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United States v. Schaefer

United States District Court, D. Oregon, Portland Division

October 14, 2019

UNITED STATES OF AMERICA,
v.
JASON PAUL SCHAEFER, Defendant.

          Natalie K. Wight William M. Narus U.S. Attorney's Office Attorneys for Plaintiff

          Matthew G. McHenry Levine & McHenry LLC Attorney for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Jason Paul Schaefer's motion to dismiss count 8 of the third superseding indictment as unconstitutionally vague. For the reasons that follow, Defendant's motion is GRANTED.

         BACKGROUND[1]

         On April 18, 2019, the government filed a third superseding indictment in this case. The indictment contained eight counts, including assault on a federal officer in violation of 18 U.S.C. § 111(a) and (b), use of an explosive to commit a federal felony in violation of 18 U.S.C. § 844(h)(1), and the unlawful transport of explosive materials in violation of 18 U.S.C. §§ 842(a)(3)(A) and 844(a). Relevant to this motion, count 8 charged Mr. Schaefer with being a felon in possession of explosives-specifically, electric matches-in violation of 18 U.S.C. §§ 842(i)(1) and 844(a).

         Before trial, Mr. Schaefer moved to dismiss count 8 (then count 7) as unconstitutionally vague. The Court denied the motion without prejudice to refiling, as Mr. Schaefer could only bring as-applied challenge and the facts had not yet been established at trial.

         At trial, the government introduced evidence that Mr. Schaefer was a convicted felon, that he had purchased electric matches online, and that these matches had traveled in interstate or foreign commerce. The government also introduced evidence that these electric matches were regulated explosives that Mr. Schaefer was prohibited from possessing.

         On May 5, 2019, a jury found Mr. Schaefer guilty on all eight counts.

         DISCUSSION

         “A criminal statute is void for vagueness if it is not sufficiently clear to provide guidance to citizens concerning how they can avoid violating it and to provide authorities with principles governing enforcement.” United States v. Harris, 705 F.3d 929, 932 (9th Cir. 2013) (internal quotation marks omitted). “Vagueness challenges to statutes which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand.” Id. at 932 (quoting United States v. Mazurie, 419 U.S. 544, 550 (1975)); United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004) (“Where, as here, a statute is challenged as unconstitutionally vague in a cause of action not involving the First Amendment, we do not consider whether the statute is unconstitutional on its face. Rather, we must determine “whether the statute is impermissibly vague in the circumstances of this case.”). “In an as-applied challenge, a statute is unconstitutionally vague if it fails to put a defendant on notice that his conduct was criminal.” Harris, 705 F.3d at 932 (internal quotation marks omitted). “For statutes involving criminal sanctions the requirement for clarity is enhanced.” Id. (internal quotation marks omitted).

         An as-applied inquiry “turns on whether the statute provided adequate notice to [the individual defendant] that his particular conduct was proscribed.” Harris, 705 F.3d at 932 (emphasis added). In Harris, for example, the Ninth Circuit found that a statute that prohibited carrying a “concealed dangerous weapon” on an aircraft was not unconstitutionally vague as applied. Id. at 930. There, the defendant, an airport employee, snuck a passenger's pocketknife (with a two-and-a-half inch blade) past a security checkpoint. Id. at 930-31. While the defendant challenged the term “dangerous weapon, ” the court noted that the defendant was an airport employee, he “knew that this particular knife had been turned back by TSA, ” and that signs throughout the airport expressly prohibited all knives. Id. at 932. The court therefore concluded that “even considering the enhanced requirement of clarity for criminal statutes, . . . the statute gave Defendant adequate notice that his conduct was prohibited.” Id.

         Here, Mr. Schaefer was convicted of possessing an explosive in violation of 18 U.S.C. § ...


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