United States v. Powell, No. 74-884

CourtUnited States Supreme Court
Writing for the CourtREHNQUIST
Citation46 L.Ed.2d 228,423 U.S. 87,96 S.Ct. 316
PartiesUNITED STATES, Petitioner, v. Josephine M. POWELL
Docket NumberNo. 74-884
Decision Date02 December 1975

423 U.S. 87
96 S.Ct. 316
46 L.Ed.2d 228
UNITED STATES, Petitioner,

v.

Josephine M. POWELL.

No. 74-884.
Argued Oct. 6, 1975.
Decided Dec. 2, 1975.
Syllabus

Respondent was convicted of violating 18 U.S.C. § 1715, which proscribes mailing pistols, revolvers, and "other firearms capable of being concealed on the person," by having sent a 22-inch sawed-off shotgun through the mails. There was evidence at the trial that the gun could be concealed on an average person. The Court of Appeals reversed, holding that the quoted portion of § 1715 was so vague as to violate due process. In addition to the constitutional claim respondent contends that as a matter of statutory construction, particularly in light of the ejusdem generis doctrine, the quoted portion does not embrace sawed-off shotguns. Held :

1. The narrow reading of the statute urged by respondent does not comport with the legislative purpose of making it more difficult for criminals to obtain concealable weapons, and the rule of ejusdem generis may not be used to defeat that purpose. Here a properly instructed jury could have found the shotgun mailed by respondent to have been a "firearm capable of being concealed on the person" within the meaning of § 1715. Pp. 90-91.

2. Section 1715 intelligibly forbids a definite course of conduct (mailing concealable firearms) and gave respondent adequate warning that mailing the gun was a criminal offense. That Congress might have chosen "(c)learer and more precise language" equally capable of achieving its objective does not mean that the statute is unconstitutionally vague. United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 1541, 91 L.Ed. 1877. Pp. 92-94.

9 Cir., 501 F.2d 1136, reversed.

Frank H. Easterbrook, Washington, D. C., for petitioner, pro hac vice, by special leave of Court.

Page 88

Jerry J. Moberg, Moses Lake, Wash., for respondent, pro hac vice, by special leave of Court.

Mr. Justice REHNQUIST delivered the opinion for the Court.

The Court of Appeals in a brief per curiam opinion held that portion of an Act of Congress prohibiting the mailing of firearms "capable of being concealed on the person," 18 U.S.C. § 1715, to be unconstitutionally vague, and we granted certiorari to review this determination. 420 U.S. 971, 95 S.Ct. 1390, 43 L.Ed.2d 651 (1975). Respondent was found guilty of having violated the statute by a jury in the United States District Court for the Eastern District of Washington, and was sentenced by that court to a term of two years' imprisonment. The testimony adduced at trial showed that a Mrs. Theresa Bailey received by mail an unsolicited package from Spokane, Wash., addressed to her at her home in Tacoma, Wash. The package contained two shotguns, shotgun shells, and 20 or 30 hacksaw blades.

While the source of this package was unknown to Mrs. Bailey, its receipt by her not unnaturally turned her thoughts to her husband George, an inmate at nearby McNeil Island Federal Penitentiary. Her husband, however, disclaimed any knowledge of the package or its contents.1 Mrs. Bailey turned the package over to federal officials, and subsequent investigation disclosed that both of the shotguns had been purchased on the same date. One had been purchased by respondent, and another by an unidentified woman.

Page 89

Ten days after having received the first package, Mrs. Bailey received a telephone call from an unknown woman who advised her that a second package was coming but that "it was a mistake." The caller advised her to give the package to "Sally." When Mrs. Bailey replied that she "did not have the address or any way of giving it to Sally," the caller said she would call back.2

Several days later, the second package arrived, and Mrs. Bailey gave it unopened to the investigating agents. The return address was that of respondent, and it was later determined that the package bore respondent's handwriting. This package contained a sawed-off shotgun with a barrel length of 10 inches and an overall length of 221/8 inches, together with two boxes of shotgun shells.

Respondent was indicted on a single count of mailing a firearm capable of being concealed on the person (the sawed-off shotgun contained in the second package), in violation of 18 U.S.C. § 1715.3 At trial there was evidence that the weapon could be concealed on an average person. Respondent was convicted by a jury which was instructed that in order to return a guilty verdict it must find that she "knowingly caused to be delivered by mail a firearm capable of being concealed on the person."

