UNITED STATES v. POWELL

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Argument of Frank H. Easterbrook

Chief Justice Warren E. Burger: We will hear arguments next in United States against Powell, 74-884.

Mr. Easterbrook you may proceed when you are ready.

Mr. Frank H. Easterbrook: Mr. Chief Justice and may it please the Court.

The statute issue in this case provides that pistols, revolvers and other firearms capable of being concealed on the person are not mailable.

Interpretive regulations of the Postal Service provide that the phrase, all other firearms capable of being concealed on the person includes what is not limited to short barrel shotguns and riffles.

And that a short barrel shotgun includes but it is not limited to shotguns with barrels less than 18-inches in length and an overall length of less that 26-inches.

Respondent was indicted for mailing a sort-of shotgun from one part of the State of Washington to another.

The evidence introduced at trial demonstrated that a shotgun with a barrel length of 10-inches and an overall length of 22-inches sort of both on the barrel and on the stock was mailed by respondent to Mrs. Theresa Bailey who apparently was not its intended recipient.

Mrs. Bailey turned the weapon over to the FBI and the FBI turned the evidence over to the United States Attorney.

Respondent admitted buying a shotgun but denied ever having altered it or mailing it.

Unknown Speaker: What are the dimensions of this shotgun?

Mr. Frank H. Easterbrook: This shotgun had a barrel length of 10-inches and an overall length of 22-inches, actually 22 and 1/8-inches including the stock and the barrel.

Unknown Speaker: So it is well within the regulation?

Mr. Frank H. Easterbrook: It is well within the regulations and in fact it is well within the numerical definitions set out in other Federal Statutes and in the Washington State Statutes prohibits the possession of similar sort-of shotguns with barrels less than 12-inches in length.

The Jury was instructed that in order to convict, it had to find not only that respondent mailed the weapon but that the weapon was capable of being concealed on the person.

The Jury returned the verdict of guilty.

The Court of Appeals reversed, holding that the statute is vague as to all weapons that were designed as shoulder weapons.

Apparently no matter how small or readily concealable the weapon maybe or whether it was so altered that it is no longer capable of being used as a shoulder weapon.

The Court held that the phrase capable of being concealed on the person is so uncertain in scope and application that it cannot constitutionally be used by Congress and the Congress should instead have used numerical definitions as it has done in other statutes.

The Court did not refer the Postal Service Regulation and the Court made no attempts to clarify or construe the statute in such a way that it would alleviate the vagueness.

The only issue before the Court therefore is whether the phrase other firearms capable of being concealed on the person is so devoid if meaning that it cannot be used to support punishment even if the particular shotgun is, as the Jury found in this case, capable of being concealed on the person, and even if there is an entire class of weapons clearly capable of being concealed on the person, our point of departure is the general principle.

Unknown Speaker: Did the Court order (Inaudible)

Mr. Frank H. Easterbrook: No.

The Court never did your Honor.

It said as to all weapons that were designed as shoulder weapons on its face and it never reached to -- supplied to this person.

Unknown Speaker: That issue is still open --.

Mr. Frank H. Easterbrook: That issue is still open and it will be open on remand.

It seems to us quite possible that a sort-of shotgun of an overall length of 16-inches is clearly within the statute.

A sort-of shotgun with an overall length of 32-inches might or might not be within the statute and there would be a vagueness as applied argument as to such a shotgun.

Unknown Speaker: (Inaudible).

Mr. Frank H. Easterbrook: In this case.

Unknown Speaker: (Inaudible) by saying it is a sort-of shotgun.

Mr. Frank H. Easterbrook: That there are at least some sort-of shotguns plainly within that statute and —

Unknown Speaker: If you made that argument and we agreed with you, the issue would not be over.

Mr. Frank H. Easterbrook: If you agreed as to the argument as to all sort-of shotguns then it would not be open on remand.

Unknown Speaker: Would not that be a matter of fact, would you have to prove that as part of your case if you came in there with that 20-inch barrel?

Mr. Frank H. Easterbrook: Well, we proved as part of our case in this case that this particular weapon —

Unknown Speaker: If you prevail on this vagueness and if you prevail in asking us to reverse the judgment on this case, you would nonetheless have -- would you not have a burden proof in an ordinary prosecution of proving that this weapon is capable of being concealed on the person.

Mr. Frank H. Easterbrook: Yes, we would and that would be an issue –

Unknown Speaker: The Jury satisfaction beyond a reasonable doubt.

Mr. Frank H. Easterbrook: That is correct.

And that issue went to the Jury in this case and the Jury was satisfied beyond a reasonable doubt.

Unknown Speaker: Mr. Easterbrook, the only evidence in this case on that issue was to the effect that this weapon was capable of being concealed on the person.

So there is no conflict on as to that, is it not?

Mr. Frank H. Easterbrook: We do not believe there is any conflict on the evidence.

Unknown Speaker: Is there any evidence to the contrary?

Mr. Frank H. Easterbrook: One Federal Agent testified that the weapon was bulky enough that it might cause a bulge and might cause a bulge under the clothing if it is attempted to be concealed under the clothing and I think that created a fair issue for the Jury whether that bulge was so observable that the weapon was not capable of being concealed on the person in a realistic sense.

Justice Thurgood Marshall: Mr. Easterbrook, the word person is that a five foot or seven foot, 500 pound or 200 pound or 100 pound person.

That is the one that gets me in trouble.

Mr. Frank H. Easterbrook: The statute did not define the term 'person' Mr. Justice Marshall.

On the other hand I think the statute gives several clues that would enable someone who attempts to comply with the statute to understand the statute's meaning.

Perhaps the most important clue is the fact that the statute provides that it applies to weapons capable of being concealed on the person.

