U.S. v. Powell
| Citation | 501 F.2d 1136 |
| Decision Date | 07 August 1974 |
| Docket Number | No. 74-1252,74-1252 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Josephine M. POWELL, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Gerald J. Moberg, Moses Lake, Wash., for defendant-appellant.
Dean C. Smith, U.S. Atty., James B. Crum, Asst. U.S. Atty., Spokane, Wash., for plaintiff-appellee.
Before MERRILL and ELY, Circuit Judges, and REAL, * District judge.
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 wit: A sawed-off shotgun.
18 U.S.C. 1715 provides in its pertinent part:
Appellant attacks her conviction on the basis that 18 U.S.C. 1715, insofar as it encompasses '. . . firearms (other than revolvers and pistols) capable of being concealed on the person,' is unconstitutionally vague in violation of the Fifth Amendment due process. We agree.
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 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 that 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 impermissible vagueness of the statute 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...
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