United States v. Reliable Sales Company
376 F.2d 803
4th Cir.
1967
Check Treatment

*1 motivated, guilty plea so Briley’s all of plea constitutes waiver application, in his asserted defenses jurisdictional na- of which are none States, 9 v. United Thomas

ture. See

Cir., F.2d 697. therefore district

correctly with dismissed hearing. 28 U.S.C. §

out See not decide whether We need applica grounds in the advanced right. We

tion invoke however, note, the search do Bryan, Judge, without V. Circuit dis- is in event Albert seizure exclusionary rule sented. because the substance Ohio, Mapp v. State of announced 6 L.Ed.2d S.Ct. 1961, may not be retro decided actively 1959 conviction. Walker, Linkletter v. 601; 1731, 14 L.Ed.2d Sessions

Wilson, Cir., F.2d 368.

Affirmed. America,

UNITED STATES of Appellee, COMPANY,

RELIABLE SALES Claimant, Appellant.

No. 11204.

United States Court of

Fourth Circuit.

Argued March 1967. April

Decided *2 port to the the of Baltimore

tered at Company, the of account Reliable Sales By importer of December record. 1966, sample copies sent had been thereof Attorney at Balti- to the United States Baltimore, Yankellow, Md. N. Norman pro- of forfeiture more for consideration Baltimore, Md., Rosenthal, on (Joseph 7, 1966, ceedings. the On December appellant. brief), for complaint Attorney filed a United States (Arthur Atty. Kenney, U. Thomas J. S. seizure for under 19 the U.S.C. § Goetz, Asst. Murphy E. and G. Clarence By magazines. and forfeiture Szukelewicz, Attys., and Edward S. U. S. stipulation to the submitted the casé was brief), Justice, Atty., Dept, on of obscenity. On of court on the sole issue appellee. January Roszel Chief Judge, HAYNSWORTH, Before Chief C. Thomsen filed an BELL, and J. and BRYAN SPENCER magazines of found three issues the Judges. Circuit not to be and eleven issues be obscene judge January 12, the On obscene. Judge: BELL, Circuit SPENCER J. directing the ob- that an order issued appeal question this on before us that the and forfeited scene material be magazines by the held immediately certain whether not issues found obscene proceeding forfeiture district court entered and released from seizure under 19 through to the the Bureau of Customs immediately released obscene should be the Upon from instructions importer order of the to the or whether the the officials of District by stayed may release comply this order. Bureau with failed to States, question merits of the this court the January 16, the United On obscenity. agree deter- with the We on to this court filed its notice of judge as set directing mination of the district part the that the order February by ‘forth in his magazines the found release re- issue the constitutional and on Jan- trial court to be property quires the bulk of the uary 17, 1967, filed Government in order released and a held petition with district court may that the have review Government operation prior release order of appellate precedent deci- of an value pending appeal. In order which was finally and to 2, 1967, by agree- sion determine February dated as of subsequent im- court, on its merits in case parties ment and ports materials. objection, identical or similar court, over claimant’s stayed operation shipments of his release order 1966, two On November formally January en- nudist were 12 until an “from pertinent parts Upon read: of the statute tion of the book or matter seized. adjudication “Upon appearance such or mat- such book office, customs book or matter thus is of tire character ter seized by entry the same shall be seized held section and of which is destroyed hibited, await the collector to it shall be ordered pro adjudica- destroyed. Upon as hereinafter the district court and shall be vided; protest thus and no shall be taken book or matter tion such entry Court to the United Customs of the character seized is not prohibited, collector. section from the decision of which is entry Upon mat of such book or shall not be seizure excluded provisions in shall transmit of this section. ter collector under the any party proceeding district at “In formation thereof such may upon torney in which is demand have of the district situ interest jury by a seizure determined ated the office at which such facts at issue any party place, institute have an taken who shall and has proceedings right of review as the case in the district court the ordinary forfeiture, confiscation, suits.” destruc- actions or time, within a short an un- the Court was not order” can be heard the statute. the Fourth Circuit. opinion accompanying the the court pertinent thinkWe to note that while proceed- that its concluded decisions principally the cases deal adminis- ings be sub- under section 1305 should delay prior trative which invalidates sub- *3 ject find- that the decision to review but processes censorship, mission ing obscene should have material not specified Court in Freedman the safe- challenged releasing the same effect of guards necessary process to make the publications the statute as under (1) constitutional as follows: the bur- (or decision of the of Customs Collector censor; proof den of must rest on the subordinates) his the United States (2) no valid final restraint im- Attorney a not to or his assistants file posed except by determination, judicial However, complaint would have. prior and restraint to such determi- not act in district court in case did designed preserve nation must be to opinion accordance but allowed quo; prompt judicial status and a stay to his order remain in effect determination must be assured. 380 hearing, he knew had been set which 58-59, U.S. 85 S.Ct. 734. 7, opinion In its March necessity Because we think the hereafter in district court stated that prompt judicial for a in determination is routine cases it would release bulk keeping spirit with the of the Court’s in material found but against precensorship strictures that re possibility order to avoid the of mootness withholding public sults in from the whenever it found material not obscene materials, reject First Amendment we pro- and ordered its immediate release argument Government’s because vision would be made that legis, the materials are in custodia ap- each item the time be held until stayed order for their release should be peal expired, ap- and if the case were through- pursues way while the case its pealed by the Government until such the courts as would other case. finally time as determined on the merits. The further very exceptional Warrant,

