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Federal Corner: Who Are The People? – By F. R. Buck Files Jr.


We all know those first words of the Constitution of the United States: “We the people of the United States . . .” But who are the people? Would the people—or a group of the people—be entitled to the same constitutional guarantees under the Second Amendment and/or Fourth Amendment and/or the Fifth Amendment?

Just recently, a panel of the United States Court of Appeals for the Fifth Circuit was confronted with this issue on a Second Amendment analysis and could not agree as to the meaning of the people. United States v. Portillo-Munoz, ___F.3d___, 2011 WL 2306248 (5th Cir. 2011) [Panel: Circuit Judges Garwood, Garza, and Dennis (dissenting)]. This is a case of first impression—not only in the Fifth Circuit but in all the Circuits.

The Facts in Portillo

Portillo was an illegal alien who was arrested by a city police officer in Dimmit, Texas, for unlawfully carrying a weapon and for possession of a controlled substance (cocaine). The weapon was a .22-caliber pistol Portillo said that he used to protect the chickens from coyotes at the ranch where he worked. He had been employed at this ranch for six months.

What Occurred in the District Court

This must have appeared to be a “fish-in-the-barrel” case to the government. Portillo was indicted for one count of an alien, illegally and unlawfully present in the United States, being in possession of a firearm [18 U.S.C. § 922 (g)(5)]. Portillo’s attorneys viewed the case in a different light. They filed a motion to dismiss, alleging that a conviction under the statute would violate Portillo’s rights under the Second Amendment and the Fifth Amendment (Due Process Clause). United States District Judge Mary Lou Robinson of the Northern District of Texas denied relief.

Portillo then entered a conditional guilty plea. During the plea hearing, he admitted that he was a Mexican citizen who was illegally present in the United States, and that he had knowingly possessed a firearm in or affecting commerce which had been shipped or transported in interstate commerce. Judge Robinson sentenced Portillo to ten months imprisonment to be followed by three years of supervised release. He timely appealed.

What Occurred at the Court of Appeals

A divided panel affirmed the judgment of the District Court. [Note: All the judges agreed that Portillo was not entitled to relief on his Fifth Amendment claim, and I have omitted those portions of the Court’s opinion and the dissenting opinion having to do with that issue.] Judge Garwood authored the opinion for the Court, which reads, in part, as follows:

[The Statute]

Under the laws of the United States, “[i]t shall be unlawful for any person . . . who, being an alien . . . illegally or unlawfully in the United States . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U.S.C. § 922(g)(5). There is no question that Portillo’s conduct violated this statute.

[The Issue Before the Court]

We are only asked to decide if Portillo’s conviction un­der this statute violates the United States Constitution. Whether the protections contained in the Second Amendment extend to aliens illegally present in this country is a matter of first impression in this circuit. Sev­eral district courts have previously considered the constitutionality of this statute, but none of our sister circuits have done so.

[The Second Amendment]

The text of the Second Amendment reads: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” [Emphasis added.]

[The Court’s Reasoning Under Heller]

In 2008, the Supreme Court held in District of Columbia v. Heller that the Second Amendment guarantees an individual right to possess and carry weapons. 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). The individual laying claim to the Second Amendment’s protections in Heller was a United States citizen, so the question of whether an alien, illegal or legal, has a right to bear arms was not presented, and the Court took care to note that it was not purporting to “clarify the entire field” of the Second Amendment. Id. at 2821. However, the Court’s language does provide some guidance as to the meaning of the term “the people” as it is used in the Second Amendment. The Court held the Second Amendment “surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Id. Furthermore, the Court noted that “in all six other provisions of the Constitution that mention ‘the people,’ the term unambiguously refers to all members of the political community, not an unspecified subset” before going on to say that “[w]e start therefore with a strong presumption that the Second Amendment right is exercised individually and belongs to all Americans.” Id. at 2790–91. The Court’s language in Heller invalidates Portillo’s attempt to extend the protections of the Second Amendment to illegal aliens. Illegal aliens are not “law-abiding citizens” or “members of the political community,” and aliens who enter or remain in this country illegally and without authorization are not Americans as that word is commonly understood.

[The Court’s Reasoning Under Verdugo-Urquidez]

Prior to its decision in Heller, the Supreme Court interpreted the meaning of the phrase “the people” in the context of the Fourth Amendment and indicated that the same analysis would extend to the text of the Second Amendment. In United States v. Verdugo-Urquidez, the Court held that its analysis of the Constitution “suggests that ‘the people’ protected by the Fourth Amendment, and by the First and Second Amendments, . . . refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.” 494 U.S. 259, 110 S.Ct. 1056, 1061, 108 L.Ed.2d 222 (1990). Portillo relies on Verdugo-Urquidez and argues that he has sufficient connections with the United States to be included in this definition of “the people,” but neither this court nor the Supreme Court has held that the Fourth Amendment extends to a native and citizen of another nation who entered and remained in the United States illegally.

[Second Amendment v. Fourth Amendment
v. Fifth Amendment]

Moreover, even if there were precedent for the proposition that illegal aliens generally are covered by the Fourth Amendment, we do not find that the use of “the people” in both the Second and the Fourth Amendment mandates a holding that the two amendments cover exactly the same groups of people. The purposes of the Second and the Fourth Amendment are different. The Second Amendment grants an affirmative right to keep and bear arms, while the Fourth Amendment is at its core a protective right against abuses by the government. Attempts to precisely analogize the scope of these two amendments is misguided, and we find it reasonable that an affirmative right would be extended to fewer groups than would a protective right. The Second Circuit laid out compelling reasons for why an illegal alien could not claim that a predecessor statute to section 922(g)(5) violated the Fifth Amendment right to equal protection by saying that “illegal aliens are those who . . . are likely to maintain no permanent address in this country, elude detection through an assumed identity, and—already living outside the law—resort to illegal activities to maintain a livelihood.” United States v. Toner, 728 F.2d 115, 128–29 (2d Cir.1984). The court went on to approvingly quote the district court’s statement that “one seeking to arrange an assassination would be especially eager to hire someone who had little commitment to this nation’s political institutions and who could disappear afterwards without a trace . . .” Id. at 129 (internal quotation marks omitted).

