Obscenity
crimes are prosecuted under 18 U.S.C. §§ 1460 through 1469. The substantive crimes
are set forth in sections 1460-1466 and 1468. Section 1467
authorizes criminal forfeiture of the obscene items, the
profits or proceeds obtained from the commission of the
crimes, and the property used to commit or promote the
commission of the obscenity crimes.
Section 1305 of Title 19
prohibits the importation of obscene items and authorizes
the seizure and forfeiture of such items. Sections 3008 and 3010 of Title 39
impose requirements on how and to whom sexually oriented
advertisements may be mailed. Individuals who violate
these requirements may be prosecuted under 18 U.S.C.
§§ 1735 and 1737. Section 223 of Title 47 prohibits,
in certain situations, obscene or indecent telephone calls.
(a) Prohibition of importation
All persons are prohibited from importing into the United
States from any foreign country any book, pamphlet, paper,
writing, advertisement, circular, print, picture, or drawing
containing any matter advocating or urging treason or
insurrection against the United States, or forcible resistance
to any law of the United States, or containing any threat
to take the life of or inflict bodily harm upon any person
in the United States, or any obscene book, pamphlet, paper,
writing, advertisement, circular, print, picture, drawing,
or other representation, figure, or image on or of paper
or other material, or any cast, instrument, or other article
which is obscene or immoral, or any drug or medicine or
any article whatever for causing unlawful abortion, or
any lottery ticket, or any printed paper that may be used
as a lottery ticket, or any advertisement of any lottery.
No such articles whether imported separately or contained
in packages with other goods entitled to entry, shall
be admitted to entry; and all such articles and, unless
it appears to the satisfaction of the appropriate customs
officer that the obscene or other prohibited articles
contained in the package were enclosed therein without
the knowledge or consent of the importer, owner, agent,
or consignee, the entire contents of the package in which
such articles are contained, shall be subject to seizure
and forfeiture as hereinafter provided: Provided, That
the drugs hereinbefore mentioned, when imported in bulk
and not put up for any of the purposes hereinbefore specified,
are excepted from the operation of this subdivision: Provided
further, That the Secretary of the Treasury may, in his
discretion, admit the so-called classics or books of recognized
and established literary or scientific merit, but may,
in his discretion, admit such classics or books only when
imported for noncommercial purposes: Provided further,
That effective January 1, 1993, this section shall not
apply to any lottery ticket, printed paper that may be
used as a lottery ticket, or advertisement of any lottery,
that is printed in Canada for use in connection with a
lottery conducted in the United States.
(b) Enforcement procedures
Upon the appearance of any such book or matter at any
customs office, the same shall be seized and held by the
appropriate customs officer to await the judgment of the
district court as hereinafter provided; and no protest
shall be taken to the United States Court of International
Trade from the decision of such customs officer. Upon
the seizure of such book or matter, such customs officer
shall transmit information thereof to the United States
attorney of the district in which is situated either;
(1)
the office at which such seizure took place; or
(2) the place to which such book or matter is addressed;
and
the United States attorney shall institute proceedings
in the district court for the forfeiture, confiscation,
and destruction of the book or matter seized. Upon the
adjudication that such book or matter thus seized is of
the character the entry of which is by this section prohibited,
it shall be ordered destroyed and shall be destroyed.
Upon adjudication that such book or matter thus seized
is not of the character the entry of which is by this
section prohibited, it shall not be excluded from entry
under the provisions of this section. In any such proceeding
any party in interest may upon demand have the facts at
issue determined by a jury and any party may have an appeal
or the right of review as in the case of ordinary actions
or suits.
(c) Institution of forfeiture proceedings
Notwithstanding the provisions of subsections (a) and
(b) of this section, whenever a customs officer discovers
any obscene material after such material has been imported
or brought into the United States, or attempted to be
imported or brought into the United States, he may refer
the matter to the United States attorney for the institution
of forfeiture proceedings under this section. Such proceedings
shall begin no more than 30 days after the time the material
is seized; except that no seizure or forfeiture shall
be invalidated for delay if the claimant is responsible
for extending the action beyond the allowable time limits
or if proceedings are postponed pending the consideration
of constitutional issues.
(d) Stay of forfeiture proceedings
Upon motion of the United States, a court shall stay such
civil forfeiture proceedings commenced under this section
pending the completion of any related criminal matter.
