Marvin Miller and Covina Publishing, Inc., a Corporationdoing Business As Collector's Publication, Appellants, v. United States of America, Appellee, 507 F.2d 1100 (9th Cir. 1974)

The decision and opinion of this court affirming convictions for having mailed obscene matter in violation of 18 U.S.C. 1461, and for having transported obscene matter in violation of 18 U.S.C. 1462, was dated September 16, 1970, and reported in 431 F.2d 655 (9th Cir. 1970). The Supreme Court, on June 25, 1973, vacated that judgment and remanded the cause to this court for reconsideration in the light of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973), and related cases. 413 U.S. 913, 93 S. Ct. 3030, 37 L. Ed. 2d 1022 (1973).

Subsequent proceedings have kept the case in litigation. Most recently it has been returned by the court en banc to the original panel for disposition. We now reaffirm the convictions and adopt our previously reported opinion in 431 F.2d 655, on the authority of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 (1973) and Hamling v. United States, 418 U.S. 87, 94 S. Ct. 2887, 41 L. Ed. 2d 590 (1974).

We described the materials in our opinion, 431 F.2d at 658, and held that they were constitutionally obscene under the tests then prevailing. We find they are equally obscene under the tests of Miller v. California, supra, and Hamling v. United States, supra. We have considered the issues tendered by appellants in their rebriefing of the issues in the light of Miller and Hamling. We find that the arguments have been foreclosed to them by Hamling or are frivolous, e.g., that a conviction and incarceration would constitute cruel and unusual punishment.

The judgment is reaffirmed.