author: DONALD E. O’BRIEN, Chief Judge.

text:
    George Raymond DANIELS, et al., Plaintiffs, v. WOODBURY COUNTY, IOWA, et al., Defendants.
    No. C 81-4026.
    United States District Court, N.D. Iowa, W.D.
    Jan. 7, 1986.
    Kelley Rice, Legal Services, Sioux City, Iowa, for plaintiffs.
    Patrick McCormick, Co. Atty., Roger McEntaffer, Sioux City, Iowa, for defendants.
   ORDER

DONALD E. O’BRIEN, Chief Judge.

Pursuant to the Court of Appeals’ decision in Daniels v. Woodbury County, 742 F.2d 1128 (8th Cir.1984), this case is now before this Court to determine whether the County’s current or proposed procedural rules are consistent with minimum due process standards under Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The Court has also been directed to examine the question of whether the current definitions of “poor,” “disabled,” “able-bodied,” and “no property” contained in the Woodbury County General Relief Rules afford the applicants minimum due process. The Court also has before it plaintiffs’ application for attorney fees. After carefully considering the briefs and oral arguments of the parties, the Court makes the following determinations.

Issue One: Defendants’ Procedural Rules.

Plaintiffs argue that they are entitled to an injunction mandating: (a) written decisions and the reasons for the decisions at both the initial decisional level and on appeal to the Board of Supervisors; (b) written notice of appeal rights; (c) written notice of any requirements for cooperation; and (d) full access to the applicants’ file. At the hearing, it became apparent that defendants, for the most part, did not dispute plaintiffs’ requests. Subsequent to the hearing, defendants filed a “Compliance with Court Order,” in which they clarified their position. First, defendants agree that a general relief applicant'should be given a written decision by the general relief worker when such relief is denied in whole or in part. Second, defendants agree that a written decision upon appeal to the Board of Supervisors should be provided to the applicant when relief is denied in whole or in part. Third, defendants agree that general relief applicants should be provided with written notice of their appeal rights and affirmatively state that such practice does exist at the present. Fourth, defendants agree that the general relief applicants should be provided written notice of any requirements for cooperation and that such practice is now being used. However, defendants argue that general relief applicants should not have full access to their files. Thus, the only question for the Court to decide with respect to defendants’ procedural rules is whether an applicant is entitled to full access of his or her general relief file.

Defendants argue that third-party information or documentation contained in an applicant’s file should be provided to an applicant only after an independent third-party review of such information finds it to be relevant and material to the denial of applicant’s claim. As the Eighth Circuit stated in its decision in this case, the Court is guided by the balancing test set out in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), in determining whether defendants’ procedural rules are consistent with minimum due process. The factors in the test include: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interests through the procedures used, and the probable value, if any, of additional or substituted procedural safeguards; and (3) the government’s interest, including the function involved and the fiscal administrative burdens that the additional or substituted procedural safeguards would entail. Id., at 335, 96 S.Ct. at 903. Applying such test to the case at bar, the Court finds that plaintiffs’ full access to the file would give plaintiffs the right to cross-examine adverse witnesses whose information may have been responsible for denying an applicant relief. Nevertheless, the Court finds that by allowing an applicant the opportunity to view third-party statements only after an independent third party has determined that such statements are relevant and material does not prevent an applicant from exercising his or her right of cross-examination of a witness who may have been responsible for the denial of benefits. As to the third factor in the Mathews test, the Court finds that the County does have an interest in protecting the confidentiality of irrelevant and immaterial third party communications in that such confidentiality induces relevant and material communication. The Court finds in balancing the above factors, that review of third-party information by an independent third party is appropriate. The parties have agreed that an associate district judge be the independent third party to review the communications.

Plaintiffs have requested that the Court issue an injunction in which it orders the defendants to comply with the four points plaintiffs have argued. However, defendants have stated in their responsive briefs that they are either implementing procedural rules or will soon be implementing rules acceptable to plaintiffs. The Court, therefore, finds that an additional injunction is not necessary except with respect to an applicant’s access to his or her file. The Court finds it necessary to order that an associate district court judge review any third-party communication that is within an applicant’s file to determine whether such information appears to be relevant or material to the denial of the applicant’s claim being refused in whole or in part. Should it be found to be material and relevant by the associate district court judge, an applicant shall be entitled to review such communication.

Issue Two: Definitions.

In remanding this case back to this Court, the Eighth Circuit stated that while this Court may not usurp the clearly legislative function of defining eligibility standards in the first instance, it may require such standards to be promulgated and followed in order to limit and direct the decision maker’s discretion. Daniels v. Woodbury County, 742 F.2d at 1135.

Subsequent to the hearing on this matter, defendants submitted proposed definitions of “poor person,” “no property,” “disabled,” and “able-bodied.” Plaintiffs then submitted a response to defendants’ proposals as well as plaintiffs’ own proposals. After carefully considering the proposals, the Court finds the following definitions to be proper.

A. Poor Person.

Defendants proposes definition of “poor person” is the same as it is defined in Iowa Code Chapter 252, which states that:

[T]he words “poor” and “poor person” as used in this chapter shall be construed to mean those who have no property, exempt or otherwise, and are unable, because of physical or mental disabilities, to earn a living by labor.

Plaintiffs have no quarrel with defendants’ definition as it is simply lifted from the Iowa Code. However, they challenge the standards of the Employee Manual, which the county worker is required to follow when deciding whether an applicant is poor. The manual has an additional income/expense factor. (Employee Manual, Chapter IV.B.4)2.) Under the Manual, the “basis of living” is determined to be the lower of the “maximum monthly income standards” or the actual cost of necessary needs only incurred by the person in the present living arrangements. Determination of “necessary needs” is within the discretion of the county worker. As the Eighth Circuit stated, where the defendants have already established a category of eligible applicants, such as the category of “poor” persons here, the County may not arbitrarily and capriciously deny the availability of that category by lodging unlimited discretion in the hands of the decision-maker. Daniels v. Woodbury County, Iowa, 742 F.2d at 1135. Taking that into consideration, the Court finds that a county worker’s determination of the needs of an applicant is improper. As a result, the Court finds that the County should be barred from using such a standard. The Court does not find the same to be true as to the maximum monthly income standards. Still, it finds such requirement is dealt with adequately in the definitions of “no property” and “disabled” and, therefore, having such a requirement under the definition of “poor” would be duplicative. As a result, the Court finds defendants’ income/expense factor improper.

B. No Property.

The term “no property” has been defined as “without property which can aid in his or her support or out of which funds may be realized for his or her maintenance.” Hamilton Co. v. Holland, 119 N.W. 978, 980 (1909). Furthermore, the Iowa Supreme Court has found that a poor person may have some means and yet still be eligible for relief. See Hardin County v. Wright County, 24 N.W. 754 (1888); Jasper County v. Osborne, 13 N.W. 104 (1882). Finally, Chapter 252 of the Iowa Code allows a person to have a homestead as well as other property and still be considered a poor person. See In Re Frentiers’ Estate, 249 Iowa 783, 89 N.W.2d 367 (1958).

