431 F.2d 655 (9th Cir. 1970), 23935, Miller v. United States

Docket Nº:23935.
Citation:431 F.2d 655
Party Name:Marvin MILLER, Covina Publishing, Inc., a corporation doing business as Collector's Publications, Appellants, v. UNITED STATES of America, Appellee.
Case Date:September 16, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 655

431 F.2d 655 (9th Cir. 1970)

Marvin MILLER, Covina Publishing, Inc., a corporation doing business as Collector's Publications, Appellants,

v.

UNITED STATES of America, Appellee.

No. 23935.

United States Court of Appeals, Ninth Circuit.

Sept. 16, 1970

Rehearing Denied Oct. 26, 1970.

Page 656

Burton Marks (argued), of Marks, Sherman & London, Los Angeles, Cal., for appellants.

Edward J. Wallin (argued), Ass't. U.S. Atty., Wm. Matthew Byrne, U.S. Atty., Robert L. Brosio, Chief, Criminal Division, Los Angeles, Cal., for appellee.

Before BARNES, KILKENNY and TRASK, Circuit Judges.

TRASK, Circuit Judge:

Marvin Miller and Covina Publishing, Inc., a corporation controlled by Miller and doing business as Collector's Publications, bring this appeal from their convictions at jury trial for having mailed obscene matter in violation of 18 U.S.C. § 1461 and for having transported obscene matter in interstate commerce in violation of 18 U.S.C. § 1462.

A grand jury indicted appellants on twenty-one counts of violating sections 1461 and 1462. The trial court granted a judgment of acquittal on one count. The jury returned verdicts of guilty on eight counts and not guilty on the remaining twelve counts. The jury specifically found appellants guilty of mailing and transporting two obscene books, 'Restless Love' and 'Misfortunes of Mary', one obscene magazine, 'The Name Is Bonnie', and of mailing obscene advertisements for these and other publications. We affirm.

(1) Constitutionality of 18 U.S.C. §§ 1461 and 1462

Appellants challenge the constitutionality of the statutes under which they were convicted on the ground that the words, obscene, lewd, filthy, indecent and vile, employed in one or both of the statutes are vague and imprecise.

The Supreme Court upheld the constitutionality of section 1461 in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The Court stated:

'Many decisions have recognized that these terms of obscenity statutes are not precise. This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. '* * *

The Constitution does not require impossible standards'; all that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices * * *.' United States v. Petrillo, 332 U.S. 1, 7-8, 67 S.Ct. 1538, 91 L.Ed. 1877.

Page 657

' 354 U.S. at 491, 77 S.Ct. at 1312.

Section 1462 has also been held constitutional. See, e.g., Reed Enterprises v. Clark, 278 F.Supp. 372, 380-381 (D.D.C. 1967), aff'd (per curiam) 390 U.S. 457, 88 S.Ct. 1196, 20 L.Ed.2d 28 (1968); United States v. Fragus, 422 F.2d 1244 (5th Cir. 1970); United States v. Melvin, 419 F.2d 136, 139 (4th Cir. 1969).

Nor does the decision of the Supreme Court in Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), require a different decision in this case. Stanley recognized that the First Amendment protected private possession of materials charged as being obscene. The Court in Stanley, however, as has frequently been pointed out, does not overrule or impair the validity of Roth, supra.

'We hold that the First and the Fourteenth Amendments prohibit making mere private possession of obscene material a crime. Roth and the cases following that decision are not impaired by today's holding.' 394 U.S. at 568, 89 S.Ct. at 1249. 1

Stanley, on its facts, reversed a state conviction of the defendant for possessing an obscene film in his own home. Notwithstanding the flat pronouncement that Roth and the cases following it are not impaired by Stanley, questions have been raised as to its scope. See Karalexis v. Byrne, 306 F.Supp. 1363, 1366 (D.Mass. 1969). The case before us now is not a private possession case as was Stanley or as is United States v. Thirty-Seven (37) Photographs, 309 F.Supp. 36 (C.D.Cal. 1970). As is pointed out hereafter, this is the commercial exploitation of obscenity by large scale advertising openly appealing by textual and graphic materials to the prurient interest of any person who might be one of the several million on an apparently unselective mailing list. As such this case is not only within the teachings of Roth, but also within the plain meaning of Ginzburg. There appeared to be little but lip service to any concern for juveniles and there was ample evidence of unwelcome 'assault upon individual privacy.' See Redrup v. New York, 386 U.S. 767, 769, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967).

(2) Prior Restraint

Appellants next argue that their indictment, arrest and search and seizure constituted an unconstitutional prior restraint on their First Amendment rights in that a seizure of allegedly obscene publications is prohibited without a prior adversary proceeding on the issue of obscenity.