[Citizens v. Aliens]

Additionally, the Supreme Court has long held that Con­gress has the authority to make laws governing the con­duct of aliens that would be unconstitutional if made to apply to citizens. In Mathews v. Diaz, the appellees were lawful resident aliens challenging a federal law that limited eligibility to Medicare Part B to aliens who had been admitted for permanent residence and had also resided in the United States for at least five years. 426 U.S. 67, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976). The Supreme Court upheld both conditions as constitutional against a challenge under the Due Process Clause. The Court pointed out in its opinion that the crucial question was whether discrimination among different types of aliens was permissible, as contrasted with discrimination between aliens and citizens and held that “[n]either the overnight visitor, the unfriendly agent of a hostile foreign power, the resident diplomat, nor the illegal entrant, can advance even a colorable constitutional claim to a share in the bounty that a conscientious sovereign makes available to its own citizens and some of its guests.” Id. at 1891 (emphasis in original). The Court went on to say that
“[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that would be unacceptable if applied to citizens.” Id.

[Lawful Aliens v. Unlawful Aliens]

The Court, in several cases striking down state laws restricting otherwise lawful activities in which aliens could engage, has emphasized that the rights thus protected were those of aliens who were lawful inhabitants of the states in question. In 1915, the Supreme Court held in Truax v. Raich that the complainant, a native of Austria admitted for residency in the United States, was entitled to equal protection under the 14th Amendment because he was “lawfully an inhabitant of Arizona.” 239 U.S. 33, 36 S.Ct. 7, 9, 60 L.Ed. 131 (1915). See also id. at 10 (states cannot “deny to lawful inhabitants . . . the ordinary means of earning a livelihood.”). See also Kwong Hai Chew v. Colding, 344 U.S. 590, 73 S.Ct. 472, 477 & n. 5, 97 L.Ed. 576 (1953); Torao Takahashi v. Fish and Game Comm’n, 334 U.S. 410, 68 S.Ct. 1138, 1142, 1143, 92 L.Ed. 1478 (1948). This court noted in Lynch v. Cannatella that “the Constitution does not forbid all differences in governmental treatment between citizens and aliens, or between aliens who have been legally admitted to the United States and those who are present illegally.” 810 F.2d 1363, 1373 (5th Cir.1987).

The Rest of the Story

Judge Dennis dissented and his opinion reads, in part, as follows:

[The People]

. . . I respectfully dissent from the majority’s dismissal of Portillo-Munoz’s Second Amendment claim. The majority concludes that Portillo-Munoz, a ranch hand who has lived and worked in the United States for more than 18 months, paid rent, and helped supported a family—but who committed the misdemeanor of illegally crossing the border—is not part of “the people.” Supreme Court and Fifth Circuit precedent recognize that the phrase “the people” has the same meaning in the First, Second, and Fourth Amendments. The majority’s determination that Portillo-Munoz is not part of “the people” effectively means that millions of similarly situated residents of the United States are “non-persons” who have no rights to be free from unjustified searches of their homes and bodies and other abuses, nor to peaceably assemble or petition the government. In my view, Portillo-Munoz clearly satisfies the criteria given by the Supreme Court and our court for determining whether he is part of “the people”: he has come to the United States voluntarily and accepted some societal obligations. See United States v. Verdugo-Urquidez, 494 U.S. 259, 271, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country”); Martinez-Aguero v. Gonzalez, 459 F.3d 618, 625 (5th Cir.2006) (“[A]liens with substantial connections are those who are in this country ‘voluntarily and presumably [have] accepted some societal obligations’” (second alteration in original) (quoting Verdugo-Urquidez, 494 U.S. at 273, 110 S.Ct. 1056).

[Suggestion for Remand]

Of course, whether 18 U.S.C. § 922(g)(5) violates the Second Amendment is a separate question from whether Portillo-Munoz is part of “the people” who have First, Second, and Fourth Amendment rights. I would remand for the district court to consider in the first instance the applicable level of scrutiny under the Second Amendment, and whether the provision passes muster under that level of scrutiny.

My Thoughts

I find this case to be very thought provoking. I can appreciate the logic of both the Court’s opinion and the dissenting opinion. The question that I have is whether this case will move to the en banc Court or, possibly, to the Supreme Court. It is certainly one that we will want to watch.

Judge Dennis’ dissenting opinion is worth reading in its entirety. His analysis of Heller differs from that of Judge Garwood. Unfortunately, I only had space for the first two paragraphs of his dissent. Once again, we see a case in which good defense lawyers have looked beyond the obvious, raised issues of Constitutional dimension, and zealously represented their client. These cases are such a joy to read.


Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

Federal Corner: Don’t Let Your Client Drive the Bus Over the Cliff – By F. R. Buck Files Jr.


On February 26, 2010, United States District Judge Barbara Lynn of the United States District Court for the Northern District of Texas sentenced Don Hill, a former mayor pro-tem of the City of Dallas, to 216 months confinement after a jury had convicted him of the offenses of conspiracy to commit bribery, bribery, conspiracy to commit extortion, extortion, conspiracy to commit deprivation of honest services, and conspiracy to commit money laundering.

Anyone who had followed this case in The Dallas Morning News or seen the television coverage of Hill’s case could not have been surprised by the outcome. What makes this case a little out of the ordinary is that Hill led his lawyer down the primrose path to a contempt citation.

Waldo Snerd represented Hill throughout the investigation and the trial of his case. Hill and Snerd were mentioned in 155 articles appearing in The Dallas Morning News, and there was significant footage of the two of them on the evening news broadcasts of the television stations in the Dallas-Fort Worth metroplex.

Well before the beginning of trial, Judge Lynn entered a gag order which included the following paragraphs:

No person covered by this order shall make any statement to members of any television, radio, newspaper, magazine, internet (including, but not limited to, bloggers), or other media organization about this case, other than matters of public record, that could interfere with a fair trial or otherwise prejudice Defendants, the Government, or the administration of justice. . . .

Parties may discuss, without elaboration or any kind of characterization, information contained in the public record; scheduling information; and any discussion or order by the Court that is a matter of public record. [Emphasis added.]

Four days before the beginning of Hill’s trial, both Hill and Snerd participated in a tele­vision interview that Hill’s public relations representative had arranged. Gary Reaves, a reporter for WFAA-TV, asked Hill, “If you’re not guilty, why do you think you’re getting prosecuted?” Hill responded:

And what I’ve said, and I’ve expressed it several times, is that we can now look in hindsight and see that local Democratic officials were targeted by the FBI and the Justice Department under our last president, Mr. Bush, so that now we can look back and see a clear statistical and anecdoctal body of evidence that shows that that was what was happening. So I respect the role that the government plays in investigating [ ] wrongdoing or alleged wrongdoing, I don’t think I can walk away from the fact that I fit the pattern that was exhibited by this Bush Justice Department of being a local Democrat, being on the rise, and being told by an agent when he first meets me that my political career is over with. I think, in part, I’m here because I was targeted . . . The jury will have to look at the evidence and the facts and what people say from the witness stand, and that won’t deal with very much, if anything, about local Democrats or politics, it will just deal with whether Don Hill and Sheila Hill did anything that was wrong and improper. And I can sit here with a certainty, looking at you right now and say to you that we didn’t. And I am convinced that we’re going to be exonerated. [Emphasis added.]

