431 F2d 704 Alexander v. G Zimpfer M

431 F.2d 704

Ferris Jacob ALEXANDER and Edward Jacob Alexander, Appellants,
v.
Bernard G. ZIMPFER, United States Commissioner, District of
Minnesota; Robert M. Morgenthau, United States Attorney for
the Southern District of New York; Robert Renner, United
States Attorney for the District of Minnesota, Appellees.

No. 20036.

United States Court of Appeals, Eighth Circuit.

Sept. 21, 1970.

Herald Price Fahringer, Jr., Buffalo, N.Y., for appellants, and filed brief; Keith D. Kennedy, Minneapolis, Minn., was on the brief with Mr. Fahringer.

Philip B. Abramowitz, Buffalo, N.Y., on the brief.

J. Earl Cudd, Asst. U.S. Atty., Minneapolis, Minn., made argument for appellees. No brief was filed by counsel for apopellees.

Before GIBSON and LAY, Circuit Judges, and HUNTER, District Judge.

PER CURIAM.

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1

A Federal grand jury in the Southern District of New York indicted fifteen persons, including appellants, on charges of violating 18 U.S.C. 371 (conspiracy to transport interstate obscene materials) and 18 U.S.C. 1465 (interstate transportation of obscene materials). Appellants were arrested by the F.B.I. in Minneapolis, Minnesota on October 27, 1969 and the Government sought a warrant for removal of appellants to the Southern District of New York pursuant to Rule 40(b)(3), Federal Rules of Criminal Procedure.

2

A hearing was had before the District of Minnesota Commissioner. At the conclusion of the hearing the Commissioner announced his intention to issue the warrant of removal. Appellants thereupon commenced the instant civil suit to enjoin the issuance of the warrant of removal; to obtain a three judge United States District Court to hear and declare the execution of the removal under Rule 40(b)(3) unconstitutional and a declaratory judgment that 18 U.S.C. 371 and 1465 are unconstitutional under the facts of this case.

3

In a carefully reasoned opinion, Judge Larson of the United States District Court for the District of Minnesota refused appellants' requested relief and ordered the issuance of the warrant for removal. Appellants were taken to the Southern District of New York and there presented to that Federal court the identical contentions and requests they made before Judge Larson and are currently urging on this appeal. We are advised by counsel for appellants and appellees that the District Court for the Southern District of New York, after a hearing, has denied appellants' contentions and requests and has set their trial to commence on October 5, 1970.

4

While other reasons could now be added for denying appellants the relief they seek on this appeal, we are content to affirm the judgment below on the basis of Judge Larson's opinion.

5

Judgment affirmed.