U.S. v. Various Articles of Obscene Merchandise, Schedule No. 1769., 685

• Decision Date: 25 May 1979
• Docket Number: No. 685,D,685
• Citation: 600 F.2d 394
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. VARIOUS ARTICLES OF OBSCENE MERCHANDISE, SCHEDULE NO. 1769, Defendants-Appellees. ocket 78-6193.
• Court: U.S. Court of Appeals — Second Circuit

Page 394

600 F.2d 394

UNITED STATES of America, Plaintiff-Appellant, v. VARIOUS ARTICLES OF OBSCENE MERCHANDISE, SCHEDULE NO. 1769 Defendants-Appellees.

No. 685, Docket 78-6193.

United States Court of Appeals Second Circuit.

Argued Jan. 23, 1979.

Decided May 25, 1979.

Harvey J. Wolkoff, Asst. U. S. Atty., Southern District of New York (Robert B. Fiske, Jr., U. S. Atty., Peter C. Salerno, Asst. U. S. Atty., Southern District of New York, New York City, of counsel), for the United States of America.

Arthur N. Eisenberg, Steven Shapiro, New York Civil Liberties Union, New York City, for N.Y. Civil Liberties Union as amicus curiae.

Before LUMBARD, FEINBERG and MESKILL, Circuit Judges.

MESKILL, Circuit Judge:

This is an appeal by the United States from a judgment entered in the United States District Court for the Southern District of New York, Pierre N. Leval, Judge, after a bench trial, finding certain items seized by the United States Customs Service not legally "obscene" and ordering their release to their respective addressees. For the reasons that follow, we affirm in part and reverse in part and remand to the district court for further proceedings.

Between September 15 and September 21, 1978, the United States Customs Service seized 132 lots of allegedly obscene merchandise from the mail arriving in New York from overseas and five different allegedly obscene 8 mm. films from an arriving passenger at John F. Kennedy International Airport. The seized items were destined for the addresses of well over 100 citizens in twenty-five states and Washington D. C. The seizure was made pursuant to § 305(a) of the Tariff Act of 1930, 19 U.S.C. § 1305(a). On September 26 a warrant for the arrest of the seized articles was issued by the Clerk of the District Court for the Southern District; the next day the United States Marshal made the arrest. ¹

On October 5, notice of this action was sent to each addressee. The notice read:

PLEASE TAKE NOTICE that the United States of America has commenced an action for the forfeiture and destruction of the below obscene material seized in New York, New York:

ADDRESSEE: MERCHANDISE:

( )

( )

If you wish to contest the forfeiture and destruction of such merchandise, you have twenty (20) days from the receipt of this notice to file a Claim and Answer with this office. If you wish, you may sign and return the attached form to the undersigned as your Claim and Answer. Failure to file a Claim and Answer will result in the destruction of the merchandise addressed to you.

The form is signed by the United States Attorney and the Assistant United States Attorney assigned to the case. ² The "Claim and Answer" form attached to the notice read:

I hereby file a Claim to the below described merchandise which was addressed to me and which has been seized by the plaintiff pursuant to 19 U.S.C. § 1305:

ADDRESSEE: MERCHANDISE:

( )

( )

For my Answer to Complaint I deny that the merchandise seized is obscene and subject to forfeiture, but admit that the seized merchandise was sought to be imported into the United States through the Port of New York on the date set forth in Schedule "A" of the Complaint and that the merchandise was seized and is now in custody within the Southern District of New York. I demand judgment that the seized merchandise be forwarded to me.

Five persons signed and returned these forms; a sixth person claimed not by form but by letter. ³ Either just prior to, or at the same time as, the mailing of these forms, the government apparently also sent to the addressees something it calls an "assent to forfeiture" form. ⁴ At the trial below, the government attorney described this form as one that provides "an opportunity for the addressee to assent to an administrative forfeiture." The form read in relevant part as follows:

Sir: Assent is hereby given to the forfeiture of (the seized articles) now in your custody (and) the subject of your notice dated above. This assent is neither an acknowledgement that the materials being forfeited were solicited nor an admission that it was known that they are obscene.

