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BOGGS v. BOWRON

December 9, 1993

J.S.G. BOGGS, Plaintiff,
v.
ELJAY BOWRON,1 Director, United States Secret Service, LLOYD M. BENTSEN, Secretary of the Treasury, JANET RENO, Attorney General, Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 Plaintiff, a visual and performance artist, challenges the constitutionality of provisions of the federal anti-counterfeiting statutes, requesting declaratory and injunctive relief. *fn2" Defendants *fn3" have filed a motion to dismiss, and the parties have filed cross-motions for summary judgment. For the reasons stated below, defendants' motion for summary judgment is granted. *fn4"

 I. Introduction

 J.S.G. Boggs is an artist and academic. *fn5" His work has been exhibited throughout America and Europe and is currently on exhibit under the auspices of the Smithsonian Institution. Mr. Boggs' work has been the subject of wide-spread media attention. *fn6" This notoriety is due, in part, to the fact that much of Mr. Boggs' work is in the "image of money." See Complaint for T.R.O., Prelim. & Perm. Inj., & Other Relief ("Complaint") P 4; Aff. Boggs P 6. Many are actual-sized, trompe l'oeil pieces. *fn7" Id. P 6; Boggs Aff. P 3. After explaining to merchants that he is an artist, Mr. Boggs then barters these pieces, offering to exchange his art for the face value of the reproduction in goods and services. *fn8" Boggs has "spent" thousands of pictures of currency ("Boggs Bills") around the world over the last eight years. Id.9

 The purpose behind Boggs' approach to art does not appear to be to defraud those with whom he barters. *fn10" As he states:

 Boggs' Aff. P 7-8.

 An unlikely collector, the Secret Service has taken a keen interest in the work of Mr. Boggs. In September 1990, Secret Service agents effectively stopped the publication of a catalog featuring Mr. Boggs' work. When Secret Service agents seized the color proofs for the catalog, they informed the printing company that the publication of Boggs' work, in their actual dimensions and in full color, would be in violation of the counterfeiting statutes. Compl. P 9. The United States Attorney in Florida did not bring charges. Id. P 10.

 In March 1991, reports of Mr. Boggs' attempting to obtain merchandise from a local store using a reproduction of United States currency prompted a visit from the Secret Service in Cheyenne, Wyoming. Id. P 11. A Secret Service special Agent and the United States Attorney for the District of Wyoming visited Boggs in his hotel room. At their request, Boggs provided a general sample of 15 Boggs Bills. *fn11" Boggs was advised that his reproductions appeared to be in violation of the counterfeiting statutes and were subject to seizure. This sample is being retained by the Secret Service as contraband. Defs.' Mot. Dismiss at 4. On October 4, 1991, the Office of the United States Attorney for the District of Wyoming declined prosecution of Boggs. Compl. P 12.

 In September 1992, the Pittsburgh area Secret Service was alerted to Boggs' attempts to use his reproductions in the Pittsburgh area. Id., Abraham Aff. P 2. Boggs contacted the Pittsburgh Field Office by telephone and voluntarily appeared for an interview on October 1, 1992. During the interview, Boggs would not produce any other samples. The Secret Service provided Mr. Boggs with a pamphlet explaining the guidelines for reproducing currency; however, Mr. Boggs stated that he was familiar with the guidelines, but did not believe they applied to his work. Id. P 5.

 In November 1992, a press clipping alerted the Secret Service to the fact that Boggs had printed one million dollars in Boggs Bills and was planning to use the notes in the Pittsburgh area during the next year. Id. P 7-8. On December 1, 1992, after consultation with the United States Attorney's Office for the Western District of Pennsylvania, the Secret Service obtained federal search warrants for the residence, studio, and office of Boggs. The Service seized several items, characterized by Boggs as the bulk of his life's work, pursuant to the properly executed warrants. Plf.'s Mem. Mot. T.R.O. & Prelim. Inj. at 2, 11. In a December 8, 1992, meeting with agents of the Secret Service, Boggs was advised that his reproductions were in violation of the statute and that he could be prosecuted for his actions if he continued. Compl., Abraham Aff. P 10.