That would presumably mean a person who was determined to conceal it and was wearing whatever clothing was necessary to conceal it.

More over it seems reasonable that it would include at least a person of average size and perhaps a person who could be chosen for concealing the weapon.

That is a fairly large person.

Pardon?

Unknown Speaker: (Inaudible)

Mr. Frank H. Easterbrook: The term person is one that applies to people of different sizes and I think there is nothing we can do to make that go away.

Unknown Speaker: (Inaudible)

Mr. Frank H. Easterbrook: As a question of fact for the Jury it might well make a difference.

Chief Justice Warren E. Burger: On the matter of this bulge, I suppose a snub-nose 38 caliber pistol commonly worn by police officers often in fact creates a bulge that is noticeable.

Mr. Frank H. Easterbrook: I think so when worn under a jacket—

Chief Justice Warren E. Burger: But clearly that would be subject to the statute, would it not?

Mr. Frank H. Easterbrook: I think so.

And the same argument about the size of the person is remarkable with weapons no matter how small those weapons maybe.

For example, a very slight person wearing tight fitting clothing could not conceal the pistol, no matter how small that pistol might be.

It would always have a tell-tale bulge.

Chief Justice Warren E. Burger: Listen if you took the four-ten gauge shotgun and cut it down to 8-inches and cut the stock down to a pistol grip which has been done, you could conceal it by strapping it on your leg, could you not?

Mr. Frank H. Easterbrook: I think so your Honor and there was—

Chief Justice Warren E. Burger: And wear a tight pants.

Mr. Frank H. Easterbrook: There was testimony in this case that the place in which this shotgun could be usefully concealed is under a pants leg.

And since both men and women wear pants, presuming that includes respondent’s pants like.

Chief Justice Warren E. Burger: When you are outside of the First Amendment, what do you conceive to be the difference between vague as applied and vague on its face?

Mr. Frank H. Easterbrook: Our position is that the concept of vague on its face simply has no meaning outside the First Amendment area.

And that the argument, someone has to make use of this the statute did not give him notice that his particular conduct was within the statute's prescription.

To the extent it has any meaning at all, it is a very delicate argument that there is no meaning in the statute.

Unknown Speaker: (Inaudible)

Mr. Frank H. Easterbrook: Right as applied to statutes other than First Amendment Statutes.

To the extent the concept of vague on its face has any meaning.

It is a very peculiar kind of meaning.

It is an argument that the statutes words are so uncertain that no one has any idea whatever, whether his conduct is within the ambient of the the statute, whether there is a zone of uncertainty around the statute, whether he could comply with the statute if he attempted to comply.

That is an exceptionally narrow class of cases and we submit it is a very far cry from the situation here because the statute refers to a number of things that people might be able to judge, if they were to look at the statute and attempt to comply.

Concealability depends on a number of factors within the experience of most people.

Shorter weapons can be more readily concealed than longer ones.

Slim weapons are more readily concealed than bulky ones.

Light ones are more readily concealed that heavy ones.

Each weapon possesses some combination of these characteristics and when taken in combination they establish its concealability or the lack of its concealability.

People of common understanding acknowledge that a short light single-barreled weapon sort of as the Chief Justice suggested is capable of being concealed on most if not all people.

Chief Justice Warren E. Burger: Especially if they are bent on concealing it they will wear clothing that will facilitate the concealment, is that not the reason of my assumption?

Mr. Frank H. Easterbrook: I think that is correct and I think that is why there is significant certainty in the statute provided by the term capable of being concealed.

It refers to the concealability of the weapon and not to what an average person maybe wearing on the street at a particular moment.

It directs the attention of the person who desires to comply with the statute.

To the ability of the weapon to be concealed by some person determined to conceal it.

To utilize the capability of the sort-of shotgun to be concealed and indeed, common experience goes perhaps a little further than that.

And suggest that the only reason for sawing off the barrels and stock of a shoulder weapon is to permit its concealment on the person.

Then too the standard under this statute is an objective standard.

All of the factors we have suggested, the length of the weapon, the weight of the weapon, the bulkiness of the weapon depend on verifiable objective factors pertaining to the weapon.

The statutes with which this Court has been concerned and has struck down for vagueness depend on subjective standards, such as the degree of annoyance caused by standard by conduct or the amount of harmed competitors caused by particular conduct.

On the statutes meaning turns upon the effect of the conduct on third parties.

It is often hard for someone even one who seeks to comply to assess that conduct in advance.

He cannot know the ripples that his conduct will propagate among other people.

Not so here, the standard is objective, physical and turns on an analysis of the gun itself.

Not on an analysis of what the gun will do to other people or how they will react to it.

In fact, as I have suggested before, perhaps the proper construction of the statute is that all sort-of shotguns are within its scope.

And as Mr. Justice White stated if the Court agrees with us on that submission then there is no problem of vagueness as applied or a vagueness on its face.

We acknowledge as I have acknowledged before that there are words in the statute that include a potential for uncertain application.

The word 'person' is not definite, there is no reference man.

The Court of Appeals thought that was enough to strike the statute down.

Chief Justice Warren E. Burger: Do you think it is any more or less vague than the term used in many statutes, dangerous weapon.

Mr. Frank H. Easterbrook: I do not think so your Honor.

Chief Justice Warren E. Burger: That presents an issue for a Jury to decide whether as in one case did, a Coca Cola bottle is a dangerous weapon.

Mr. Frank H. Easterbrook: That is correct and it is also an issue not only for the Jury but for the Court through a process of continued adjudication.

Courts can hold after a number of cases that Coca Cola bottles are inside or outside the statute’s scope and those adjudications will give notice to those who seeks to comply with the statute as to the statute's meaning.

And so here this statute as well can be construed by a Court to eliminate most if not all of the problem of vagueness.

