J. SPENCER BELL, Circuit Judge:
The question before us on this appeal is whether certain magazines held by the district court in a forfeiture proceeding under 19 U.S.C. § 1305 (1964) not to be obscene should be immediately released to the importer or whether the order of release may be stayed until review by this court upon the merits of the question of obscenity. We agree with the determination of the district judge as set ‘forth in his opinion of February 23, 1967, that the constitutional issue requires that the bulk of the property be released and a sample held in order that the Government may have review for the precedent value of an appellate decision and to determine finally the question on its merits in case of subsequent imports of the identical or similar materials.
On November 29, 1966, two shipments of nudist magazines were formally entered at the port of Baltimore to the account of Reliable Sales Company, the importer of record. By December 5, 1966, sample copies thereof had been sent to the United States Attorney at Baltimore for consideration of forfeiture proceedings. On December 7, 1966, the United States Attorney filed a complaint under 19 U.S.C. § 1305 1 for the seizure and forfeiture of the magazines. By stipulation the casé was submitted to the court on the sole issue of obscenity. On January 10, 1967, Chief Judge Roszel C. Thomsen filed an opinion in which he found three issues of the magazines to be obscene and eleven issues to be not obscene. On January 12, 1967, the judge issued an order directing that the obscene material be forfeited and that the issues found not obscene be immediately released from seizure and entered through the Bureau of Customs to the importer. Upon instructions from the District Attorney the officials of the Bureau failed to comply with this order. On January 16, 1967, the United States, filed its notice of appeal to this court on that part of the order directing the release of the magazines found by the trial court to be not obscene, and on January 17, 1967, the Government filed a petition with the district court to stay the operation of its prior order of release pending appeal. In an order which was dated as of February 2, 1967, by agreement of the parties and the court, the court, over the claimant’s objection, stayed the operation of his release order of January 12 until an appeal “from this [805]*805stay order” can be heard by the Court of Appeals for the Fourth Circuit. In an opinion accompanying the order the court concluded that its decisions in proceedings under section 1305 should be subject to review but that the decision finding material not obscene should have the same effect of releasing the challenged publications as under the statute the decision of the Collector of Customs (or his subordinates) or the United States Attorney or his assistants not to file a complaint would have. However, the district court in this case did not act in accordance with that opinion but allowed his stay order to remain in effect until this hearing, which he knew had been set for March 7, 1967. In its opinion the district court stated that hereafter in routine cases it would release the bulk of the material found not obscene, but in order to avoid the possibility of mootness whenever it found material not obscene and ordered its immediate release provision would be made that a sample of each item be held until the time for appeal expired, and if the case were appealed by the Government until such time as the appeal is finally determined on the merits. The opinion further provided that in very exceptional cases if the Government promptly files an appeal the court “may grant a very short stay to permit the Government to present its request for a stay pending appeal to one of the judges of the Court of Appeals.”
In United States v. Claimant (Central Magazine Sales, Ltd.), 4 Cir., 373 F.2d 633, we affirmed the judgment of Chief Judge Thomsen in United States v. 392 Copies of Magazine “Exclusive”, 253 F.Supp. 485 (D.C.Md.1966), holding this section (305 of the Tariff Act of 1930, 19 U.S.C. § 1305) to be constitutionally valid on its face and as applied in that case. See Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed. 649 (1965). The same procedure, up to the point where the stay was issued, was pursued here, and we hold that the granting of the stay in this, a case of first impression where the review of the stay order was set for a day certain and within a short time, was not an unconstitutional application of the statute.
We think it pertinent to note that while the cases deal principally with administrative delay which invalidates prior submission processes of censorship, the Court in Freedman specified the safeguards necessary to make the process constitutional as follows: (1) the burden of proof must rest on the censor; (2) no valid final restraint may be imposed except by judicial determination, and any restraint prior to such determination must be designed to preserve the status quo; and (3) a prompt judicial determination must be assured. See 380 U.S. at 58-59, 85 S.Ct. 734.
Because we think the necessity for a prompt judicial determination is in keeping with the spirit of the Court’s strictures against precensorship that results in withholding from the public First Amendment materials, we reject the Government’s argument that because the materials are in custodia legis, the order for their release should be stayed while the case pursues its way through-the courts as would any other case.
Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed. 2d 809 (1964), both opinions written by Mr. Justice Brennan, emphasize that the determinative factor insofar as the validity of censorship procedures is concerned is whether or not adequate safeguards are provided to insure prompt dissemination of publications which have not been judicially determined to be obscene. Here we are in fact prohibiting the dissemination of materials which not only have not been judicially determined to be obscene but have been judicially determined to be not obscene. See also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). We think the answer to the Government’s expressed concern as to what might happen if this court disagrees with the district court as to the question of obscenity is to be found in the opinion of [806]*806Judge Frankel in United States v. One Book Entitled “The Adventures of Father Silas”, 249 F.Supp. 911 (S.D.N.Y. 1966), wherein he said in releasing obviously obscene books because of undue delay:
“If a possibly obscene book slips through, it faces a gauntlet of universal state obscenity laws. To be sure, the First Amendment has not been held to inhibit state power less strictly than federal.
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J. SPENCER BELL, Circuit Judge:
The question before us on this appeal is whether certain magazines held by the district court in a forfeiture proceeding under 19 U.S.C. § 1305 (1964) not to be obscene should be immediately released to the importer or whether the order of release may be stayed until review by this court upon the merits of the question of obscenity. We agree with the determination of the district judge as set ‘forth in his opinion of February 23, 1967, that the constitutional issue requires that the bulk of the property be released and a sample held in order that the Government may have review for the precedent value of an appellate decision and to determine finally the question on its merits in case of subsequent imports of the identical or similar materials.
On November 29, 1966, two shipments of nudist magazines were formally entered at the port of Baltimore to the account of Reliable Sales Company, the importer of record. By December 5, 1966, sample copies thereof had been sent to the United States Attorney at Baltimore for consideration of forfeiture proceedings. On December 7, 1966, the United States Attorney filed a complaint under 19 U.S.C. § 1305 1 for the seizure and forfeiture of the magazines. By stipulation the casé was submitted to the court on the sole issue of obscenity. On January 10, 1967, Chief Judge Roszel C. Thomsen filed an opinion in which he found three issues of the magazines to be obscene and eleven issues to be not obscene. On January 12, 1967, the judge issued an order directing that the obscene material be forfeited and that the issues found not obscene be immediately released from seizure and entered through the Bureau of Customs to the importer. Upon instructions from the District Attorney the officials of the Bureau failed to comply with this order. On January 16, 1967, the United States, filed its notice of appeal to this court on that part of the order directing the release of the magazines found by the trial court to be not obscene, and on January 17, 1967, the Government filed a petition with the district court to stay the operation of its prior order of release pending appeal. In an order which was dated as of February 2, 1967, by agreement of the parties and the court, the court, over the claimant’s objection, stayed the operation of his release order of January 12 until an appeal “from this [805]*805stay order” can be heard by the Court of Appeals for the Fourth Circuit. In an opinion accompanying the order the court concluded that its decisions in proceedings under section 1305 should be subject to review but that the decision finding material not obscene should have the same effect of releasing the challenged publications as under the statute the decision of the Collector of Customs (or his subordinates) or the United States Attorney or his assistants not to file a complaint would have. However, the district court in this case did not act in accordance with that opinion but allowed his stay order to remain in effect until this hearing, which he knew had been set for March 7, 1967. In its opinion the district court stated that hereafter in routine cases it would release the bulk of the material found not obscene, but in order to avoid the possibility of mootness whenever it found material not obscene and ordered its immediate release provision would be made that a sample of each item be held until the time for appeal expired, and if the case were appealed by the Government until such time as the appeal is finally determined on the merits. The opinion further provided that in very exceptional cases if the Government promptly files an appeal the court “may grant a very short stay to permit the Government to present its request for a stay pending appeal to one of the judges of the Court of Appeals.”
In United States v. Claimant (Central Magazine Sales, Ltd.), 4 Cir., 373 F.2d 633, we affirmed the judgment of Chief Judge Thomsen in United States v. 392 Copies of Magazine “Exclusive”, 253 F.Supp. 485 (D.C.Md.1966), holding this section (305 of the Tariff Act of 1930, 19 U.S.C. § 1305) to be constitutionally valid on its face and as applied in that case. See Freedman v. State of Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed. 649 (1965). The same procedure, up to the point where the stay was issued, was pursued here, and we hold that the granting of the stay in this, a case of first impression where the review of the stay order was set for a day certain and within a short time, was not an unconstitutional application of the statute.