Defendants propose to define “no property” to mean the complete absence of any tangible things except clothing. Expanding on the rule, the Employee Manual at Chapter V, B.(4)l states:

There is no exemption of any kind, except clothing shall not be considered property. Household furnishings, car, cash, and all other types of property, real or personal, shall cause any individual to not qualify as a poor person regardless of value.

The Court finds defendants’ definition is too restrictive in light of the above Iowa decisions.

Plaintiffs propose a standard for “no property” which draws from definitions and rules used to administer the Aid to Families with Dependent Children Program (AFDC), the Supplemental Social Security Income Program (SSI), and Food Stamp Program. The Court finds plaintiffs’ definition to be substantially acceptable. Therefore, the term “no property” should be defined as: (1) when determining eligibility of an applicant as a poor person, the value of the applicant’s property, other than that property excluded under section (3) of these rules, may not exceed $1,500; (2) where an applicant’s household consists of two or more persons, at least one of whom is aged 60 or over or disabled, the value of the applicant’s property, other than that property excluded under' section (3) of these rules, may not exceed $2,000; (3) in determining eligibility of a poor person, the following shall be exempt from consideration as property: (a) the homestead and adjoining land; (b) basic maintenance items essential to day-to-day living such as clothes, furniture, cookware and other similarly essential items; (c) one automobile up to $1,500 of equity value, unless the automobile is necessary to provide the medical treatment of the applicant or a member of the applicant’s household, in which case the equity value may not exceed $4,500; and (d) any burial plots already owned or being purchased by installment payments.

C. Disabled.

Defendant defines “disabled” to mean “the existence of any physical or mental impairment which would enable [sic] the applicant from performing the ordinary duties of any work requirement assigned to said applicant.” The Court finds that this definition conflicts with the provisions set out in the Employee Manual in that the disability must be a “long term condition and it must extend more than two (2) months to qualify as a poor person.” Employee Manual Chapter IV, B.4)3. Plaintiffs’ proposed disability definition, which again relies on the rules governing the AFDC, SSI and food stamps is more consistent and appropriate in light of his due process rights.

An acceptable definition of “disabled” is: [Disability] shall mean the existence of an impairment, illness, or defect, either mental or physical, which has a demonstrable effect upon the applicant’s ability to perform ordinary work tasks. The incapacity, when not evident to the general relief worker, may be supported by medical statements supplied by a physician or psychologist. A doctor’s statement stating the applicant possesses an impairment which has a demonstrable effect on his or her ability to perform ordinary work tasks, shall be conclusive proof of disability. The incapacity may range from partial and/or temporary to total and/or permanent. Mental impairments, alcoholism, or drug addiction may constitute disability depending upon their effect on the applicant’s ability to perform ordinary work tasks. There shall be no durational requirement for the incapacity to qualify the applicant as disabled, except that any physical disability need not be recognized until it has been present for fourteen days. Any person not disabled as defined above shall be considered able bodied.

The Court notes that the last sentence was added by the Court to plaintiffs’ proposed definition of “disabled.”

D. Able-bodied.

Defendants define able-bodied as:

The absence of any physical or mental impairment which, if existing, would enable [sic] the applicant from performing the ordinary duties of any work requirement assigned to said applicant. Work performed shall be valued at equal to the relief received when credited at the rate of the Federal Minimum Wage.

Plaintiffs argue that defendants’ definition of able-bodied is subject to the same flaws as their definition of disabled. Further, plaintiffs argue that the standards in the Employee Manual for ascertaining when an applicant is able-bodied are even more egregious. (Employee Manual Chapters V, E.7; IV, B.4)3; V, D)5). Specifically, if an applicant is determined not to be able-bodied, the county worker is instructed to do whatever is possible to find some kind of work for the applicant. According to plaintiffs, in the absence of a well-defined standard for determining disability, defendants will continue to make physically and mentally impaired individuals work for relief. Plaintiffs, however, do not propose a definition of able-bodied. According to plaintiffs, if their definition of disabled is employed, then no poor person can be found to be able-bodied. The Court finds no definition of “able-bodied” needs to be promulgated. As set out in the definition of disabled, any person not disabled as defined above shall be considered able-bodied.

Issue Three: Attorney Fees.

The Court also has before it plaintiffs’ motion for attorney fees. Plaintiff has asked for attorney fees in the total amount of $41,440.50 for four attorneys and costs of $7,521.45. The motion has been supported by affidavits itemizing the hours and expenses expended by the attorneys. Defendants resist on several grounds. First, the defendants, individually and as members of Woodbury County, Iowa Board of Supervisors, argue that plaintiffs and intervenor are not entitled to fees against those defendants because plaintiffs did not prevail against those defendants. The Court, in reviewing its order, finds it did not award any damages against those defendants, nor did it find against them, and therefore is in agreement with their position. The Defendant County argues that 28.7 of Garrick Byers’ hours and 40.25 of Chris Marie Brown’s hours claimed to have been for work not directly involved in the § 1983 action in federal court. Also, Defendant County claims that many hours spent were on unsuccessful claims and therefore are not recoverable.

Civil rights plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they succeed on any significant issue in litigation which achieves some benefit the parties sought in bringing the suit. Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.1978); see also Fast v. School District of City of Laude, 728 F.2d 1030, 1032 (8th Cir.1984). A plaintiff is a prevailing party if he or she succeeds “on any significant issue ... which achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). It remains with the district court to determine whether a fee is reasonable. Id.

The proper starting point for determining the amount of reasonable attorney fees is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Id. After such calculation, there remain other considerations that may lead a district court to adjust the fee upward or downward, including the important factor of results obtained. Id. Where a plaintiff is deemed “prevailing” even though he succeeded on only some of his claims for relief, two questions must be answered: (1) did the plaintiff fail to prevail on claims unrelated to the claims on which he succeeded, and (2) did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award? Id., at 434, 103 S.Ct. at 1940. Here the answer to both questions is yes.

Taking the above discussion into consideration, the Court finds plaintiffs entitled to an award of attorney fees of $37,149.60. In making such determination, the Court finds that a rate of $50.00 per hour is appropriate up to and including July 1, 1984 and that $55.00 per hour shall be the approved rate thereafter. Further, from the affidavits submitted by plaintiffs, they claim to have worked 800.8 hours on this case. The Court, however, finds 68.95 hours were spent on unrelated claims and therefore deducts that amount from hours claimed, leaving plaintiffs entitled to compensation for 731.85 hours. Six hundred forty-seven and 40/100 hours were incurred prior to July 1, 1984 at $50.00 per hour, for a subtotal of $32,370.00. Eighty-four and 45/100 hours were incurred after July 1, 1984 for a subtotal of $4,644.75. $32,370.00 plus $4,644.75 equals $37,014.75, the total fee awarded.