 On February 8, 1993, the united States Attorney for the Western District of Pennsylvania sent a cease and desist letter to Boggs, stating that continued reproducing and passing of Boggs Bills could subject him to prosecution. The letter expressed that the Service viewed his "continued manufacture, possession and distribution of 'Boggs bills' as a violation of the law." The United States Attorney's Office is currently considering whether it will prosecute Mr. Boggs in Pennsylvania. *fn12"

  On May 25, 1993, Boggs attempted to resolve the matter through administrative means. He petitioned the Secretary of the Treasury pursuant to 18 U.S.C. § 504 for permission to continue his reproduction and distribution of Boggs Bills. Compl., Ex. A. *fn13" Prosecutors agreed to refrain from taking steps to indict Boggs pending the decision by the Secretary. Plf.'s Mem. Mot. T.R.O. & Prelim. Inj. at 3. On September 2, 1993, Boggs' petition was denied by the Secret Service. Id., Ex. B. On September 3, 1993, Boggs initiated the current proceeding. *fn14"

 II. Motion to Dismiss for Failure to State a Claim

 A. Standard of Review

 Before reaching the merits of plaintiff's claims, however, the court must address its jurisdiction over this matter. Defendants suggest that the complaint should be dismissed for failure to state a claim for equitable relief. When reviewing the adequacy of a complaint for purposes of a Rule 12(b)(6) motion, plaintiff's factual allegations must be presumed true and liberally construed in favor of the plaintiff. Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 968 (D.C. Cir. 1979) (citing Miree v. Dekalb County, Georgia, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977)). In addition, the plaintiff must be given every favorable inference that may be drawn from his allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." 2A Moore's Federal Practice, § 12.07, at 63 (2d ed. 1986) (footnote omitted); see Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1254 (D.C. Cir. 1987) (citing Pauling v. McElroy, 107 U.S. App. D.C. 372, 278 F.2d 252, 254 (D.C. Cir.), cert. denied, 364 U.S. 835, 5 L. Ed. 2d 60, 81 S. Ct. 61 (1960)).

 Dismissal is only appropriate if it appears beyond doubt that no set of facts proffered in support of plaintiff's claim would entitle him to relief. Haynesworth, 820 F.2d at 1254 (citations omitted); Phillips, 591 F.2d at 968.

 B. Reaching the Merits of this Case

 Plaintiff asks this court to enjoin the ongoing criminal investigation and possible future criminal prosecution in the Western District of Pennsylvania on constitutional grounds. Compl. at 10. The question is whether this court should reach the merits of this case. Defendants suggest not. After considering the extraordinarily well-written pleadings and memoranda of all parties, this court believes that it may hear the merits of this request for injunctive relief under the Declaratory Judgment Act, the equities of the situation at hand requiring this court to provide a forum for plaintiff's complaint. *fn15"

 The Declaratory Judgment Act states:

 
(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of Canadian merchandise, as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

 28 U.S.C.A. § 2201 (West Supp. 1993) (emphasis added).

 Under the Declaratory Judgment Act, the court must have before it "a case of actual controversy within its jurisdiction." This phrase has often been interpreted as synonymous with the "case or controversy" requirement of Article III of the Constitution. "Concrete legal issues, presented in actual cases, not abstractions" are required for adjudication of legal disputes. United States v. Appalachian Elec. Power Co., 311 U.S. 377, 423, 85 L. Ed. 243, 61 S. Ct. 291 (1940); see also Golden v. Zwickler, 394 U.S. 103, 110, 22 L. Ed. 2d 113, 89 S. Ct. 956 (1969); Electric Bond & Share Co. v. SEC, 303 U.S. 419, 443, 82 L. Ed. 936, 58 S. Ct. 678 (1938). *fn16" "Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 85 L. Ed. 826, 61 S. Ct. 510 (1941).

 In order for a party to seek preenforcement review of a statute, the dispute must also be ripe for adjudication. 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure § 2757 (1983). For example, a plaintiff can usually challenge the legality of a statute only when he or she is prosecuted for its violation. Then, the plaintiff can raise a defense that the law is unconstitutional.

 However, a plaintiff need not "first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 39 L. Ed. 2d 505, 94 S. Ct. 1209 (1974). Threats of criminal prosecution may provide a basis for adjudication. Id. A plaintiff "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Doe v. Bolton, 410 U.S. 179, 188, 35 L. Ed. 2d 201, 93 S. Ct. 739 (1973). Indeed, civil actions for declaratory relief against criminal prosecution have become a common method of challenging the constitutionality of federal statutes. Moreover, courts have not hesitated to restrain or enjoin criminal prosecutions where First Amendment rights are at stake. PHE, Inc. v. Department of Justice, 743 F. Supp. 15, 26 (D.D.C. 1990).

 As Wright, Miller, and Kane explain:

 
Courts have declined to hear cases seeking a declaratory judgment on the constitutionality of a particular statute . . . when plaintiff has not shown that there is any immediate threat that the statute will be enforced against him. But, courts also have not hesitated to issue a declaration if "one or both parties have taken steps or pursued a course of action which will result in "'imminent' and 'inevitable' litigation . . . ." Thus, when the threat of prosecution under a challenged statute is real, a declaratory judgment on the constitutionality of the statute is appropriate.

