* Chief Judge of the Southern District of Mississippi,

sitting by designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 91-7134

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

INVESTMENT ENTERPRISES, INC., d/b/a

Great Western Litho & Bindery,

DONALD P. BROWNING,

CALIFORNIA PUBLISHERS LIQUIDATING CORPORATION,

MICHAEL WARNER, VIDEO TEAM, INC. and

SUSAN C. COLVIN,

Defendants-Appellants.

_______________________

No. 91-7266

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

versus

CALIFORNIA PUBLISHERS LIQUIDATING CORP.,

VIDEO TEAM, INC., DONALD P. BROWNING,

and MICHAEL WARNER,

Defendants-Appellees.

_________________________________________________________________

Appeals from the United States District Court

for the Northern District of Texas

_________________________________________________________________ (December 15, 1993)

Before JONES AND De MOSS, Circuit Judges and BARBOUR *

, District

Judge.

EDITH H. JONES, Circuit Judge:1 A more detailed review of the facts may be found in the

district court's published opinion denying the government's

for feiture motion. S ee United States v. Cal. Publishers

Liquidating Corp.

, 778 F.Supp. 1377, 1379

- 1381 (N.D. Tex. 1991).

2 This obscenity case arose from an undercover sting

operation jointly managed by police in Dallas and the Los Angeles

office of the Federal Burea u of Investigation. 1 The operation

culminated in a jury's finding defendants Californi a Publishers

Liquidating Corporation ("CPLC"), Donald P. Browning, Susan Colvin,

Video Team, Investment Enterprises, Inc. (d/b/a Great Western Litho

& Bindery) ("Great Western"), and Michael Warner guilty of two

counts of interstate transportation of obscene materials in

violation of 18 U.S.C. §1462 (1988) and aiding and abetting the

commission of the §1462 offense and one count of conspiring to

violate §1462. After the jury returned its guilty verdicts and

pursuant to the forfeiture provision of 18 U.S.C. §1467(a)(3)

(1988), the government sought forfeiture of substantial assets of

the defendants, but the district court exer cised its discretion

under §1467(a)(3) and refused to order any forfeiture.

The defendants appeal their convictions on a multitude of

grounds. Having reviewed all of the appellants' arguments, we

discuss in detail only the sufficiency of the evidence challenges

raised by Warner and Great Western and Warner's argument that the

district court erred in giving the jury a deliberate ignorance

instruction. The remainder of the discussion focuses on issues

posed by the government's appeal of the denial of its forfeiture

motion. Review of all the issues leads us to affirm the2 Warner and Great Western were found guilty of conspiring

-- in violation of 18 U.S.C. §371 (1988) -- to violate 18 U.S.C.

§1462. Section 1462 makes "knowingly us[ing] any express company

or other common carrier, for carriage in interstate or foreign

commerce

-- (a) any obscene

... motion picture film" punishable by

a fine and/or imprisonment. 18 U.S.C. §1462. They were also found

guilty on two counts of aiding and abetting the commission of the

§1462 offense. 18 U.S.C. § 2.

3 defendants' convictions , but it is necessary to remand to the

district court for it to reconsider forfeiture consistent with the

proper construction of §1467(a)(3).

I.

OBSCENITY CONVICTIONS

A. Sufficiency of the Evidence

Defendant/appellants Michael Warner and Great Western

argue that the evidence was insufficient to establish that they

conspired to ship obsceni ty in interstate commerce and that they

aided and abetted the shipment of obscenity in interstate

commerce. 2 This court reviews sufficiency of the evidence

challenges to determine whether a reasonable jury could find that

the evidence establishes guilt beyond a reasonable doubt. S ee

United States v. Salazar

, 958 F.2d 1285, 1291 (5th Cir. 1992),

cert. denied

, 113 S.Ct. 185 (1992). In evaluating such challenges,

we review the evidence -- and all the inferences reasonably drawn

from it

-- in the light most favorable to the verdict. S ee id. at

1290-91. Under these established standards, defendants' claims are

meritless.

As an initial matter, we note that this review of

evidentiary sufficiency as to both the conspiracy and the4

substantive obscenity convictions contemplates that corporations

cannot in and of themselves possess a me ntal state. However, a

corporation is criminally liable for the unlawful acts of its

agents, provided t hat the conduct is within the scope of the

agent's authority, whether actual or apparent. See United States

v. Bi-Co Pavers, Inc.

, 741 F.2d 730, 737 (5th Cir. 1984). Thus,

while Great Western cannot possess the requisite intent to conspire

or aid and abet, Michael Warren -- its president and undisputedly

authorized agent at all t imes -- can. His unlawful acts are the

basis for Great Western's criminal liability.

As to the merits of defendants' challenge, a reasonable

jury could find that Warner and Great Western conspired with the

other defendants

-- CPLC, Video Team, Colvin, and Browning

-- to

transport o bscene videos in interstate commerce. The district

court correctly instructed the jury that for a defendant to be

guilty of conspiracy, the government must prove (1) that there was

an agreement by two or more persons to violate the law; ( 2) that

the defendant knew of and vol untarily joined the conspiracy; and

(3) that overt acts were committed to f urther the conspirators'

purpose. The appellants' only challenge to sufficiency concerns

the second of the district court's requirements; Warner argues that

he had no knowledge of the unlawful purpose of the conspiracy and

had no intent to further it. However, the evidence undercuts

Warner's position.

