Kathleen L. Eckstein, Administratrix of the Estate of Harryj. Eckstein, Jr., Plaintiff-appellant, v. Kenneth E. Melson, Defendant-appellee, 18 F.3d 1181 (4th Cir. 1994)

ARGUED: Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, for appellant. Michael Scott Raab, Civil Division, U.S. Dept. of Justice, Washington, DC, for appellee. ON BRIEF: Jeanne Goldberg, Victor M. Glasberg & Associates; John Kenneth Zwerling, William B. Moffitt, Lisa B. Kemler, Moffitt, Zwerling & Kemler, P.C., Alexandria, VA, for appellant. Stuart E. Schiffer, Acting Asst. Atty. Gen., Kenneth E. Melson, U.S. Atty., Barbara L. Herwig, Civil Division, U.S. Dept. of Justice, Washington, DC, for appellee.

Before NIEMEYER, Circuit Judge, CHAPMAN, Senior Circuit Judge, and KAUFMAN, Senior United States District Judge for the District of Maryland, sitting by designation.

OPINION

FRANK A. KAUFMAN, Senior District Judge:

Kathleen Eckstein, plaintiff-appellant in the within case, appeals from the dismissal of certain of her claims pursuant to Fed. R. Civ. P. 12(b) (6) by U.S. District Judge T.S. Ellis, III. Eckstein alleges that the federal obscenity statute, 18 U.S.C. § 1460 et seq., particularly 18 U.S.C. § 1466, is unconstitutional under the First and Fifth Amendments.¹  For the reasons to be stated infra, we affirm the district court's dismissal of Eckstein's claims.

I.

Eckstein owns and operates the Book N' Card Bookstore located in Falls Church, Virginia.²  Until recently, as part of her inventory, Eckstein carried books and magazines of an explicit sexual nature.³  The sale of such materials accounted for approximately forty percent of her revenues at Book N' Card and at Old Town News, another store owned and operated by Eckstein in Alexandria. Her thriving business in materials of that nature came to a rather abrupt halt, however, as a result of a visit by a team of Federal Bureau of Investigation ("FBI") agents and a subsequent letter from the then-United States Attorney for the Eastern District of Virginia, Richard Cullen, warning Eckstein of prosecution if she continued to sell, after June 1, 1992, materials which ran afoul of federal obscenity laws.

Eckstein's travails began with a Friday, April 24, 1992, visit by seven FBI agents, at approximately noon, during one of Eckstein's peak periods of business. Upon arrival, the agents cleared the store of customers and placed a "Closed for Inventory" sign on the front door. They then proceeded "to execute a search warrant for materials allegedly in violation of the federal obscenity laws." Eckstein, 803 F. Supp. at 1109. The warrant consisted of two parts. The first part authorized seizure of two copies of thirteen specific magazines carried by Eckstein which a federal magistrate judge "had previously found probable cause to be obscene." Id. The second paragraph of the warrant allowed the seizure of:

Two copies of any other magazine or books depicting explicit sexual acts, actual or simulated, whether between persons of the opposite sex or same sex, i.e., sexual intercourse, including but not limited to genital-genital, oral-genital, anal-genital, or oral-anal intercourse; bestiality; masturbation; sexual sadistic or masochistic behavior; bondage; pedophilic sex acts; coprophilia; and vaginal or anal insertion.

Id. Judge Ellis determined the second paragraph of the search warrant to be "fatally over-broad." Id. at 1114. That determination by Judge Ellis has not been appealed by either party and accordingly is not at issue in the within appeal.

Three days after the April 24, 1992, search by the FBI agents, then-United States Attorney Richard Cullen wrote a letter to Eckstein's attorney warning Eckstein that if she "continued to sell material in violation of the federal obscenity laws after June 1, 1992, she 'should expect to be prosecuted for being in violation of those laws.' " Id. at 1109-10. In order to forestall future prosecution, Eckstein sought guidance from the office of the U.S. Attorney as to what materials complied with the federal statutes. Appellee refused to provide any responsive comments or instruction, other than to direct Eckstein to case-law construing the federal obscenity laws under the standards set forth in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).

Thereafter, on May 31, 1992, one day before the expiration of the grace period, [Eckstein] submitted to [appellee] exemplars of every sexually explicit magazine in her store as of that date, again seeking guidance regarding which of them she might legally sell. Included in this batch of material were copies of Penthouse and Playboy.

