United States v. Biro , 143 F.3d 1421 ( 1998 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 97-4143
________________________
D.C. Docket No. 95-917-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN BIRO, STEVE ALON
a.k.a. Shabtai Alon, et al.
Defendants-Appellants.
__________________________
Appeals from the United States District Court for the
Southern District of Florida
__________________________
(June 17, 1998)
Before EDMONDSON and BARKETT, Circuit Judges, and ALARCÓN* , Senior Circuit Judge.
ALARCÓN, Senior Circuit Judge:
*
The Honorable Arthur L. Alarcón, Senior Circuit Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
Steve Alon, Eliezer Arce, John Biro, and John Demeter appeal from the judgment of
conviction entered following their jury trial. Alon and Arce were convicted of conspiring to send
electronic surreptitious surveillance devices ("ESIDs") through the mail, or in interstate or foreign
commerce, in violation of 18 U.S.C. § 2512(1)(a), to possess or sell ESIDs, in violation of 18
U.S.C. § 2512(1)(b), and to smuggle merchandise into the United States in violation of 18 U.S.C.
§ 545. Alon and Arce were also convicted of the substantive offenses prohibited by § 2512(1)(a)
and (1)(b). Biro was convicted of violating § 2512(1)(b). Demeter was convicted of conspiracy to
violate §§ 2512(1)(a), 2512(1)(b), and 545; violation of the substantive crimes proscribed in those
sections; and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(2).
We affirm each of the judgments of conviction. We hold that § 2512 is not
unconstitutionally vague. We vacate the order that Demeter be deported as a condition of his
supervised release.
I
To meet its burden of persuading the jury that the defendants were guilty of the offenses
charged in the indictment, the prosecution presented evidence that they participated in a conspiracy
to smuggle ESIDs into the United States for the purpose of sending them through the mail or selling
these devices to others.
In late 1993, the United States Customs Exodus Group initiated an investigation after
receiving information that ESIDs were being illegally imported from Japan and sold in the
2
United States in violation of 18 U.S.C. §§ 2512(1)(a) and (b)1 and 18 U.S.C. § 545.2 The
1
Section 2512(1)(a) and (b) read as follows:
(1) Except as otherwise specifically provided in this chapter, any person
who intentionally--
(a) sends through the mail, or sends or carries in interstate or
foreign commerce, any electronic, mechanical, or other device,
knowing or having reason to know that the design of such device
renders it primarily useful for the purpose of the surreptitious
interception of wire, oral, or electronic communications;
. (b) manufactures, assembles, possesses, or sells any electronic,
mechanical, or other device, knowing or having reason to know that
the design of such device renders it primarily useful for the purpose of
the surreptitious interception of wire, oral, or electronic
communications, and that such device or any component thereof has
been or will be sent through the mail or transported in interstate or
foreign commerce; . . .
shall be fined under this title or imprisoned not more than five years, or
both.
2
Section 545 reads in pertinent part as follows:
Whoever knowingly and willfully, with intent to defraud the United
States, smuggles, or clandestinely introduces or attempts to smuggle or
clandestinely introduce into the United States any merchandise which
should have been invoiced, or makes out or passes, or attempts to pass,
through the customhouse any false, forged, or fraudulent invoice, or other
document or paper; or
Whoever fraudulently or knowingly imports or brings into the United
States, any merchandise contrary to law, or receives, conceals, buys, sells,
or in any manner facilitates the transportation, concealment, or sale of
such merchandise after importation, knowing the same to have been
imported or brought into the United States contrary to law--
Shall be fined under this title or imprisoned not more than five years, or
both.
3
investigation included Spy Shops International, Inc. ("Spy Shops"), a business owned and
operated by Demeter. Spy Shops specialized in the sale of security equipment and a variety of
electronic devices. Spy Shops operated retail stores in three locations in South Florida.
Arce was the general manager of Spy Shops, responsible for overseeing all of the stores.
Along with Demeter, Arce was responsible for purchasing inventory. The sales personnel
reported to Demeter and Arce, and were required to get either Demeter or Arce's approval before
selling an ESID. Demeter and Arce told the sales personnel to identify the sale of ESIDs as
"security equipment" on written receipts. Moreover, Arce trained at least one salesperson
regarding the sale of ESIDs.
