United States v. Powell Petition and Briefs
Public Court Documents
January 1, 1976

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Brief Collection, LDF Court Filings. United States v. Powell Petition and Briefs, 1976. 0d6774c4-c79a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/d15d9b27-95fe-4e54-91b9-fb8ac4104a6b/united-states-v-powell-petition-and-briefs. Accessed June 17, 2025.
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The Supreme Court of the United States United States of America versus Josephine M. Powell Petition and Briefs Law Reprints Criminal Law Series vol. 7, no. 2 1975/1976 Term 3tt % Bnpxmt (tart of % Hotted Sfcrtw October T er m , 1974 U n it e d S tates of A m erica , petitio n er v. J o se p h in e M. P ow ell PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Robert H. Bork, Solicitor General, John C. Keeney, Acting Assistant Attorney General, F rank H. Easterbrook, Assistant to the Solicitor General, Jerome M. F eit, Richard S. Stolker, Attorneys, / Department of Justice, Washington, D.C. 20530. 3ht % Bnpttm (Ciutrt xtf % llmtefc B’tatrs October T erm , 1974 No. U nited States of A m erica , petitioner v. J o se ph in e M. P owell PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT The Solicitor General, on behalf of the United States, petitions for a w rit of certiorari to review the judgment of the United States Court of Appeals for the Ninth Circuit in this case. OPINION BELOW The opinion of the court of appeals (App. A, infra) is reported a t 501 F.2d 1136. JURISDICTION The judgment of the court of appeals (App. B, infra) was entered on August 7, 1974. The court of appeals perm itted the government to file an untimely petition for rehearing and suggestion for rehearing (1) 1 2 en banc (App. C, infra), and it was denied on No vember 21, 1974 (App. D, infra). By order of De cember 13, 1974, Mr. Justice Douglas extended the time for filing a petition for a w rit of certiorari to and including January 20, 1975. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED W hether a statute prohibiting the mailing of fire arms “capable of being concealed on the person” is unconstitutionally vague on its face. STATUTE AND REGULATION INVOLVED 18 U.S.C. 1715 provides in relevant p a rt: Pistols, revolvers, and other firearms capable of being concealed on the person are nonmailable and shall not be deposited in or carried by the mails or delivered by any officer or employee of the Postal Service. Such articles may be con veyed in the mails, under such regulations as the Postal Service shall prescribe, [to enumerated recipients]. * * * 39 C.F.R. 124.5 provides in relevant p a rt: (a) Nonmailable firearms. (1) Pistols, revolv ers, and other similar firearms capable of being concealed on the person, addressed to persons other than those indicated in § 124.5(b), are nonmailable. * * * * * (4) The phrase “all other firearms capable of being concealed on the person” includes, but is not limited to, short-barreled shotguns, and short- barreled rifles. 2 3 (5) The term “short-barreled shotguns” means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches. A short- barreled shotgun of greater dimensions may also be regarded as nonmailable when they [sic] have characteristics allowing them to be con cealed on the person. * * * * * STATEMENT On February 28, 1973, Mrs. Theresa Bailey re ceived in the mail a package addressed to her resi dence in Tacoma, Washington, and mailed from Spokane, Washington (Tr. 7-10, 14). This package contained two shotguns, shotgun shells and hacksaw blades (Tr. 14). Mrs. Bailey, not knowing who had sent the package, contacted her husband, an inmate in McNeil Island Federal Penitentiary (Tr. 6, 7 ) .1 He assured her that he had not sent, and had no knowledge of, the package (Tr. 20). The contents of the package were turned over to an agent of the Federal Bureau of Investigation and an official of the penitentiary (Tr. 21-22). An in vestigation disclosed tha t one of the shotguns had been purchased by respondent in Spokane on Feb ruary 21, 1973 (Tr. 266-267), and that the other had been purchased on the same date by a woman meet- 1 1 Respondent’s common law husband, Travis Powell, also was incarcerated in McNeil Island (Tr. 460, 466). 3 4 ing the general description of respondent (Tr. 277- 282). On March 9, 1978, Mrs. Bailey received a telephone call from an unknown woman, advising her tha t “a second package was coming, and it was a mistake” (Tr. 24). The caller requested Mrs. Bailey to give the second package to “Sally”, but Mrs. Bailey re sponded that she “did not have an address or any way of giving it to Sally” (ibid.). An investigation determined that this telephone call had been placed from respondent’s residence in Spokane (T r. 263, 328, 501). Mrs. Bailey received the second package in the mail on March 13 (Tr. 25-26). She gave the package to the investigating agents without opening it (Tr. 58, 110); the return address was that of respondent (Tr. 28, 229, 262, 501).2 This second package con tained a sawed-off shotgun with a barrel length of 10 inches and an overall length of 22% inches (Tr. 339), together with two boxes of shotgun shells. Respondent was indicted on a single count of mail ing a firearm capable of being concealed on the per son, in violation of 18 U.S.C. 1715. She was con victed a fte r a jury tria l in the United States District Court for the E astern D istrict of Washington and sentenced to a term of two years’ imprisonment. The court of appeals reversed (App. A, infra). In a brief opinion, the court concluded that the pro 2 A handwriting expert testified that, in his opinion, re spondent had written the address on the second package (Tr. 356). 4 5 vision of the statute forbidding the mailing of weapons “capable of being concealed on the person” is un constitutionally vague. The court wondered: Did Congress intend tha t this “person” be the person mailing the firearm, the person receiving the firearm, or, perhaps, an average person, male or female, wearing whatever garb might be reasonably appropriate, wherever the place and whatever the season? We believe that this question, of itself, demonstrates the impermis sible vagueness of the statu te and its inadequacy to define the intended offense with sufficient spe cificity. [App. A, infra, pp. 2a-3a.] Finally, the court suggested (App. A, infra, p. 3a) tha t because Congress could have drawn a more specific statu te by using numerical definitions it was forbidden to follow any other course. REASONS FOR GRANTING THE WRIT The court of appeals has held tha t the portion of 18 U.S.C. 1715 prohibiting the mailing of firearms capable of being concealed on the person is uncon stitutional on its face. In reaching this result the court overlooked the settled principle, reaffirmed last term in Parker v. Levy, No. 73-206, decided June 17, 1974, tha t an ordinary criminal statute such as that here under consideration may not be attacked on its face by one whose conduct is properly subject to its terms. The court of appeals’ erroneous invalidation of an Act of Congress on constitutional grounds w ar rants review by this Court. 5 6 Although Section 1715 does not specify how large a weapon must be before it is no longer “capable of being concealed on the person,” some weapons are clearly within the sta tu te’s prohibition no m atter how the quoted phrase is construed. The statute therefore has some constitutional application free of any assertion of vagueness, and it was improper for the court of appeals to conclude that it was void on its face. The sta tu te’s potential for uncertain applica tion to larger weapons properly may be considered only if an appropriate case arises. 1. One of the most firmly established principles of constitutional adjudication is tha t a litigant prop erly subject to a sta tu te’s command may not contend that it is vague or overbroad as applied to others.3 In the case of a criminal statute not affecting F irst Amendment interests, [t]he strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. United States v. National Dairy Products Cory., 372 U.S. 29, 32. 3 Because of the possibility of a “chilling effect” on pro tected speech, this Court has been more willing to entertain facial vagueness claims in First Amendment cases. However, no freedom of speech issue arises here, and even in First Amendment cases those whose acts are within the absolute core of the statute’s prohibition cannot mount a facial attack. Smith V. Goguen, 415 U.S. 566, 577-578; Broadrick V. Okla homa, 418 U.S. 601, 608. 6 7 If there is any class of offenses within the statute that properly is subject to prohibition, “the statute will not be struck down as vague, even though m ar ginal cases could be pu t where doubts might arise. [Citations omitted.] And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute tha t construction.” United States v. Harriss, 347 U.S. 612, 618. Or, to put the m atter a slightly different way, “None of [the standards by which vagueness is tested] suggests that one who has received fa ir warning of the criminality of his own conduct from the statu te in question is nonetheless entitled to attack it because the language would not give similar fa ir warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vague ness.” Parker v. Levy, supra, slip op. pp. 21-22. Under these principles, the court of appeals was not a t liberty to consider respondent’s facial challenge to Section 1715. The court was required, first, to ascertain whether the statute intelligibly prohibited a t least some conduct4 and, second, to consider whether, in light of that core of prohibited activities * * A facial attack might be maintainable against a statute that is so vague that “no standard of conduct is specified at all.” Coates V. City of Cincinnati, 402 U.S. 611, 614. See also Lanzetta V. New Jersey, 306 U.S. 451. But the court of ap peals did not conclude that this statute provided utterly no guidance to any potential offender; it held no more than that it was uncertain in its application to some weapons. 7 8 and respondent’s conduct, the statute could give ade quate notice that her acts were forbidden. The court of appeals erred by failing to restrict its con sideration to the validity of the statu te as applied to respondent. A statute may not be upset on an allegation of vagueness as long as it leaves little doubt as to its application to the particular case. Cameron v. Johnson, 390 U.S. 611, 616.5 2. We submit tha t Section 1715 properly gave notice that a t least some sawed-off shotguns were not mailable. A sawed-off shotgun with a 10 inch barrel is readily recognizable as a weapon capable of being concealed on the person.6 The statute does not require tha t the weapon actually be concealed, but simply 5 Nor is there support for the court’s apparent belief that Congress is required to adopt the most precise statute pos sible. It is sufficient if the statute as enacted enables a per son to determine the legality of his proposed course of con duct; the availability of more precise rules is irrelevant. 