Warner is the president and part owner of Great Western,

a n entity devoted largely to the production of sexually expli cit3 Count two alleged that "Beyond Taboo" and "Kinky Vision"

were obscene, whereas count four alleged that "Interracial Anal 1"

and "Anal Sluts Volume 2" were obscene. The jury's verdict found

Great Western and Warner guilty on both counts of aiding and

abetting the interstate transportation of these obscene videos but

without specifying which of the tapes were found obscene. Drawing

all reasonable inferences favorable to the verdict, we may assume

that as to count two the jury concluded that "Kinky Vision"

-- for

which Great Western printed the box -- was obscene.

5 box covers and other materials for sexually explicit video tapes.

Great Western regularly m anufactured box covers and printed

advertisements for co-defendant Video Team, a wholly owned

subsidiary of CPLC dedicated to t he distribution of sexually

explicit video tapes. More specifically, Great Western

manufactured the box covers for "Interracial Anal 1", "Anal Sluts

Volume 2", and "Kinky Vision"

-- three of the four tapes charged as

obscene in the two substantive counts. 3 Furthermore, Warner always

examined the finished pri nting jobs of the sexually explicit box

covers. But the evidence linking Great Western and Warner with the

conspiracy hardly stops here.

In addition to having an intimate knowledge of the

sexually explicit nature of his own printing business, a singularly

unsurprising conclusion, Warner is well acquainted with CPLC and

its wholly owned subsidiary, Video Team. In fact, CPLC and Video

Team are not just important clients, they are the Warner family

business. Warner's father founded the predecessor corporation to

CPLC, and Warner worked there before going over to Great Western.

Warner's brother-in-law, Donald Browning, is the president and part

owner of CPLC. Vicki Browning, Warner's sister and Donald's wife,

is an employee of Great Western. The two families socialize4 Close relationships can be part of the circumstantial

evidence from which a jury may infer that the defendant knew of a

conspiracy. See Salazar , 958 F.2d at 1294 - 95.

5 Warner and Great Western raise First Amendment and Fifth

Amendment objections to their conspiracy conviction on th e basis

that these constitutional provisions require very specific

knowledge on the part of the defendants: namely, that the

defendants must have known that the videos for which they only

printed boxes would be distributed to a community where they would

be deemed obscene. Defendants' constitutional objections do not

move us.

First, defendants' arguments assume that the o nly basis for

their con spiracy convictions is their role in printing the boxes

for the obscene videos. As the evidence described in part I.A.

suggests, this is false. Second, knowledge that the materials are

sexually explicit is the only scienter requirement under 18 U.S.C.

§1462 (1988). S e e United States v. Hill , 500 F.2d 733, 740 (5th

Cir . 1974), c ert. denied

, 490 U.S. 952 (1975). Furthermore,

knowledge of the sexually explicit nature of the materials as the

required scienter has been upheld against similar challenges to 18

U.S.C. §1461 (1988) -- a criminal provision making the mailing of

obscene materials punishable by fine and/or i mprisonment. S ee Hamling v. United States , 418 U.S. 87, 123 (1974). The fact that

the defendants were prosecuted for conspiring to violate §1462 --

6 fre quently, and Donald Browning met with Warner everyday at his

Great Western office across the street from CPLC and Video Team. 4

Not unexpectedly, Warner

-- a CPLC board member

-- has a

significant financial stake in the fortunes of CPLC and its

subsidiary Video Team. He earned $75,000 a year from CPLC

distributions via a family trust and his interest upon dissolution

of the trust would approximate 20% of CPLC and its various

holdings. Further, Warner owns a substantial interest in the real

property and building housing CPLC and Video Team.

Viewed cumulatively, the evidence is sufficient to prove

that Warner, and Great Western through him, knew of the unlawful

purpose of the conspiracy to ship the obscene videos interstate and

that he joined it with the intent to further its purpose. 5as opposed to violating §1462 directly

-- does not change the

analysis. Finally, to accept appellants' arguments would allow all

such defendants to avoid prosecution "by simply claiming that

[they] had not brushed up on the law." Id. at 123.

6 Immediately preceding the deliberate ignorance

instruction to the jury, the district court defined "knowingly":

The word "knowingly," as that term has been

used in these instructions, means that the act

was done voluntarily and intentionally and not

because of mistake or accid ent. The purpose

of adding the word "kn owingly" is to ensure

that no one will be convicted for an act done

because of mistake or accident, or other

innocent reason.

7 With regard to the aiding and abetting counts, this court

has observed that typically the same evidence will support both a

conspiracy and an aiding and abetting conviction. S ee Salazar

, 958

F.2d at 1292 (citation omitted). Thus, as to the two substantive

obscenity offense counts, the same evidence that proved Warner and

Great Western conspired to violate §1462 is sufficient to support

their conviction for aiding and abetting the §1462 violation. S ee

id.

B. Deliberate Ignorance Instruction

Near the conclusion of the instructions to the jury, the

district court provided the following deliberate ignorance

instruction:

You may find that a [d]efendant had knowledge of a fact

if you find that the [d]efendant deliberately closed his

or her eyes to what would otherwise have been obvious to

her. While knowledge on the part of the [d]efendant

cannot be e stablished merely by demonstrating that the

[d]efendant was negligent, careless or foolish, knowledge

can be inferred if the [d]efendant deliberately blinded

himself or herself to the existence of a fact. 67 While each count actually charged both a §1462 violation

and aiding and abetting the §1462 violation, Warner's liability was predicated on an aiding and abetting theory.

