United States District Court, Northern District of Illinois, E.D
January 7, 1985
UNITED STATES OF AMERICA, PLAINTIFF,
VARIOUS ARTICLES OF MERCHANDISE, SEIZURE NO. 148, DEFENDANT. UNITED STATES OF AMERICA, PLAINTIFF, V. VARIOUS ARTICLES OF MERCHANDISE, SEIZURE NO. 150, DEFENDANT. UNITED STATES OF AMERICA, PLAINTIFF, V. VARIOUS ARTICLES OF MERCHANDISE, SEIZURE NO. 151, DEFENDANT.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
(INCLUDING FINDINGS OF FACT AND CONCLUSIONS OF LAW)
These in rem actions have been brought by the United States for
forfeiture and destruction of allegedly obscene imported material
seized from the United States mails by the Customs Service.*fn1
the reasons stated in this opinion's findings of fact and
conclusions of law, issued as mandated by United States v.
Various Articles of Merchandise, Seizure No. 170, 750 F.2d 596
(7th Cir. 1984), this Court concludes all the seized materials
are obscene and shall therefore be forfeited and destroyed.
This Court's Mandate Under Seizure No. 170
In a different context this Court has had occasion to state its
invariable procedure of conducting a personal review of all
materials tendered in obscenity forfeiture proceedings. United
States v. Miscellaneous Pornographic Magazines, 526 F. Supp. 460,
467-68 (N.D.Ill. 1981) (hereinafter cited "YourStyle," after the
name of the publisher plaintiff in the consolidated action that
triggered all the substantive discussion in that opinion).*fn2 It
may be that our Court of Appeals' decision in Seizure No. 170 was
motivated at least in part by its concern lest District Courts
might slight — or perhaps even eschew — the distasteful, though
constitutionally mandated, task of personal review (thus Seizure
No. 170, at 599, referred to the need "to provoke care on the
part of the district judge").
All the same, this Court's own experience indicates the
commendable desire of our Court of Appeals ("So that review in
these cases will not be illusory . . . and to bring some
rationality into these proceedings," Seizure No. 170, at 598),
when translated into practice, most frequently proves
unrealistic. Almost all the materials tendered to this Court in
such proceedings over the years have been what might be termed
Jacobellian — bringing into play the truly inspired observation
(though its overuse has tended to make it commonplace) by Justice
Stewart, concurring in Jacobellis v. Ohio, 378 U.S. 184, 197, 84
S.Ct. 1676, 1683, 12 L.Ed.2d 793 (1964):
I shall not today attempt further to define the kinds
of material I understand to be embraced within that
shorthand description ["hard-core pornography"]; and
perhaps I could never succeed in intelligibly doing
so. But I know it when I see it, and the motion
picture involved in this case is not that.
Whenever a case is an obvious "I know it when I see it"
candidate, with the seized material compelling an equally obvious
affirmative conclusion as to obscenity, it is extraordinarily
difficult if not impossible to articulate any meaningful findings
of fact of a kind that would ease the task of appellate review.
As the Supreme Court Justices themselves have found in obscenity
cases, there is no substitute for their viewing the offending
materials and reaching their own conclusions as to "patent
offensiveness." And that problem is really at the hard core of
the conclusion recently expressed by the Second Circuit in United
States v. Various Articles of Obscene Merchandise, Schedule No.
2102, 709 F.2d 132
, 136 (2d Cir. 1983) (a conclusion rejected and
impliedly criticized by our own Court of Appeals in Seizure No.
170, at 598)*fn3
Although appellate courts are required to exercise de
novo review as to the preliminary substantive
requirement that the material be "hard core"
pornographic in nature, Jenkins v. Georgia, supra,
418 U.S.  at 160-61, 94 S.Ct. 
at 2754-55 [41 L.Ed.2d 642], the trier's finding that
the material is non-obscene is virtually shielded
from appellate scrutiny, at least absent evidence
that it is so clearly unreasonable as to amount to
abuse of discretion.
One other factor that impelled our Court of Appeals to adopt
its requirement for "explicit findings and conclusions" (Seizure
No. 170, at 599) does not withstand analysis: its citation of
United States v. Various Articles of Obscene Merchandise,
Schedule No. 2098, 536 F. Supp. 50, 53 (S.D.N.Y. 1981) for the
proposition that "a finding of obscenity as to an article would
be res judicata (in the same community, presumably) for
subsequent importations of that same article" (Seizure No. 170,
at 599). Even a brief rehearsal of the concept of res judicata or
claim preclusion — which bars subsequent litigation between the
same parties to the prior litigation — makes the suggested
application of that concept to Section 1305(a) forfeitures
bizarre indeed. It must be remembered the producer or distributor
of the publication receives no notice of the Section 1305(a)
proceedings — only the addressee of the seized copy does.*fn4
Obvious due process infirmities would attach to a conclusive
determination of obscenity of a publication, made binding on the
real party in interest who has had no notice or opportunity to
litigate, with the determination having been rendered in a
proceeding in which an addressee of a copy was the only party
notified. In fact the same due process concerns should apply even
to a later proceeding involving a different addressee of the same
publication, who also has not had his or her day in court.
