All criminal statutes are inherently vague to some degree. Even so, under the due process clause, ordinary people should be able to understand the scope of a statute, and enforcement personnel should not be able to arbitrarily wield authority under a statute. See Kolender v. Lawson, 461 U.S. 352, 357 (1983). In US v. Ostrander, the Eleventh Circuit measured the void-for-vagueness doctrine against the criminal statute penalizing the possession of obscene visual depictions of a minor in computer-generated imagery. 18 U.S.C. § 1466A(b)(1). The panel reaffirmed that the Supreme Court’s obscenity test in Miller v. California, 413 U.S. 15 (1973), is not unconstitutionally vague when applied to a person’s private works or library. The Miller test requires a determination of: (a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. The court reiterated that the determination of obscenity is based on how the average person in the local community would view the material in question. This statute, held the panel, passes the test. Individuals prosecuted for possession of self-created CGI child pornography should not bet on a vagueness challenge to defeat the prosecution. [By Roz Chang].
In US v. Bush, the moral of the story is this – the government will never again charge an escape under 18 U.S.C. § 4082. Bush was threatened while living at the halfway house – so he left. The government charged him with escape under both 18 U.S.C. § 751(a) and § 4082(a). The latter crime contains a willfulness element. Bush argued at trial, pro se, that he didn’t know it was against the law to leave the halfway house, only that it was against the rules. He argued that the jury instructions were wrong on this point. He cited precedent! But the district court and AUSA knew better, or thought they did, and cast aside his objections. The Eleventh Circuit held here that “willful” means what both Bryan v. US, 524 U.S. 184 (1998), and the pattern instructions say: The government must prove a defendant intended to do something unlawful. Bush was right, and he gets a new trial. [By Nicole Kaplan].
In US v. Bell, three defendants were convicted of a fraud conspiracy in connection with their Iraqi-dinar money-selling business. The jury found that the defendants “promoted false rumors” of imminent increased values (the dinar had no value), concealed that they paid to advertise on dinar-discussion websites, and falsely promised to open physical exchange kiosks across the county. The defendants requested a jury instruction distinguishing between the intent to deceive and the intent to defraud, based on US v. Takhalov, 827 F.3d 1307 (11th Cir. 2016). They did not argue that the pattern instruction (dated April 2016) was wrong, they simply asked for additional language consistent with the Takhalov opinion (dated July 2016). The district court refused to give the Takhalov supplement. In January 2019, after the defendants were convicted, the Eleventh Circuit modified the pattern instruction to include Takhalov language like the Bell defendants had requested: “Proving intent to deceive alone, meaning deception without the intent to cause loss or injury, is not sufficient to prove intent to defraud.” Nonetheless, the Eleventh Circuit panel here denied relief and found that the defendants’ proposed language was too one-sided and misleading. The omission did not impair the defendants’ ability to present a complete defense because the charge as given was substantively correct; the district court explained that a “‘scheme to defraud’ includes any plan or course of action intended to deceive or cheat someone out of money or property.” So, the panel found, “when viewed as a whole, the district court’s instruction made clear that the defendant must intend ‘to deceive the [victim] and deprive [him] of something of value.’” [By Millie Dunn].
Johnnie Davis was convicted after trial of several carjackings and 18 U.S.C. § 924(c) offenses. During the investigation, the FBI served Google with a geofence warrant for a listing of Google devices and accounts that were close to locations associated with one of the carjackings and a related store robbery. Google produced information showing that a phone belonging to Davis’s girlfriend and an email account belonging to her daughter were near the carjacking, the store robbery, and the location where the carjacked vehicle was abandoned. Davis became the primary suspect. One investigator was both a local police sergeant and an FBI task force officer. After he and another local detective arrested Davis, they booked him into a local jail on state charges. The sergeant and another FBI agent interrogated Davis. About eight hours after his arrest, Davis confessed to two carjackings and related robberies. On appeal, Davis argued that (1) the geofence warrant was not sufficiently particularized, and (2) his confession was improperly admitted because the officers should have first presented him to a federal magistrate pursuant to Fed. R. Crim. P. 5(a) and 18 U.S.C. § 3501(c), which provide police with a six-hour safe harbor. In US v. Davis, the Eleventh Circuit denied each claim. As an issue of first impression, the panel said Davis lacked standing to challenge the geofence warrant. Davis did not exclusively possess the phone, and the email account was not his. Plus, locational data produced through geofence warrants does not implicate the rule in Carpenter v. US, 585 U.S. 296 (2018), because these warrants are more limited in scope and duration; the areas covered by these warrants were public in nature and did not encompass Davis’s home; there was no evidence that Google had looked at data belonging to other account holders, such as Davis, in compiling the data it provided to the FBI; and even if Google had done so, the relevant inquiry is what information Google disclosed to law enforcement rather than what data within its own records it reviewed. As for the presentation to a federal magistrate, the panel held there was no violation because Davis was arrested for state crimes, and he had not shown the federal and state officers colluded to circumvent the rules. In his concurrence, Judge Jordan disagreed with the panel’s reasoning (though not its conclusion) regarding standing for the geofence warrant. He concluded that Google examines the data of all account holders whenever it responds to a geofence warrant, he disagreed with the assertion that the areas covered by the geofence warrant were purely public, and he called the pronouncement that one does not have a privacy interest in data on someone else’s phone dicta. However, Judge Jordan posited that for Davis to establish standing, he needed to have presented evidence that he used the email account or borrowed the girlfriend’s cell phone, but he offered proof of none of that. [By Kendal Silas].