673 F.3d 771 (8th Cir. 2012), 11-1556, United States v. Ghane

Docket Nº:11-1556.
Citation:673 F.3d 771
Opinion Judge:BEAM, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Hessam GHANE, also known as Sam Ghane, Appellant.
Attorney:J. Justin Johnston, Wyrsch Hobbs & Mirakian, P.C., Kansas City, MO, argued, for appellant. D. Michael Green, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., on the brief), for appellee.
Judge Panel:Before LOKEN, BEAM, and MURPHY, Circuit Judges. LOKEN, Circuit Judge, concurring in part, dissenting in part, and concurring in the judgment.
Case Date:March 09, 2012
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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673 F.3d 771 (8th Cir. 2012)

UNITED STATES of America, Appellee,


Hessam GHANE, also known as Sam Ghane, Appellant.

No. 11-1556.

United States Court of Appeals, Eighth Circuit.

March 9, 2012

Submitted: Sept. 22, 2011.

Rehearing and Rehearing En Banc Denied April 17, 2012.

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J. Justin Johnston, Wyrsch Hobbs & Mirakian, P.C., Kansas City, MO, argued, for appellant.

D. Michael Green, Asst. U.S. Atty., Kansas City, MO, argued (Beth Phillips, U.S. Atty., on the brief), for appellee.

Before LOKEN, BEAM, and MURPHY, Circuit Judges.

BEAM, Circuit Judge.

A jury convicted Hessam Ghane of stockpiling, retaining, and possessing a chemical weapon— potassium cyanide— in violation of 18 U.S.C. §§ 229(a)(1) and 229A(a)(1). Ghane's conviction, obtained in December 2010, followed a previous trial in September 2010 for the same offense, resulting in a hung jury and mistrial.

Ghane appeals from his conviction and sentence, specifically challenging the district court's 1 denial of his pre-trial motion to dismiss and motion in limine. We affirm.


Dr. Hessam Ghane had a documented history of significant mental illness and he often sought the help of physicians for his condition. On February 4, 2003, Ghane was again suicidal and called a crisis hotline. The hotline personnel notified the local police department and officers were dispatched to Ghane's apartment.

Distressed, Ghane asked the officers for help and stated that he wanted to speak with a doctor. The responding officer ultimately transported Ghane to Overland Park Regional Medical Center (OPRMC) at Ghane's request. Ghane checked himself into the OPRMC emergency room (ER), where Gleb Gluhovsky, a physician's assistant, conducted the routine intake examination. According to OPRMC protocol, a patient who presents himself to the ER is first evaluated in the ER, prior to his ultimate placement in the proper health unit. Because Ghane presented with depression and suicidal ideation, Gluhovsky used a particular intake form, called a " T sheet," created specifically to record such an interview.

During Gluhovsky's evaluation, Ghane stated that he was having suicidal thoughts. Gluhovsky asked Ghane whether he had a " plan and means" to commit suicide and Ghane responded that if he were to commit suicide, he would use cyanide, which he had access to at his apartment. Ghane also stated that he would not be willing to give up the cyanide because " he might want to use it later." During Ghane's interview with Gluhovsky, Ghane did not expressly threaten any other person. Following this interview, Gluhovsky obtained permission from the hospital's risk management to contact the police, due to the potential for public harm.

After Gluhovsky notified the police, a Detective Seever arrived at the hospital, interviewed Ghane, and obtained Ghane's written permission to search his apartment.2 On February 5, 2003, officers conducted the search of Ghane's apartment

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and seized potassium cyanide.3

Once admitted to the psychiatric ward, Dr. Howard Houghton, a clinical psychiatrist, treated Ghane. Dr. Houghton had treated Ghane periodically, but not exclusively, for many years. On February 5, 2003, when Dr. Houghton saw Ghane for the first time following admission, Dr. Houghton performed a routine clinical examination for purposes of admission. At that time, Ghane not only discussed his suicidal thoughts, but also stated that he had thoughts of harming others affiliated with the Corps of Engineers and that he had access to chemicals. Ghane did not name specific individuals, however. Dr. Houghton especially noted that on this occasion, Ghane seemed " markedly different," unusually paranoid, and that Dr. Houghton was surprised by Ghane's hostility and irritability.