That is if this Court or if the Ninth Circuit had announced that sort-of shotguns are so readily capable of being concealed on the person that they are within the statutes ambient.

The problem of vagueness is by and large cured through judicial construction and there is no need to strike the statute down.

Justice Thurgood Marshall: I have a trouble with all sort-of shotgun beyond all the same length, I have trouble.

Mr. Frank H. Easterbrook: That is correct.

And it seems to us that if the Court were to say --

Justice Thurgood Marshall: If you cut off one-inch you could not conceal it for well, could you?

Mr. Frank H. Easterbrook: If the Court were to say that sort-of shotguns are by and large within the ambient of the statute, there is still a question for the Jury in every case whether this sort-of shotgun was in fact concealable and that is the question.

Unknown Speaker: (Inaudible)

Mr. Frank H. Easterbrook: No, it goes to the Jury in every case.

We need it to go to the Jury.

Justice William H. Rehnquist: Of course, but I do not think that is really what Congress intended, you go back to Justice Holmes holding that would be in all case a negligence in the 1920’s that, you know the Courts have to lay down standards of what is or what is not negligence and if you do not stop at the rail road crossing it is negligence per se, well that was largely rejected by cases that came after that.

It seems to me here Congress intended that it would be up to the jury to decide under the Congressional definition.

I do not really think they intended that Courts were to define classes in or out of the definition.

Mr. Frank H. Easterbrook: I think that is correct and as I indicated, Mr. Justice Marshall we think there is a question for the Jury in every single case.

The only point of my argument was that the problem of vagueness can by and large be eliminated.

That is if the Court announces that the statute includes sort-of shotguns to the extent they are capable of being concealed on the person.

Justice William H. Rehnquist: Does not the Congress announced that already?

Mr. Frank H. Easterbrook: We think it has and that is why—

Justice William H. Rehnquist: What would be added by the Court doing it?

Mr. Frank H. Easterbrook: Respondent claims that what was clear to Congress and what is clear to us was not clear to her.

Justice William H. Rehnquist: Well, that maybe why we have granted certiorari.

Mr. Frank H. Easterbrook: And we think that can be cleared up with some ease actually.

Having set out the skeleton of our position, I would like to discuss a number of arguments that respondents make that border on vagueness arguments but that we submit on vagueness arguments.

The first of these, we have touched on earlier.

And that is the argument that the shotgun in this case had a bulky stock would have caused a bulge under someone’s coat and therefore was not in fact conceivable.

That argument went to the Jury and the jury rejected it.

It is, we submit it, not a vagueness argument at all but simply a question of fact to be adjudicated on the the statute.

Second argument is the argument that the statute could have been drawn with greater precision.

And therefore should have been drawn with greater precision.

This we think is an argument about legislative policy, the constitutional question is simply whether the words Congress used are devoid of meaning.

If Congress uses words of clear purport in at least some cases, the fact that they could have been clearer still is immaterial for constitutional purposes.

Third, respondent argues that there is some murky zone between large and therefore mailable sort-of shotguns and small and therefore non-mailable sort-of shotguns.

And that respondent could not tell where in the zone of uncertainty her conduct fell.

This is again not a vagueness argument by and large but an argument for the jury.

To the extent it is a vagueness argument at all

It is an argument about vagueness as applied to particular weapons, it may well be that there are some sort-of shotguns that are so large that even though the jury concludes ultimately that they are capable of being concealed on the person.

That it was so uncertain cannot be properly culpable for her conduct.

Now this Court has indicated that in most ordinary criminal statues.

A person who approaches the zone of uncertainty, simply takes the risk, that he will cross the line.

That we submit is the proper resolution of the a vagueness as applied issue in this case.

Respondent approached the zone of uncertainty and took the risk that she would cross the line.

However, it is not altogether necessary to reach that question in order to decide this case because the Court of Appeals has not yet addressed that argument.

Unknown Speaker: I will ask you, are there other statutes making un-mailable various other kinds of firearms and explosives and so on?

Mr. Frank H. Easterbrook: There are statutes making un-mailable destructive devices and explosives fall into the category of destructive devices.

Unknown Speaker: And do they too make it a criminal offense to mail?

Mr. Frank H. Easterbrook: Yes.

Unknown Speaker: Such devices.

In other words this respondent have been charged under those other statutes, is there any problem?

And if we decide this case against you, all those other statutes would be available.

Mr. Frank H. Easterbrook: I think that is still possible Your Honor.

The final argument the respondent has raised is because the statute does not specifically mention sort-of shotguns, it does not reach them, it is too vague because of the term other firearms.

Whether other firearms is too vague is another question, the Court of Appeals did not reach.

The problem the Court of Appeals found in this statute is whether the phrase capable of being concealed on the person is too vague.

The vagueness problem discerned by the Court of Appeals will exist in this case even if the statute said that pistols, revolvers, shotguns and other firearms capable of being concealed on the person shall be non mailable because respondents still could contend that her shotgun was not capable of being concealed on the person that the statute was vague as to her.

We think therefore that the argument that the statute does not specifically mention shotguns is simply not a vagueness argument within the posture of this case.

In some, the only problem with the statute is whether the phrase capable of being concealed on the person is so devoid of meaning that it cannot ever carry with it a criminal punishment.

We think that it can and that it can be construed to be even clearer by this Court, especially perhaps by reference to the Postal Service Regulations which have made it about as clear as can be.

We think this case is governed by what the Court wrote two terms ago in the letter carriers.

There are limitations in the English language with respect to being both specific and manageably brief.

And it seems to us that although the prohibitions may not satisfy those intent upon finding fault at any cost, they are settled in terms that ordinary person exercising ordinary common sense, and sufficiently understand and comply with.

