U.S. v. Heller, 77-5193

• Decision Date: 30 June 1978
• Docket Number: No. 77-5193,77-5193
• Citation: 579 F.2d 990
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James HELLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 990

579 F.2d 990

UNITED STATES of America, Plaintiff-Appellee, v. James HELLER, Defendant-Appellant.

No. 77-5193.

United States Court of Appeals Sixth Circuit.

Argued Nov. 30, 1977.

Decided June 30, 1978.

John Weglian, Toledo, Ohio (Court-appointed), for defendant-appellant.

Frederick M. Coleman, U. S. Atty., Patrick J. Foley, Asst. U. S. Atty., Toledo, Ohio, for plaintiff-appellee.

Before PHILLIPS, Chief Judge, and PECK and KEITH, Circuit Judges.

PECK, Circuit Judge.

Defendant-appellant was indicted on five counts of having willfully and knowingly transmitted in interstate commerce a communication that contained a demand and request for a ransom and reward for the release of a kidnapped person, conduct alleged to be in violation of 18 U.S.C. § 875(a). Appellant first entered a plea of not guilty to the charges and filed a motion to dismiss the indictment. The district court denied the motion to dismiss, and appellant changed his plea to Nolo contendere. The district court accepted the plea and entered judgment against appellant on all five counts of the indictment. Appellant was sentenced under the conviction on Count 1 to a term of imprisonment for days already served in pre-trial detention (approximately six months) and to a two year period of probation. The jurisdiction of the probation was transferred to the State of New York. Imposition of sentences under Counts 2 through 5 was suspended. Appellant then perfected an appeal to this Court. ¹ We reverse.

I

On five separate occasions in October, 1976, appellant called over the telephone from New York City, New York, to Toledo, Ohio, and spoke with a Mr. Robert Towne. During the conversations that appellant had with Mr. Towne, appellant requested $50,000 as an advance payment for his obtaining the release of a Mr. William Niehous, who, before being kidnapped in South America in February, 1975, had worked for the same company as Mr. Towne, Owens-Illinois, Inc. Appellant said that he knew where in Venezuela the kidnapping gang was holding Mr. Niehous, that he had been in contact with a few of the members of the kidnapping gang, and that he could free Mr. Niehous. During the last telephone conversation that appellant had with Mr. Towne, the FBI was able to trace the telephone call and to apprehend appellant in the phone booth that he was using for the call to Mr. Towne. ² According to representations made in the district court by counsel for appellee United States, appellant, after being apprehended, admitted to the FBI that he actually knew nothing of the whereabouts of Mr. Niehous and that he had had no contact with any kidnapping gang in Venezuela. ³

Appellant was indicted under 18 U.S.C. § 875(a). That statute provides:

Whoever transmits in interstate commerce any communication containing any demand or request for a ransom or reward for the release of any kidnapped person, shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.

Appellant initially sought to have the indictment dismissed. Appellant first argued that 18 U.S.C. § 875(a) was unconstitutional because it was overbroad and vague and because it stated a Malum prohibitum offense. Appellant also attacked the sufficiency of the indictment, arguing that it was fatally defective because it failed to give appellant proper notice of the offense with which he was charged and because it did not allege the proper Mens rea element of the offense, the intent to extort, which the statute required if it did not state a Malum prohibitum offense.

The district court rejected these contentions and denied appellant's motion to dismiss, holding that the statute, 18 U.S.C. § 875(a), sufficiently defined in precise and clear language the proscribed conduct, that appellant's Mens rea arguments were without merit, and that the indictment properly apprised appellant of the offense that he was alleged to have committed. Appellant's offer and the district court's acceptance of the Nolo contendere plea followed.

On appeal, appellant seeks to have this Court reverse the judgment against him and direct the district court to dismiss the indictment, raising the same objections to the prosecution that he did before the district court. Since we reverse on other grounds, we assume without deciding that the statute is not unconstitutionally vague or overbroad. We turn therefore to a consideration of (1) the criminal intent requirement under 18 U.S.C. § 875(a), and (2) the sufficiency of the indictment.

