United States v. Thomas Justin Millican, Ind. And D/B/A Hip Magazine

Fifth Circuit

United States v. Thomas Justin Millican, Ind. And D/B/A Hip Magazine

487 F.2d 331, 1973 U.S. App. LEXIS 7459

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 18, 1973

Docket73-1734

StatusPublished

Cited by10 cases

This text of 487 F.2d 331 (United States v. Thomas Justin Millican, Ind. And D/B/A Hip Magazine) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Thomas Justin Millican, Ind. And D/B/A Hip Magazine, 487 F.2d 331, 1973 U.S. App. LEXIS 7459 (5th Cir. 1973).

Pincite

Opinion

PER CURIAM:

The appellant, publisher of HIP magazine, was convicted in a non-jury trial on two counts of using the mails to distribute obscene material in violation of 18 U.S.C.A. § 1461. The defendant used the mails for delivery of HIP magazine which carried an advertisement for the film “In Deep” which the trial judge found to be obscene. The film was ordered and received through the mails by a postal inspector, using an alias under which he had entered a subscription for HIP magazine. In light of our recent decision in United States v. Thevis, 5 Cir., 1973, 484 F.2d 1149 we find the trial judge made a proper determination regarding the film’s obscenity and we affirm the conviction.

El] The appellant testified that he did not deal in films and upon receiving this order from an inspector, he went to a local book store, purchased the film, sight unseen, and then mailed it as requested. Even if we accept the fact that Millican did not see the film prior to mailing it, there is ample evidence to establish the existence of requisite knowledge that Millican was aware of the contents of the film since it need not *332 be shown that he knew such contents were in fact legally obscene. Thevis, supra.

After reviewing the film, we agree that the District Judge made a proper determination regarding the film’s obscenity. As Thevis delineates, the proper review procedure for determining whether pre-Miller, 1973, 413 U. S. 15, 93 S,Ct. 2607, 37 L.Ed.2d 419 material is obscene is to test the material under both Memoirs, 1966, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, and Miller. This procedure avoids an ex post facto application of Miller and keeps Memoirs intact for the purposes of judging offenses committed prior to the Supreme Court decision in Miller. Unless the material is judged to be obscene under both Memoirs and Miller there can be no conviction. Since we have concluded that the film is obscene under both Miller and Memoirs, the decision of the District Court is affirmed.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

The appellant, publisher of HIP magazine, was convicted in a non-jury trial on two counts of using the mails to distribute obscene material in violation of 18 U.S.C.A. § 1461. The defendant used the mails for delivery of HIP magazine which carried an advertisement for the film “In Deep” which the trial judge found to be obscene. The film was ordered and received through the mails by a postal inspector, using an alias under which he had entered a subscription for HIP magazine. In light of our recent decision in United States v. Thevis, 5 Cir., 1973, 484 F.2d 1149 we find the trial judge made a proper determination regarding the film’s obscenity and we affirm the conviction.

El] The appellant testified that he did not deal in films and upon receiving this order from an inspector, he went to a local book store, purchased the film, sight unseen, and then mailed it as requested. Even if we accept the fact that Millican did not see the film prior to mailing it, there is ample evidence to establish the existence of requisite knowledge that Millican was aware of the contents of the film since it need not *332 be shown that he knew such contents were in fact legally obscene. Thevis, supra.

After reviewing the film, we agree that the District Judge made a proper determination regarding the film’s obscenity. As Thevis delineates, the proper review procedure for determining whether pre-Miller, 1973, 413 U. S. 15, 93 S,Ct. 2607, 37 L.Ed.2d 419 material is obscene is to test the material under both Memoirs, 1966, 383 U.S. 413, 86 S.Ct. 975, 16 L.Ed.2d 1, and Miller. This procedure avoids an ex post facto application of Miller and keeps Memoirs intact for the purposes of judging offenses committed prior to the Supreme Court decision in Miller. Unless the material is judged to be obscene under both Memoirs and Miller there can be no conviction. Since we have concluded that the film is obscene under both Miller and Memoirs, the decision of the District Court is affirmed.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

487 F.2d 331, 1973 U.S. App. LEXIS 7459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thomas-justin-millican-ind-and-dba-hip-magazine-ca5-1973.

Opinion

Related

Cite This Page — Counsel Stack