Cangiano v. United States

• Decision Date: 25 July 1974
• Docket Number: No. 73-1076,73-1076
• Citation: 94 S.Ct. 3223,418 U.S. 934,41 L.Ed.2d 1171
• Parties: Frank CANGIANO and Cosmo Cangiano v. UNITED STATES
• Court: U.S. Supreme Court

418 U.S. 934

94 S.Ct. 3223

41 L.Ed.2d 1171

Frank CANGIANO and Cosmo Cangiano

v UNITED STATES.

No. 73-1076.

Supreme Court of the United States

July 25, 1974

On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, being of the view that any federal ban on obscenity is prohibited by the First Amendment (see United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 130-138, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973) (Douglas, J., dissenting)), would grant certiorari and reverse the judgment of conviction.

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL join, dissenting.

Petitioners were convicted in the United States District Court for the Eastern District of New York of transporting allegedly obscene materials in interstate commerce for the purpose of sale in violation of 18 U.S.C. § 1465, which provides in pertinent part as follows:

'Whenever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, case, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.'

The Court of Appeals for the Second Circuit affirmed the convictions, 464 F.2d 320 (1973). This Court vacated the judgments and remanded the case to the Court of Appeals for further consideration in light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and companion cases. The Court of Appeals again affirmed the convictions.

I adhere to my dissent in United States v. Orito, 413 U.S. 139, 147, 93 S.Ct. 2674, 37 L.Ed.2d 513, in which, speaking of 18 U.S.C. § 1462, which is similar in scope to § 1465, I expressed the view that '[w]hatever the extent of the Federal Government's power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face.' Id. at 147-148, 93 S.Ct. 2674. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Second Circuit was rendered after Orito, reverse.'^*

In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U.S. 483, 494, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973) (Brennan, J., dissenting).

Moreover, on the basis of the Court's own holding in Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974), its denial of certiorari is improper. As permitted by Supreme Court Rule 21(1), which provides that the record in a case need not be certified to this Court, the petitioners did not certify the allegedly obscene materials involved in this case....