We need not reach this question because the materials seized from appellant Miller at the time of his arrest were not among those found by the jury to be obscene. Appellants were in no way prejudiced by the search and seizure.

We find no constitutional or other infirmities in the indictment or arrest, made with a warrant. Appellants assert that the entire procedure violated the rule against seizures prior to a determination of obscenity announced in a Quantity of Copies of Books v. Kansas, 378 U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964), but we agree with the Second Circuit that this case should not be read 'to proscribe the application of the ordinary methods of initiating criminal prosecution to obscenity cases.' United States v. Wild, 422 F.2d 34, 38 (2d Cir. 1969), reh. denied, 422 F.2d 38 (2d Cir. 1970). 2

Page 658

(3) Whether 'The Name Is Bonnie' is obscene

Appellants do not challenge the jury's implied finding of obscenity of the books, 'Restless Love' and 'Misfortunes of Mary,' but contend that the magazine, 'The Name Is Bonnie,' is not obscene as a matter of law.

'The Name Is Bonnie' is a forty-eight page publication containing forty-five pages of nude photographs of the same female model, twenty-four in color. It sold for ten dollars. The government's brief accurately described it as follows:

'Each picture is taken on a bed or on the floor next to a bed. The camera is always focused on the model's vulva. There is an obvious effort to reveal as much as possible of the vulva, perineal and anal area by means of contrived and awkward legs apart poses. In many photographs, the model uses her arms to brace her legs as...

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31 practice notes
  • 533 F.2d 192 (5th Cir. 1976), 75-3009, United States v. Linetsky
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 9 Junio 1976
    ...In an attempt to protect its interests in the prosecution the government offered three advertisements from the case of Miller v. U.S. 431 F.2d 655 (CA9, 1970). On August 12 Judge Hill found that the objectionable materials were as a matter of law not obscene and granted the motion to dismis......
  • 556 F.2d 978 (9th Cir. 1977), 74-1308, United States v. Elkins
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 8 Julio 1977
    ...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 f......
  • 407 F.Supp. 376 (N.D.Ala. 1976), Civ. A. 75-G-2075, Paper Back Mart v. City of Anniston, Alabama
    • United States
    • Federal Cases United States District Courts 11th Circuit Northern District of Alabama
    • 26 Enero 1976
    ...Cir. 1973); Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972); United States v. Young, 465 F.2d 1096 (9th Cir. 1972); Miller v. United States, 431 F.2d 655 (9th Cir. 1970); United States v. Wild 422 F.2d 34 (2nd Cir. 1969), cert. denied 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971); United......
  • 18 Cal.App.3d 172, 19410, People v. Stout
    • United States
    • California California Court of Appeals
    • 18 Junio 1971
    ...there was no seizure of allegedly offending material, the question of prior restraint simply does not arise. (Miller v. United States, 431 F.2d 655, 657 (9th Cir. 1970).) Finally, appellant seeks to escape the ambit of section 311.2 by contending that he was merely a 'motion picture operato......
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31 cases
  • 533 F.2d 192 (5th Cir. 1976), 75-3009, United States v. Linetsky
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 9 Junio 1976
    ...In an attempt to protect its interests in the prosecution the government offered three advertisements from the case of Miller v. U.S. 431 F.2d 655 (CA9, 1970). On August 12 Judge Hill found that the objectionable materials were as a matter of law not obscene and granted the motion to dismis......
  • 556 F.2d 978 (9th Cir. 1977), 74-1308, United States v. Elkins
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • 8 Julio 1977
    ...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 f......
  • 407 F.Supp. 376 (N.D.Ala. 1976), Civ. A. 75-G-2075, Paper Back Mart v. City of Anniston, Alabama
    • United States
    • Federal Cases United States District Courts 11th Circuit Northern District of Alabama
    • 26 Enero 1976
    ...Cir. 1973); Krahm v. Graham, 461 F.2d 703 (9th Cir. 1972); United States v. Young, 465 F.2d 1096 (9th Cir. 1972); Miller v. United States, 431 F.2d 655 (9th Cir. 1970); United States v. Wild 422 F.2d 34 (2nd Cir. 1969), cert. denied 402 U.S. 986, 91 S.Ct. 1644, 29 L.Ed.2d 152 (1971); United......
  • 18 Cal.App.3d 172, 19410, People v. Stout
    • United States
    • California California Court of Appeals
    • 18 Junio 1971
    ...there was no seizure of allegedly offending material, the question of prior restraint simply does not arise. (Miller v. United States, 431 F.2d 655, 657 (9th Cir. 1970).) Finally, appellant seeks to escape the ambit of section 311.2 by contending that he was merely a 'motion picture operato......
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