At least one district court, however, has upheld the constitutionality of the forfeiture provision in the face of a prior restraint challenge. United States v. Pryba, 674 F. Supp. 1504, 1512 (E.D.Va. 1987). The Court specifically bypassed the question:
To the extent that plaintiff claims the sanctions authorized by RICO chill his exercise of first amendment protected activity he has satisfied the requirement of demonstrating potential irreparable harm. A similar argument was raised as a defense to a criminal prosecution under RICO in United States v. Pryba, 674 F. Supp. 1504 (E.D.Va. 1987). The Court in Pryba characterized the defendant's challenge as essentially an attack on the vagueness of the underlying obscenity statute.
Although it is of no direct significance, we note that the Federal Government — which has a RICO statute similar to Indiana's, 18 U.S.C. § 1961 et seq. — does not pursue pretrial seizure of expressive materials in its RICO actions against "adult bookstores" or like operations. See Brief for United States as Amicus Curiae 15, n. 12; cf. United States v. Pryba, 674 F. Supp. 1504, 1508, n. 16 (ED Va. 1987). IV
A subsequent punishment is applied only after the due process of a criminal trial and whatever "chilling effect" it may have is intended and legitimate. United States v. Pryba, 674 F. Supp. 1504, 1513 (E.D.Va. 1987). "The Constitution does not forbid punishment for a crime simply because that punishment might affect free expression."
In support of its argument that statutes of general applicability apply regardless of First Amendment implications, the state cites: United States v. Pryba, 674 F. Supp. 1504 (E.D.Va. 1987); Polykoff v. Collins, 816 F.2d 1326 (9th Cir. 1987); and Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986). Again, we find these cases inapplicable.
Jenkins' procedural due process arguments likewise are without merit. It cannot be gainsaid that a post-indictment petition for a restraining order stands on a stronger footing than a pre-indictment petition. Compare 18 U.S.C. § 1963(d)(1)(A) with § 1963(d)(1)(B) and -(d)(2); see United States v. Musson, 802 F.2d 384, 386-87 (10th Cir. 1986); United States v. Pryba, 674 F. Supp. 1504, 1508 (E.D.Va. 1987). In applying ex parte for the order at issue herein, the Government asserted that it might suffer irreparable harm if the order was not entered because the defendants or their agent might "sell, alienate, encumber, transfer or otherwise place the above-described property beyond forfeitable condition and thereby frustrate the ends of public justice.
The idea is that in the case of distributors, an order preserving the proceeds of sales of the material ensures the availability of the distributors' total forfeitable assets. See Alexander v. Thornburgh, 713 F.Supp. 1278 (D.Minn. 1989); United States v. Pryba, 674 F.Supp. 1504, 1508 n. 16 (E.D.Va. 1987), aff'd, 900 F.2d 748 (4th Cir. 1990), issuing such orders under the comparable RICO provision, 18 U.S.C. § 1963(d). Plaintiffs disagree. They read subsections (c) as directed to preserving specific forfeitable property — in this instance, books, films, magazines, photographs and the like — rather than total assets.
Although it is of no direct significance, we note that the federal government — which has a RICO statute similar to Indiana's, 18 U.S.C. § 1961, et seq. — does not pursue pretrial seizure of expressive materials in its RICO actions against "adult bookstores" or like operations. See brief of United States as amicus curiae, 15, n. 12; cf. United States v. Pryba, 674 F. Supp. 1504, 1508, n. 16 (E.D.Va. 1987).Id. at ___, 109 S.Ct. at 930.
It appears well-established that the intracorporate immunity doctrine is not a shield to a criminal prosecution in federal court for conspiracy to commit a federal crime. United States v. Pryba, 674 F.Supp. 1504, 1511 (E.D.Va.1987); seeUnited States v. Ames Sintering Co., 927 F.2d 232, 237 (6th Cir.1990) (holding that a corporation can be criminally convicted for conspiring with its officers). However, such fact fails to demonstrate the existence of a similar exception in civil cases.
Id. at 70507, 106 S.Ct. at 3176-78. See also United States v. Pryba, 674 F. Supp. 1504 (E.D.Va. 1987) (permitting RICO forfeiture to be used with in an obscenity prosecution). Stating that "First Amendment values may not be invoked by merely linking the words `ex' and `books,'" Arcara, 478 U.S. at 705, 106 S.Ct. at 3176, the Court ruled that "Bookselling in an establishment used for prostitution does not confer First Amendment coverage to defeat a valid statute aimed at penalizing and terminating illegal uses of premises."