During the course of their investigation, Customs agents received information that Ken
Taguchi, representing Micro Electronics, a Japanese company, was a major supplier of ESIDs in
the United States. Taguchi was arrested for smuggling illegal bugging and wire tapping devices
into the United States. Pursuant to a plea agreement, Taguchi agreed to cooperate in the
investigation of Spy Shops and Alon. Alon was the owner and operator of G.E.S. Electronics
("GES"), an electronics company that sold consumer electronic parts and ESIDs.
Taguchi provided United States Customs agents with Micro's business correspondence
with Demeter. Taguchi began shipping ESIDs to Demeter from Japan in 1986 or 1987. Some of
the ESIDs were disguised as three-prong wall plugs, pens, and pocket calculators. Initially, the
packages identified Micro as the shipper and Spy Shops as the addressee. Later, Demeter
instructed Taguchi to ship the ESIDs to PGF, another corporation controlled by Demeter, and to
use the name Seibu, a Tokyo department store, as the shipper, in order to conceal the true
identity of the buyer and seller. Demeter also requested that the ESIDs not be packaged in
4
display boxes. In addition, Demeter directed Taguchi to misrepresent the value of the contents
of packages sent to him by Micro.
On April 6, 1995, Customs inspectors at the Los Angeles International Airport discovered
that two packages shipped by Micro to GES contained ESIDs disguised as pens. Additionally,
Taguchi provided Customs agents with Micro's correspondence concerning its business
transactions with GES commencing in 1989. These records reflect that Alon purchased
approximately 100 ESIDs disguised as pens from Taguchi.
Pursuant to a search warrant issued on April 17, 1995, Customs agents seized ESIDs
disguised as pens from GES. The officers also found invoices reflecting sales to Spy Shops of
ESIDs disguised as pens and calculators as well as several checks issued by Spy Shops to GES.
Also seized pursuant to the search warrant was a catalog of electronic items offered for sale by
GES. The catalog listed ESIDs disguised as pens, calculators, and wall plugs. In searching
GES's office, the Customs agents did not find any purchase orders from law enforcement
agencies or any documents authorizing GES to export ESIDs to other countries.
To demonstrate that Spy Shops possessed and sold ESIDs that had been sent through the
mail or transported in interstate or foreign commerce, the Government presented the testimony
of two Customs agents who made undercover purchases of ESIDs. United States Customs
Special Agent Gary Lang went to the Spy Shops Fort Lauderdale store. He falsely identified
himself to Biro, the manager of the store, as Garrison Luhr, a businessman who wanted an ESID
to eavesdrop on the conversations of a competitor in order to underbid him.
Biro showed Agent Lang a catalog containing various devices including ESIDs disguised
as pens, calculators, and a three-prong wall plug. Biro also showed Agent Lang several ESIDs,
5
which were retrieved from a back room. While showing Agent Lang the ESIDs, Biro told him
that he must sign a waiver if he wanted to purchase any of the devices. Biro gave Agent Lang
the waiver to review. It stated that the devices were being bought for export only and would not
be used in the United States. Shortly after Agent Lang inquired about the distance range of the
ESID disguised as a three-prong wall plug, Biro asked Agent Lang for a business card and
identification. He compared the two to ensure that they matched. Biro then took Agent Lang
into an adjoining room behind the display area and closed the door. Biro demonstrated several
ESIDs, including a pen. Biro did not touch the ESIDs with his fingers, but instead handled them
with a piece of paper.
Agent Lang purchased a scrambler designed to alter telephone conversations and an ESID
disguised as a three-prong wall plug. Because Biro did not have a three-prong wall plug
available for immediate sale, he asked Agent Lang to return the following day. Agent Lang gave
Biro a deposit for the purchase of the ESID and asked for a receipt. Biro refused to give him a
receipt.
Agent Lang returned the following day and gave Biro the balance due on the ESID. Agent
Lang also executed the waiver. As he signed the waiver, however, he stated to Biro, "you know
I'm not taking it out of here. I just, I want to, I'm going to make money." Biro responded
"[r]ight, don't worry about it," and completed the sale. Biro refused to give Agent Lang a copy
of the waiver, but he did give Agent Lang a receipt listing only the scrambler, which Agent Lang
had purchased the previous day. When Agent Lang mentioned needing another ESID for a
friend, Biro told him not to call and discuss it over the phone but instead to come in and see him.
6
On March 29, 1995, United States Special Agent Arkadis Karb went to the Spy Shops
store at 350 Biscayne Boulevard in Miami. He posed as a European with a Russian accent.
