United States v. John Andrew Jacobs

Before MERRILL and KOELSCH, Circuit Judges, and SWEIGERT, District Judge.

This 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).

Appellant 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 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…