8 The court's deliberate ignorance instruction was not limited in its

application to the substantive counts charged; the instruction

applied to the conspiracy count as well.

Warner makes two arguments in urging error on the part of

the trial court in giving this instruction. First, with regard to

the two substantive counts, each charging War ner with aiding and

abetting the comm ission of the §1462 offense, Warner argues that

the evidence was not sufficient to support the deliberate ignorance

instruction. 7 Second, as to the conspiracy count, Warner urges

that the use of a deliberate ignorance instruction is never

appropriate in a conspiracy prosecution. Both of appellants'

arguments are unconvincing.

The standard of review applied to a defendant's claim

that a jury instruction was inappropriate is "whether the court's

charge, as a whole, is a correct statement of the law and whether

it clearly instructs jurors as to the principles of law applicable

to the factual issues confronting them." U nited States v. August

,

835 F.2d 76, 77 (5th Cir. 1987). The district court "may not

instruct the jury on a charge that is not supported by evidence."

United States v. Ortega , 859 F.2d 327, 330 (5th Cir. 1988), cert.

denied

, 489 U.S. 1027 (1989). Further, in determining whether the

evidence sufficiently su pports the charge, the evidence and all

reasonable inferences that may be drawn from it are viewed in the8 It should come as no surprise that the same evidence used

to raise an inference of Warner's actual knowledge will also raise

t he inference of Warner's subjective awareness. S ee LaraVelasquez , 919 F.2d at 952.

9 light most favorable to the government. S ee United States v. LaraVelasquez , 919 F.2d 946, 950 (5th Cir. 1990).

Before a deliberate ignorance instruction may properly be

given, the evidence at trial must raise two inferences: "the

defendant was subjectively aware of a high probability of the

existence of the illegal conduct; and ... the defendant purposely

contrived to avoi d learning of the illegal conduct." S ee id. at

951 - 52. Warner claims that the evidence at trial on the

substantive obscenity offenses simply did not raise these two

required inferences. Our necessarily fact-intensive review

suggests that the evidence at trial viewed in the light most

favor able to the government did support the deliberate ignorance

charge as to the substantive counts.

First, the government presented evidence to support the

inference that Wa rner was subjectively aware of the high

probability that he was involved in illegal activity. 8 Warner is

president and part owner of Great Western, a firm whose dominant

business is producing sexually explicit box covers and/or materials

for sexually explicit video tapes, although a substantial portion

of its business is not sexually related. The firm's clients

include CP LC, a firm in the business of distributing sexually

explicit materials nationwide since 1973, and Video Team, a wholly

owned subsidiary of CPLC dedicated to the distribution of sexually9 The defendant's purposeful contrivance to avoid learning

of the illegal conduct may be established by either direct or

circumstantial evidence. See Lara-Velasquez , 919 F.2d at 952.

10 exp licit videotapes. In addition to manufacturing the sexually

explicit box covers for Video Team, Great Western also prints the

advertisements that accompany Video Team products.

Donald Browning, president and pa rt owner of CPLC,

testified that he harbored no doubt that Warner has knowledge of

the adult entertainment industry. In fact, Warner has attended

adult enterta i nment conventions to solicit business for Great

Western. Significantly, Warner examines the finished printing jobs

of the sexually explicit box covers. In short, the district court

could reasonably have concluded that the government satisfied the

first prong of the deliberate ignorance instruction test.

Second, the evidence at trial support ed the inference

that, even if he did not actually k now of the illegal conduct,

Warner purposefully contrived to avoid learning of it. 9 Although

he earned $75,000 a year from CPLC distributions via a family trust

arrangement, his interest in CPLC would approximate 20% of the firm

once the trust was dissolved, and he owned a large part of the real

property and building housing CPLC and Video Team, Michael Warner

visited the CPLC premises

-- across the street from the offices of

Great Western -- only twice in the two years preceding the trial.

While Warner and Browning saw each other every day, they virtually

never met on the premises of CPLC. Although Warner only made the

trip across the s treet twice in two years, his vice president at10 T he district court's conspiracy instruction appears in

full in part I.A. supra

.

11 Great Western was sent across the street every week to collect for

printing services rendered.

Warner was a member of the board of CPLC, but he never

attended any board meetings. More broadly, despite his significant

financial int erest in the fortunes of CPLC, Warner never had

anything to do with the sales, marketing, or pricing strategies of

CPLC. In sum, the jury could have reasonably concluded that the

evidence s atisfied the second prong of the deliberate ignorance

test.

Although this court recognizes that district courts

should only give deliberate ignor ance instructions sparingly, we

conclude there was sufficient evidence to support the distr ict

court's careful instruction. This conclusion dispenses only with

Warner's arguments as to the substantive obscenity counts. Warner

still claims that it is error to give a deliberate ignorance

instruction in a conspira cy prosecution. Specifically, Warner

argues that he cannot be deliberately ignorant of the object of the

conspiracy and also intend to further its purpose as required by

the district court's conspiracy charge. 10

Warner's argument overlooks the fundamental nature of the

deliberate ignorance instruction. The instruction serves "to

inform the jury that it may consider evidence of the defendant's

charade of ignorance as circumstantial proof of guilty knowledge ."