On November 6 and November 8, notice was sent to the six claimants informing them of the date and time of the proceedings in the district court for the determination of the obscenity of the claimed items. ⁵ This notice read in part:

PLEASE TAKE FURTHER NOTICE that you may appear at the time and place of trial, in person or by an attorney, and contest on any appropriate grounds the right of the United States to seize and forfeit the materials you have claimed in this action. You need not appear, either in person or by attorney, to have the issue of whether or not the goods you have claimed are obscene presented to the Court and you will be advised of the Court's decision when it is rendered.

Trial was held on November 20. The government introduced into evidence all of the seized articles as well as the various items of correspondence sent to or received from the addressees. None of the addressees appeared at trial. During the trial, the government moved for entry of a default judgment against the allegedly obscene articles that were addressed to persons who either had failed to file a Claim and Answer or had filed an "assent to forfeiture." The district court denied the motion, and determined whether each of the Schedule 1769 articles was or was not "obscene." On November 24 the court ordered destroyed those materials portraying children engaged in sexual activity as well as those materials portraying rape, sexual sadism, or other forms of violence. All other materials were ordered released and forwarded to their addressees. The government appealed. ⁶

DISCUSSION

(I) Default

We consider first the question whether a default judgment may be entered against the materials addressed to persons who either had "assented" to their forfeiture or had chosen not to file a Claim and Answer. ⁷ The district court held that such a judgment could not be entered in proceedings of this kind. We agree and, accordingly, affirm the judgment of the district court in this regard.

The government's argument takes the following course. The procedure for actions commenced under § 1305(a) is governed by the Supplemental Rules for Certain Admiralty and Maritime Claims. Rule A of these rules provides that the Rules of Civil Procedure for the United States District Courts are applicable to the extent that they are not inconsistent with the Supplemental Rules. There is nothing in the Supplemental Rules regarding default, so Fed.R.Civ.P. 55 is properly consulted for guidance. Under this rule, the argument goes, the district court had the power to, and should have, entered a default judgment against the unclaimed articles. But this is to miss the forest for the trees. Given the important First Amendment interests at stake, we decline to approve of such a procedure. Compare St. Martin's Press, Inc. v. Carey, --- F.2d ----, ---- (2d Cir. 1979) (Timbers, J., dissenting) ("Particularly where First Amendment rights are involved, courts must be sensitive to the first whisper of a chilling wind the whisper picked up first by the beeches before the pines."). ⁸

The statute provides in relevant part as follows:

All persons are prohibited from importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing, advertisement, circular, print, picture, drawing, or other representation, figure, or image on or of paper or other material . . . or other article which is obscene or immoral . . . . No such articles whether imported separately or contained in packages with other goods entitled to entry, shall be admitted to entry; and all such articles and, unless it appears to the satisfaction of the appropriate customs officer that the obscene or other prohibited articles . . . were inclosed therein without the knowledge or consent of the importer . . ., the entire contents of the package . . . shall be subject to seizure and forfeiture . . . . (T)he Secretary of the Treasury may, in his discretion, admit the so-called classics or books of recognized and established literary or scientific merit, but may, in his discretion, admit such classics or books only when imported for noncommercial purposes.

Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the appropriate customs officer To await the judgment of the district court as hereinafter provided . . . . Upon the seizure of such book or matter such customs officer shall transmit information thereof to the district attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized. Upon the adjudication that such book or matter thus seized is of the character the entry of which is by this section prohibited, it shall be ordered destroyed and shall be destroyed. Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section.

19 U.S.C. § 1305(a) (emphasis added). As is quite obvious, "forfeiture pursuant to § 305 would suppress the material entirely and condemn it in all contexts." United States v. 35 MM. Motion Picture Entitled "Language of Love," 432 F.2d 705, 714 (2d Cir. 1970), Cert. dismissed, 403 U.S. 925, 91 S.Ct. 2241, 29 L.Ed.2d 704 (1971). In our judgment, Congress intended this final restraint to be imposed only upon a judicial determination that seized articles are "obscene," and not as the result of an unchallenged administrative recommendation for destruction.

This conclusion is amply supported by the statute's legislative history. See United States v. 37 Photographs, 402 U.S. 363, 368-71, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); United States v. One Book Entitled ...