Plaintiffs also claim they are entitled to $7,521.45 for expenses. However, the Court finds that these expenses should be treated under the bill of costs, which the Clerk of this Court shall handle.

IT IS THEREFORE ORDERED that the Defendant County shall forthwith adopt the definitions for “poor person,” “no property,” and “disability,” as set out above, and implement their conduct accordingly.

IT IS FURTHER ORDERED that, except as stated below, no additional injunction provisions shall issue in this cause, as this Court is now persuaded that the defendant has represented to the Court that it is for the most part in agreement with the terms of this Order. However, the injunction now in force and effect shall be made permanent. In the event plaintiffs contend that the Defendant County is not living up to the intent and purpose of this Order, said plaintiffs may petition this Court for a precise injunction and will be promptly heard.

IT IS FURTHER ORDERED, that an associate district judge, acting as an independent third party, shall review all third-party information contained in a welfare applicant’s file to determine if it is relevant and material to the denial of benefits to the applicant. If deemed relevant and material, an applicant shall be entitled to review the information himself or herself.

IT IS FURTHER ORDERED that plaintiffs be awarded $37,014.75 in attorney fees and costs of this action.

      . Plaintiffs also argue that by having an independent third party decide what is relevant, applicants will be unable to fully prepare their case. According to plaintiffs, without knowing what information exists and with an unreviewable decision by an independent third party, applicants may have their case narrowed and shaped by a person who does not understand the theory or practice of general relief law. The Court is not so convinced. The parties have agreed that should the Court order an independent third party to examine the record, it would be an associate district judge. Such a person, who is trained in the law, is not likely to make misjudgments with respect to relevance and materiality. Plaintiffs also argue that the type of review proposed by defendants may also delay access to the information, since few independent third parties can be available on short notice. Since the independent third-party review of the information has not been implemented, the Court cannot say that there will be a delay of access to information. As a result, the Court is not convinced by plaintiffs’ argument. Further, the Court notes that plaintiffs did not offer any type of alternative to the Court.

      . It appears to this Court that defendants use the word "enable" in its proposed definitions when the word “prevent” is more appropriate.

      . It appears to this Court that defendants use the word "enable” in their proposed definitions when the word "prevent” is more appropriate.

      . Nothing set out in this ruling is intended to conflict with the existence of a well-supervised, adequate "aid to the handicapped” job program, although the same shall not be used to circumvent the rules set out in this order.

      . The four attorneys did not work together throughout this case. Rather, they were involved at different times during the case’s pend-ency. Any work done together is considered duplicative and the Court will only consider such work as performed by one attorney. See In Re Continental Illinois Securities Litigation, 572 F.Supp. 931 (N.D.Ill.1983).


source: Caselaw Access Project

author: LEIGHTON, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. VARIOUS ARTICLES OF MERCHANDISE, SEIZURE NO. 187, Defendant.
    No. 85 C 6733.
    United States District Court, N.D. Illinois, E.D.
    Jan. 7, 1986.
    Patrice Scully, Spec. Asst. U.S. Atty., Chicago, for plaintiff.
    Alan R. Hirsch, pro se.
   Memorandum

LEIGHTON, District Judge.

On July 19, 1985, the United States Customs Service seized four pictorial magazines from the international mails. They were WONDERBOY 48, DREAMBOY 6, NEW ANIMAL ORGY 16, FILM INDEX 83; and had been mailed to three separate individuals in the United States from the Netherlands and Denmark. On July 29, 1985, the United States Attorney instituted this civil in rem action, seeking forfeiture and destruction of all four magazines. The government alleges that they are obscene and were imported into the United States in violation of federal law.

I

The Tariff Act of 1930, as amended (19 U.S.C. § 1305), authorizes the Customs Service to seize “any obscene book” imported into the United States. After seizure, the government must obtain a determination from the United States District Court sitting in the jurisdiction where the materials were seized, that the seized articles are in fact obscene. If the district court determines that the material is obscene, an order may issue for the forfeiture and destruction of the materials.

Service of the government’s complaint in the present case was effected by publication, with a copy of the notice sent to each of the three addressees in this case. In a reply entitled, “Claim for Articles Seized by U.S. Customs” dated August 7, 1985, Alan R. Hirsch (“Claimant”) claimed two of these magazines: WONDERBOY 48 and DREAMBOY 6, as his “own obtained for [his] private use exclusively.” Claimant requested an impartial hearing before the district court to determine whether these magazines were obscene. In Claimant’s “Answer to Complaint for Forfeiture” dated August 19, 1985, he alleges that the two magazines were sent for his private and exclusive use and that the magazines do not meet the relevant tests for obscenity. No claims were filed for the magazines entitled, NEW ANIMAL ORGY 16 and FILM INDEX 83, even though notices were sent to the two addressees.

For the reasons set forth below, the court finds that the magazines in issue here are obscene under the test for obscenity as enunciated by the Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Because the materials are obscene, they were thus imported into the United States in violation of the Tariff Act of 1930, and should be forfeited, condemned, and destroyed.

It is well recognized that material found to be obscene is not protected under the First Amendment. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); United States v. Langford, 688 F.2d 1088, 1091 (7th Cir.1982), cert. denied 461 U.S. 959, 103 S.Ct. 2433, 77 L.Ed.2d 1319 (1983); United States v. Various Articles of Merchandise, Seizure No. 170, 750 F.2d 596, 597 (7th Cir.1984). But prior to a denial of First Amendment protections, the court must determine that the materials in question are, in fact, obscene. The Supreme Court in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), set out a three-part test [to be used when determining whether a particular article is obscene]. The three-part standard enunciated in Miller is as follows: (1) whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interests; (2) whether the work depicts or describes sexual conduct in a patently offensive manner; and (3) whether the work taken as a whole lacks serious literary, artistic, political, or scientific value. If a particular work meets each of these tests, it may then be condemned as obscene. Seizure No. 170, 750 F.2d at 597.

In this case, the government has submitted these four magazines to the court alleging that they are obscene. The government has chosen to submit the material claiming that the magazines speak for themselves. The government relies on the belief that the court can determine, through an examination of these magazines, whether they are, in fact, obscene under the Miller standards set forth above. Paris Adult Theater I v. Slaton, 413 U.S. 49, 56, 93 S.Ct. 2628, 2634, 37 L.Ed.2d 446 (1972); United States v. Thoma, 726 F.2d 1191, 1200 (7th Cir.1984). In this way, the government is not required to provide evidence of community standards but can rely on the “district court’s own knowledge of community standards.” Seizure No. 170, 750 F.2d at 599.

The court is required to make a determination regarding the obscenity of all four works even though only one of three addressees has filed a claim. As the Seventh Circuit recently stated, “the government is required by statute to secure a determination of obscenity, and the destruction order does not issue by default.” Various Articles of Merchandise, Seizure No. 170, supra, 750 F.2d at 599.

