U.S. Court of Appeals for the Ninth Circuit, 1974

United States v. Marvin Miller

U.S. Court of Appeals for the Ninth Circuit · Decided November 6, 1974 · Chambers, Koelsch, Carter

505 F.2d 1247 (Federal Reporter, Second Series)

Counsel

Harvey Giss, of Isman & Giss (argued), Los Angeles, Cal., for defendants-appellants., Brian J. O’Neill, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.

Cases that cite this one

5 later published cases cite this decision.

Marvin Miller v. United States (Supreme Court of the United States 1975)
United States v. Gary Jerome Levinson (9th Cir. 1992)
United States v. Robert Elkins and Paul David Novick, Dba Movieland Distributors (9th Cir. 1977)
U. S. Manufacturing & Distributing Corp v. City of Great Falls (Mont. 1976)
United States v. Shirley Anne Danley, AKA Ginger Cardwell, and Terry Lee Meidel, United States of America v. Roy Earl Oswalt, AKA Jimmy Collins (9th Cir. 1975)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion

OPINION

PER CURIAM:

The Supreme Court, on June 25, 1973, vacated the judgment in the above case and remanded it to this court for reconsideration. 413 U.S. 913, 93 S.Ct. 3030, 37 L.Ed.2d 1022.

We reaffirm the convictions and adopt our previously reported opinion in 455 F.2d 899, 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).

The materials in question are clearly obscene. If they were obscene under the old definition set forth in Memoirs v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1 (1966), it follows that they were obscene under the new broader definition of obscenity set forth in Miller v. California, supra.

The defendants’ contention that 18 U.S.C. § 1461 (mailing obscene matter) is void for vagueness was decisively rejected in Hamling, supra, 418 U.S. at 16-118, 94 S.Ct. at 2908. The question of whether a local or a national standard should be applied in this federal prosecution was not raised below or on appeal. Expert testimony was introduced by the Government to the effect that the content of the picture magazines and the books appeals to a prurient interest and that the books contained no social redeeming value. The testimony did not indicate whether it was based on a local or a national standard.

In Hamling, supra, the Supreme Court rejected the position of the First Circuit (see, e. g., United States v. Pal- *1248 ladino, 490 F.2d 499 (1973)) that a national standard must be applied in federal obscenity prosecutions. To the contrary the Court accepted the use of “contemporary community standards” without defining the geographical limits of that community.

Miller, supra, and Hamling, supra, having resolved all of defendants’ contentions on appeal against them, their convictions are reaffirmed.

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