U.S. v. Simpson

• Decision Date: 30 September 1977
• Docket Number: No. 77-1108,77-1108
• Citation: 561 F.2d 53
• Parties: 3 Media L. Rep. 1305 UNITED STATES of America, Plaintiff-Appellee, v. Lewis Leonard SIMPSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 53

561 F.2d 53

3 Media L. Rep. 1305

UNITED STATES of America, Plaintiff-Appellee, v. Lewis Leonard SIMPSON, Defendant-Appellant.

No. 77-1108.

United States Court of Appeals, Seventh Circuit.

Argued June 6, 1977.

Decided July 29, 1977.

Rehearing Denied Sept. 30, 1977.

Richard Kammen, Indianapolis, Ind., for defendant-appellant.

James B. Young, U.S. Atty., John L. Hudgins, Asst. U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, TONE, Circuit Judge, and DECKER, District Judge. ^*

TONE, Circuit Judge.

Defendant Simpson used the citizens band radio transmitter in his home to broadcast explicit references to sexual activities, descriptions of sexual and excretory organs, and abusive epithets directed to other radio operators with whom he was communicating, all in street vernacular. His broadcasts were received not only on citizens band radio but on AM radio, television, and telephones. We must decide whether he was properly convicted of violating 18 U.S.C. § 1464, which makes it an offense to "utters . . . obscene, indecent, or profane language by means of radio communication," when the jury found his language was "indecent" but not "obscene." (The court ruled that "profanity" was not involved.)

The CB radio transmitter was licensed to Simpson's former wife, who, although divorced from him, had lived in his home until about three months before he made the first of a series of transmissions, only one of which was the subject of the § 1464 charge. Both he and she used the transmitter while they lived together, and there is no evidence that she had ever forbidden him to use it. The second issue in this case is whether he was properly convicted of knowingly and wilfully broadcasting without a license in violation of 47 U.S.C. §§ 301 and 501.

Simpson was sentenced to imprisonment for one year on the § 1464 count and six months, to be served concurrently with the one year, on each of six § 501 counts.

I.

The District Court withdrew from the jury the issue of whether the language was profane, submitting forms of verdict which permitted them to decide the issues of obscenity and indecency, as defined by the court, separately. The jury's determination in its guilty verdict that the broadcast was "indecent" but not "obscene" requires us to decide whether those two words, as used in the statute, have different meanings. ¹

In his instructions to the jury the district judge first defined "obscene" in accordance with Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), and then defined "indecent." The only difference between the two definitions was that the first element of the Miller definition, "appeal to the prurient interest in sex," 413 U.S. at 24, 93 S.Ct. at 2615, was omitted in the definition of indecent. ²

Given the ordinary meaning of the words in the phrase "obscene, indecent, or profane," the disjunctive "or," the presumption against redundancy, and the apparent purpose of the provision, which was to make radio broadcasts acceptable in the home, it was not unreasonable for the District Court to impute to Congress an intent to use "indecent" in the sense stated in the instruction. Section 1464, however, must be interpreted in the light of its statutory surroundings and the history of judicial interpretation of the word "indecent" in other similar federal statutes, which apparently were not called to the attention of the district judge.

Section 1464, which is entitled, "Broadcasting obscene language," appears with four other sections in Chapter 71 of Title 18 of the United States Code, which is entitled, "Obscenity." The other four sections prohibit, in the words of their titles, "Mailing obscene or crime-inciting matter" (§ 1461), "Importation or transportation of obscene matters" (§ 1462), "Mailing indecent matter on wrappers or envelopes" (§ 1463), and "Transportation of obscene matters for sale or distribution" (§ 1465). In each of these sections, as in § 1464, the word "indecent" is used in conjunction with other adjectives, at least one of which is invariably "obscene." Thus the maxim of construction noscitur a sociis is not irrelevant.

There is a difference between the context in which "indecent" is found in § 1464 and its context in each of the other four sections in chapter 71. In § 1464 the word has only two companion adjectives, "obscene" and "profane." Quite clearly "profane," which is not found in any other section of the chapter, was intended to mean something different from "obscene," see Duncan v. United States, 48 F.2d 128, 133-134 (9th Cir.), cert. denied, 283 U.S. 863, 51 S.Ct. 656, 75 L.Ed. 1468 (1931), ³ and we might expect that " indecent" was also. On the other hand, we would ordinarily expect a word found in each of five sections comprising a chapter of the United States Code to mean the same thing wherever it appears in the chapter. To resolve the ambiguity we must look beyond the statute.