6 The Postal Service has promulgated regulations providing that short-barreled shotguns are “firearms” (39 C.F.R. 124.5 (a) (4)) and that they will be regarded as “capable of being concealed on the person” if they have a barrel length of less than 18 inches and an overall length of less than 26 inches (39 C.F.R. 124.5(a) (5)) . Although the regulation provides that larger shotguns also may not be mailed if they have special characteristics making them concealable, the objective numer ical definitions are helpful in delimiting that area (well within the statute’s outer perimeter) in which there is no difficulty in ascertaining the statute’s meaning. Cf. Groyned v. City of Rockford, 408 U.S. 104, 110. The government did not direct the court’s attention to this regulation until its petition for rehearing; however, the court was required by 44 U.S.C. 1507 to take judicial notice of the regulation regardless of the government’s neglect. 8 9 th a t it be “capable” of being concealed. Such a short weapon is “capable” of being concealed (under a jacket or coat, or even in a hand bag) by a person determined to conceal it. Indeed, such a weapon has been sawed off precisely in order to facilitate such concealment. Because the phrase “capable of being concealed on the person” has a clear, unambiguous core meaning, the court of appeals could not reverse respondent’s conviction on vagueness grounds unless i t determined tha t the statute was impermissibly vague in its application to the shotgun that she mailed. That issue should be passed upon in the first instance by the court of appeals, and accordingly we have not presented it in our petition as a question for decision by this Court. CONCLUSION The petition for a w rit of certiorari should be granted. Respectfully submitted. Robert H. Bork, Solicitor General. John C. Keeney, Acting Assistant Attorney General. Frank H. Easterbrook, Assistant to the Solicitor General. Jerome M. Feit, Richard S. Stolker, Attorneys. January 1975. 9 ' la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 74-1252 U n ited States of A m erica , p l a in t if f -appellee vs. J o seph ine M. P ow ell , d e f e n d a n t -a ppella n t [August 7, 1974] Appeal from the United States D istrict Court for the Eastern District of Washington OPINION Before: MERRILL and ELY, Circuit Judges, and REAL,* District Judge PER CURIAM: Appellant was convicted of a violation of 18 U.S.C. § 1715 for depositing in the United States mail a firearm capable of being concealed on the person, to w it: A sawed-off shotgun. * Honorable Manuel L. Real, United States District Judge, Central District of California, sitting by designation. 11 2a 18 U.S.C. § 1715 provides in its pertinent p a rt: “Pistols, revolvers, and other firearms capable of being concealed on the person are nonmail able. . . . Whoever knowingly deposits for mail ing or delivery or knowingly causes to be deliv ered by mail according to the direction thereon . . . any pistol, revolver, a firearm declared non mailable by this section . . . shall be fined not more than $1000 or imprisoned not more than two years, or both.” Appellant attacks her conviction on the basis that 18 U.S.C. § 1715, insofar as it encompasses “ . . . fire arms (other than revolvers and pistols) capable of being concealed on the person,” is unconstitutionally vague in violation of the F ifth Amendment due proc ess. We agree. Although little question can be raised as to the con- cealability on the person of a pistol or revolver in common recognition of the normal limits of their size, the statutory prohibition as it might relate to sawed- off shotguns is not so readily recognizable to persons of common experience and intelligence. Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). The statute refers to “firearms capable of being concealed on the person . . .” Did Congress intend tha t this “person” be the person mailing the firearm, the person receiving the firearm, or, perhaps, an average person, male or female, wearing what ever garb might be reasonably appropriate, wherever the place and whatever the season? We believe that this question, of itself, demonstrates the impermissi- 12 3a ble vagueness of the statu te and its inadequacy to define the intended offense with sufficient specificity. To require Congress to delimit the seize of the firearms (other than pistols and revolvers) that it intends to declare unmailable is certainly to impose no insurmountable burden upon it; and its failure to do so is an infirmity in draftsmanship of constitu tional proportions.1 Having decided the unconstitutional vagueness of this statu te as it is applied to “other firearms,” we need not reach the other asignments of error made by appellant. The judgment is reversed. 1 1 Innumerable State legislatures have met the challenge. See, e.g., California Penal Code § 12001; Oregon Revised Stat utes § 166.210; Revised Code of Washington § 9.41.010. 13 4a APPENDIX B UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT No. 74-1252 DC C-9634 U n ited States of A m erica , p l a in t if f -appellee vs. J o seph ine M. Po w ell , d e f e n d a n t -a p pe l l a n t Appeal from the United States D istrict Court for the Eastern D istrict of Washington JUDGMENT THIS CAUSE came on to be heard on the T ran script of the Record from the United States D istrict Court for the Eastern D istrict of Washington and was duly submitted. ON CONSIDERATION W HEREOF, I t is now here ordered and adjudged by this Court, th a t the judgment of the said D istrict Court in this Cause be, and hereby is reversed. A True Copy A ttest 1/10/75 E m il E . Me l f i, J r ., Clerk by ,/s / Ray Hewitt R ay H ew itt , Senior Deputy Filed and entered August 7, 1974 14 5a [Filed Nov. 4, 1974, Clerk, U. S. Court of Appeals] No. 74-1252 U n ited States of A m erica , appellee APPENDIX C IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT vs. J o seph ine M. P ow ell , a ppella n t ORDER Before: MERRILL and ELY, Circuit Judges, and REAL, District Judge The motion for stay of mandate and permission to file late motion for rehearing and suggestion for rehearing in banc may be filed. 15 6a [Filed Nov. 21, 1974, Clerk, U. S. Court of Appeals] No. 74-1252 U n ited States of A m erica , p l a in t if f -appellee APPENDIX D IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT vs. J o seph ine M. P ow ell , d e f e n d a n t -a p pe l l a n t ORDER Before: MERRILL and ELY, Circuit Judges, and REAL, D istrict Judge Appellant’s motion to dismiss appellee’s petition for rehearing and suggestion for rehearing in banc is denied, consistent with our earlier order perm it ting the filing of tha t petition. The panel as constituted in the above case has voted to deny the petition for rehearing and to re ject the suggestion for a rehearing in banc. The full court has been advised of the suggestion for an in banc hearing, and no judge of the court has requested a vote on the suggestion for rehearing in banc. Fed.R.App.P. 35(b). The petition for rehearing is denied and the sug gestion for a rehearing in banc is rejected. 16 <3u the jshtpreme Court of ttje States October Term, 1974 No. UNITED STATES OF AMERICA, PETITIONER v. JOSEPHINE M. POWELL BRIEF IN REPLY TO GOVERNMENT’S PETITION FOR WRIT OF CERTIORARI OPINION BELOW The opinion of the court of appeals (App.A) is reported at 501 F.2d 1136. JURISDICTION Jurisdiction of this Court is invoked under 28 U.S.C. 1254(1), as the United States seeks review of the opinion of the United States Court of Appeals for the Ninth Circuit reversing respondent’s con viction. STATUTES 18 U.S.C. 1715 provides in part: Pistols, revolvers, and other firearms cap able of being concealed on the person are 17 1 nonmailable and shall not be deposited in or carried by the mails or delivered by any officer or employee of the Postal Service. Such articles may be conveyed in the mails, under such regulations as the Postal Service shall prescribe . . . QUESTIONS PRESENTED 1. Whether a statute prohibiting the mailing of “pistols, revolvers, and other firearms capable of being concealed on the person” is clear and definite enough to escape a challange that the statute is unconstitutionally vague as applied to short barreled shotguns with overall length of 22 inches. 2. Whether or not a statute which is unclear and indefinite on its face can become constitutionally definite by use of administrative regulations promul gated pursuant to said statute. COUNTER-STATEMENT OF THE CASE Respondent was charged with mailing an un mailable item in violation of 18 U.S.C. 1715, to-wit: a sawed-off shotgun of an overall length of 22 1/8 inches. Respondent was convicted after jury trial in United States District Court for the Eastern District of Washington. Respondent appealed her conviction arguing that the statute was unconstitutionally vague when ap plied to short-barreled shotguns such as the one the Respondent was charged with mailing. The Court of Appeals agreed with Respondent’s vagueness challenge and reversed Respondent’s conviction. The Court said in part: 2 Although little question can be raised as to the concealability on the person of a pistol or revolver in common recognition of the normal limits of their size, the statutory prohibition as it might relate to sawed-off shotguns, is not so readily recognizable to persons of com mon experience and intelligence. (App. A, page 2a) RESPONDENT’S ARGUMENT FOR DENYING PETITIONER’S WRIT OF CERTIORARI Petitioner’s argument in support of it’s applica tion for a w rit seems to be twofold. F irst, Petitioner argues that the Court of Appeals could not, under Respondent’s attack of vagueness, invali date the statute (18 U.S.C. 1715) as that statute applies to short-barreled shotguns and similar shoulder guns, since, according to Petitioner, Re spondent lacked standing to raise such an issue. Secondly, Petitioner argues that any vagueness of 18 U.S.C. 1715 could be cured by bootstrapping the criminal statute with federal administrative regulations adopted by the Postal Service. Petition er raises this second argument initially before this Court. 