U.S. v. Jenkins, 92-2002

• Decision Date: 05 October 1992
• Docket Number: No. 92-2002,92-2002
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Mary Jane JENKINS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 32

974 F.2d 32

23 Fed.R.Serv.3d 1118

UNITED STATES of America, Plaintiff-Appellee, v. Mary Jane JENKINS, Defendant-Appellant.

No. 92-2002.

United States Court of Appeals, Fifth Circuit.

Oct. 5, 1992.

Frierson M. Graves, Jr., Memphis, Tenn., Gerald H. Goldstein, John Fahle, Goldstein, Goldstein & Hilley, San Antonio, Tex., for defendant-appellant.

Paula C. Offenhauser, Asst. U.S. Atty., Ronald G. Woods, U.S. Atty., Houston, Tex., Janis Kockritz, Trial Atty., Kevin E. Byrnes, Nicole Ann Todack, Susan K. Morgan, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before VAN GRAAFEILAND ^*, KING and EMILIO M. GARZA, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

Mary Jane Jenkins appeals from an order denying her motion to dismiss, dissolve or modify a pretrial restraining order issued pursuant to 18 U.S.C. § 1963(d). We affirm.

On April 9, 1991, a grand jury sitting in the Southern District of Texas indicted Jenkins and five individual co-defendants, charging them, among other things, with conducting and conspiring to conduct an enterprise through a pattern of racketeering activity, in violation of 18 U.S.C. § 1962 ("RICO"). The alleged enterprise consisted not only of the six defendants, but also sixteen unindicted corporations, each of which allegedly was controlled by Jenkins. Except for two foreign holding companies, the corporations were scattered throughout the South. All of them allegedly were connected directly or indirectly with the operation of adult bookstores and/or peep show video arcades. The indictment listed ten predicate racketeering acts, nine of which dealt with the transportation of obscene material in interstate commerce, 18 U.S.C. §§ 1462 and 2, and one which dealt with the promotion of obscene material, Tex.Penal Code § 43.23 and 18 U.S.C. § 1961(1)(A). The indictment asserted a penalty of forfeiture under 18 U.S.C. § 1963(a), and sought forfeiture of the sixteen corporations, bank accounts belonging to several of the corporations, money seized in prior raids, and Jenkins' automobile and residence.

On April 10, 1991, the government obtained an ex parte restraining order pursuant to 18 U.S.C. § 1963(d), which in substance prohibited the defendants and the unindicted corporations from selling, assigning, transferring, encumbering or removing from the jurisdiction of the court any assets owned by or owed to them. The order required that weekly payments to Jenkins (the proceeds of a 1989 sale of four adult bookstores) be turned over to the United States Marshals Service, to be held until forfeitable upon conviction. It also directed defendants to maintain the properties and "to abstain from using the properties and enterprises in any way to violate any state, federal or local laws." Finally, the order provided that:

No person shall consider this Order as a restraint or prohibition to the carrying on of any lawful activity or business, and the above mentioned businesses and commercial establishments are not restrained or prohibited from operating any lawful businesses in a normal business manner, including the payment of salaries, outstanding debts, and liabilities that exist as of the date of the filing of this Order, as long as the normal conduct of business does not dissipate or diminish the value, as of April 9, 1991, of the assets, properties, and interests subject to forfeiture to the government. Nothing in this Order shall be construed to restrain the dissemination of visual or printed matter, nor to condone the illegal sale or distribution of obscene material.

On July 17, 1991, Jenkins moved that the order be dissolved and requested a hearing, which was held on September 27, 1991. Jenkins' principal argument was that both RICO's substantive prohibitions and its forfeiture and restraining order provisions are unconstitutional as applied to those charged with selling obscene materials. On November 20, the district court denied Jenkins' motion, largely because the challenged order allowed the parties to continue their operations, including the selling of the allegedly obscene material.

Under the law of this circuit, the district court's denial of Jenkins' motion is an interlocutory order refusing to modify or dissolve an injunction, and, as such, is immediately appealable under 28 U.S.C. § 1292(a)(1). See United States v. Thier, 801 F.2d 1463 (5th Cir.1986), modified on other grounds, 809 F.2d 249 (5th Cir.1987) (accepting a similar appeal without discussion of appealability). To say that the order below is appealable, however, is not to say that we should consider all the wide-ranging issues Jenkins has raised. As a general rule, courts of appeals should conduct only a limited review in interlocutory appeals, and should address only the propriety of the order that gave rise to the appeal. See Brown v. Chote, 411 U.S. 452, 456-57, 93 S.Ct. 1732, 1735-36, 36 L.Ed.2d 420 (1973); Enterprise Int'l v. Corporacion Estatal Petrolera, 762 F.2d 464, 470 (5th Cir.1985). Judicial restraint is especially appropriate where, as here, we are asked to reach out and decide broad and difficult constitutional questions. "Constitutional questions should be decided only when unavoidable, and this is particularly true when the issue is raised on appeal from an interlocutory order." Yahr v. Resor, 431 F.2d 690, 691 (4th Cir.1970), cert. denied, 401 U.S. 982, 91 S.Ct. 1192, 28 L.Ed.2d 334 (1971). See also Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 501-03, 105 S.Ct. 2794, 2800-02, 86 L.Ed.2d 394 (1985).

If we were to consider Jenkins' facial challenges to RICO at this stage in the proceedings, we would have to do so without the benefit of a complete record, specialized findings of fact, and the reasoned judgment of the district court. These are important in any constitutional case, but are especially so in First Amendment cases concerning allegedly obscene materials, where the extent of the Constitution's protection may vary depending on the circumstances. Finally, and of particular significance, we note that the United States Supreme Court recently has granted certiorari in Alexander v. Thornburgh, 943 F.2d 825 (8th Cir.1991), cert. granted, --- U.S. ----, 112 S.Ct. 3024, 120 L.Ed.2d 895 (1992), a case raising similar concerns about the constitutionality of RICO's forfeiture and restraining order provisions as applied to those dealing in allegedly obscene materials. Wisdom dictates that we await the Supreme Court's teaching.

Insofar as Jenkins' appeal is limited to the validity of the restraining order, she urges the following four grounds for reversal: (1) the order is an impermissible prior restraint of protected First Amendment activity; (2) by directing the seizure of funds and the delivery of money to United States Marshals, the order indirectly restrains her in the exercise of protected First Amendment rights; (3) the issuance of the ex parte restraining order denied her procedural due process; and (4) the order is overbroad because it affects unindicted third parties.

It is, of course, well-settled that the government may not seize presumptively protected expressive materials without a prior judicial determination of obscenity. Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63, 109 S.Ct. 916, 927, 103 L.Ed.2d 34 (1989); Universal Amusement Co. v. Vance, 587 F.2d 159, 169 (5th Cir.1978) (en banc), aff'd, 445 U.S. 308, 100 S.Ct. 1156, 63 L.Ed.2d 413 (1980). However, the restraining order did not effect such a seizure. See United States v. Alexander, 736 F.Supp. 968, 973 (D.Minn.1990). Indeed, the order explicitly provides that "the above mentioned businesses and commercial establishments are not restrained or prohibited from operating any lawful businesses in a normal business manner," and that "[n]othing in this Order shall be construed to...