United States v. Robert Elkins and Paul David Novick, Dba Movieland Distributors

The defendants were indicted for interstate shipment on January 19, 1973, of alleged obscene films, in violation of 18 U.S.C. § 1462 . The indictment was dismissed on the motion of the defendants on the ground that 18 U.S.C. § 1462 could not constitutionally be applied to conduct occur ring before June 21, 1973, the date of the decision of the Supreme Court in Miller v. California, 413 U.S. 15 , 93 S.Ct. 2607 , 37 L.Ed.2d 419 (1973).

At argument of the appeal, it appeared that en banc consideration had been requested in certain obscenity cases pending in 1974 before this court. In July 1974 we deferred submission pending the result on the en banc decision, citing a series of pending cases. Thereafter, the en banc request failed to secure a majority of the court and, thus, no en banc consideration occurred.

Various of the pending cases cited in our July 1974 order moved on to finality. In United States v. Miller, 455 F.2d 899 (9 Cir. 1972), convictions under 18 U.S.C. § 1461 had been affirmed. The judgment was vacated in Miller v. California, supra, and remanded for reconsideration. In United States v. Miller, 505 F.2d 1247 (9 Cir. 1974), the convictions were reaffirmed by…