US v. Alexander

Decision Date24 January 1990
Docket NumberCrim. No. 4-89-85(1).
Citation736 F. Supp. 968
PartiesUNITED STATES of America v. Ferris ALEXANDER, et al.
CourtU.S. District Court — District of Minnesota


Jerome Arnold, Paul W. Murphy, Mary E. Carlson, Minneapolis, Minn., for U.S.

Robert F. Smith, Universal City, Cal., and Deborah Ellis, St. Paul, Minn., for defendant Ferris Alexander.

Michael McGlennon, Minneapolis, Minn., for defendant Dolores Alexander.

Joseph Friedberg, Minneapolis, Minn., for defendant Jeffrey Alexander.

Dave G. Roston, Minneapolis, Minn., for defendant Wanda Magnuson.

Randall D.B. Tigue, Minnesota, Minn., pro se.


ROSENBAUM, District Judge.

This matter is before the Court pursuant to objections made to a Report and Recommendation and an accompanying Pretrial Order each issued on September 30, 1989, by the Honorable Janice M. Symchych, United States Magistrate. Magistrate Symchych's recommendations and order are appended hereto. Also before the Court are defendants' objections to a Report and Recommendation issued by the Honorable Patrick J. McNulty, United States Magistrate, dated November 29, 1989. This recommendation is also appended hereto.

In reviewing a report and recommendation, the Court must consider the arguments and evidence, de novo. 28 U.S.C. § 636(b)(1); Rule 72(b), Federal Rules of Civil Procedure (Fed.R.Civ.P.); Local Rule 16(C)(2). After review of the Reports and Recommendations, the Court adopts each magistrate's reasoning and holdings, except Magistrate Symchych's recommendations 1, 2, 4, and 5.

In parts 1, 2, 4, and 5, Magistrate Symchych recommended that the Court find the RICO pretrial Restraining Order and consequent post-conviction forfeiture provisions, each pursuant to 18 U.S.C. § 1963 (§ 1963), unconstitutional, both facially and as applied. The magistrate found these provisions to be unconstitutionally overbroad and unconstitutional prior restraints. The magistrate, however, recommended against dismissing Counts VI, VII, and VIII.

The magistrate examined the language and scope of § 1963 and particularly examined this Court's Restraining Order, dated May 30, 1989. The order in question was issued upon the grand jury's return of the indictment herein. The relevant substance of the Restraining Order will be set forth below. In her review of the Restraining Order, the magistrate focused on its ex parte nature, its recordkeeping requirements, and its probable impact on the sale or distribution of protected materials. The magistrate then considered the same factors as they are implicated by RICO's forfeiture provisions. After her analysis, she also recommended that the Court find RICO's forfeiture provisions facially overbroad and a prior restraint.

The magistrate further urged the Court to strike these forfeiture provisions as applied. Noting the indictment identifies property which is to be forfeit in the event of conviction, she found the forfeiture sections of the indictment to be overly broad, encompassing "multiple bookstores, theatres, and videotape rental establishments," at least some of which, she determined, were presumptively protected by the first amendment. Id. at 13.

The government objects to these portions of the Report and Recommendation, arguing RICO is intended to provide powerful penalties, including forfeiture, to those engaged in racketeering activity. The United States then asserts that the nature of the RICO offense—be it narcotics, arson, extortion, or obscenity—is of no moment. The government further suggests RICO's forfeiture and restraining provisions are in personam and limited to interests in property acquired, maintained, or used in the actual violation of the RICO statute. As such, the government claims RICO's forfeiture provisions are not overbroad, even in the obscenity context. The government concludes:

it is not the fact that the property is a bookstore, that triggers the forfeiture provision, but rather it is the owner's use of the property to conduct his illegal activity (the nexus) that brings the property within the ambit of the penalty provisions.

Government's Memorandum, p. 9 (citations omitted).

On the question of prior restraint, the government focuses upon the distinction between unlawful prior censorship and legitimate post-trial punishment. The government cites the language of Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), in support of the difference it perceives:

if the object of the statute is not punishment, in the ordinary sense, but suppression of the offending newspaper or periodical in the future

then the statute constitutes a prior restraint. Id. at 711, 51 S.Ct. at 629. The government urges rejection of the magistrate's recommendation to strike the Restraining Order.

For their part, defendants support the magistrate's Report and Recommendation. Indeed, they argue her recommendation is too narrow. They point to Near's proscription of prior restraints and to subsequent cases rejecting attempts to punish obscenity by means of restraint "considerably less drastic than the outright forfeitures imposed by RICO."1 Defendants also raise the spectre of differing community standards. They stress the possibility that an obscenity conviction in one community could lead to forfeitures in another community espousing completely different values.

