Aрpellant Lakin was charged by information with selling an obscene magazine entitled Three in the Dark in violation of D.C.Code 1973, § 22-2001 (a)(1)(A). Appellant Plummer was charged with possession of copies of that magazine with intent to disseminate them in contravention of § 22-2001(a)(1)(E). 1 On May 23, 1973, they were tried jointly without a jury. The trial court found appellants guilty as charged. 2 Appellants level a constitutional challenge at the court’s finding that the magazine was obscene, and claim additional error in the findings that each of them possessed the requisite knowledge of the character of the publication. We find no error in the determination that the material was obscene and uphold the constitutionality of the statute. We also conclude that the findings of appellants’ knowledge are supported by the evidence.
On the evening of September 23, 1972, a Metropolitan Police Morals Division officer entered an “adult” bookstore at 413 Ninth Street, N.W., to determine if the store were selling the magazine Three in the Dark. The police previously had made arrests in other adult bookstores for possession of that magazine. Shortly after entering the store, the officer observed two copies of it on display. Each was encased in a sealed cellophane wrapper. He bought one from the clerk, who wаs appellant Lakin. Appellant Plummer was not there at the time.
Four days later, another officer went to the store with an arrest warrant for appellant Lakin and a search warrant for the premises. The officer inquired as to who was the manager. Appellant Plummer, one of the men then present in the store, replied that he was. The officer advised Plummer of the search warrant. After arresting Lakin, the officer searched the establishment. He discovered empty cellophane casings, as well as a device used to place them around the various publications available for sale. He also found and seized four more copies of Three in the Dark. At that point he arrested Plummer.
Following the trial, at which both sides contested the social value and literary merit of the publication, the trial court deferred judgment until the Supreme Court decided
Miller v. California,
I
Appellants’ main contention is that they were denied their constitutional rights under the First and Fifth Amendments in the application of both (or еither)
Roth-Memoirs
and
Miller
to § 22-2001 (a). They argue first that conviction under the former was improper because that test was explicitly “abandoned as unworkable” in
Miller v. California,
We note first that the procedure followed by the trial court,
i. e.,
suspending final judgment pending the Supreme Court’s decision in
Miller
аnd then applying both obscenity tests, was both wise and proper.
See, e. g., United States v. Sherpix, Inc.,
*995
Appellants’ contention that the application of the
Roth-Memoirs
standard was improper because the Supreme Court abandoned it in
Miller
is without merit. The Court in
Miller
reformulated and clarified a definition of obscenity which had proved difficult to apply. The Court indicated dissatisfaction with the
Roth-Memoirs
standard because it imposed a greater burden on the regulation of obscene materials than was required by the Constitution.
6
However, at no point did the
Miller
Court reject the
Roth-Memoirs
test as constitutionally infirm or cast doubt upon the validity of convictions based thereon.
See Hamling v. United States, supra,
Appellants also contend that § 22-2001(а) is unconstitutionally vague on its face under the second Miller guideline, in that it does not specifically define the sexual conduct the depiction or description of which is proscribed. They urge further that it was improper for the trial court to cure any alleged vagueness by applying the Miller gloss to the statutory language. We disagree.
The Supreme Court made it clear that the
Miller
decision “was not intended to hold all state statutes inadequate, and [it] clearly recognized that existing statutes ‘as construed heretofore or hereafter, may well be adequate.' ”
Hamling v. United States,
supra, at 112-13,
(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
(b) Patently offensive representations or descriptions of masturbation, excretory functions and lewd exhibitions of the genitals. [Miller v. California, supra,413 U.S. at 25 ,93 S.Ct. at 2615 .]
The Supreme Court thereby negated the petitioners’ assertions of vagueness.
*996
In
Retzer v. United States,
D.C.App.,
. . .(a) ... “the average person, applying contemporary community standards” would find the work, taken as a whole, appeals to the prurient interest . . .; (b) . . . the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable [local] law; and (c) ... the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. [Miller v. California, supra,413 U.S. at 24 ,93 S.Ct. at 2615 . (Citations omitted.)]
Moreover, we now construe, as did the trial court, the second element of this guideline,
i.e.,
the specifically defined sexual conduct, to be limited to the examples of “hard core” conduct enumerated in
Miller
and cited above.
8
So construed, the statute meets the constitutional requirement of definiteness.