1. In a circuitous argument, Petitioner claims that since Respondent’s conduct is properly subject to the terms of the statute, she may not then at tack the statute’s constitutionality. However, in order to make the argument Petitioner must assume as fact the very issue of Respondent’s appeal. That is, whether or not the statute is in fact definite 19 3 enough to include in its proscription the conduct of the Respondent. The Court of Appeals ruled that the statute was not so definite. Except for Petition er’s bare assertion, Petitioner has made no showing to the contrary. Respondent does not contend that the statute is unconstitutionally vague as it applies to pistols, revolvers and other firearms of the same general class as pistols and revolvers. The Court of Appeals impliedly upheld the definiteness of this statute when applied to pistols and revolvers. The Court’s invalidation of the statute was directed towards short-barreled shotguns and other shoulder weapons such as is found in Respondent’s case. Respondent’s challenge to the statute lies only with this larger and different class of weapons like sawed-off shotguns and short-barreled shotguns. Contrary to Petitioner’s statement in it’s Petition for Writ of Certiorari, the instant case is an appropriate case in which to consider “the statutes potential for uncertain application to larger weapons . . .” (Page 6, Petitioner’s petition for Writ of Certiorari). As Respondent argued before the trial Court and the Court of Appeals, a fair construction of the sta tute would have it apply only to pistols, revolvers, and other firearms of the handgun class. The statute’s language makes nonmailable pistols, re volvers, and other firearms capable of concealment. Applying the principles of Esjudem Generis to the construction of this statute (18 U.S.C. 1715) specific language in the statute (pistols and revolvers) would restrict and define the more general language of the 4 statute (other concealable firearms). Therefore, the proper legal, as well as, common sense construction of the statute would be that concealable firearms in the class of pistols and revolvers would be nonmail able. Under such an interpretation the statute is not definite enough to give a person of ordinary intelligence fair notice that also included in this list of nonmailable weapons would be shoulder guns such as short-barreled shotguns. Indeed, such shoulder weapons are not normally considered concealable. The use of the word firearms, in this statute, does not provide any additional support to Peti tioner’s argument that shoulder weapons such as short-barreled shotguns would be included in the prohibition of the statute. Firearms is a broad generic name for guns whether they be large or small. While the word helps define the statute as to the type of weapons that are nonmailable, (guns as opposed to knives, etc.) it does not add to the defini tion of the statute concerning the size of the firearm that is nonmailable. In fact, in Cokley v. People, 450 P.2d 1013 (Colo 1972) in a case strikingly similar to the one at bar, the Colorado Supreme Court held that sawed-off shotguns did not fall within the terms of “firearms as defined by law.” Firearms capable of being concealed does not normally bring to mind short-barreled shotguns. Short-barreled shotguns are not generally conceal able. Indeed, the opinion of the Judges of the Court of Appeals was that such short-barreled shotguns are not generally considered concealable. Petitioner’s challenge to the ruling of the Court of Appeals does not seem to concern itself with the 5 issue of the vagueness of the statute as much as it does with Petitioner’s belief that short-barreled shotguns should be nonmailable items. However, whether or not short-barreled shotguns should be nonmailable was not the issue before the Court of Appeals and it is not the issue before this Court. Petitioner argues that it was the intent of Congress that the mailing of such short-barreled weapons should be prohibited (a premise not necessarily found in the statute) and therefore, the statute should be interpreted to prohibit such conduct. However, the issue before this Court is not the congressional intent of the statute, but whether or not the language of the statute is so clear and defi nite as to apprise the person of reasonable and ordi nary intelligence that the statute prohibits the mailing of short-barreled shotguns. The Court of Appeals concluded that the language was not so definite and that if it was truly the intent of the legislature to proscribe such activity, then the statute could be drafted in language more definite so as to include short-barreled shotguns within it’s prohibition. Indeed, the Petitioner’s argument could be raised in every case where there has been a successful challenge to the vagueness of a criminal statute. There is activity on the periphery of many statutes that may or may not have been intended by the legislature to be included in proscription of the sta tute. However, the test of the definiteness of a statute is not the intent of the legislation but the specificity of the language of the statute when ap- 6 plied to the activity meant to be proscribed. Also, this decision of whether or not a statute is constitu tionally vague must be decided against the back ground that statutory interpretation requires crimi nal statutes to be strictly construed. Petitioner has made no argument of statutory construction or definition of words involved in the statute which would give a more definite meaning to this statute than was concluded by the Court of Appeals. There is no reason then why this Court should review the opinion of the Court of Appeals. The Petitioner’s application for a writ should be denied. Secondly, the Petitioner argues that any indefi niteness in the statute has been cured by certain adm inistrative regulations promulgated by the Postal Department and relating to this statute. Petitioner, in making this argument, must start with the premise that the statute is indefinite and vague as applied to short-barreled shotguns. The question then is if an indefinite criminal statute can be boot strapped to a constitutionally definite status by the use of administrative regulations. Petitioner has cited no authority to support this argument. Administrative regulations are not law. The pur pose of administrative regulations is to create the procedures for carrying out the directives of the statute. It has never been the purpose of adminis trative rules and regulations to clarify or define por tions of statutes that may otherwise be indefinite. To permit administrative regulations to make otherwise constitutionally indefinite statutes con- 7 stitutionally certain would be to grant to administra tive agencies the power to adopt, amend or repeal Federal statutes; a power that belongs exclusively with Congress and one that may not be delegated. In the instant case the applicable administrative regulation states that all short-barreled shotguns of less than 26 inches shall be considered nonmailable. Petitioner then argues that irrespective of the sta tute’s language, the administrative regulation makes it unlawful to mail a short-barreled shotgun of less than 26 inches. Following Petitioner’s argument to its logical conclusion, if the Postal Service amended it’s regulation to include 30 inch or 40 inch or 50 inch weapons, then these weapons would also fall under the statutes prohibition. Effectively, the adminis trative agency would have the power to alter or even emasculate a statute. Such is not the function of an administrative agency. Petitioner’s argument has even less force when one closely reviews the statute and regulations in volved in this case. The only administrative authori ty granted to the Postal Service by 18 U.S.C. 1715 was the authority to adopt certain rules and regula tions prescribing the manner in which nonmailable articles could be mailed by certain agencies such as the United States Army. The Postal Service was not authorized by the statute to determine what items would and what items would not be mailable but was only granted the rule making power to determine the procedure for mailing nonmailable items. The legislature did not intend to delegate and could not delegate to the Postal Service the 24 8 authority to define the crime charged in 18 U.S.C. 1715. Finally, this issue, while novel in its approach, cannot be fairly considered by this Court. Petition er’s argument was not raised before the trial court or the Court of Appeals. Petitioner, however, argues that although the argument was not present ed to the Court of Appeals, the Court of Appeals should take judicial notice of the regulation and hence judicial notice of Petitioner’s argum ent. While the Court of Appeals may take judicial notice of the administrative regulation, (and indeed we must assume that the Court of Appeals was aware of the administrative regulations cited by the Peti tioner) the Court of Appeals is not required, sua sponte, to raise Petitioner’s argument. In fact, if we must presume anything, we must presume that the Court of Appeals raised Petitioner’s argument on its own and after considering the same, ruled against such an argument. An argument of this magnitude being raised for the first time before this Court, should not be considered. Therefore, Respondent respectively concludes that the Government’s petition for Writ of Certiorari should be denied, and the mandate of the Court of Appeals for the Ninth Circuit should be carried out. Respectively submitted. JERRY J. MOBERG Court Appointed Counsel for Respondent 25 9 N o . 7 4 - 8 8 4 Jit tlxt ĵ itpime dfourt of Ait ®nild States October T erm , 1974 U n ited S tates of A m erica , petitioner v. J o se p h in e M . P owell ON W R IT OF C ERTIO RARI TO TH E UNITED ST A T E S COURT OF APPEALS FOR TH E N IN TH CIRCUIT BRIEF FOR THE UNITED STATES ROBERT H. BORK, Solicitor General, JOH N C. K EEN EY , Acting Assistant. Attorney General, F R A N K H . EASTERBROOK, Assistant to the Solicitor General, R IC H A R D S. STOLKER, Attorneys, Department of Justice, Washington, D.C. 20530. . IN D E X Page. Opinion below_______________________________ 1 Jurisdiction--------------- 1 Question presented-------------------------------------- -- 2 Constitutional provision, statute and regulation Involved------------------------------- 2 Statement_______________________________ 3 Argument------------------------------------------------- 7 - - 6 An ordinary criminal statute such as Section 1715 should not be invalidated on its face. . 6 A. Introduction and summary_____ 6 B. A statute containing an intelligible standard of conduct is not vague on its face__________________ 8 C. Problems arising at the outer reaches of a statute’s scope must be assessed “as applied” _______________ - - - - - 13 D. Section 1715 contains an intelligible standard of conduct_________ 16 Conclusion_______________________________ 21 CITATIONS Cases: Ashwander v. Tennessee Valley Authority, 297 U.S. 288_______________________ 12 Bell v. United States, 349 U.S. 81 ----------- 15 Boyce Motor Lines v. United States, 342 U.S. 337_______________________________ 16,18 Broadrick v. Oklahoma, 413 U.S. 601----- 11 Cameron v. Johnson, 390 U.S. 611---------- 10 Coates v. City of Cincinnati, 402 U.S. 611----- 10, 12 Connallu v. General Construction Co., 269 U.S. 385_______________________________ 6,11,12 Gooch v. United States, 297 U.S. 124------- 16 Gooding v. Wilson, 405 U.S. 518------------ 10 Groyned v. City of Rockford, 408 U.S. 104_ 10, 12, 18 Harrison v. United States, 359 F. 2d 214----- 17 a) 29 II Cases—Continued page Lametta v. New Jersey, 306 U.S. 451----------- 11 Liverpool, New York and Philadelphia S.S. Co. v. Commissioners of Emigration, 113 U.S. 33. 