 10A Wright, Miller, & Kane, supra, § 2757 (footnotes and citations omitted). Inherent in this rule of law is that there is an unfairness to requiring a person to violate a law in order to challenge it.

 In considering whether to entertain a case, a court should consider the hardship to the parties in withholding court consideration and the significance of the harm in denying review. These factors must be weighed on a case-by-case basis, *fn17" construing the Declaratory Judgment Act liberally so as to effectuate its broad, remedial purpose.

 Because the separation of powers doctrine dictates substantial deference with respect to prosecutorial decisionmaking in investigations and prosecutions, there is a strong policy against intervening in ongoing criminal investigations. North v. Walsh, 656 F. Supp. 414, 420 (D.D.C. 1987). The standard of obtaining any form of injunctive relief is high, but a party who seeks to enjoin a criminal investigation has a particularly heavy burden. Id. Our Court of Appeals has denied such equitable relief, ruling that "only the most extraordinary circumstances warrant anticipatory judicial involvement in criminal investigations." Id. (citing Reporters Committee for Freedom of the Press v. AT&T, 192 U.S. App. D.C. 376, 593 F.2d 1030, 1065 (D.C. Cir. 1978), cert. denied 440 U.S. 949, 59 L. Ed. 2d 639, 99 S. Ct. 1431 (1979)). In addition, the Supreme Court has routinely rejected collateral challenges which impede ongoing criminal investigations.

 The rationale is threefold. First, courts must protect the public's interest in the fair and expeditious enforcement of the criminal laws. Second, courts should balance the defendant's need to assert his rights against the judiciary's interest in conserving its resources. And third, principles of separation of powers caution courts against intervening in a criminal investigation conducted by another branch of government. Id.

 Despite the caution which a court must exercise in deciding whether to hear the merits of a declaratory action to enjoin a criminal prosecution, Mr. Boggs is involved in a controversy ripe for adjudication. Having exhausted his administrative remedy, Mr. Boggs has pursued a course of conduct that will result in inevitable litigation. *fn18" There is no question that Mr. Boggs and the Secret Service have "adverse legal interests." This court believes these interests are of "sufficient immediacy and reality" to warrant adjudication.

 Mr. Boggs is also justified in his well-founded fear of prosecution. Boggs has received numerous warnings emanating from the Treasury Department. See supra Part I. Plaintiff has been told that if he does not cease and desist "from the use of any future reproductions of currency appearing in color," the matter will be turned over to the United States Attorney for "appropriate action." The United States Attorney has never disavowed the possibility of prosecution. See supra footnote 10.

 "The absence to date of prosecutorial action with respect to plaintiff does not diminish or lessen the immediacy and ripeness of this controversy: 'contingency of official enforcement of clearly applicable criminal prohibitions should not be grounds for denying present review, even if there is no demonstrated threat of prosecution.'" Time, Inc. v. Regan, 539 F. Supp. 1371, 1382 (S.D.N.Y. 1982), aff'd in part and rev'd in part 468 U.S. 641, 82 L. Ed. 2d 487, 104 S. Ct. 3262 (1984) (citations omitted).

 In addition, Mr. Boggs is being injured by the Secret Service in a number of ways other than threat of prosecution. Not only has the Secret Service seized his work, but also Mr. Boggs finds himself unable to sell his art. Fear of Secret Service seizure has also caused the artists' cooperative where Boggs lives to stop accepting his work. Boggs Aff. P 15. Collectors and gallery owners who would like to show or buy Boggs' work are also fearful of Secret Service intervention. See Sam Berkowitz Aff.

 Plaintiff created a black and white enlargement from a negative of the federal reserve note, and modified the bill, creating images within the currency reproduction that expressed criticism of President Nixon's economic policies and his involvement in the Watergate scandal. Id. The court held that the "seizure of the facsimile by the Secret Service and the threats of criminal prosecution have effectively prevented plaintiff from marketing and displaying reproductions of the facsimile." The court noted that these facts were sufficient to satisfy the case or controversy requirement of Article III. Id. at 430.

 Defendants also assert that Rule 41(e) of the Federal Rules of Criminal Procedure provides an adequate remedy at law for the violation of Boggs' First Amendment rights. Rule 41(e) involves the return of property held by or on behalf of the Court. While the return of plaintiff's property is important, it is not a substitute for declaratory and injunctive relief vindicating his constitutional rights. Moreover, Rule 57 provides that "another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." Fed. R. Civ. P. 57. The language in the Declaratory Judgment Act ...


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