Eckstein, 803 F. Supp. at 1110. Eckstein also made written inquiries of "every commonwealth's attorney, police chief, and sheriff within the Alexandria Division of the Eastern District of Virginia," requesting guidance. Id. Notwithstanding all of Eckstein's said requests, she received no instruction other than a general reference to Miller and to its progeny. As a result of her purported confusion, and the lack of specific direction as to the law from the authorities, on June 1, 1992, Eckstein states that she proceeded to remove all sexually explicit material from both of her stores and that the decision so to do placed her (Eckstein) at considerable financial risk, given the large share of Eckstein's revenues attributed to the sales of those types of materials.

Eckstein subsequently filed suit in the court below, seeking, inter alia, a determination that the federal obscenity statute is unconstitutional. Judge Ellis dismissed that claim, pursuant to Fed. R. Civ. P. 12(b) (6), and Eckstein filed a timely notice of appeal to this Court.⁴ 

Eckstein's contentions in this appeal seem to center around one basic question: whether or not the federal obscenity statute, 18 U.S.C. § 1460, et seq.,⁵  provides constitutionally adequate notice to a prospective bookseller under due-process principles. Eckstein also argues that the statute's definition of obscenity is unconstitutionally vague when applied in the absence of the due-process safeguards attendant to the criminal process.⁶ 

II.

The federal obscenity statute does not itself contain an express definition of obscenity. However, the Supreme Court has written as follows in Miller v. California, 413 U.S. 15, 24, 93 S. Ct. 2607, 2615, 37 L. Ed. 2d 419 (1973):

(a) whether "the average person, applying contemporary community standards" would find the work, taken as a whole, appeals to the prurient interest, Kois v. Wisconsin, [408 U.S. 229, 230, 92 S. Ct. 2245, 2246, 33 L. Ed. 2d 312 (1972) ], quoting Roth v. United States, [354 U.S. 476, 489, 77 S. Ct. 1304, 1311, 1 L. Ed. 2d 1498 (1957) ]; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state [or federal] law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

That definition has been deemed controlling in subsequent decisions. See Marks v. United States, 430 U.S. 188, 190, 97 S. Ct. 990, 991-92, 51 L. Ed. 2d 260 (1977); Hamling v. United States, 418 U.S. 87, 114, 94 S. Ct. 2887, 2906, 41 L. Ed. 2d 590 (1974); United States v. 12 200-Ft. Reels of Super 8 MM. Film, 413 U.S. 123, 129-30, 93 S. Ct. 2665, 2669-70, 37 L. Ed. 2d 500 (1973). Accordingly, we consider Eckstein's attacks on the statute in the light of the Miller standard and in view of the rejection by this circuit and by other federal courts of attacks upon the Miller standard claiming that the standard is unconstitutionally vague. See, e.g., Vernon Beigay, Inc., 790 F.2d at 1093 (" 'unavoidable imprecision is not fatal and celestial precision is not necessary,' ") (quoting Hart Book Stores, Inc. v. Edmisten, 612 F.2d 821, 833 (4th Cir. 1979), cert. denied, 447 U.S. 929, 100 S. Ct. 3028, 65 L. Ed. 2d 1124 (1980)). In Miller, the Supreme Court itself recognized the difficulties inherent in determining whether or not a particular item is obscene but nonetheless asserted that:

The mere fact juries may reach different conclusions as to the same material does not mean that constitutional rights are abridged. As this Court observed in Roth v. United States, [354 U.S. at 492 n. 30, 77 S. Ct. at 1313 n. 30] "it is common experience that different juries may reach different results under any criminal statute. That is one of the consequences we accept under our jury system. Cf. Dunlop v. United States, [165 U.S. 486, 499-500, 17 S. Ct. 375, 379-80, 41 L. Ed. 799 (1897) ]."

Miller, 413 U.S. at 26 n. 9, 93 S. Ct. at 2616 n. 9. " 'That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense.' " Id. at 27 n. 10, 93 S. Ct. at 2616 n. 10 (quoting United States v. Petrillo, 332 U.S. 1, 7, 67 S. Ct. 1538, 1542, 91 L. Ed. 1877 (1947)).

In effect, appellant concedes this to be the state of the law, for she argues here that appellant's vagueness challenge presents a novel twist which somehow sets it apart from the precedents and renders the Miller standard void in this case. Appellant argues that the due-process challenges which in the past have been brought against the standard on vagueness grounds were decided in the context of the full panoply of due-process protections afforded defendants in criminal prosecutions. However, in the instant civil case, appellant maintains that these protections are fatally absent and that the actions taken by the government have placed her unconstitutionally in fear of imminent prosecution.