Lara-Velasquez

, 919 F.2d at 951 (emphasis added). Viewed this way,11 As noted earlier, the defendants raise numerous other

arguments against their convictions. These arguments include

challenges to the district court's finding that the g overnment

offered race neutral reasons for striking a black juror, exclusion

of a compilation video, giving a "modified" Allen charge, giving a

supplemental Pinkerton instruction, failing to investigate an

alleged incident of juror misconduct, denying a request of immunity

to an expert, and failure to suppress evidence seized pursuant to

allegedly defective warrants. While we have thoroughly considered

-- and rejected

-- these arguments, we do not discuss them further

in the opinion.

12 Appellees include all of the defendant/appellants with

the exception of Great Western. This court granted the

government's motion to withdraw its appeal of the denial of the

forfeiture order as to Great Western on June 15, 1992.

12 the deliberate ignorance instruction is a particularized

circumstantial evidence instruction. See id. (relying on United

States v. Manriquez Arbizo

, 833 F.2d 244, 248 (10th Cir. 1987)).

To the extent that the instruction is merely a way of allowing the

jury to arrive at the conclusion that the defendant knew the

unlawful purpose of the conspiracy, it is hardly inconsistent with

a finding tha t the defendant intended to further the unlawful

purpose. 11

II.

FORFEITURE

A. Appealability of an Order Denying Forfeiture Motion

Defendant/appellees 12 maintain that the government is not

authorized to appe al the district court's denial of the

government's motion for an order of forfei ture pursuant to 18

U.S.C. §1467 (1988). The appellees argue that a forfeiture order

is not a "sentence" within the meaning of 18 U.S.C. §3742(b) (198813 The statute provides in relevant part:

The Government, [sic] may file a notice of appeal in the

district court for review of an otherwise final sentence

if the sentence --

(1) was imposed in violation of law;

(2) was imposed as a result of an incorrect application

of the sentencing guidelines;

(3) is less than the sentence specified in the applicable

guideline range to the extent that the sentence includes

a lesser fine or term of imprisonment, pr obation, or

s upervised release than the minimum established in th e guideline range, or includes a less limiting condition of

probation or supervised release under section 3563(b)(6)

or (b)(11) than the minimum established in the guideline

range; or

(4) was imposed for an offense for which there is no sentencing guideline and is plainly unreasonable.

18 U.S.C. §3742(b).

14 The Sentencing Reform Act of 1984 provides in 18 U.S.C.

§3742(a)-(b) (1988 & Supp. II 1990) for limited appellate review of

sentences by specifying when either a defendant or the government

may appeal a sentence. S ee Mistretta v. United States

, 488 U .S.

361, 368 (1988).

13 & Supp. II 1990). 13 Since §3742(b) by its terms only authorizes the

government to appeal a "s entence", appellees claim that the

government is without statutory authority to appeal the denial of

the forfeiture order below. 14

That the government has no right of appeal in a criminal

case unless a statute expressly grants such a right is wellestablished. S ee United States v. Denson

, 588 F.2d 1112, 1125 (5th

Cir. 1979) (citing cases), rev'd on other grounds

, 603 F.2d 1143

(5th Cir. 1979) (en banc). A review of the Guidelines Manual and

the relevant statutor y provisions, however, lead us to conclude

that a forfeiture order is a "sentence" for purposes of §3742(b)

and thus is appealable.1 5 As the Supreme Court has recently held, commentary in the

Guidelines Manual interpreting or explainin g a guideline "is

authoritative unless it violates the Constitution or a fe deral

statute, or is inconsistent with, or a plainly erroneous reading

of, that guideline." S tinson v. United States

,

____ U.S.

____, 113

S. Ct. 1913, 1915 (1993).

14

1. How the Guidelines Treat Forfeiture

The Sentencing Guidelines provide that "[f]orfeiture is

to be imposed upon a convicted defendant as provided by statute."

United States Sentencing Commission, Guidelines Manual §5E1.4 (Nov.

1, 1992). While the commentary to this guideline does not

specifically mention forfeiture under §1467, the commentary

recognizes that "[f]orfeiture provisions exist in various

statutes", id. §5E1.4 commentary at 308, and provides a few

examples of such statutory forfeiture provisions. See id. at 308

-09. By its inclusiveness, §5E1.4 of the guidelines contemplates

that forfeiture be imposed upon d efendants as provided for under

§1467.

Furthermore, the Sentencing Guidelines treat forfeiture

as part of th e sentence to be imposed upon a defendant. The

introductory commentary to Chapter Fiv e of the Sentencing

Guidelines, appropriately entitled "Determining the Sentence",

begins by noting that "the guidelines permit the court to impose

either imprisonment or some other sanction or combina tion of

sanctions." 15 Id. Critically, the commentary continues, "[a]

sentence is within the guidelines if it complies with each

applicable section of this chapter." Id. As a sentence "within the

guidelines" has to comply with every applicable section of Chapter16 Actually, the sentences of the appellee corporations --

CPLC and Video Team

-- are determined in compliance with Chapter 8

entitled "Sentencing of Organizations." United States Sentencing

Commission, Guidelines Manual §8A1.1 (Nov. 1, 1992). Just like the

chapter applicable to non-organizations, Chapter 8 treats

forfeitures as part of the sentence. For instance, the application

instructions in Chapter 8 on determining sentences for

organizations specifically requires a determination of "the

sentencing requirements relating to special assessments,

forfeitures, and costs" made by reference to Part E of Chapter 8.

