United States v. Orito, No. 70-CR-20.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtProbable Jurisdiction Noted October 12, 1971. See 92 S.Ct. 40
Citation338 F. Supp. 308
Docket NumberNo. 70-CR-20.
Decision Date12 October 1971
PartiesUNITED STATES of America, Plaintiff, v. George Joseph ORITO, Defendant.

338 F. Supp. 308

UNITED STATES of America, Plaintiff,
v.
George Joseph ORITO, Defendant.

No. 70-CR-20.

United States District Court, E. D. Wisconsin.

October 28, 1970.

Probable Jurisdiction Noted October 12, 1971.


Richard E. Reilly, Asst. U. S. Atty., Milwaukee, Wis., for plaintiff.

Shellow & Shellow, Milwaukee, Wis., for defendant.

Probable Jurisdiction Noted October 12, 1971. See 92 S.Ct. 40.

DECISION and ORDER

MYRON L. GORDON, District Judge.

Two motions to dismiss the indictment are now before the court. In both motions, the defendant contends that 18 U.S.C. § 1462 is unconstitutional. One motion is based on the absence of any provision in the statute requiring proof of scienter; the other is based on the defendant's contention that the statute is overbroad and violates the first and ninth amendments in imposing criminal sanctions for the interstate transportation of obscene material which may be designed for personal use.

The defendant was charged in a one-count indictment which alleges that he knowingly transported in interstate commerce, by means of a common carrier, certain "copies of obscene, lewd, lascivious, and filthy materials".

The court must decide whether Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243,

338 F. Supp. 309
22 L.Ed.2d 542 (1969) and Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967) render § 1462 unconstitutional because such section proscribes all transportation of obscene materials without discriminating as to whether such materials are "pandered", exposed to children or imposed on unwilling adults

The defendant urges that under Stanley the transportation and receipt of obscene matter for private use is constitutionally protected, and that only certain types of public distribution of obscene matter, as described in Redrup, may be subjected to governmental control. The United States, on the other hand, urges that Stanley did not purport to modify Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) and that, on its limited facts, Stanley permits an individual to possess obscene materials in his own home, but it does not grant one a protected right to transport or receive such materials.

In its per curiam opinion in Redrup v. New York, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967), the court observed that in none of the cases which were then before the court "* * * was there any suggestion of an assault upon individual privacy by publication in a manner so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it." (p. 769, 87 S.Ct. p. 1415).

Two courts of appeal have decided cases which tend to support the government's position. In United States v. Melvin, 419 F.2d 136 (4th Cir. 1969), the court concluded that notwithstanding Stanley, "Congress has the power to forbid interstate transportation of obscenity." (p. 139). Also, in United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970), the court rejected a proposed expansion of Stanley.

A three-judge court convened in the northern district of Georgia decided "to keep Stanley limited to its facts". Gable v. Jenkins, 309 F.Supp. 998, 1000 (N.D. Ga.1969). This case was summarily affirmed at 397 U.S. 592 (1970).

There are a number of cases in which the rationale of Stanley has been construed more broadly than the three decisions referred to immediately above. Thus, in Stein v. Batchelor, 300 F.Supp. 602 (N.D.Tex.1969), probable jurisdiction noted sub nom., Dyson v. Stein, 396 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419 (1969), restored to calendar for reargument, 399 U.S. 922, 90 S.Ct. 2230, 26 L. Ed.2d 788 (1970), a three-judge court asserted that it was "impossible, however, for this Court to ignore the broader implications of the opinion which appears to reject or significantly modify the proposition stated in Roth v. United States 354 U.S. 476, 77 S.Ct....

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4 practice notes
  • U.S. v. Pryba, No. 24788
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 29 Julio 1974
    ...1, supra. 114 See note 24, supra. 115 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). 116 Supra note 4. 117 United States v. Orito, 338 F.Supp. 308, 311 (E.D.Wis.1970), vacated, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 118 413 U.S. at 140-141, 93 S.Ct. 2674. 119 See Part V, infra. 12......
  • State v. Bruckner, No. 88-2051-CR
    • United States
    • Court of Appeals of Wisconsin
    • 16 Agosto 1989
    ...in Stanley and the non-public transportation which the statute at bar [18 U.S.C. sec. 1462] proscribes. United States v. Orito, 338 F.Supp. 308, 310 (E.D.Wis.1970), rev'd, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973). The Supreme Court disagreed. Orito, 413 U.S. at 140-141, 143, 93 S.......
  • United States v. Orito 8212 69, No. 70
    • United States
    • United States Supreme Court
    • 19 Enero 1972
    ...California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; United States v. 12 200-Ft. Reels of Film, supra, and this opinion. Pp. 141—145. 338 F.Supp. 308, vacated and remanded. R. Kent Greenawalt, New York City, for appellant. Solicitor Gen. Erwin N. Griswold for appellant on reargument. Jam......
  • Steel Hill Development, Inc. v. Town of Sanbornton, Civ. A. No. 3319.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • 17 Febrero 1972
    ...and must be particularly frustrating to the plaintiff, that it started this change in zoning to allow a more intensive development 338 F. Supp. 308 of the land. But while the opposite result from what it intended has occurred, its land has not been destroyed or confiscated. The present mark......
4 cases
  • U.S. v. Pryba, No. 24788
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 29 Julio 1974
    ...1, supra. 114 See note 24, supra. 115 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). 116 Supra note 4. 117 United States v. Orito, 338 F.Supp. 308, 311 (E.D.Wis.1970), vacated, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 118 413 U.S. at 140-141, 93 S.Ct. 2674. 119 See Part V, infra. 12......
  • State v. Bruckner, No. 88-2051-CR
    • United States
    • Court of Appeals of Wisconsin
    • 16 Agosto 1989
    ...in Stanley and the non-public transportation which the statute at bar [18 U.S.C. sec. 1462] proscribes. United States v. Orito, 338 F.Supp. 308, 310 (E.D.Wis.1970), rev'd, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973). The Supreme Court disagreed. Orito, 413 U.S. at 140-141, 143, 93 S.......
  • United States v. Orito 8212 69, No. 70
    • United States
    • United States Supreme Court
    • 19 Enero 1972
    ...California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419; United States v. 12 200-Ft. Reels of Film, supra, and this opinion. Pp. 141—145. 338 F.Supp. 308, vacated and remanded. R. Kent Greenawalt, New York City, for appellant. Solicitor Gen. Erwin N. Griswold for appellant on reargument. Jam......
  • Steel Hill Development, Inc. v. Town of Sanbornton, Civ. A. No. 3319.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • 17 Febrero 1972
    ...and must be particularly frustrating to the plaintiff, that it started this change in zoning to allow a more intensive development 338 F. Supp. 308 of the land. But while the opposite result from what it intended has occurred, its land has not been destroyed or confiscated. The present mark......

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