(b) Coordination of forfeiture proceedings with criminal
proceedings
(1)
Notwithstanding subsection (a) of this section, whenever
the Customs Service is of the opinion that criminal prosecution
would be appropriate or that further criminal investigation
is warranted in connection with allegedly obscene material
seized at the time of entry, the appropriate customs officer
shall immediately transmit information concerning such
seizure to the United States Attorney of the district
of the addressee's residence. No notice to the addressee
or consignee concerning the seizure is required at the
time of such transmittal.
(2) Upon receipt of such information, such United States
attorney shall promptly determine whether in such attorney's
opinion the referral of the matter for forfeiture under
this section would materially affect the Government's
ability to conduct a criminal investigation with respect
to such seizure.
(3) If the United States attorney is of the opinion that
no prejudice to such investigation will result from such
referral, such attorney shall immediately so notify the
Customs Service in writing. The appropriate customs officer
shall immediately notify in writing the addressee or consignee
of the seizure and shall transmit information concerning
such seizure to the United States Attorney of the district
in which is situated the office at which such seizure
has taken place. The actions described in paragraphs (1)
through (3) of this subsection shall take place within
sufficient time to allow for the filing of a forfeiture
complaint within 14 days of the seizure unless the United
States Attorney of the district of the addressee's residence
certifies in writing and includes specific, articulable
facts demonstrating that the determination required in
paragraph (2) of this subsection could not be made in
sufficient time to comply with this deadline. In such
cases, the actions described in paragraphs (1) through
(3) of this subsection shall take place within sufficient
time to allow for the filing of a forfeiture complaint
within 21 days of seizure.
(4) If the United States attorney for the district of
the addressee's residence concludes that material prejudice
to such investigation will result from such referral,
such United States attorney shall place on file, within
14 days of the date of seizure, a dated certification
stating that it is the United States attorney's judgment
that referral of the matter for forfeiture under this
section would materially affect the Government's ability
to conduct a criminal investigation with respect to the
seizure. The certification shall set forth specific, articulable
facts demonstrating that withholding referral for forfeiture
is necessary.
(5)
(A)
As soon as the circumstances change so that withholding
of referral for forfeiture is no longer necessary for
purposes of the criminal investigation, the United States
attorney shall immediately so notify the Customs Service
in writing and shall furnish a copy of the certification
described in paragraph (4) above to the Customs Service.
(B) In any matter referred to a United States attorney
for possible criminal prosecution wherein subparagraph
(5A) does not apply, the United States attorney shall
immediately notify the Customs Service in writing concerning
the disposition of the matter, whether by institution
of a prosecution or a letter of declination, and shall
also furnish a copy of the certification described in
paragraph (4) of this subsection to the Customs Service.
(C) Upon receipt of the notification described in subparagraph
(A) or (B) of this paragraph, the appropriate customs
officer shall immediately notify the addressee or consignee
of the seizure and shall transmit information concerning
the seizure, including a copy of the certification described
in paragraph (4) above and a copy of the notification
described in subparagraph (A) or (B) of this paragraph,
to the United States attorney of the district in which
is situated the office at which such seizure has taken
place, who shall institute forfeiture proceedings in accordance
with subsection (a) hereof within 14 days of the date
of the notification described in subparagraph (A) or (B)
above. A copy of the certification described in paragraph
(4) above and a copy of the notification described in
subparagraph (A) or (B) of this paragraph shall be affixed
to the complaint for forfeiture.
(c)Stay
on motion
Upon motion of the United States, a court, for good cause
shown, shall stay civil forfeiture proceedings commenced
under this section pending the completion of any related
criminal matter whether in the same or in a different
district.
§
1460. Possession with intent to sell, and sale, of obscene
matter on Federal property
(a)
Whoever, either—
(1)
in the special maritime and territorial jurisdiction of
the United States, or on any land or building owned by,
leased to, or otherwise used by or under the control of
the Government of the United States; or
(2) in the Indian country as defined in section 1151 of
this title, knowingly sells or possesses with intent to
sell an obscene visual depiction shall be punished by
a fine in accordance with the provisions of this title
or imprisoned for not more than 2 years, or both.
(b)
For the purposes of this section, the term "visual
depiction" includes undeveloped film and videotape
but does not include mere words.
