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    United States v. Johnny Beason, 4th Cir. (2013)

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    This document summarizes a United States Court of Appeals case regarding whether a federal statute prohibiting possession of contraband in prison is unconstitutionally vague. Johnny Beason was convicted under the statute's catch-all provision for possessing a cell phone in prison. The court here reviews that conviction and finds the following: 1) The statute's catch-all provision failed to provide Beason with fair notice that possession of a cell phone was prohibited and could lead to criminal prosecution. 2) An earlier case finding a previous version of the statute was not vague is distinguishable from this case, as the previous statute more clearly prohibited introducing "anything whatsoever" into prison. 3) The court reverses Beason

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    United States v. Johnny Beason, 4th Cir. (2013)

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    Scribd Government Docs
    55 views11 pages
    This document summarizes a United States Court of Appeals case regarding whether a federal statute prohibiting possession of contraband in prison is unconstitutionally vague. Johnny Beason was convicted under the statute's catch-all provision for possessing a cell phone in prison. The court here reviews that conviction and finds the following: 1) The statute's catch-all provision failed to provide Beason with fair notice that possession of a cell phone was prohibited and could lead to criminal prosecution. 2) An earlier case finding a previous version of the statute was not vague is distinguishable from this case, as the previous statute more clearly prohibited introducing "anything whatsoever" into prison. 3) The court reverses Beason

    Original Description:

    Filed: 2013-04-19 Precedential Status: Non-Precedential Docket: 11-4676

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    This document summarizes a United States Court of Appeals case regarding whether a federal statute prohibiting possession of contraband in prison is unconstitutionally vague. Johnny Beason was convicted under the statute's catch-all provision for possessing a cell phone in prison. The court here reviews that conviction and finds the following: 1) The statute's catch-all provision failed to provide Beason with fair notice that possession of a cell phone was prohibited and could lead to criminal prosecution. 2) An earlier case finding a previous version of the statute was not vague is distinguishable from this case, as the previous statute more clearly prohibited introducing "anything whatsoever" into prison. 3) The court reverses Beason

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    55 views11 pages

    United States v. Johnny Beason, 4th Cir. (2013)

    Uploaded by

    Scribd Government Docs
    This document summarizes a United States Court of Appeals case regarding whether a federal statute prohibiting possession of contraband in prison is unconstitutionally vague. Johnny Beason was convicted under the statute's catch-all provision for possessing a cell phone in prison. The court here reviews that conviction and finds the following: 1) The statute's catch-all provision failed to provide Beason with fair notice that possession of a cell phone was prohibited and could lead to criminal prosecution. 2) An earlier case finding a previous version of the statute was not vague is distinguishable from this case, as the previous statute more clearly prohibited introducing "anything whatsoever" into prison. 3) The court reverses Beason

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    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 11-4676

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    v.
    JOHNNY BEASON,
    Defendant - Appellant.

    Appeal from the United States District Court for the Northern
    District of West Virginia, at Clarksburg.
    Irene M. Keeley,
    District Judge. (1:10-cr-00105-IMK-JSK-1)

    Argued:

    February 1, 2013

    Decided:

    April 19, 2013

    Before WILKINSON and FLOYD, Circuit Judges, and Joseph R.


    GOODWIN, United States District Judge for the Southern District
    of West Virginia, sitting by designation.

    Reversed by unpublished opinion. Judge Floyd wrote the majority


    opinion, in which Judge Goodwin joined. Judge Wilkinson wrote a
    dissenting opinion.

    ARGUED: Kristen Marie Leddy, OFFICE OF THE FEDERAL PUBLIC


    DEFENDER, Martinsburg, West Virginia, for Appellant.
    Brandon
    Scott Flower, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg,
    West Virginia, for Appellee.
    ON BRIEF: Brian J. Kornbrath,
    Federal
    Public
    Defender,
    Clarksburg,
    West
    Virginia,
    for
    Appellant.
    William J. Ihlenfeld, II, United States Attorney,
    Wheeling, West Virginia, for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    FLOYD, Circuit Judge:


    Appellant

    Johnny

    Beason

    pled

    guilty

    to

    possessing

    contraband in prison in violation of 18 U.S.C. 1791(a)(2),


    (d)(1)(F) (2006) (amended 2010).

