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United States v. Weir

United States District Court, W.D. Washington, Seattle

July 19, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY WEIR, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS INDICTMENT

          ROBERT S. LASNIK UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on defendant Anthony Weir's “Motion to Dismiss Indictment.” Dkt. #35.

         BACKGROUND

         On April 12, 2002, defendant was sentenced, following a guilty plea, to 210 months of imprisonment on two counts of Production of Child Pornography, see 18 U.S.C. §§ 2251(a), (d); id. at § 2256, one count of Transfer in Interstate Commerce of Obscene Matter to a Minor, see 18 U.S.C. § 1470, Coercion and Enticement of Minor, see 18 U.S.C. § 2422(b), one count of Possession of Child Pornography, see 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and one count of Forfeiture, see 18 U.S.C. § 2253(a). His sentence also included five years of supervised release. Dkt. #37-1 at 3-4. He began his period of supervision in October 2015.

         On May 2, 2018, the grand jury returned an indictment against defendant, charging him with one count of Possession of Child Pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B), (b)(2). Dkt. #11. This count pertains to 23 images found on defendant's microSD card during a search conducted by the United States Probation Office on November 8, 2017. Dkt. #35 at 1. The Court has reviewed the images in camera. They depict pre-pubescent children. The children are fully or partially clothed in the photographs, and the genitalia is not discernable. Some of the photographs draw focus to the pubic region and are taken either in the bathroom or the bedroom. Defendant argues that the charging statute is void for vagueness, both on its face and as applied, that the charging statute is overbroad, and that the Court lacks subject matter jurisdiction.

         DISCUSSION

         The statute imposes liability for visual depictions where “the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and … such visual depiction is of such conduct.” 18 U.S.C. § 2252(a)(4)(B). “Sexually explicit conduct” is defined as actual or simulated “(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the anus, [1]genitals or pubic area of any person.” Id. at § 2256(2)(A). The only portion at issue in this case is the lascivious exhibition of the genitals or pubic area of any person.

         A. Vagueness

         “A statute is void for vagueness if it fails to give adequate notice to people of ordinary intelligence concerning the conduct it proscribes, or if it invites arbitrary and discriminatory enforcement.” United States v. Adams, 343 F.3d 1024, 1035 (9th Cir. 2003) (quoting Schwartzmiller v. Gardner, 752 F.2d 1341, 1345 (9th Cir. 1984)). The legislature must “establish minimal guidelines to govern law enforcement.” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)). Where it fails to do so, “a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue their personal predilections.'” Id. (quoting Smith, 415 U.S. at 575). Defendant argues that the statute is unconstitutionally vague both as a facial matter and as applied to him.

         The Ninth Circuit has held that the term “lascivious” as used in the charging statute is not unconstitutionally vague. United States v. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987); accord United States v. Adams, 343 F.3d 1024, 1036 (9th Cir. 2003). The Supreme Court, too, has rejected this constitutional challenge. United States v. X-Citement Video, Inc., 513 U.S. 64, 79 (1994) (“We regard [the] claim[] [that § 2256 is unconstitutionally vague] as insubstantial, and reject [it] for the reasons stated by the Court of Appeals in its opinion in this case.”); see United States v. X-Citement Video, Inc., 982 F.2d 1285, 1288 (9th Cir. 1992), rev'd on other grounds, 513 U.S. 64 (1994). Courts in the Ninth Circuit look to the so-called Dost factors in determining whether a visual depiction of a minor constitutes a lascivious exhibition of the genitals or the pubic area:

1) Whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2) Whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) Whether the child is depicted in an unnatural pose, or in inappropriate attire, considering ...

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