Unknown Speaker: Mr. Easterbrook, I have got a couple of it, inconsequential questions that does this record show the offense for which Mr. Bailey was confined?

Mr. Frank H. Easterbrook: I do not believe that it does your Honor.

Unknown Speaker: Does it show the offense for which Mr. Powell was confined?

Mr. Frank H. Easterbrook: I do not believe that it does.

I may be incorrect --

Unknown Speaker: Am I correct in my impression, this statute has been very seldom used.

Mr. Frank H. Easterbrook: It has been used very seldom, most shipments of firearms of this sort cross State Boundaries and so other statutes are available for prosecution.

Unknown Speaker: Is that the reason it was utilized here?

Mr. Frank H. Easterbrook: That was the reason the United States Attorney selected the statute your Honor.

Unknown Speaker: And the only reason as far as you know?

Mr. Frank H. Easterbrook: As far as we know, it is the only reason why this one was selected.

If there are no further questions I will reserve the remainder of my time.

Chief Justice Warren E. Burger: Mr. Moberg.

Argument of Jerry J. Moberg

Mr. Jerry J. Moberg: Mr. Chief Justice and may it please the Court.

I think, excuse me, I think initially that it needs to be some remarks addressed to the question of whether or not the respondent is making a facial attack, I believe then the position of respondent, both at the Trial Court and at the Court of Appeals level that statute was vague as applied to her.

And I believe that a careful reading of the opinion if the Ninth Circuit, a per curiam opinion and therefore by definition being rather short, does although not very precisely set forth that this statute is vague as it applies to sort-of shotguns and I believe that a fair reading can include in that, as it applies to the respondent in this case.

And that therefore the attack in the question before this Court is not, whether this is in fact a facial attack of a non-First Amendment Statute but in fact whether or not this statute, Criminal Statute as applied to the respondent is unduly vague and I think that -- as applies to shotguns of the kind and I believe that the only record was that --

Justice Thurgood Marshall: Does this include all shotguns?

Mr. Jerry J. Moberg: I believe it depends on the Court of Appeals since it only had the evidence of one shotgun of a specific dimension was referring then to that shotgun.

Justice Thurgood Marshall: Does this include all shotgun.

Mr. Jerry J. Moberg: No.

I would say to the shotgun of that dimension.

I believe that is the only record that the Court had and I do not believe then that the Court could—

Justice Thurgood Marshall: If you take that then you are not talking about a shotgun.

Mr. Jerry J. Moberg: A specific shotgun which was the—

Justice Thurgood Marshall: This becomes the jury question.

Mr. Jerry J. Moberg: Well, that becomes a question then, it becomes a jury question if properly submitted to the jury.

If the statute then is of such certainty that sort-of shotguns would fall within the ambient of that statute, it is of respondent’s position that the statute as applied is not of such certainty that it would include shotguns and therefore make a jury question.

And it was moved at the Trial Court to determine as a matter of Law that the shotgun was not a concealable weapon, otherwise we get into I belief the question that this Court has expressed some concern with this whether or not we can make a statute become a jury question and whether or not the estimation of the jury will the deciding factor in the statute itself.

Unknown Speaker: Mr. Moberg, did not -- I am looking at page 3A of the Government’s Petition of certiorari where the Court of Appeals opinion is set up.

Did not the Court of Appeals extend its invalidation to the term other firearms and not just to shot sort-of shotguns?

Mr. Jerry J. Moberg: I believe that there is language in that that could support in a very narrow reading that it would apply to other firearms.

I think that in the – and unfortunately because it is a per curiam opinion that the other language in the opinion referring to sort-of shotguns saying that this case at least has applied to sort-of shotguns is a case where the vagueness challenge has been supported that the Court was meaning to say that considering the record before the Court on appeal in the manner which the issue was presented on appeal that as applied to this shotgun, the statute was vague and that it did not include in his prescription the mailing of this weapon.

Unknown Speaker: But what they said on 3A was this, having decided the unconstitutional vagueness of the statute as it is applied to “other firearms”.

We need not reach the other assignments here made by appellant.

Mr. Jerry J. Moberg: That is correct Mr. Justice.

And I think that they are referring to other firearms in reference to sort-of shotguns.

That is as opposed to other firearms in reference to capability of concealment.

I think the language is unfortunately not precise but I think that the reading fairly of the opinion is that as to the other firearms restriction as applied to sort-of shotguns because the Court at one point in the opinion did indicate parenthetically that their comments were as applied to the sort-of shotguns.

Unknown Speaker: Well, but look at the paragraph above the paragraph I was just reading from page 3A on the petition, was that to require Congress to delimit the size of the firearms other than pistols and revolvers.

That sounds like they are focusing on that clause in general.

Chief Justice Warren E. Burger: And is that not a holding that has applied to other firearms i.e. shotguns it is void on its face.

Mr. Jerry J. Moberg: It would be my reading of the opinion that is not that broad of a holding or that the Court was referring then principally to the sort-of shotgun as being an other firearm and on that basis it was vague and then I think in -- rather dicta in this opinion said that this firearm provision could be rather more precisely drawn but I do not believe that that was necessary to the resolution of the case as applied to the appellant at that point, the respondent in this case.

I believe that at any point that most properly then we have a question in terms of an application of the statute to a sort-of shotgun that has been described as 22 and 1/8-inches in length, ten-inch barrel and rather bulky.

I think particularly in the testimony provided by the State, that there was some testimony by the expert that, yes this weapon could be concealed in a full coat but as a matter of fact a riffle, a full size shotgun could be concealed on a full coat and that most any weapon could be concealed on the person should someone want to conceal it.

