U.S. District Judge T.S. Ellis III, the first federal judge to try a racketeering case involving obscenity violations, said the 1984 law raised serious First Amendment problems.

His two main questions raised from the bench during the forfeiture stage of the Prybas trial:

Could the government use circumstantial evidence to show that all the magazines and tapes sold by the Prybas, not merely the ones the jury found obscene, were also obscene?

"There can be no circumstantial proof of obscenity," Ellis said. "No matter how important the elimination of obscenity may be, the First Amendment cannot become a casualty."

In calling for the confiscation of property derived from "any proceeds" of the racketeering activity, could this entail the confiscation of an entire business, even if it had sold only obscene materials on a few occasions?

"Suppose you had a case in the obscenity-First Amendment area where you had a pattern of racketeering set by the sale of two magazines and part of an operation essentially similar to Crown Books," Ellis said. "It would be difficult for the court to sanction" seizure of the whole operation of Crown Books.

To address this concern, Ellis told the jury they had to find that the proceeds used to acquire or maintain any forfeited property were "substantial or significant."

"Obviously these matters were not clearly thought through when Congress added obscenity to" the racketeering statute, Ellis said. "The court is acutely aware of what {my decisions} may mean for the application of {racketeering} to obscenity cases . . . . It makes it substantially more difficult than it would be in drug cases or bribery.

"I find it astonishing that more debate of this kind did not occur in the legislature . . . . I can only conclude it was overlooked."

Ellis, whose nomination was backed by Sen. John W. Warner (R-Va.), was confirmed by the Senate in July.