US v. Pryba

• Decision Date: 03 November 1987
• Docket Number: Crim. No. 87-00208-A.
• Citation: 674 F. Supp. 1504
• Parties: UNITED STATES of America v. Dennis E. PRYBA, et al.
• Court: U.S. District Court — Eastern District of Virginia

674 F. Supp. 1504

UNITED STATES of America v. Dennis E. PRYBA, et al.

Crim. No. 87-00208-A.

United States District Court, E.D. Virginia, Alexandria Division.

November 3, 1987.

Lawrence Leiser, Asst. U.S. Atty., Alexandria, Va., for U.S.

Thomas J. Morris, Jr., Arlington, Va., for Dennis E. Pryba.

William B. Cummings, Alexandria, Va., for Barbara A. Pryba.

Plato Cacheris, Washington, D.C., for Jennifer G. Williams.

J. Frederick Sinclair, Alexandria, Va., for Educational Books, Inc.

MEMORANDUM OPINION

ELLIS, District Judge.

Introduction

This twelve count RICO-obscenity prosecution is the latest chapter in the continuing First Amendment-pornography saga.¹ The new twist here is the use of RICO,² indeed apparently the first federal prosecutorial use of RICO against purveyors of allegedly obscene materials.³ Until 1984, federal prosecutors targetting smut had an arsenal limited chiefly to 18 U.S.C. §§ 1461 et seq. Then, in 1984, Congress expanded RICO to cover obscene materials. It did so based on a concern that organized crime was contributing to and profiting from an "explosion in the volume and availability of pornography in our society."⁴ As a result, federal prosecutors may now use RICO's stiffer penalties and forfeiture provisions⁵ against sellers and distributors of allegedly obscene materials. This case is just such an attempted prosecution and this Memorandum considers and decides several dispositive threshold motions made by defendants.

Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), and Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), are perhaps the most important of the earlier chapters in the First Amendment-pornography saga. Roth made unmistakably clear that obscenity was not constitutionally protected speech and provided a standard by which to discern obscenity, namely whether the average person,⁶ applying contemporary community standards,⁷ would find that the work, taken as a whole, appeals to the prurient interest.⁸ This test predictably spawned more than a decade of spirited and confusing decisions.

In 1973, in an effort to redirect the course of the law in this area, the Court, in Miller v. California, rephrased and expanded the Roth test.⁹ Justice Brennan, who as the author of Roth had arguably initiated this judicial odyssey,¹⁰ was so disillusioned by the 15 or so years of judicial wanderings under Roth that at length, he dissented in Miller and its companion case, preferring instead an absolutist, "anything goes" approach to obscenity. Chief Justice Burger, on the other hand, persuaded a majority in Miller to carry on and refine the Roth effort to draw a line between obscenity and protected speech. Given that the instant case is the latest chapter in this saga, it is perhaps only fitting that the juxtaposed views of Justice Brennan and Chief Justice Burger serve here as a preface.

Thus, in dissenting in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973), a Miller companion, Justice Brennan noted that the effort to distinguish between protected and unprotected sexually oriented material, born of Roth, had proved so vexing, so time-consuming, and so divisive and had generated such disharmony of views¹¹ that the effort should be abandoned. As he put it, even after all this effort, the subject stubbornly "remained ... resistant to the formation of stable and manageable standards." 413 U.S. at 73, 93 S.Ct. at 2665.¹² Chief Justice Burger disagreed, noting in Miller that the convenient, anything goes, absolutist approach is not the law and that the "Court must face up to the tough problem of constitutional judgment involved in every obscenity case." 413 U.S. at 29-30, 93 S.Ct. at 2618 (quoting Roth, 354 U.S. at 498, 77 S.Ct. at 1316). So in the spirit of the former Chief Justice's words, this court now faces up to "the tough problems of constitutional judgment" raised in this novel obscenity case.

The Indictment

The indictment consists of twelve counts plus a number of RICO forfeiture allegations. Of the twelve counts, three allege RICO obscenity violations. The motions considered in this Memorandum Opinion focus solely on the three RICO counts and the accompanying forfeiture allegations.

Count I charges defendants, Dennis E. Pryba, Barbara A. Pryba, Jennifer G. Williams and Educational Books, Inc., with participating as principals in a "pattern of racketeering" involving the sale and distribution of allegedly obscene materials and with investing the proceeds of such activities in an "enterprise" engaged in interstate commerce, in violation of 18 U.S.C. § 1962(a). The enterprise is said to consist of the Prybas, Williams, Educational Books and seven unindicted corporations.