We think it pertinent to note that while the cases deal principally with administrative delay which invalidates prior submission processes of censorship, the Court in Freedman specified the safeguards necessary to make the process constitutional as follows: (1) the burden of proof must rest on the censor; (2) no valid final restraint may be imposed except by judicial determination, and any restraint prior to such determination must be designed to preserve the status quo; and (3) a prompt judicial determination must be assured. See 380 U.S. at 58-59, 85 S.Ct. 734.
Because we think the necessity for a prompt judicial determination is in keeping with the spirit of the Court’s strictures against precensorship that results in withholding from the public First Amendment materials, we reject the Government’s argument that because the materials are in custodia legis, the order for their release should be stayed while the case pursues its way through-the courts as would any other case.
Marcus v. Search Warrant, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), and A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed. 2d 809 (1964), both opinions written by Mr. Justice Brennan, emphasize that the determinative factor insofar as the validity of censorship procedures is concerned is whether or not adequate safeguards are provided to insure prompt dissemination of publications which have not been judicially determined to be obscene. Here we are in fact prohibiting the dissemination of materials which not only have not been judicially determined to be obscene but have been judicially determined to be not obscene. See also Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). We think the answer to the Government’s expressed concern as to what might happen if this court disagrees with the district court as to the question of obscenity is to be found in the opinion of [806]*806Judge Frankel in United States v. One Book Entitled “The Adventures of Father Silas”, 249 F.Supp. 911 (S.D.N.Y. 1966), wherein he said in releasing obviously obscene books because of undue delay:
“If a possibly obscene book slips through, it faces a gauntlet of universal state obscenity laws. To be sure, the First Amendment has not been held to inhibit state power less strictly than federal. * * * It does not follow, conversely, that the ‘risks’ of free expression should not occasionally, as a practical matter, be more readily tolerated by the Federal Government. Id. at 921 [Footnote omitted.]
Nor do we think that the Government is correct in its contention that the purpose of the statute would be frustrated by the release of the material after a decision by the district court that it was not obscene. The language of the statute does not lend itself to that construction :
“Upon the appearance of any such book or matter at any customs office, the same shall be seized and held by the collector to await the judgment of the district court as hereinafter provided; * * *” [Emphasis added.]
The statute then provides for trial and for a forfeiture and destruction of the matter upon a finding of obscenity and adds:
“Upon adjudication that such book or matter thus seized is not of the character the entry of which is by this section prohibited, it shall not be excluded from entry under the provisions of this section.”
The addition of a right of appeal by the Government is not inconsistent with an interpretation of this statute which would allow the dissemination of material after it has been adjudicated not obscene by the district court. As we have pointed out, the appeal would still have a valid function to perform in reviewing the district court’s decision on the merits. Nor is an adjudication of the district court the only one which must take place before questionable material can be released. The customs officials themselves must make the determination, and if they decide the material is not questionable, there is no reference to the courts and the material is released to the importer. If customs thinks the material is questionable, then the United States Attorney has to make a determination as to whether the material should be challenged in the district court. 19 U.S.C. § 1604 (1964). If the United States Attorney believes the material should not be challenged, he can order the material released to the importer. While we recognize that the issue passed upon by customs and the United States Attorney is different from that passed upon by the district court, in that the first two parties decide whether the material is questionable and the third whether it is obscene, nevertheless we are not upset by the thought that material will be released upon the opinion of a district judge that it is not obscene when it can be released on practically the same conclusion by either of the other two parties.
We think, therefore, that in the ordinary case a stay of the order of release on any material passed by the district court would not be compatible with the statutory scheme, even though such a stay might remain in effect only until the stay order itself could be reviewed by an appellate court. We think to hold otherwise would raise a constitutional question as to the application of the statute. We also think the inconvenience to an appellate court in having to advance such cases on its docket should be given consideration.
The opinion of the district court that it should not in ordinary cases stay its order for dissemination until such stay order can be reviewed by the circuit court is approved. We also agree that the district court in those cases wherein it finds the material to be not obscene should order a sample of the material retained in order that the case may not be mooted. An order will be entered [807]*807terminating our stay order which was issued in open court.
Judge Bell prepared the foregoing opinion, but he died before the opinion was filed.