CHATSWORTH, Calif. - Why is this relevant? What on Earth is a deodand? RICO who? Section 1467 of what? Read on.
Buried in the Adam Walsh Child Protection and Safety Act of 2006—the one you have been hearing so much about because it injected the secondary producer requirement into the 18 U.S.C. §2257 statute—is a short provision strengthening the section that allows forfeiture in connection with any federal obscenity conviction. This is obscenity, mind you, as in Miller v. California; not child pornography, which has its own forfeiture provisions. In the original bill, there was a provision allowing forfeiture for 2257 violations too. Thankfully, the industry dodged that bullet!
Why this is relevant is that, materially, every federal obscenity indictment that has been brought under this administration has included a forfeiture provision under 18 U.S.C. §1467 (they leave it out if the defendant is broke), and the new amendment considerably strengthens that statute. We’ll get to the details, but first a little background.
At common law, the value of an inanimate object directly or indirectly causing the accidental death of a king’s subject was forfeited to the crown as a “deodand,” derived from the Latin, deo dandum, to be “given to God.” So, if your cow escaped and killed one of the king’s subjects, the cow was forfeited to the crown, even if you were careful about repairing the fence. This was sort of the king’s way of getting even with the cow, and getting more milk for himself.
The concept of forfeiture went out of favor in more modern law, which includes the principle “Equity abhors a forfeiture”—at least until the 1970s, when Congress enacted the Racketeer Influenced and Corrupt Organizations Act, popularly called RICO, which was concocted by Notre Dame law professor G. Robert Blakey. Regulation 18 U.S.C. §1961, et seq. RICO “was intended to provide new weapons of unprecedented scope for an assault upon organized crime,” because sending mobsters to prison one at a time wasn’t working too well.
What was particularly novel about RICO—which roughly means a pattern of enumerated criminal activity—was the forfeiture of the assets used. The enumerated activities (or “predicate acts”) were mob favorites: gambling, murder, extortion, prostitution, trafficking in stolen property, and the like. RICO forfeiture was designed to cut the legs out from under organized crime, and it worked. Illegal gambling convictions netted not only prison time for the leaders, but also forfeiture of the buildings, telephones, bank accounts, and any other property involved.
After Congress was just about finished debating the Comprehensive Crime Control Act of 1984, North Carolina Sen. Jesse Helms turned RICO on its head by adding obscenity as a “predicate act.” He accomplished that in classic, eleventh-hour style, so it never was debated. Nevertheless, this put a whole new twist on obscenity prosecutions, because if a theater showed two movies that were later found to be obscene, the federal government could forfeit the projector, the theater, the company bank account, and everything else involved. Forfeiture was mandatory, no matter how disproportionate with the crime.
So did every federal obscenity case become a RICO case? You would think so, since federal obscenity prosecutions nearly always target multiple motion pictures and multiple transactions. Well, that wasn’t so. Why? Because—and properly so—the Department of Justice uses RICO very sparingly, since RICO indictments require the prior approval of the Organized Crime and Racketeering Section, Criminal Division of the Department of Justice (a difficult process). Indeed, since obscenity was added to RICO in 1984, there have only been about six obscenity-related RICO indictments, all of which also involved charges of massive tax fraud.
The sparing use of RICO displeased the DOJ’s obscenity squad in Washington because it was so difficult to obtain approval for a RICO forfeiture charge. So, in 1988 a bill was introduced to enact §1467 forfeitures, allowing an end run around the RICO approval process. The difference was that this one was introduced in time for debate, and debate there was. (Congress was controlled by the Democrats then.) After considerable and contentious debate 1467 was enacted, but total forfeiture was not so automatic because the debate netted the qualifier that, although anyone convicted could forfeit the instrumentalities and proceeds of the offense, the magnitude of the forfeiture of the instrumentalities (property, etc.) could be reduced “if the court in its discretion so determines, taking into consideration the nature, scope, and proportionality of the use of the property in the offense.”
RICO forfeiture found its way to the Supreme Court after Ferris Alexander’s entire Minnesota adult-bookstore empire—10 pieces of commercial real estate, 31 current or former businesses, and almost $9 million in cash—was forfeited as a result of a finding that a handful of items were obscene. Despite the blistering dissent of Justice Anthony Kennedy, the Court upheld this forfeiture (Alexander v. United States, 1993).
The first time the government utilized a 1467 forfeiture allegation was in the Great Western Litho case in the early 1990s, in which the trial judge did exactly what the government had feared—found that the number of items found to be obscene (two) was such an insignificant component of the defendants’ business that nothing was forfeited. The 5th U.S. Circuit Court of Appeals reversed the decision, publishing what many experts considered a very vulnerable opinion, written by outspoken critic of adult entertainment Edith H. Jones. Still, the government settled the case for a fraction of what was forfeited, thereby avoiding losing this opinion that was so wonderful from its standpoint (United States v. Investment Enterprises Inc., 1993).
Forfeiture in adult obscenity has about as much to do with child abduction as does gun control, but the ultra-conservative Christian right which has taken over our government nonetheless managed to tack this amendment—eliminating proportionality—onto the Adam Walsh Bill, which President George W. Bush signed on July 27 of this year. We will see where this all goes.
Clyde DeWitt is a Los Angeles attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online’s offices, or at [email protected]. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.
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