Every
obscene, lewd, lascivious, indecent, filthy or vile article,
matter, thing, device, or substance; and—
Every article or thing designed, adapted, or intended
for producing abortion, or for any indecent or immoral
use; and
Every article, instrument, substance, drug, medicine,
or thing which is advertised or described in a manner
calculated to lead another to use or apply it for producing
abortion, or for any indecent or immoral purpose; and
Every written or printed card, letter, circular, book,
pamphlet, advertisement, or notice of any kind giving
information, directly or indirectly, where, or how, or
from whom, or by what means any of such mentioned matters,
articles, or things may be obtained or made, or where
or by whom any act or operation of any kind for the procuring
or producing of abortion will be done or performed, or
how or by what means abortion may be produced, whether
sealed or unsealed; and
Every paper, writing, advertisement, or representation
that any article, instrument, substance, drug, medicine,
or thing may, or can, be used or applied for producing
abortion, or for any indecent or immoral purpose; and
Every description calculated to induce or incite a person
to so use or apply any such article, instrument, substance,
drug, medicine, or thing
Is declared to be nonmailable matter and shall not be
conveyed in the mails or delivered from any post office
or by any letter carrier.
Whoever knowingly uses the mails for the mailing, carriage
in the mails, or delivery of anything declared by this
section or section 3001(e) of title 39 to be nonmailable,
or knowingly causes to be delivered by mail according
to the direction thereon, or at the place at which it
is directed to be delivered by the person to whom it is
addressed, or knowingly takes any such thing from the
mails for the purpose of circulating or disposing thereof,
or of aiding in the circulation or disposition thereof,
shall be fined under this title or imprisoned not more
than five years, or both, for the first such offense,
and shall be fined under this title or imprisoned not
more than ten years, or both, for each such offense thereafter.
The term "indecent", as used in this section
includes matter of a character tending to incite arson,
murder, or assassination.
§
1462. Importation or transportation of obscene matters
Whoever
brings into the United States, or any place subject to
the jurisdiction thereof, or knowingly uses any express
company or other common carrier or interactive computer
service (as defined in section 230(e)(2) of the Communications
Act of 1934), for carriage in interstate or foreign commerce—
(a)
any obscene, lewd, lascivious, or filthy book, pamphlet,
picture, motion - picture film, paper, letter, writing,
print, or other matter of indecent character; or
(b) any obscene, lewd, lascivious, or filthy phonograph
recording, electrical transcription, or other article
or thing capable of producing sound; or
(c) any drug, medicine, article, or thing designed, adapted,
or intended for producing abortion, or for any indecent
or immoral use; or any written or printed card, letter,
circular, book, pamphlet, advertisement, or notice of
any kind giving information, directly or indirectly, where,
how, or of whom, or by what means any of such mentioned
articles, matters, or things may be obtained or made;
or
Whoever
knowingly takes or receives, from such express company
or other common carrier or interactive computer service
(as defined in section 230(e)(2) of the Communications
Act of 1934) any matter or thing the carriage or importation
of which is herein made unlawful
Shall be fined under this title or imprisoned not more
than five years, or both, for the first such offense and
shall be fined under this title or imprisoned not more
than ten years, or both, for each such offense thereafter.
§
1463. Mailing indecent matter on wrappers or envelopes
All
matter otherwise mailable by law, upon the envelope or
outside cover or wrapper of which, and all postal cards
upon which, any delineations, epithets, terms, or language
of an indecent, lewd, lascivious, or obscene character
are written or printed or otherwise impressed or apparent,
are nonmailable matter, and shall not be conveyed in the
mails nor delivered from any post office nor by any letter
carrier, and shall be withdrawn from the mails under such
regulations as the Postal Service shall prescribe.
Whoever knowingly deposits for mailing or delivery, anything
declared by this section to be nonmailable matter, or
knowingly takes the same from the mails for the purpose
of circulating or disposing of or aiding in the circulation
or disposition of the same, shall be fined under this
title or imprisoned not more than five years, or both.
Whoever
utters any obscene, indecent, or profane language by means
of radio communication shall be fined under this title
or imprisoned not more than two years, or both.
