United States v. 392 COPIES OF MAGAZINE" EXCLUSIVE"

• Citation: 253 F. Supp. 485
• Decision Date: 04 April 1966
• Docket Number: 17065,Civ. No. 17060,17066.
• Parties: UNITED STATES of America v. 392 COPIES OF a MAGAZINE ENTITLED "EXCLUSIVE". UNITED STATES of America v. 3600 COPIES OF a MAGAZINE ENTITLED "REVIEW INTERNATIONAL", VOL. 6. UNITED STATES of America v. 1000 COPIES OF a MAGAZINE ENTITLED "INTERNATIONAL NUDIST SUN", VOL. 16.
• Court: U.S. District Court — District of Maryland

253 F. Supp. 485

UNITED STATES of America v. 392 COPIES OF a MAGAZINE ENTITLED "EXCLUSIVE".

UNITED STATES of America v. 3600 COPIES OF a MAGAZINE ENTITLED "REVIEW INTERNATIONAL", VOL. 6.

UNITED STATES of America v. 1000 COPIES OF a MAGAZINE ENTITLED "INTERNATIONAL NUDIST SUN", VOL. 16.

Civ. Nos. 17060, 17065, 17066.

United States District Court D. Maryland.

April 4, 1966.

COPYRIGHT MATERIAL OMITTED

Thomas J. Kenney, U. S. Atty., Arthur G. Murphy and Fred K. Grant, Asst. U. S. Attys., Baltimore, Md., for plaintiff.

Robert Eugene Smith, Baltimore, Md., and Herald P. Fahringer, Buffalo, N. Y., for claimant.

THOMSEN, Chief Judge.

In these consolidated proceedings under section 305 of the Tariff Act of 1930, 19 U.S.C.A. § 1305,¹ the government seeks the forfeiture, confiscation and destruction of 392 copies of a magazine entitled Exclusive, 3600 copies of a magazine entitled Review International No. 6, and 1000 copies of a magazine entitled International Nudist Sun No. 16, imported from Denmark, on the ground that they are obscene material, the importation of which is prohibited by section 1305. Claimant contends that the material is not obscene, that section 1305 is unconstitutional on its face,² and that section 1305 is unconstitutional as applied in these cases.³

Procedure

Proceedings in the Case. On February 3, 1966, two separate shipments consisting respectively of 3600 copies of Review International No. 6 and 1000 copies of International Nudist Sun No. 16, imported from Denmark and consigned to custom house brokers on behalf of claimant, Central Magazines Sales, Ltd., were brought from the ship to the Appraisers' Stores in Baltimore after the bills of lading had been delivered to Customs officials by the brokers for clearance through Customs. Entry numbers were assigned on the same day. On February 8, 392 copies of Exclusive were similarly imported and entered. The shipments were examined promptly by the line examiner to determine whether any duty was payable, and whether any of the material was inadmissible for a variety of statutory reasons, including obscenity and violation of copyright.⁴ The line examiner thought that the magazines were probably obscene and referred them to the appraiser, in accordance with established procedures. The appraiser likewise felt that the material should be considered for possible forfeiture and referred the matter to the Obscene Literature Committee, a group of Customs officials in Baltimore, again in accordance with established procedures.

Thereafter, if the Committee also believed the material to be obscene, it would ordinarily have been seized or detained⁵ pending further administrative proceedings under 19 C.F.R. § 12.40⁶ before it was referred to the United States Attorney for the institution of forfeiture proceedings. The administrative proceedings in Baltimore would ordinarily not have been significantly different from those described under the heading "The administrative task and procedures in general", in United States v. One Book entitled "The Adventures of Father Silas", et al., S.D.N.Y., 249 F.Supp. 911, at 913 (January 18, 1966). In that case Judge Frankel held the facts, set out at pp. 914-915, showed that the government had suppressed the books for an unlawfully protracted time. However, as a result of that decision and of other recent decisions,⁷ a meeting was held in Washington on February 8, which was attended by representatives of the Department of Justice,⁸ the Bureau of Customs and the Post Office Department, to discuss possible changes in the procedure for handling material believed to be obscene. At that meeting it was decided to adopt a new procedure, intended to expedite the proceedings and to eliminate the question whether 19 C.F.R. 12.40 accords with 19 U.S.C.A. § 1305.⁹ See also 19 U.S.C.A. §§ 1603 and 1604.¹⁰ It was also decided to institute forfeiture proceedings against Exclusive, to seek a prompt disposition of that case, and to adopt new regulations shortly thereafter. The following day it was decided that forfeiture proceedings should also be instituted against International Nudist Sun No. 16 and Review International No. 6. A copy of each of the magazines was, therefore, referred to the United States Attorney in accordance with 19 U.S.C.A. § 1305.