9 McGowan v. Maryland, 366 U.S. 420_______ 13 Miller v. Oregon, 273 U.S. 657-------------------- 19 Nash v. United States, 229 U.S. 373________ 6, 12 Omaeclievarria v. Idaho, 246 U.S. 343_______ 19 Papachristou v. City of Jacksonville, 405 U.S. 156_________-__________________ ______ 11 Parker v. Levy, 417 U.S. 733_______________ 15 People v. Owens, 18 N.Y. 2d 972, 224 N.E. 2d 718___________________________________ 17 Rewis v. United States, 401 U.S. 808________ 15 Robinson v. United States, 324 U.S. 282_____ 14, 18 Roth v. United States, 354 U.S. 476_________ 14, 19 Screws v. United States, 325 U.S. 91------------- 12 Smith v. Goguen, 415 U.S. 566_____________ 10, 11 Sproles v. Binford, 286 U.S. 374____________13, 18 State v. Mayfield, 506 S.W. 2d 363_________ 17 Thornhill v. Alabama, 310 U.S. 88__________ 10 Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205___________________________ 18 United States v. Ackerson, 502 F. 2d 300____ 17 United States v. Alford, 274 U.S. 264_______ 15, 18 United States v. Classic, 313 U.S. 299----------- 14 United States v. Cohen Grocery Co., 255 U.S. 81____________________________________ H United States v. Enmons, 410 U.S. 396______ 15 United States v. Gaskin, 320 U.S. 527_______ 18 United States v. Harriss, 347 U.S. 612______ 13 United States v. Korpan, 354 U.S. 271______ 18 United States v. Mayo, 498 F. 2d 713________ 17 United States v. Mazurie, No. 73-1018, de cided January 21, 1975__________________ 9, 18 United States v. National Dairy Products Corp., 372 U.S. 29______________9-10, 12,14, 18 United States v. Petrillo, 332 U.S. 1 _______ 14, 19 United States v. Ragen, 314 U.S. 513________ 18 United States v. Story, 463 F.2d 326, certiorari denied, 409 U.S. 988____________________ 17 30 Ill Cases—Continued Page United States v. Universal C.I.T. Credit Corn 344 U.S. 218_______________________________ ’ 15 United States v. Vuitch, 402 U.S. 62________ 12 United States v. Wiltberger, 5 Wheat. 76___ 15 United States v. Wurzbach, 280 U.S. 396___ 6,13 Constitution: United States Constitution: Article III___________________________ 9 First Amendment___________________ 8. 10 1 1 Fifth Amendment____________________ ' ’ 2 Statutes and regulations: Act of February 8, 1927, 44 Stat. 1059 16 18 U.S.C. 921(a)(3)(A)____ 16 18 U.S.C. 921(a)(6)___ """ 20 18 U.S.C. 1715 .. 2 , 4, 5, 6, 7, 8, 1 1 , 16,17,18, 20, 21 26 U.S.C. 5845(a)___________. . . . . . . . . . 16 39 C.F.R. 124.5_____ _ __ 2 18 39 C.F.R. 124.5(a)(4)________________" " ” 2’ 18 39 C.F.R. 124.5(a)(5)------------------------------ 3, 18,’ 20 Revised Code of Washington Annotated § 9.41.010 (1961)______________________ 20 Miscellaneous: H.R. Rep. No. 610, 69th Cong., 1st Sess. (1926)------------------------------------------------- 16 66 Cong. Rec. 725-735 (1924)______________ 16 Ehrlich & Posner, A n Economic Analysis of Legal Rulemaking, 3 J. Legal Studies 257 (1974)----- - -̂-------------------------------------- 19 Note, Standing to Assert Constitutional Jus Tertii, 88 Harv. L. Rev. 423 (1974)_______ 9 Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960)------------------------------------------------- 12 31 Jit the jSttpme d[®ttrt of to "Stated States October Term, 1974 No. 74-884 U nited S tates of A merica, petitioner v. J osephine M. P owell ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE UNITED STATES O P IN IO N BE LO W The opinion of the court of appeals (Pet. App. la - 3a) is reported at 501 P. 2d 1136. J U R IS D IC T IO N The judgment of the court of appeals was entered on August 7, 1974 (Pet. App. 4a). The court of ap peals permitted the government to file an untimely pe tition for rehearing and suggestion for rehearing en banc, which it denied on November 21, 1974 (Pet. App. 6a). B y order of December 13, 1974, Mr. Justice Douglas extended the time for filing a petition for a writ of certiorari to and including January 20, 1975. The petition was filed on January 17, 1975, and was (i) 33 2 granted on March 17, 1975. The jurisdiction of this Court rests upon 28 U.S.C. 1254(1). Q U E ST IO N P R E S E N T E D Yfhether a statute prohibiting the mailing of fire arms “capable of being concealed on the person” is unconstitutionally vague on its face. C O N ST IT U T IO N A L P R O V IS IO N , S T A T U T E A N D R E G U L A T IO N IN V O L V E D The Fifth Amendment to the Constitution provides in relevant part: No person shall * * * be deprived of life, lib erty, or property, without due process of law * * * 18 U.S.C. 1715 provides in relevant part: Pistols, revolvers, and other firearms capable of being concealed on the person are nonmail able and shall not be deposited in or carried by the mails or delivered by any officer or em ployee of the Postal Service. Such articles may be conveyed in the mails, under such regula tions as the Postal Service shall prescribe [to enumerated recipients] * * *. 39 C.F.R. 124.5 provides in relevant part: (a) Nonmailable firearms. (1) Pistols, re volvers, and other similar firearms capable of being concealed on the person, addressed to persons other than those indicated in § 124.5(b), are nonmailable. * * * * * * (4) The phrase “ all other firearms capable of being concealed on the person” includes, but is not limited to, short-barreled shotguns, and short-barreled rifles. 34 3 (5) The term “short-barreled shotguns” means a shotgun having one or more barrels less than 18 inches in length and any weapon made from a shotgun (whether by alteration, modification, or otherwise) if such weapon as modified has an overall length of less than 26 inches. A short-barreled shotgun of greater di mensions may also be regarded as nonmailable when they [sic'] have characteristics allowing them to he concealed on the person. * * * * * ST A T E M E N T 1 . On February 28, 1973, Mrs. Theresa Bailey re ceived in the mail an unsolicited package postmarked Spokane, Washington, and addressed to her at her residence in Tacoma, Washington (A. 9-17). This package contained two shotguns, shotgun shells, and hacksaw blades (A. 13-16, 26). Mrs. Bailey did not know who had sent the package and did not retain the outer wrapper (A. 17). She contacted her hus band, an inmate in McNeil Island Federal Peniten tiary, who told her he knew nothing of the package or its contents (A. 8-10, 17, 38-39).1 Mrs. Bailey subsequently met with agents of the Federal Bureau of Investigation and an official of the penitentiary. She turned the package and its con tents over to them (A. 17-18, 51-52). The ensuing- investigation established that one of the shotguns had been purchased by respondent in Spokane on Febru ary 21, 1973 (A. 87-88) and that the other had been 1 Respondent’s husband, Travis Powell, also w-as incarcerated at McNeil Island (A. 107,112). 35 4 purchased on the same date by a woman of respond ent’s general description (A. 89-90). On March 9, 1973, Mrs. Bailey received a telephone call from a woman who advised her that “ a second package was coming, and it was a mistake” (A. 18-19). The caller, who did not identify herself, asked Mrs. Bailey to give this package to “ Sally.” 2 When Mrs. Bailey replied she “did not have an address or any way of giving it to Sally,” the caller said she would call back (A. 19). The Federal Bureau of Investi gation ascertained after investigation that the tele phone call had been placed from respondent’s resi dence inSpokane (A. 92-94; Tr. 263, 501). Mrs. Bailey received the second package in the mail on March 13, 1973, and gave it unopened to the in vestigating agents (A. 19-20, 55-56). The package bore respondent’s return address (A. 83).3 This second package contained a sawed-off shotgun (with a barrel length of 10 inches and an overall length of 22% inches), together with two boxes of shotgun shells (A. 56, 58-59, 96-97). 2 . Respondent was indicted on a single count of mailing a firearm capable of being concealed on the person, in violation of 18 IT.S.C. 1715. She moved to dismiss the indictment on the ground that the statute is unconstitutionally vague. The district court denied 2 Mrs. Bailey did not know who “Sally” might be, nor did she. recognize the caller’s voice (A. 19). 3 A handwriting expert testified that, in his opinion, respond ent had written the addresses on this package (A. 104-105). 36 5 this motion from the bench (Tr. 521-522). After a jury- trial, respondent was convicted and sentenced to a term of two years’ imprisonment (Pet. 4). 3. The court of appeals reversed, writing a brief opinion holding that the provision of Section 1715 forbidding the mailing of firearms “ capable of being- concealed on the person” is unconstitutionally vague (Pet. App. la -3a). The court of appeals apparently thought that this result was required not only because the statute does not identify the size, build and dress of the “person” to whom it refers, but also because a more precise statute might have been drawn using- numerical definitions. The court wondered (Pet. App. 2a-3a) : Did Congress intend that this “person” be the person mailing the firearm, the person receiv ing the firearm, or, perhaps, an average per son, male or female, wearing whatever garb might be reasonably appropriate, wherever the place and whatever the season? We believe that this question, of itself, demonstrates the impermissible vagueness of the statute and its inadequacy to define the intended offense with sufficient specificity. The court of appeals did not attempt to ascertain whether respondent knew or could have known that the sawed-off shotgun she mailed was “capable of being concealed on the person.” Instead, the court declared that the statute is unconstitutionally vague “as it is applied to ‘other firearms’ ” (Pet. App. 3a), thereby invalidating that portion of the statute on its face. 37 6 A R G U M E N T AN ORDINARY CRIMINAL STATUTE SUCH AS SECTION 1715 SHOULD NOT BE INVALIDATED ON ITS PACE A. INTRODUCTION AND SUMMARY Two competing principles dominate the law of vagueness. On the one hand, “a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must neces sarily guess at its meaning and differ as to its appli cation, violates the first essential of due process” {Connally v. General Construction Co., 269 U.S. 385, 391). But, on the other hand, it has never been doubted that “the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subequently estimates it, some matter of degree” (Nash v. United States, 229 U.S. 373, 377). The conflict is created by the imprecision inherent in language and by the need for legislatures to speak to situations that cannot be foreseen in full particu larity. Consequently, “ [wjhenever the law draws a line there will be cases very near each other on oppo site sides. The precise course of the line may be uncertain, but no one can come near it without know ing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk” ( United States v. W urzbach, 280 U.S. 396, 399). Claims that a statute is unconstitutionally vague raise difficult