Snerd was then asked by Reaves, “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?” Snerd answered:

Well, that’s—that’s been the claim since the beginning. That’s been a claim of several people around the country. I can’t—I can’t particularly speak to that, because I don’t know. But I know that there are several people who have made the claim and then there’s been several people who have shown that during the Bush Administration that Democrats were targeted. [Emphasis added.]

Judge Lynn was not favorably impressed when she learned of Hill’s and Snerd’s comments. She ordered Hill and Snerd, their counsel, and the public relations representative for Hill to appear before her and gave notice to them that she was citing them for criminal contempt. After the conclusion of the criminal case, Judge Lynn presided over a one-day bench trial on the contempt charges. During the hearing, Hill did not testify. Jackson did—and found himself being questioned sharply by Judge Lynn; e.g., “What in the world was going on with you that prevented you from crying foul when you realized that he [Hill] violated the terms of the interview?” and, “What was the source of your optimism that what happened in the interview wouldn’t violate the terms of my order?”

Hill and Snerd were each found guilty of criminal contempt. Hill was sentenced to 30 days imprisonment and Snerd to a $5,000 fine and a 120-day suspension from receiving any new criminal appointments in the Northern District of Texas. Both Hill and Snerd appealed Judge Lynn’s sentence, with each challenging the sufficiency of the evidence.

Last month, the United States Court of Appeals for the Fifth Circuit affirmed Judge Lynn’s sentences. United States v. Hill, ___ F.3d ___, 2011 WL 1207522 (5th Cir. 2011) [Not Selected for Publication] [Panel: Circuit Judges King, Davis, and Southwick. Per Curiam]

The opinion of the Court included the following:

A criminal contempt conviction under 18 U.S.C. § 401(3) requires proof beyond a reasonable doubt that there was “(1) a reasonably specific order; (2) violation of the order; and (3) the willful intent to violate the order.” United States v. Allen, 587 F.3d 246, 255 (5th Cir.2009) (citation omitted).

[Specificity of the Order]

The district court relied on precedents addressing restraints on out-of-court statements challenged as First Amendment violations. We agree with the district court that those cases offer the best guidance for determining whether the gag order was reasonably specific.


There is no dispute that the phrase “without elaboration or characterization of any kind” modifies the word “discuss.” Although “discuss” may not have been the most apt word to use, it did not redact “out” from “without elab­o­ra­tion.”

The defendants’ contention that the order is unclear is further weakened by their failure to suggest any changes to the district court after being given a draft of the order for review. The gag order was reasonably specific.

[Violation of the Order]

We now turn to whether there was a violation of the district court’s order. We need not agree that every statement identified by the district court violated the order.


The district court found that Hill’s earlier motion to dismiss the indictment because of selective prosecution did not use the phrase or concept of “clear statistical and anecdoctal body of evidence,” nor did that appear in other pleadings. The court held that the assertion there was proof of government bias exceeded the public record and threatened the fairness of the trial.

We agree that Hill’s statement violated the gag order. Hill did not limit his comments to the general claim that Democrats were being targeted for prosecution by the Bush Administration, which would have been permissible because those claims were included in Hill’s publicly-filed selective prosecution motion. Claiming there was statistical and anecdoctal evidence supporting his claim, though, exceeded the public record. That statement had the potential to impede efforts to impanel an impartial jury.

After Hill completed his interview, Snerd then was asked a number of questions by Reaves. The district court held that Snerd’s answers to three of the questions violated the gag order. We consider only one of the answers. The question posed by Reaves was “What do you think about [Hill’s] claim that this whole prosecution is politically motivated?”


The district court concluded, “Snerd did not purport to quote from Hill’s overruled Motion to Dismiss [for Selective Prosecution], but contended that the prosecution was politically motivated, and implied it was connected to a larger scheme by the Bush Administration.” The statements, the court insisted, “could have prejudiced the venire and interfered with a fair trial. . . .”

[T]he statement also goes beyond what had been filed in the case because Snerd stated that it had been “shown” the Bush Administration was targeting Democrats. That transforms the allegations in the motion into a statement of fact, clearly an elaboration that was potentially prejudicial to the jury pool. This violation might fairly be seen as less egregious than those of Hill, but it was a violation nonetheless.

[Intent to Violate the Order]

Hill and Snerd contend that the government failed to prove they acted with the requisite intent to violate the gag order. The intent element of criminal contempt requires “a willful, contumacious or reckless state of mind.” In re Hipp, 895 F.2d at 1509. Behavior that amounts to a “reckless disregard for the administration of justice[,]” as opposed to negligent behavior, is a sufficient basis on which to find contempt. See Dominique v. Ga. Gulf Corp., 81 F.3d 155, 1996 WL 101416, at *6 (5th Cir.1996) (unpublished).

There was evidence to support that the defendants had the intent to violate the gag order. Hill’s public relations consultant, Carter, arranged the interview with Reaves some time before the gag order was entered. Although ground rules were established that purportedly prohibited Reaves from asking questions about the case, Carter, a non-lawyer who had never seen a copy of the gag order, was responsible for relaying the rules from memory to Reaves before the interview took place. Neither Hill nor Snerd confirmed or mentioned the rules to Reaves before the interview.

Snerd testified that he had not had sufficient time to study the order because he had been busy with another trial. Despite his admitted lack of preparation, he still neglected to bring a copy of the gag order to the interview. Hill, also an attorney, did not have a copy of the order.

Although the defendants’ mere participation in the interview four days before trial did not violate the gag order, they should have proceeded cautiously with their answers. They did not. A couple questions into the interview, Hill was asked an open-ended question by Reaves; specifically, if Hill were not guilty, why was he being prosecuted? Hill, aware the gag order’s purpose was to protect the impartiality of the jury pool, responded that he was being selectively prosecuted due to political and racial motivations. The government contends that it was reckless for Hill to interject the allegations of selective prosecution into the interview. The government argues that the district court denied Hill’s motion to dismiss for selective prosecution, and therefore that issue would never be before the jury. Hill’s response, the government insists, was intended to taint the jury pool.

Snerd testified at the contempt trial that he became uncomfortable with the interview questions and Hill’s answers almost immediately. He was most concerned about Hill’s comments on selective prosecution, yet he too expounded on the very subject when questioned later by Reaves. Snerd admitted that at no point did he stop the interview or ask for a break to retrieve and review a copy of the gag order. After the interview, Snerd was concerned that Hill’s answers violated the order, but neither he nor Hill requested that Reaves not broadcast the interview or gave any indication that the interview may have violated the gag order.

