Roberts v. United States
| Decision Date | 25 October 1955 |
| Docket Number | No. 12411.,12411. |
| Citation | 226 F.2d 464 |
| Parties | Ira Coleman ROBERTS, Billy O'Niel Hughes, Appellants, v. The UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
L. E. Gwinn, Memphis, Tenn., for appellants.
J. Leonard Walker, argued Rhodes Bratcher, Louisville, Ky., on the Brief for appellee.
Before ALLEN, McALLISTER and MILLER, Circuit Judges.
Appellants, Ira Coleman Roberts and Billy O'Niel Hughes, were indicted for use of an interstate telephone call for the purpose of executing a scheme to defraud, in violation of Section 1343, Title 18, U. S. Code. Following trial by jury and a verdict of guilty, they received sentences of five years and three years respectively, from which these appeals were taken.
Section 1343, Title 18, U.S.Code, enacted July 16, 1952, provides as follows:
"Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of interstate wire, radio, or television communication, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined not more than $1,000 or imprisoned not more than five years, or both."
Appellants attack the constitutionality of the statute on the ground that it prescribes no rule by which to determine the nature of the "sounds" referred to in the statute, and as a consequence is so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, with the result that it is not sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties. Connally v. General Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322. The general principle relied upon by appellants is well recognized. The authorities cited by appellants, while supporting the general principle, have no material bearing upon the particular statute herein involved. In fact, due to its recent enactment, counsel have been able to find but one reported case under it, namely, Wiltsey v. United States, 4 Cir., 222 F.2d 600, decided May 26, 1955, in which a judgment of conviction was affirmed without discussion of the question of constitutionality.
We are of the opinion that the statute does not violate the constitutional principle relied upon. The word "sounds" must be considered together with their transmission by means of interstate wire, radio or television communication. So considered, the word is restricted in scope, and there is no necessity for a man of common intelligence to guess at its meaning or to have any doubt about it including the voice or speech of a human being. Nash v. United States, 229 U.S. 373, 376-378, 33 S.Ct. 780, 57 L.Ed. 1232; Fox v. State of Washington, 236 U.S. 273, 277-278, 35 S.Ct. 383, 59 L.Ed. 573.
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