    Beason appeals his conviction,

    contending that the statutes catchall contraband provision that


    prohibits possession of any other object that threatens the
    order, discipline, or security of a prison, or the life, health,
    or safety of an individual, id. 1791(d)(1)(F), is void for
    vagueness as applied to his conduct. *

    We agree and for the

    reasons that follow reverse his conviction.

    I.
    While

    in

    federal

    prison

    for

    violating

    the

    terms

    of

    his

    supervised release on unrelated charges, Beason acquired a cell


    phone.

    On May 20, 2010, the prison unit corrections officer

    observed Beason using a cell phone in his cell.

    Upon realizing

    he was being watched, Beason initially tried to hide the cell


    phone.

    Beason

    then

    surrender the phone.

    complied

    with

    the

    officers

    request

    to

    The Bureau of Prisons (BOP) avers that

    The statute criminalizes [w]hoever . . . being an inmate


    of a prison, makes, possesses, or obtains, or attempts to make
    or obtain, a prohibited object. . . . 18 U.S.C. 1791(a)(2).
    In addition to the catchall provision at issue here, the statute
    specifically prohibits firearm[s] or destructive device[s],
    marijuana, and any United States or foreign currency.
    Id.
    1791(d)(1)(A),(B),(E).

    cell phones pose significant security risks to prisons because


    inmates

    can

    use

    cell

    phones

    to

    arrange

    assaults, and coordinate escapes.

    fraud

    schemes,

    plan

    The presence of cell phones

    has recently escalated in Federal Correctional Institution (FCI)


    Morgantown, where Beason was housed.

    Because of this, several

    cases of possession were referred for prosecution in hopes of


    deterring the problem.
    Upon
    Handbook,

    entry

    to

    prepared

    regulations.

    As

    FCI
    by

    Morgantown,
    the

    relevant

    BOP,
    in

    of

    the

    each
    the

    instant

    inmate

    is

    prisons
    case,

    given

    rules

    the

    requires inmates to use the prisons phone system.

    and

    Handbook

    The prison

    system records the calls because inmates have used the system
    for various improper purposes, including attempts to introduce
    contraband into the prison.
    of

    individuals

    and

    The prison also requires all names

    telephone

    numbers

    to

    be

    on

    the

    approved telephone list before a call can be placed.

    inmates

    The prison

    reviews the lists and calls to ensure the safety and security
    of the institution.

    The Handbook also prohibits the possession

    of contraband in the prison.


    anything

    not

    received

    The BOP defines contraband as

    through

    official

    means.

    If

    found

    in

    violation of these rules, the Handbook alerts the inmate that he


    can be subject to various administrative penalties.

    However, at

    the time, the words cellular phone or mobile phone did not
    appear in the Handbook.

    Additionally, the Handbook provides for


    4

    punishment for a Code 108 which punishes inmates for prohibited


    acts,

    including

    possession

    of

    hazardous

    tool.

    When

    the

    problem of cell phone possession escalated, the prison staff


    attempted to inform inmates that cell phone possession would now
    be

    prosecuted.

    briefings

    that

    prosecuted.
    phones

    Apparently
    cases

    of

    some
    cell

    inmates
    phone

    were

    informed

    possession

    could

    at
    be

    Although Beason admits that he was aware that cell

    were

    violation

    prohibited
    and

    that

    contraband

    and

    possession

    possible

    Code

    108

    could

    subject

    him

    to

    administrative sanctions, he states that he did not know that


    possession of a cell phone could lead to prosecution.
    At

    the

    included

    time

    of

    explicitly

    Beasons
    in

    prohibited object[s].

    18

    offense,

    U.S.C.

    cell

    phones

    1791s

    were

    not

    definition

    of

    Beason was convicted under the catchall

    provision

    of

    the

    statute,

    possession

    of

    any

    other

    which

    object

    allows

    that

    discipline, or security of a prison.

    prosecution

    threatens

    the

    for

    order,

    Id. 1791(d)(1)(F).

