338 F.Supp. 308 (E.D.Wis. 1970), 70-CR-20, United States v. Orito

Docket Nº:70-CR-20.
Citation:338 F.Supp. 308
Party Name:UNITED STATES of America, Plaintiff, v. George Joseph ORITO, Defendant.
Case Date:October 28, 1970
Court:United States District Courts, 7th Circuit, Eastern District of Wisconsin

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338 F.Supp. 308 (E.D.Wis. 1970)

UNITED STATES of America, Plaintiff,


George Joseph ORITO, Defendant.

No. 70-CR-20.

United States District Court, E.D. Wisconsin.

Oct. 28, 1970

Probable Jurisdiction Noted Oct. 12, 1971.

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

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


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)

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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...

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