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Of all the states, New Jersey tops the list in many measures. It has the most diners, the most spending on education per pupil, the most Superfund sites and the most radioactive-tritium-powered road signs, to name but a few. Now it can add another mark of distinction: Most imported pornography destroyed by federal authorities. Newark’s federal district court is far and away the most active for civil forfeiture claims brought under the obscure and rarely litigated Tariff Act of 1930, 19 U.S.C. 1305, which allows U.S. Customs Service officers to open mail entering the country without a warrant and destroy any obscene material they find. The statute, amended over time, forbids importation of “immoral articles,” defined as any “article which is obscene or immoral . . . [or] any matter advocating or urging treason or insurrection . . . [or] any article whatever for causing unlawful abortion, or any lottery ticket.” The mailing of obscene material has diminished somewhat during the past decade. There were only 31 cases nationwide in 2002, down from a record-high of 183 cases in 1990, according to Lexis-Nexis. The decline may be partly explained by increased access to Internet images, which has replaced demand for magazines. Videos are more problematic to transmit electronically. “A lot of times it still boils down to the mail if someone wants a video tape,” says U.S. postal inspector Dan Mihalko. “Most people don’t have enough sophisticated equipment to e-mail movies.” Last year, about half of all imported pornography seized in the United States was forfeited through courts in New Jersey, according to Lexis-Nexis. That’s 15 cases. The year before, 30 cases, or about 63 percent of the haul, were captured here, records from the U.S. Attorney’s Office show (see related chart). Officials say New Jersey is the Grand Central of imported porn for a simple reason: It is home to the Jersey City international bulk mail center, into which flows almost all surface mail from Europe. New York’s federal Eastern District accounts for almost all the other seizures because it includes Kennedy Airport, the main entry for airmail. In the early 1990s, Boston brought the most forfeitures, but since then inspection resources have been switched to the New York area. In the massive Jersey City facility off Route 1 and 9, customs officers tear through packages and parcels looking for contraband, mainly weapons or narcotics. Their priorities change according to the political climate. Last year, for instance, the customs service announced it would concentrate on industrial imports that have dual uses that may aid terrorists: Photocopy toner can be converted into mustard gas, officials say, or video game computer chips might become part of a missile-guidance system. But there is a constant stream of items that include “necrophilia, bestiality; explicit sexual conduct involving urination and/or defecation, extreme violence and/or underage participants,” as the U.S. Attorney’s Office boilerplate language describes it. Customs keeps the packages and informs the Office of the Associate Chief Counsel to the customs service in Manhattan. The counsel’s office, via the local U.S. Attorney’s Office, then files a forfeiture notice with the court, and sends a copy to the intended recipient of the package. If the recipient does not respond within 10 days, customs officials send the stash to a local incinerator. “You have to have the stuff accompanied by a couple of agents to make sure it gets burned, and they’re not out selling it,” says Mihalko, who spent years working with customs agents at Kennedy. In almost every case, the action is unopposed by the person who bought the pornography. That’s not surprising, considering that two thirds of the material involves sexual acts performed with animals. What is surprising is that despite having been caught once, many people try again. In a handful of cases reviewed by the Law Journal, a small number of names and addresses cropped up repeatedly. One resident of Oneida, N.Y., had his shipment of a bestiality video confiscated on Oct. 3, 2002. A forfeiture action was filed against the shipment a few days later. On Oct. 31, however, the man lost another video to the customs service, and presumably received another notice from the authorities. He was apparently not deterred — he lost two more videotapes, on Nov. 21 and Dec. 19. The material is destroyed but the recipients are almost never prosecuted. The U.S. Department of Justice focuses more on child pornography rather than German fetish tapes. “I don’t know how many agents they’ll assign to run down a bestiality issue,” says Peter Gaeta, the asset-forfeiture coordinator in the U.S. Attorney’s Office in Newark. “These are not a distribution-type quantity.” “It’s not porn involving youngsters,” adds Michael Drewniak, spokesman for the U.S. Attorney’s Office. “It’s really just what comes our way from the agents at customs.” The cases examined by the Law Journalinvolved bestiality or excretion — narrow interests that have few defenders. It was not always so. As little as three years ago, the customs service had a much wider net. Its reach was curtailed, however, by a rare defendant who decided to challenge the forfeiture. In United States v. Various Articles of Merchandise, 230 F.3d 649, a New York business called Alessandra’s Smile defended a forfeiture action on 264 French and German magazines devoted to the nudist lifestyle. U.S. District Judge Joseph Greenaway Jr. deemed the material obscene under the three-pronged test outlined in Miller v. California, 413 U.S. 15 (1973). On appeal, 3rd U.S. Circuit Court of Appeals, led by Judge Leonard Garth, ruled, “We are of the firm conviction that the District Court clearly erred in finding that these magazines appeal to the prurient interest because they contain photographs of nudist children around the world engaged in activities typical of children.” The decision that nudist publications were exempt from 19 U.S.C. 1305 may have been sound public policy, but the factual findings look somewhat shaky in hindsight. Garth noted in his decision that the court did not understand much of what it was looking at: “Neither party furnished the District Court with translations of the textual material found in the magazines,” he wrote. “The District Court centered its attention only on the photographs and illustrations. Because of the development of the District Court record in this fashion, we too limit our analysis to the magazines’ photographs and illustrations.” In fact, the magazines were titled Jeunes et Naturelsand Jung und Frei, which translate as “Young and Natural” and “Young and Free.” Those titles seem a little more sinister in light of reports from last year that the lawyer who owned Alessandra’s Smile, Lawrence Stanley of New York, was arrested in Brazil after police allegedly found hundreds of photographs and videos of young girls in swimsuits and underwear in his possession. They accused him of running a commercial child-pornography operation using Brazilian children whom he paid to pose. Stanley was in Brazil after skipping out on Canadian and Dutch charges of child sex abuse, according to The Washington Timesof July 24, 2002. Also that month, Canada’s National Postreported that the Alessandra’s Smile Web site was being operated by a convicted pedophile, Chris Farrell, and was filled with photographs of naked children at nudist camps. Stories like that are grist for the mill of U.S. Attorney General John Ashcroft, who has pledged to direct more federal resources toward obscenity prosecutions. “We are just actually starting to do them again,” says Ray Smith, national program manager for the U.S. Postal Inspection Service. “For about eight years under the former administration, under A.G. Janet Reno, the federal government kind of got away from doing these cases . . . under A.G. Ashcroft and President Bush there’s been a renewed interest . . . in the more serious obscenity purveyors.” There is a difference, of course, between policy announcements and actual results. The stumbling block for federal authorities in obscenity cases remains the Millertest, which requires proof that the material is prurient according to “contemporary community standards.” Under that test, material deemed obscene in Tennessee may pass muster in New Jersey. “It’s a very vague and subjective standard and it varies from one area to another,” says Marjorie Heins, director of New York’s Free Expression Policy Project, who has litigated Tariff Act cases. “It is an anomaly in First Amendment law. There’s no other area that I’m aware of that implicates the First Amendment where your constitutional protection varies depending on where you live.” � Michael Ravnitzky of American Lawyer Media contributed to this report.

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