United States of America, Appellee, v. William Jack Fesenmeyer, Appellant, 454 F.2d 280 (9th Cir. 1972)

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U.S. Court of Appeals for the Ninth Circuit - 454 F.2d 280 (9th Cir. 1972) Jan. 21, 1972

William Jack Fesenmeyer, in pro. per.

Richard K. Burke, U. S. Atty., Fred C. Mather, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before KOELSCH, ELY and TRASK, Circuit Judges.


William Jack Fesenmeyer was convicted of transporting in interstate commerce obscene matter for sale and distribution (18 U.S.C. § 1465). On this appeal he argues that since, as the Supreme Court held in Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969), a person enjoys a right to receive and possess obscene material, he necessarily "holds a correlative right to make [such material] available" and hence the federal statute is likewise constitutionally infirm.

Such a reading gives Stanley "too wide a sweep." United States v. Reidel, 402 U.S. 351, 355, 91 S. Ct. 1410, 1412, 28 L. Ed. 2d 813 (1971), reh. denied, 403 U.S. 924, 91 S. Ct. 2223, 29 L. Ed. 2d 703. As the Court explained in Reidel, a decision rendered at approximately the time that Fesenmeyer was convicted, " [w]hatever the scope of the 'right to receive' referred to in Stanley, it is not so broad as to immunize the dealings in obscenity in which Reidel engaged here-dealings which Roth [Roth v. United States, 354 U.S. 476 (77 S. Ct. 1304, 1 L. Ed. 2d 1498) (1957)] held unprotected by the First Amendment." Id.

Judgment affirmed.