Agent Karb explained to a female salesperson that he wanted to purchase a device to record
conversations surreptitiously. None of the ESIDs were on display in the public portion of the
store. The salesperson produced two metal attache cases from behind the counter. They
contained ESIDs disguised as pens and calculators. Agent Karb did not purchase an ESID on his
first visit to the Spy Shops store because they were too expensive.
He returned the following day and informed the salesperson that he wanted to purchase an
ESID. Agent Karb inquired whether the devices would record conversations transmitted on
American telephone instruments. He was assured that the ESIDs would do so and was given a
demonstration of its effectiveness on a telephone in the store.
Agent Karb was informed that he would have to produce proof of his identification. Agent
Karb refused to do so. After the salesperson spoke to Demeter, Agent Karb was told that he
would not have to present any identification. The salesperson informed Agent Karb that the use
of ESIDs in the United States was illegal. Agent Karb was not asked how he intended to use the
ESID. He was not given a receipt for his purchase nor was he requested to sign a waiver form.
He did not receive any export documents.
Section 2512(2)(a) provides that it is not unlawful for a provider of wire or electronic
communications service, or a person under contract with a provider of such services, to send
through the mail or carry an ESID in interstate or foreign commerce, or to possess or sell such a
device. Section 2512(2)(b) provides that it is not unlawful for an officer of the United States, or
of a state or local agency, or a person under contract with a governmental agency to send through
7
the mail, or carry an ESID in interstate or foreign commerce, or to possess or sell such a device.3
It is also lawful for these same classifications of persons and businesses to export ESIDs if they
possess a license.4
3
Sections 2512(2)(a) and (b) read as follows:
(2) It shall not be unlawful under this section for–
(a) a provider of wire or electronic communication service
or an officer, agent, or employee of, or a person under contract
with, such a provider, in the normal course of the business of
providing that wire or electronic communication service, or
(b) an officer, agent, or employee of, or a person under
contract with, the United States, a State, or a political
subdivision thereof, in the normal course of the activities
of the United States, a State, or, a political subdivision
thereof.
to send through the mail, send or carry in interstate or foreign
commerce, or manufacture, assemble, possess, or sell any
electronic, mechanical, or other device knowing or having reason
to know that the design of such device renders it primarily useful
for the purpose of the surreptitious interception of wire, oral, or
electronic communications.
4
In 1996, 15 C.F.R. § 776.13(a) provided in relevant part as follows:
(a) Export license requirements. A validated export license is
required for the export to any destination (including Canada) of
any electronic, mechanical or other device primarily useful for
surreptitious interception of wire or oral communications. Any
exporter who knows, or has reason to believe, that such
commodities will be used for such purpose shall include that
information on his export application. . . .
(b) Qualifications of exporter. Licenses to export the
commodities described in paragraph (a) of this section will be
issued only to:
(1) A provider of wire or electronic communization service or an
officer, agent, or employee of, or person under contract with, such
a provider in the normal course of the business of providing that
8
Customs agents searched the offices of both GES and Spy Shops pursuant to a search
warrant. They did not find any government contracts or purchase orders for ESIDs, or
Department of Commerce export licenses. No evidence was introduced by any of the Appellants
that they were authorized to mail, send through interstate commerce, possess, or sell ESIDs
because they had a contract to do so with a provider of electronic communication services,5 a
governmental agency, or that they had been granted an export license.
II
Appellants present two arguments that warrant discussion.6 First, Appellants contend that
wire or electronic communication service; or
(2) Officers, agents, or employees of, or person under contract
with the United States, one of the 50 states, or a political
subdivision thereof, when engaged in the normal course of
government activities.
5
The term "electronic communication service" is defined by Congress as "any service
which provides to users thereof the ability to send or receive wire or electronic
communications." 18 U.S.C. § 2510(15). The legislative history of the Electronic
Communications Privacy Act of 1986 explains that "[e]xisting telephone companies and
electronic mail companies are providers of electronic communications services." Electronic
Communications Privacy Act of 1986, S. Rep. No. 99-541, at 14 (1986), reprinted in 1986
U.S.C.C.A.N. 3555, 3568.
6
In addition to these issues, the Appellants assert several other arguments that can be
disposed of summarily because they have no merit. Arce asserts that the evidence is insufficient
to support his conviction. Alon makes the same argument regarding his conviction for
conspiracy. The evidence summarized in Part I of this opinion is sufficient to persuade a rational
jury of their guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19
(1979).