So that I do not believe that the testimony was of such an expert opinion that this was a concealable item and I think that the testimony was that that almost any weapon is capable of concealment on the person which I think --

Unknown Speaker: No, would you need an expert testimony in a case like this?

Why is it not some of the Jury is as good a Judge representing an expert?

Mr. Jerry J. Moberg: Well, I would answer the first part of that question that, no you would not need an expert in regards to the testimony.

If in fact it was properly an issue before the jury, that is if in fact it had been determined that this item was within the ambient of the statute and therefore it became an element of the crime.

Unknown Speaker: How was that ordinarily determined, it is determined by a ruling of the Trial Judge, is it not that there is sufficient evidence to go to the Jury, not by some expert getting up and testifying.

Mr. Jerry J. Moberg: That is correct.

Except that I think that the ruling of the Trial Judge in terms of whether there is evidence or whether or not this weapon is within the ambient of the statute could be premised partially upon expert testimony as to the concealability of the weapon.

In other words I think the Trial Judge could call upon that expertise in --

Justice Thurgood Marshall: Could you tell the Jury that this gun can be concealed on a person, what was the expertise of the expert?

Mr. Jerry J. Moberg: He was a Tobacco and Firearms agent of—

Justice Thurgood Marshall: Well, would you have a clothing man in there?

Mr. Jerry J. Moberg: [Laughter]

Justice Thurgood Marshall: I mean who is the expert on what you can conceal in clothing?

The average person, that is all.

There is no expertise in that at all.

Mr. Jerry J. Moberg: Well, I would say Mr. Justice that it is not a question that is exclusively within expert testimony but that expert testimony does not make it any more or less difficult determination.

I am not saying that there needs to be expert testimony.

I am saying that there needs to be the determination that the statute, that the charge regarding this weapon would fall within the statute.

I think curiously enough that the Government has not --

Justice Thurgood Marshall: For example, an expert says almost all firearms can be, do you want to say that?

Mr. Jerry J. Moberg: That is what he said.

He said that a full length shotgun can be concealed.

Justice Thurgood Marshall: Did he say all firearms?

I hope he did not.

I hope he did not put a bazooka on somebody‘s clothes.

Mr. Jerry J. Moberg: I believe that he said the literal context of the appendix was that he said that almost any firearm could be concealed and I think the importer’s remarks was that, it does not take a great deal of a problem to conceal.

Justice Thurgood Marshall: My final question did the Judge instructed jury on the expert?

Mr. Jerry J. Moberg: Yes, it was an instruction on expert testimony presented.

Justice Thurgood Marshall: Did not somebody object to it?

Mr. Jerry J. Moberg: Well, at that point through the trial, we were raising the objection that it was not a jury question at all and therefore not even properly subject to expert testimony.

That clearly, that statute did not apply to sort-of shotguns and therefore it was not an element of the crime and that it was not a jury question.

I think that in reference to the vagueness argument that we need to be premised on -- operate on a couple of premises.

I think that that first of all we need to consider the statute and whether or not it does fairly appraise one—

Justice Thurgood Marshall: (Inaudible) sort-of shotguns given to the statute?

Mr. Jerry J. Moberg: Eight-inches in entire length.

I would say that not clearly it would because it is a sort-of shotgun and in terms of that, it is a shoulder type weapon that it would not clearly come under the statute but that a stronger argument could be made.

Justice Thurgood Marshall: That eight inch shotgun would be a shoulder type weapon?

Mr. Jerry J. Moberg: It is a shoulder class of weapon.

Justice Thurgood Marshall: (Inaudible), how does he shoot?[Laughter]

Mr. Jerry J. Moberg: Well, I think that the testimony was in fact that if you have a sort-of shotgun that you need to shoot it from the shoulder or from the hip and as distinguished from a pistol because of the certain recoil characteristics of the sort-of shotgun.

Justice Thurgood Marshall: But the point is that the weapon can be concealed, that is the point.

Mr. Jerry J. Moberg: That is correct and I think that the statute --

Justice Thurgood Marshall: And you cannot ignore that point.

You cannot just say all shotguns are outside of the statute, I hope you are not saying that.

Mr. Jerry J. Moberg: Well, I am not saying that in terms of this case, except that the Government would have a stronger position to urge in regards to sort-of shotguns of that dimension.

Justice Thurgood Marshall: Are you saying that this shotgun is outside?

Mr. Jerry J. Moberg: Yes.

I am saying that, this shotgun, this 20—

Justice Thurgood Marshall: But that is not what the Court ruled.

The Court said all of them were.

Mr. Jerry J. Moberg: Well, it gets back to them.

I guess their interpretation of that Courts opinion because the Court did say that -- and had only reference to this size of a shotgun and there was no evidence set that a smaller sort-of shotgun could or does exist.

So that I do not believe that a broad reading of that per curiam opinion would be fair in terms of the Court's decision.

Justice Thurgood Marshall: Well, this is a 22-inch quite in length and bulky.

Mr. Jerry J. Moberg: That is correct.

Justice Thurgood Marshall: And that applies -- that Court's opinion applies to all 22.8-inch sort-of shotguns that are bulky.

Mr. Jerry J. Moberg: That is correct.

Justice Thurgood Marshall: Will you tell me what bulky is?

I mean so I can measure it.

Mr. Jerry J. Moberg: Okay, bulky in terms of size, in terms of width, weight-

Justice Thurgood Marshall: How much width?

How much width, because it is horrible word?

Mr. Jerry J. Moberg: I believe at that point there was—

Justice Thurgood Marshall: (Inaudible)

Mr. Jerry J. Moberg: The question before the Court of Appeals was whether or not the statute as it was written would apply to the respondent in that particular case and the shotgun that the respondent had, that is correct.

And it was very in the briefs, the shotgun was described in terms of its length and its width.