Count II alleges that Pryba and Williams, as persons employed by and associated with the enterprise, violated 18 U.S. C. § 1962(c) by conducting the affairs of the enterprise through a pattern of racketeering activity. And in Count III, the Prybas, Williams and Educational Books are charged with a Section 1962(c) conspiracy to violate section 1962(a).

Defendants mount a two-pronged attack on the RICO counts in the indictment. First, defendants argue three pleading points. Defendants assert that Counts I, II and III do not properly plead an "enterprise", as required by RICO. Next, the defendants claim that the government has not sufficiently alleged a pattern of racketeering activity. Finally, one defendant, Educational Books, asserts that it must be dismissed from Count III because a corporation cannot be guilty of conspiring with its agents when the agents are alleged to have used the corporation to carry out their own purposes. Second, they contend these counts should be dismissed because RICO's forfeiture provisions run afoul of the Constitution when applied to allegedly obscene materials.¹³ Specifically, defendants allege that RICO's forfeiture provisions: (1) have a "chilling" effect upon the distribution of protected speech; (2) act as a prior restraint on protected speech; (3) are unduly harsh and thus violate the Eighth Amendment; (4) violate due process principles; and (5) violate the ex post facto clause of the Constitution. Each of these contentions is separately treated.

Facts and Proceedings to Date

Defendants, Dennis E. Pryba, Barbara A. Pryba, Jennifer G. Williams, and Educational Books, Inc., own and operate or assist in operating a number of retail video stores that sell allegedly obscene material. On August 13, 1987, defendants were indicted on various counts under federal RICO alleging, inter alia, a pattern of racketeering activity involving dealing in obscene matter.¹⁴

On August 13, 1987, an ex parte restraining order was issued that enjoined defendants from selling, encumbering, or in any other way disposing of certain property that might be forfeitable under RICO's forfeiture provisions.¹⁵ In addition, the August 13 restraining order prohibited defendants from selling all video tapes, magazines, and other printed material. This order, however, was modified on August 25, 1987. The modified order permitted defendants to continue to conduct their business as normal "without substantially dissipating or diminishing the value of the assets" of their business or property.¹⁶

The Pleading Issues

A. The RICO "Enterprise"

Defendants argue that the enterprise alleged in the indictment does not meet the statutory definition. The alleged enterprise consists of individuals and corporations. In defendant's view, the statutory definition of "enterprise" precludes lumping together individuals and corporations. See 18 U.S.C. § 1961(4). Defendants claim that only enterprises composed solely of individuals or solely of other entities are statutorily permitted. The RICO counts of the indictment are thus said to be fatally defective. The Court disagrees; defendants' reading of the statute does violence to the plain meaning of the statutory definition of "enterprise" and, moreover, is contrary to well-reasoned authority.

Section 1961(4) states that "`enterprise' includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity" (emphasis added). This is sweeping language; there is no reason to give it a strained, restricted scope. Legislative history confirms this. The House RICO report stated that "enterprise" included

associations in fact, as well as legally recognized associative entities. Thus infiltration of any associative group by any individual or group capable of holding a property interest can be reached.

House Rep. No. 91-1549, 91st Cong., 2d Sess., 1970 U.S.Code Cong. & Ad.News 4007, 4032 (emphasis added).¹⁷ The Supreme Court, in another context, has also recognized the expansiveness of the term "enterprise". In United States v. Turkette, 452 U.S. 576, 101 S.Ct. 2524, 69 L.Ed. 2d 246 (1981), the Court rejected an argument that "enterprises" should be limited to legitimate business. In reaching this conclusion, the Court noted, "Congress opted for a far broader definition of the word `enterprise.'"¹⁸ It also stated that "there is no restriction upon the associations embraced by the definition in § 1961(4)."¹⁹

To accept defendants' argument that the term "enterprises" does not embrace individuals together with other entities, this court would have to ignore the plain meaning of the word "includes" and find that Congress used the word to indicate that the list following was exhaustive, not merely illustrative. Nothing warrants such a construction; plain meaning and legislative intent are to the contrary, as is the sparse, but well-reasoned and uniform existing authority. The Fifth Circuit in United States v. Thevis, 665 F.2d 616 (5th Cir.1982), cert. denied, 459 U.S. 825, 103 S.Ct. 57, 74 L.Ed. 2d 61 (1982), succinctly dealt with this point. It stated:

Appellants contend that because the indictment

...