§
1465. Transportation of obscene matters for sale or distribution
Whoever
knowingly transports or travels in, or uses a facility
or means of, interstate or foreign commerce or an interactive
computer service (as defined in section 230(e)(2) of the
Communications Act of 1934) in or affecting such commerce
for the purpose of sale or distribution of any obscene,
lewd, lascivious, or filthy book, pamphlet, picture, film,
paper, letter, writing, print, silhouette, drawing, figure,
image, cast, phonograph recording, electrical transcription
or other article capable of producing sound or any other
matter of indecent or immoral character, shall be fined
under this title or imprisoned not more than five years,
or both.
The transportation as aforesaid of two or more copies
of any publication or two or more of any article of the
character described above, or a combined total of five
such publications and articles, shall create a presumption
that such publications or articles are intended for sale
or distribution, but such presumption shall be rebuttable.
§
1466. Engaging in the business of selling or transferring
obscene matter
(a)
Whoever is engaged in the business of selling or transferring
obscene matter, who knowingly receives or possesses with
intent to distribute any obscene book, magazine, picture,
paper, film, videotape, or phonograph or other audio recording,
which has been shipped or transported in interstate or
foreign commerce, shall be punished by imprisonment for
not more than 5 years or by a fine under this title, or
both.
(b) As used in this section, the term "engaged in
the business" means that the person who sells or
transfers or offers to sell or transfer obscene matter
devotes time, attention, or labor to such activities,
as a regular course of trade or business, with the objective
of earning a profit, although it is not necessary that
the person make a profit or that the selling or transferring
or offering to sell or transfer such material be the person's
sole or principal business or source of income. The offering
for sale of or to transfer, at one time, two or more copies
of any obscene publication, or two or more of any obscene
article, or a combined total of five or more such publications
and articles, shall create a rebuttable presumption that
the person so offering them is "engaged in the business"
as defined in this subsection.
§
1466A. Obscene visual depictions of young children
(a)
Whoever, in a circumstance described in subsection (d),
knowingly produces, distributes, receives, or possesses
with intent to distribute a visual depiction that is, or
is indistinguishable from, that of a pre-pubescent child
engaging in sexually explicit conduct, or attempts or conspires
to do so, shall be subject to the penalties set forth in
section 2252A(b)(1), including the penalties provided for
cases involving a prior conviction.
(b) Whoever, in a circumstance described in subsection (d),
knowingly possesses a visual depiction that is, or is indistinguishable
from, that of a pre-pubescent child engaging in sexually
explicit conduct, or attempts or conspires to do so, shall
be subject to the penalties set forth in section 2252A(b)(2),
including the penalties provided for cases involving a prior
conviction.
(c) For purposes of this section--
(1) the term `visual depiction'
includes undeveloped film and videotape, and data stored
on computer disk or by electronic means which is capable
of conversion into a visual image, and also includes any
photograph, film, video, picture, or computer or computer-generated
image or picture, whether made or produced by electronic,
mechanical, or other means;
(2) the term `pre-pubescent child' means that
(A) the child, as depicted, is one whose
physical development indicates the child is 12 years
of age or younger; or (B) the child, as depicted, does
not exhibit significant pubescent physical or sexual
maturation. Factors that may be considered in determining
significant pubescent physical maturation include body
habitus and musculature, height and weight proportion,
degree of hair distribution over the body, extremity
proportion with respect to the torso, and dentition.
Factors that may be considered in determining significant
pubescent sexual maturation include breast development,
presence of auxiliary hair, pubic hair distribution,
and visible growth of the sexual organs;
(3) the term `sexually explicit conduct' has the meaning
set forth in section 2256(2); and
(4) the term `indistinguishable' used with respect to
a depiction, means virtually indistinguishable, in that
the depiction is such that an ordinary person viewing
the depiction would conclude that the depiction is of
an actual minor engaged in sexually explicit conduct.
This definition does not apply to depictions that are
drawings, cartoons, sculptures, or paintings depicting
minors or adults.
(d) The circumstance referred to in subsections
(a) and (b) is that--
(1) any communication involved in or made in
furtherance of the offense is communicated or transported
by the mail, or in interstate or foreign commerce by any
means, including by computer, or any means or instrumentality
of interstate or foreign commerce is otherwise used in
committing or in furtherance of the commission of the
offense;
(2) any communication involved in or made in furtherance
of the offense contemplates the transmission or transportation
of a visual depiction by the mail, or in interstate or
foreign commerce by any means, including by computer;
(3) any person travels or is transported in interstate
or foreign commerce in the course of the commission or
in furtherance of the commission of the offense;
(4) any visual depiction involved in the offense has been
mailed, or has been shipped or transported in interstate
or foreign commerce by any means, including by computer,
or was produced using materials that have been mailed,
or that have been shipped or transported in interstate
or foreign commerce by any means, including by computer;
or
(5) the offense is committed in the special maritime and
territorial jurisdiction of the United States or in any
territory or possession of the United States.
(e) In a case under subsection (b), it is an affirmative
defense that the defendant--
(1) possessed less than three such images; and
(2) promptly and in good faith, and without retaining
or allowing any person, other than a law enforcement agency,
to access any image or copy thereof--
(A) took reasonable steps
to destroy each such image; or
(B) reported the matter to a law enforcement agency
and afforded that agency access to each such image.
§
1467. Criminal forfeiture
(a)
Property subject to criminal forfeiture. A person who
is convicted of an offense involving obscene material
under this chapter shall forfeit to the United States
such person's interest in
(1)
any obscene material produced, transported, mailed, shipped,
or received in violation of this chapter;
(2) any property, real or personal, constituting or traceable
to gross profits or other proceeds obtained from such
offense; and
(3) any property, real or personal, used or intended to
be used to commit or to promote the commission of such
offense, 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.
(b)
Third party transfers. All right, title, and interest
in property described in subsection (a) of this section
vests in the United States upon the commission of the
act giving rise to forfeiture under this section. Any
such property that is subsequently transferred to a person
other than the defendant may be the subject of a special
verdict of forfeiture and thereafter shall be ordered
forfeited to the United States, unless the transferee
establishes in a hearing pursuant to subsection (m) of
this section that he is a bona fide purchaser for value
of such property who at the time of purchase was reasonably
without cause to believe that the property was subject
to forfeiture under this section.
(c) Protective orders.—
(1)
Upon application of the United States, the court may enter
a restraining order or injunction, require the execution
of a satisfactory performance bond, or take any other
action to preserve the availability of property described
in subsection (a) of this section for forfeiture under
this section
(A)
upon the filing of an indictment or information charging
a violation of this chapter for which criminal forfeiture
may be ordered under this section and alleging that the
property with respect to which the order is sought would,
in the event of conviction, be subject to forfeiture under
this section; or
(B) prior to the filing of such an indictment or information,
if, after notice to persons appearing to have an interest
in the property and opportunity for a hearing, the court
determines that
(i)
there is a substantial probability that the United States
will prevail on the issue of forfeiture and that failure
to enter the order will result in the property being destroyed,
removed from the jurisdiction of the court, or otherwise
made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property
through the entry of the requested order outweighs the
hardship on any party against whom the order is to be
entered; except that an order entered under subparagraph
(B) shall be effective for not more than 90 days, unless
extended by the court for good cause shown or unless an
indictment or information described in subparagraph (A)
has been filed.
(2)
A temporary restraining order under this subsection may
be entered upon application of the United States without
notice or opportunity for a hearing when an information
or indictment has not yet been filed with respect to the
property, if the United States demonstrates that there
is probable cause to believe that the property with respect
to which the order is sought would, in the event of conviction,
be subject to forfeiture under this section and that provision
of notice will jeopardize the availability of the property
for forfeiture. Such a temporary order shall expire not
more than 10 days after the date on which it is entered,
unless extended for good cause shown or unless the party
against whom it is entered consents to an extension for
a longer period. A hearing requested concerning an order
entered under this paragraph shall be held at the earliest
possible time and prior to the expiration of the temporary
order.
(3) The court may receive and consider, at a hearing held
pursuant to this subsection, evidence and information
that would be inadmissible under the Federal Rules of
Evidence.
(d)
Warrant of seizure. The Government may request the issuance
of a warrant authorizing the seizure of property subject
to forfeiture under this section in the same manner as
provided for a search warrant. If the court determines
that there is probable cause to believe that the property
to be seized would, in the event of conviction, be subject
to forfeiture and that an order under subsection (c) of
this section may not be sufficient to assure the availability
of the property for forfeiture, the court shall issue
a warrant authorizing the seizure of such property.
(e) Order of forfeiture. The court shall order forfeiture
of property referred to in subsection (a) if
(1)
the trier of fact determines, beyond a reasonable doubt,
that such property is subject to forfeiture; and
(2) with respect to property referred to in subsection
(a)(3), if the court exercises the court's discretion
under that subsection.
