United States v. Raridan
| Decision Date | 07 April 2023 |
| Docket Number | 6:22-mj-0009-HBK |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL RARIDAN, Defendant. |
| Court | U.S. District Court — Eastern District of California |
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
Pending before the Court is Defendant's motion to dismiss. (Doc No. 20). The Government filed an opposition and Defendant filed a reply (Doc. Nos. 26, 29). For the reasons set forth below, the Court denies the motion.
On July 14, 2022, a criminal complaint was filed charging Defendant with violating 18 U.S.C. § 1801(a) (video voyeurism) a Class A misdemeanor, and 36 C.F.R. § 2.34(a)(2) (disorderly conduct) a Class B misdemeanor. (Doc. No 1).[1] According to the probable cause statement, at approximately 10:00 p.m. on July 4, 2022, K (an off-duty law enforcement officer) was using a community shower facility within the boundaries of Yosemite National Park when she noticed the top portion of a smart phone camera protruding over the edge of a window vent into her shower stall. (Id.). K “shouted at the individual holding the phone/camera,” immediately covered herself with a towel and began searching the area with her dog. (Id.). K discovered Defendant “hiding underneath a government vehicle” adjacent to the shower house. (Id. at 2). K recognized Defendant from a previous interaction and confronted him. (Id. at 2). The confrontation escalated to loud shouting which was heard by at least one resident of a nearby trailer court. (Id.). The resident “[came] out to see if everything was alright[.]” (Id.).
Defendant denied taking photos of K but showed her a video that captured the “bottom right side of the ventilation window into the shower stall.” (Id.). Defendant told K “He just couldn't help himself.” (Id.). K reported the incident to Officer Brandon Penrose the next morning at approximately 8:15 a.m. (Id. at 1).
On July 19, 2022, the Government filed a Superseding Information charging Defendant on Count One with violating 18 U.S.C. § 1801(a), intend to capture an image of a private area of an individual without their consent, and knowingly did so under circumstances in which the individual has a reasonable expectation of privacy. (Doc. No. 3). On July 27, 2022, the Government filed a Second Superseding Information, charging Defendant on Count One, violating 18 U.S.C. § 1801(a), intend to capture an image of a private area of an individual without their consent, and knowingly did so under circumstances in which the individual has a reasonable expectation of privacy (a Class A misdemeanor); and on Count Two, violating 36 C.F.R. § 2.34(a)(2), commit an obscene act that was likely to incite an immediate breach of peace (a Class B misdemeanor). (Doc. No. 8). Defendant was arrested in Nevada, released from custody on terms, and appeared for his initial appearance before the undersigned on August 16, 2022. (Doc. Nos. 10, 14). At his initial appearance held before the undersigned, Defendant asserted his right to proceed before a district judge on the Class A misdemeanor. (Doc. No. 14).
On September 12, 2022, the Government filed a Rule 48 motion to dismiss Count One, 18 U.S.C. § 1801(a), the Class A misdemeanor, without prejudice. (Doc. No. 15). The district court granted the Government's motion, dismissed Count One without prejudice, closed case no. 1:22-cr-00226-ADA-HBK, and reset the matter for a status conference and arraignment before the undersigned on Count Two, the Class B misdemeanor. (Doc. No. 16). On October 4, 2022, Defendant was arraigned before the undersigned on Count Two of the Second Superseding Information and entered a not guilty plea. (Doc. No. 19).
Defendant filed the instant motion to dismiss pursuant to Fed. R. Crim. P. 12(b)(1) and Local Rule 430.1. (Doc. No. 20). Defendant seeks the dismissal of Count Two on the basis that 36 C.F.R. § 2.34(a)(2) is unconstitutionally vague, facially, and as applied under the Fifth Amendment Due Process Clause. (Id. at 1). Defendant correctly notes to obtain a conviction, the Government must prove both the mens rea and actus reaus elements of 36 C.F.R. § 2.34(a)(2). (Id. at 6). Focusing on the “immediate breach of peace portion” of the regulation, as expressly charged in the Second Superseding Information, and relying on Chaplinsky's “fighting words” origin, Defendant contends 36 C.F.R. § 2.34(a)(2) was drafted only to prohibit language or expressive conduct that would cause a breach of peace, not non-expressive conduct. (Id. at 78). Defendant argues the statute at issue was not promulgated to prohibit acts that would cause a breach of peace but was written only to prohibit language or expressive conduct. (Id. at 8, emphasis added). Defendant also argues the regulation, in addition to being vague, is arbitrarily enforced. (Id. at 8-9). Defendant points to the “the way in which the charging decisions were made in the case” as demonstrative that § 2.34(a)(2) is a “catch-all criminal provision that encourages arbitrary enforcement.” (Id. at 9).