That reasoning is not persuasive. First, as Judge Ellis noted in his decision below, the cases dealing with the question of vagueness have applied the same analysis regardless of whether the setting has been criminal or civil. See, e.g., Vernon Beigay, Inc., supra. Furthermore, in this case, appellant herself has created a civil posture by bringing suit. Acting within what was determined to be her procedural right so to do, Eckstein elected not to wait until an actual prosecution materialized. However, that procedural step does not obscure that what is at issue is an underlying criminal statute. As Judge Ellis reasoned, "the obscenity statute ... defines a crime; it has no civil application." Eckstein, 803 F. Supp. at 1113. Thus, the purported novelty of appellant's claim simply vanishes upon close examination. We need not decide whether, under certain circumstances, the obscenity definition of Miller incorporated into the statute might be unconstitutionally vague. Rather, herein, we determine only that appellant has failed to establish such a claim in this case, and we reaffirm the many precedents rejecting such vagueness challenges. In the final analysis, appellant's claim fundamentally deals with an alleged lack of fair notice to appellant as to what materials she lawfully may sell without risk of prosecution.

III.

This Court previously has had occasion to decide whether an obscenity law incorporating the Miller definition provides fair notice to a prospective defendant in Eckstein's situation. In Olson v. Leeke, 744 F.2d 1061, 1062 (4th Cir. 1984), cert. denied, 471 U.S. 1053, 105 S. Ct. 2112, 85 L. Ed. 2d 477 (1985), Judge Haynsworth explicitly wrote:

It is then suggested that due process requires that a defendant, charged with selling explicit sexual material to willing adult purchasers, is entitled to a pre-indictment civil determination that the material is obscene. We find no such requirement in the cases or in reason. In Miller v. California, [413 U.S. at 24, 93 S. Ct. at 2616], the [C]ourt addressed the problem of fair notice and specifically concluded that observance of the prerequisites to prosecution set forth in Miller would provide fair notice to commercial dealers in such materials.

Absent a reconsideration of that doctrine by this Court en banc, or by the Supreme Court, we are bound by that determination. See United States v. Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987), cert. denied, 484 U.S. 1019, 108 S. Ct. 731, 98 L. Ed. 2d 679 (1988); see also United States v. Moore, 949 F.2d 68, 71 (2d Cir. 1991), cert. denied, Salami v. United States, --- U.S. ----, 112 S. Ct. 1678, 118 L. Ed. 2d 396 (1992). Moreover, in Vernon Beigay, Inc., Judge Ervin commented:

The Supreme Court has explicitly stated that when the Miller prerequisites are used in a state's regulatory scheme, a dealer in obscene materials is provided with fair notice that his public and commercial activities may bring prosecution. Miller, [413 U.S. at 27, 93 S. Ct. at 2616].^*  The regulated materials need not be defined with "ultimate, god-like precision." Id. at 28, 93 S. Ct. at 2617.

Vernon Beigay, Inc., 790 F.2d at 1093 and n. 3. Thus, the formulation in Olson is clearly the law in this circuit.

Indeed, Eckstein has cited no case law indicating support for her position; rather, she claims that this and other courts' reasoning regarding the issue has been "wooden" or unpersuasive. Eckstein does point to the Supreme Court's decision in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S. Ct. 2628, 37 L. Ed. 2d 446 (1973), in which the Court considered a civil procedure used by the state of Georgia in regulating obscene films. The statute at issue in the case was a criminal one; however, "Georgia case law" permitted "the exhibition of materials found to be 'obscene' as defined by that statute [to] be enjoined in a civil proceeding." Paris Adult Theatre I, 413 U.S. at 51 n. 1, 93 S. Ct. at 2632 n. 1. Although the Supreme Court ultimately remanded the case back to the state court for reconsideration in the light of the newly clarified definition of obscenity then very recently announced in Miller, it commended the state's procedure as providing "an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation." Id. at 55, 93 S. Ct. at 2634. The Court expressly noted that " [t]his procedure would have even more merit if the exhibitor or purveyor could also test the issue of obscenity in a similar civil action, prior to any exposure to criminal penalty." Id. at 55 n. 4, 93 S. Ct. at 2634 n. 4. However, while in Paris the Supreme Court stated that such a civil proceeding in fact provides "the best possible notice," id. at 55, 93 S. Ct. at 2634, neither the Supreme Court nor this circuit nor any other court has ever asserted that such a procedure is constitutionally required. In fact, as we noted earlier, this Court in Olson has indicated to the exact opposite.

In any event, appellant's contention that she is entitled to some type of pre-indictment civil proceeding before being subjected to the risk of criminal prosecution hardly accords with the essence of our common-law system. Thus, in Wood v. Georgia, 370 U.S. 375, 390, 82 S. Ct. 1364, 1373, 8 L. Ed. 2d 569 (1962), Chief Justice Warren observed: