RECOMMENDATION 26

Part: 
Three
Chapter: 
2

Federal law enforcement agencies should conduct active and thorough investigations of all significant violations of the obscenity laws with interstate dimensions.

As recommended elsewhere in this report, the United States Attorneys should begin prosecuting appropriate violations of the federal obscenity laws without further delay.[257] The efforts of federal prosecutors must be based upon and complemented by active and thorough investigations of all violations of the obscenity laws by the federal law enforcement agencies.

The Federal Bureau of Investigation (FBI) derives its investigative jurisdiction in this area from the federal statutes covering obscenity and child pornography.[258] From the beginning of fiscal year 1978 through the second quarter of Fiscal Year 1985, the FBI has conducted 2,484 investigations involving interstate transportation of obscene materials and violations involving child pornography.[259] These investigations have resulted in 137 indictments and 118 convictions. Of these figures forty-five indictments and fourteen convictions were the result of the single investigation known as MIPORN.[260] The FBI has given its highest priority to cases involving organized crime.[261] The Federal Bureau of Investigation recently conducted a two year investigation which resulted in the case United States v. Guglielmi.[262] This case grew out of an approximately two-year investigation by the Federal Bureau of Investigation regarding obscene materials, particularly bestiality films shipped in interstate commerce into the Western District of North Carolina. The investigation, which first centered around undercover purchases from a relatively small street-corner outlet for "sexual aids" and pornographic magazines, films and pockets books, expanded after a successful search of those premises and interview of the personnel, to a cautious undercover investigation involving telephone calls to, and meetings with, the defendant himself. The introduction to the defendant was made by a former "adult" bookstore operator, and various orders of bestiality films and other materials were followed by a successful search of Central Sales, the defendant's multistory Baltimore warehouse for the shipment of obscene materials. The Grand jury's eleven-count indictment for violations of Title 18, U.S. Code, Sections 2, 371, 1462 and 1465, followed on June 12, 1985.

The trial lasted approximately four days, during which a number of bestiality films were displayed, in titles of which indicated the animals portrayed. The defense called a number of "experts" who were experienced defense specialists in pornography cases, several of whom were affiliated with the Institute for the Advanced Study of Human Sexuality, a San Francisco, California, group that includes among its classes a course on testifying for the defense in pornography cases. Information provided by other prosecutors made possible the effective crossexamination of these witnesses. The defense "experts" testified that the materials did not appeal to the prurient interest of the average citizen in the Western District of North Carolina, since the average person does not have such an interest.

The trial in general was characterized by numerous voir dire examinations and arguments on a number of points of law and fact. Pre-trial motions had also been lengthy and had included a Motion of Recuse, by which the defendant sought to have the trial judge, the Honorable Robert D. Potter, to disqualify himself. This motion was denied, and defendant filed a petition for writ of mandamus to the Fourth Circuit, which was also denied.

The jury was similarly unpersuaded by defense arguments and found the defendant guilty of all eleven counts in the indictment. Judge Potter sentenced the defendant to a total of twenty-five years incarceration and a $35,000 fine. The case is now under appeal.

The Director of the FBI told this Commission that while the Bureau does not "downgrade" the seriousness of the problem of obscenity violations involving adult material, "it is simply the implication of our resources."[263] He added that "it will probably mean that there will be less pro-active initiatives on our part" in adult cases that do not involve organized crime.[264]

This Commission received evidence that two of the FBI field offices in one of the nation's most active obscenity distribution centers, New York City, will not investigate cases involving obscene material.[265]

The Federal Bureau of Investigation is encouraged to seriously step up its investigative efforts relating to obscenity law violations.

The jurisdiction of the United States Customs Services extends to all materials entering the United States by land, sea or air.[266] Prior to the signing of the Child Protection Act of 1984 (18 U.S.C. SS2251-2255), the United States Customs Service had received direction from Commissioner William Von Raab to step up efforts to intercept obscene material. Special emphasis was placed on material depicting children in sexual explicit conduct. The Customs Service was responsible for six successful child pornography prosecutions in fiscal year 1983. Five of the convictions were violations various state laws and the sixth was a violation Federal Law, 18 U.S.C. §1462. With the signing of the Child Protection Act, the figures changed to fourteen federal convictions and twenty state convictions in 1984, and nineteen federal and ten state convictions as of August 1985.

Until the early part of 1985, the Customs Service's method for initiating child pornography investigations was fairly static. A mail parcel would be examined at one of the twenty-two customs foreign mail facilities. The package, once discovered to contain child pornography, would be forwarded to the Office of Investigations in the District concerned. The case agent would then match the name and/or address of the addressee with other seizures. A background investigation on the addressee would be conducted in order to show other criteria as outlined in the United States Attorneys Manual. Based on the results of the investigation and a controlled delivery of the seized parcel, a search warrant would be obtained and executed on the address in question. In the majority of the search warrants executed, the suspect would be found to have a large collection of imported and home-made child pornography. Additionally, more and more evidence was found to link child molestation to the importers of the child pornography.[267]

By February 1985, compilations of seizure lists were being made and disseminated throughout the service. Most field offices had assigned at least one, and sometimes several agents to investigate child pornography cases on an exclusive or collateral basis. Foreign mail facilities were targeting the traditional "source" countries of child pornography: Denmark, the Netherlands, and Sweden.

In January 1985, a special delegation representing the United States Customs Service, the United States Postal Inspection Service and the Federal Bureau of Investigation travelled to Europe. Their purpose was to address the issue of foreign cooperative efforts in fighting the child pornography industry.

As a result of these critical contacts, interagency cooperation is expanding. Investigators are beginning to look for the major distributors, producers, and consumers. Increased cooperation with foreign governments had led to two successful undercover operations in 1985. As a result of the increased foreign cooperation, new methods of smuggling, as well as additional source countries and distributors are being identified. Examples include: Transshipment routes through England, France, East Germany, and Southeast Asian countries heretofore not considered source countries, such as France, Italy, Japan, Thailand and the Philippines; and more sophisticated packaging techniques and profiles.

New methods of conducting child pornography investigations are being developed and attempted. These include the adaptation of methods used in narcotics and currency investigations, as well as methods used in the investigation of criminal sex offenses. Some bold and innovative undercover operations have been suggested and implemented.

The Customs Service is actively pursuing the enhancement of existing resources and the development of programs to meet the changing needs of the enforcement effort. It is only by such a process of enhancement and development that the Customs Service or any other agency can hope to compete with the ingenuity of those who sexually exploit children.

Future efforts in pornography enforcement will center around the activities of the Child Pornography and Protection Unit (CPPU). Criminal investigations that focus on sexual exploitations which involve other customs violations and other forms of obscene material have and are being developed. Such investigations involve customs fraud, unreported currency transactions, and general smuggling. Currently, all obscene material encountered by the customs foreign mail facilities are processed for forfeiture under civil statute. If at some future time the Customs Service becomes involved in criminal investigation of obscene violations, the data already available through this procedure will provide invaluable investigative leads.

Customs examines all parcels which are suspected of containing contraband.[268] With respect to obscenity law cases particular attention is given to parcels from Denmark, Sweden and the Netherlands. These countries have traditionally been the source of child pornography entering the United States.[269] In 1984, Customs seized forty-three hundred parcels which contained suspected obscene materials.[270] Child pornography was found in 50 percent of those.[271] The other items seized were largely adult materials including some depicting bestiality, urination and defecation.[272]

When a Customs agent seizes obscene material, a notice is sent to the intended recipient of the material. The notice permits the individual to sign a release and forfeit the material to the government. The material is subsequently destroyed and generally no one is prosecuted for an obscenity violation.[273] If the material is child pornography, a controlled delivery is made to the recipient and a search warrant is subsequently executed on the recipient's premises, often leading to the arrest of that individual.[274] According to one Customs agent assigned to Chicago, "countless thousands" of obscenity cases involving obscene materials have not been presented to the United States Attorney because based upon their experience, agents perceive that these cases will not be prosecuted.[275]

The United States Postal Inspection Service has investigative responsibility over all federal criminal violations involving the mails including the use of the mails to distribute obscenity.[276] Investigations are initiated based on citizen complaints, advertisements in sexually oriented publications and correspondence initiated by a postal inspector.[277] Postal inspectors are responsible for protecting the mails and postal facilities from criminal attack; for protecting the American public from being victimized by fraudulent schemes where use of the mails is an essential part of the scheme; and for keeping postal management informed of the conditions and needs of the Postal Service.

Postal crimes fall within two broad categories: Criminal acts against the Postal Service, such as, armed robberies, burglaries or theft of mail and misuse of the Postal System such as the mailing of bombs, use of the mails to defraud the public and the use of the mails to distribute pornography. The Inspection Service is also responsible for the internal audit of Postal Service operations and for the security of postal facilities and employees. In addition, the Inspection Service is responsible for investigating violations of a number of civil statutes relating to the use of the mails including the Postal False Representations Statute.

Title 18, United States Code, Section 1461, enacted in 1865, is the statute by which the Postal Inspection Service restricts use of the mails to distribute obscene matter. The statute provides for criminal penalties of up to five years in prison, a $5,000 fine, or both, for using the mails to transmit any "obscene lewd lascivious indecent filthy or vile article, matter, thing, device or substance."

Title 18, United States Code, Sections 2251-2255, the Protection of Children Against Sexual Exploitation Act of 1977 and the Child Protection Act of 1984 are the statutes by which the Postal Inspection Service investigates trafficking in child pornography through the mails. The statute provides for criminal penalties of up to ten years in prison and/or a $100,000 fine. The offender's property used in or derived from the crime is subject to criminal and civil forfeiture under this section. Most states have laws dealing with the sale, distribution and/or possession of obscenity. When dual jurisdiction is involved, Inspectors assist local authorities in the enforcement of their laws. On the international level, the Inspection Service cooperates with the Department of State, the United States Customs Service, Interpol and certain foreign postal authorities to stem the flow of obscene material and child pornography into or from the domestic sources.

Congress has also enacted three civil statutes designed to curb the mailing of sexually oriented material. Title 39, United States Code, Section 3006, allowed the Postal Service to refuse to deliver mail in response to advertising which sought to obtain money through the mailing of obscene matter.

Sections 3008-3011, allows postal customers to obtain an order prohibiting any future mailings by anyone who mails them an advertisement which the addressee considers sexually provocative. Title 39 United States Code, authorizes the Postal Service to maintain a list of persons who do not wish to receive sexually oriented advertising and prohibits the mailing of such advertising to persons who have asked to have their names listed. Companion criminal statutes, 18 U.S.C. SS1735-1737, authorize the courts to penalize persons who mail sexually oriented advertising and prohibits the mailing of such advertising to the persons whose names are on the list.

The Department of justice has establishment enforcement priorities with respect to the obscenity statutes and the Postal Inspection Service's investigative activities are determined accordingly. The Inspection Service has currently established the following priorities:

  1. Policy
    All investigations involving the use of the mail to transmit child pornography are given priority attention. Major domestic and foreign dealers in obscene material also receive prompt investigative attention.
  2. Child Pornography
    The objective in child pornography cases is to identify and investigate mail order activity. If other offenses such as child abuse are discovered incident to an investigation, this activity is immediately referred to local police or other appropriate authorities.
  3. Obscene Material
    The objective in the obscenity area is to investigate cases consistent with Department of justice priorities. These priorities are:
    1. Large scale commercial obscenity distributors involved in multi-state operations.
    2. Cases in which there is evidence of infiltration by known organized crime figures.
    3. Relatively small dealers are occasionally investigated and/or prosecuted, particularly when the material is especially offensive or when numerous customer complaints are present. This provision is maintained to dispel any notion that pornography distributors can insulate themselves from prosecution if their operations fail to exceed a pre-determined size or if they are fragmented into small scale components.