See id. §8A1.2( d) (emphasis added). Significantly, the relevant

portion of Part E on forfeiture merely refers the user back to

§5E1.4. See id. §8E1.2. Because the unmistakable implication of

Chapter 8 is

-- just as in Chapter 5

-- to treat forfeiture as part

of the sentence, w e will speak only in terms of Chapter 5

sentencing for the sake of clarity.

17 Section 3554 requires a court imposing a sentence under

the federal RICO statute or Titles II and III of the Comprehensive

Drug Abuse Prevention and Control Act of 1970 to order the

forfeiture of property in accordance with the automatic forfeiture

provisions of the respective statutes. 18 U.S.C. §3554.

1 8 Section 3551 provides in relevant part that "[a] sanction

authorized by section 3554, 3555, or 3556 may be imposed in

addition to the sentence required by this subsection." 18 U.S.C.

§3551(b) (1 988). The same is true for organizations. S ee 18

15 Five, it necessarily includes §5E1.4 on forfeiture. 16 In short, a

§1467 forfeiture order falls within the guideline's treatment of

sentences.

2. Consistency with the Sentencing Reform Act

Appellees nevertheless contend that to afford the

government an appeal of a §1467 forfeiture under §374 2(b) is

inconsistent with certain provisions of the Sentencing Reform Act.

Appellees maintain that a forfeiture pursuant to §1467 is not a

"sentence" for purposes of §3742(b) because §1467 forfeiture is not

specifically mentione d as an order of criminal forfeiture in 18

U.S.C. §3554 (1988). 17 Yet only forfeitures pursuant to §3554 are

authorized sanctions under 18 U.S.C. §3551 (1988 & Supp. II 1990), 18U.S.C. §3551(c) (1988). Appellees do not concede that §3554

forfeitures are sentences, relying on the "in addition to the

sentence" language in §3551 to conclude that even §3554 forfeitures

are not sentences. While not necessary to our disposition of this

case, we expres s reservations as to appellees' reading of §3554.

First, a reading of §3554 which takes "sentence" to include the

forfeitures enumerated in the section would be consistent with the

totality of the language in the section, particularly the language

which requires the court to order forfeiture "in imposing a

s entence on a defendant". 18 U.S.C. §3554. Further, such a

reading would be consistent with the well-established understanding

of forfeitures as punishment. S ee, e.g., Austin v. U.S.

, 113 S.Ct.

2801, 2810 (1993) (noting that forfeiture generally and statutory

in remforfeiture in particular have been historically understood

as punishment); U.S. v. Horak

, 833 F.2d 1235, 1246 (7th Cir. 1987)

(finding that RICO forfeiture is pu nishment imposed on a guilty

defendant).

1 9 In its entirety, section 3557 provides that "[t]he review

of a sentence imposed pursuant to section 3551 is governed by the

provisions of section 3742." 18 U.S.C. §3557.

16 and only §3551 sanctions are made appealabl e under §3557. 1 9

Finally, appellees urge that 18 U.S.C. §3557 (1988) implicitly

l imits appeals under §3742(b) to sentences imposed in accordance

with §3551. As such, the government has no statutory basis for

appeal.

This reasoning might be compelling but for two flaws.

First, section 3551(a) provides in relevant part that " [e]xcept as

otherwise specifically provided , a defendant who has been found

guilty of an offense described in any Federal statute,

... , shall

b e sentenced in accordance with the provisions of this chapte r".

18 U.S.C. §3551(a) (emphasis added). Second, §3742(b) is not

limited to authorizing appeals cross-referenced back to §3557.

This fact harmonizes nicely with the §3551(a) proviso. Thus, even

assuming that §3551(b) and (c) only authorize sentences with

forfeiture limited to the specific types enumerated in §3554,20 See note 13 supra

.

2 1 Appellee Warner raises a double jeopardy objection to the

government's ability to appeal the district court's denial of the

forfeiture mo tion. However, it is well-established that double

jeopardy does not prevent appellate revie w of the government's

statutorily authorized appeal of a sentence. S ee United States v.

Greenwood , 974 F.2d 1449, 1473 (5th Cir. 1992) (relying on United

States v. DiFrancesco , 449 U.S. 117, 132 - 33 (1980)).

The remaining appellees additionally urge that this appeal

should be dismissed on the basis that the Solicitor General

authorized the appeal after the notice of appeal was filed by the

government. Appellees' objection is without merit. The clear

language of §3742(b) allows the government to file a notice of

appeal in the district court, but prohibits the government from

further prosecu ting an appeal of a sentence without certain

officials' approval. 18 U.S.C. §3742(b) (1988 & Supp. II 1990).

The government has fully complied with these requirements.

17 §3551(a) expressly allows for sentencing where "otherwise

specifically provided"; this language is certainly broad enough to

include sentencing pursuant to §5E1.4 of the Sentencing Guidelines.

As our earlier discussion demonstrated, the guidelines clearly and

specifically provide for sentencing to include a §1467 forfeiture.