    In

    August 2010, Congress passed the Cell Phone Contraband Act of


    2010, which amended the statute at hand and specifically makes
    possession of a cell phone by federal inmates illegal.

    Pub. L.

    No. 111-225, 2, 124 Stat. 2387 (codified at 18 U.S.C 1791).


    On

    November

    23,

    2010,

    the

    government

    filed

    one-count

    Information, charging Beason with possession of contraband in


    prison.

    Beason then filed a motion to dismiss the Information,


    5

    arguing

    that

    the

    unconstitutionally

    statute,

    as

    void

    vagueness.

    for

    applied

    to

    his

    The

    conduct,

    magistrate

    was
    judge

    issued a Report and Recommendation (R & R) that recommended that


    Beasons

    motion

    to

    dismiss

    be

    denied.

    The

    district

    court

    adopted the magistrates R & R and denied Beasons motion to


    dismiss.

    Beason then entered a conditional guilty plea to the

    offense, with the proviso that he reserved the right to appeal


    whether the statute is void for vagueness.
    plea,

    the

    probation.

    district

    court

    sentenced

    After his guilty

    Beason

    to

    two

    years

    of

    Beason timely appealed, and we have jurisdiction

    pursuant to 28 U.S.C. 1291.

    II.
    This court reviews a district courts interpretation of a
    statute de novo.

    United States v. Nelson, 484 F.3d 257, 260

    (4th Cir. 2007).


    Beason

    first

    argues

    that

    18

    U.S.C.

    1791s

    catchall

    provision is void for vagueness as applied to him because the


    statute failed to put him on notice that possession of a cell
    phone was prohibited, and because of this his conviction must be
    set aside.

    A conviction does not comport with due process if

    the

    under

    statute

    which

    defendant

    is

    charged:

    fails

    to

    provide a person of ordinary intelligence fair notice of what is


    prohibited,

    or

    is

    so

    standardless
    6

    that

    it

    authorizes

    or

    encourages seriously discriminatory enforcement.


    v. Williams, 553 U.S. 285, 304 (2008).

    United States

    This analysis should be

    conducted bearing in mind the context in which the statute is


    applied.

    See United States v. Chatman, 538 F.2d 567, 569 (4th

    Cir. 1976).
    The

    government

    cites

    this

    Courts

    decision

    in

    Chatman,

    which found that a prior version of the statute at issue in this


    case was not vague.
    introduced
    facility.

    24.3

    538 F.2d at 569.

    grams

    Id. at 568.

    of

    marijuana

    In Chatman, the defendant


    into

    the

    correctional

    At that time, 18 U.S.C. 1791 provided

    that [w]hoever contrary to any rule or regulation promulgated


    by the Attorney General, introduces or attempts to introduce
    into or upon the grounds of any Federal penal or correctional
    institution . . . anything whatsoever, 18 U.S.C. 1791 (1976)
    (amended

    1984),

    is

    subject

    to

    criminal

    penalties.

    Its

    implementing regulation gave further guidance, adding without


    the knowledge or consent of the warden or superintendent of such
    Federal penal or correctional institution is prohibited.
    C.F.R. 6.1. (1975).

    28

    Viewing the statute in its context of

    operationfederal prisons, this Court reasoned that:


    A federal penal institution has peculiar needs, and
    statutes
    designed
    to
    regulate
    articles
    being
    introduced into such institutions must be scrutinized
    in light of those needs.
    Pragmatically speaking, it
    would be virtually impossible for a single statute to
    catalogue the numerous items which must be prohibited
    in the interest of prison safety and security.
    7

    538 F.2d at 569 (citations omitted).


    The
    U.S.C.

    government

    1791

    argues

    withstood

    that

    the

    vagueness

    previous

    version

    challenge

    even broader than the statute at hand.

    of

    despite

    18

    being

    The government notes

    that thereafter Congress refined the definition of prohibited


    object[s], therefore giving even more guidance as to what is
    prohibited in prisons.

    Despite the governments arguments, we

    find Chatman to be inapposite for three reasons.

    First, the

    statute at hand does not provide more notice than the former
    version

    of

    the

    statute

    contrary is the case.

    at

    issue

    in

    Chatman.