The defendants’ conduct evinced a willful, or at the very least reckless, disregard for the district court’s gag order, the need for a fair trial by an impartial jury, and the fair administration of justice.

My Thoughts

Without being critical of anyone who has a contrary view, my rule—for 33 years—has been never to comment on a pending case. I well remember giving a “background comment” to a reporter who had assured me that his story was not going to run until after a RICO case had concluded. Unfortunately, the story was published on a Saturday, and the federal judge in whose court I was practicing had the entire weekend to become more and more displeased. On the following Monday, he posed the question, “Would you rather practice law in my court or in the newspaper?” After pondering the question, I chose the first option. That was my last such comment.

Rule 3.07 [Trial Publicity] of the Texas Disciplinary Rules of Professional Conduct sets out the prohibition against inappropriate pretrial publicity.

In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.

Ellen Pitluck, an ethics attorney for the State Bar of Texas, told me that there are no ethics opinions under this rule and that the Board of Disciplinary Appeals (BODA) has not considered a complaint under this rule.

In retrospect, Mr. Snerd would probably have preferred—if the choice had been his—to have faced a panel of a grievance committee rather than the wrath of a federal judge.

Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

Federal Corner: Will All Arrestees Be Required to Squat and Cough? – By F. R. Buck Files Jr.


Over the years, I have listened to so many clients relate the pain and embarrassment that they felt as they went through the book-in process at a jail. At least in Texas, Louisiana, and Mississippi, “jail officials may strip search a person arrested for a minor offense and detained for the posting of bond only if they possess a reasonable suspicion that he is hiding a weapon or contraband.Kelly v. Forti, 77 F.3d 819, 821 (5th Cir. 1996) (emphasis added).

That may change—and not for the better. On April 4, 2011, the Supreme Court granted a Petition for Writ of Certiorari in Florence v. Board of Chosen Freeholders, ___ S.Ct. ___, 2011 WL 202772 (2011). The question presented by Petitioner Albert W. Florence is “whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances.” (Petitioner’s Brief, Florence v. Board of Chosen Freeholders of the County of Burlington, ___ S.Ct. ___, 2011 WL 220710 (2011).

Florence is seeking relief at the Supreme Court from the decision of the United States Court of Appeals for the Third Circuit, which found a suspicionless strip search to be appropriate. Florence v. Board of Chosen Freeholders of the County of Burlington, 621 F.3d 296 (3rd Cir. 2010) [The panel: Circuit Judges Sloviter, Hardiman, and Pollard. Opinion by Sloviter; dissent by Pollard.]

Judge Sloviter’s opinion reads, in part, as follows:

[The Facts]

On March 3, 2005, a New Jersey state trooper stopped the car in which Florence was a passenger and arrested him based on an April 25, 2003, bench warrant from Essex County. The warrant charged Florence with a non-indictable variety of civil contempt. Though Florence protested the validity of the warrant by insisting he had already paid the fine on which it was based, he was arrested and taken to the Burlington County Jail (BCJ).

According to Florence, he was subjected to a strip and visual body-cavity search by corrections officers at BCJ. During the jail’s intake process, Florence was directed to remove all of his clothing, then open his mouth and lift his tongue, hold out his arms and turn around, and lift his genitals. The officer conducting the search sat approximately arms-length in front of him, and directed Florence to shower once the search was complete. Florence was held at BCJ for six days.

During Florence’s sixth day at BCJ, the Essex County Sheriff’s Department took custody of him and transported him to the Essex County Correctional Facility (ECCF). Florence alleges that he was subjected to another strip and visual body-cavity search upon his arrival at ECCF. As described by Florence, he and four other detainees were instructed to enter separate shower stalls, strip naked and shower under the watchful eyes of two corrections officers. After showering, Florence was directed to open his mouth and lift his genitals. Next, he was ordered to turn around so he faced away from the officers and to squat and cough. After donning ECCF-issued clothing and visiting a nurse, Florence joined the general jail population until the following day, when the charges against him were dismissed.

[The Proceedings in the District Court]

After his release, Florence sued BCJ, ECCF, and various individuals and municipal entities (collectively, the Jails) under 42 U.S.C. §1983. While Florence asserted numerous constitutional claims, the only claim germane to this appeal is his Fourth Amendment challenge to the strip search procedures at BCJ and ECCF.

On March 20, 2008, the District Court granted Florence’s motion for class certification, defining the plaintiff class as:

All arrestees charged with non-indictable offenses who were processed, housed or held over at Defendant Burlington County Jail and/or Defendant Essex County Correctional Facility from March 3, 2003, to the present date who were directed by Defendants’ officers to strip naked before those officers, no matter if the officers term that procedure a “visual observation” or otherwise, without the officers first articulating a reasonable belief that those arrestees were concealing contraband, drugs or weapons[.]

Florence v. Bd. of Chosen Freeholders of the County of Burlington, 2008 WL 800970, at 17 (D.N.J. Mar. 20, 2008).


The District Court found that BCJ’s “blanket” strip search policy “entails a complete disrobing, followed by an examination of the nude inmate for bruises, marks, wounds or other distinguishing features by the supervising officer, which is then followed by a supervised shower with a delousing agent.” Id. at 502. The Court found that ECCF utilized similar strip-search and supervised-shower procedures; however, the ECCF procedures were slightly more intrusive because “Essex officers carefully observed the entire naked body of the inmate, including body openings and inner thighs.” Id. at 503. Having thus defined the Jails’ respective search policies, the District Court concluded that the procedures failed the Bell balancing test and observed that “blanket strip searches of non-indictable offenders, performed without reasonable suspicion for drugs, weapons, or other contraband, [are] unconstitutional.” Id. at 513. Based on this holding, the District Court granted the Plaintiffs’ motion for summary judgment on the unlawful search claim, but denied the Plaintiffs’ request for a preliminary injunction. Id. at 519. The Court denied Defendants’ cross-motion which sought qualified and Eleventh Amendment immunity. Id.

[The Path to the Court of Appeals]

Following the decision, the Jails moved the District Court to certify its summary judgment as an appealable order pursuant to 28 U.S.C. §1292(b). The District Court agreed that the order “involve[d] a controlling question of law as to which there is substantial ground for difference of opinion,” id., and we granted permission to appeal. The District Court certified the following question for our review: “whether a blanket policy of strip searching all non-indictable arrestees admitted to a jail facility without first articulating reasonable suspicion violates the Fourth Amendment of the United States Constitution as applied to the States through the Fourteenth Amendment.” Florence v. Bd. of Chosen Freeholders of the County of Burlington, 657 F.Supp.2d 504, 511 (D.N.J.2009) (order certifying issue for appeal).

