504 F.2d 1012 (5th Cir. 1974), 73-3374, United States v. Wasserman

Docket Nº:73-3374.
Citation:504 F.2d 1012
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Harold WASSERMAN, Car-Mar Enterprises, Inc., and Abraham Linet, d/b/a Ultima Sales Company, Defendants-Appellants.
Case Date:December 09, 1974
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1012

504 F.2d 1012 (5th Cir. 1974)

UNITED STATES of America, Plaintiff-Appellee,

v.

Harold WASSERMAN, Car-Mar Enterprises, Inc., and Abraham

Linet, d/b/a Ultima Sales Company, Defendants-Appellants.

No. 73-3374.

United States Court of Appeals, Fifth Circuit

December 9, 1974

Page 1013

        Edwin M. Rosendahl, Beverly Hills, Cal., R. James George, Jr., Austin, Tex., for defendants-appellants.

        William Sessions, U.S. Atty., Jeremiah Handy, W. Ray Jahn, Asst. U.S. Attys., San Antonio, Tex., for plaintiff-appellee.

        Before BROWN, Chief Judge, and GODBOLD and RONEY, Circuit Judges.

        GODBOLD, Circuit Judge:

        After a jury trial, appellants were convicted of violations of the federal statute prohibiting mailing of obscene material, 18 U.S.C. 1461. The issues presented by this appeal may be summarized:

        (1) Under United States v. Thevis, 484 F.2d 1149 (CA5, 1973), cert. denied, 418 U.S. 932, 94 S.Ct. 3222, 41 L.Ed.2d 1170 (1974), and the requirements of the due process clause, did the District Court err in applying the obscenity standards of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), in a trial for allegedly criminal acts which occurred before the decision in Miller was handed down?

        (2) Did the District Court err in instructing the jury that 'community standards' were measured by the geographic area constituting the Western District of Texas where the government, in response to appellants' motion for bill of particulars, had stated that the 'community standards' were to be determined on the basis of the nation as a whole?

        (3) Did the District Court err in failing to admit films and magazines comparable to those at issue in this prosecution and which had previously been found not obscene by previous court decisions?

        (4) Did the District Court err in instructing the jury that there was evidence of pandering?

        (5) Did the District Court err in refusing to dismiss this prosecution when such prosecution was contrary to a Department of Justice policy memorandum?

        1. The retroactivity of Miller

        Appellants' allegedly criminal conduct occurred during the period from November 24, 1970, to January 13, 1972, and appellants were indicted June 15, 1972. During this period from November 24, 1970 to indictment, the constitutional standards for the regulation of obscenity were those established by the Supreme Court in 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). 1 On June 21, 1973, subsequent to appellants' indictment, the Supreme

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Court handed down a series of opinions 2 which reformulated the definition of obscenity. 3 At the trial, which commenced July 23, 1973, the District Court employed the new 1973 Miller definition of obscenity rather than the older Roth-Memoirs definition, which action, appellants contend, was contrary to United States v. Thevis, supra, and violated the due process clause. 4

        Although the facts of Thevis are similar to the facts in the present case, there is an important distinction with respect to the timing of the Miller decision in relation to the progress of the respective prosecutions. In Thevis the criminal acts were committed, the defendants were indicted, and the trial took place, all prior to the Miller decision. Accordingly the defendants received a trial employing the Roth-Memoirs standards, the only standard in existence at the time of trial. After trial, however, Miller was handed down, and this court determined that defendants were to receive on appeal all the benefits of the Miller decision. The court stated:

        No one is (to be) convicted under earlier extant standards if they are more restrictive of pornography than those in Miller . . .. We shall consider both the Miller and Memoirs definitions of obscenity.

        484 F.2d at 1155. Thus Thevis held that where a defendant was tried under Roth-Memoirs standards, on appeal he may obtain any benefits to be derived from the recent Miller decision. 5 In the present case by contrast, Wasserman and his co-defendants were tried under the Miller standard, and they contend that this ex post facto application of a new obscenity standard to pre-Miller acts was improper. Thevis thus has no direct application here.

        Despite this factual difference, Thevis does, by applying solely the benefits of Miller, refuse to apply retroactively the detriments of Miller. Conceivably this court, on appeal, could have applied the complete Miller test in place of the Roth-Memoirs test. Such a course was rejected 6 and has been rejected by other courts. 7 Thus, although factually distinguishable, Thevis does offer some support for appellants' position.

        Appellants' position is further supported by United States v. Jacobs (CA9, 1974), the one circuit court opinion deciding the issue of the retroactivity of Miller. 8 In Jacobs the court held that 'due process fairness bars the retroactive

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judgment of his conduct using the expanded definition, and the conviction cannot stand.' We think Jacobs is correct.

        The constitutional prohibition against ex post facto applications of law, U.S. Constitution, Article I, 9, has no application to the present case since it is solely concerned with federal legislation which makes criminal conduct previously not classified as criminal. It does not apply to judicial interpretations of legislation. See James v. United States, 366 U.S. 213, 247-248, 81 S.Ct. 1052, 1070-1071, 6 L.Ed.2d at 246, 269-270 (1961) (separate opinion of JJ. Harlan and Frankfurter). Nevertheless, the policy considerations which support a prohibition against the ex post facto application...

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