issues because of the undisputed validity (and great sweep) of the competing principles that govern their resolution. This case concerns the man ner in which the difficult task of resolving such claims 38 7 should be carried out. I t does not require the Court to answer the ultimate question whether Section 1715 did or did not give respondent adequate notice of the conduct it forbids. In considering an assertion that an ordinary crim inal statute is void for vagueness, a court first should ask: “Does the statute intelligibly prohibit anything?” I f the court concludes that some body of conduct clearly is forbidden by the statute, then it cannot be void on its face. Most criminal statutes satisfy this test, because they describe a standard by which com pliance can be measured. Section 1715, for example, establishes a standard that depends primarily (al though not entirely) upon the size of the firearm; the smaller the weapon, the more readily it is “capable of being concealed on the person.” But even when the statute’s language is refractory, a court is under a duty to construe it (if possible) to establish such a standard, and thereby to create a benchmark by which those with a will to do so may conform their conduct to its commands. I f the statute, either by its words or as construed by a court, gives fair warning that at least some specifi able conduct is forbidden, then it cannot be struck down on its face. The court must instead inquire whether it gave notice as applied to the person and facts before it. The inevitable problems of uncertainty that arise near the outermost limits of the statute’s reach may be dealt with by considering the well-estab lished rules of criminal law that an individual who approaches close to the zone of prohibited conduct takes the risk that he or she will overstep the line, but 39 8 that where the zone of prohibited conduct is itself im precise, a “rule of lenity” will contain the risk within reasonable bounds. The only exception to this ap proach is in the case of statutes that impinge over- broadly upon, and threaten to impair the exercise of, rights protected by the First Amendment. Since the shipment o f firearms is not remotely connected to First Amendment interests, this exception is wholly inapplicable here. The court below employed quite a different process. It inquired only whether the statute’s language is im precise, and whether more precise language could be imagined. Answering both questions affirmatively, it concluded that the phrase “capable of being concealed on the person” is impermissibly vague, and therefore invalid on its face, as applied to all “other firearms.” The court did not determine whether the pertinent language of Section 1715 has an unambiguous core meaning, or whether it could be construed to produce one. Nor did the court inquire whether respondent knew or could have known, had she attempted to com ply, that she was offending the statute’s command. Be cause Section 1715 does have an ascertainable core meaning when applied to “other firearms,” we submit that this case must be returned to the court of appeals for reconsideration in light of the correct standards. B. A STATUTE CONTAINING AN INTELLIGIBLE STANDARD OF CONDUCT IS NOT VAGUE ON ITS FACE One of the most firmly established rules of consti tutional adjudication is that “vagueness challenges to statutes which do not involve First Amendment free- 9 cloms must be examined in the light of the facts of the case at hand.” United States v. Mazurie, No. 73-1018, decided January 21, 1975 (slip op. 6). This rule is supported by the fundamental principle that a litigant may assert only his own rights; unless a litigant is injured by the alleged flaw in a statute, he is not en titled to redress on the ground that the flaw may be deleterious to others.4 A statute’s potential for uncer tain application may injure some without injuring others. The words of a statute may prohibit with rea sonable certainty many varieties of conduct, while at the same time having only speculative effect on other conduct. The principle that a litigant may complain only of his own injury, when applied to claims of vagueness, means that one to whom the statute clearly applies may not complain that its application to others differently situated would be unconstitutionally uncertain. This restriction, when combined with “ [t] he strong presumptive validity that attaches to an Act of Con gress [,] has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language” ( United States v. National D airy Products 4 See generally Note, Standing to Assert Constitutional Jus Tertii, 88 Harv. L. Rev. 423 (1974). This principle is supported by the rule that a court should not “anticipate a question of constitutional law in advance of the necessity of deciding it” (Liverpool, New York and Phila delphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39) and by the Article I I I requirement of a “case or con troversy.” 41 10 Corp., 372 U.S. 29, 32). A statute may not be upset on an allegation of vagueness as long as it leaves little cloubt as to its application to the particular case. Cameron v. Johnson, 390 U.S. 611, 616. There are only two occasions on which a court may examine a statute “on its face.” Neither is applicable to this case. First, a statute that affects or attempts to regulate First Amendment freedoms may, in certain instances, be dealt with on its face (i.e., at the behest of a litigant challenging its application to circum stances different from those of his case) because of the special dangers vagueness poses to protected and favored activities. A vague statute carries with it the potential for overbreadth; the more nebulous the standards of the statute, the more likely some of its applications may touch upon protected speech. See, e.g., Coates v. C ity o f Cincinnati, 402 U.S. 611. Because of this possibility, vague statutes will produce a “chilling effect” as people attempt to refrain from saying or doing things that would expose them to the danger of prosecution, even for protected speech. See, e.g., Gooding v. W ilson, 405 U.S. 518, 521; Thornhill v. Alabama, 310 U.S. 88, 97-98. Moreover, even when protected speech is not “chilled,” a vague statute offers opportunities for discriminatory en forcement that might harass those who have done no more than disagree with the views of the local authorities. See, e.g., Sm ith v. Goguen, 415 U.S. 566, 573-578; Grayned v. City o f Rockford, 408 U.S. 104, 109. But these dangers do not extend beyond the realm of First Amendment freedoms. I t would be per missible, for example, for Congress to enact a statute 42 11 having a “chilling effect” on an individual who de sired to mail a shotgun with an overall length of 30 inches, since no special constitutional protection shel ters the mailing of shotguns. Because Section 1715 does not touch upon First Amendment interests, these cases do not support a facial attack.5 The second exception covers statutes so vague that “no standard of conduct is specified at all.” Coates, supra, 402 U.S. at 614. The statute can be assessed on its face if it fails to create “an ascertainable stand ard of guilt, * * * [and] leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee * * *” {United States v. Cohen Grocery Co., 255 U.S. 81, 89). L a m etta v. New Jersey, 306 U.S. 451, the only case relied upon by the court of appeals, involved such a statute.6 When a statute is so ambulatory that it has no core of intelligible prohibition, it would be vain to attempt to consider it only “as applied,” for it would be vague as applied to any conceivable acts, unless a court abjured the judicial role and rewrote the legislation entirely. Few statutes are this vague. Most contain within them some standard devised by the legislature, rea sonably referring to the common law or common understanding, that enables those who sincerely desire to do so to comply with their requirements. For 5 Even in First Amendment cases, those whose acts are within the absolute core of the statute’s prohibition cannot mount a facial challenge. Sm ith , supra, 415 U.S. at 577-578; Broadrick v. Oklahoma, 413 U.S. 601, 608. 6 See also United States v. Cohen Grocery Co., supra; Connolly, supra; Papachristou v. City of Jacksonville, 405 U.S. 156. 43 12 example, Nash v. United States, supra, dealt with the Sherman Antitrust Act and with the “rule of reason” developed under it. The Court held that trade usage and developing case law created a standard of unreasonable combinations in restraint of trade sufficient to support criminal penalties. When the unaided words of a statute appear to leave open to doubt its application to a great many situations, it nevertheless is sufficiently specific as long as it contains “a standard of some sort” (Con nolly', supra, 269 U.S. at 392).7 Once the statute or its legislative history establishes an objective standard, the Court then can use the ordinary principles of stat utory construction to provide the required precision in application.8 When a statute is challenged for vagueness, “we have consistently sought an interpre tation which supports the constitutionality of legisla tion” (National Dairy, supra, 372 U.S. at 32).9 I f a 7 The “standard” ordinarily must be one capable of determi nation by reference to objective criteria. The vagueness prob lem is more difficult when the statute refers to the subjective reactions of unknown (and perhaps unknowable) people. See, e.g., Coates, supra (statute making it illegal for three or more persons to “conduct themselves in a manner annoying to per sons passing by” is unconstitutionally vague). But see Groyned, supra (statute penalizing those “willfully making noise or diver sion that disturbs or tends to disturb the peace or good order of [a] school session” is not vague). 8 See Note, The Void-For-Vagueness Doctrine in the Supreme Court, 109 U.Pa. L. Rev. 67, 82-85 (1960), which suggests that this Court’s inability to give a narrowing construction to state statutes accounts for the fact that almost all statutes held unconstitutional for vagueness have been state statutes. 9 See also United States v. Vuitch, 402 U.S. 62, 72; Screws v. United States, 325 U.S. 91, 98-100. Cf. Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 348. 