[The Legal Landscape for the Issue before the Court]

This interlocutory appeal requires us to decide whether it is constitutional for jails to strip search arrestees upon their admission to the general population. Although the question is one of first impression for this Court, the Supreme Court’s decision in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), and the many cases that followed it inform our analysis.

In Bell, the Supreme Court rejected a Fourth Amendment challenge to a policy of visual body cavity searches for all detainees—regardless of the reason for their incarceration—after contact visits with outsiders. Id. at 560, 99 S.Ct. 1861. The Court applied a balancing test and concluded that the visual body cavity searches were reasonable because the prison’s security interest justified the intrusion into the detainees’ privacy.

Since Bell was decided, ten circuit courts of appeals applied its balancing test and uniformly concluded that an arrestee charged with minor offenses may not be strip searched consistent with the Fourth Amendment unless the prison has reasonable suspicion that the arrestee is concealing a weapon or other contraband. Things changed in 2008, however, when the en banc Court of Appeals for the Eleventh Circuit reversed its prior precedent and held that a jail’s blanket policy of strip searching all arrestees upon entering the facility was reasonable even in the absence of individualized suspicion. Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir.2008) (en banc). A year later, the en banc Court of Appeals for the Ninth Circuit also reversed its prior precedent and upheld a blanket policy of strip searching all arrestees before they enter San Francisco’s general jail population. Bull v. City and County of San Francisco, 595 F.3d 964, 975 (9th Cir.2010) (en banc).

Confronted with a clear dichotomy between the en banc decisions of the Ninth and Eleventh Circuits on the one hand and the numerous cases that preceded them on the other, we must determine which line of cases is more faithful to the Supreme Court’s decision in Bell.

[The Fourth Amendment and Personal Rights]

The Fourth Amendment protects “[t]he right of the people to be secure in their persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV. To enforce this guarantee, government officials are limited to only those searches which are reasonable. Delaware v. Prouse, 440 U.S. 648, 653–54, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). Reasonableness under the Fourth Amendment is a flexible standard, Bodine v. Warwick, 72 F.3d 393, 398 (3d Cir.1995), “not capable of precise definition or mechanical application,” Bell, 441 U.S. at 559, 99 S.Ct. 1861. “In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails.” Id.

[The Fourth Amendment and Its Application in Detention Facilities]

Detention in a correctional facility “carries with it the circumscription or loss of many significant rights.” Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984). “The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, chief among which is internal security.” Id. (internal quotation marks and citations omitted). Because privacy is greatly curtailed by the nature of the prison environment, a detainee’s Fourth Amendment rights are likewise diminished. See id. at 526, 104 S.Ct. 3194 (holding that “the Fourth Amendment proscription against unreasonable searches does not apply within the confines of the prison cell”); Bell, 441 U.S. at 537, 99 S.Ct. 1861 (“Loss of freedom of choice and privacy are inherent incidents of confinement in such a facility.”).

While the Supreme Court has “repeatedly held that prisons are not beyond the reach of the Constitution[,]” Hudson, 468 U.S. at 523, 104 S.Ct. 3194, it has also emphasized that the judiciary has a “very limited role” in the administration of detention facilities, Block v. Rutherford, 468 U.S. 576, 584, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984). Indeed, detention facilities have been described as “unique place[s] fraught with serious security dangers,” Bell, 441 U.S. at 559, 99 S.Ct. 1861, the management of which “courts are ill equipped to deal with,” id. at 548 n. 30, 99 S.Ct. 1861. Therefore, authorities are entitled to considerable latitude in designing and implementing prison management policies. Thornburgh v. Abbott, 490 U.S. 401, 407–08, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). As the Supreme Court cautioned in Bell: “[p]rison administrators . . . should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security.” 441 U.S. at 547, 99 S.Ct. 1861. In addition to prison administrators’ “professional expertise,” separation of powers and federalism concerns support “wide-ranging deference” to the decisions of prison authorities. Id. at 548, 99 S.Ct. 1861 (“[J]udicial deference is accorded not merely because the administrator ordinarily will, as a matter of fact in a particular case, have a better grasp of his domain than the reviewing judge, but also because the operation of our correctional facilities is peculiarly the province of the Legislative and Executive branches of our Government, not the Judicial.”); Turner v. Safley, 482 U.S. 78, 84–85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[S]eparation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.”).

[Bell and the Split in the Circuits]

In the years following Bell, ten circuit courts of appeals applied the Supreme Court’s balancing test to strip searches of individuals arrested for minor offenses and found the searches unconstitutional where not supported by reasonable suspicion that the arrestee was hiding a weapon or contraband. In general, these courts concluded that the extreme invasion of privacy caused by a strip and/or visual body-cavity search outweighed the prison’s minimal interest in searching an individual charged with a minor crime shortly after arrest. See, e.g., Giles v. Ackerman, 746 F.2d 614, 617 (9th Cir.1984); Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983). The critical factor in balancing the competing interests was the belief that individuals arrested for minor offenses presented a relatively slight security risk because they usually are arrested unexpectedly whereas the contact visits in Bell may have been arranged specifically for the purpose of smuggling weapons or drugs. See, e.g., Shain v. Ellison, 273 F.3d 56, 64 (2d Cir.2001) (“It is far less obvious that misdemeanor arrestees frequently or even occasionally hide contraband in their bodily orifices. Unlike persons already in jail who receive contact visits, arrestees do not ordinarily have notice that they are about to be arrested and thus an opportunity to hide something.”); Roberts v. Rhode Island, 239 F.3d 107, 111 (1st Cir.2001) (“[T]he deterrent rationale for the Bell search is simply less relevant given the essentially unplanned nature of an arrest and subsequent incarceration.”).

Recently, the Eleventh and Ninth Circuits, sitting en banc, reversed their prior precedents and held that Bell authorizes a policy of blanket strip searches for all arrestees entering the general population of a jail. See Powell v. Barrett, 541 F.3d 1298 (11th Cir. 2008) (en banc) (overruling Wilson v. Jones, 251 F.3d 1340 (11th Cir.2001)); Bull v. City and County of San Francisco, 595 F.3d 964 (9th Cir.2010) (en banc) (overruling Giles v. Ackerman, 746 F.2d 614 (9th Cir.1984)).

[Applying the Balancing Test from Bell]

Mindful of the newly-minted circuit split we have described, we proceed to apply Bell’s balancing test to the question certified for interlocutory appeal in this case.


