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United States v. Miller

United States Court of Appeals, Ninth Circuit
Aug 31, 1973
482 F.2d 1379 (9th Cir. 1973)

Summary

declining to reach question not raised below or on appeal

Summary of this case from Argonaut Ins. Co. v. Halvanon Ins. Co.

Opinion

No. 71-1850.

August 31, 1973.

Harvey Giss (argued), Isman Giss, Burton Marks, Marks, Sherman Schwartz, Beverly Hills, Cal., for defendants-appellants.

Brian J. O'Neill, Asst. U.S. Atty. (argued), Robert L. Meyer, U.S. Atty., David R. Nissen, Michael Heuer, Asst. U.S. Attys., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; William P. Gary, Judge.

Before CHAMBERS, KOELSCH and CARTER, Circuit Judges.


ORDER

The Supreme Court, on June 26, 1973, vacated the judgment in the above case and remanded it to this court for reconsideration. ___ U.S. ___, 93 S.Ct. 3042, 37 L.Ed.2d 1023.

We reaffirm the convictions and adopt our previously reported opinion in 4 Cir., 455 F.2d 899, on the authority of Miller v. California, ___ U.S. ___, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and United States v. 12 200-Ft. Reels of Super 8mm Film (No. 70-2), ___ U.S. ___, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973).

The question of whether a local or a national standard should be applied in this federal prosecution under 18 U.S.C. § 1461 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 appealed 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.

United States v. One Reel of Film (1 Cir. 1973) 481 F.2d 206, indicates that on a prosecution for forfeiture of obscene material under 19 U.S.C. § 1305(a), a national standard would be necessary, even though United States v. 12 200-Ft. Reels of Super 8mm Film, ___ U.S. ___ at ___, 93 S.Ct. 2665 at 2670 (1973) states: "These standards [Miller v. United States, ___ U.S. ___, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)] are applicable to federal legislation."

In view of Paris Adult Theatre I v. Slaton, ___ U.S. ___, ___, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) which holds that expert testimony is not necessary, and the fact that the question was not raised below or on appeal in this case, and the fact that the material in each count is clearly obscene under either a local or a national standard, we do not reach the question here.

The convictions are reaffirmed.


Summaries of

United States v. Miller

United States Court of Appeals, Ninth Circuit
Aug 31, 1973
482 F.2d 1379 (9th Cir. 1973)

declining to reach question not raised below or on appeal

Summary of this case from Argonaut Ins. Co. v. Halvanon Ins. Co.
Case details for

United States v. Miller

Case Details

Full title:UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. MARVIN MILLER ET AL.…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 31, 1973

Citations

482 F.2d 1379 (9th Cir. 1973)

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