These priorities, supplemented by guidelines Inspectors receive from the Department of justice in individual cases, form the basis of the Postal Service investigative program. In 1985 the Postal Inspection Service reported activity in the following areas:

Nationwide

  • 15,766 criminal investigations completed.
  • A total of 5,570 convictions.
  • Convictions obtained in 98% of all cases brought to trial.
  • Recoveries, restitutions made and fines imposed-$34.2 million.

Prohibited Mailings

  • Obscenity and Child Pornography (18 U.S.C. 1461, 2251, 2252) 183 investigations completed; of these 176 involved "child pornography"
  • 141 convictions for "child pornography" were obtained.

Like other federal agents, postal inspectors present evidence of violations of the law to the appropriate United States Attorney.[278] In fiscal year 1985 the Postal Inspection Service conducted 183 pornography-related investigations which resulted in 179 arrests and 143 convictions.[279] These investigations were principally child pornography cases.[280]

The Postal Inspection Service presents very few cases involving obscene material for prosecution because they have been told by employees of the justice Department that these cases are "not prosecutable."[281] The Chief Postal Inspector has confirmed that "[i)nvestigations in adult pornography cases have declined in recent years...."[282]

These three law enforcement agencies are capable of making significant contributions to the investigation and prosecution of violations of the federal obscenity laws. The FBI's efforts in the MIPORN investigation of organized crime figures involved in obscenity distribution resulted in fourteen convictions as of February 1986.[283] The FBI should also include obscenity and related crimes among its Uniform Crime Statistics report. Similarly the Customs Service and the Postal Inspection Service have had much success in their child pornography investigations.[284] Working with dedicated prosecutors committed to enforcing the obscenity laws, these agencies can have an even greater impact on the reduction of pornography in the United States. They must commit the manpower and resources necessary to fulfill the task and conduct active and thorough investigations of all violations of the federal obscenity laws.

Notes

  1. See, United States Department of Justice Recommendation 1; "Investigation Authority" is the statutory power granted to an agency to initiate and pursue inquiries into criminal activity.
  2. 18 U.S.C. SS1462 & 1465; 18 U.S.C. SS2251-2255; Washington, D.C., Hearing, Vol. II, William Webster, p. 76.
  3. Washington, D.C., Hearing, Vol. II, William Webster, p. 76.
  4. Id.
  5. Id., p. 77.
  6. C-CR-85-59(W.D.N.C. 1986).
  7. Id., p. 90.
  8. Id.
  9. New York Hearing, Vol. IV, Paul McGeady, p. 126.
  10. Chicago Hearing, Vol. I, lack O'Malley, p. 105.
  11. In at least one instance, an agent discovered a molestation in progress. (The case resulted in a guilty plea to an information followed by a probationary sentence.)
  12. Id.
  13. Id., p. 106.
  14. Id.
  15. Id.
  16. Id.
  17. Id., p. 107.
  18. Id., pp. 107-08.
  19. Id., p. 118.
  20. Washington, D.C., Hearing, Vol. I, Charles Clauson, p. 135.
  21. Id., p. 136.
  22. Id.
  23. United States Postal Inspection Service Statistics (1986).
  24. Id.
  25. Id., p. 70.
  26. Washington, D.C., Hearing, Vol. I, Charles Clauson, p. 138.
  27. Washington, D.C., Hearing, Vol. II, William Webster, p. 77; Letter from Donald B. Nicholson to Alan E. Sears (Feb. 28, 1986).
  28. See, Washington, D.C., Hearing, Vol. I, Daniel Mihalko, p. 155-161; Chicago Hearing, Vol. I, Jack O'Malley, p. 110-16; Chicago Hearing, Vol. II, John Ruberti, p. 62-68.