Like the Supreme Court in Bell, we assume detainees maintain some Fourth Amendment rights against searches of their person upon entry to a detention facility.


To determine whether the strip search procedures at BCJ and ECCF violate the Fourth Amendment, we first consider the scope of the searches at issue.

We have previously recognized that a strip search constitutes a “significant intrusion on an individual’s privacy.” United States v. Whitted, 541 F.3d 480, 486 (3d Cir.2008). Here, the strip search policies require the arrestees to undress completely and submit to a visual observation of their naked bodies before taking a supervised shower. We do not minimize the extreme intrusion on privacy associated with a strip search by law enforcement officers; however, the searches at issue here are less intrusive than the visual body-cavity searches considered by the Supreme Court in Bell. In fact, they are closer to the strip searches upheld by the lower court in Bell.

The searches were also conducted in a similar manner and place as those in Bell—by correctional officers at a detention facility. The policies governing strip searches at BCJ require that they be conducted “in private . . . under sanitary conditions . . . [and] in a professional and dignified manner.” Moreover, the searches are relatively brief, such that between the search and supervised shower, an arrestee is not required to remain naked for more than several minutes. Because the scope, manner, and place of the searches are similar to or less intrusive than those in Bell, the only factor on which Plaintiffs could distinguish this case is the Jails’ justification for the searches.

[The Court’s Conclusion]

Like the Ninth and Eleventh Circuit Courts of Appeals, we conclude that the security interest in preventing smuggling at the time of intake is as strong as the interest in preventing smuggling after the contact visits at issue in Bell. We reject Plaintiffs’ argument that blanket searches are unreasonable because jails have little interest in strip searching arrestees charged with non-indictable offenses. This argument cannot be squared with the facts and law of Bell.

My Thoughts

With an eight/three split in the Circuits, it is no surprise that the Supreme Court granted certiorari in Florence. Because Florence was innocent of the charges that the officer believed were pending against him, he makes a sympathetic petitioner. Will that carry any weight with the justices as they ponder this case? I would bet not. If I had to predict—which one should never do with the Supreme Court—I would think that more and more of our citizens are going to be introduced to the emotional trauma of a strip search for even the least of offenses.

Send your letters, pictures, gripes, bonehead gaffes, or what-have-you to .

Federal Corner: A New Concept on How to Enhance an Advisory Guideline Range – By F. R. Buck Files Jr.


There is almost always a way for an imaginative United States probation officer, when preparing a Pre-Sentence Report (PSR), to suggest an enhancement to the advisory Guideline range. If you doubt this rather broad statement, you should read United States v. Kramer, ___F.3d ___, 2011 WL 383710 (8th Cir. 2011) [Panel: Circuit Judges Wollman, Bye, and Shepherd. Opinion by Judge Wollman].

In Kramer, the Court held that the term “computer” included a cellular telephone used only to make voice calls and send text messages to a victim; and, that the defendant’s cellular telephone was a “computer” under the Sentencing Guidelines.

Neil Kramer pled guilty to a violation of 18 U.S.C. § 2423(a)—transporting a minor in interstate commerce with the intent to engage in criminal sexual activity with her. At his plea hearing, he acknowledged that he that he had used a telephone—a Motorola Motorazr V3—to call the victim and to send text messages to her for some six months before the commission of the offense.

The PSR recommended a two-level enhancement under U.S.S.G. § 2(g)1.3(b)(3) for using a computer to facilitate the commission of the offense. Kramer’s lawyer objected to the proposed enhancement; however, United States District Judge Richard E. Dorr of the Western District of Missouri overruled the objection and sentenced Kramer to 168 months imprisonment. Judge Dorr acknowledged that he would have sentenced Kramer to 140 months imprisonment but for the enhancement.

Judge Wollman’s opinion includes, in part, the following:

[Kramer’s argument on Appeal]

Kramer argues (1) that application of the enhancement was procedural error because a cellular telephone, when used only to make voice calls and send text messages, cannot be a “computer” as defined in 18 U.S.C. § 1030(e)(1), and (2) that even if a phone could be a computer, the government’s evidence was insufficient to show that his phone met that definition.

[U.S.S.G. § 2G1.3(b)(3) and 18 U.S.C. § 1030(e)(1)]

U.S. Sentencing Guidelines Manual § 2G1.3(b)(3) provides a two-level enhancement for “the use of a computer . . . to . . . persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct. . . .” “‘Computer’ has the meaning given that term in 18 U.S.C. § 1030(e)(1),” U.S. Sentencing Guidelines Manual § 2G1.3(b)(3) cmt. n.1 (2009), that is, it “means an electronic, magnetic, optical, electrochemical, or other high speed data processing device performing logical, arithmetic, or storage functions, and includes any data storage facility or communications facility directly related to or operating in conjunction with such device,” 18 U.S.C. § 1030(e)(1). It does not, however, “include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.” 18 U.S.C. § 1030(e)(1).

[Does the Term “Computer” Include a “Basic Cell Phone” Being Used Only to Call and Text Message the Victim? Yes!]

Kramer first argues that the district court incorrectly interpreted the term “computer” to include a “basic cell phone” being used only to call and text message the victim. In his view, the enhancement should apply only when a device is used to access the Internet. We disagree.

[The Court’s Reasoning]

The language of 18 U.S.C. § 1030(e)(1) is exceedingly broad. If a device is “an electronic . . . or other high speed data processing device performing logical, arithmetic, or storage functions,” it is a computer. This definition captures any device that makes use of a electronic data processor, examples of which are legion. Accord Orin S. Kerr, Vagueness Challenges to the Computer Fraud and Abuse Act, 94 Minn. L.Rev. 1561, 1577 (2010) (“Just think of the common household items that include microchips and electronic storage devices, and thus will satisfy the statutory definition of ‘computer.’ That category can include coffeemakers, microwave ovens, watches, telephones, children’s toys, MP3 players, refrigerators, heating and air-conditioning units, radios, alarm clocks, televisions, and DVD players, in addition to more traditional computers like laptops or desktop computers.” (footnote omitted)). [Emphasis added.]

Additionally, each time an electronic processor performs any task—from powering on, to receiving keypad input, to displaying information—it performs logical, arithmetic, or storage functions. These functions are the essence of its operation. See The New Oxford American Dictionary 277 (2d ed. 2005) (defining “central processing unit” as “the part of a computer in which operations are controlled and executed”).

