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UNITED STATES v. DARSEY

May 8, 1972

UNITED STATES of America
v.
Frederick Freeman DARSEY


Newcomer, District Judge.


The opinion of the court was delivered by: NEWCOMER

NEWCOMER, District Judge.

 The defendant in this case was originally charged in a fourteen count information charging eight violations of 47 U.S.C. § 223(1)(A), which provides that:

 and further charging six violations of 47 U.S.C. § 223(1)(D) provides that:

 
"Whoever -- in the District of Columbia or in interstate or foreign communication by means of telephone, makes repeated telephone calls, during which conversation ensues, solely to harass any person at the called number, shall be fined not more than $500 or imprisoned not more than six months, or both."

 Subsequent to the bringing of this information, a further information was filed, charging one count of violation of 47 U.S.C. § 223(1)(D). Jury trial was waived and trial was held on March 16, 1972, at which time the two informations were consolidated, and the United States moved to dismiss the seven counts relating to § 223(1)(A) and Count 14, relating to § 223(1)(D). That motion was granted and trial was held on the remaining six counts, all charging violations of § 223(1)(D). The defendant was found not guilty on all counts. This memorandum is written to set forth the rationale of that decision.

 Section 223 of Title 47 was passed in 1968. It was drawn up as a single legislative proposal, and directed toward a fairly narrow though serious constellation of problem behavior. The meaning of any one part of § 223 can only be properly understood in the content of the whole of § 223, which reads as follows:

 
"§ 223. Obscene or harassing telephone calls in the District of Columbia or in interstate or foreign communications

 Whoever --

 
(1) in the District of Columbia or in interstate or foreign communication by means of telephone --
 
(A) makes any comment, request, suggestion or proposal which is obscene, lewd, lascivious, filthy, or indecent;
 
(B) makes a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number;
 
(C) makes or causes the telephone of another repeatedly or continuously to ring, with intent to harass any ...

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