II

In arriving at the conclusion that each of the four works presented is obscene, this court examined each of them. Therefore, it is necessary to set forth, in a general way, what this examination revealed as to the contents of each.

NEW ANIMAL ORGY 16 is a largely pictorial magazine devoted to various acts of bestiality. There are various photographs depicting actual or imminent perverse sexual contact between humans and various animals. The limited textual material, presented in three languages including English, serves only to describe in graphic terms the activities clearly depicted in the photographs. The activity depicted as “unnatural couplings,” served only to increase the overall offensiveness of the whole magazine.

FILM INDEX 83 is also a predominantly pictorial magazine. The work consists of a collection of still photographs depicting certain scenes from numerous hard core sex films. The pictures contained in this work include almost every conceivable variation of sexual conduct and contact. The work includes photographs of sexual intercourse, group sex, and anal intercourse, fellatio, cunnilingus, and the use of various mechanical devices. Most of the photographs clearly depict a specific type of sexual activity. Many of the photographs show only the model’s genitals and focus on actual penetration and other sexual contact. The magazine also contains photographs of males directing semen onto the faces of females pictured. What small amount of textual material that is included serves only to dispel any doubt the reader may have as to the activity depicted.

WONDERBOY 48 is also largely a pictorial magazine. The textual material, less than one-sixth of the contents of this magazine, is printed in a foreign language. The photographs contained in this work are of adolescent males engaged in various sexual activities. The photographs depict fellatio, mutual masturbation, anal intercourse, and impending analingus. In all of the photographs, the models’ genitals are prominently displayed and are often the sole focus of the photograph. The poses assumed by the models, and their facial expressions, are designed to impart an overall impression of sexual lust.

DREAMBOY 6 is a completely pictorial work with the exception of the title and a few lines inside the front cover about the publisher. The single model in this magazine also appears to this court to be an adolescent male. All of the photographs in this magazine have as a focal point the boy’s genitals, and some of the photographs show only the genitals. The photographs contained in this magazine depict various scenes of masturbation and other lewd exhibition of the boy’s erect penis.

Ill

With the general nature and content of these works considered, we turn next to an application of the three-part Miller standard.

A

The first determination this court must make is whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. The court, in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), when it defined obscene material, said that such was “material which deals with sex in a manner appealing to prurient interest.” Id. at 487, 77 S.Ct. at 1310. In a footnote, the court described this as “material having a tendency to excite lustful thoughts.” Id. at 487, n. 20, 77 S.Ct. at 1310, n. 20.

Different works, depicting both the usual and the unusual, cannot be evaluated in the same manner. The Supreme Court recognized this is Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966). The material at issue in Mishkin depicted deviate sexual practices; the defendant contended that they, therefore, would not appeal to the prurient interest in sex of the average person. The court rejected this contention and said that a determination of prurient appeal must be made according to the group for which it was intended.

Where the material is designed for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interest in sex of the members of that group. We adjust the prurient-appeal requirement to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests of its intended and probable recipient group. Mishkin, 383 U.S. at 508-9, 86 S.Ct. at 963-64.

Thus, the material must have a “tendency to excite lustful thoughts” in the audience to which it is directed.

Based on this understanding of the first criteria in Miller, this court must decide whether the works at issue in this case appeal to the prurient interest. FILM INDEX 83 seems to offer something for everyone, no matter what the person’s sexual proclivities, whether they be usual or unusual. It depicts sexual intercourse between males and females, but also contains depictions of more unusual sexual activity such as bondage, group sex, and anal intercourse. Based on viewing this work and based on how the average person in the community would view it, the court has no trouble concluding that this work, taken as a whole, appeals to the prurient interest.

After examining NEW ANIMAL. ORGY 16, the court is of the opinion that most people in the community would find the scenes depicted to be disgusting and of no appeal at all. But as instructed by Mishkin, the court must consider whether this material would appeal to the prurient interest of the audience to which it is directed. The appropriate group by which to measure prurient appeal would therefore be those persons with an interest in acts of bestiality. Although the court finds it difficult to believe that this type of activity appeals to anyone, it is clear that this material would not be produced and offered for sale if there were not some people who wished to purchase it. In considering the photographs in conjunction with the descriptive textual material, we can only conclude that this material is intended to appeal to the prurient interest in sex of that group of people interested in sexual activity with animals.

DREAMBOY 6 and WONDERBOY 48 are also intended to, and would, appeal to the prurient interests of some groups of individuals. WONDERBOY 48, depicting scenes of fellatio and anal intercourse between two male adolescents, would appeal to certain groups of homosexual males. The acts depicted, and the lewd exhibition of the boys’ genitals, as well as the facial expressions of the boys, leave little doubt as to the intended effect on the viewing audience. Similarly, DREAMBOY 6, although not depicting any type of sexual contact between two people, is nevertheless intended to appeal to a prurient interest in sex. This work contains photographs of a lone adolescent male engaged in various acts of masturbation and other lewd exhibition of his genitals. No descriptive textual material is present, but the boy’s facial expressions and the series of unnatural and contrived poses lead unfailingly to the conclusion that sexual stimulation is the dominant intent of this work.

The court therefore concludes that all four of these works are intended to, and would, appeal to some individuals’ prurient interest in sex. Certainly, not all four would appeal to the same audience, but this is not a necessary requirement to meet the first prong of the Miller test.

B

The second distribution which this this court is required to make is whether the work depicts or describes sexual conduct in a patently offensive manner. Again, the court is required to view this material based on its knowledge of the relevant community standards to determine if the work would be patently offensive to the average person in the community. The choice of the relevant community in order to determine what standards should apply in this consideration was recently discussed in United States v. Various Articles of Merchandise, Seizure No. 170, 750 F.2d 596, 600 (7th Cir.1984). There, the Seventh Circuit said that the “City of Chicago is sufficiently large and diverse to constitute an adequate community” for the purpose of defining the relevant community standards. Id. at 600, n. 4. But the court of appeals also suggested that the Chicago metropolitan area, or even the Northern District of Illinois, may be the appropriate area to consider. This court is of the opinion that it should consider, at least, the Chicago metropolitan area in its determination due to the ease of transportation and the large amount of interaction between the residents of the City of Chicago and residents of the surrounding communities. It is in defining these standards that the most difficult problem is posed. The concern here is with the average person, and the type of material found patently offensive by that person. Concern is not with the most hardened nor the most prudish person in the relevant community.

The court, in Miller, provided examples of what could be regulated as obscene: (1) “patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated; and (2) patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.” Miller, 413 U.S. at 25, 93 S.Ct. at 2615. Clearly, the materials at issue in this case depict or describe the types of activities listed by the court, and which may be the subject of regulation or in the present case condemnation. The only question this court must answer is whether the depictions and descriptions are patently offensive to the average person in the community.