vided that if cases Marcus v. Search 367 promptly 1708, files an 81 6 L.Ed.2d 1127 U.S. S.Ct. “may grant very stay (1961), Quantity the court short A Kan of Books v. permit present sas, to the Government to 378 84 12 L.Ed. S.Ct. request stay pending appeal (1964), opinions to one 2d 809 both written judges Appeals.” Brennan, emphasize of the Court of Mr. that the Justice determinative factor va insofar as the In United States v. Claimant lidity censorship procedures is con (Central Magazine Ltd.), Cir., Sales, 4 adequate cerned is whether or not safe 373 F.2d we affirmed the guards provided prompt to dis insure Judge of Chief Thomsen in United States publications semination of have not “Exclusive”, Copies Magazine v. judicially 392 been determined to obscene. F.Supp. holding (D.C.Md.1966), 253 prohibiting Here are in fact the dis we only this section Act of the Tariff semination materials which not 1305) judicially 19 U.S.C. to be constitu have not been determined tionally valid on judicially its face and as be obscene but have been de in that case. See Freedman termined State also not obscene. See Maryland, Books, Sullivan, S.Ct. Bantam Inc. v. 372 U.S. (1965). procedure, 58, L.Ed. (1963). same 83 9 L.Ed.2d 584 up stay where was is thinkWe the answer to the Government’s sued, here, pursued expressed might hap hold we concern toas what granting this, pen disagrees a case if this with the impression of first where the district court as of ob day scenity was set certain is to be found in only one which must take One trict court States Frankel United place questionable material can Fa- before Adventures “The Book Entitled them- (S.D.N.Y. be released. customs officials F.Supp. Silas”, ther determination, and releasing selves must make the ob- 1966), said wherein they ques- if decide the material is not undue viously books because obscene tionable, there no delay: reference courts and the material is released slips possibly book obscene “If a If customs thinks the gauntlet univer- through, it faces a questionable, then material is sure, obscenity To be sal laws. state has to make determin- been has not Amendment the First as ation to whether the material should strictly power less inhibit state held to challenged the district court. * * * does than federal. *4 If the United § Attorney conversely, follow, ‘risks’ that the States believes the material occasionally, expression not free should challenged, should not be order can readily matter, practical a more as be importer. the material the released to by Federal Government. tolerated the recognize passed While that the issue we omitted.] Id. at [Footnote upon by customs and the United States passed is from different that do that the Govern Nor we think by upon court, in the the district that the contention that ment is correct in its purpose parties first two decide the ma- whether frustrat would of the statute be terial questionable is and the third by after ed the of the material release whether it is we nevertheless by a decision the district court by thought upset not are mate- language the the not obscene. The rial will upon be released aof the con not itself to that statute does lend judge district that it not is obscene when : struction it can be practically released on same the “Upon appearance such the by conclusion of the either two other office, book or matter customs at parties. by held seized and the same shall be think, therefore, We in the or- judgment of the the collector to await dinary stay case a the order of re- the district court as hereinafter * * *” on lease passed by material dis- vided; [Emphasis the added.] compatible trict court would not be with provides The trial statute then statutory scheme, though such even of the a and destruction forfeiture stay might a only remain in effect until obscenity finding a matter stay order itself could be reviewed adds: by appellate court. think to hold We adjudication otherwise would or raise a “Upon book that such as to the is not of the charac- of the thus seized matter statute. by entry We also think the inconvenience ter of which appellate to an having in prohibited, be ex- court to ad- it shall not section vance entry provi- such cases should under the on its docket cluded given consideration. sions of section.” be by right appeal district court that of the The addition stay ordinary in cases is not inconsistent it should not Government until such interpretation which statute order for dissemination by circuit materi- reviewed order can be would allow dissemination agree adjudicated approved. also ob- We not al it has after been wherein cases have district court those court. As we scene the district not obscene pointed out, have finds the material would still reviewing of the material perform order should function to valid may not case mer- retained in order that on decision district court’s An will entered order adjudication dis- mooted. its. Nor is an legislation generally terminating which was was established our (Cen- here in Claimant open United States v. court.* issued Ltd.) Magazine Sales, F.2d etc. 373 tral BRYAN, Circuit 16, 1967). provides ALBERT V. Cir. Feb. (dissenting): for an either the United or means that This appellant not be decision of the trial court shall delayed, not be insists should inquiry uncom- conclusive of reaching public appeal, present —a Indeed, statutory mon exclusively scheme. pictures composed opposite they Had the unusual. Europe, would be nude women. Printed obscenity, appellant consumption trial court found for American are offered hardly de- immediate import- would consent to producer and the profit copies pending struction of a few reproduc- all but purport They do er. grievance Actually, appellant’s review. material of art. If of works tions enjoys the same reports, is that or commercial of news consisted right appellant. expressions discovery, as the or scientific data non-religious religious political, Congress Obviously, was to the aim of ephemeral or advocacy, or novel some prevent questionable the distribution information, I product or evanescent complete resolution material urgency argument grasp could theAt obtained. the doubt had been *5 pre- dispatch in its dissemination- —to dangers it same time alert to was Amend- the First vent of stultification censorship dilatory arbitrary of or speech of commands of ment’s freedom enacted administration. The statute censorship. through sluggish press avoiding hope For of in the both. This, course, primary concern. is of of history, legislative summary see Maryland, 380 Cf. Freedman v. State “The Book Entitled United States v. One 734, 51, 59, 13 L.Ed.2d 85 S.Ct. F.Supp. Silas”, 911 Adv. of Father 249 649 (S.D.N.Y.1966). No unconstitutional delay is statute utilization of the My in the point charac- is that the admitted case, con- in this even without publications is itself manifest ter of the instant import. I required sideration of nature proof the time upon premise do not see factual First instance threaten does not in this majority rights. Moreover, predicates annulment its the ex- Amendment contemplated by the effectually judicial process sought pedition subvert would procedure has Congress. statute. Elsewhere the or the will of circumvent de- free of constitutional been declared argument, Appellant’s sustained now Pos- Carton fect. United States One Court, adherence to is that F.Supp. Film, itive Picture 247 Motion 1305, Congressional pattern, 19 U.S.C. § (S.D.N.Y.1965), aff. on magazines. impairs its investment Cir. 367 F.2d 898-902 competition will, says, It it retard its 1966). spreading similar others who are adjudi- throughout an The reference to statute’s stuff the United States. in- does not cation in the District Court subject pictures so has not The finality give danger puipose it thought perishable dicate a far been or effectively preclude sense that would obsolescence. Nor are we shown ap- style Adjudication outmod- connotes or fashion become review. alluring passage time. peal ed less as well. Congress, The act U.S.C. The order would turn District Court’s § magazines, procedure orderly copies outlines a de- for the loose about keep what, alia, retaining is

