United States v. Thomas Venest Henson, AKA Tom Vinnie Henson, and George Victor Abisalih, AKA George Abbey, Dba "Associated Theaters of Texas"

On Petition for Rehearing

Before ELY and GOODWIN, Circuit Judges, and MURRAY, District Judge.

In an indictment filed on January 10, 1973, the appellants were charged with having transported allegedly obscene films in interstate commerce, a violation of 18 U.S.C. § 1462 . The appellants were tried before a jury and convicted shortly before the Supreme Court announced its opinions in Miller v. California, 413 U.S. 15 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973), and United States v. 12 200-ft. Reels of Film, 413 U.S. 123 , 93 S.Ct. 2665 , 37 L.Ed.2d 500 (1973).

In our original opinion in this case, filed on October 5, 1973, and reported in slip opinion form only, we vacated the appellants’ convictions and remanded the case to the District Court for reconsideration in the light of Miller v. California and its companion cases. We now vacate .and withdraw our opinion of October 5, 1973. The Government’s Petition for Rehearing, addressed to our original opinion, is granted so as to enable us to consider the impact on this appeal of Hamling v. United States, 418 U.S. 87 , 94 S.Ct. 2887 , 41 L.Ed.2d 590 (1974), United States v. Dachsteiner, 518 F.2d 20 (9th Cir. 1974), and United…