Furthermore, there is nothing in the statutory definition that purports to exclude devices because they lack a connection to the Internet. To be sure, the term computer “does not include an automated typewriter or typesetter, a portable hand held calculator, or other similar device.” 18 U.S.C. §1030(e)(1). But this hardly excludes all non-Internet-enabled devices from the definition of “computer”—indeed, this phrasing would be an odd way to do it. Whatever makes an automated typewriter “similar” to a hand held calculator—the statute provides no further illumination—we find few similarities between those items and a modern cellular phone containing an electronic processor. Therefore we conclude that cellular phones are not excluded by this language.

Of course, the enhancement does not apply to every offender who happens to use a computer-controlled microwave or coffeemaker. Application note 4 to §2G1.3(b)(3) limits application of the enhancement to those offenders who use a computer “to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minor.” U.S. Sentencing Guide­lines Manual §2G1.3(b)(3) cmt. n.4 (2009). Therefore, the note continues, the enhancement “would not apply to the use of a computer or an interactive computer service to obtain airline tickets for the minor from an airline’s In­ter­net site.” Id. This is a meaningful limitation on the applicability of the enhancement, but it is no help to Kramer.

We acknowledge that a “basic” cellular phone might not easily fit within the colloquial definition of “computer.” We are bound, however, not by the common understanding of that word, but by the specific—if broad—definition set forth in § 1030(e)(1). Now it may be that neither the Sentencing Commission nor Congress anticipated that a cel­lular phone would be included in that definition. As tech­nology continues to develop, § 1030(e)(1) may come to cap­ture still additional devices that few industry experts, much less the Commission or Congress, could foresee. But to the extent that such a sweeping definition was unintended or is now inappropriate, it is a matter for the Commission or Congress to correct. We cannot provide relief from plain statutory text. See United States v. Mitra, 405 F.3d 492, 495 (7th Cir. 2005) (“As more devices come to have built-in intelligence, the effective scope of [§ 1030(e)(1) ] grows. This might prompt Congress to amend the statute but does not authorize the judiciary to give the existing version less coverage than its language portends.”). [Emphasis added.]

[Was the Evidence Sufficient to Prove that Kramer’s Cell Phone Was a Computer? Yes!]

Kramer’s second contention—that the government’s evidence was insufficient to demonstrate that his cellular phone was a computer—also fails. “The government must prove the facts needed to support a sentencing enhancement by a preponderance of the evidence, and we review the district court’s fact findings for clear error.” United States v. Kain, 589 F.3d 945, 952 (8th Cir. 2009).

[The Court’s Reasoning]

The government introduced the phone’s user’s manual and a printout from Motorola’s website describing the phone’s features. See JA 1-120. The government did not, however, offer any expert testimony regarding the phone’s capabilities. Although doing so might have aided our review, the materials presented to the district court were sufficient to show by a preponderance of the evidence that Kramer’s phone was an “electronic . . . or other high speed data processing device” that “perform[ed] logical, arithmetic, or storage functions” when Kramer used it to call and text message the victim.

The printout reveals that the phone is powered by a “680 mAh Li-ion” battery, JA 118, has “5MB” of memory, JA 119, is capable of running software, id., makes use of a “Graphic Accelerator” to run its color display screens, id., has a “User-customizable” main menu, id., and comes with “Preloaded” text messages, JA 118. Also, the user’s manual contains a “Software Copyright Notice” which warns that the phone “may include copyrighted Motorola and third-party software stored in semiconductor memories or other media.” JA 105. Together, these are sufficient to show that the phone makes use of an electronic data processor.

Furthermore, that processor performs arithmetic, logical, and storage functions when the phone is used to place a call. The user’s manual notes that the phone “keeps lists of incoming and outgoing calls, even for calls that did not connect,” JA 61, and “displays the phone number for incoming calls in [the] phone’s external and internal displays.” JA 66. Additionally, the phone keeps track of the “Network connection time,” which is “the elapsed time from the moment [the user] connect[s] to [the] service provider’s network to the moment [the user] end[s] the call by pressing [the end key].” JA 84. This counting function alone is sufficient to support a finding that the phone is performing logical and arithmetic operations when used to place calls.

The same is true when the phone is used to send text messages. Most fundamentally, the phone stores sets of characters that are available to a user when typing a message. See JA 42, 44. As the user types, the phone keeps track of the user’s past inputs and displays the “entered text,” see JA 44, i.e., the message being composed. The user may also delete characters previously entered, either “one letter at a time” or all at once. Id. In addition, the phone allows the users to “set different primary and secondary text entry modes, and easily switch between modes as needed when [they] enter data or compose a message,” including “iTAP” mode which uses “software” to “predict[ ] each word” as it is entered. JA 35. These ca­pa­bil­ities all support the district court’s finding that the phone performed arithmetic, logical, and storage functions when Kramer used it to send text messages to the victim.

[The Court’s Conclusion]

Steve Wozniak, co-founder of Apple Computer, recently mused: “Everything has a computer in it nowadays.” But is an ordinary cellular phone—used only to place calls and send text messages—a computer? The district court, relying on the definition of “computer” found in 18 U.S.C. § 1030(e)(1), concluded that Neil Kramer’s was, and imposed an enhanced prison sentence for its use in committing an offense. We affirm.

My Thoughts

  • The lawyers in our firm were discussing whether to buy the first model of the iPhone for our lawyers and legal assistants. One of my partners commented: “We’re not buying telephones. We’re buying computers that we can make calls with.” It would never have occurred to me then that under U.S.S.G. § 2G1.3(b)(3), an enhancement would be appropriate in any case for someone who used a Razr or iPhone just to make calls or send text messages. Now, we know that it has happened—and that it will happen over and over again.

Buck Files, a charter member of TCDLA, practices in Tyler, Texas, with the law firm Bain, Files, Jarrett, Bain & Harrison, PC.

Federal Corner: 15 Years for 1.5 Seconds of Nudity—Reversed – By F. R. Buck Files Jr.


On February 25, 2011, the United States Court of Appeals for the Fifth Circuit reversed the conviction of a defendant charged with the production of child pornography. United States v. Steen, ___ F.3d ___, 2011 WL 667977 (5th Cir. 2011). [Panel: Circuit Judges Higginbotham, Smith, and Elrod (per curium) (concurring opinion by Judge Higginbotham)].

Let a voyeur with a video camera into a tanning salon and you can anticipate that he will engage in criminal conduct and be discovered. That’s what happened to Alan Ray Steen. He frequented the Electric Sun Tanning Salon in Odessa, Texas. Because the walls in the rooms did not reach the ceiling, Steen could stand on a chair, hold his camera on top of the partition between the rooms, and film the female in the adjoining room.

Steen had done this several times before being discovered and arrested for a violation of Texas Penal Code §21.15 (Improper Photography or Visual Recording). When investigators examined his camera, they found a recording of C.B. When they learned that she was 16 years old at the time, Steen’s life took a turn for the worse.