She appealed her judgment of conviction to the Court of Appeals, and that court held that the portion of

Page 90

s 1715 proscribing the mailing of "other firearms capable of being concealed on the person" was so vague that it violated the Due Process Clause of the Fifth Amendment to the United States Constitution. 501 F.2d 1136 (1974). Citing Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939), the court held that, although it was clear that a pistol could be concealed on the person, "the statutory prohibition as it might relate to sawed-off shotguns is not so readily recognizable to persons of common experience and intelligence." 501 F.2d, at 1137.

While the Court of Appeals considered only the constitutional claim, respondent in this Court makes a statutory argument which may fairly be described as an alternative basis for affirming the judgment of that court. She contends that as a matter of statutory construction, particularly in light of the doctrine of ejusdem generis, the language "other firearms capable of being concealed on the person" simply does not extend to sawed-off shotguns. We must decide this threshold question of statutory interpretation first, since if we find the statute inapplicable to respondent, it will be unnecessary to reach the constitutional question, Dandridge v. Williams, 397 U.S. 471, 475-476, 90 S.Ct. 1153, 1156, 25 L.Ed.2d 491 (1970).

The thrust of respondent's argument is that the more general language of the statute ("firearms") should be limited by the more specific language ("pistols and revolvers") so that the phrase "other firearms capable of being concealed on the person" would be limited to "concealable weapons such as pistols and revolvers."

We reject this contention. The statute by its terms bans the mailing of "firearms capable of being concealed on the person," and we would be justified in narrowing the statute only if such a narrow reading was supported by evidence of congressional intent over and above the language of the statute.

Page 91

In Gooch v. United States, 297 U.S. 124, 128, ...

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476 practice notes
  • U.S. v. Angiulo, Nos. 86-1331
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 7, 1989
    ...exists regarding the precise reach of the statute in marginal fact situations not currently before us. See United States v. Powell, 423 U.S. 87, 93, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975). Rather, in the absence of first amendment considerations, vagueness challenges must be examined in l......
  • Al Bahlul v. United States, No. 11–1324
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 20, 2016
    ...Mazurie , 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) ; Broadrick , 413 U.S. at 610, 93 S.Ct. 2908 ; United States v. Powell , 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975).It is by now a maxim that a facial attack on a criminal statute simply cannot prevail where the law ......
  • State v. Jones, No. 13523
    • United States
    • Supreme Court of Connecticut
    • May 29, 1990
    ...attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue. United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 [1975]; United States v. Mazurie, 419 [215 Conn. 180] U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 [1......
  • Parker v. State, F062490, F062709
    • United States
    • California Court of Appeals
    • November 6, 2013
    ...correctly, that is, as the jury subsequently estimates it. ( Id. at p. 654, 139 Cal.Rptr. 45, quoting United States v. Powell (1975) 423 U.S. 87, 93, 96 S.Ct. 316, 46 L.Ed.2d 228 ( Powell ).)Fourth, I would find the challenged language, as construed, sufficiently certain to survive this cha......
  • Request a trial to view additional results
475 cases
  • U.S. v. Angiulo, Nos. 86-1331
    • United States
    • U.S. Court of Appeals — First Circuit
    • November 7, 1989
    ...exists regarding the precise reach of the statute in marginal fact situations not currently before us. See United States v. Powell, 423 U.S. 87, 93, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975). Rather, in the absence of first amendment considerations, vagueness challenges must be examined in l......
  • Al Bahlul v. United States, No. 11–1324
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • October 20, 2016
    ...Mazurie , 419 U.S. 544, 550, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) ; Broadrick , 413 U.S. at 610, 93 S.Ct. 2908 ; United States v. Powell , 423 U.S. 87, 92, 96 S.Ct. 316, 46 L.Ed.2d 228 (1975).It is by now a maxim that a facial attack on a criminal statute simply cannot prevail where the law ......
  • State v. Jones, No. 13523
    • United States
    • Supreme Court of Connecticut
    • May 29, 1990
    ...attacked as void for vagueness is determined by the statute's applicability to the particular facts at issue. United States v. Powell, 423 U.S. 87, 92, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 [1975]; United States v. Mazurie, 419 [215 Conn. 180] U.S. 544, 550, 95 S.Ct. 710, 714, 42 L.Ed.2d 706 [1......
  • Parker v. State, F062490, F062709
    • United States
    • California Court of Appeals
    • November 6, 2013
    ...correctly, that is, as the jury subsequently estimates it. ( Id. at p. 654, 139 Cal.Rptr. 45, quoting United States v. Powell (1975) 423 U.S. 87, 93, 96 S.Ct. 316, 46 L.Ed.2d 228 ( Powell ).)Fourth, I would find the challenged language, as construed, sufficiently certain to survive this cha......
  • Request a trial to view additional results

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