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Tallman v. United States

decided: July 6, 1972.


Cummings and Stevens, Circuit Judges, and Campbell, Senior District Judge.*fn1

Author: Cummings

CUMMINGS, Circuit Judge.

In October 1968, petitioner was indicted for violating 18 U.S.C. § 1464*fn2 by uttering "obscene, indecent, or profane language by means of radio communication" on various occasions in 1968. After a jury trial, he was found guilty under Counts I, III and IV of the indictment. The other three Counts were dismissed by the Government.

Under Count I, he was confined to a jail-type institution for 60 days and placed on probation for three years thereafter. Under Counts III and IV, he was also placed on probation for three years, to run concurrently "with each other and with the probation granted on Count One (1)." He was released from confinement on February 26, 1970. According to the United States Probation Officer in charge, the probation period on Count I ended on June 26, 1971, and the probation periods on Counts III and IV are to end on February 25, 1973.*fn3

Petitioner was denied leave to file a belated appeal, and in May 1971, he filed a motion to vacate the trial judgment under 28 U.S.C. § 2255. That motion was denied by the district court on the ground that the files and records in the criminal case conclusively show that petitioner is entitled to no relief. This appeal followed.

In his Section 2255 motion, petitioner contends that he has standing since he is still in the custody of a probation officer, subject to certain conditions of probation. The Government concedes that he had standing to sue. The grounds now advanced for vacating the sentences imposed are:

(1) 18 U.S.C. § 1464 is unconstitutional on its face because in failing to require scienter and in punishing "profane" or "indecent" utterances it violates the First Amendment and because it thereby is so vague as to run afoul of the Fifth Amendment;

(2) The indictment was defective for the same reasons rendering the statute facially unconstitutional; and

(3) The statute as applied was unconstitutional because the trial court failed to define "profane" or "indecent," failed to instruct the jury on the requirement of scienter, and misdefined obscenity.

Federal courts are loath to rewrite state statutes or municipal ordinances to save their constitutionality. However, with respect to Acts of Congress, we will give them a construction to bring them in harmony with constitutional requirements when fairly possible to do so. United States v. Thirty-Seven Photographs, 402 U.S. 363, 368-369, 91 S. Ct. 1400, 28 L. Ed. 2d 822; 3 Sutherland, Statutory Construction (3d ed.) § 5904. Applying this cardinal principle to petitioner's argument that Section 1464 fatally fails to require scienter, we reject that argument. As to scienter Morissette v. United States, 342 U.S. 246, 72 S. Ct. 240, 96 L. Ed. 288, still remains the most illuminating guide. There Congress omitted any express prescription of criminal intent or kindred phrases from a statute providing for imprisonment or fine for a person who "embezzles, steals, purloins, or knowingly converts" government property (18 U.S.C. § 641).*fn4 Speaking for the Court, Mr. Justice Jackson determined that where offenses have their ancestry in common law, such terms as criminal intent, guilty knowledge, willfulness, scienter or mens rea will be read into statutes, which do not purposely omit them, "to protect those who were not blameworthy in mind from conviction of infamous common-law crimes." 342 U.S. at 252, 72 S. Ct. at 244. In Smith v. California, 361 U.S. 147, 153, n. 9, 80 S. Ct. 215, 219, 4 L. Ed. 2d 205, it was stated that "common-law prosecutions for the dissemination of obscene matter strictly adhered to the requirement of scienter." Accordingly, under the Morissette rationale, we hold that scienter is an ingredient of the crime charged here.*fn5 The Ninth Circuit has similarly concluded that wrongful intent is a pertinent and necessary element for conviction under 18 U.S.C. § 1464. Gagliardo v. United States, 366 F.2d 720, 724 (9th Cir. 1966). The district judge also so understood, for he instructed the jury on "willfully," "knowingly" and intent. Since this statute is authoritatively construed to require the vital mental state, it is not facially deficient under either the First or Fifth Amendment for omitting scienter. Mishkin v. New York, 383 U.S. 502, 510-511, 86 S. Ct. 958, 16 L. Ed. 2d 56; Amato v. Ruth, 332 F. Supp. 326, 331 (W.D.Wis.1970).