Considering NEW ANIMAL ORGY 16, the court has no hesitation in determining that this magazine depicts and describes actual and perverted sexual conduct in a patently offensive manner. The court’s knowledge of the standards held by the average person in the Chicago metropolitan area require the conclusion that the depictions in NEW ANIMAL ORGY 16 would be offensive to these people. There is no requirement, in determining whether material is offensive, to focus on any particular deviant sub-group as was done when determining prurient appeal. Rather, it is offensiveness based on the attitudes held by a representative cross section of this community. Here, the mere discussion of this type of activity, and especially the pictorial representation of it, would be offensive to the great majority of people in the Chicago metropolitan area.

FILM INDEX 83, taken as a whole, would also be patently offensive to the average person’s sense of decency and morality. As stated by the court in Miller, to classify a work as obscene, that work must depict or describe some type of sexual conduct. Thus, photographs of nude models, without more, would fall outside this classification. While a few of the photographs in FILM INDEX 83 are of this type, that is, photographs of nude models not engaged in any sexual activity, the great majority of the photographs depict either actual, imminent, or simulated sexual conduct. Many of the pictures contain lewd exhibitions of the models’ genitals, both male and female. But the majority of the photographs are much more explicit. They clearly depict sexual conduct which has previously been found to be patently offensive to the average person in Illinois.

In Sequoia Books, Inc. v. McDonald, 725 F.2d 1091, 1093 (7th Cir.1984), cert. denied — U.S. -, 105 S.Ct. 83, 83 L.Ed.2d 31 (1984), the court implicitly found that “magazines, movies, and video tapes containing depictions or portions thereof of the following: cunnilingus, fellatio, anal intercourse, vaginal intercourse, excretion of semen from penis onto other persons, masturbation, vaginal or anal insertion of prosthetic devices, insertion of tongue into anus ...” are materials that will be patently offensive to the average person in Illinois.

While the Chicago metropolitan area probably is the most liberal community in Illinois, it is hard to believe that the average person in this progressive community could view this material without being offended. This court’s own sense of decency is offended by the scenes depicted in this magazine. The photographs and accompanying text depicts various forms of sexual conduct in base and vulgar fashion.

The court is aware that this type of magazine is available in certain areas of this community. But, mere availability is not synonymous with a community-wide standard. FILM INDEX 83, taken as a whole, is clearly offensive material, and thus meets the second test of the Miller standard.

Finally, this court will consider the two magazines for which a claim has been made, WONDERBOY 48 and DREAMBOY 6. The court has examined the contents of each magazine and has considered each of them independently. But because the conclusions concerning each one is the same, and because Claimant has made the same arguments as to each, without distinction, reference to the magazines individually will be made only when the discussion requires it.

Both of these magazines contain the type of depictions that have previously been found to be subject to regulation. DREAMBOY 6 shows an adolescent male in various scenes of masturbation and in other lewd exhibitions of his genitals. WONDERBOY 4 shows scenes of fellatio and anal intercourse, clearly “ultimate sexual acts,” and also lewd exhibitions of the boys’ genitals. The question this court must answer is whether the photographs show this in a patently offensive manner according to relevant community standards.

Claimant raises several arguments in response to the government’s motion for a decree of forfeiture. First, he objects to the government’s characterization of the models as “adolescent boys.” Claimant asserts that in the absence of evidence supporting this characterization, the court must consider the models to be adult males. As the government correctly points out, this is not a case concerned with child pornography. The court here is only making the determination of whether this material is obscene. The age or apparent age of the models is relevant only to the question of whether this material is offensive to the average person.

However, examination of the material leads to the conclusion that the models, in both, are adolescents. The overall physical development and the adolescent facial features of the models are taken into consideration in arriving at this conclusion. That the publisher’s intent to make the models appear as adolescents is also important. The titles of these magazines are relevant in this regard, as both contain the word “boy” as part of the title. Although the background of the pictures is not well defined, the overall impression imparted was that the models were in surroundings more often associated with adolescents than with adults. Taken as a whole, the intention of these publications was to portray the models as adolescents.

The apparent ages of these models is important in considering the overall offensiveness of these magazines because the average person in the community would find material depicting adolescents in these activities more offensive than similar material depicting adults likewise engaged. This is not to imply that if the models here depicted were without doubt adults, that this court would find them non-obscene. On the contrary, the materials would be obscene without regard to the ages of the models. This court’s view is that young people should not be exposed to this material, let alone be the subject and model for it. The average person has ideas of the type of activities young people should be engaged in, and this does not include participating in explicit and, in the case of WONDERBOY 48, unnatural sexual activities. The court concludes therefore that both WONDERBOY 48 and DREAMBOY 6, without other considerations, would be offensive to the average person in this community.

Claimant notes that similar material is available at three stores located within fifteen minutes of his residence. Claimant argues that this availability is at least circumstantial evidence of the community standard in regard to this material. This argument fails for two reasons. First, Claimant describes his comparison material as containing adult models engaged in various sexual activities. This alone would serve to adequately distinguish the material viewed by the court in this case. The two magazines in issue here contain photographs of adolescents. In distinguishing comparison materials in a recent case, the Seventh Circuit Court of Appeals found that the age difference of the models in the two works was a significant factor to consider. United States v. Various Articles of Merchandise, Seizure No. 170, 750 F.2d 596, 600 (7th Cir.1984).

Second, in the present case, Claimant merely asserts the conclusion that the materials in issue and those he has referred to are similar. This court is unable to accept these conclusions without more; Claimant has neither listed the titles of these works nor offered this material to the court for comparison. In United States v. Womack (II), 509 F.2d 368 (D.C.Cir.1974), considering comparison materials, the court cautioned that even minor variation in the manner of presentation could lead to different interpretations. Id. at 378. The court takes this to mean that comparison materials would need to be virtually identical to support the type of argument Claimant makes here.

Claimant also makes the argument that availability of the material is evidence of community acceptance, and thus evidence of the community standard by which this court must judge the offensiveness of the material. There are many decided cases that have rejected the argument that mere availability of similar material is synonymous with a community standard of acceptance. Hamling v. United States, 418 U.S. 87, 125-26, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974) (availability does not mean community acceptance); United States v. Various Articles of Obscene Merchandise, Schedule No. 2102 (I), 678 F.2d 433, 434 (2d Cir.1982) (material being “visible on every street corner” not synonymous with its acceptance of items as not patently offensive); United States v. Various Articles of Obscene Merchandise, Schedule No. 2127, 705 F.2d 41, 44 (2d Cir.1983) (“mere availability of similar material by itself means nothing more than that other persons are engaged in similar activities”); United States v. Various Articles of Merchandise, Seizure No. 170, 750 F.2d 596, 599 (7th Cir.1984) (availability is not simply to be equated with acceptability).