Contrary to appellees' ingenious argument, a sentence

imposing §1467 forfeiture pursuant to §5E1.4 qualifie s as a

"sentence imposed pursuant to section 3551" and thus its review

would be governed by §3742. S ee 18 U.S.C. §3557. Under §3742(b),

the government may appeal in four situations. 20 The government has

the statutory authori ty under §3742(b)(1) to bring this appeal

since it alleges that the sentence is in violation of law

--

specifically, §1467. 212 2 In one of only two appeals court cases dealing with §1467

forfeiture, the D .C. Circuit did not reach the merits of a First

Amendment challenge to the forfeiture provision on the grounds that

plaintiffs' claims were not justiciable. S ee American Library

Assoc. v. Barr

, 956 F.2d 1178, 1187 (D.C. Cir. 1992). In the only

other reported case, the Fourth Circuit in d icta upheld §1467

against a First Amendment challenge. See United States v. Pryba

, 900 F.2d 748, 755 (4th Cir. 1990), c ert. denied

, 498 U.S. 924

(1990).

18

B. Merits of Denial of Forfeiture Motion

1. Statutory Construction

In appealing the denial of its motion for a forfeiture

order, the government argues that the district court misconstrued

the discretion given it under 18 U.S.C. §1467(a)(3) (1988) and

erroneously limit ed the kind of property subject to forfeiture

under that statutory provision. As the court recognized in its

published opinion denying the forfeiture motion, the questions of

statutory construction posed are of first impression. 22 S ee United

States v. Cal. Publishers Liquidating Corp.

, 778 F.Supp. 1377, 1379

(N.D. Tex. 1991). We conclude that the government's critique is

essentially correct.

A court begins the task of interpreting a statute by

looking to the statutory language. S ee Mallard v. United States

Dist. Court for S. Dist. of Iowa

, 490 U.S. 296, 3 00 - 01 (1989).

To that end, the relevant statutory language provides:

A person w ho is convicted of an offense

involving obscene material under this chapter

shall forfeit to the United States such

person's interest in

... (3) any property,

real or personal, used or intended to be used

to commit or to promote the commission of such

offense, if the cou rt in its discretion so

determines, taking into consideration the2 3 Section 1462 makes "knowingly us[ing] any express company

or other common carrier, for carriage in interstate or foreign

commerce--(a) any obscene

... motion picture film" punishable by a

fine of up to $5,000 and/or imprisonment up to five years for a

first offense. 18 U.S.C. §1462(a).

24 The government did not seek forfeiture as against Susan

Colvin.

19

nature, scope, and proportionality of the use

of the property in the offense.

18 U.S.C. §1467(a)(3) (1988). The statute also requires the trier

of fact to determine beyond a reasonable doubt that the property is

subject to forfeiture. 18 U.S.C. §1467(e) (1988).

Once the defendant/appellees were found guilty of

violating 18 U.S.C. §1462 (1988), an offense "under this chapter"

for purposes of §1467(a)(3), the district court submitted the

forfeiture issue t o the jury. 2 3 S ee Cal. Publishers

, 778 F.Supp.

at 1381. The jury returned a special verdict in which it found

that two tracts of real property in Los Angeles -- together with

the buildings housing the corporate defendants and their contents

-- and four corpora te bank accounts were subject to forfeiture.

See id. The jury did not find that the personal bank accounts of

defendant/appellees Michael Warner and Donald Browning were subject

to f orfeiture. 2 4 As has already been noted, the district court

subsequently denied the government's motion for an order of

forfeiture "in the sound exercise of its discretion." I d. at 1394.

Exce p t as to defendant/appellee Great Western, the government

appeals the court's denial of its forfeiture motion.

While the only issue properly before the district court

concerned forfeiture under §1467(a)(3), the district court25 For instance, in its construction of §1467(a)(1), the

district court noted that "an order of forfeiture of materials not

found to be obscene would do violence to the First Amendment's

protection from prior restraint." S ee Cal. Publishers

, 778 F.Supp.

at 1384. This conclusion erroneously predicted the Supreme Court,

which recently rejected the very same argument in the context of

RICO forfeiture. See Alexander v. United States , 113 S.Ct. 2766,

2 770 - 71 (1993). The constitutional objections raised to

§1467(a)(3) are discussed fully in part 2 infra

.

20 nonetheless chose to di s cuss forfeiture under §1467(a)(1) and

(a)(2). S ee id. at 1382

- 85. The court's discussion of those

other forfeiture provisions is both problematic and wholly

unnecessary. 25 This court will entertain only the district court's

construction of §1467(a)(3).

A critical flaw in the district court's construction of

§1467(a)(3) concerns the clause in which the court is directed to

take "into consideration the nature, scope, and proportionality of

the use of the property in the offense " in exercising its

discretion. 18 U.S.C. §1467(a)(3) (emphasis added). Under the

district court's reading, the only property over which the district

court has discretion to order forfeiture is property actually used

in the offense. S ee Cal. Publisher s , 778 F.Supp. at 1386 n.9.

That is, according to the district court, any property that the

jury found was merely " intended to be used to commit or promote the

commission " of an offense under the chapter on obscenity would be

a utomatically excluded from forfeiture. 18 U.S.C. §1467(a)(3)

(emphasis added).