Petitioner next contends that the statute is facially unconstitutional because it employs the terms "indecent" or "profane." The term "indecent" was upheld against constitutional attack in Roth v. United States, 354 U.S. 476, 491, 77 S. Ct. 1304, 1 L. Ed. 2d 1498, and the term "profane" was inferentially approved in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 573, 62 S. Ct. 766, 86 L. Ed. 1031; see also Tate v. Board of Education, etc., 453 F.2d 975, 980 (8th Cir. 1972). Indeed these terms are hardly paragons of precision, but as the Supreme Court emphasized in Roth, it "has consistently held that lack of precision is not itself offensive to the requirements of due process * * *. All that is required is that the language 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.'" 354 U.S. at 491, 77 S. Ct. at 1312. The Court therein quoted with approval its 1896 pronouncement in Rosen v. United States, 161 U.S. 29, 42, 16 S. Ct. 434, 40 L. Ed. 606, that "* * * every one who uses the mail of the United States for carrying papers or publications must take notice of what, in this enlightened age, is meant by decency * * *." 354 U.S. at 491, n. 28, 77 S. Ct. at 1312. "Profane" is, of course, capable of an overbroad interpretation encompassing protected speech, but it is also construable as denoting certain of those personally reviling epithets naturally tending to provoke violent resentment or denoting language which under contemporary community standards is so grossly offensive to members of the public who actually hear it as to amount to a nuisance. Because this federal statute is perfectly harmonizable with the latter interpretations, it must be so construed to preserve its constitutional validity. See Gooding v. Wilson, 405 U.S. 518, 92 S. Ct. 1103, 31 L. Ed. 2d 408 (March 23, 1972); Chaplinsky v. New Hampshire, supra ; Williams v. District of Columbia, 136 U.S.App.D.C. 56, 419 F.2d 638, 646 (1969).

The trial judge did not undertake to define the terms "indecedent" and "profane," but he had no occasion to do so because he determined that petitioner's utterances were properly classifiable as "obscene," and accordingly instructed the jury only on the theory that the broadcasts might be found to be obscene (see infra). Yet the terms "indecent" and "profane" in this statute have been interpreted by other courts. Gagliardo v. United States, supra, 366 F.2d at 725; Duncan v. United States, 48 F.2d 128, 131-134 (9th Cir. 1931); see Williams v. District of Columbia, supra. Since this case was tried solely as an obscenity case, the district court rightly considered that "obscene" was the proper theory for submission of this case to the jury, so that instructions that the broadcasts could be found "indecent" or "profane" became unnecessary. Had the district court defined those terms, a constitutional challenge might lie in regard to the content of his definitions.

Petitioner's attack on the sufficiency of the indictment must fail because he is ill-postured to make it. It is well settled that the sufficiency of an indictment is not subject to collateral attack save in exceptional circumstances. Collins v. Markley, 346 F.2d 230, 232 (7th Cir. 1965) (defect must be of a "fundamental nature"); Castano v. United States, 313 F.2d 857, 858 (7th Cir. 1963); 2 Wright, Federal Practice and Procedure -- Criminal, § 594, p. 596; § 595, p. 607 (1969). As we said in United States v. Shelton, 249 F.2d 871, 874 (7th Cir. 1957), "On a motion to vacate the sentence under Section 2255, the sufficiency of the indictment cannot be questioned, unless it is so defective on its face as not to charge an offense under any reasonable construction." Petitioner's attack grounded on the absence of scienter and the vagueness of "indecent" and "profane" plainly does not meet this standard. See United States v. Bandy, 421 F.2d 646, 648 (8th Cir. 1970). Narrowing definitions of "indecent" and "profane" could be properly given in the trial judge's instructions in a case so requiring. The indictment was sufficient here in setting out the essential elements of the offense as they appear in the statute, together with the precise time and place of the utterances and the statement that the utterances themselves were not fit to print, for that recitation adequately apprised the accused of the nature of the offense charged and made effective pleading of a judgment as a bar to subsequent prosecution for the same offense. Similarly, in view of the content of the scienter requirement implied in the statute (see infra), the indictment need not allege that element; it is sufficient that the prosecution prove it and the jury be charged that finding it is essential to conviction. See United States v. Martell, 335 F.2d 764, 765 (4th Cir. 1964); Delaney v. United States, 199 F.2d 107, 117 (1st Cir. 1952); United States v. Zacher, 332 F. Supp. 883, 885 (E.D.Wis.1971).

Even though he made no objections to the instructions given and did not tender any instructions of his own, the petitioner contends the trial judge should have defined "profane" and "indecent" for the jury and misdefined "obscene" by omitting the requirement of scienter. Rule 30 of the Federal Rules of Criminal Procedure provides that "No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection." In Margoles v. United States, 407 F.2d 727, 735 (7th Cir. 1969), certiorari denied, 396 U.S. 833, 90 S. Ct. 89, 24 L. Ed. 2d 84, we indicated that this provision will be rigorously enforced when instructions are attacked collaterally under Section 2255. See Wright, op. cit., § 595, p. 618. Thus unless the effect of a plain ...

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