United States v. Zacher, No. 70-CR-77.

CourtUnited States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
Writing for the CourtWilliam M. Coffey, Milwaukee, Wis., for defendant
Citation332 F. Supp. 883
Docket NumberNo. 70-CR-77.
Decision Date08 September 1971
PartiesUNITED STATES of America, Plaintiff, v. Harry ZACHER, Jr., a/k/a Larry Zacher a/k/a Larry Santell, Defendant.

332 F. Supp. 883

UNITED STATES of America, Plaintiff,
v.
Harry ZACHER, Jr., a/k/a Larry Zacher a/k/a Larry Santell, Defendant.

No. 70-CR-77.

United States District Court, E. D. Wisconsin.

September 8, 1971.


David J. Cannon, U. S. Atty., Milwaukee, Wis., for plaintiff.

William M. Coffey, Milwaukee, Wis., for defendant.

DECISION and ORDER

MYRON L. GORDON, District Judge.

The defendant has filed several motions in connection with the indictment against him in the above-entitled action. The indictment charges that the defendant transported obscene materials from California to Wisconsin via a common carrier, in violation of 18 U.S.C. § 1462.

After the parties submitted their briefs in connection with these motions, the United States Supreme Court decided United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971), and United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971). Additional comment was requested from both sides concerning the impact of the latter case upon the case at bar, and such responses have been received. Each of the defendant's motions will be discussed separately.

332 F. Supp. 884

MOTIONS TO DISMISS

The defendant has brought two motions to dismiss this action. In his first motion, Mr. Zacher argues that § 1462 is unconstitutional because it allows the imposition of a criminal penalty in the absence of proof that the defendant knew that the materials were obscene; in addition, the defendant contends that the statute is overbroad and is subject to "sweeping and improper application * * * in violation * * * of * * * the First and Ninth Amendments to the Constitution." The second motion to dismiss asserts that no evidence was presented to the grand jury from which it could conclude that the materials in question were obscene.

18 U.S.C. § 1462 provides, in part:

"Whoever brings into the United States, or any place subject to the jurisdiction thereof, or knowingly uses any express company or other common carrier, for carriage in interstate or foreign commerce—
"(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character * * *.
* * * * * *
"Shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter."

On its face, § 1462 does not appear to require scienter, or knowledge that the materials are obscene. That a form of scienter is a sine qua non for conviction under the statute, however, is clear from an examination of those decisions which followed in the wake of Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959). In Smith, the Supreme Court invalidated a city ordinance that made a bookseller's possession of obscene materials, without more, a criminal offense. The Court concluded that the ordinance "imposed a strict or absolute criminal responsibility" on one charged with its violation and stated that to dispense with the requirement of scienter might work a "substantial restriction on the freedom of speech and of the press." 361 U.S. at 150, 80 S.Ct. at 217.

This problem of scienter was considered in United States v. Rubin, 312 F. Supp. 950, 955 (C.D.Cal.1970), where the court stated:

"Even though Section 1462 does not by its express terms require any scienter, we nevertheless hold as the Supreme Court did in Smith that the scienter requirement must be read into this Federal Statute as an implied requisite to conviction. United States v. Mishkin, 317 F.2d 634 (2nd Cir., 1963), cert. denied, 375 U.S. 827, 84 S.Ct. 71, 11 L.Ed.2d 60 (1963) where the court said, 317 F.2d at 637, `scienter is a necessary element of the substantive crime of importing obscene matter, 18 U.S.C. § 1462'; and United States v. Luros, 260 F.Supp. 697 (N.D. Iowa, 1966), rev'd on other grounds, 389 F.2d 200 (8th Cir., 1968)."

The defendant's contention that conviction under § 1462 can be effected without proof of scienter, then, must be rejected. While his motion requires that some distinction be made between mens rea, or "evil purpose," and scienter, which can be defined as "guilty knowledge," Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 96 L.Ed. 288 (1952), it can be noted that

"The recent trend in the interpretation of federal criminal statutes has been to discover by implication a requirement of scienter, where there is no reason to suppose that the Congress, by deliberate choice, omitted such a requirement." Delaney v. United States, 199 F.2d 107, 117 (1st Cir. 1952).

See also Government of the Virgin Islands v. Rodriguez, 423 F.2d 9, 11 (3d Cir. 1970).

The precise nature, or amount, of the scienter required under § 1462 and other

332 F. Supp. 885
federal obscenity statutes has been the subject of some discussion. United States v. Rubin, supra, 312 F.Supp. at 956. However, it appears to be settled that
"While the government has the burden of proving that * * * the defendant * * * had knowledge of the character of * * * the * * * particular materials, Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205 (1959), * * * the defendant's * * * belief that the books would or would not be characterized as obscene is immaterial. See Kahm v. United States, 300 F.2d 78 (5th Cir. 1962)." United States v. Brown, 328 F.Supp. 196, 198 (E.D. Va.1971).

