U.S. v. Echols

• Decision Date: 28 July 1978
• Docket Number: No. 77-5678,77-5678
• Citation: 577 F.2d 308
• Parties: 4 Media L. Rep. 1170 UNITED STATES of America, Plaintiff-Appellee, v. George P. ECHOLS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 308

577 F.2d 308

4 Media L. Rep. 1170

UNITED STATES of America, Plaintiff-Appellee, v. George P. ECHOLS, Defendant-Appellant.

No. 77-5678.

United States Court of Appeals, Fifth Circuit.

July 28, 1978.

L. A. Weisensee, Atlanta, Ga., for defendant-appellant.

John P. Volz, U. S. Atty., Dennis Jude Dannel, Robert J. Boitmann, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before TUTTLE, GEE and FAY, Circuit Judges.

FAY, Circuit Judge:

The appellant, George Echols, appeals from his conviction of knowingly causing the interstate transportation of obscene matter under 18 U.S.C. § 1462 ¹ and 18 U.S.C. § 2. ² He assigns two errors on appeal. The first assignment alleges that the trial court erred in overruling the appellant's motion to dismiss because 18 U.S.C. § 1462 allows for the seizure of films alleged to be obscene and to have traveled in interstate commerce without providing for an adversary hearing on the question of obscenity before or after the arrest and seizure. The second assignment of error alleges that the seizure of the films was done in violation of the Fourth Amendment. We find no merit in either of these contentions and affirm.

The relevant facts in this case can be set forth briefly. On April 1, 1975, films were seized by officers of the Federal Bureau of Investigation from two theatres owned by the appellant. These officers were acting pursuant to a search warrant. The basis for the issuance of the search warrant was an affidavit explicitly describing the contents of some of the films. The affidavit also set forth information regarding the transportation of these films in interstate commerce. The only reason that such information was known by the affiant was that he had earlier accompanied officers of the local police department in a search of one of the theatres. As an observer during this search, the affiant saw and took note of air bills, airline stickers and stamps on various film cannisters which indicated that the films had traveled in interstate commerce. Soon after the seizure of the films, the appellant was indicted. For a variety of reasons, however, the trial did not take place until July of 1977. On July 11, 1977, after a three day jury trial, the appellant was convicted on two counts of a three count indictment.

The principal argument of the appellant is that there was a 497 day delay between the seizure of films and trial, and, as a result, there was a 497 day delay before any judicial determination of obscenity was made regarding the seized films. According to the appellant, such a delay violates the First Amendment and denied him procedural due process under the Fifth Amendment. The appellant argues that the Supreme Court's decision in Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), governs this situation in that it requires any system of censorship to have certain protections including an assurance that any censorship prior to a judicial determination will be imposed only briefly, and that the burden will be on the censor to go to court within a specified brief period of time and establish the obscenity of the seized material.

We feel that Freedman is inapposite to the facts in the case before us. We are convinced that this case is controlled by the Supreme Court's decision in Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973), which dealt with the seizure of one copy of a film for use as evidence in a criminal trial. In Heller, the Supreme Court said:

This Court has never held, or even implied that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized. . . . In particular, there is no such absolute right where allegedly obscene material is seized, pursuant to a warrant, to preserve the material as evidence in a criminal prosecution.

Id. at 488, 93 S.Ct. at 2792.

The relevant films in this case were seized and held as evidence in a criminal prosecution for interstate transportation of obscene matter. No attempt was made by the federal government to stop the showing of any particular film. Rather, in this case, the seizures of the films were for evidentiary purposes only not censorship purposes and the appellant, if he had other copies of the seized films, could have continued running these films. Thus, this is not a situation where the films were seized in order to destroy them or to block their exhibition. Instead, this is a situation where single copies of films were seized for the bona fide purpose of preserving them as evidence in a criminal proceeding. As explained in Heller:

If such a seizure is pursuant to a warrant, issued after a determination of probable cause by a neutral magistrate, and, following the seizure, a prompt judicial determination of the obscenity issue in an adversary proceeding is available at the request of any interested party, the seizure is constitutionally permissible. In addition, on a showing to the trial court that other copies of the film are not available to the exhibitor, the court should permit the seized film to be copied so that showing can be continued pending a judicial determination of the obscenity issue in an adversary proceeding.

Id. at 492, 93 S.Ct. at 2795.

Admittedly, seizures of films for evidentiary purposes can have a censorship effect if no other copies are available. A prompt post seizure determination of the obscenity question must be available "at the request of any interested party" in order for such a...