Federal authorities made the decision to prosecute Steen for a violation of 18 U.S.C. §2251(a), the federal child pornography statute. At trial, the issue was whether the videotape included a “lascivious exhibition of C.D.’s genitals or pubic area.” An appendix to the opin­ion sets out what was on the video that was admitted into evidence and played for the jury. The entire video is only 44 seconds in length. Below is a description of how the video progresses by the seconds:

Seconds 1–14: Blurry views of the tanning room and ceiling.

Second 15: Tanning bed comes into view.

Seconds 18–21: C.B.’s arm and part of her hair is visible.

Second 21: A more extended part of the C.B.’s back (including her lower back) and long hair may be seen.

Seconds 22–26: Blurry view of the ceiling.

Second 27–34: C.B. comes into view, and she is bending down toward the ground (and toward the camera). The video displays her head, back, and top of her buttocks for about two seconds. She stands up, turning away from the camera and towards the tanning bed; the video does not display any part of the front of her body.

Second 35: C.B. moves out of camera’s view (only the tanning bed is visible).

Second 37: C.B. sits into the tanning bed; her hair, stomach, and upper thigh are visible. Her pubic region is not visible because of how she is seated and the camera angle.

Second 38: The camera moves; C.B. is not visible.

Second 39: C.B. is fully nude lying on her back in the tanning bed. Her breasts are in the center of the shot, and her pubic region is visible on the far right side of the frame. Her legs are outside the camera’s view.

Second 40: The camera is moved, and the view of C.B. is partially obstructed by the wall partition. Her face is visible, but half of her body is hidden. (Part of her pubic region and left breast are visible for about half of a second.)

Second 41: C.B. closes the tanning bed and can no longer be seen.

Seconds 42–44: Blurry view of the ceiling.

[Emphasis added.]

At the conclusion of the evidence, Steen’s lawyer moved for a judgment of acquittal that was denied by United States District Judge Robert Junnel of the Western District of Texas. After the jury convicted Steen, Judge Junnel assessed his punishment at 15 years in a federal correctional facility—the minimum sentence under the statute. Steen timely appealed.

The Court’s per curium opinion contains, in part, the following:

[The Statute]

Section 2251(a) makes it unlawful to “use” a minor “to engage in . . . sexually explicit conduct” for the purpose of producing a visual depiction of that conduct. In assessing conduct under §2251(a), we ask “two questions: Did the production involve the use of a minor engaging in sexually explicit conduct, and was the visual depiction a depiction of such conduct?” Steen clearly used C.B. for the purposes of producing a nude video, but the statute requires more—the film must depict sexually explicit conduct. Accordingly, this court has found, “a child could be used in the production of a photograph, but the image in the ultimate photograph could be one that did not capture the child engaging in sexually explicit conduct. If this were so, a defendant might be charged under a different statute—perhaps child molestation—but not child pornography.”

[“Lascivious Exhibition” and the Dost Factors]

Here, the parties focused on whether the video was a “lascivious exhibition” of C.B.’s genitals or pubic area. The jury instructions included a description of the six factors first proposed in United States v. Dost that have been applied in this circuit to assess lasciviousness. These factors are:

1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

This list, however, “is not exhaustive, and no single factor is dispositive.” Any determination of lasciviousness “will have to be made based on the overall content of the visual depiction.” Moreover, we note that these factors have never been deployed where a defendant’s conduct said to be criminal under the statute at issue proved to be no more than voyeurism.

[The Dost factors and the language of 18 U.S.C §2251(a)]

In considering the Dost factors and the statutory text, we find that the evidence was insufficient to find a lascivious exhibition of the genitals. First, the focal point of the visual depiction is not on C.B.’s genitalia or pubic area. Her pubic region is only visible for about 1.5 seconds. Moreover, the film did not accent the pubic area—to the contrary, the brief seconds the pubic region is visible, it is on the far side of the image’s frame. The first factor lacks factual support here. It does not point to a finding of lasciviousness.

The second and third factors consider whether the setting or pose of the depiction is sexually suggestive or unnatural. Traditional settings that meet this standard are beds or bedrooms. A tanning salon is not a sexually suggestive setting, nor are C.B.’s movements unnatural for someone who is tanning. Because she did not know she was being filmed, she is, of course, acting naturally. Under certain circumstances, lying on one’s back may be sexually suggestive, but that is not the case when the non-sexual activity being displayed requires one to lie on the back. The fifth factor, suggesting sexual coyness, is irrelevant in this case because C.B. did not know she was being filmed. She neither acts coy nor willing to en­gage in sexual activity.

The fourth Dost factor is nudity, which Steen’s video satisfies since C.B. was fully nude for her tan. However, the Supreme Court has held that “nudity, without more is protected expression.” Surreptitiously filming a nude tanner, on its own, does not meet the standard for producing child pornography.

The sixth factor is the most difficult to apply—whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Here, the primary evidence of intention to elicit a sexual response is that Steen surreptitiously filmed a nude 16-year-old. However, as a Missouri district court held in a similar case:

These videos could not be considered to have been intended to elicit a sexual response in the viewer any more than mere nudity would, which several courts have concluded is not of a sexual character. We do have some limited context . . . that [the defendant] set up a camera . . . but that context indicates nothing more than an attempt to capture mere nudity and is very different than a person . . . telling a minor to undress, lay on a bed, and open his legs for a nude photo.

Even if one assumes Steen was stirred by his voyeuristic pursuits, there is insufficient evidence to conclude that the image of C.B.’s genitals was designed to elicit a sexual response or whether, perhaps, merely being a voyeur excited Steen. When a photographer selects and positions his subjects, it is quite a different matter from the peeking of a voyeur upon an unaware subject pursuing activities unrelated to sex.

[The Court’s Conclusion]

We have previously adopted the ordinary meaning of the phrase “lascivious exhibition,” which we defined as “a depiction which displays or brings forth to view in order to attract notice to the genitals or pubic area of children, in order to excite lustfulness or sexual stimulation in the viewer.” Here, the government’s evidence cannot meet this standard.

My Thoughts

  • As the Hon. Henry Politz, former Chief Judge of the Fifth Circuit, would have said, “Steen is a rara avis.” The Government has made the decision not to pursue a motion for rehearing or a motion for rehearing en banc. Alan Ray Steen wins.
  • One of the joys of reviewing the cases for this column is the opportunity that I have to see great lawyers at work. Steen was represented by TCDLA stalwarts Dan Cogdell and Brian Wice. Dan set up the issue in the district court, and Brian spiked it at the Fifth Circuit. Steen could not have had better representation.
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