termination inter is or but few as constitutionality litigation appeal pui-poses. not obscene. alive for * Judge prepared foregoing opinion, Bell but was filed. he died before the cessity left to executive discretion. Parenthetically, be I not sure am However, viability destroy once it been taken to has cedure does Congress certainly may courts, constitu- by emptying the vital it case tionally controversy. the doubt- exact a full canvass of actual element of magazines on the ful issue. It must remembered that event, dump these books, hope only questionable magazines, holding etc. country, in the a few while mootness, subjected delay practice are in to the case from preserving lip-hom- appeal. full-dress trial and statute with is to mock the age appellant save the all to —-and I continue the would dirty competition busi- in this hurt magazines’ adjudi- a final release until this case appellate decision in ness. An in- cation is made of the determinative future; guidelines will not set quiry. Frequently, is denied a con- bail ruling. It is simply an ad hoc it will vict until the termination of an recognized authoritatively can there Supreme Court universally standard be no from an of his intermediate reversal Roth for obsceneness. measurement conviction. think literature I doubtful States, v. United greater is entitled to no consideration (1957); 1 L.Ed.2d during from the District Court Ginzburg States, 383 U.S. appel- Appeals. to the Court of If the 480-481, 16 L.Ed.2d 86 S.Ct. lant here is to deal in merchandise dissenting). This (Black, J., decency, puritanical uncertain is not jury emphasized by the allowance of require to await a final decision. obscenity and in the of criminal trial Government, too, entitled to its forfeiture, or de- confiscation libels day in court. struction of the literature. op.

1305; Ginzburg, supra, cit. Roth subsequently the is no answer commodity may pros- dealers in this *6 magazines if the ecuted the States Congress not intend did

found obscene. their Federal courts abdicate responsibilities the statute under re Matter of Disbarment Pro- grist provide courts. the criminal OSBORN, ceedings Against T. Jr. Z. inflow. The It to dam the wanted Dis- From Practice in the United States approved by has cedure the Court now District of trict Court For the Middle stamping the effect Tennessee. Though judicial imprimatur. Osborn, Jr., Appellant. Z. T. certainly no provisional, it is meanwhile No. 15758. prose- less a serious obstruction State cution. States Court of Sixth Circuit. knowledge justified Nor May 2, 1967. might have released that Customs courts. reached the material before it possibility. Often an unusual

This is not agency must ex- or officer

a Government become effective ercise a courts, even

without might though contrary have decision Prime in the courts.

been rendered by In- examples are the determinations liability. of no tax

ternal Revenue many simply instances another practical ne- must

where resolutions