KUTLER v. US, 423 U.S. 959 (1975)

Rehearing Denied Dec. 15, 1975.

See 423 U.S. 1039 .

On petition for writ of certiorari to the United States Court of Appeals for the Third Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice BRENNAN, with whom Mr. Justice STEWART and Mr. Justice MARSHALL concur, dissenting.

Petitioner was convicted in the United States District Court for the Western District of Pennsylvania of shipping obscene films by common carrier in interstate commerce in violation of 18 U.S.C. 1462, and of conspiracy to violate 1462 and to transport the films in interstate commerce for the purpose of sale or distribution in violation of 18 U.S.C . 1465. 18 U.S.C. 1462 provides in pertinent 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, [423 U.S. 959 , 960]   pamphlet, picture, motionpicture 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.'

The Court of Appeals for the Third Circuit affirmed the convictions.

I adhere to my dissent in United States v. Orito, 413 U.S. 139, 147 (1973), in which, speaking of 18 U.S.C. 1462, I expressed the view that '[w]hatever the extent of the Federal Government's power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face.' Id., at 147-148. For the reasons stated in my dissent in Miller v. California, 413 U.S. 15, 47 d 419 (1973), I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Third Circuit was rendered after Orito, reverse. 1  

In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U.S. 483, 494 (1973) (Brennan, J., dissenting).

Footnotes

[ Footnote 2 ] United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 , 130-138 (1973); Ginzburg v. United States, 383 U.S. 463 , 491-492 (1966); Roth v. United States, 354 U.S. 476 , 508-514 (1957).

[ Footnote 3 ] Ginzburg v. United States, 383 U.S. 463, 476 , 16 L. Ed.2d 31 (1966).

[ Footnote 1 ] Although four of us would grant and reverse, the Justices who join this opinion do not insist that the case be decided on the merits.