United States v. Fragus, No. 27801.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPER CURIAM
Citation428 F.2d 1211
Docket NumberNo. 27801.
Decision Date23 June 1970
PartiesUNITED STATES of America, Appellee, v. Peter Frederick FRAGUS, Appellant.

428 F.2d 1211 (1970)

UNITED STATES of America, Appellee,
v.
Peter Frederick FRAGUS, Appellant.

No. 27801.

United States Court of Appeals, Fifth Circuit.

June 23, 1970.


Lacy Mahon, Jr., Jacksonville, Fla., for appellant.

Edward F. Boardman, U. S. Atty, Joseph W. Hatchett, First Asst. U. S. Atty., Jacksonville, Fla., for appellee.

Before JOHN R. BROWN, Chief Judge, COLEMAN and CLARK, Circuit Judges.

SUPPLEMENTAL OPINION

PER CURIAM:

The Court, sua sponte, has determined to supplement its prior opinion dated

428 F.2d 1212
January 28, 1970. The supplement does not change the outcome there determined — we adhere to our affirmance of appellant's conviction. However, since the date that opinion was released the United States Supreme Court has rendered two decisions of significant import to this case

I.

That Court affirmed the decision of a three-judge district court in Milky Way Products, Inc. v. Leary, 305 F.Supp. 288 (S.D., N.Y.1969); aff. 397 U.S. 98, 90 S.Ct. 817, 25 L.Ed. 78 (1970), which confirms that the arrest of a panderer of gross smut may be effected under ordinary criminal processes without a prior judicial determination of the obscenity of the materials he peddles. While acknowledging the restraining effect of such an arrest, that opinion distinguishes the arrest from mass, or broadly effective seizures of allegedly obscene writings such as were involved in A Quantity of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964) and Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). It has also come to our attention that the Second Circuit in United States v. Wild, 422 F.2d 34 (2nd Cir. 1969), affirmed convictions under Title 18, § 1461, United States Code, a companion section of the Comstock Act to the statute violated here. There the Second Circuit said:

"* * * appellants present a broader argument that seizures in an obscenity case without a prior adversary hearing on the issue of obscenity are unconstitutional under A Quantity of Books v. Kansas, 378 U.S. 205, 84 S. Ct. 1723, 12 L.Ed.2d 809 (1964), and Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961). These cases are inapposite since they involved massive seizures of books under state statutes which authorized warrants for the seizure of obscene materials as a first step in civil proceedings seeking their destruction. The seizures in this case were of instrumentalities and evidence of the crime for which appellants were indicted and lawfully arrested. We do not believe Marcus and A Quantity of Books can be read to proscribe the application of the ordinary methods of initiating criminal prosecution to obscenity cases."

In particular, see that court's...

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32 practice notes
  • Bryers v. State, No. 44667
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 31, 1972
    ...incident to an arrest. For decisions holding that an adversary hearing on obscenity is Not required See United States v. Fragus, 428 F.2d 1211, 1212 (5th Cir. 1970); United States v. Wild, 422 F.2d 34, 37--38 (2nd Cir. 1969); Adler v. Pomerleau, 313 F.Supp. 277, 286 (D.Md.1970) (3 judge cou......
  • Meyer v. Austin, No. 69-678-Civ.-J.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 14, 1970
    ...and not a seizure but the reasoning is equally applicable to both arrest and seizure. In the recent case of United States v. Fragus, 428 F.2d 1211 filed June 23, 1970, supplementing 422 F.2d 1244 (5th Cir. 1970) (per curiam) the Fifth Circuit "That Court U. S. Supreme Court affirmed the dec......
  • Huffman v. United States, No. 23781
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 7, 1971
    ...940, 91 S.Ct. 2242, 29 L.Ed.2d 720 (1971). 6 See also Miller v. United States, 431 F.2d 655 (9th Cir. 1970); United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970). But see United States v. Alexander, 428 F.2d 1169 (8th Cir. 1970); Cambist Films, Inc. v. Duggan, 420 F.2d 687 (3d Cir. 7 Appe......
  • Hearn v. Short, Civ. A. No. 70-H-1376.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • April 16, 1971
    ...The Court of Appeals for the Fifth Circuit, in United States v. Fragus, 422 F.2d 1244 (5th Cir. 1970) and in its supplemental opinion, 428 F.2d 1211 (5th Cir. 1970), so stated and, in addition, expressly declined to adopt the rationale of the court in Thirty-Seven Photographs. In the supple......
  • Request a trial to view additional results
32 cases
  • Bryers v. State, No. 44667
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 31, 1972
    ...incident to an arrest. For decisions holding that an adversary hearing on obscenity is Not required See United States v. Fragus, 428 F.2d 1211, 1212 (5th Cir. 1970); United States v. Wild, 422 F.2d 34, 37--38 (2nd Cir. 1969); Adler v. Pomerleau, 313 F.Supp. 277, 286 (D.Md.1970) (3 judge cou......
  • Meyer v. Austin, No. 69-678-Civ.-J.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • August 14, 1970
    ...and not a seizure but the reasoning is equally applicable to both arrest and seizure. In the recent case of United States v. Fragus, 428 F.2d 1211 filed June 23, 1970, supplementing 422 F.2d 1244 (5th Cir. 1970) (per curiam) the Fifth Circuit "That Court U. S. Supreme Court affirmed the dec......
  • Huffman v. United States, No. 23781
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 7, 1971
    ...940, 91 S.Ct. 2242, 29 L.Ed.2d 720 (1971). 6 See also Miller v. United States, 431 F.2d 655 (9th Cir. 1970); United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970). But see United States v. Alexander, 428 F.2d 1169 (8th Cir. 1970); Cambist Films, Inc. v. Duggan, 420 F.2d 687 (3d Cir. 7 Appe......
  • Hearn v. Short, Civ. A. No. 70-H-1376.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • April 16, 1971
    ...The Court of Appeals for the Fifth Circuit, in United States v. Fragus, 422 F.2d 1244 (5th Cir. 1970) and in its supplemental opinion, 428 F.2d 1211 (5th Cir. 1970), so stated and, in addition, expressly declined to adopt the rationale of the court in Thirty-Seven Photographs. In the supple......
  • Request a trial to view additional results

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