In opposition, the Government points out the Ninth Circuit has already determined that 36 C.F.R. § 2.34 is not unconstitutionally vague. (Doc. No. 26 at 4). The Government argues Defendant's conduct clearly is “obscene” as prescribed by 36 C.F.R. § 2.34(a)(2) and would also likely incite an immediate breach of peace. (Id. at 4-7). The Government contends that the phrase “immediate breach of peace” applies not only to verbal statements but to acts. (Id. at 8). As a result, the Government maintains Defendant's conduct falls clearly within the bounds of the regulation. (Id. at 9). Because Defendant's as-applied challenge fails, the Government reasons the Court need not address the facial challenge; but in an abundance of caution addresses the facial challenge. (Id. at 9-11).
Defendant replies that the Government's assertion that they will likely file another superseding information supports the position that 36 C.F.R. § 2.34(a)(2) is unconstitutionally vague and encourages arbitrary and discriminatory enforcement. (Doc. No. 29 at 2). Finally, Defendant addresses the Government's argument that his as-applied challenge fails. (Id. at 3-4).
The Court may properly consider Defendant's pretrial motion to dismiss Count Two of the Second Superseding Information on the basis that 36 C.F.R. § 2.34(a)(2) is unconstitutionally void for vagueness. Fed. R. Crim. P 12(b)(3)(B)(v); see also United States v. Agront, 773 F.3d 192, 195 (9th Cir. 2014). A challenge to a statute or regulation as void for vagueness arises from the Fifth Amendment. United States v. Williams, 553 U.S. 285, 304 (2008). When analyzing whether a statute is impermissibly, vague, “the touchstone is whether the statute, either standing alone or as construed, made it reasonably clear at the relevant time that the defendant's conduct was criminal.” United States v. Lanier, 520 U.S. 259, 267 (1997). A statute is impermissibly vague if it fails to provide people of ordinary intelligence a reasonable opportunity of what conduct it prohibits, or if it authorizes or even encourages arbitrary and discriminatory enforcement. Hill v. Colorado, 530 U.S. 703, 732 (2000). When a defendant brings forth an as-applied challenge but does not argue that his First Amendment rights are at issue, the court need only “examine the vagueness challenge under the facts of the particular case and decide whether, under a reasonable construction of the statute, the conduct in question is prohibited.” Agront, 773 F.3d at 195 (quoting United States v. Naghani, 361 F.3d 1255, 1259-60 (9th Cir. 2004)) (other citation omitted). Absent “exceptional circumstances,” a finding that the conduct fell within the challenged regulation, i.e., failing to sustain an as applied vagueness challenge, precludes a facial vagueness challenge. Kashem v. Barr, 941 F.3d 358, 375 (9th Cir, 2019); United States v. Melgar-Diaz, 2 F.4th 1263, 1270 (9th Cir 2021).
Defendant does not raise a First Amendment issue. (See Doc. No. 20). The Court thus only examines Defendant's vagueness challenge under the facts particular to his case. See Agront, 773 F.3d at 195 (citations omitted). Relevant here is the statute with which Defendant was charged-disorderly conduct.
36 C.F.R. § 2.34(a)(2). The Second Superseding Information alleges Defendant committed disorderly conduct by “commit[ing] an obscene act that was likely to incite an immediate breach of peace.” (Doc. No. 8).
Defendant does not appear to challenge whether his alleged conduct constitutes an obscene act, nor can he. Although the regulation does not explicitly define what acts are “obscene,” the Court gives the term its “‘ordinary contemporary meaning,' and ‘may consult dictionary definitions.'” City of Los Angeles v. Barr, 941 F.3d 931, 940 (9th Cir. 2019) (quoting Transwestern Pipeline Co. v. 17.19 Acres of Prop. Located in Maricopa Cty., 627 F.3d 1268 1270 (9th Cir. 2010)). Black's Law Dictionary defines obscene as “[e]xtremely offensive under contemporary community standards of morality and decency; grossly repugnant to the generally accepted notions of what is appropriate.” OBSCENE, Black's Law Dictionary (11th ed. 2019). Defendant is charged with allegedly using the camera on his smart phone to record K, while she was...
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