United States v. Fragus, No. 27801.
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | PER CURIAM |
| Citation | 428 F.2d 1211 |
| Docket Number | No. 27801. |
| Decision Date | 23 June 1970 |
| Parties | UNITED 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
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."
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Bryers v. State, No. 44667
...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......
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Meyer v. Austin, No. 69-678-Civ.-J.
...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......
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Huffman v. United States, No. 23781
...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......
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Hearn v. Short, Civ. A. No. 70-H-1376.
...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......
-
Bryers v. State, No. 44667
...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.
...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
...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.
...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......