And arguing that that it is not a weapon capable of concealment and also that the statute is not of such a precise language to include that class of sort-of shotguns, that class of weapons of that size and bulk.

And I think that is precisely the issue.

I think that this statute does not provide the sufficient amount of notice to appraise someone that if you mail in the mails a sort-of shotgun that is of 22 and an eight-inch length and is imprecisely has it been test by to its bulky that you fall within the prescription of the statute.

I think that if we operate on the premise at number one as a criminal statute, the statue needs to be strictly construed.

And number 2, that under the Connally case that it has to be a statute drawn to such precision, the man of common intelligence could decide that clearly that this weapon is within the ambient of the statute.

Then you reach the question of the certainty of the statute.

It could admit to a double meaning.

And I think that it gets down to the point that where then is a line drawn?

Is it drawn at 22 and an eight-inches, is it drawn at 28-inches, is it drawn at 17-inches and that—

Chief Justice Warren E. Burger: But would a reasonable man have very much difficulty in concluding that this gun, this particular gun could be concealed under a heavy over coat?

Mr. Jerry J. Moberg: I would say that the reasonable man—

Chief Justice Warren E. Burger: I am taking the extreme case, heavy over coat or very loose baggy pants?

Mr. Jerry J. Moberg: Well, I think the testimony was that that it could be concealed in an over coat as could a full size shotgun.

Chief Justice Warren E. Burger: From the Judge by submitting in the Jury obviously made the decision that a reasonable man could so conclude, did he not?

Mr. Jerry J. Moberg: I believe that could be read into the Judge’s decision of submitting to a Jury.

I think that the question though is the notice to the defendant, that is, would in the reading of this statute—

Chief Justice Warren E. Burger: But my question went to really telling us that a reasonable man could not reasonably conclude that this could be concealed in some way.

Mr. Jerry J. Moberg: No.

I believe that it could not.

A reasonable man would not conclude this weapon concealable under the language of this statute because this statute refers to pistols, revolvers and other weapons capable of concealment.

And I think that is a particular --

Chief Justice Warren E. Burger: But he knew this was not a pistol and he knew it was not a revolver; therefore it was an other weapon, was it not?

Mr. Jerry J. Moberg: It may be, except I think at that point in determining the other firearms description—

Justice William H. Rehnquist: (Inaudible) an other firearm.

Mr. Jerry J. Moberg: It is another firearm but not all other firearms are within the prescription of the Statute.

Then its question, is it not an other firearm capable of concealment on the person?

Now, I think that at that point if we do in fact determine the statute and its meaning to the man of common intelligence, according to any principle of construction that clearly this statute did was not meant to apply the sort-of shotguns.

Justice William H. Rehnquist: That is statutory, not a constitutional.

Mr. Jerry J. Moberg: That is correct and I think it is entwined with the argument that petition raises in terms of the constitutionality of the statute in terms of in determining its vagueness, I think that we need to look at the construction of the statute as one of the principles in determining whether or not it is certain and that it is certain as applied to sort-of shotguns.

And I believe that this statute interpretive with any kind of statutory construction would lend support to the argument that it does not apply to sort-of shotguns.

It is not drawn with language so that it would apply to sort-of shotgun.

Justice William H. Rehnquist: But the Ninth Circuit did not go on that ground.

Mr. Jerry J. Moberg: No, the Ninth Circuit did not in its opinion reach the construction argument.

That was --

Justice William H. Rehnquist: Is that not kind of strange that they did not reach the construction argument because they went right to the constitutional point?

Mr. Jerry J. Moberg: Well, I do not know if I would characterize this as strange, I may characterize it as unfortunate because I believe there is a construction argument there that probably under the leadership of this Court it has been clear in US versus Harris that if the statute can be construed in a constitutional manner, then it should be.

And that this statute in fact and part of the argument raised before this Court is that this statute in fact can be construed in a constitutional manner.

But that construction would not admit to the inclusion of the kind of weapon that is before the Court in this case.

Unknown Speaker: (Inaudible) right now they are just vacating the judgment below and sending it back to place the statutory question at the outset?

Mr. Jerry J. Moberg: Well, I think that I would object on the terms that it is not a clear question that the statute as applied is so certain that applies to sort-of shotguns.

I think that if the Court, if this Court decided that there is a question or an issue of vagueness and there is a question of vagueness of the statute as applied to this case.

To save that statute from its constitutional challenge of being vague that the Court may and in fact I think the Court must at least as I read Harris then interpret the statute so that it can avoid the vagueness issue and I think there is a little doubt that there must be some question as to the certainty of the statute, by the very fact that we have the Court of Appeals wondering and in fact ruling that the statute does not cover sort-of shotguns.

I think in a similar case in Colorado, Cockley (ph) versus People, which is on Page 7 in my brief.

In a similar statute they concluded that firearms, other firearms provision in a statute that referred to pistols, revolvers, knives and Billy clubs, the other firearms provision was not within the ambient of the that statute.

So I think there is a considerable question as to what application the statute has and I think that application issue goes to the issue of whether or not the language is certain enough to advise a man of common intelligence that the mailing of a sort-of shotgun of 22 and eighth inches is in fact in violation of the statute, especially if you look at the history of the statute in the first instance because I believe the history of the statute in the first instance was that it was to control the mailing of pistols and revolvers of handguns by mail-order people.

I think clearly in that history, it refers to the Sears and Roebuck mailing of handguns and that the loss of the control of the states in a mail-order situation.

This statute was not meant, I do not believe from its history and from its meaning and from its interpretation to be a statute, to prosecute one who mails a single sort-of shotgun in the mails.

Unknown Speaker: What is the use of sort-of shotguns?

Mr. Jerry J. Moberg: Well I think that there are various reasons.