Merely labeling the proceeding "in rem" does not alter matters,
for the subject of in rem proceedings — the property subject to
destruction — is only a particular item of property (in this case
a copy of a publication), not the generic class of which that
item of property may be a part. That is the established wisdom in
the res judicata field — or more accurately, the field of
collateral estoppel or issue preclusion, for the problem with
which our Court of Appeals was rightly concerned in Seizure No.
170 was the prospect of binding a different litigant in a future
lawsuit involving the same publication. We need look no farther
than the Restatement of Judgments to show that the unsupported
"res judicata" statement in Schedule No. 2098 (referred to with
apparent approval in Seizure No. 170, at 599) is not only
unsupported but unsupportable in law as well as in logic.*fn5
This is not to minimize the practical (as distinct from legal)
effect of a court's declaration that a copy of a publication is
obscene. Such a prior determination may well have a precedential
influence on another District Judge who is later called upon to
consider forfeiture of another copy of the same publication. But
that prospect is totally distinct from a res judicata
determination that would foreclose such later review. And even
the practical persuasiveness of an earlier declaration of
obscenity is necessarily diminished if the earlier forfeiture is
one that went by default, without the usual testing in the
crucible of the adversary process.
Despite the somewhat questionable underpinnings discussed in
this section, this Court will of course essay the task presented
by Seizure No. 170 in every Section 1305 case delivered to its
calendar under this District Court's random assignment
system.*fn6 Its analysis of the materials in issue in these cases
Application of the Standards in These Actions
Seizure No. 170, at 597 paraphrased the familiar constitutional
test of Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607,
2614, 37 L.Ed.2d 419 (1973) this way:
To determine whether a particular item is obscene, we
apply a three-part test: first, the work, taken as a
whole, must appeal to prurient interests; second, the
work must portray sexual conduct in a patently
offensive way; and third, the work, taken as a whole,
must lack serious literary, artistic, political or
As in Seizure No. 170, the works at issue here unquestionably
fall comfortably within the first and third criteria. Observation
demonstrates that result without the need for any discussion, and
this Court so finds.*fn7
That leaves only the issue of patent
offensiveness for resolution.
Both the District Court and the Court of Appeals in Seizure No.
170 looked to the "average person in the relevant community" for
that determination. There is no doubt the graphic depiction of
sexual matters has undergone a dramatic revolution in taste in a
single generation. In 1963 (if recollection does not play false)
this Court and its then partners in the law practice defended
Hugh Hefner against a City of Chicago obscenity charge stemming
from photographs in an issue of Playboy magazine. One of those
offending photos showed actress Jayne Mansfield (a "sex symbol"
of that era) in bed and apparently unclothed (though she was
substantially covered by the bedsheets, and no genitalia were at
all visible in the photographs), with a male actor sitting fully
clothed (indeed maybe even wearing a fedora, again if
recollection is not playing tricks) on the same bed. Other photos
showed Ms. Mansfield in other situations, but none depicted any
sexual activity or any frontal nudity that included genitalia. Of
course those pictures were not obscene, but the very fact they
could then stimulate an obscenity prosecution (while today they
would not stimulate sale of a magazine, let alone much if any
prurient interest) suggests how and to what extent other times
have produced other mores.
At the same time this Court cannot permit the mere fact that
some commercial market now exists for a product to compel a
negative decision as to its patent offensiveness, for the
ultimate result of that kind of analysis (or lack of it) would
compel judicial denial of every forfeiture where the addressee is
a consumer who has ordered the merchandise. "Contemporary
community standards," for patent offensiveness purposes, must
look to the judgment of the "average person in the community,
rather than the most prudish or the most tolerant," Smith v.
United States, 431 U.S. 291, 304, 97 S.Ct. 1756, 1765, 52 L.Ed.2d
324 (1977). As Seizure No. 170, at 600 put it:
We have already noted that availability [in the
relevant community of similar materials] is not
simply to be equated with acceptability, although
there is, of course, an obvious linkage.
Contrast the differing decisions by the Court of Appeals for the
Second Circuit in Schedule No. 2102, 709 F.2d at 134-37 (and
Judge Meskill's concurrence, id. at 137-38), on the one hand,
with Schedule No. 2127, 705 F.2d 41
, 43-44 (2d Cir. 1983) and the
earlier decision in Schedule No. 2102, 678 F.2d 433
, 435 (2d Cir.
1982), on the other.