II

Appellant's constitutional challenges to 18 U.S.C. § 875(a) were based on the premise that the statute defined a Malum prohibitum offense as distinguished from a Malum in se crime. According to appellant, because of the absence of a provision requiring the presence of intent as an element of the offense, the statute was vague and overbroad in application. Appellant also contended that the due process limitations on Malum prohibita offenses were violated because 18 U.S.C. § 875(a) renders severe punishment.

The district court rejected appellant's arguments because it agreed with the appellee United States that the offense stated in 18 U.S.C. § 875(a) included a criminal intent element. We believe that the district court correctly rejected appellant's argument on this issue. 18 U.S.C. § 875(a) does not define a Malum prohibitum offense. The statute does cover highly dangerous conduct and carries a severe penalty. A defendant convicted of violating 18 U.S.C. § 875(a) can be sentenced to twenty years imprisonment and fined $5,000. The concept of Malum prohibitum crime simply does not square with that kind of an offense and with such severe punishment, which is reserved for the perpetuation of Malum in se crimes.

In Morissette v. United States, 342 U.S. 246, 255-56, 72 S.Ct. 240, 96 L.Ed. 288 (1952), the Supreme Court discussed the considerations behind the enactment of Malum prohibita offenses.

These cases do not fit neatly into any of such accepted classifications of common-law offenses, such as those against the state, the person, property, or public morals. Many of these offenses are not in the nature of positive aggressions or invasion, with which the common law so often dealt, but are in the nature of neglect where the law requires care, or inaction where it imposes a duty. Many violations of such regulations result in no direct or immediate injury to person or property but merely create the danger or probability of it which the law seeks to minimize. While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted. In this respect, whatever the intent of the violator, the injury is the same, and the consequences are injurious or not according to fortuity. Hence, legislation applicable to such offenses, as a matter of policy, does not specify intent as a necessary element. The accused, if he does not will the violation, usually is in a position to prevent it with no more care than society might reasonably expect and no more exertion that it might reasonably exact from one who assumed his responsibilities. Also, penalties commonly are relatively small, and conviction does no grave damage to an offender's reputation. Under such considerations, courts have turned to construing statutes and regulations which make no mention of intent as dispensing with it and holding that the guilty act alone makes out the crime. This has not, however, been without expressions of misgiving.

Certainly, if Congress attempted to define a Malum prohibitum offense that placed an onerous stigma on an offender's reputation and that carried a severe penalty, the Constitution would be offended, but Congress has been aware of the limitations on Malum prohibita offenses. In 1948, Congress revised and codified the Criminal Code. In that effort, a thorough examination was made of the punishment levied by the offenses stated in the Criminal Code, and in many cases the punishments were revised to fit the crimes. H.Rep.No. 304, 80th Cong., 1st Sess. (1947). In the House Report on the bill, ⁴ Congress defined Malum prohibita offenses.

Offenses mala prohibita: For situations of regulatory statutes, constituting mala prohibita, a maximum imprisonment penalty of 1 year seemed adequate. This prevents the stigma and consequence of a felony conviction from attaching to the defendant and, on the other hand, would facilitate and expedite prosecutions by making it possible to prosecute by information. Moreover, juries frequently are reluctant to convict any defendant if they know the potential maximum penalty is excessive, although it is seldom imposed in actual practice.

H.Rep.No. 304, 80th Cong., 1st Sess., p. A4 (1947).

In 1948, no changes were made in the punishment stated in what is now 18 U.S.C. § 875(a), and it strains credulity to think that Congress would overlook the penalties in 18 U.S.C. § 875(a) if in fact it intended the statute to state a Malum prohibitum offense. If we would have to imply an intent element to this offense, we would, because Congress is attempting to define a serious crime. Morissette v. United States, supra, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288. See also United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); United States v. Renner, 496 F.2d 922 (6th Cir. 1974); United States v. Johnson, 419 F.2d 56 (4th Cir. 1969); Holdridge v. United States, 282 F.2d 302 (8th Cir. 1960); Delaney v. United States, 199 F.2d 107 (1st Cir. 1952).

We need not rely on any process of implication, though, because of the legislative history of 18 U.S.C. § 875(a). See Morissette v. United States, supra, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288; United States v. Dotterweich, 320 U.S. 277, 64 S.Ct. 134, 88 L.Ed. 48 (1943); United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (19...