494 F.2d 499 (5th Cir. 1974), 71-1091, United States v. Groner

Docket Nº:71-1091 [*]
Citation:494 F.2d 499
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. William GRONER, d/b/a Lucky Distributors, Defendant-Appellant.
Case Date:May 24, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 499

494 F.2d 499 (5th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,


William GRONER, d/b/a Lucky Distributors, Defendant-Appellant.

No. 71-1091 [*]

United States Court of Appeals, Fifth Circuit.

May 24, 1974

Page 500

Will Gray, Michael Anthony Maness, Houston, Tex., Robert Eugene Smith, Atlanta, Ga., for defendant-appellant.

Wm. F. Sanderson, Jr., Asst. U.S. Atty., Frank D. McCown, U.S. Atty., Fort Worth, tex., Larry E. Butcher, Atty., Crim. Div., Administrative Reg. Sec., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before THORNBERRY, MORGAN and CLARK, Circuit Judges.

THORNBERRY, Circuit Judge:

For the third time, 1 William Groner's convictions on two counts of knowingly using a common carrier in interstate commerce to transport a quantity of obscene books, in violation of 18 U.S.C. § 1462, are before this court. The case is before us pursuant to an order of the Supreme Court vacating our en banc judgment and remanding the cause for further consideration in light of Miller v. California, 1973, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; Paris Adult Theatre I v. Slaton, 1973, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446; Kaplan v. California, 1973, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492; United States v. 12 200-ft. Reels of Super 8 mm. Film, 1973, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500; United States v. Orito, 1973, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513; Heller v. New York, 1973, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745; Roaden v. Kentucky, 1973, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757; and Alexander v. Virginia, 1973, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed.2d 993, all decided June 25, 1973.

Groner now contends (1) that the convictions cannot stand because the Roth-Memoirs test is now constitutionally inapplicable and because the Miller test cannot be constitutionally applied retroactively, (2) that in any case the evidence was insufficient to support the jury's conclusion that the books were obscene, (3) that 18 U.S.C. § 1462 does not define proscribed conduct with sufficient particularity to satisfy Miller and is thus unconstitutionally vague and overbroad, (4) that under 18 U.S.C. § 1462 it is constitutionally necessary for the government to prove not merely that the defendant had knowledge of the nature of the materials placed in interstate commerce, but also that he was aware that the materials were legally obscene, and (5) that the F.B.I's acquisition and retention of the books constituted an unconstitutional search and seizure in light of Roaden v. Kentucky, supra.

We rejected Groner's first contention in United States v. Thevis, 5th Cir. 1973, 484 F.2d 1149. As that case demands, the proper review procedure

Page 501

for determining whether pre-Miller material is obscene is to test the material under both the Roth-Memoirs...

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