In any event, the availability asserted by Claimant here falls far short of indicating community acceptance. Claimant indicates that similar material is available in three bookstores, all located within fifteen minutes of his residence. Availability of similar material in a relatively small area of the City of Chicago does not indicate a widespread community acceptance.

Based on the foregoing, the court concludes that the average person in the Chicago metropolitan area would find that the material contained in these two magazines is offensive when taken as a whole. This is true based on the ages of the models as determined by this court and also because of the types of activities depicted. The photographs exhibit not only unnatural sexual conduct but also lewd and distasteful exhibitions of the models’ genitals. On the whole, they both represent sexual conduct in a base and vile manner.

C

The final prong under the Miller test is whether the work taken as a whole lacks serious literary, artistic, political, or scientific value. Claimant in this case has not asserted that WONDERBOY 48 or DREAMBOY 6 contain any serious literary, artistic, political, or scientific value. This court does not believe that he could reasonably make such an argument.

DREAMBOY 6 is totally devoid of accompanying textual material and thus could not claim literary or political value. The quality of the photography and the backgrounds being haphazard, rather than well planned, indicate that no serious artistic merit was intended. Further, there is nothing in any of the photographs that would prompt this court to believe there is any scientific value in this magazine.

The same comments can be made regarding both FILM INDEX 83 and NEW ANIMAL ORGY 16. Both of these contain some textual material, but the text is completely devoted to describing the sexual activity occurring in the photographs. No ideas of a political nature are imparted to the reader, and the reader soon realizes that this written description is not literature of any form. There is nothing of an artistic or scientific value at all in either magazine.

Although the same conclusion is reached regarding WONDERBOY 48, it is necessary to discuss the reasoning here in more detail. This magazine contains some textual material written in a foreign language. This court cannot read this material and the government has not provided a translation or indicated to this court the substance of this text. In United States v. Miscellaneous Pornographic Magazines, Pieces of Pornographic Ad Matter with Hard Core Illustrations and Films, 526 F.Supp. 460 (N.D.Ill.1981), the court determined that under some circumstances, foreign language text must be translated, as the text may be able to “save” otherwise obscene publications (citing Kois v. Wisconsin, 408 U.S. 229, 92 S.Ct. 2245, 33 L.Ed.2d 312 (1972)). But the court recognized that Kois would not always require translation.

The question then is whether the text could save the pictures. The court has no doubt in concluding that the text here could not save these photographs of adolescent boys engaged in various unnatural sexual conduct. The average person in the community would find this magazine as a whole offensive, even if the text related a story of a non-sexual nature. The work, taken as a whole, lacks any serious literary, artistic, political, or scientific value.

For all of the foregoing reasons, the four magazines seized by the United States Customs Service are obscene and must be destroyed.


author: KRAM, District Judge.

text:
    UNITED STATES of America v. Mohammad Rafiq KHAN and Mohammad Shakeel, Defendants.
    No. SSS 85 Cr. 481 (SWK).
    United States District Court, S.D. New York.
    Jan. 8, 1986.

      Rudolph W. Giuliani, U.S. Atty., New York City by Peter B. Sobol, Asst. U.S. Atty., for the U.S.
    Federal Defender Services Unit, New York City by Leonard F. Joy, for defendants.
   MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Factual Background

On May 3, 1985 Agent Michael Levine of the Drug Enforcement Administration (“DEA”) paid defendant Mohammad Rafiq Khan (“Khan”) $30,000.00 in pre-marked bills for heroin which Khan had delivered to Levine on April 29, 1985. According to the government, Khan was not arrested when he received payment because he had agreed to deliver to Levine another shipment of heroin on May 4, 1985.

After Khan received the $30,000.00 payment, he was placed under surveillance by other DEA agents. Khan was followed to apartment 2F, located at 87-74 150th Street, Jamaica, New York. Although Khan had earlier represented to certain agents that this apartment was one of his residences, the agents later learned it was owned by Khan’s co-defendant, Mohammad Shakeel (“Shakeel”).

At approximately 12:00 p.m. on May 4, 1985, DEA Agent Dick L. Musso and Assistant United States Attorney (“AUSA”) Peter Sobol (“Sobol”) made a telephonic application for a search warrant to United States Magistrate John Caden (“Caden”), who sits in the Eastern District of New York. Caden issued a warrant which authorized the search of Shakeel’s apartment for the $30,000.00. During the telephone call, Caden agreed that the agents could apply for a supplemental warrant if they saw “other contraband or evidence of narcotics dealing” in plain view.

At approximately 5:00 p.m. on May 4, 1985, Khan sold Agent Levine an additional 500 grams of heroin at a prearranged location. While conducting the sale, Khan told Levine that additional heroin was located in Shakeel’s apartment. After providing Levine with the heroin, Khan returned to Shakeel’s apartment, where he was arrested at approximately 6:00 p.m.

At approximately 6:30 p.m., the DEA agents executed the warrant and searched Shakeel’s apartment. While conducting the search, the agents removed a sheet draped over a coffee table and discovered narcotics paraphernalia in plain view. The agents also discovered a black gym bag, which was originally used by Agent Levine to carry the $30,000.00 in cash, as well as passports and other travel information.

After discovering this evidence, DEA agent John Ozaluk (“Ozaluk”) applied to Caden for a supplemental warrant authorizing a broader search. Caden issued a supplemental warrant at approximately 8:20 p.m. Before the search was completed, Shakeel arrived at his apartment. After Shakeel responded to the agents’ questions, he was placed under arrest.

Shakeel was arrested at approximately 7:30 p.m. on Saturday, May 4, 1985, and was interviewed by AUSA Sobol at approximately 2:00 p.m. on Monday, May 6, 1985. During this interview, Shakeel made some incriminating statements. Shakeel was not arraigned before a United States Magistrate until 3:00 p.m. on Monday, more than 43 hours after his arrest. The facts relating to Shakeel’s arrest and post-arrest statement are not in dispute.

Shakeel moves to suppress the evidence seized in his apartment pursuant to Fed.R. Crim.P. 12 and 41. Shakeel also moves pursuant to Rule 12 to suppress the statements he made to Sobol, on the grounds that they were obtained in violation of 18 U.S.C. § 3501(c) and Fed.R.Crim.P. 5(a).

A. Shakeel’s Motion to Suppress the Evidence Seized in the Search

Shakeel argues that there was no probable cause to search for the $30,000.00, “at least in the absence of surveillance to determine that Khan had not left the [apartment]” after returning with the payment. Affidavit of Leonard F. Joy, sworn to on August 12, 1985, at p. 3. Secondly, Shakeel contends that the agents obtained the search warrant for $30,000.00 as a pretext to search the apartment for drugs and narcotics paraphernalia. He argues that the search of his apartment was unreasonable and that all the items were seized in violation of the Fourth Amendment.

