460 F2d 281 Rialto Theatre Company 71-1633 v. City of Wilmington

460 F.2d 281

RIALTO THEATRE COMPANY, a Delaware corporation, Appellant in
No. 71-1633, and Richard F. Lewis, Jr.
CITY OF WILMINGTON, a Delaware Municipal Corp., et al.

Appeal of Richard F. LEWIS, Jr., in No. 71-1634.
Nos. 71-1633, 71-1634.

United States Court of Appeals,
Third Circuit.

Submitted under 3rd Cir. Rule 12(6) May 4, 1972.
Decided May 19, 1972.

William E. Taylor, Jr., Wilmington, Del., for appellants.

Clement C. Wood, First Asst. City Sol., Wilmington, Del., for appellee.

Before VAN DUSEN, GIBBONS and JAMES ROSEN, Circuit Judges.



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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. 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.