This construction renders the first part of §1467(a)(3)

virtually meaningless. While a jury is empowered under the first

part of §1467(a)(3) to return a broad forfeiture verdict as to2 6 "Offense" for purposes of § 1467(a)(3) forfeiture is the

offense o f conviction. Specifically, the offense of conviction

must be -- per the statutory requirement -- "an offense involving

o bscene material u nder this chapter ." 18 U.S.C. § 1467(a)

(emphasis added).

21 property which it found to be actually used or intended to be used

to commit or promote the commission of the obscenity offense, the

d istrict court's discretion to order forfeiture under the latter

portion of the statutory provision would extend only to a much more

narrow class -- property actually used in the offense.

Harmonizing all of its parts, as we must do, §1467(a)(3)

plainly extends t he court's discretion much more broadly than as

construed by the district court. Consequently, in exercising its

discretion, the district court must take into account the "nature,

scope, and proportionality" of the use

-- both actual and intended

-- of the property in the commission and promotion of the obscenity

offense. 26

The district court also misconstrued §1467(a)(3) when it

artificially narrowed the scope of forfeiture to include only

property used to produce or transport obscene articles. See Cal.

Publishers

, 778 F. Supp at 1388-1389. No such qualifying language

appears in the language of the statutory provision. Instead, the

statute provide s for the forfeiture of " a ny property, real or

personal" so long as it is used or intended to be used to commit or

to promote the commission of the obscenity offense. 18 U.S.C.

§1467(a)(3). (emphasis added).

Rather than rely on the unambiguous language of the

statute, the district court hinged its analysis on a piece of27 The specific legislative history relied upon by the

district court is particularly suspect. The district court relied

upon a portion of President Reagan's message to Congress urging

adoption of the larger legislation of which §1467(a)(3) was a part.

See Cal. Publishers

, 778 F.Supp. at 1385. The district court

quotes a section of the message in which the President noted that

§1467(a)(3) "'is intended to cover the things used to produce or

transport the obscene article.'" S ee id. (citations omitted).

Note that the Pres ident's remarks were directed at a very

different, earlier version of §1467(a)(3). See id. at 1385 n.8.

The court took these remarks to mean that §1467(a)(3) only

allowed forfeiture of property used in the pr oduction or

transportation of the obscene material. S ee id. at 1388. However,

the quoted language could easily be read not to be exclusive in its

coverage. As a general matter, legislative history in the form of

Presidential messages or committee reports -- a legislative

analogue to the Presidential message -- should be approached with

skepticism. S ee, e.g., Wis. Pub. Intervenor v. Mortier

, 111 S.Ct.

2476, 2487

- 2491 (1991) (Scalia, J., concurring) (criticizing use

of committee reports in part because of their unreliability as indicators of congressional intent).

22 ambiguous legislative history. 27 S ee Cal. Publishers

, 778 F.Supp

at 1385, 1388. Except in rare circumstances, judicial inquiry is

complete when the terms of a statute are unambiguous. S ee Demarest

v. Manspeaker , 111 S.Ct. 599, 604 (1991). The meaning of "any

property" is perfectly clear and does not present the exceptional

case in which application of the statute as written would produce

a result demonstrably at odds with the intentions of its drafters.

See id. (relying on Griffin v. Oceanic Contractors, Inc.

, 458 U.S.

564, 571 (1982)).

The district court's erroneous construction of

§1467(a)(3) led the court improperly to refuse considerati on of

certain evidence. Two particular instances merit discussion.

First, the district court refused to consider FBI summaries of

seventy-two unindicted videotapes shipped into the Dallas area by

defendant/appellees. S ee Cal. Publishers

, 778 F. Supp. at 1388.28 A s to the constitutional propriety of such forfeiture,

see note 29 infra

.

23 A magistrate in Los Ang eles had concluded that probable cause

existed to believe that these tapes were obscene. S ee id. The

district court declared that "[t]o assume that the unindicted video

tapes are obscene would be as improper as finding that all eight of

the indicted video tapes are obscene, despite the fact that the

jury did not so find." Id.

But the unindicted videos need not be deemed obscene in

order for the court to consider them for purposes of forfeiture. 28

First, to the extent the unindicted videos are part of the

"contents" of the real property that the jury found subject to

forfeiture in its special verdict, the district court m ust take

them into account in deciding whether to exercise its discretion.

Second, in actually exercising it s discretion to determine a

forfeiture under § 1467(a)(3), the court might well conclude that

these unindicted, sexually explicit videos shipped into Dallas were

used to promote the commission of the offense of conviction

--

namely, interstate shipping of the obscene videos. The court might

reasonably view the numerous unindicted shipments into the Dallas

a rea as facilitating the offense of conviction in that the

shipments established or maintained market presence i n Dallas.

Further, the shipments might reasonably be seen as helping build

the necessary client contacts or reputation i n the Dallas market

with the inevitable consequence of facilita ting the conviction

offense.24 Property used to promote the commission of the obscenity

offense necessarily encompasses a broader category of property than

that used to commit the offense. Following from this observation,

the nexus required of property used to promote the commission of

the obscenity offense is necessarily less exacting than that

required of property used to commit the offense. The district

court thus erred in refusing to consider this evidence and should

do so on remand.

