United States of America, Plaintiff-appellant, v. Robert Elkins and Paul David Novick, Dba Movielanddistributors, Defendants-appellees, 556 F.2d 978 (9th Cir. 1977)

The defendants were indicted for interstate shipment on January 19, 1973, of alleged obscene films, in violation of 18 U.S.C. § 1462. The indictment was dismissed on the motion of the defendants on the ground that 18 U.S.C. § 1462 could not constitutionally be applied to conduct occurring before June 21, 1973, the date of the decision of the Supreme Court in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973).

At argument of the appeal, it appeared that en banc consideration had been requested in certain obscenity cases pending in 1974 before this court. In July 1974 we deferred submission pending the result on the en banc decision, citing a series of pending cases. Thereafter, the en banc request failed to secure a majority of the court and, thus, no en banc consideration occurred.

Various of the pending cases cited in our July 1974 order moved on to finality. In United States v. Miller, 455 F.2d 899 (9 Cir. 1972), convictions under 18 U.S.C. § 1461 had been affirmed. The judgment was vacated in Miller v. California, supra, and remanded for reconsideration. In United States v. Miller, 505 F.2d 1247 (9 Cir. 1974), the convictions were reaffirmed by adoption of the prior opinion in 455 F.2d 899. Certiorari was denied. 422 U.S. 1024, 95 S. Ct. 2619, 45 L. Ed. 2d 683 (1975).

Miller v. United States, 431 F.2d 655 (9 Cir. 1970) also had affirmed a conviction under 18 U.S.C. § 1462. It likewise was vacated by Miller v. California, supra, and remanded for reconsideration. Miller v. United States, 507 F.2d 1100 (9 Cir. 1974), reaffirmed the convictions adopting the decision in 431 F.2d 655. Certiorari was again denied. 422 U.S. 1025, 95 S. Ct. 2620, 45 L. Ed. 2d 683 (1975).

In Wasserman v. Municipal Court, 449 F.2d 787 (9 Cir. 1971), it appeared that Wasserman had been convicted of violating California Penal Code § 311, a misdemeanor for distributing an obscene brochure. The superior court affirmed and petitions for habeas corpus were denied by California courts.

A petition for habeas corpus was denied by the United States District Court for the Central District of California. It found the material obscene. This court affirmed in Wasserman v. Municipal Court, supra. This judgment was likewise vacated by Miller v. California, supra. We remanded it to the district court. Wasserman v. Municipal Court, 502 F.2d 764 (9 Cir. 1974). The district court then granted the writ of habeas corpus. We reversed with instructions to deny the writ. Wasserman v. Municipal Court, 543 F.2d 723 (9 Cir. 1976).

Other cases have since been decided. In United States v. London Press, 541 F.2d 287 (9 Cir. 1976) (Table), defendants were convicted of violating 18 U.S.C. § 1461 by conduct prior to Miller v. California, supra. The conviction was affirmed by an unpublished memorandum. Certiorari was denied on February 22, 1977, 429 U.S. 1120, 97 S. Ct. 1156, 51 L. Ed. 2d 571 (1977). Finally, United States v. Cutting, 538 F.2d 835 (9 Cir. 1976), cert. denied, 429 U.S. 1052, 97 S. Ct. 766, 50 L. Ed. 2d 769 (1977), involving 18 U.S.C. § 1461, was decided en banc, and certiorari was denied.

These cases all involved conduct prior to June 21, 1973, the date of Miller v. California, supra. They dispose of defendants' contentions concerning pre-1973 conduct.

United States v. Cutting, supra, contains a detailed analysis of the pre-1973 problem.

"The acts underlying the indictment and trial took place before the 1973 and 1974 obscenity decisions of the Supreme Court of the United States. Appellants are therefore entitled to have their convictions measured against the standards of Roth v. United States, 354 U.S. 476, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 86 S. Ct. 975, 16 L. Ed. 2d 1 (1966), unless they would benefit by application of the Supreme Court's more recent decisions. Hamling v. United States, 418 U.S. 87, 102, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974); United States v. Jacobs, 513 F.2d 564 (9th Cir. 1974). It is a general rule that a change in the law which has occurred after a relevant event in a case will be given effect while the case is on direct appeal. Hamling v. United States, supra, 418 U.S. at 102, 94 S. Ct. 2887; Linkletter v. Walker, 381 U.S. 618, 627, 85 S. Ct. 1731, 14 L. Ed. 2d 601 (1965). That rule applies here, and thus the judgments of conviction also must be substantively examined in the light of the principles laid down in the more recent cases. Hamling v. United States, supra, 418 U.S. at 102, 94 S. Ct. 2887.

"Both the Memoirs test, Memoirs v. Massachusetts, supra, 383 U.S. at 418, 86 S. Ct. 975, and the Miller test, Miller v. California, supra, 413 U.S. at 24, 93 S. Ct. 2607, in the second portion of their tripartite tests, proscribe sexual material which is 'patently offensive.' In Miller, the Court took occasion to give examples of what it meant by 'patently offensive':

'It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra:

'(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

'(b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.' Miller v. California, supra at 25, 93 S. Ct. at 2615.

"The Court in Hamling v. United States, supra, 418 U.S. at 115, 94 S. Ct. at 2906, said of the material there,

'It is plain from the Court of Appeals' description of the brochure involved here that it is a form of hard-core pornography well within the types of permissibly proscribed depictions described in Miller, and which we now hold § 1461 to cover.' (Emphasis added.)

Thus, the Court in Hamling defined for purposes of section 1461 what constitutes hard-core pornography and found that it is made up in part at least by the examples listed in Miller.

"To the argument made in Hamling that because the crime for which convictions had been obtained had not been enumerated in the statute at the time of their conduct, the convictions could not be sustained, the Court responded:

'But the enumeration of specific categories of material in Miller which might be found obscene did not purport to make criminal, for the purpose of 18 U.S.C. § 1461, conduct which had not previously been thought criminal.' Hamling v. United States, supra 418 U.S., at 116, 94 S. Ct., at 2907.

The Hamling Court, supra at 114, 94 S. Ct., at 2906, to the same effect also said:

'As noted above, we indicated in United States v. 12 200-ft. Reels of Film, supra, 413 U.S. (123), at 130 n. 7, 93 S. Ct. (2665), at 2670 (37 L. Ed. 2d 500 (1973)) that we were prepared to construe the generic terms in 18 U.S.C. § 1462 to be limited to the sort of "patently offensive representations or descriptions of that specific 'hard core' sexual conduct given as examples in Miller v. California." We now so construe the companion provision in 18 U.S.C. § 1461, the substantive statute under which this prosecution was brought.' " (Footnotes omitted.)

Marks v. United States, 430 U.S. 188, 97 S. Ct. 990, 51 L. Ed. 2d 260 (1977), held only that the tougher obscenity standards announced in Miller v. California, supra, could not be given retroactive effect to pre-Miller conduct. The conduct of defendants, which occurred prior to the 1973 Miller decision, was judged by the earlier standards of Roth and Memoirs. Therefore, there is no due process violation.

The judgment is reversed and the case remanded to the district court for trial.