United States of America v. Johnny Beason

UNPUBLISHED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Reversed by unpublished opinion.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.

-- 1 of 11 --

2
Unpublished opinions are not binding precedent in this circuit.

-- 2 of 11 --

3
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 statute’s 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 complied with the officer’s request to
surrender the phone. 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).

-- 3 of 11 --

4
cell phones pose significant security risks to prisons because
inmates can use cell phones to arrange fraud schemes, plan
assaults, and coordinate escapes. 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 entry to FCI Morgantown, each inmate is given a
Handbook, prepared by the BOP, of the prison’s rules and
regulations. As relevant in the instant case, the Handbook
requires inmates to use the prison’s phone system. The prison
system records the calls because inmates have used the system
for various improper purposes, including attempts to introduce
contraband into the prison. The prison also requires all names
of individuals and telephone numbers to be on the inmate’s
approved telephone list before a call can be placed. 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. The BOP defines contraband as
anything not received 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 of 11 --

5
punishment for a Code 108 which punishes inmates for prohibited
acts, including possession of a 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. Apparently some inmates were informed at
briefings that cases of cell phone possession could be
prosecuted. Although Beason admits that he was aware that cell
phones were prohibited contraband and a possible Code 108
violation and that possession 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 time of Beason’s offense, cell phones were not
included explicitly in 18 U.S.C. § 1791’s definition of
“prohibited object[s].” Beason was convicted under the catchall
provision of the statute, which allows prosecution for
possession of “any other object that threatens the order,
discipline, or security of a prison.” 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 a one-count
Information, charging Beason with possession of contraband in
prison. Beason then filed a motion to dismiss the Information,

-- 5 of 11 --

6
arguing that the statute, as applied to his conduct, was
unconstitutionally void for vagueness. The magistrate judge
issued a Report and Recommendation (R & R) that recommended that
Beason’s motion to dismiss be denied. The district court
adopted the magistrate’s R & R and denied Beason’s 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. After his guilty
plea, the district court sentenced Beason to two years of
probation. Beason timely appealed, and we have jurisdiction
pursuant to 28 U.S.C. § 1291.
II.
This court reviews a district court’s 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. § 1791’s 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 statute under which a defendant is charged: “fails to
provide a person of ordinary intelligence fair notice of what is
prohibited, or is so standardless that it authorizes or

-- 6 of 11 --

7
encourages seriously discriminatory enforcement.” United States
v. Williams, 553 U.S. 285, 304 (2008). 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 Court’s decision in Chatman,
which found that a prior version of the statute at issue in this
case was not vague. 538 F.2d at 569. In Chatman, the defendant
introduced 24.3 grams of marijuana into the correctional
facility. Id. at 568. 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.” 28
C.F.R. § 6.1. (1975). Viewing the statute in its context of
operation—federal 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 of 11 --

8
538 F.2d at 569 (citations omitted).
The government argues that the previous version of 18
U.S.C. § 1791 withstood a vagueness challenge despite being
“even broader” than the statute at hand. 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 government’s 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 at issue in Chatman. In fact, the
contrary is the case. Under the former statute’s 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 prison—obtain the consent of the warden or
superintendent. 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. A
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: (1) items that can inflict

-- 8 of 11 --

9
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. “The fact
that cell phones might be put to bad use is a reason for
Congress to specifically include them—like cash, see 18 U.S.C.
§ 1791(d)(1)(E)—in the statute, not to read the statute to
include them.” United States v. Blake, 288 F. App’x 791, 796
(3rd Cir. 2008) (Rendell, J., dissenting). In sum, there is no
discernible relationship between the 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 Handbook’s prohibitions on

-- 9 of 11 --

10
possessing contraband or by a Code 108 violation. The fact that
Beason knew that he could be subjected to administrative
sanctions for violation of the 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. The test is not whether Beason knew that cell
phones were prohibited but rather, is “whether a 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, Beason’s 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
actions would result in federal criminal penalties.
III.
Accordingly, we reverse Beason’s conviction because the
statute, as applied to him, is void for vagueness.
REVERSED

-- 10 of 11 --

11
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. App’x 791 (3d Cir. 2008). The
practical effect of this whole matter, however, is limited. As
the majority notes, Congress has since “amended the statute at
hand [to] specifically make[] possession of a cell phone by
federal inmates illegal.” Ante at 5 (citing Pub. L. No. 111-
225, § 2, 124 Stat. 2387 (codified at 18 U.S.C. § 1791)).

-- 11 of 11 --