Stevens, Circuit Judge, Durfee,*fn* Senior Judge, United States Court of Claims, and Eschbach,*fn** District Judge.
ESCHBACH, District Judge.
Defendant, Charles P. Smith, Jr., was indicted and convicted after a trial by jury of making an obscene, indecent, or profane radio communication in violation of 18 U.S.C. § 1464.*fn1 Defendant Smith appeals from that single-count conviction and has presented the following contentions for review:
(1) Title 18 U.S.C. § 1464 on its face runs afoul of the First Amendment in failing to require scienter and in punishing profane or indecent utterances, and such statute is so vague as to be violative of the Fifth Amendment.
(2) The indictment in the present case was insufficient for the same reasons, rendering the statute as applied unconstitutional.
(3) The trial court's refusal to define "profane" or "indecent in its instructions to the jury coupled with the refusal to instruct the jury that they could not find the defendant guilty if they merely found his alleged utterance to be profane or indecent was reversible error.
(4) The evidence is insufficient to sustain defendant's conviction of obscenity under 18 U.S.C. § 1464.
(5) Certain out-of-court voice identifications violated defendant's Fifth and Sixth Amendment rights.
(6) The trial court erred in refusing to instruct on defendant's theory of defense concerning entrapment.
We have concluded that the court below erred in failing to instruct the jury on the necessity of finding scienter as an essential element of 18 U.S.C. § 1464, and we therefore reverse and remand for further proceedings not inconsistent with this opinion.
In Tallman v. United States, 465 F.2d 282, 7th Cir., 1972, a related case to the one now before us, this court had occasion to pass upon many of the arguments now voiced by the petitioner. Tallman had been convicted under 18 U.S.C. § 1464 and was seeking to have his sentence vacated under 28 U.S.C. § 2255. Tallman contended, as does the petitioner here, that § 1464 is unconstitutional on its face and as applied in the indictment through its failure to require scienter ; that the statute and indictment were violative of the First and Fifth Amendments in attempting to punish profane or indecent utterances; and that the trial court erred in failing to define the terms "profane" or "indecent," and in failing to instruct the jury on the requirement of scienter.
In Tallman, supra, this court concluded that scienter is a pertinent and necessary element for conviction under § 1464 and that reading such required mental state into the statute cured it of any constitutional defects under either the First or Fifth Amendments. Tallman, sl. op. supra at 285. See also Gagliardo v. United States, 366 F.2d 720, 724 (9th Cir. 1966). This court further found that § 1464 was not facially void because it employed the terms "indecent" or "profane," since the statutory use of the term "indecent" had been upheld against constitutional attack in Roth v. United States, 354 U.S. 476, 491, 77 S. Ct. 1304, 1 L. Ed. 2d 1498 (1957) 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 (1942). Although the court in Tallman, supra, found the petitioner there to be ill-postured to directly attack the indictment, the court did state that the omission of the requirement of scienter in the indictment was not error in view of the court's holding that scienter was a necessary element for conviction, which element must be proved by the prosecution, and the jury charged that a finding of scienter is necessary for 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).
The conclusions reached in Tallman, supra, concerning the constitutional challenge to § 1464 on its face and as applied through the indictment are dispositive of that portion of appellant's challenge here.
The defendant here further argues that the failure of the trial court to properly instruct the jury on the requirement of scienter was reversible error. This same argument was urged by the petitioner in Tallman, supra, but the court in that case found the instruction given regarding specific intent to have been more than legally sufficient. The trial court in Tallman, supra, instructed the jury that they must find the defendant committed the alleged acts "voluntarily, with knowledge that it was prohibited by law and with the purpose of violating the law * * *." Although the instruction given in Tallman, supra, concerning specific intent went beyond what was legally required insofar as the jury was instructed that the defendant there must have known his ...