See Hamling v. United States, supra,
Alternatively, appellants argue that even if the statutory vagueness was cured by judicial construction, it was unconstitutional to apply the Miller standards to them. It is a fundamental principle that a person must have notice of what conduct is proscribed before he may be held criminally liable therefor. Accordingly, appellants argue that since the offenses at issue predated the Court’s decision in Miller, the retroactive application of the Miller guidelines to them deprived them of their due process right to notice, and violated the constitutional prohibition against ex post facto laws.
Their contentions are neither novel nor valid. In rejecting an identical argument regarding the ban on
ex post facto
laws, the federal court of appeals for this circuit pointed out recently that the prohibition of such laws has no applicаbility to a situation such as that presented here, where the law retroactively applied has been modified by judicial construction rather than by legislative enactment.
United States v. Sherpix, Inc., supra,
at 125,
Appellants’ due process argument also is without merit. In a case involving the application of
Miller
standards to
pre-Miller
conduct, the Supreme Court indicated that the listing in
Miller
of specific types of material which might be obscene “did not purport to make criminal . . . conduct which had not previously been thought criminal.” All
Miller
did, the Court stated, was to add a “clarifying gloss” to the statute as previously construed.
Hamling v. United States, supra,
at 116,
That appellants’ conduct was “previously . thought criminal” in this jurisdiction is apparent from a review of the construction of § 22-2001 (a) extant prior to
Miller.
In
Wilhoit v. United States,
D.C.App.,
As a reviewing court is required to do in cases involving “constitutional facts”, we independently have reviewed the material in question and made our own judgment as to whether it is obscene as a matter of law and therefore beyond the scope of First Amendment protection.
Jacobellis
v.
Ohio,
II
Appellants’ second argument challenges their convictions on the ground of alleged infirmities in the statutory and constitutional requirement of scienter. Their contentions are essentially three: (1) the statute is vague on its requirement of knоwledge; (2) the government must prove actual knowledge of the obscene quality of the content by direct evidence; and (3) neither appellants nor anyone else ever could be possessed of the requisite knowledge because “contemporary” community standards are, by definition, those prevail *998 ing at the time of the arrest and are not ascertainable until that moment or thereafter. None of these claims is novel, and they may be dealt with briefly.
Section 22-2001 (a)(2)(B) of the Code states as follows:
For purposes of paragraph (1) of this subsection, the term “knowingly” means having general knowledge of, or reason to know, or a belief or ground for belief which warrants further inspection or inquiry of, the character and content of any article, thing, device, performance, or representation described in paragraph (1) of this subsection which is reasonably susceptiblе of examination.
Appellants do not identify precisely where the vagueness lies. It is not statutorily necessary that appellants knew that the material was obscene, and such knowledge is not constitutionally required.
See Hamling v. United States, supra,
Awareness of the contents and nature of the material neеd not be proven by direct evidence. Circumstantial evidence has been, and remains, satisfactory, providing that its quality and quantity are sufficient to meet the government’s burden of proving scienter beyond a reasonable doubt.
See Smith v. California,
As to appellants’ claim that no one could be on notice of contemporary standards because of their necessarily fluctuating and ephemeral footing, neither the statute nor the Constitution requires this kind of notice. It is sufficient that a defendant be on notice of the character and contents of the material. To compel the government to show their actual knowledge of the legal status of the materials “would permit [appellants] to avoid prosecution by simply claiming that [they] had not brushed up on the law.”
Hamling v. United States, supra,
Appellants’ attack on the scienter requirement also may be read as a challenge to the sufficiency of the evidence directed to that element. We conclude that the trial court’s finding of Lakin’s knowledge is amply supported by the record. Lakin sold the magazine to the officer. Necessarily, he had to look at the publication to ascertain its price. The pricе ($5.00) is exhibited on the front cover, which is dominated by a six-inch-by-eight-inch photograph of three full-length nude mafes, two of who are having their genitals fondled by the third. The back cover is similarly emblazoned with a photograph of the three men, each of whom is engaged in the manual genital stimulation of another. Lakin *999 also was present four days after the sale, when the arrests and search were made. On the basis of this evidence, the triаl court properly could find that Lakin had the requisite knowledge of the character and contents of Three in the Dark to support the conviction.
