Miller v. United States, No. 23935.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBARNES, KILKENNY and TRASK, Circuit
Citation431 F.2d 655
PartiesMarvin MILLER, Covina Publishing, Inc., a corporation doing business as Collector's Publications, Appellants, v. UNITED STATES of America, Appellee.
Decision Date26 October 1970
Docket NumberNo. 23935.

431 F.2d 655 (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.

September 16, 1970.

Rehearing Denied October 26, 1970.


431 F.2d 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.
431 F.2d 657
1877." 354 U.S. at 491, 77 S.Ct. at 1312 (footnote omitted).

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

431 F.2d 658

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

Appellants do not challenge the jury's...

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32 practice notes
  • U.S. v. Womack, Nos. 71--1711
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 7, 1972
    ...courts, compare Kahm v. United States, 300 F.2d 78, 84 (5th Cir. 1962) (admits evidence without discussion) with Miller v. United States, 431 F.2d 655, 659 (9th Cir. 1970) (excludes without discussion). See also, Annotation, 'Modern Concept of Obscenity,' 5 A.L.R.3d 1158, 1195 § 16(b) (1966......
  • Stroud v. State, No. 570S107
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1971
    ...Mississippi (D.C.1970), 309 F.Supp. 527 at 529; Karp v. Collins (D.C.1970), 310 F.Supp. 627 at 638; Miller v. United States (9 Cir. 1970), 431 F.2d 655 at We will next consider appellant's contention that Burns' Ind.Stat.Ann. sec. 10--2803, supra, is 'unconstitutional as applied' to the fac......
  • Huffman v. United States, No. 23781
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 7, 1971
    ...986, 91 S.Ct. 1644, 29 L.Ed.2d 152, reh. denied, 403 U.S. 940, 91 S.Ct. 2242, 29 L.Ed.2d 720 (1971). 6 See also Miller v. United States, 431 F.2d 655 (9th Cir. 1970); United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970). But see United States v. Alexander, 428 F.2d 1169 (8th Cir. 1970); C......
  • United States v. Groner, No. 71-1091.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 28, 1972
    ...1965, 350 F.2d 155 (good discussion of possibility that national standard is required). Contra Miller v. United States, 9th Cir. 1970, 431 F.2d 655; California v. Luros, 4 Cal. 3d 84, 92 Cal.Rptr. 833, 480 P.2d 633 (Cal.1971); Mitchum v. Tennessee, 10 Crim.L.Rptr. 2079 (Tenn.Crim.App. 1971)......
  • Request a trial to view additional results
32 cases
  • U.S. v. Womack, Nos. 71--1711
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • December 7, 1972
    ...courts, compare Kahm v. United States, 300 F.2d 78, 84 (5th Cir. 1962) (admits evidence without discussion) with Miller v. United States, 431 F.2d 655, 659 (9th Cir. 1970) (excludes without discussion). See also, Annotation, 'Modern Concept of Obscenity,' 5 A.L.R.3d 1158, 1195 § 16(b) (1966......
  • Stroud v. State, No. 570S107
    • United States
    • Indiana Supreme Court of Indiana
    • October 15, 1971
    ...Mississippi (D.C.1970), 309 F.Supp. 527 at 529; Karp v. Collins (D.C.1970), 310 F.Supp. 627 at 638; Miller v. United States (9 Cir. 1970), 431 F.2d 655 at We will next consider appellant's contention that Burns' Ind.Stat.Ann. sec. 10--2803, supra, is 'unconstitutional as applied' to the fac......
  • Huffman v. United States, No. 23781
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 7, 1971
    ...986, 91 S.Ct. 1644, 29 L.Ed.2d 152, reh. denied, 403 U.S. 940, 91 S.Ct. 2242, 29 L.Ed.2d 720 (1971). 6 See also Miller v. United States, 431 F.2d 655 (9th Cir. 1970); United States v. Fragus, 428 F.2d 1211 (5th Cir. 1970). But see United States v. Alexander, 428 F.2d 1169 (8th Cir. 1970); C......
  • United States v. Groner, No. 71-1091.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • March 28, 1972
    ...1965, 350 F.2d 155 (good discussion of possibility that national standard is required). Contra Miller v. United States, 9th Cir. 1970, 431 F.2d 655; California v. Luros, 4 Cal. 3d 84, 92 Cal.Rptr. 833, 480 P.2d 633 (Cal.1971); Mitchum v. Tennessee, 10 Crim.L.Rptr. 2079 (Tenn.Crim.App. 1971)......
  • Request a trial to view additional results

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