44 13 “general class of offenses can be made constitutionally definite by a reasonable construction of tbe statute, this Court is under a duty to give the statute that construction” ( United States v. Harriss, 347 U.S. 612, 618). The construction may take into account the leg islative intent as revealed in the legislative history. But it may as properly utilize ordinary human under standings. “The use of common experience as a glos sary is necessary to meet the practical demands of legislation” (Sproles v. B inford , 286 U.S. 374, 393) .10 Because Section 1715 does not impinge upon pro tected speech, and because it is not so irremediably vague that it conveys no ascertainable prohibition at all, it must be assessed as it applies to particular cases, on their particular facts. “ [I ] f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague, even though marginal cases could be put where doubts might arise” (Harriss, supra, 347 U.S. at 618). Or, to put the proposition in a slightly differ ent way, “if there is any difficulty * * * it will be time enough to consider it when raised by someone whom it concerns” (W urzbach, supra, 280 U.S. at 399). C. PROBLEMS ARISING AT THE OUTER REACHES OF A STATUTE’S SCOrE MUST BE ASSESSED “ AS APPLIED5’ I f the statute, either by its words or in light of common experience and judicial construction, estab- 10 See also, e.gM cG ow an v. Maryland, 366 U.S. 420, 428- 429 (the words of a statute may be augmented by “ordinary commercial knowledge” and “reasonable investigation”). 45 14 lislies some ascertainable standard by which those who seek to do so may conform their conduct to its com mand, then problems of vagueness must be assessed as the statute is applied to particular facts. National Dairy, supra, 372 U.S. at 33. It is not relevant to this assessment that some varieties of conduct may be neither clearly forbidden nor clearly permitted. The court of appeals apparently believed that, if difficult cases could be put (for example, a small person on a beach in southern California might not wear sufficient clothing to conceal a sawed-off shotgun), the statute must fall. But “ [i]n most English words and phrases there lurk uncertainties” (Robinson v. United States, 324 U.S. 282, 286), and “lack of precision is not itself offensive to the requirements of due process” (Both v. United States, 354 U.S. 476, 491). In the case of most statutes, “generality * * * does not obscure its mean ing or impair its force within the scope of its appli cation * * *” ( United States v. Classic, 313 U.S. 299, 328-329). “That there may be marginal cases in which it is difficult to determine the side of the line on which a particular fact situation falls is no sufficient reason to hold the language too ambiguous * * *” ( United States v. Petrillo, 332 U.S. 1 , 7 ). This Court succinctly summarized all of these prin ciples only last term. It wrote: “None of [the stand ards by which vagueness is evaluated] suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and 46 15 literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vague ness.” P arker v. L evy, 417 U.S. 733, 756. This does not mean, of course, that those whose con duct may be within the zone of uncertainty are with out recourse. I f the statute does not give them fair warning, it may be vague as applied to them. More over, true ambiguity in the ambit of a criminal statute often is resolved by judicial construction in favor of lenity.11 This rule, “ founded on the tenderness of the law for the rights of individuals” ( United States v. W iltberger, 5 Wheat. 76, 95), ameliorates any unnec essary harshness and avoids the imposition of punish ment because of truly unexpected applications of a statute. Particularly in light of these saving doctrines, how ever, an individual cannot claim that the marginal uncertainties inevitably surrounding criminal statutes render them unconstitutional. Almost all statutes, read in light of their legislative history and judicial con struction, and “ [tjaken in connection with the danger to be prevented * * * lay[] down a plain enough rule of conduct for anyone who seeks to obey the law” (U nited States v. A lford , 274 U.S. 264, 267). “ [F]ew words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government 11 11 See, e.g., United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 222; Bell v. United States, 349 U.S. 81, 83; Rewis v. United States, 401 U.S. 808; United States v. Emnons, 410 U.S. 396, 411. 47 16 inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line.” Boyce Motor Lines v. United States, 342 U.S. 337, 340. D. SECTION 171 5 CONTAINS AN INTELLIGIBLE STANDARD OF CONDUCT We submit that Section 1715 contains a clear stand ard of conduct. The statute states that all firearms 12 12 Respondent apparently contends (Br. in Opp. 4-6) that sawed-off shotguns are not “firearms” within Section 1715. This argument, which was not considered by the court of appeals, is without support. Section 1715 was based upon the Act of February 8, 1927, 44 Stat. 1059. The legislative history of that Act (see H.R. Rep. No. 610, 69th Cong., 1st Sess. (1926)) indicates that a major purpose of the bill was to prevent the use of the mails to transport firearms that were often illegal under state law. Sawed-off shotguns fit that description. Postmaster General New, commenting on the proposed legislation, remarked that the bill should exempt only firearms “incapable” of being concealed, “such as firearms used in field sports, hunting, etc.” H.R. Rep. Noi 610, supra, at p. 2. Representatives on the floor of the House expressed a desire to limit access to all sorts of concealable firearms that might be used to perpetrate crimes. See 66 Cong. Rec. 725—735 (1924). Similarly, when Congress for purposes of other legislation has defined “firearm” more specifically, it has included short-barreled shotguns within that term. See 26 U.S.C. 5845(a); 18 U.S.C. 921(a)(3)(A ). We submit that there is ample support for the conclusion that “other firearms” includes sawed-off shotguns. Respondent relies upon the “ejusdem generis” principle. But this principle is a tool of statutory construction, not a method of defeating a statute’s purpose. Gooch v. United, States, 297 U.S. 124, 128. Sawed-off shotguns are as con cealable as many long-barreled pistols and revolvers. They 48 17 “capable of being concealed on the person” are non mailable. This establishes a standard referring pri marily to the size of the firearm; the smaller the fire arm, the more readily it is “capable of being con cealed on the person. ” 13 Some long-barreled weapons are so large that they would not be capable of such concealment. But others are sufficiently short that they are “capable” of being concealed—by people determined to conceal them—under a jacket or coat, inside a pants leg, or even in a hand bag. A sawed-off shotgun with a 10 inch barrel and an overall length of approximately 22 inches is “capable” of being con cealed in hand bags of even moderate size, and would fit under the jacket of most men’s suits. Indeed, common experience suggests that the usual, and per haps the sole, reason for sawing off the barrel of a shotgun is to permit its concealment.14 Even if some uncertainty remains in light of this common experience, this Court should construe Sec tion 1715 in a way that produces an unambiguous core of actions clearly prohibited by the statute. In so do therefore share with those firearms the characteristic Congress believed warranted exclusion from the mails. Scgy also 29 C.F.R. 124.5 (a) (4), discussed infra, p. 18. 13 “Size” includes not only barrel length, but also weight and bulkiness. Other relevant factors include shape and the ease with which a weapon can be broken down and reas sembled. 14 For a sampling of recent cases in which like weapons concealed on the person have been used in criminal activity, see e.g., United States v. Ackerson, 502 F. 2d 300 (C.A. 8); United States v. Mayo, 498 F. 2d 713 (C.A.D.C.); United States v. Story, 463 F. 2d 326 (C.A. 8), certiorari denied, 409 U.S. 988; Harrison v. United States, 359 F. 2d 214 (C.A.D.C.); People v. Owens, 18 N.Y. 2d 972,224 N.E. 2d 718. Cf. State v. May- field, 506 S.W. 2d 363 (Mo. Sup. Ct.). 49 18 ing the Court might draw upon 39 C.F.R. 124.5, an interpretive regulation promulgated by the Postal Service. Under that regulation, short-barreled shot guns are “firearms” (39 C.F.R, 124 .5(a)(4)), and they are regarded by the Postal Service as “capable of being concealed on the person” if they have a bar rel length of less than 18 inches and an overall length of less than 26 inches (39 C.F.R, 124 .5(a)(5)). Al though these regulations are not conclusive of the meaning of Section 1715, they would, if used as the basis for judicial construction, substantially clarify its meaning. Moreover, as the interpretation of Sec tion 1715 by responsible administrative officials, they are entitled to some deference,15 16 and even without ju dicial construction they provided guidance on the statute’s meaning to all those who sought to comply. Cf. CoJten v. K entucky , 407 U.S. 104, 110. In sum, Section 1715, with or without judicial construction, provides enough guidance that it cannot be unconsti tutionally vague on its face.10 15 See Groyned v. City of Rockford, supra, 408 U.S. at 110. Cf. Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205, 210; TJdall v. Tollman, 380 U.S. 1, 16. 16 Many criminal statutes less precise than Section 1715 have been sustained. See, e.g., Mazurie, supra (“non-Indian com munity”) ; National Dairy, supra (“unreasonably low prices”) ; United States v. Korpan, 354 U.S. 271, 272, 273, n. 2 (“coin oper ated amusement or gaming device”) ; Boyce Motor Lines, supra (“so far as practicable, * * * driving into or through con gested thoroughfares”) ; Robinson, supra (“liberated unharmed” in kidnapping statu te); United States v. Gaskin, 320 U.S. 527 (“condition of peonage”) ; United States v. Ragen, 314 U.S. 513, 517 (“reasonable allowance for salaries”) ; Sproles, supra (“shortest practicable route”) ; United States v. Alford , 274 U.S. 264 (“in or near any forest, timber, or other inflam 50 19 The only remaining argument is the court of appeals’ apparent belief that Section 1715 is defective because it could have been drafted with greater preci sion. This complaint is equally true, however, of every criminal statute. The Court in Petrillo, supra, 332 U.S. at 7, agreed that “ [ejlearer and more precise lan guage might have been framed by Congress * * *,” but it held that the statute nevertheless gave adequate notice of the conduct forbidden. The availability of alternative language neither adds to nor subtracts from the amount of notice the statute provides. And if, as written, it provides constitutionally adequate notice, it must be sustained for that reason. Both v. United States, supra, 354 U.S. at 491. Additional specificity in criminal statutes is not necessarily beneficial.17 Although an increase in spec ificity (here, the adoption of numerical definitions) would enable those who wish to mail firearms to assess with greater accuracy the probability that their acts would violate the statute, it also would risk placing outside the scope of the statute some conduct that Congress desired to prohibit. Every increase in spec ificity would carry with it an opportunity, for those who desire to bring about the result the statute is in tended to prevent, to alter their behavior to circum mable m aterial"); Miller v. Oregon, 273 TT.S. 657 (explained at 274 U.S. 464-465) (drive a vehicle in “a careful and pru dent manner”) ; Omaechevarria v. Idaho, 246 U.S. 343, 345 n. 3 (any range “usually occupied by any cattle grower”) . 