Rialto Theatre Company, a Delaware Corporation, in No. 71-1633, and Richard F. Lewis, Jr. v. City of Wilmington, a Delaware Municipal Corp.

Third Circuit

Rialto Theatre Company, a Delaware Corporation, in No. 71-1633, and Richard F. Lewis, Jr. v. City of Wilmington, a Delaware Municipal Corp.

460 F.2d 281, 1972 U.S. App. LEXIS 9449

Court of Appeals for the Third Circuit·Decided May 19, 1972·No. 71-1633, 71-1634·Published

Opinion

OPINION OF THE COURT

PER CURIAM:

Appellants seek review of an order of the district court requiring them to furnish to the City Solicitor of the City of Wilmington a copy of certain films needed as evidence in a pending criminal prosecution. The case, which originated as a suit to enjoin prosecution under an ordinance of the City of Wilmington prohibiting exhibition of obscene materials, was before us heretofore. Rialto Theatre Company v. City of Wilmington, 440 F.2d 1326, 1327 (3d Cir. 1971). In that case we held that the district court had properly dismissed both the original and an amended complaint, but that the portion of the district court’s order requiring the City to return films seized pursuant to a search warrant may have been an improper federal interference with a state prosecution. We remanded so that the district court could revise its order to conform to the principles enunciated in Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971). See also Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L. *282 Ed.2d 696 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971).

A return to the status quo prior to the district court’s order was necessary in order to prevent the removal of the films beyond the reach of a Delaware subpoena or warrant for seizure. On remand the district court complied with our mandate by ordering a return to the status quo ante in which the City Solicitor of Wilmington had possession of the films as a result of a seizure pursuant to a warrant. The appeal from this order presents the same issues that were considered in our prior decision. We said then, and we reiterate, that we express no view as to the constitutionality of the warrant seizure. Any such issue may be raised in the pending Delaware prosecution. See Perez v. Ledesma, supra; Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Eve Productions, Inc. v. Shannon, 439 F.2d 1073 (8th Cir. 1971); Overstock Book Co. v. Barry, 436 F.2d 1289 (2d Cir. 1970).

The order of the district court will be affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

OPINION OF THE COURT

PER CURIAM:

Appellants seek review of an order of the district court requiring them to furnish to the City Solicitor of the City of Wilmington a copy of certain films needed as evidence in a pending criminal prosecution. The case, which originated as a suit to enjoin prosecution under an ordinance of the City of Wilmington prohibiting exhibition of obscene materials, was before us heretofore. Rialto Theatre Company v. City of Wilmington, 440 F.2d 1326, 1327 (3d Cir. 1971). In that case we held that the district court had properly dismissed both the original and an amended complaint, but that the portion of the district court’s order requiring the City to return films seized pursuant to a search warrant may have been an improper federal interference with a state prosecution. We remanded so that the district court could revise its order to conform to the principles enunciated in Perez v. Ledesma, 401 U.S. 82, 91 S.Ct. 674, 27 L.Ed.2d 701 (1971). See also Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); Samuels v. Mackell, 401 U.S. 66, 91 S.Ct. 764, 27 L.Ed.2d 688 (1971); Boyle v. Landry, 401 U.S. 77, 91 S.Ct. 758, 27 L. *282 Ed.2d 696 (1971); Dyson v. Stein, 401 U.S. 200, 91 S.Ct. 769, 27 L.Ed.2d 781 (1971); Byrne v. Karalexis, 401 U.S. 216, 91 S.Ct. 777, 27 L.Ed.2d 792 (1971).

A return to the status quo prior to the district court’s order was necessary in order to prevent the removal of the films beyond the reach of a Delaware subpoena or warrant for seizure. On remand the district court complied with our mandate by ordering a return to the status quo ante in which the City Solicitor of Wilmington had possession of the films as a result of a seizure pursuant to a warrant. The appeal from this order presents the same issues that were considered in our prior decision. We said then, and we reiterate, that we express no view as to the constitutionality of the warrant seizure. Any such issue may be raised in the pending Delaware prosecution. See Perez v. Ledesma, supra; Stefanelli v. Minard, 342 U.S. 117, 72 S.Ct. 118, 96 L.Ed. 138 (1951); Eve Productions, Inc. v. Shannon, 439 F.2d 1073 (8th Cir. 1971); Overstock Book Co. v. Barry, 436 F.2d 1289 (2d Cir. 1970).

The order of the district court will be affirmed.

Rialto Theatre Company, a Delaware Corporation, in No. 71-1633, and Richard F. Lewis, Jr. v. City of Wilmington, a Delaware Municipal Corp., 460 F.2d 281, 1972 U.S. App. LEXIS 9449 (3d Cir. 1972).

Pincite

460 F.2d 281 (Rialto Theatre Company, a Delaware Corporation, in No. 71-1633, and Richard F. Lewis, Jr. v. City of Wilmington, a Delaware Municipal Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

Related