The evidence of Plummer’s scien-ter also is adequate. He was present in the store, and admitted he was the manager, at the time of the arrests and search. The officer testified that he had seen Plummer in the vicinity of the store’s cash register on at least six prior occasions. Moreover, Plummer’s name appeared as agent and manager on a 1970 application by the corporate owner of the bookstore for an occupancy permit (for different premises) to serve as the corporation’s headquarters. Finally, the search uncovered a device used to encase the various publications in cellophane, along with empty wrappings of the type covering magazines then on the racks, including Three in the Dark. We have held previously that the scienter requirement of the statute may be satisfied by a showing that the person charged has “such knowledge of the material that he should have suspected its sale might violate the law and inspected or inquired further as to its character or content.” Kramer v. United States, supra, at 274. See also Kaplan v. United States, supra, at 479; Morris v. United States, supra, at 339-40. Plummer was present in the store as manager on at least one day when Three in the Dark was offered for sale, with its cover depicting patent obscenity in plain view. The copies of the magazine apparently had been encased in cellophane covers on the premises. From these facts, the trial court permissibly could infer that Plummer was on general notice of the character of the publication and should have inquired further as to its contents. 11
Affirmed.
Notes
. The statute states in pertinent part:
(a) (1) It shall be unlawful in the District of Columbia for a person knowingly-
(A) to sell, deliver, distribute, or providе any obscene, indecedent or filthy writing, picture, sound recording, or other article or representation;
*****
(E) to create, buy, procure, or possess any matter described in the preceding subpara-graphs . . . with intent to disseminate such matter . ...
. Both appellants received sentences of imprisonment for one year, the executions of which were suspended, with two years’ unsupervised probation. Additionally, appellant Lakin was fined $500, and appellant Plummer was fined $1,500.
.
Paris Adult Theatre I v. Slaton,
The procedure followed by the trial court in postponing any findings until after the decisions were rendered in those eases was requested by appellants’ counsel.
The trial judge, upon personally viewing the magazine at the close of the government’s case in chief, did state his belief that the material was “nothing but hard core pornography [with] nothing . . . that remotely contained any kind of social value.” Appellants do not argue, nor do we find, that such an exposition was improper. We have held that, where justified, a trial judge, upon his own examination of the material, may find that it is “obscenity per se” or “hard core pornography” as a matter of law, subject to ap-proprate appellate review.
See Wilhoit v. United States,
D.C.App.,
.
Roth v. United States,
Under the
Roth-Memoirs
test it must be established that “(a) the dominant theme of the material taken as a whole appeals to the prurient interests in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.”
Memoirs v. Massachusetts, supra,
at 418,
. U.S.Const., art. I, § 9, cl. 3.
. In
Miller
the Supreme Court rejected as “unworkable” the
Roth-Memoirs
requirement that the material be shown to be “utterly without redeeming social value”, since his requirement placed on the prosecution “a burden virtually impossible to discharge under our criminal standards of proof.”
Appellants argue also that they were prejudiced by the fact that they were tried on the basis of national community standards, and never had the opportunity to present expert testimony hearing on local community standards as authorized by Miller. Aрpellants could have raised this point when the trial court heard oral argument on the effect of Miller prior to making its findings, but they did not do so. There is no indication that the trial judge would not have entertained guidance on this question if appellants had offered it. Moreover, appellants make no proffer here that the standard they propose differs in any significant way from the standard under which they were adjudged guilty.
. 19 U.S.C. § 1305(a) (1970), (restricting thе importation of obscene or immoral articles) ; 18 U.S.C. § 1461 (1970) (regulating the mailing of obscene materials) ; and 18 U.S.C. § 1462 (1970) (regulating the importation and transportation of obscene materials).
. Congress, of course, may redefine specific “hard core” sexual conduct, assuming no contravention of constitutional limitations.
. We realize that
Three in the Dark,
while made available to the general public over the age of majority, is directed particularly tо the male homosexual community. Consequently, our review of the publication is premised on its prurient appeal primarily to this specific group (as well as to the adult community at large).
See Mishkin v. New York,
. The Supreme Court in
Hamling
affirmed that the Constitution compels proof of two elements with regard to scienter,
i. e.,
(1) “that a defendant had knowledge of the contents of the material” and (2) “that he knew the character and nature of the materials.”
. We do not rule, however, that Plummer, as the manager of the bookstore, had the burden of inspecting the contents of all of the store’s merchandise. The Supreme Court has described the dangers of imposing such a burden on bookstore proprietors:
If the contents of bookshops and periodical stands are restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller’s limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public’s access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller’s self-censorhip, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered. Through it, the distribution of all books, both obscene, and not osbeene, would be impeded. [Smith v. California, supra,361 U.S. at 153-54 ,80 S.Ct. at 219 .]