17 For a comprehensive discussion of the costs and benefits of both generality and specificity, see Ehrlich & Posner, An Eco nomic Analysis of Legal Rulemaking, 3 J. Legal Studies 257 (1974). 51 20 vent the statutory purpose. In other words, greater specificity frequently generates “loopholes.” For ex ample, if Section 1715 were amended to express its prohibition in terms of the length of the firearm, in dustrious malefactors would be able to create firearms of the minimum length that also possessed other char acteristics (such as slimness, or ability to be broken down and reassembled rapidly) making them as readily concealable as shorter weapons, the mailing of which is forbidden.18 This would be contrary to the intention of Congress, for it would produce the result (the mailing of firearms capable of being concealed on the person) that the statute was intended to prohibit. By framing its statutes in terms of the result to be achieved Congress is able, at minimal cost in uncer tainty, to prohibit more effectively the evil that prompted the statute’s enactment. In some statutes Congress has been more precise.19 That is its prerogative. But unless the language it chose in Section 1715 is itself too indefinite to provide an ascertainable standard of conduct, it is not consti 18 The Postal Service regulations, which establish numerical guidelines dependent on the length of the firearm, also provide that shotguns of greater dimensions are nonmailable if they have “characteristics allowing them to be concealed on the per son.” 39 C.F.R. 124.5(a) (5). 1918 U.S.C. 921(a)(6) defines “short-barreled shotgun” as a shotgun with barrels less than 18 inches long and an overall length of less than 26 inches. The firearm mailed by respondent is a “short-barreled shotgun” under that standard. Some States (see, e.g., Revised Code of Washington Annotated §9.41.010 (1961)) also use numerical definitions. Under the Washington code, a “short firearm” includes any shotgun with a barrel length of less than 12 inches. The firearm mailed by respondent is a “short firearm” within even that restrictive standard. 52 21 tutionally relevant that it could have followed the course of more particularized definition. For the reasons we have advanced above, we sub mit that Section 1715 establishes a standard suffi ciently clear that at least some types of conduct are indisputably within the scope of its prohibition. Ac cordingly, the court of appeals was not at liberty to invalidate it on its face. CONCLUSION The judgment of the court of appeals should be reversed and the case remanded with instructions to consider whether Section 1715 gave respondent ade quate notice that her conduct was prohibited. Respectfully submitted. R obert H . B ork, Solicitor General. J ohn C. K eeney, Acting Assistant A ttorney General. F rank H . E asterbrook, Assistant to the Solicitor General. R ichard S. S tolker, Attorneys. May 1975. 53 ■ ' Supreme Court of tfje ®mteb States; OCTOBER TERM, 1974 IN THE No. 74-884 UNITED STATES OF AMERICA, Petitioner, v. JOSEPHINE M. POWELL, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE RESPONDENT JERRY J. MOBERG P.O. Box L Moses Lake, Washington 98837 A tto r n e y f o r R e sp o n d e n t (A p p o in te d p ro hac vice) 55 TABLE OF CONTENTS Page QUESTION PRESENTED .....................................................................1 STATEMENT ............................................................................................. 2 ARGUMENT ............................................................................................. 3 CONCLUSION ......................................................................................12 TABLE OF AUTHORITIES Cases: Coates v. City of Cincinnati, 402 U.S. 611 ....................................4 Cokley v. People, 450 P.2d 1013 (Colorado Supreme Court 1972) .....................................................................7 Connally v. General Construction Company 269 U.S. 385 ................................................................................... 5,7,9 Cramp v. Board o f Public Instruction, 368 U.S. 278 .............. 11 Grayned v. City o f Rockford, 408 U.S. 104 ............................5,11 Herndon v. Lowry, 301 U.S. 242 5 Lanzetta v. New Jersey 306 U.S. 541 (1939) 5 Nash v. United States 229 U.S. 373 ............................................... 10 Papachruston v. City o f Jacksonville 405 U.S. 156 ................... 11 United States v. Cohen Grocery, 255 U.S. 81 ...............................4 United States v. Harriss, 347 U.S. 612 ............................................ 5 Winters v. New York, 333 U.S. 507, 518 (1947) ........................... 5 S ta tu tes: 18U.S.C. 921 11 18 U.S.C. 1715 .............................................................................passim (i) 57 ■ Supreme Court of tfje ®mteb g>tate£ OCTOBER TERM, 1974 IN THE No. 74-884 UNITED STATES OF AMERICA, Petitioner, v. JOSEPHINE M. POWELL, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE RESPONDENT QUESTION PRESENTED Whether a statute prohibiting the mailing of pistols, revolvers and other firearms capable of being concealed on the person is unconstitutionally vague as applied to sawed off shotgun and other similar short barreled rifles. 2 STATEMENT Respondent has no particular quarrel with the petitioner’s statement of the case except that much of petitioner’s statement is immaterial to the resolution of the question presented. Respondent was indicted on a single count of mailing a firearm capable of concealment on the person, in violation of 18 U.S.C. 1715. The firearm that she allegedly mailed was a shotgun with a modified barrel and a modified stock. The shotgun was approximately twenty-two (2 2 ) inches long and the barrel measured approximately ten (10) inches. (A.96) The weapon is large and bulky. (A. 101) An agent from the Bureau of Alcohol, Tobacco and Firearms in Spokane, while admitting that he was not an expert in firearms, did testify that the only two ways that he knew of to conceal a weapon as large as the one in question, would be to place the weapon under an outer garment such as an overcoat, or inside a pair of trousers. (A.96) Both methods of concealment would leave large bulges. (A.97) The agent testified further that almost any type of gun could be concealed. (A.97) After a jury trial Respondent was convicted of violating 18 U.S.C. 1715 and sentenced to a term of two years imprisonment. The Court of Appeals reversed the conviction, holding that the portion of the statute (18 U.S.C. 1715) making it unlawful to mail “firearms other than pistols and revolvers capable of being concealed on the person” was not language of sufficient constitutional definity to adivse persons of common experience and intelligence that it was unlawful to mail sawed off 60 shotguns. 3 Contrary to the petitioner’s suggestion in its state ment of the case, (page 5 of Petitioner’s Brief), the Court of Appeals did not invalidate the “other firearms” portion of 18 U.S.C. 1715 on its face, but, in fact, invalidated the “other firearms” prohibition “as it might relate to sawed off shotguns” (Pet. App. 2a) and inferentially, at least, as it might relate to other weapons similar to sawed off shotguns. In light of its opinion the Court of Appeals did not reach respondent’s other seven assignments of error basically relating to the admissibility of handwriting exemplars, and welfare records introduced at trial. ARGUMENT Initially, the question presented to this Court should be placed in its proper perspective. 18 U.S.C. 1715 was not voided on its face, as petitioner so strenuously argues in its Brief. A fair and careful reading of the opinion of the Court of Appeals reveals that the statute was voided not on its face, but as applied to the respondent, and sawed off shotguns specifically, and similar short weapons generally. 1 The respondent did not mount a facial challenge to the statute. She only challenged the statute’s lack of certainty as the statute applied to large and bulky shoulder weapons such as the sawed off shotgun * 'The Court o f Appeals held that although little question can be raised as to the concealability of pistols and revolvers, the statutory prohibition “as might relate to sawed o ff shotguns” is not so readily recognizable. The opinion should be read to invalidate the statute as applied to respondent and not invalidating the statute on its face. 4 connected with this case. Had respondent been convicted of mailing a pistol or revolver, and on appeal claimed that the other firearm provision of the statute was constitutionally uncertain, then petitioner’s jus tertii standing argument (or in this case, lack of standing) would have merit. However, that not being the case, petitioner’s analysis of the case at Bar as being a facial attack of the statute (Brief 8-13) offers little assistance to the resolution of the question presented.2 Petitioner argues that since the respondent’s activity is clearly prohibited within the statute, then petitioner may not contend that the statute is or may be overly broad as applied to others. In that argument petitioner assumes as fact the very issue of this appeal; that is, does the statute clearly apply to the respondent? Does the statute offer to the respondent fair warning of the criminality of her own conduct. Respondent contends and the Court of Appeals so held that the statute does not provide such warning. Since this statute is not being attacked facially by one clearly within its prohibition, the question then, is not whether “pistols, revolvers and other firearms capable of being concealed” provides any discernible area of proscription, for indeed, it does when referring to the case of pistols and revolvers and other firearms 2Petitioner argues that since the statute does apply to respondent’s conduct, then a lesser standard o f certainty will apply to this statute suggesting that the statute would not be void from vagueness unless the statute regulated some first amendment freedoms ( C oates v. C ity o f C in c in n a ti, 402 U.S. 611), or unless the statute was so vague that no standard of conduct is specified at all; therefore leaving open the widest conceivable inquiry, the scope o f which no one can forsee. Citing U.S. v. Cohen G rocery, 2 5 5 U.S. 81.62 5 of the similar size o f pistols and revolvers, but the question, moreover, is whether the language of this statute is sufficiently certain to prohibit the mailing of weapons like a bulky sawed off shotgun approximately two feet in length. We must then synthesize from the fabric o f the law of vagueness a standard of certainty. The verbal expression of this standard o f certainty required in penal statutes is less difficult than the application of that standard to a particular case.3 Mr. Sutherland, in Connally v. General Construction Co., 269 U.S. 385, aptly expressed the general standard of certainty required in penal statutes when he wrote: “ . . .that the terms o f a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well recognized rule; consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing o f an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law. Connally v. General Construction Co., Supra, at 391.4 The language o f the statute questioned at Bar, must be tested against this often quoted standard of 3See Winters v. New York 333 U.S. 507, 518 (1947) where the Court required three oral arguments before applying the standard to that case. 4In accord with the expression in Lanzetta v. New Jersey 306 U.S. 541 (1939) Winters v. New York, Supra, U.S. v. Harriss, 347 U.S. 612, Herndon v. Lowry, 301 U.S. 242. 