    In

    fact,

    the

    Under the former statutes wording that

    prohibited anything whatsoever, it was quite clear that no


    item may brought into a prison.

    Further, there was a simple way

    to get clarification regarding whether an item would be allowed


    in

    the

    prisonobtain

    superintendent.

    the

    consent

    of

    the

    warden

    or

    Pursuant to the current version, a person has

    no way to seek consent for possession of an item, and under this


    version inmates must guess at what items are prohibited.

    statute that requires an inmate to guess at what exact items are


    prohibited fails to provide a person of ordinary intelligence
    fair notice of what is prohibited, Williams, 553 U.S. at 304,
    and is void for vagueness.
    Second, the challenged version of the statute specifically
    bans only three types of items:
    8

    (1) items that can inflict

    injury on others, such as weapons; (2) items that can cause


    intoxication; and (3) currency.

    18 U.S.C. 1791(d)(1)(A)-(E).

    Unlike firearms or drugs that are listed in the statute, a cell


    phone in and of itself poses no threat to safety.
    that

    cell

    phones

    might

    be

    put

    to

    bad

    use

    is

    The fact
    reason

    for

    Congress to specifically include themlike cash, see 18 U.S.C.


    1791(d)(1)(E)in
    include them.

    the

    statute,

    not

    to

    read

    statute

    to

    United States v. Blake, 288 F. Appx 791, 796

    (3rd Cir. 2008) (Rendell, J., dissenting).


    discernible

    the

    relationship

    between

    the

    In sum, there is no

    specifically

    enumerated

    items and a cell phone that would allow a reasonable person to


    infer that a cell phone would be prohibited as well.
    Third, unlike the marijuana in Chatman, the illegality of
    which is widely known to the general public, cell phones are not
    inherently illegal.

    It follows that a reasonable person would

    not be aware that possession of an innocuous legal item would


    subject them to prosecution.

    For all of these reasons, the

    statute does not provide an ordinary person fair notice that


    possession of a cell phone would subject him to federal criminal
    sanctions.
    The government next argues that Beason knew a cell phone
    could

    threaten

    the

    order,

    security,

    and

    discipline

    of

    the

    prison because he knew he could be disciplined for possession


    of

    the

    cell

    phone

    through

    the
    9

    Handbooks

    prohibitions

    on

    possessing contraband or by a Code 108 violation.


    Beason

    knew

    sanctions

    that

    for

    he

    could

    violation

    be
    of

    subjected
    the

    to

    The fact that


    administrative

    aforementioned

    Handbook

    provisions is of no moment in determining whether Beason had


    notice that his possession of a cell phone was in violation of
    federal law.
    phones

    were

    The test is not whether Beason knew that cell


    prohibited

    but

    rather,

    is

    whether

    person

    of

    ordinary intelligence would know the conduct was prohibited by


    federal criminal law, not by some other rule or regulation.
    Id. at 797 (Rendell, J., dissenting).

    Here, Beasons knowledge

    that he was not allowed to have the cell phone does not incline
    us

    to

    conclude

    that

    he

    therefore

    had

    fair

    notice

    that

    his

    because

    the

    actions would result in federal criminal penalties.

    III.
    Accordingly,

    we

    reverse

    Beasons

    conviction

    statute, as applied to him, is void for vagueness.


    REVERSED

    10

    WILKINSON, Circuit Judge, dissenting:


    I would affirm the judgment based on the reasoning given by
    the district court, United States v. Beason, No. 1:10CR105, 2011
    WL 399839 (N.D.W. Va. Feb. 1, 2011), and the Third Circuit in
    United States v. Blake, 288 F. Appx 791 (3d Cir. 2008).
    practical effect of this whole matter, however, is limited.

    The
    As

    the majority notes, Congress has since amended the statute at


    hand

    [to]

    specifically

    make[]

    federal inmates illegal.

    possession

    of

    cell

    phone

    by

    Ante at 5 (citing Pub. L. No. 111-

    225, 2, 124 Stat. 2387 (codified at 18 U.S.C. 1791)).

    11

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