The opinion of the court was delivered by: YOUNGDAHL
Various motions of defendants came on to be heard before this Court on November 1, 1963. Thereafter defendants and the Government filed briefs, which this Court has considered, together with the original papers and the oral argument, in reaching the following conclusions:
2. The motion (filed April 2, 1963) to dismiss for alleged violations of Rule 6(e), Federal Rules of Criminal Procedure, must also be denied. The affidavits, based solely upon hearsay, presented by defendants to show that there was an improper disclosure on the part of the Assistant United States Attorney are insufficient to raise any legitimate issue of fact in the face of the uncontradicted affidavits based on direct personal knowledge filed by the Government, which demonstrate that there was no improper disclosure of matters before the grand jury. There is thus no necessity for oral testimony on this motion.
3. The motion (filed April 2, 1963) to dismiss the indictment will be denied to the extent that it refers to counts two and three of the indictment. Defendants cannot complain of any unnecessary specificity in count two. There is no need for the Government to elect between count two (charging a violation of 47 U.S.C. § 301, operating a radio apparatus without a station license) and count three (charging a violation of 47 U.S.C. § 318, operating a radio apparatus without an operator's license). And any possible regulations modifying the requirements of 47 U.S.C. § 318, as permitted by the statute,
are matters for defense, and need not be negatived in the indictment.
The motion to dismiss count one, however, will be granted. Count one charges Housebreaking, under D.C.Code 22-1801 -- specifically, an entry of the room of a certain person with intent to commit certain wilful and knowing violations of the Federal Communications Act, namely 47 U.S.C. § 301 (operating without a station license), § 318 (operating without an operator's license), and certain regulations contained in 47 C.F.R. 15.206 (dealing with frequencies, power, and other technicalities of operation).
Congress has specified that wilful and knowing violations of the Communications Act are misdemeanors, carrying short prison terms but high fines. 47 U.S.C. § 501 provides for a penalty of a fine of not more than $ 10,000 or imprisonment for not more than one year, or both, for wilfully and knowingly violating any statutory provision. And 47 U.S.C. § 502 provides for a penalty of a fine of not more than $ 500 for each and every day during which there occurs a wilful and knowing violation of any rule or regulation of the Federal Communications Commission. Congress has thus considered the matter of punishment for these offenses with great particularity, and it would ignore the purpose of Congress to permit an indictment to enlarge these penalties to a 15-year prison term simply by alleging that the defendants entered a certain room with intent to commit the above misdemeanors.
Generally, entry with intent to commit a misdemeanor, such as petit larceny, is sufficient to support a charge of Housebreaking. But the nature of these offenses under the Federal Communications Act, and the unusual character of the punishments specified by Congress, suggests that this general rule should not apply to these offenses.
It is true, of course, that the wording of the Housebreaking statute -- 'Whoever shall * * * enter * * * any * * * room * * * with intent * * * to commit any criminal offense * * *' -- would cover the particular entry here at issue. But words must always be construed reasonably, in conformity with their purpose. The Housebreaking statute was worded broadly
in order to make unnecessary the distinctions in common-law Burglary between night and day, between breaking and non-breaking, and between dwellings and non-dwellings, and at the same time provide an offense which is designed to punish those who violate the sanctity of any confined place. The nature of the criminal offense which the person who enters intends to commit must therefore be reasonably related to the sanctity of the place entered -- usually a crime of violence against persons or a crime involving the taking or destruction of property.
The Government argues that 'any criminal offense' means 'any criminal offense,' and there is no need for further consideration. By this reasoning, however, entry of any room with an intent, for instance, to violate the anti-trust laws or the regulations of the Securities & Exchange Commission could subject the individual to prosecution for Housebreaking. Such a result appears completely out of line with the reasonable intent of Congress. This Court does not decide exactly how far the words 'any criminal offense' in the Housebreaking statute might reasonably be construed to reach in some other situation, but this Court does decide that they cannot reach an entry simply because the individual at the moment of entry intended to violate the above provisions of the Federal Communications Act.
The Government has argued that the alleged violations of the Federal Communications Act are analogous to the common law crime of Eavesdropping, a crime against the person's right of privacy. This argument would be persuasive if the provisions of the Communications Act for the alleged violation of which defendants have been indicted were truly provisions designed to preserve inviolate the right of privacy. But the true purpose of these provisions is the regulation of the radio industry by means of licenses granted in the interest of efficiency, order, and regulated competition. The purpose was thus to protect the airwaves in the public interest, not to preserve a private right of privacy. The indictment alleges violations of certain licensing requirements, and Housebreaking is not committed by an entry with intent to commit violations of such requirements.
It is therefore by the Court this 15th day of January, 1964, ORDERED That the motion of defendants to dismiss count one of the indictment shall be and the same is hereby granted, and it is
FURTHER ORDERED That all remaining motions of defendant considered above shall be and the ...