63 6 certainty.5 Indeed, there is sound reasoning behind such a requirement of certainty in criminal statutes. Vague or uncertain laws offend several important values. First, vague statutes provide no guide by which men can steer between lawful and unlawful conduct. Grayned v. City o f Rockford, 408 U.S. 104. Second, vague laws are a breeding ground for arbitrary and discriminatory enforcement and impermissibly delegate to police; judges, and juries the resolution of legislative policy; often on an ad hoc and subjective basis. Grayned v. City o f Rockford, Supra. However, the difficulty of vagueness law lies not with the concept but with its application. It is often a difficult decision to determine when and where to draw the line between lawful and unlawful conduct. Because of this difficulty in application, Courts will often attempt to balance the vagueness of the statute against the social desirability of the particular legislative policy which the Court believes the statute is meant to reach.6 However, such a balance would be improper. An application o f the vagueness doctrine by result is improper and lends itself to a subjective standard. The Court must, instead, resort to some objective criteria when determining the breadth of a penal statute. Respondent contends that Section 1715, when applied 5 Petitioner suggests that since this is not a first amendment case then a standard even less than that found in the Connally case should apply. However, Connally itself was not a first amendment case. In first amendment cases a test more strict than that in Connally would apply. 6Petitioner seems to argue this ‘result oriented application.’ Respondent’s actions should be unlawful according to petitioner therefore, we should relax the level o f certainty required to include respondent’s activity. 64 7 to sawed off shotguns and weapons similar in size, does not pass the objective test of certainty set forth in the Connally case.7 * Section 1715 prohibits the mailing o f pistols, revolvers and other firearms capable o f being concealed on the person. Applying the principles of statutory construction® the more general language o f the statute (firearms), will be modified and limited by the more specific language of the statute (pistols and revolvers). A reasonable construction o f the statute would then dictate that the scope o f conduct proscribed is the mailing of concealable firearms such as pistols and revolvers. The word firearms is not such a technical word that it would offer any restrictive definition in and o f itself. Neither does the word firearm have any well known common law meaning. In fact, the Supreme Court of Colorado, when interpreting the word firearm in a similar statute, concluded that its meaning would not include sawed off shotguns and other shoulder type weapons. Cokley v. People 450 P.2d 1013 (Colorado 7 The decisions upholding statutes challenged as vague seem to center on the fact that the words or phrases used in the challenged statute have either a technical or special meaning well enough known to enable those within the reach o f the statute to correctly discern their meaning; or the words or phrases have generally known common laws meaning. C onnally v. G eneral C on stru ction Co. 2 6 9 U.S. 385. ®The ejusdem generis principle of statutory construction sets forth this rule. The principle is not used, as petitioner argues, to defeat the meaning o f 1715. Moreover, it is used as a guide of statutory construction to determine the meaning of 1715 as presently written. 65 8 Sup. Ct. 1972).9 Therefore, the use o f the word firearm does little to remove the uncertainty o f the statute. Furthermore, the language “capable o f being con cealed on the person,” does not, in and o f itself, offer a discernible standard. The Court o f Appeals indicated that when they asked; “Did Congress intend that this ‘person’ be the person mailing the firearm, the person receiving the firearm, or, perhaps an average person, mail [sic] or female, wearing whatever garb might be reasonably appropriate, wherever the place and whatever the season” (Pet. App. 2a-3a) The Court of Appeals vividly expressed the inability of the language “capable of being concealed on the person” to offer some discernible standard. Therefore, the pertinent language o f the statute does not have any clear or well known meaning and does not in and o f itself provide any standard o f certainty sufficient to meet the requirements o f the Connally case. In fact, the only language in the statute having such a common meaning and offering any discernible standard is the phrase “pistols and revolvers.” It seems then from the standpoint o f statutory construction the statute would not involve sawed off shotguns. Furthermore, from the standpoint of the definition o f the words of the statute, the phrase “firearms capable of being concealed on the person” does not consist o f words of technical meaning or 9That is not to say that this Court need adopt the reasoning of the Colorado Court. However, the very fact that the Colorado Supreme Court would interpret firearms as not including sawed off shotguns would indicate that the words meaning is, at least, given to different interpretations by men o f common intelligence. 66 9 generally known common law meaning so as to inject into this portion of the statute the required degree of constitutional certainty. Even the history o f the statute does not specifically mention shoulder type weapons. Congress was, in enacting this statute, principally concerned with pro hibiting the mailing o f pistols and revolvers. It is the pistol and revolver that are most often used in strong arm robberies and other violent crimes. They are easily concealed and easily transported by the mails. If Congress had intended that the statute prohibit the mailing o f modified shotguns and other similar shoulder weapons, Congress could have easily drafted the statute along those lines. Indeed, Congress has drafted other legislation that has specifically defined these types of weapons.10 Finding a discernible standard in the language “firearms capable of being concealed” presents many of the same problems that the Court found in interpreting the phrase “current rate o f wages” in Connally v. General Construction Co., Supra. There the Court wrote, “The “current rate of wages” is not simple, but progressive—from so much (the minimum) to so much (the maximum), including all in between; and to direct the payment of an amount which shall not be less than one of several different amounts, without saying which, is to leave the question of what is meant incapable of any definite answer.” 10That is not to argue that the statute is vague because there was more precise language available to Congress. The argument is offered only to demonstrate that Congress is mindful o f the distinction between handguns and shoulder weapons. 10 The statute at Bar has a similar defect. Petitioner argues that there is at least some standard in 1715; presumably found between pistols (the minimum) and (inferentially at least) full sized rifles and shotguns (the maximum), and that respondent finds herself some where in between. However, without language in the statute drawing a finer line than this, what is meant by “firearms capable o f being concealed on the person” is incapable o f any definite answer. It would only be left for the respondent and others to speculate or conjecture as to where the dividing line falls between lawful and unlawful conduct. A statute that requires this kind of speculation is repugnant to the funda mental principles o f due process. This is not a case of degree as was the case o f Nash v. United States 229 U.S. 373. Before one’s fate will depend on estimating rightly as the jury may later estimate in terms of degree, one must first be clearly within the zone of prohibited conduct. An example of degree would be whether or not a specific act of homicide (the prohibited conduct) would amount to first degree murder, second degree murder or man slaughter. In the statute at Bar, sawed off shotguns are not clearly within the statutes proscription, so as to make the question at Bar merely one o f degree. Petitioner argues that specificity in criminal statutes is not necessarily beneficial and therefore, should not be required in every case. While that statement may be true from the standpoint of efficient law enforcement, it is not true from the standpoint o f due process. While due process is tolerant o f general language in areas where the policy legislated is a difficult concept to 68 11 express (e.g. Condition o f Peonage),11 due process is not tolerant of general language in areas capable of more definite conceptualization. Otherwise, general statutes, under the guise of efficient administration of justice, would permit arbitrary and discriminatory enforcement by police and upset a fundamental check and balance o f our criminal justice scheme. It has not been shown here, and could not be shown, that the policy of 18 U.S.C. 1715, was a difficult concept to express, therefore necessitating broad and general language. Congress had little trouble expressing a similar concept in 18 U.S.C. 921, with very precise language. 11 11 Although if a first amendment protected right is at stake even general language is not tolerated. See Cramp v. Board of Public Instruction 368 U.S. 278; Groyned v. City of Rockford, Supra, (Vagrancy statute); Papachruston v. City of Jacksonville 405 U.S. 156. 69 12 CONCLUSION In conclusion then, respondent respectfully submits that the “other firearms capable of being concealed on the person” provision o f 18 U.S.C. 1715, as applied to sawed off shotgun and other similar type weapons, does not offer a discernible standard of conduct by which men of ordinary intelligence can fairly estimate the statute’s prohibitions, and that portion o f the statute is, as applied, unconstitutionally vague and violative o f the due process clause o f the United States Constitution. It being so, this Court should uphold and affirm the ruling of the Court o f Appeals, reversing respondent’s conviction. Respectfully submitted, JERRY J. MOBERG P.O. Box “L” Moses Lake, WA 98837 A ttorney for Respondent 70 LawReprints pub,ications 37 WEST 2 0 STREETB NEW YORK. N Y. 10011