UNITED STATES of America, Plaintiff-Appellee, v. Allan Marvin BERKE, Defendant-Appellant

170 F.3d 882, 99 Daily Journal DAR 2419, 99 Cal. Daily Op. Serv. 1889, 43 Fed. R. Serv. 3d 120, 1999 U.S. App. LEXIS 4147, 1999 WL 137675

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 16, 1999
• Docket: 97-15769
• Status: Published

Opinions

Opinion by Judge FLETCHER; Concurrence by Judge SNEED; Dissent by Judge WALLACH.

FLETCHER, Circuit Judge:

Allan Berke (“Berke”) appeals the district court’s denial of his motion pursuant to Federal Rule of Civil Procedure 60(b) to vacate a portion of a consent decree as void. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1). Because we conclude that Berke’s attack on the decree may not properly be brought under Rule 60(b)(4), we affirm.

Berke and four co-defendants were indicted in 1989 for violations of federal obscenity laws and operation of a criminal enterprise. As part of a plea agreement, Berke in June 1991 agreed to a consent decree (to which the parties stipulated following the initiation of a parallel civil RICO action) permanently enjoining him from involvement with the production, sale, or distribution of any sexually explicit materials. There is no dispute that the terms of the consent decree reach not only obscene materials, but also sweep in non-obscene sexually-explieit materials otherwise protected by the First Amendment. Some five years later, in July 1996, Berke filed a motion pursuant to Rule 60(b) seeking to vacate the consent decree, arguing that the injunction was “void” because it violated his First Amendment rights.² See FED. R. CIV. P. 60(b)(4). The district court denied his motion.

A final judgment is “void” for purposes of Rule 60(b)(4) only if the court that considered it lacked jurisdiction, either as to the subject matter of the dispute or over the parties to be bound, or acted in a manner inconsistent with due process of law. See In re Ctr. Wholesale, Inc., 759 F.2d 1440, 1448 (9th Cir.1985); Jones v. Giles, 741 F.2d 245, 248 (9th Cir.1984). “A judgment is not void merely because it is erroneous.” In re Ctr. Wholesale, Inc., 759 F.2d at 1448. Berke does not claim that there was any infirmity in the jurisdiction of the court that entered the consent decree. He does contend, however, that the proceedings relating to the entry of the decree fell short of the requirements of due process, insofar as the district court failed to establish explicitly, on the record, his voluntary waiver of the First Amendment rights potentially implicated by the consent decree. Given the record below, we have no difficulty concluding that Berke knowingly and voluntarily waived his First Amendment rights in connection with the entry of the consent decree.³

The dissent mounts an eloquent and forceful attack on the merits of the injunction. This appeal, however, does not call on us to pass on the propriety of the course chosen by the prosecutors in the underlying action. We also express no opinion on the enforceability of the consent decree, should contempt charges ever be brought against Berke for its violation. Cf. Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390, 1396-97 (9th Cir.1991) (finding unenforceable a settlement agreement that compromised the constitutionally-protected interests of the public). Consequently, our holding today is not the “dangerous precedent” the dissent fears; rather, we follow the established law of this circuit and hold simply that Rule 60(b)(4) does not compel reversal of the district court’s ruling below. Whatever its other shortcomings, the consent decree at issue here is not “void” within the meaning of Rule 60(b)(4). See Tomlin v. McDaniel, 865 F.2d 209, 210 (9th Cir.1989).

AFFIRMED.

2 . IN HIS MOTION BELOW, BERKE ALSO ARGUED IN THE ALTERNATIVE THAT THE JUDGMENT WAS NO LONGER EQUITABLE, see FED. R. CIV. P. 60(B)(5), AND THAT THE COURT SHOULD EXERCISE ITS DISCRETION TO RELIEVE HIM FROM THE OPERATION OF THE JUDGMENT, see FED. R. CIV. P. 60(b)(6). He has not raised these arguments on appeal.

3 . The district court established in open court that Berke had discussed the consent decree with his attorneys, that he had read it, and that he understood it. The court went on to elicit from the prosecution a description of the consent decree, a description that clearly indicated that the injunction at issue was a central feature of the decree. The court then asked a second time if Berke understood the terms of the agreement.

We also note that Berke in his papers never contends that he actually did not understand the agreement. Rather, he would have us adopt a per se prophylactic rule requiring a formal colloquy before the district court, notwithstanding his knowing and voluntary waiver here.