Shakeel’s first argument is unpersuasive. The agents had sufficient probable case to believe that the cash was located in Shakeel’s apartment. After Levine paid Khan $30,000.00, which was placed in a black gym bag, Khan was followed to the apartment by the DEA agents. The agents observed Khan entering the apartment with the black bag.

Even if the agents lacked probable cause, the recently formulated good faith exception to the exclusionary rule precludes suppressing the items seized in the instant case. See United States v. Leon, - U.S. -, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The agents and the Magistrate proceeded in good faith. See United States v. Fama, 758 F.2d 834 (2d Cir.1985). Shakeel has not claimed that Caden abandoned his neutral role as a magistrate. Nor has Shakeel argued that the DEA agents were dishonest or reckless in preparing the affidavit. Thus, no grounds for suppression of the items seized exist.

Shakeel’s second argument is similarly unpersuasive. Shakeel argues that the search warrant pertaining to the $30,-000.00 payment was used as a pretext to search the apartment for narcotics. Shakeel contends that the DEA could have arrested Khan after giving him $30,000.00, but waited until Khan returned to the apartment to legitimize the search.

There is no basis to support Shakeel’s allegation that the search warrant was used as a pretext. Moreover, the government has adequately explained the reason for the delayed arrest: Khan had agreed to deliver another shipment of heroin on May 4, 1985.

Not only does Shakeel fail to provide factual evidence to support his claim, but the cases cited to support his position are inapposite. Two of these cases, McKnight v. United States, 183 F.2d 977 (D.C.Cir.1950) and Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), involve the improper use of an arrest warrant to conduct a search of a house.

This Court rejects Shakeel’s contention that McKnight is “remarkably similar” to the instant action. In McKnight, the police delayed in executing an arrest warrant. The police waited until the subject of the warrant entered a house before breaking into the house to execute the arrest warrant and to conduct a search. Similarly, in Steagald, the Supreme Court precluded the search of a third party’s home to execute an arrest warrant. In both of these cases, the police did not have a valid search warrant.

Conversely, in the instant action, the DEA agents were legitimately on the premises pursuant to a valid search warrant. While conducting the search of apartment 2F, the agents found incriminating evidence in plain view which they properly seized. See Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037, 29 L.Ed.2d 564 (1971) (“An example of the applicability of the ‘plain view’ doctrine is the situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character.”) (citations omitted); United States v. $10,000 In U.S. Currency, 780 F.2d 213, 217, (2d Cir.1986). In conclusion, Shakeel’s motion to suppress the evidence seized pursuant to the search warrant is denied.

Shakeel’s Motion to Suppress the Post-Arrest Statements

Shakeel argues that statements he made to AUSA Sobol on late Monday afternoon, after over 42 hours of confinement, were obtained as a result of pre-arraignment delay, in violation of Fed.R.Crim.P. 5(a) and 18 U.S.C. § 3501(c). For the reasons stated below, this motion is granted.

An officer making an arrest:

shall take the arrested person without unnecessary delay before the nearest available federal magistrate or, in the event that a federal magistrate is not reasonably available, before a state or local judicial officer authorized by 18 U.S.C. § 3401.

Fed.R.Crim.P. 5(a) (emphasis added).

When, as in the. instant case, a defendant makes a confession prior to his presentment before a magistrate, the defendant may challenge the admissibility of the confession pursuant to 18 U.S.C. § 3501(c). Congress has created a remedy which provides that a confession shall not be inadmissible solely because of delay in bringing the suspect before a magistrate if, inter alia, such confession was given by the suspect within six hours following his arrest.

Section 3501(c) also provides that this six hour time limitation shall not apply where the delay in bringing the suspect before a magistrate beyond the six hour period is found by the trial judge to be reasonable considering the means of transportation and distance traveled to the nearest available magistrate. Id. Because the Court is resting its decision on this portion of the statute, it will not reach the issue of the voluntariness of Shakeel’s statement. See 18 U.S.C. § 3501(a) and (b).

Section 3501(c) and Rule 5(a) were analyzed in United States v. Perez, 733 F.2d 1026 (2d Cir.1984). In Perez, one of the defendants, Perez, was arrested at 3:25 p.m. on a Friday evening, “processed” at a DEA office until 4:45 p.m., and placed in a holding cell. Although a magistrate was available until 6:15 p.m., the agents failed to have Perez arraigned. At 10:00 p.m., the agents transported Perez to the United States Attorney’s Office. At 11:20 p.m., in an interview conducted by an AUSA, Perez made a lengthy inculpatory statement. Perez then spent the night in a cell at the Metropolitan Correctional Center (“MCC”).

At 9:00 a.m. on Saturday, Perez was brought from the MCC to the United States Courthouse. Throughout the morning, he was processed by the United States Marshals for the purpose of obtaining the same “pedigree” information Perez had given to the DEA agents on the previous day. It was not until 2:30 p.m., 23 hours after his arrest, that Perez first appeared before a magistrate.

The Court in Perez determined the plain meaning of 18 U.S.C. § 3501(c) to be “if a defendant confesses more than six hours after the time of arrest and has not yet been arraigned, the delay in and of itself may justify suppression” if the trial judge finds the delay to be unreasonable. Id. at 1031. A delay in excess of six hours, standing alone, does not require suppression, however.

The Court affirmed the trial judge’s determination that the delay in arraigning the defendant was unreasonable. After Perez had been processed at DEA headquarters, a magistrate was available for arraignment. Yet, the government advanced no persuasive reason why Perez was not arraigned after he was processed. Additionally, the trial judge noted that although one of the DEA agents subsequently appeared before a magistrate to apply for a search warrant, the government did- not explain why it failed to arraign Perez at that time. The trial judge reasoned that the government, with its available manpower, could have both searched the apartment pursuant to the search warrant and presented Perez to a magistrate in a prompt manner. The Second Circuit concluded that the DEA Agents had no legitimate excuse for not arraigning Perez promptly. Id. at 1036. The Court also noted that the trial judge refrained from reaching the issue of the voluntariness of the statement. The Court in the instant case similarly concludes that it is unnecessary to address the voluntariness issue.

This Court finds that the delay in arraigning Shakeel was unreasonable and that the statements made during his interview with AUSA Sobol should be suppressed. The facts in the instant action are far more egregious than those in Perez. Shakeel was held 43 hours before being arraigned, 20 hours longer than Perez. Shakeel was also confined for over 42 hours before being interrogated by the AUSA. The government offers no valid explanation for this intolerable delay. There was no problem presented in the instant case by the distance to be traveled and the means of transportation available to bring Shakeel before the nearest available magistrate. A mere walk from the M.C.C. to the courthouse was sufficient.

The government also failed to show that, pursuant to Rule 5(a), it attempted to bring Shakeel before a state or local judicial officer authorized by 18 U.S.C. § 3041. The government is silent on this point. Even if the government had shown that neither a state nor a local judicial officer was available, however, the delay was still unreasonable, since the defendant was not arraigned until very late Monday afternoon.

