U.S. v. Sanders, 77-5715
| Citation | 597 F.2d 63 |
| Decision Date | 15 June 1979 |
| Docket Number | No. 77-5715,77-5715 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Arthur Randall SANDERS, Jr., Gulf Coast News Agency, Inc., Trans World America, Inc., a/k/a TWA, Inc. and William Walter, Defendants-Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Glenn Zell, Atlanta, Ga., for Sanders, Gulf, TWA.
W. Michael Mayock, Los Angeles, Cal., for Walter.
John L. Briggs, U. S. Atty., Jacksonville, Fla., Donald B. Nicholson, Philip Wilens, Chief, Dept. of Justice, Govt. Regulations & Labor Sec., Crim. Div., Washington, D. C., for plaintiff-appellee.
Appeals from the United States District Court for the Middle District of Florida.
ON PETITIONS FOR REHEARING AND PETITIONS FOR REHEARING EN BANC
(Opinion April 2, 1979, 5 Cir., 1979, 592 F.2d 788)
Before WISDOM, AINSWORTH and CLARK, Circuit Judges.
The Petitions for Rehearing are DENIED and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure, Local Fifth Circuit Rule 16), the Petitions for Rehearing En Banc are also DENIED.
Appellants contend that the Government in this case engaged in prior restraint in violation of the First Amendment. However, the majority of the panel (Judges Ainsworth and Clark) point out that this Court held in United States v. Bush, 5 Cir., 1979, 582 F.2d 1016, 1021 (Morgan, J.) that the appropriate remedy for such a violation is "return of the . . . property, . . . not its suppression as evidence at trial." See also United States v. Echols, 5 Cir., 1978, 577 F.2d 308.
Thus, even had the Government "abridge(d) the public's First Amendment right to access to" expressive matter in this case, the proper remedy would be "return of the allegedly obscene materials" to the owner, with the Government retaining sample films for evidentiary purposes, "not suppression of these items at a subsequent obscenity trial." United States v. Cangiano, 2 Cir., 1972, 464 F.2d 320, 328, Vacated on other grounds, 413 U.S. 913, 93 S.Ct. 3047, 37 L.Ed.2d 1023, On remand, 491 F.2d 905, Cert. denied, 418 U.S. 934, 94 S.Ct. 3223, 41 L.Ed.2d 1171 (1974); Huffman v. United States, 1971, 152 U.S.App.D.C. 238, 244, 470 F.2d 386, 392. See United States v. Womack, 1974, 166 U.S.App.D.C. 35, 49-50 n.48, 509 F.2d 368, 382-83 n.48; United States v. Sherwin, 9 Cir., 1976, 539 F.2d 1, 8 n.11 (en banc). Cf. United States v. Alexander, 8 Cir., 1970, 428 F.2d 1169, 1176; Tyrone, Inc. v. Wilkinson, 4 Cir., 1969, 410 F.2d 639, 641; Metzger v. Pearcy, 7 Cir., 1968, 393 F.2d 202, 204.
We have found no decision that has...
To continue reading
Request your trial
-
State v. Bumanglag
...656-57, 81 S.Ct. at 1692 (citations and footnote omitted).15 Other cases reaching this general conclusion include United States v. Sanders, 597 F.2d 63, 64 (5th Cir. 1979), rev'd on other grounds sub nom. Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), and Unit......
-
Walter v. United States Sanders v. United States
...was denied. Held : The judgments are reversed. Pp. 653-660; 660-662. Certiorari dismissed in part; 5th Cir., 592 F.2d 788 and 5th Cir., 597 F.2d 63, reversed. Mr. Justice STEVENS, joined by Mr. Justice STEWART, concluded that even though the nature of the contents of the films was indicated......
-
Piepenburg v. Cutler
...possible) so that it could be distributed pending a final determination of its obscenity. Heller v. New York, supra; United States v. Sanders, 597 F.2d 63 (5th Cir. 1979); United States v. Cangiano, 464 F.2d 320 (2nd Cir. 1972), vacated on other grounds, 413 U.S. 913, 93 S.Ct. 3047, 37 L.Ed......
-
Piepenburg v. Cutler, Civ. No. C 80-0637.
...vindicated by return of the films, not by their suppression at trial. Heller, supra, at 493 n. 11, 93 S.Ct. at 2795; United States v. Sanders, 597 F.2d 63 (5th Cir. 1979); United States v. Bush, 582 F.2d 1016, 1020 n.2 (5th Cir. 1979); United States v. Sherwin, supra, at 8 n.11. Petitioner ......