This opinion will turn then to the materials seized in these
actions. All the following individual findings will simply
classify the kinds of activities depicted, as a consequence of
which this Court has found both the kind of activity and the
blatant method of its depiction in each of the seized materials
clearly "portray sexual conduct in a patently offensive way" —
doing violence to contemporary community standards.
Seizure No. 170, at 599 (citations omitted) identified one
risk-fraught government alternative in these cases:
The government, of course, is under no constitutional
obligation to provide evidence of community
standards. . . . The material, if hard core, may be
left to speak for itself. . . . If the government
does not present evidence, however, it must be
prepared to have the district court declare that, by
its lights, the material is not self-evidently
offensive to the community. . . .
That is the course the United States has pursued here. As it
develops, the risk has not materialized. This Court has in turn
determined (expressing "its own sense of what the standards of
the relevant community are," id., at 601) that the purveying of
"dirt for dirt's sake" in the manner represented by each of the
seized materials is "self-evidently offensive to the community"
(id., at 599). It may be that our society (or at least the
Chicago area, the "relevant community" in this case) will some
day decline to the level at which such blatant portrays of sexual
conduct are not "patently offensive" — but in this Court's view
it requires no more evidence than a direct review of the
materials themselves to find that day has not yet arrived for the
materials seized in these cases.
It should be underscored that this has been an individualized
determination, not one predicated on lumping the seizures
together. Responsive to our Court of Appeals' directive, a brief
summary of the materials follows:
1. Seizure No. 148
Item 1 — "Sex Inspiration No. 7" is a magazine containing still
photographs depicting persons engaged in cunnilingus, fellatio,
mutual and self-masturbation (including the use of dildos) and
genital intercourse, with graphic exposure of genitalia
throughout the photos and an occasional view of ejaculated semen.
Item 2 — Each of "Top Porno," "Venus Studio," "Top Sex No. 2,"
"Super Porno" and "Club Tabu 1" has contents of the same
description as Item 1, except that the last two magazines include
several innocuous introductory photos before getting down to
their principal business.
Items 3-10 — Each of these consists of advertising materials
for like magazines and comparable films. Their advertisements
contain graphic descriptions of all conceivable variants of
sexual activity, together with sample depictions of each of the
advertised publications showing the sexual activity itself.
Item 11 — "Joyboy 32" is a magazine devoted to photographs
depicting young boys engaged in fellatio, mutual and
self-masturbation and anal intercourse, with some of the
photographs showing ejaculated semen.
Item 12 — "DeVaar BV Nr. 8" is a book-sized glossy catalogue of
magazines and video cassettes depicting all the kinds of sexual
activity referred to throughout these findings, again together
with a graphic sample depiction from each of the advertised
Item 13 — "Sex Bizarre 32" is a later edition of the
publication of the same name described in Seizure No. 170, at
597, with content conforming to the Court of Appeals'
Item 14 — "Dream Boy 7" is a later edition of the publication
described in Seizure No. 170, at 600-601, and it too includes the
showing of ejaculated semen from the adolescent boys depicted in
Item 15 — "Animal Orgy 12" is a magazine showing lesbian
cunnilingus, then a series of graphic photographs of a variety
of sex acts with animals ("bestiality," in the literal sexual
sense), with human fellatio and genital intercourse interspersed.
Items 16-18 — "Lesbian Quintet" is a film devoted entirely to
women engaging in cunnilingus, mutual and self-masturbation and
the extensive use of dildos for simulated genital intercourse.
2. Seizure No. 150
Items 1-4 — These are advertising materials identical to Items
3-10 of Seizure 148.
Item 5 — "Sex Bizarre 30" is an earlier edition of Item 13 of
Seizure 148, showing identical kinds of activity.
Item 6 — "Sweet Little 16" is a more than 70-page
glossy-photograph magazine, beginning with a one-paragraph
"Editorial" that recites some homilies and concludes by saying:
There are so many things to make this life worth
living, one of them could be this magazine.
What follows is an uninterrupted series of photographs of sexual
manipulation, fellatio, genital intercourse, cunnilingus,
masturbation and anal intercourse, some of the photographs again
including ejaculated semen. Finally the "Readers Corner" contains
letters about and pictures of like activities from
correspondents. Though the magazine even contains a centerfold,
its differences from such magazines as Playboy and Penthouse
enormously outweigh the similarities — it is no better than an
Item 7 — "Pony Party" is a film showing cunnilingus and then
bestiality (the latter involving the "hero" identified in the
3. Seizure No. 151
Items 1, 2 and 5 — These are advertising circulars for films
portraying substantially all the activities described in these
findings, again including graphic picture portrayals as well as
Item 3 — "Anal Sex 50" is a magazine showing not only an
extensive gallery of acts conforming to the magazine title but
also cunnilingus, fellatio, genital intercourse and female
masturbation through use of dildos, with some of the photos once
again depicting ejaculated semen.