Because of Ghane's threats toward unnamed government officials and Dr. Houghton's concern over the elevated intensity of Ghane's emotions, Dr. Houghton sought advice from the hospital's risk management regarding whether and how to report this information to law enforcement. OPRMC's risk management advised Dr. Houghton to obtain Ghane's consent to allow Dr. Houghton to inform law enforcement. Dr. Houghton obtained Ghane's oral and written consent to contact the appropriate legal authorities after explaining to Ghane that the police needed to be made aware of the threats. Dr. Houghton did not explain to Ghane at the time that, as a result of Ghane's consent, Dr. Houghton may someday be called to testify against Ghane, that his testimony may result in a felony conviction, or that his testimony could result in jail time. Dr. Houghton then talked to an FBI agent regarding Ghane's threats and demeanor. Charges ensued and after many years of litigating Ghane's competence to stand trial, a jury returned the conviction we have before us today. Ghane appeals.


A. Vagueness and Overbreadth Challenge

Ghane asserts that the chemical weapon statute under which he was convicted is unconstitutionally vague in violation of his Fifth Amendment right to due process. " The void-for-vagueness doctrine protects persons by providing ‘ fair notice’ of a statute's applicability and by preventing ‘ arbitrary and discriminatory prosecutions' of a statute's enforcement." United States v. Mabie, 663 F.3d 322, 333 (8th Cir.2011) (quoting Skilling v. United States, __ U.S. __, 130 S.Ct. 2896, 2933, 177 L.Ed.2d 619 (2010)). " The vagueness doctrine recognizes that ‘ [a] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.’ " United States v. Birbragher, 603 F.3d 478, 484 (8th Cir.2010) (alteration in original) (quoting United States v. Washam, 312 F.3d 926, 929 (8th Cir.2002)). " ‘ Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed.’ " Washam, 312 F.3d at 929 (quoting

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United States v. Nat'l Dairy Prods. Corp., 372 U.S. 29, 32-33, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963)). This court reviews de novo a district court's determination whether a penal statute is void for vagueness under the Fifth Amendment. Birbragher, 603 F.3d at 484.

The government charged Ghane with " knowingly stockpil[ing], retain[ing], and possess[ing], a chemical weapon, that is, potassium cyanide, which is a toxic chemical not intended by the defendant to be used for a peaceful purpose" as that term is defined in 18 U.S.C. § 229F(7)(A). As contemplated by the statute, " [c]hemical weapon" means " [a] toxic chemical and its precursors, except where intended for a purpose not prohibited under this chapter. " 18 U.S.C. § 229F(1)(A) (emphasis added). " Toxic chemical" is defined by the statute as " any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals." Id. at § 229F(8)(A). And, as relevant here, " [p]urposes not prohibited by this chapter" encompasses " peaceful purposes," which the statute defines as " [a]ny peaceful purpose related to an industrial, agricultural, research, medical, or pharmaceutical activity or other activity." Id. at § 229F(7)(A).

Ghane first argues that the terms " chemical weapon," " toxic chemical," and " peaceful purpose" are all defined in section 229F(1)(A), 7(A), and (8)(A), in terms so imprecise that they (1) fail to provide citizens with fair notice of prohibited conduct, and (2) encourage arbitrary and discriminatory enforcement by government officials. Additionally, Ghane claims that the statutory definition of the term " toxic chemical" is so broad that it could include prescription drugs, household products with potentially harmful side effects, and even nicotine and alcohol products.

Vagueness challenges like the one here, that " do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand." Washam, 312 F.3d at 929. A two-pronged analysis is conducted in determining whether a statute is unconstitutionally vague: (1) the statute must define the offense with sufficient definiteness to provide fair warning or adequate notice as to what conduct is prohibited, and (2) it must also define the offense in a manner that does not encourage arbitrary and discriminatory enforcement. Id. As to overbreadth, a statute is considered overbroad if it prohibits constitutionally protected conduct in addition to the conduct the statute seeks to proscribe. Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972).

The district court rejected Ghane's argument that the statute is unconstitutionally vague and overbroad. The court recognized that while this statute could have been more artfully drafted, any alleged vagueness did not make the definitions meaningless. It determined that section 229F(7)(A) conveys sufficient warning regarding the activities in which an individual may or may not engage and that common understanding dictates that " peaceful purposes" are those that are not intended to cause harm. Too, the district court held that the statute modifies the definition of toxic chemicals by prohibiting only chemicals that are intended for a prohibited purpose and are consistent in type and quantity with such purpose, which sufficiently narrows the category of possession for which an individual can face criminal penalties.

While our review is de novo, we agree with the district court. We...

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