United States v. Jacobs

¶3OPINION

¶4Before MERRILL and KOELSCH, Circuit Judges, and SWEIGERT,* District Judge.

¶5KOELSCH, Circuit Judge:

¶6This is another permutation in the complicated maze created by the Supreme Court’s reformulation of the boundary line between protected speech and unprotected obscenity in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).

¶7Appellant John Andrew Jacobs was indicted, tried, and convicted for violation of 18 U.S.C. § 1462 (knowingly receiving an obscene film transported in interstate commerce) after June 23, 1973, the date on which the Supreme Coui’t rendered the decision in Miller. The date of the alleged offense, however, was May 10, 1973, before Miller was decided. The jury which convicted appellant was instructed using the definition of “obscenity” enunciated in Miller, rather than the Roth-Memoirs 1 definition which preceded it. Appellant argues that the Miller definition expanded the area of unprotected speech which is now made subject to criminal sanction under § 1462, and that retroactive application of such expanded standards to his conduct was effectively the application of ex post facto law, violating his due process right to notice of the conduct proscribed. As we agree that the Roth-Memoirs gloss on “obscenity” did not give appellant adequate notice that his conduct would be judged by the expanded standard ultimately applied, we reverse his conviction.

¶8Before Miller was decided, § 1462 made criminal, under the Roth-Memoirs definition of “obscenity,” the knowing receipt of a film from interstate commerce if:

“(a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly wihout redeeming social value.” 383 U.S. at 418, 86 S.Ct. at 977.

¶9After Miller, appellant’s act was criminal if:

“(a) . . . ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest . . . ; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) . . . the *566work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” 413 U.S. at 24, 93 S.Ct. at 2615.

¶10We think it is beyond controversy that the third prong of the Miller test expanded the field of potential criminal liability; indeed, the test was explicitly adopted to ease the prosecutor’s burden. Miller, at 22, 93 S.Ct. 2607. When appellant received the film, he would have thought the act proscribed if he thought a jury would ultimately decide that the film was “utterly without redeeming social value.” He could not have known that it was a crime to receive a pruriently interesting film which a jury might later determine to be lacking in “serious literary, artistic, political or scientific value.” As appellant lacked notice of the subsequent expansion of the statute, due process fairness bars the retroactive judgment of his conduct using the expanded definition, and the conviction cannot stand.

“Indeed, an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law, such as Art. I, § 10, of the Constitution forbids. An ex post facto law has been defined by this Court as one ‘that makes an action done before the passing of the law, and which was innocent, when done, criminal; and punishes such action,’ of ‘that aggravates a crime or makes it greater than it was, when committed.’ Calder v. Bull, 3 Dali. 386, 390, 1 L.Ed. 648. If a state legislature is barred by the Ex Post Fac-to Clause from passing such a law, it must follow that a State Supreme Court is barred by the Due Process Clause from achieving precisely the same result by judicial construction. Cf. Smith v. Cahoon, 283 U.S. 553, 565, 51 S.Ct. 582, 75 L.Ed. 1264. The fundamental principle that ‘the required criminal law must have existed when the conduct in issue occurred,’ Hall, General Principles of Criminal Law (2d ed. 1960), at 58-59, must apply to bar retroactive criminal prohibitions emanating from courts as well as from legislatures. If a judicial construction of a criminal statute is ‘unexpected and indefensible by reference t'o the law which had been expressed prior to the conduct in issue,’ it must not be given retroactive effect.”

¶11Bouie v. City of Columbia, 378 U.S. 347, 353-354, 84 S.Ct. 1697, 1702, 1703, 12 L.Ed.2d 894 (1964) (footnote omitted). See United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954); Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888 (1939) ; Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926).2

¶12*567Moreover, appellant’s entitlement to have his conduct judged by the more favorable pr e-Miller test is implicitly mandated by the course followed by the Court in reviewing the pre-Miller conviction of the petitioner in Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The Court ruled that the petitioner was entitled to have his conviction reviewed using any portion of the Miller test which might benefit him, Hamling, supra, at 101-102, 94 S.Ct. at 2900, 41 L.Ed.2d at 611-612, otherwise reviewing his conviction under the more restrictive pre-Miller standards. See Hamling, supra, at 116, 94 S.Ct. at 2907, 41 L.Ed.2d at 620. See United States v. Thevis, 484 F.2d 1149, 1154-1155 (5th Cir. 1973). Should the government elect to retry appellant, he will be entitled to whatever benefit he may derive from the new tests announced in Miller. Otherwise, the instructions must conform to the definition of obscenity obtaining when appellant committed the act with which he is charged.

¶13We turn to those of appellant’s other contentions which are not mooted by the need for a retrial.

¶14Appellant's attack on the constitutionality of 18 U.S.C. § 1462 is now foreclosed by the decision in Hamling.

¶15Appellant’s attack' on the two search warrants is without merit. Read in a common-sense manner, see United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965), the affidavit submitted to the magistrate on May 11, 1973, was sufficient to establish probable cause to believe that a violation of 18 U.S.C. § 1462 had occurred, that the items described were evidence thereof, and that the items were at the place to be searched. The description of the items — “certain documents pertaining to the interstate shipment of obscene materials including way bills, shipping orders, contracts for exhibition, receipts, cancelled bank drafts, and advertising materials and motion picture shipping containers” — was more than sufficient to circumscribe a police officer’s discretion in conducting the search. See United States v. Honore, 450 F.2d 31 (9th Cir. 1971).3 The search warrant issued June 12, 1973, for seizure of the film was also valid. The warrant was issued only after an adversary hearing before a neutral magistrate had established probable cause to believe the movie obscene. See Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973). And the affidavit accompanying the application for the warrant established probable cause to believe that the film had been received from interstate commerce on May 10, 1973.4 Thus, to the extent they are relevant to the specific offense alleged in the indictment, the seized items are admissible.

¶16*568Appellant’s final contention is that, absent an indictment, the magistrate was without statutory jurisdiction to hold a preseizure adversary hearing to determine the probable obscenity of the film, and that therefore no valid adversary hearing was held, the warrant was invalid, and the seized film should be suppressed. We agree with the Second Circuit that F.R.Crim.P. 41, which establishes procedures and requirements for issuance of warrants (procedures which may be employed prior to indictment), may be read here to authorize the magistrate to fashion and employ procedures for determining probable cause for the issuance of the warrant. Perial Amusement Corp. v. Morse, 482 F.2d 515, 521-523 (2d Cir. 1973). See Maizels v. Van Hoomissen, 429 F.2d 982 (9th Cir. 1970) (per curiam) (Chambers, J., concurring).

¶17The judgment of conviction is reversed, and the matter remanded for further proceedings consistent with Hamling and the views expressed herein.