(dissenting).
I respectfully dissent. Appellants contend that their convictions under 18 U.S.C. §§ 371, 1465 should be reversed because the district judge erroneously gave a Miller instruction. They contend that the issue whether the films are obscene should have been decided under the Roth-Memoirs standard because the films were seized before the Supreme Court decided Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Three circuits have considered the same issue and have determined that Miller expanded the field of potential criminal liability and that it would be unfair to hold defendants’ conduct criminal by a retroactive application of Miller. See United States v. Jacobs, 513 F.2d 564 (9th Cir. 1974), United States v. Sherpix, 512 F.2d 1361 (D.C.Cir. 1975) (cases holding that Miller instruction for pre-Miller conduct was a denial of due process), and United States v. Wasserman, 504 F.2d 1012 (5th Cir. 1974) (retroactive application of Miller is inappropriate without substantial justification outweighing ex post facto considerations).
The majority opinion holds that the films in question are obscene under either the Roth-Memoirs formula or the Miller formula and it accordingly does not reach the issue whether Miller is an appropriate standard. If the jury had been given both the Miller and the Roth-Memoirs instructions, we could view the *923films and determine whether the jury’s verdict that they were obscene was permissible. Jenkins v. Georgia, 418 U.S. 153, 94 S.Ct. 2750, 41 L.Ed.2d 642 (1974). However, since the jury was not given the Roth-Memoirs instruction (“utterly without redeeming social value”), to speculate on our view 1 of the films how the jury might have decided the case if it had been given the proper instructions would deny the right of trial by jury. I agree with the opinions rendered by unanimous panels in the District of Columbia, the Fifth, and the Ninth Circuits holding the retroactive application of Miller to be improper. I would reverse the convictions.
. Although the challenged films were lodged with the court as exhibits, the majority of the panel decided that an examination of them was not necessary for decision. Accordingly, the films were not seen by any member of the panel.