Appeal from the judgment of the United States District Court for the Southern District of New York, Brieant, J., holding that thirty-one magazines seized by the United States Customs Service were not "obscene" within the meaning of 19 U.S.C. § 1305(a) (1976 & Supp. IV 1980).
Van Graafeiland and Meskill, Circuit Judges, and Tenney, District Judge.*fn*
In this in rem action, the United States of America appeals from the judgment of the United States District Court for the Southern District of New York, Brieant, J., holding that thirty-one magazines seized by the United States Customs Service were not "obscene" within the meaning of 19 U.S.C. § 1305(a) (1976 & Supp. IV 1980). The appellant contends that the district court applied an improper standard of review when considering whether the seized materials were legally obscene for purposes of section 1305(a). We agree with the government's position and therefore reverse and remand this matter to the district court for further proceedings consistent with this opinion.
During April of 1982, United States Customs agents confiscated approximately eighty-six allegedly pornographic magazines during several routine inspections at various ports of entry in New York City. The seizure was accomplished pursuant to 19 U.S.C. § 1305(a), which authorizes customs agents to confiscate obscene materials imported into the United States.*fn1 The record shows that the magazines were mailed or shipped from Germany and therefore properly subject to seizure under the "importation" language in section 1305(a).*fn2
Customs Service regulations provide that articles are not deemed legally "seized" until the Imports Compliance Branch of the Customs Service determines whether the confiscated materials are "obscene" within the meaning of 19 U.S.C. § 1305(a). See App. for Appellant at 11-13. The Imports Compliance Branch made the requisite finding on April 26, 1982, and thereafter referred this matter for prosecution to the United States Attorney's Office for the Southern District of New York.
The government filed its complaint on May 3, 1982, seeking a warrant for the arrest of the seized magazines and a judgment that the materials be forfeited, confiscated and destroyed pursuant to 19 U.S.C. § 1305(a). The addressees of the confiscated materials were notified by mail that a bench trial would be held on June 24, 1982 to adjudicate whether the magazines were obscene and thus subject to forfeiture under section 1305(a). Notice of the pendency of this action was published in the New York Law Journal on May 14, 1982.*fn3
At trial, Judge Brieant determined that section 1305(a) review could be best accomplished by separating the magazines into two groups, Group A consisting of fifty-five magazines and Group B consisting of the remaining thirty-one publications.*fn4 With respect to Group A, the court applied the prevailing "community standards" test and found the fifty-five magazines to be "obscene" within the meaning of 19 U.S.C. § 1305(a). See Miller v. California, 413 U.S. 15, 30-34, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973). There is no appeal from this ruling.
Judge Brieant departed from the standard mode of analysis when considering the Group B materials. The judge rule that the "community standard" test should not be applied to these materials because:
It is relevant that they are published in the United States and sold locally right within this District. The Court is prepared to find that as to 31 of those articles, Mr. Tappe's position [ i.e., that they are not obscene] is well taken and I might say also, they all appear to be used merchandise. They are not new by any means and therefore apparently not being imported for channels of trade.
The Court believes that because of their current sale within this District that the community standards would not apply to the 31 exhibits which the Court has noted on the schedule.
See App. for Appellant at 43. Based on these findings, the court concluded that the Group B materials were not obscene and thus not subject to forfeiture under 19 U.S.C. § ...