As noted earlier, the government’s explanation of why Shakeel was not arraigned until 3:00 p.m. on Monday is unacceptable. The government argues:

From SHAKEEL’s arrest on Saturday evening to his interview on Monday afternoon, delay during the entire weekend was clearly due to routine pedigree questioning, processing and, more preponderantly, to lodging waiting the reopening the federal courts on Monday. Even the lapse of time between the theoretically earliest availability of a Magistrate, at 9:00 a.m., and SHAKEEL’s interview, which commenced just before 2:00 p.m., is less than six hours — without taking into consideration practical circumstances such as that presentments before the Magistrate do not commence before the calendar call, which is begins on Mondays at approximately 10:30 a.m., is completed; that both defendants, to the best of my recollection and belief, were not released from the MCC until sometime after 10:00 a.m.; and that a good portion of the delay between then and presentment was caused by the defendants’ being processed by the U.S. Marshal’s and Pretrial Services.

Affidavit of Peter B. Sobol, sworn to on September 30, 1985, at p. 4. There is absolutely nothing to indicate that the DEA or the Marshal’s Service spent 42 hours, or even four hours as the government suggests, processing Shakeel and taking pedigree information from him.

Shakeel had been confined in the MCC since Saturday evening. The government thus had an obligation to present Shakeel before a magistrate promptly on Monday morning. See United States v. Rubio, 709 F.2d 146, 154 (2d Cir.1983) (“... our discomfort increases in direct proportion to the length of ‘necessary’ prearraignment delay attributable to the unavailability of a judicial officer, even on weekends.”); United States v. Yong Bing-Gong, 594 F.Supp. 248, 254 (N.D.N.Y.1984) (In light of a lengthy prearraignment delay, the arresting officers had no legitimate excuse for not arraigning defendant promptly on the next morning). The government’s assertion that “a good portion of the delay between [10:00 a.m.] and presentment was caused by the defendants’ being processed by the U.S. Marshal’s and Pretrial Services” is not acceptable. It still fails to explain a belated 2:00 p.m. interview followed by a 3:00 p.m. arraignment. When Shakeel’s processing had been completed he should have promptly been arraigned. Instead, he was subjected to a lengthy interrogation by the government.

The government, relying on United States v. Rubio, 709 F.2d 146 (2d Cir.1983), argues that the instant case does not warrant suppression. However, Rubio is distinguishable from the instant case. In Ru-bio, the Second Circuit affirmed a district court’s denial of a motion to suppress statements because of an unreasonable pre-arraignment delay. The defendant was arrested at 1:00 p.m. on Saturday afternoon when no magistrate was available. According to the trial judge “[a]n unsuccessful attempt to locate a Magistrate was made.” United States v. Rubio, 526 F.Supp. 171, 175 (S.D.N.Y.1981). The defendant in Rubio was interrogated by an AUSA on Monday morning shortly before the arraignment. The Court agreed with the trial judge’s finding that “there was no purposeful postponement of arraignment, and no lengthy, hostile, or coercive interrogation which caused the appellant prejudice.” 709 F.2d at 153. In the instant case there was a lengthy confinement, followed by a lengthy interrogation.

Although the Court stated that the government’s failure to bring the defendant before a state or local judicial officer violated Rule 5(a) and section 3501(c), it determined that the defendant was not prejudiced by the delay. Id. at 154. The Court made this determination, in part, because the defendant did not make a confession, but uttered an exculpatory statement. The Court found these statements did not implicate the appellant in any wrongdoing and did not cause prejudice to his defense. Id. This is not true in the instant case.

Although the Court found that the circumstances in Rubio did not warrant suppression of the defendant’s statements, the Court stated: “... we announce our serious concern that lengthy delay could, under different circumstances, be used for unlawful and coercive interrogation, as well as deny a defendant the right to prompt arraignment.” Id. This Court finds that “different circumstances” warranting suppression of defendant’s statements exist in the instant action. Here, unlike in Rubio, there was no attempt by the government to locate a magistrate for the purposes of arraignment before very late on Monday. Moreover, Shakeel’s statements were incriminatory, not exculpatory. The government has failed to offer an adequate explanation for the delay, and similarly failed to show that the delay was reasonable.

CONCLUSION

Section 3501(c), as interpreted in Perez, provides district courts with the discretionary power to suppress statements whenever unreasonable pre-arraignment delay occurs. This Court, in exercising its sound discretion, finds that the 43 hour delay between Shakeel’s arrest and arraignment was completely unreasonable for the reasons stated above. See United States v. Yong Bing-Gong, 594 F.Supp. 248, 254 (N.D.N.Y.1984) (“Absent a showing of circumstances warranting the exceedingly long twenty hour delay, the Court has little difficulty concluding that the arresting officers ‘had no legitimate excuse for not arraigning [defendant] promptly,’ and that therefore, all statements made by defendant during this period must be suppressed.”) (emphasis added). In short, the government cannot ignore the command of Congress as expressed in 18 U.S.C. § 3501.

Defendant’s motion to suppress the evidence seized in the search is DENIED. Defendant’s motion to suppress the statements made at the pre-arraignment interview with AUSA Sobol is GRANTED.

SO ORDERED.

      . Counsel for the government contends that Khan was present, after his arrest, when the apartment was searched.

      . Fed.R.Crim.P. 5(a) does not speak of "arraignments." “Courts, like members of the bar generally, continue to use the term, undoubtedly out of habit. When used herein, the term refers to the suspects’ initial presentment to a magistrate contemplated by Rule 5.” United States v. Perez, 733 F.2d 1026, 1027 n. 1 (2d Cir.1984).

      . Shakeel has not submitted an affidavit by someone with personal knowledge of the facts. Accordingly, no evidentiary hearing was held. At a pre-trial conference held subsequent to the filing of the motion, it was not disputed by Shakeel’s counsel that Shakeel was not entitled to an evidentiary hearing on this motion.

      . The government argues that Perez’s co-defendant, Negron, unsuccessfully moved to suppress his pre-arraignment statements. However, Negron conceded that a magistrate was unavailable after he was arrested and that his overnight incarceration at the MCC was a “necessary delay.” United States v. Toney, 579 F.Supp. 652, 656 (S.D.N.Y.1984), aff’d sub nom. United States v. Perez, 733 F.2d 1026 (2d Cir.1984). Shakeel concedes neither point.
      Moreover, Negron was arrested at 5:30 p.m. on Friday, and was not interviewed by the AUSA until Saturday morning. Conversely, Shakeel was confined for two nights in the MCC and was not interviewed by the AUSA until approximately 2:00 p.m. on Monday.

      . Arraignments on Saturdays in the United States District Court for the Southern District of New York generally occur before a United States Magistrate until noon. Arraignments do not occur again until 10:00 a.m. on Monday. United States v. Rubio, 709 F.2d 146, 149 n. 2 (2d Cir.1983).