See also Gold v. United States, 378 F.2d 588, 594 (9th Cir. 1967); United States v. West Coast News Co., 357 F.2d 855, 862 (6th Cir. 1966); cf. United States v. Orito, 424 F.2d 276 (9th Cir. 1970).

I conclude that this indictment, which is stated in the terms of the statute, is legally sufficient, but that nevertheless the prosecution will be obliged to prove scienter to the extent that the defendant was mindful of the general character of the materials in question; the defendant's motion to dismiss on this ground may not be granted.

The defendant's first motion to dismiss is also based on the contention that § 1462 is so broad as to offend the guarantees of the first and ninth amendments to the Constitution. Indeed, this was the holding of this court in United States v. Orito, No. 70-CR-20 (E.D. Wis., decided October 28, 1970). See also United States v. B & H Distributing Corp., 319 F.Supp. 1231 ...

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6 practice notes
  • State v. Petrone, No. 89-1551-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • May 6, 1991
    ...cases holding that a pleading in an obscenity case omitting scienter does not void the proceedings, see, e.g., United States v. Zacher, 332 F.Supp. 883 (E.D.Wis.1971) (indictment for transporting obscene material omitted scienter; indictment legally sufficient, but proof of scienter require......
  • United States v. Orito 8212 69, No. 70
    • United States
    • United States Supreme Court
    • January 19, 1972
    ...1408 (opinion of White, J.). United States v. Reidel, supra, 402 U.S., at 354—356, 91 S.Ct., at 1411—1412. See United States v. Zacher, 332 F.Supp. 883, 885—886 (ED Wis.1971). But cf. United States v. Thirty-Seven Photographs, supra, 402 U.S., at 379, 91 S.Ct., at 1409 (Stewart, J., concurr......
  • Ford v. State, No. 3-1276A303
    • United States
    • Indiana Court of Appeals of Indiana
    • September 27, 1979
    ...(opinion of White, J.). United States v. Reidel, supra, (402 U.S.) at 354-356 (91 S.Ct., at 1411-1412). See United States v. Zacher, 332 F.Supp. 883, 885-886 (ED Wis.1971). But cf. United States v. Thirty-Seven Photographs, supra, (402 U.S.) at 379 (91 S.Ct., at 1409) (Stewart, J., concurri......
  • Tallman v. United States, No. 71-1544.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 6, 1972
    ...v. Martell, 335 F.2d 764, 765 (4th Cir. 1964); Delaney v. United States, 199 F.2d 107, 117 (1st Cir. 1952); United States v. Zacher, 332 F.Supp. 883, 885 Even though he made no objections to the instructions given and did not tender any instructions of his own, the petitioner contends the t......
  • Request a trial to view additional results
6 cases
  • State v. Petrone, No. 89-1551-CR
    • United States
    • United States State Supreme Court of Wisconsin
    • May 6, 1991
    ...cases holding that a pleading in an obscenity case omitting scienter does not void the proceedings, see, e.g., United States v. Zacher, 332 F.Supp. 883 (E.D.Wis.1971) (indictment for transporting obscene material omitted scienter; indictment legally sufficient, but proof of scienter require......
  • United States v. Orito 8212 69, No. 70
    • United States
    • United States Supreme Court
    • January 19, 1972
    ...1408 (opinion of White, J.). United States v. Reidel, supra, 402 U.S., at 354—356, 91 S.Ct., at 1411—1412. See United States v. Zacher, 332 F.Supp. 883, 885—886 (ED Wis.1971). But cf. United States v. Thirty-Seven Photographs, supra, 402 U.S., at 379, 91 S.Ct., at 1409 (Stewart, J., concurr......
  • Ford v. State, No. 3-1276A303
    • United States
    • Indiana Court of Appeals of Indiana
    • September 27, 1979
    ...(opinion of White, J.). United States v. Reidel, supra, (402 U.S.) at 354-356 (91 S.Ct., at 1411-1412). See United States v. Zacher, 332 F.Supp. 883, 885-886 (ED Wis.1971). But cf. United States v. Thirty-Seven Photographs, supra, (402 U.S.) at 379 (91 S.Ct., at 1409) (Stewart, J., concurri......
  • Tallman v. United States, No. 71-1544.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • July 6, 1972
    ...v. Martell, 335 F.2d 764, 765 (4th Cir. 1964); Delaney v. United States, 199 F.2d 107, 117 (1st Cir. 1952); United States v. Zacher, 332 F.Supp. 883, 885 Even though he made no objections to the instructions given and did not tender any instructions of his own, the petitioner contends the t......
  • Request a trial to view additional results

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