Number one I think sort-of shotguns are a collectors item.

There are dealers in sort-of shotguns they—

Unknown Speaker: When you get out into the field, what use is made of it?

Mr. Jerry J. Moberg: Well sort-of shotguns provide a less restrictive choke on the explosion of the pellets from the shotgun and gives it a wider stream.

Unknown Speaker: What do people use them for as a result of that less restricted choke?

Mr. Jerry J. Moberg: Well in terms of what people use them for, I do not know because I think that is a rather general question.

Unknown Speaker: They are used to shoot people with that.

Mr. Jerry J. Moberg: What?

They may be used to shoot people, they may be used –

Unknown Speaker: Is it not the only use for it?

Mr. Jerry J. Moberg: I would not admit to that, no, that is –

Unknown Speaker: You know any other use for?

Mr. Jerry J. Moberg: I believe that you could use them in hunting birds for example and—

Unknown Speaker: But would you ever pick a shotgun with a ten inch barrel as opposed to a shotgun with a two and a half foot barrel to shoot birds with?

Mr. Jerry J. Moberg: I think that you would have a considerable problem as Mr. Justice raises at great lengths but I am not willing to admit that that is the only purpose for the reducing the size if a barrel.

Unknown Speaker: If you get the bird out at two feet from here you can use the sort-of shotgun.[Laughter]

Mr. Jerry J. Moberg: If the barrel is only sort of two inches or three inches then I think that your range is then proportioned to the reduction size of the barrel.

Unknown Speaker: Mr. Moberg, a couple of questions just leaving through the record, did Mrs. Powell persist in denying that she ever mailed this?

Mr. Jerry J. Moberg: Yes she did.

Unknown Speaker: And am I correct in my impression that she said she purchased it for her self-protection at home?

Mr. Jerry J. Moberg: She purchased a riffle, a shot gun for her protection.

That shotgun was not the shotgun I believe as I recall it, there were two shotguns involved.

The full length shotgun that they did attribute to her purchasing was not the shotgun that is against of this appeal.

The one that she testified she purchased was in her closet.

Unknown Speaker: Well then is it as to the other one that she conceded she never resembled?

Mr. Jerry J. Moberg: As to the sort-of shotgun, she testified that she never purchased the weapon that was subsequently reduced to a sort-of shotgun and that the only weapon that she purchased was in fact a full length shotgun which was in fact produced at trial.

Unknown Speaker: Well is it not there is a testimony in her part that she put up in a closet and never assembled it?

Mr. Jerry J. Moberg: That is correct.

Unknown Speaker: And why would she not if purchased a shotgun for self protection?

Mr. Jerry J. Moberg: Well I think at that point as I recall the evidence, her testimony was that she put it in there and she just simply – she was not familiar with weapons to start with and that she did not in fact know how to assemble or clean the weapon and she placed it then in the closet with the idea of then sometime putting it together and forgetting about it and it was not a long period of time between the purchase I think and the subsequent interrogation by the postal authority.

Unknown Speaker: So she bought it for her protection but she did not do what was necessary for her protection.

Mr. Jerry J. Moberg: That is correct from the record.

And I would hasten to point out that that is not the shotgun that is the subject matter of this appeal.

Chief Justice Warren E. Burger: This has something to do with the juries’ assessment of her credibility, I suppose.

Mr. Jerry J. Moberg: Oh! Very much so and I guess that is not an issue that is before this Court or was before the Court Of Appeals in terms of her credibility and now one that I could properly raise because I believe that that is truly within the ambient of the jury to decide whether or not she in fact purchased a weapon but I think that the question it comes back to in terms of its interpretation, in terms of the statutes meaning, is the statute certain, does a statute number one give the no’s and does it too number one provide the protection against an arbitrary law enforcement and I think that that second part of this Connally test and the same test was raised in Lanzetta is even evident in this case because I think that at the point and I can always surmise the reasons that the prosecutor decide to prosecute under this seldom used statute, one it is to control mail order.

Is that if the prosecutor did not feel that he had a sufficient case for other possible crimes that he could have charged and I think as one of the justices has pointed out could have charged this defendant with and that by the very fact of the broadness of the statute then, the prosecutor had opened to him a catch all statute, he said, I do not, I think this is a fair supposition, I do not have the evidence to convict her on some other crime but I can charge her on this mailing crime and I think that clearly it is inconsistent with the statute itself that this charge should have even then brought as a mailing violation under the statute.

There are statutes in terms of possession that are very clearly defined and sort-of shotguns over statutes.

I believe that that could have been broad.

I think that I raised this point only to show that the statute does in its rather vague language prevent or permit an arbitrary enforcement of the statute itself because there is no discernible standard.

Unknown Speaker: Let us just assume that someone disagrees with you and holds that the statute is perfectly clear insofar a sort-of shotgun and just as clear as it is with pistols.

Now you do not agree with that, but let us assume that someone decides that that is the way it is.

On that assumption there is no discretion at all and the prosecutor except just do not bring a case but that is not true of any statute.

For me it is certainly would not -- giving in many range of discretion, it would not have under criminal statute.

If it is clear that the statute covers this weapon.

Mr. Jerry J. Moberg: I believe that his discretion is reduced except that the statute as written, I think in its entirety is the statute to control mail order shipment of pistols and revolvers and maybe mail order shipment of sort-of shotguns and that is not the purpose of the statute to prosecute an individual mailing of that kind of an item so that I do not think that at least practically that is a purpose or has been a use of the statute.

If although the—

Unknown Speaker: (Inaudible)

Mr. Jerry J. Moberg: No and the prosecutor can very well bring, if we assume for the sake of argument that it clearly applies the sort-of shotguns.

He would be very well within his rights to bring this case under the statute.

