United States District Court, W.D. Oklahoma
Timothy D. DeGiusti Chief United States District Judge.
the Court is Defendant's Supplemental Objection to the
Government's Proposed Jury Instructions [Doc. No. 162].
The government has responded.
asserts that the 18 U.S.C. § 1591(c) is
unconstitutionally vague and “too imprecise to meet
constitutional protections of due process.” Defendant
contends that the statute fails to sufficiently define
“what constitutes a reasonable opportunity to observe
or view the victim.” Supplemental Objection at 3.
a finding that the statute is unconstitutionally vague such
that it is void would necessarily render the Superseding
Indictment infirm and deprive the Court of subject matter
jurisdiction, the Court construes Defendant's Objection
as a motion to dismiss the Superseding Indictment [Doc. No.
government responds that: (1) Defendant's Motion is
untimely; and, (2) the statute is not void on vagueness
grounds. Government's Response to Defendant's
Vagueness Challenge to Jury Instructions [Doc. No. 167].
Crim. P. 12(b)(2) states that a pretrial “motion that
the court lacks jurisdiction may be made at any time.”
Therefore, the Defendant's Motion is not untimely and the
Court will address its merits.
conviction fails to comport with due process if the statute
under which it is obtained fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or
is so standardless that it authorizes or encourages seriously
discriminatory enforcement.” Holder v. Humanitarian
Law Project, 561 U.S. 1, 18, 130 S.Ct. 2705, 2718, 177
L.Ed.2d 355 (2010) (quoting United States v.
Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d
650 (2008)). Put another way, a statute is not
unconstitutionally vague if it provides “a person of
ordinary intelligence fair notice that his contemplated
conduct is forbidden by the statute.” Papachristou
v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct.
839, 31 L.Ed.2d 110 (1972) (citation and internal quotation
circuits and district Courts, including this Court, have
rejected Defendant's argument. In United States v.
Whyte, 17-15223, 2019 WL 3000797, at *8 (11th Cir. July
10, 2019) (citing United States v. Mozie, 752 F.3d
1271, 1282 (11th Cir. 2014)), the Eleventh Circuit held that
“the standard ‘reasonable opportunity to
observe' is not unconstitutionally vague.” In
support of its holding, the Eleventh Circuit quoted its
previous holding in Mozie that the argument:
that an ordinary person would not understand what qualifies
as ... a ‘reasonable opportunity to observe' runs
counter to centuries of jurisprudence; those terms are
familiar legal concepts that have played an integral role in
defining proscribed conduct over the years.
Whyte, 17-15223, 2019 WL 3000797, at *8 (11th Cir.
July 10, 2019) (quoting Mozie, 752 F.3d at 1283.
Ninth Circuit has likewise held that the phrase “a
reasonable opportunity to observe” is not
unconstitutionally vague as “the terms used in the
phrase ‘are not esoteric or complicated terms devoid of
common understanding.'” United States v.
Rico, 619 Fed.Appx. 595, 599 (9th Cir. 2015) (quoting
United States v. Osinger, 753 F.3d 939, 945 (9th
relies on United States v. Davis, 139 S.Ct. 2319,
2323, 2336, (2019), which held that “[18 U.S.C.] §
924(c)(3)(B) is unconstitutionally vague” in that it
does not adequately define what crimes constitute felonies
“that by [their] nature, involv[e] a substantial risk
that physical force ...