(f)
Execution. Upon entry of an order of forfeiture under
this section, the court shall authorize the Attorney General
to seize all property ordered forfeited upon such terms
and conditions as the court shall deem proper.
Following entry of an order declaring the property forfeited,
the court may, upon application of the United States,
enter such appropriate restraining orders or injunctions,
require the execution of satisfactory performance bonds,
appoint receivers, conservators, appraisers, accountants,
or trustees, or take any other action to protect the interest
of the United States in the property ordered forfeited.
Any income accruing to or derived from property ordered
forfeited under this section may be used to offset ordinary
and necessary expenses to the property which are required
by law, or which are necessary to protect the interests
of the United States or third parties.
(g) Disposition of property. Following the seizure of
property ordered forfeited under this section, the Attorney
General shall destroy or retain for official use any property
described in paragraph (1) of subsection (a) and shall
direct the disposition of any property described in paragraph
(2) or (3) of subsection (a) by sale or any other commercially
feasible means, making due provision for the rights of
any innocent persons. Any property right or interest not
exercisable by, or transferable for value to, the United
States shall expire and shall not revert to the defendant,
nor shall the defendant or any person acting in concert
with him or on his behalf be eligible to purchase forfeited
property at any sale held by the United States. Upon application
of a person, other than the defendant or person acting
in concert with him or on his behalf, the court may restrain
or stay the sale or disposition of the property pending
the conclusion of any appeal of the criminal case giving
rise to the forfeiture, if the applicant demonstrates
that proceeding with the sale or disposition of the property
will result in irreparable injury, harm, or loss to him.
(h) Authority of Attorney General. With respect to property
ordered forfeited under this section, the Attorney General
is authorized to
(1)
grant petitions for mitigation or remission of forfeiture,
restore forfeited property to victims of a violation of
this chapter, or take any other action to protect the
rights of innocent persons which is in the interest of
justice and which is not inconsistent with the provisions
of this section;
(2) comprise claims arising under this section;
(3) award compensation to persons providing information
resulting in a forfeiture under this section;
(4) direct the disposition by the United States, under
section 616 of the Tariff Act of 1930, of all property
ordered forfeited under this section by public sale or
any other commercially feasible means, making due provision
for the rights of innocent persons; and
(5) take appropriate measures necessary to safeguard and
maintain property ordered forfeited under this section
pending its disposition.
(i)
Bar on intervention. Except as provided in subsection
(1) of this section, no party claiming an interest in
property subject to forfeiture under this section may
(1)
intervene in a trial or appeal of a criminal case involving
the forfeiture of such property under this section; or
(2) commence an action at law or equity against the United
States concerning the validity of his alleged interest
in the property subsequent to the filing of an indictment
or information alleging that the property is subject to
forfeiture under this section.
(j)
Jurisdiction to enter orders. The district courts of the
United States shall have jurisdiction to enter orders
as provided in this section without regard to the location
of any property which may be subject to forfeiture under
this section or which has been ordered forfeited under
this section.
(k) Depositions. In order to facilitate the identification
and location of property declared forfeited and to facilitate
the disposition of petitions for remission or mitigation
of forfeiture, after the entry of an order declaring property
forfeited to the United States, the court may, upon application
of the United States, order that the testimony of any
witness relating to the property forfeited be taken by
deposition and that any designated book, paper, document,
record, recording, or other material not privileged be
produced at the same time and place, in the same manner
as provided for the taking of depositions under Rule 15
of the Federal Rules of Criminal Procedure.
(l)
Third party interests. - - (1) Following the entry of
an order of forfeiture under this section, the United
States shall publish notice of the order and of its intent
to dispose of the property in such manner as the Attorney
General may direct. The Government may also, to the extent
practicable, provide direct written notice to any person
known to have alleged an interest in the property that
is the subject of the order of forfeiture as a substitute
for published notice as to those persons so notified.
(2) Any person, other than the defendant, asserting a
legal interest in property which has been ordered forfeited
to the United States pursuant to this section may, within
30 days of the final publication of notice or his receipt
of notice under paragraph (1), whichever is earlier, petition
the court for a hearing to adjudicate the validity of
his alleged interest in the property. The hearing shall
be held before the court alone, without a jury.