Item 4 — "Anal Sex Nr. 4" — This item fits the same
Item 6 — This untitled 8 mm. film contains (after a fleeting
innocuous introductory scene) a graphic and continuous depiction
of active male homosexual conduct of the kinds shown in still
photographs in Item 11 of Seizure No. 148 — except that young men
rather than young boys are engaged in the activity.
Item 7 — "Video Index 84" is a perhaps 100-page glossy color
index of films depicting all the kinds of activities described in
these findings, once again with a graphic and salacious
description of the contents of those films.
Items 8-11 — "Horny Massage" is a film depicting fellatio,
genital intercourse, cunnilingus (including lesbian cunnilingus)
and masturbation. Once again there are depictions of ejaculated
semen, this time on film.
Items 12-13 — These items have been destroyed pursuant to
consent of the addressees obtained administratively.
Item 14 — This comprises seven long-play video cassettes (all
directed to the same addressee), each containing three or four
full-length films (it appears the cassettes are the conventional
six-hour size). In several instances the cassettes include
conventional motion pictures (e.g., Charles Bronson in "Death
Wish II" and Clint Eastwood in "Sudden Impact"). But even those
cassettes have one or more films (and the other cassettes have
each of their films) devoted entirely — except for some purported
excuse for a story line — to activities of the nature described
in these findings. Because of the video cassette medium, the
films are enabled to have sound tracks that, by recording the
sounds of the sexual activities, add to the pornographic
character of the pictures. All of the sex-related films are thus
plainly obscene. And this Court will not do what the distributor
not chosen to do: separate the fractional legitimate content from
the obscene. All the tapes will be destroyed.
Items 15-17 — "Toy 37" is a magazine targeted to homosexuals
who are "into" leather, rubber and uniforms. It both describes
and depicts not only male genitalia, in close-up as well as
longer-range shots, but also anal intercourse.
All the materials that are the subject matters of these actions
are obscene under the controlling legal tests. All are declared
forfeited and shall be destroyed.
Even a brief review of the basic principles of claim preclusion
and issue preclusion, as applicable to in rem proceedings,
demonstrates the unsoundness of the District Court's statement in
Schedule No. 2098, 536 F. Supp. at 53. Restatement (Second) of
Judgments 2d § 30 (adopted and promulgated June 12,
1980)[fn1a]provides (emphasis added):
A valid and final judgment in an action based only on
jurisdiction to determine interests in a thing:
(1) Is conclusive as to those interests with
regard to all persons, if the judgment purports to
have that effect (traditionally described as "in
rem"), or with regard to the named parties, if the
judgment purports to have that effect
(traditionally described as "quasi in rem"); and
(2) Does not bind anyone with respect to a
personal liability; and
(3) Is conclusive between parties, in accordance
with the rules of issue preclusion, as to any
issues actually litigated by them and determined in
One of the listed examples of actions covered by that principle
is "actions by the government to forfeit a thing used in
violation of the revenue or other laws" (id. Comment a) — a
definition clearly broad enough to embrace forfeitures under
Section 1305(a). Comment a teaches that in such actions "a court
may enter a final judgment purporting to bind all persons in the
world with respect to interests in the property (traditionally
described as a judgment `in rem'" and that "interests in the
thing are conclusively determined even as to parties who
default," but (emphasis added):
The foregoing effects of a judgment with respect to
interests in a thing must be distinguished from the
effects as to issue preclusion — collateral and
direct estoppel — discussed in Comment d, below.
There can be no such preclusion except as between
parties appearing and litigating particular issues.
Comment d in turn repeats the classic rules of issue preclusion
(no emphasis is added, because every sentence (and nearly every
phrase) puts another nail in the coffin entombing any idea of res
judicata on the issue of obscenity):
A valid judgment based only on jurisdiction over a
thing is conclusive as to interests in the thing,
even as to nonappearing parties (see Comment a). Such
a judgment has no further conclusive effect except in
accordance with the rules of issue preclusion set
forth in §§ 27, 28. Under those rules, parties who
have appeared in the action and litigated an issue as
adversaries will normally be precluded from
relitigating that issue if its determination was
essential to the judgment.
And the Reporter's Note on Comment d states (citations omitted):
That there are no estoppel effects if the adverse
claimant does not appear, even though the judgment is
conclusive in fixing
the interests in the thing, is shown by the following
It follows a fortiori from the quoted principles that a
non-party to the first action suffers no estoppel effects (most
notably on the key issue of obscenity). And though that is more
obviously so if the addressee in the first case did not choose to
appear in the proceedings, it is equally true even if that first
addressee — not authorized to represent the non-party (such as a
second addressee or the publisher or distributor) — did appear in
the first case.