Similarly, the court is requi red on remand to consider

the 369 videos in the defendants' inventory which had been found

obscene in un related state prosecutions in Texas. The court

refused to consider such evidence in exercising its discretion to

order forfeiture on the grounds that they were "irrelevant" and

that no evidence existed "that the [d]efendants ever shipped a

single copy of any of the

... [videos]" into the Dallas Division of

the Northern District of Texas. I d. at 1388 n.12. Under our above

reasoning, however, they are equally subject to considera tion by

the court as were the unindicted videotapes.

By discussing the two sets of videos that the district

court specifically refused to admit, we by no means intimate the

extent of the district court's task on remand. The narrow

construction of the stat ute by the district court permeated its

view of the relevant considerations at the forfeiture stage. For

example, under the district court's narrow view, a computer not

actually used in the offense but located on the defendants'

premises

-- part of the contents of the real property the jury25

found subject to forfeiture -- would not be subject to forfeiture

for a couple of reasons. First, the district court construed

§1467(a)(3) to be limited to articles used to produce or transport

obs cene articles; presumably the computer would not be covered

under this construction. Second, the district court also construed

its discretion to extend only to property actually used in the

offense.

Under the proper understanding of the statute, however,

this computer could be found subject to forfeiture in the court's

discretion. The district court would have to consider the nature,

scope, and proportionality of the computer's use

-- actual and

intended

-- in the commission and promotion of the ob scenity

offenses. If the computer were solely dedicated to keeping sales

and transport records of the sexually explici t inventory, a

district court would be within its discretion to order forfeiture

following these crite ria. This result is completely permissible

even though the computer was not actually used to commit the §1462

violation.

This illustration does not suggest that t he issue of

forfeiture must be fought item by item across a defendant's

inventory. Rather, we hope to demonstrate that the proportionality

determination embodies more property than a forfeiture of only the

obscene materials themselves or the articles used in their

transportation and production. Comparison with the drug crime and

RICO forfeiture provisions is also apt. In the former case,

C ongress authorized forfeiture of property used "in any part" to29 It was ap propriate for the court to assess forfeiture

against the backdrop of the crimi nal sentences and five-figure

fines it meted out for the convictions.

26 facilitate a drug offense, 21 U.S.C. §853 (1988); this penalty is

broader than the § 1467(a)(3) discretionary provision. RICO

forfeiture, authorized under 18 U.S.C. § 1963 (1988), is also

broader, but it is predicated upon the more onerous conviction of

predicate offenses establ ishing an illegal "enterprise". As we

view it, § 1467(a)(3) discretionary forfeiture ought to rest in the

m iddle ground between the district court's unduly narrow

construction and the broader mandatory forfeitures authorized under

other statutes. 29

On remand, the distri ct court must broaden its view of

discretionary forfeiture consistent with this o p inion. While

attempting to guide the court's exercise of discretion, we do not

intimate how discretion should ultimately be exercised.

2. Constitutional Objections

Defendant/appellees argue that any interpretation of

§1467(a)(3) other than that of the district court would run afoul

of the Constitution. Specifically, they urge that our view of the

statutory provision constitutes an impermissible prior restraint on

presumptively protected speech and will lead to a chilling effect

on such speech. Warner also argues that the forfeiture sought by

the government would violate the Eighth Amendment.

Their First Amendment concern was laid to rest by the

Supreme Court's recent opinion in Alexander v. United States

,

____

U.S.

___, 113 S.Ct. 2766 (1993). The Supreme Court turned back the3 0 The defendant/appellees also argue that any construction

of the statute which allows for forfeiture of videotapes in their

California inventory based on the videotapes found obscene in

Dallas would effectively violate the community standards test set

forth in Miller v. California

, 413 U.S. 15, 32 - 34 (1973). But

this argument assumes that the videos are being forfeited because

they are believed to be obscene. Under §1467(a)(3), the videos may

be forfeited because they were related to the defendants' obscenity

convictions in this case and, thus, as subsequent punishment.

27 argument that a RICO forfeiture of sexually oriented business

convicted of multiple obscenity violations constituted an

impermissible prior restraint. To accept the defendant's argument,

the Court noted, "would virtually obl iterate the distinction ...

between prior restraints and subsequent punishments." I d. at 2771.

The critical dist inction that placed the RICO forfeiture order

firmly in the category of subsequent punishments was that the order

did not forbid future expressive activities or require any sort of

prior approval fo r such activities. S ee id. Section 1467

forfeiture shares this constitutionally significant characteristic.

As to the alleged chilling effect on protected speech, A lexander

countered that "the threat of forfeiture has no more of a chilling

effect on free expression than the threat of a prison term or a

large fine." S ee id. at 2774. The same holds true of a § 1467

forfeiture. 30

Warner's Eighth Amendment objection is premature since we

are remanding to the district court for a redetermination of the

appropriateness of forfeiture. If the district court in the

exercise of its discretion orders forfe iture, defendants may at

such time raise their Eighth Amendment arguments. See Alexander

,

113 S.Ct. at 2775

- 76 (concluding that on remand order of criminal28

forfeiture un der RICO should be analyzed under Excessive Fines

Clause of Eighth Amendment).

III.

CONCLUSION

A thorough re view of the many issues raised by this

complex obscenity prosecution leads us to affirm the convictions of

all defendants and remand to the district court for a new

forfeiture proceeding consistent with the proper cons truction of

§1467(a)(3). AFFIRMED IN PART; REMANDED IN PART.