(3) The petition shall be signed by the petitioner under
penalty of perjury and shall set forth the nature and
extent of the petitioner's right, title, or interest in
the property, the time and circumstances of the petitioner's
acquisition of the right, title, or interest in the property,
any additional facts supporting the petitioner's claim,
and the relief sought.
(4) The hearing on the petition shall, to the extent practicable
and consistent with the interests of justice, be held
within 30 days of the filing of the petition. The court
may consolidate the hearing on the petition with a hearing
on any other petition filed by a person other than the
defendant under this subsection.
(5) At the hearing, the petitioner may testify and present
evidence and witnesses on his own behalf, and cross -
examine witnesses who appear at the hearing. The United
States may present evidence and witnesses in rebuttal
and in defense of its claim to the property and cross
- examine witnesses who appear at the hearing. In addition
to testimony and evidence presented at the hearing, the
court shall consider the relevant portions of the record
of the criminal case which resulted in the order of forfeiture.
(6) If, after the hearing, the court determines that the
petitioner has established by a preponderance of the evidence
that
(A)
the petitioner has a legal right, title, or interest in
the property, and such right, title, or interest renders
the order of forfeiture invalid in whole or in part because
the right, title, or interest was vested in the petitioner
rather than the defendant or was superior to any right,
title, or interest of the defendant at the time of the
commission of the acts which gave rise to the forfeiture
of the property under this section; or
(B) the petitioner is a bona fide purchaser for value
of the right, title, or interest in the property and was
at the time of purchase reasonably without cause to believe
that the property was subject to forfeiture under this
section;
the
court shall amend the order of forfeiture in accordance
with its determination.
(7) Following the court's disposition of all petitions
filed under this subsection, or if no such petitions are
filed following the expiration of the period provided
in paragraph (2) for the filing of such petitions, the
United States shall have clear title to property that
is the subject of the order of forfeiture and may warrant
good title to any subsequent purchaser or transferee.
(m)
Construction. This section shall be liberally construed
to effectuate its remedial purposes.
(n) Substitute assets. If any of the property described
in subsection (a), as a result of any act or omission
of the defendant
(1)
cannot be located upon the exercise of due diligence;
(2) has been transferred or sold to, or deposited with,
a third party;
(3) has been placed beyond the jurisdiction of the court;
(4) has been substantially diminished in value; or
(5) has been commingled with other property which cannot
be divided without difficulty;
the
court shall order the forfeiture of any other property
of the defendant up to the value of any property described
in paragraphs (1) through (5).
§
1468. Distributing obscene material by cable or subscription
television
(a)
Whoever knowingly utters any obscene language or distributes
any obscene matter by means of cable television or subscription
services on television, shall be punished by imprisonment
for not more than 2 years or by a fine in accordance with
this title, or both.
(b) As used in this section, the term "distribute"
means to send, transmit, retransmit, telecast, broadcast,
or cablecast, including by wire, microwave, or satellite,
or to produce or provide material for such distribution.
(c) Nothing in this chapter, or the Cable Communications
Policy Act of 1984, or any other provision of Federal
law, is intended to interfere with or preempt the power
of the States, including political subdivisions thereof,
to regulate the uttering of language that is obscene or
otherwise unprotected by the Constitution or the distribution
of matter that is obscene or otherwise unprotected by
the Constitution, of any sort, by means of cable television
or subscription services on television.
(a)
In any prosecution under this chapter in which an element
of the offense is that the matter in question was transported,
shipped, or carried in interstate commerce, proof, by
either circumstantial or direct evidence, that such matter
was produced or manufactured in one State and is subsequently
located in another State shall raise a rebuttable presumption
that such matter was transported, shipped, or carried
in interstate commerce.
(b) In any prosecution under this chapter in which an
element of the offense is that the matter in question
was transported, shipped, or carried in foreign commerce,
proof, by either circumstantial or direct evidence, that
such matter was produced or manufactured outside of the
United States and is subsequently located in the United
States shall raise a rebuttable presumption that such
matter was transported, shipped, or carried in foreign
commerce.
Whoever,
using the mail or any facility or means of interstate
or foreign commerce, knowingly transfers obscene matter
to another individual who has not attained the age of
16 years, knowing that such other individual has not attained
the age of 16 years, or attempts to do so, shall be fined
under this title, imprisoned not more than 10 years, or
both.
