to serve one year in jail and pay a fine of $150,000; (3) divesting himself of his interest in certain entities; and (4) forfeiting his interest in various real and personal property. Brief of Appellant at 2-3; Mem. of Plea Agreement, CR 5, Tab 1, at 19-23. Of particular importance for present purposes, the settlement with the government was also made contingent on Berke agreeing, inter alia, to "forever remain unconnected to such [pornographic and adult] businesses and industry anywhere in the United States," Mem. of Plea Agreement, CR 5, Tab 1, at 14, and:

refrain from owning, having, maintaining, seeking, participating in, or providing advice or consulting assistance concerning, any equitable, managerial, or other interest in, investment in, or employment with, any enterprise, establishment, or business that promotes, sells, or distributes, or otherwise makes, markets, or disseminates, the above described [pornographic and adult] materials anywhere in the United States.

Id. at 22-23. There is no dispute that this language covers non-obscene activity that is protected by the First Amendment.

Because the government made waiver of Berke's First Amendment rights a condition of ending its criminal prosecution--and because the Consent Decree continues to "freeze" Berke's First Amendment rights--I believe that, notwithstanding Berke's knowing waiver of his rights, that part of the Consent Decree which acts as a prior restraint upon Berke's First Amendment rights should be declared "void" as...