United States v. Robert J. Baranov
474 F.2d 591
9th Cir.
1973
Check Treatment

*1 WRIGHT, Before CHAMBERS and Judges, BYRNE, Sr.,* Dis Circuit and Judge. trict PER CURIAM: America, of UNITED STATES appeals from a for Baranov conviction tiff-Appellee, Plain mailing in of obscene matter violation v. 18 1461. We reverse. U.S.C. § BARANOV, Defendant- Robert J. government’s The of case consisted Appellant. advertisements, photographs, a motion No. 26380. mailing. picture proof and of Appeals, of United States Court required do, As are to we we Circuit. Ninth novo. have reviewed the evidence de 9, Feb. 1973. Ohio, 184, 84 Jacobellis v. 378 S.Ct. U.S. (1964); 1676, 12 L.Ed.2d 793 Wasser Municipal of the Court Alhambra man v. (9th Dist., F.2d Cir. 449 787 Judicial 1971); Oregon, F.2d 431 272 Childs v. grounds (9th 1970), on other Cir. rev’d 1006, 1248, L.Ed. 401 91 28 U.S. S.Ct. (1971). the usual 2d 542 We have found focusing pictures the ex on tasteless genitalia. terior human ap However, none of this material pears any or to offensive dis be more Supreme tasteful than the Court what opin- Byrne, J., dissented with an United found not States v. has obscene. ion. Magazine “Exclusive”, Copies 253 392 of (D.Md.1966), F.Supp. aff’d 373 F. 485 (4th 1967), 2d 633 rev’d sub nom. Cir. Magazine States, Central v. Sales United 50, 235, 49 389 88 19 L.Ed.2d U.S. S.Ct. (1967); Pitchess, Pinkus 429 F.2d v. * Byrne, Judge, M. Honorable William Senior United States District District of Central Cali- fornia, sitting by designation. *2 592 record, 922, reading the (9th entire 1970), each case aff’d 400 U.S. 416 Cir. viewing material, mak- 185, (1970). the and accused L.Ed.2d 91 27 183 S.Ct. Cf. Containing ing the independent judgment de on novo Cartons 56 United States v. obscenity. Therefore, Mag., once 19,500 question of Copies F.2d 635 of 373 finding obscenity made (4th has 1967), a of an been sub Potomac Cir. rev’d nom. 47, application proper the under of States, below a Co. 389 U.S. News v. United test, apply I 233, (1967). Roth a ‘sufficient L.Ed.2d would 88 S.Ct. 19 46 (Pages of review —”. evidence’ standard The in both materials United States 1686) (Emphasis 202-203, page 84 S.Ct. 1972) Miller, (9th F.2d 899 Cir. v. 455 supplied). Young, F.2d and United v. 465 States ap- substantially Certainly, 1972) is to (9th this court limited 1096 Cir. were explicit plying standard here. a “sufficient evidence”

more those than involved Arno, v. F.2d 731 of review. United 463 States Cf. 1972). (9th Cir. being sup- to The sufficient evidence findings, port I the court’s would Reversed. district affirm. Judge (dissenting).

BYRNE, District respectfully

I dissent. agree Ohio,

I do not that v. Jacobellis 184, 1676,

378 U.S. 84 S.Ct. 12 L.Ed.2d

793, requires permits or to us review reading

the evidence de novo. A close clearly of Jaeobellis that it is shows SLABAUGH, Joseph A. Defendant- only Supreme the Court the has which Appellant, duty apply applicable to of law the rules v. upon independent the basis of an review America, of UNITED STATES of the case in facts of each in all cases Plaintiff-Appellee. volving rights the constitutional under No. 72-1860. “Hence, Due Process clause. we reaf that, ‘obscenity’ principle firm the in Appeals, of United States Court rights involving as in cases all others Circuit. Sixth guar derived from the First Amendment 9, 1973. March expression, of antees free this Court can making independent not avoid an con judgment

stitutional on the the facts of

case as in to material whether the constitutionally protected.” is

volved

(Page 190, page 1679) (Em 84 S.Ct.

phasis supplied). any If there is doubt the court’s as to holding applied

intention the that the to only

Supreme and to Courts of Court not

Appeals, surely by dissipated it is Chief dissenting opinion

Justice dis- Warren’s agreeing majority ruling that with the Supreme

the an in- Court should make judgment

dependent ques- de novo on the obscenity. protection

tion of “However, society’s right

of to its maintain moral and fiber the effective administration of

justice require this that not es- Court censor,

tablish as an in ultimate itself