United States v. Powell Petition and Briefs

    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

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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.

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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

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