The history of the federal statutes bearing on obscenity is described in Manual Enterprises, Inc. v. Day, 370 U.S. 478, 82 S.Ct. 1432, 8 L.Ed.2d 639 (1962), at 483-484 n.5, 82 S.Ct. at 1434 (opinion of Harlan, J.) and at 500-511, 82 S.Ct. at 1443-1449 (opinion of Brennan, J.). See also id. at 521-523, 82 S.Ct. at 1454-1455 (opinion of Clark, J., dissenting). Most of the cases arose under the mailing statute, now § 1461. In Swearingen v. United States, 161 U.S. 446, 450-451, 16 S.Ct. 562, 563, 40 L.Ed. 765 (1896), the Court held that the words "obscene, lewd and lascivious" in the predecessor to § 1461 described a single offense, and signified "that form of immorality which has relation to sexual impurity . . . (and is) . . . calculated to corrupt and debauch the minds and morals . . . ." Later decisions held that the words "indecent, filthy or vile" in that section are qualified by the preceding words "obscene, lewd and lascivious," and that all refer to matters of sex and connote prurient appeal. See Flying Eagle Publications, Inc. v. United States, 273 F.2d 799, 803 (1st Cir. 1960), aff'd after remand, 285 F.2d 307, 308 (1st Cir. 1961). Mr. Justice Harlan, in his Manual Enterprises opinion, 370 U.S. at 482-484, 82 S.Ct. at 1434, said of those six words used in § 1461,

"While in common usage the words have different shades of meaning, the statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex. Although the statute condemns such material irrespective of the effect it may have upon those into whose hands it falls, the early case of United States v. Bennett, 24 Fed.Cas. 1093 (no. 14571), (Cir.Ct., S.D.N.Y. 1879 (three judges)) put a limiting gloss upon the statutory language: the statute reaches only indecent material which as now expressed in Roth v. United States (354 U.S. 476 (1957)) at 489 (77 S.Ct. 1304 at 1311, 1 L.Ed.2d 1498) 'taken as a whole appeals to prurient interest.' " (Footnotes omitted and emphasis in original.) ⁴

This passage was quoted with approval by the Court in Hamling v. United States, 418 U.S. 87, 112, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

The phrase "obscene, indecent, or profane" in § 1464 originated in § 29 of the Radio Act of 1927, ch. 169, 44 Stat. 1162, 1173. Nothing in the legislative history of that Act explains the word "indecent" or indicates that it was intended to have a meaning different from that which it bears in other similar statutes. ⁵ The only relevant passages, which appear in the transcripts of the hearings, indicate that "obscenity" was the concern of those members of Congress who spoke and that the statute regulating the mailing of obscene matter, now § 1461, was thought to be a pertinent analog. ⁶

In construing § 29 of the Radio Act in Duncan v. United States, supra, the Ninth Circuit relied upon the decisions interpreting the predecessors of § 1461. That body of law led the court to conclude that the language used by the defendant in that case, although "vulgar, scurrilous, and indecent in the popular sense of the term . . . is not obscene or indecent within the meaning of those terms as universally applied in the administration of the criminal law," because the test was prurient appeal:

"The test is as to whether or not the language alleged to be obscene would arouse lewd or lascivious thought in the minds of those hearing or reading the publication."

48 F.2d at 132.

The few cases subsequent to Duncan which deal with the meaning of "indecent" in § 1464, without much discussion of the question of interpretation and none of the long history of the construction of the word in the cases under the mailing statute, decide or assume that "indecent" has a meaning different from that of "obscene." Thus, in Gagliardo v. United States, 366 F.2d 720, 725 (9th Cir. 1966), the court held that the language charged was not obscene because it was not likely to appeal to the prurient interest or "arouse the animal passions, but rather was made during a moment of anger," but reversed for a new trial for failure to instruct on the meaning of "indecent." The court read Duncan as not equating indecent with obscene without explaining its rationale for this interpretation. Id. at 725 n.7. This court, in two cases decided in 1972, dealt with the word "indecent" in § 1464. Tallman v. United States, 465 F.2d 282, 285-286 (7th Cir. 1972); United States v. Smith, 467 F.2d 1126, 1130 (7th Cir. 1972). In Tallman, in which the government contended only that the language charged was obscene, not indecent or profane, the court rejected a challenge to the facial validity of the statute grounded in the vagueness of "indecent" and "profane." ⁷ In Smith, the jury had also been instructed that, even though the indictment charged "obscene, indecent, or profane" language, "the gist of the offense alleged . . . is . . . that the defendant broadcast obscene language." The court, reversing for failure to instruct on scienter, stated that the evidence "would have more...