United States v. Orito

Decision Date12 October 1971
Docket NumberNo. 70-CR-20.,70-CR-20.
Citation338 F. Supp. 308
PartiesUNITED STATES of America, Plaintiff, v. George Joseph ORITO, Defendant.
CourtU.S. District Court — Eastern District of Wisconsin

Richard E. Reilly, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.

Shellow & Shellow, Milwaukee, Wis., for defendant.

Probable Jurisdiction Noted October 12, 1971. See 92 S.Ct. 40.

DECISION and ORDER

MYRON L. GORDON, District Judge.

Two motions to dismiss the indictment are now before the court. In both motions, the defendant contends that 18 U.S.C. § 1462 is unconstitutional. One motion is based on the absence of any provision in the statute requiring proof of scienter; the other is based on the defendant's contention that the statute is overbroad and violates the first and ninth amendments in imposing criminal sanctions for the interstate transportation of obscene material which may be designed for personal use.

The defendant was charged in a one-count indictment which alleges that he knowingly transported in interstate commerce, by means of a common carrier, certain "copies of obscene, lewd, lascivious, and filthy materials".

The court must decide whether Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969) and Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) render § 1462 unconstitutional because such section proscribes all transportation of obscene materials without discriminating as to whether such materials are "pandered", exposed to children or imposed on unwilling adults.

The defendant urges that under Stanley the transportation and receipt of obscene matter for private use is constitutionally protected, and that only certain types of public distribution of obscene matter, as described in Redrup, may be subjected to governmental control. The United States, on the other hand, urges that Stanley did not purport to modify Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and that, on its limited facts, Stanley permits an individual to possess obscene materials in his own home, but it does not grant one a protected right to transport or receive such materials.

In its per curiam opinion in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), the court observed that in none of the cases which were then before the court "* * * was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it." (p. 769, 87 S.Ct. p. 1415).

Two courts of appeal have decided cases which tend to support the government's position. In United States v. Melvin, 419 F.2d 136 (4th Cir. 1969), the court concluded that notwithstanding Stanley, "Congress has the power to forbid interstate transportation of obscenity." (p. 139). Also, in United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970), the court rejected a proposed expansion of Stanley.

A three-judge court convened in the northern district of Georgia decided "to keep Stanley limited to its facts". Gable v. Jenkins, 309 F.Supp. 998, 1000 (N.D. Ga.1969). This case was summarily affirmed at 397 U.S. 592 (1970).

There are a number of cases in which the rationale of Stanley has been construed more broadly than the three decisions referred to immediately above. Thus, in Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969), probable jurisdiction noted sub nom., Dyson v. Stein, 396 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419 (1969), restored to calendar for reargument, 399 U.S. 922, 90 S.Ct. 2230, 26 L. Ed.2d 788 (1970), a three-judge court asserted that it was "impossible, however, for this Court to ignore the broader implications of the opinion which appears to reject or significantly modify the proposition stated in Roth v. United States 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 * * *." The court went on to say (p. 606):

"Stanley expressly holds that obscenity is protected in the context of mere private possession and in our opinion further suggests that obscenity is deprived of this protection only in the context of `public actions taken or intended to be taken with respect to obscene matter'."

The court in Stein concluded that the Texas obscenity statute "as a whole is overbroad in that it fails to confine its application to a context of public or commercial dissemination." (p. 607).

Another court which considered the impact of Stanley is Karalexis v. Byrne, 306 F.Supp. 1363 (D.Mass.1969), probable jurisdiction noted, 397 U.S. 985, 90 S.Ct. 1123, 25 L.Ed.2d 394 (1970), restored to calendar for reargument 399 U.S. 922, 90 S.Ct. 2235, 26 L.Ed.2d 789 (1970). In that case, a three-judge district court reviewed an obscenity statute which prohibited importing, printing, distributing or possessing obscene matter. The court expressed its conclusion "that public distribution differed from private consumption" and that this distinction also applied to transportation. The court said, at p. 1366:

"* * * We think it probable that Roth remains intact only with respect to public distribution in the full sense, and that restricted distribution, adequately controlled, is no longer to be condemned."

Another recent decision in which the court dismissed counts charging the transportation of obscene material is United States v. Lethe, 312 F.Supp. 421 (E.D.Cal.1970). There the court pointed to the absence of any legitimate governmental interest to justify regulation. Said the court (p. 425):

"The Supreme Court has recognized the protection of children and the protection of an unwilling public from obtrusive invasions of privacy as proper governmental interests justifying obscenity laws. But neither of these can be used to justify prohibiting mailings to a requesting adult. There is no public display, and children are not involved. No valid governmental interest remains, and the conclusion is inescapable that the government cannot constitutionally bring such a prosecution."

Another case in which a three-judge district court determined the breadth of Stanley is United States v. Thirty-Seven (37) Photographs, 309 F.Supp. 36 (C.D. Calif.1970). The United States Supreme Court has recently accepted this case for review. See 400 U.S. 817, 91 S.Ct. 34, 27 L.Ed. 44. In Thirty-Seven (37) Photographs, the court invalidated 18 U.S.C. § 1305, stating (p. 37):

"It prohibits an adult from importing an obscene book or picture for private reading or viewing, an activity which is constitutionally protected. As stated in Stanley, the right to read necessarily protects the right to receive."

In Lethe, cited above, the court discussed the relationship of the right to possess and the right to receive in these terms (312 F.Supp. p. 424):

"If the government has no substantial interest in preventing a citizen from reading books and watching films in the privacy of his home, then clearly it can have no greater interest in preventing or prohibiting him from acquiring them."

In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), the court noted that since married couples have the right to use contraceptive devices, such right would...

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4 cases
  • U.S. v. Pryba
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 29, 1974
    ...note 1, supra.114 See note 24, supra.115 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969).116 Supra note 4.117 United States v. Orito, 338 F.Supp. 308, 311 (E.D.Wis.1970), vacated, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973).118 413 U.S. at 140-141, 93 S.Ct. 2674.119 See Part V, in......
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