But I believe that the fact that he did under this statute as it presently is written points out to the arbitrariness really in the enforcement of the statute and that it was not manned under its history or its interpretation to bring up a conviction in this kind of a case.

I say that only as a support of the vagueness argument.

I think that the other thing that the Court needs to concern itself with is a construction of the statute.

I believe that under the Harris case that this Court may and should then if it determines that the statutory language is not so overly broad or not so vague that men of common intelligence could not choose their path in the conduct as prescribed, could save that challenge of the statute by a fair construction of the statute.

Based number one on its language, pistols and revolvers and other firearms capable of concealment on the person, I think that the statutory construction is that pistols and revolvers will modify the general language in the statute and the general language will be then presumed to be of the same class as to pistols and revolvers.

Pistols and revolvers are in the class of handguns and it would seem to me that clearly under that theory of statutory construction, this is a statute to control the unlawful mailing of handguns, I think that the history of the statute and the congressional record --

Justice Thurgood Marshall: Have you got any proof that a sort-of shotgun can be fired with one hand?

Mr. Jerry J. Moberg: Only the testimony of the Tobacco and firearms man that because of the recoil characteristics, it would not be a weapon that you could fire arm extended.

Justice Thurgood Marshall: It could not.

Mr. Jerry J. Moberg: Could not, because of the recoil characteristics that are not the same characteristics of a pistol.

Justice Thurgood Marshall: But you can fire with one hand?

Mr. Jerry J. Moberg: Can be fired with one hand against the shoulder or against the hip and that was the testimony.

Justice Thurgood Marshall: That is right but it can be fired with one hand?

Mr. Jerry J. Moberg: I would presume it could be fired with one hand.

Justice Thurgood Marshall: So it makes it a handgun.[Laughter]

Mr. Jerry J. Moberg: Well I think that the distinction between handgun and shoulder type weapons is not that it can -- all guns are fired with the hand or hands, can be hand or hands gun, but I think that the distinction is that a handgun characteristically can be fired with one hand away from the body where a shoulder type of weapon needs to rest against the body itself and whether the structure be the shoulder or the hip, it needs to rest against the shoulder or the hip and I think that is the distinction.

Not whether one uses a hand to manipulate the trigger because all guns are fired in that way.

Pistols and revolvers first I think set up to class in terms of size and I think that they also setup the class in terms of characteristics.

That is --

Justice Thurgood Marshall: Between a handgun and a shoulder gun, that is the basic difference and a sort-of shotgun, once it is sort of is not a typical shoulder gun.

Mr. Jerry J. Moberg: I would say that is not a typical shoulder gun but that it is in fact a shoulder gun.

Again the question why it sort-of for ultimate purpose I do not think is one that we can give speculation to, I think the question is that in the argument, I am raising is that pistols and revolvers define not only the class and that handgun is oppose to shoulder but also define the size and that under either of those classes, this statute refers to pistols and revolvers and I think that it is not unreasonable and that men of common intelligence quite readily may assume that there are not pistols and revolvers of 22 and 1/8 inches, in with the barrel of ten inches and I think that they are not of a bulky nature.

So I would say that at this point it seems that and it is a construction argument in the sense that if the statute can be saved from its vagueness then it must be saved by construction but even further that construction argument points to the problem in the statute in terms of its certainty because from the construction, analysis of the statute, it does not apply to sort-of shotguns, it does not govern a weapon of that size or the kind of crime it was charged.

And I would think that other firearms capable of being concealed is not anymore definable, it is symbolic language that has an outward reference point and that our reference point is not clear.

I do not think it is anymore clearer than the current rate per diem in the Connally case so that I would say in conclusion then that this statute is unduly vague and that it can be saved, I believe by this Court from its vagueness challenge by construction limiting it to pistols and revolvers and pistols type weapons—

Unknown Speaker: Mr. Moberg before you sit down, assume for the moment as painful as it maybe that this Court possibly may decide against you on both the constitutional and statutory issues, would any issue or fact remand for the jury to decide on a remand and if so why?

Mr. Jerry J. Moberg: Issues of fact in terms of the—

Unknown Speaker: Suppose we decide the case against you, just assume it.

And the case were remanded, what issues of fact would remand.

There was a jury of verdict against you (voice overlap)

Mr. Jerry J. Moberg: There was a Jury verdict.

That is correct.

Unknown Speaker: And Instruction No. 8 laid out the statute Barbatum so that the jury found that this weapon could be concealed on the person.

So would there be any of issue of fact left in the case --

Mr. Jerry J. Moberg: I would say that in terms of the concealability of the weapon that there would not be an issue of fact, it may have, it may require a considerable difference in trial strategy because at the point that the respondent assumed the position that it was not a concealable weapon then the respondent was not willing to open up that issue to the jury and certain fact that it is not a jury question.

Unknown Speaker: Yes but if this Court reverses that it reinstates the conviction entered already entered, does it not?

Mr. Jerry J. Moberg: That is correct.

Unknown Speaker: That there is nothing more if we reversed that is the end of it.

Mr. Jerry J. Moberg: Well, except there were six or seven other items at the Court could in the Court of Appeals but as far as I do not believe that the petitioner or the respondent could go back and ask to open up the evidentiary hearing to show that it was any less concealable.

Unknown Speaker: If you were to get a new trial you will be on some issue not yet determined by the Court of Appeals.

Mr. Jerry J. Moberg: That is correct Mr. Justice.

Thank you.

Chief Justice Warren E. Burger: Did you have any further Mr. Easterbrook?

Rebuttal of Frank H. Easterbrook

Mr. Frank H. Easterbrook: I have nothing further your Honor.

Chief Justice Warren E. Burger: Thank you very much gentleman.

The case is submitted.