On Friday, February 11, a libel was filed against the shipment of Exclusive, and the attachment and monition were posted by the United States Marshal on Tuesday, February 15. Also on February 15, libels were filed against the shipments of the other two magazines. The attachments and monitions as to them were posted on February 16. The magazines had been formally seized by Customs, see note 5 above, on February 11 at about the time the first libel was filed. Court orders directing that the Marshal, in addition to his monition in rem, publish notice of the seizures and of the forfeiture proceedings were signed on February 16 in the case of Exclusive and on February 17 in the case of the other two magazines.

Meanwhile, Customs had given notice of the libels to claimant, and claimant filed answers to all three libels on February 28. A meeting with the Court was held on March 4, a trial date was set, and the trial began on March 9. Testimony and other evidence were offered by both sides, and the case has been fully briefed and argued.

Discussion of Procedure. Section 1305 of Title 19, U.S.C.A., is set out in note 1, above. The predecessors of that section have been in the Code for a long time.¹¹ One which was substantially the same as the present section was held constitutional in United States v. One Obscene Book Entitled "Married Love", S.D.N.Y., 48 F.2d 821 (1931). The present section was held unconstitutional in United States v. 18 Packages of Magazines, N.D.Cal., 238 F.Supp. 846 (1964), but that decision was rendered before Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), wherein the Supreme Court stated that "a noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system". 380 U.S. at 58, 85 S.Ct. at 738. The Court then summarized the necessary safeguards, as follows: (1) The burden of proof must rest on the censor; (2) no valid final restraint may be imposed except by judicial determination,¹² and any restraint prior to such determination must be designed to preserve the status quo; and (3) a prompt judicial determination must be assured. 380 U.S. at 58-59, 85 S.Ct. 734. In the year since Freedman, judges in the Southern District of New York have thrice refused to hold section 1305 unconstitutional on its face, but have required that it be applied in accordance with the tests set out in Freedman. See United States v. One Carton Positive Film, (McLean, J.) 248 F.Supp. 373 (1965), and (Graven, J.) 247 F.Supp. 450 (1965); United States v. One Book entitled "The Adventures of Father Silas", (Frankel, J.) 249 F.Supp. 911 (1966). This Court agrees with the decision in each of those cases, and refers particularly to the excellent discussion of the legislative history in Section II of Judge Frankel's opinion.

Customs admission procedures applicable to different types of publications must embody the safeguards specified in Freedman. Reasonable speed must be used to reach an administrative decision that a libel for forfeiture shall be filed, and a judicial determination of the issue of obscenity must be made with reasonable promptness. What is reasonable in the case of one type of publication, however, may not be reasonable with respect to another type. Some material is timely and loses much of its value if there is any substantial delay. Other material, such as that with which we are dealing in these cases, may be almost timeless. The instant cases present no such problems as are involved in the previous scheduling of motion pictures or the need of a student for a particular book.

The procedures condemned by Judge Frankel were established by Customs in an effort to reduce the number of forfeiture proceedings which would have to be brought in the courts, by encouraging administrative disposition before judicial proceedings are begun. Since it appears that those procedures result in unreasonable delays in many cases, the governmental agencies involved have wisely attempted to work out a more expeditious procedure.

The proposed new procedure, which was followed in these cases, meets the tests set out in Freedman, particularly when it is recognized that all publications, as well as all other goods which are imported into the United States, must be examined by Customs officials for many different purposes after they are entered and before they are cleared.¹³ The evidence in this case indicates that the new procedures will continue to result in the release of the material with reasonable promptness after entry if either the line examiner or the appraiser passes it.¹⁴ Even if the material is referred to the Obscene Literature Committee, its decision is usually rendered within two days. If the Committee decides to go forward, the matter must be taken up at once with the United States Attorney, who is required by statute immediately to inquire into the facts and forthwith to institute proceedings in the district court unless he decides that the proceedings probably could not be sustained or that the ends of justice do not require that they should be instituted and prosecuted. 19 U.S. C.A. § 1604. See note 10, above. Meanwhile, the material will have been seized and held by Customs to await the judgment of the district court, 19 U.S.C.A. § 1305, and the importer or his broker will have been notified of the seizure and libel. The seizure by Customs is in the nature of a detention of questionable material pending a judicial adjudication. Such restraint by detention is designed simply to preserve the status quo,...