I. The Restraining Order

The magistrate recommends lifting the Restraining Order on the grounds of unconstitutional overbreadth and prior restraint, finding the authorizing statute unconstitutional on its face and as applied. The Court addresses each of these issues separately.

A. Facial Challenge to 18 U.S.C. § 1963(d)
1. Overbreadth

A statute is overbroad if it unconstitutionally infringes upon free speech while regulating another activity. In other words, a statute is overbroad "if in its reach it prohibits constitutionally protected conduct." Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972). A law which arguably diminishes access to constitutionally protected materials is subject to first amendment overbreadth scrutiny. See Upper Midwest Booksellers v. City of Minneapolis, 780 F.2d 1389, 1391-92 (8th Cir. 1985).

The Court recognizes that invocation of the overbreadth doctrine is "strong medicine," which should be utilized "with hesitation, and then `only as a last resort.'" New York v. Ferber, 458 U.S. 747, 769, 102 S.Ct. 3348, 3361, 73 L.Ed.2d 1113 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973)). In considering a facial challenge to a Congressional enactment, the Court is mindful that it must "first ascertain whether a construction of the statute is fairly possible by which the question may be avoided." Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 296, 76 L.Ed. 598 (1932); see Harman v. Forssenius, 380 U.S. 528, 535, 85 S.Ct. 1177, 1182, 14 L.Ed.2d 50 (1965). The Court must determine if there exists a constitutional interpretation of the statute which is consistent with Congress' intent. United States v. Thirty-Seven Photographs, 402 U.S. 363, 370-75, 91 S.Ct. 1400, 1405-07, 28 L.Ed.2d 822 (1971).

Clearly, some RICO pretrial restraining orders have no free speech implications whatsoever. Under 18 U.S.C. § 1963(d), restraints on property associated with RICO gambling, arson, extortion, or narcotics charges would not normally implicate the first amendment. Similarly, in the obscenity context, an order can be narrowly crafted to reach only those items which the grand jury has found probable cause to believe are obscene.2

The Court is confident that judges issuing pretrial restraining orders, pursuant to 18 U.S.C. § 1963(d), will seek to do so in a manner consistent with the Constitution. This assurance has been held sufficient to deny facial overbreadth challenges to statutes on first amendment grounds. See Ferber, 458 U.S. at 773, 102 S.Ct. at 3363. The Court, therefore, declines to adopt the magistrate's recommendation holding 18 U.S.C. § 1963(d) facially unconstitutional in RICO prosecutions founded on obscenity offenses. The Court concludes that such pretrial restraining orders must be reviewed on a case-by-case basis. See American Library Assoc. v. Thornburgh, 713 F.Supp. 469, 486 (D.D.C.1989). See generally Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, ____, 109 S.Ct. 916, 927-28, 103 L.Ed.2d 34 (1989).

2. Prior Restraint

Near and its progeny counsel that any future restraint of speech, because of past or anticipated content, is a prior restraint. Near, 283 U.S. at 707-15, 51 S.Ct. at 628-30; see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554-56, 95 S.Ct. 1239, 1244-45, 43 L.Ed.2d 448 (1975); Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971); Freedman v. Maryland, 380 U.S. 51, 57-60, 85 S.Ct. 734, 738-39, 13 L.Ed.2d 649 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70-72, 83 S.Ct. 631, 639-40, 9 L.Ed.2d 584 (1963). Clearly, "any system of prior restraints of expression ... bears a heavy presumption against its constitutional validity." Bantam Books, Inc., 372 U.S. at 70, 83 S.Ct. at 639.

Yet, not all prior restraints are impermissible. Near, 283 U.S. at 216, 51 S.Ct. at 631; Southeastern Promotions, Ltd., 420 U.S. at 558, 95 S.Ct. at 1246. The cases make clear, however, that particular judicial safeguards and procedures must be followed before a prior restraint may be imposed. Southeastern Promotions, Ltd., 420 U.S. at 559-60, 95 S.Ct. at 1247; Freedman, 380 U.S. at 58, 85 S.Ct. at 739.

An ex parte pretrial order or injunction presents particular prior restraint difficulties. Under such an order a defendant is required to "obey the order ... pending review of its merits and ... is subject to contempt proceedings" if he fails to do so. Vance v. Universal Amusement Co., Inc., 445 U.S. 308, 319, 100 S.Ct. 1156, 1161, 63 L.Ed.2d 413 (1980). A...

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