Arce and Biro assert that the court erred in denying their motions for severance. Arce, Alon,
and Demeter maintain that the district court erred in admitting evidence that the sale of ESIDs
violated various administrative regulations. Demeter argues that the district court denied him the
effective assistance of counsel by limiting argument to twenty minutes. Demeter and Alon also
claim that the district court erred in overruling the defendants' objections to the prosecutor's
9
18 U.S.C. § 2512 is unconstitutionally vague as applied to them. This is an issue of first
impression in this circuit.7 Second, Demeter contends that the district court lacked the
jurisdiction to order his deportation as a condition of supervised release. We must consider this
contention notwithstanding the fact that it was not raised before the district court.
A. Vagueness
Appellants contend that 18 U.S.C. § 2512 is unconstitutionally vague as applied to them.
They argue that the words "knowing, or having reason to know that the design of [any electronic,
mechanical, or other] device renders it primarily useful for the purpose of the surreptitious
interception of wire, oral, or electronic communications" fail to give adequate notice to the
public of the prohibited conduct and do not contain sufficient guidelines to prevent arbitrary and
discriminatory law enforcement.
We are required to review de novo the question whether a statute is void for vagueness.
United States v. Paradies 98 F.3d 1266, 1282 (11th Cir. 1996), cert. denied, ___ U.S. ___, 117 S.
Ct. 2483 (1997).
Appellants concede that the § 2512 does not implicate the First Amendment or any other
constitutionally protected conduct. They agree that we need not consider whether the statute is
overbroad in its reach, but only whether the statute is vague as applied to them.
comments to the jury during argument. We reject each of the contentions set forth in this
footnote as meritless and affirm the district court's rulings pursuant to Eleventh Circuit Rule
36-1.
7
Judicial review of § 2512 has been remarkably scarce. The Ninth Circuit is the only
circuit that has published an opinion addressing a vagueness challenge to § 2512. While the
court concluded that § 2512 is not unconstitutionally vague, the court did not explain the basis
for its conclusion. United States v. Novel, 444 F.2d 114 (9th Cir. 1971).
10
The Supreme Court has instructed that:
the void-for-vagueness doctrine requires that a penal statute define the
criminal offense with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement. Although the
doctrine focuses both on actual notice to citizens and arbitrary
enforcement, we have recognized recently that the more important
aspect of the vagueness doctrine is not actual notice, but the other
principal element of the doctrine -- the requirement that a legislature
establish minimal guidelines to govern law enforcement. Where the
legislature fails to provide such minimal guidelines, a criminal statute
may permit a standardless sweep [that] allows policemen, prosecutors,
and juries to pursue their personal predilections.
Kolender v. Lawson, 461 U.S. 352, 357-58 (1983) (citations and internal quotations omitted).
While the Court has instructed that preventing discriminatory law enforcement is the
more important aspect of the vagueness doctrine, we must nevertheless first address actual
notice. In determining whether a statute provides actual notice, we must decide whether an
ordinary person could "reasonably understand that his contemplated conduct is proscribed."
United States v. National Dairy Prods., Corp., 372 U.S. 29, 32-33 (1963).
Appellants contend that § 2512 does not provide ordinary persons with clear standards
regarding the conduct Congress intended to prohibit. Relying on Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ("Flipside") and Posters ``N' Things, Ltd. v.
United States, 511 U.S. 513 (1994) ("Posters ``N' Things"), they argue that the failure of the
statute to include examples of the specific types of devices that are "primarily useful for the
purpose of the surreptitious interception of wire, oral, or electronic communications" violates the
requirement that criminal statutes provide notice of what is forbidden. Appellant's reliance on
Flipside and Posters ``N' Things is misplaced. In those cases, the Court upheld the
constitutionality of the ordinances, even though the challenged language did not clearly describe
11
the nature or properties of the prohibited items. In the instant matter, the statutory language
expressly describes the nature of the prohibited items: the statute proscribes devices primarily
designed to function as surreptitious transmitters of communications.
In Flipside, the Supreme Court reviewed a void-for-vagueness constitutional challenge to
a local ordinance. The district court declined to grant injunctive relief. Flipside, 455 U.S. at
493. The Seventh Circuit reversed the judgment holding that the ordinance was
unconstitutionally vague on its face. Flipside, Hoffman Estates, Inc. v. Village of Hoffman
Estates, 639 F.2d 373, 386 (7th Cir. 1981). "The ordinance [made] it unlawful for any person ``to
sell any items, effect, paraphernalia, accessory or thing which is designed or marketed for use
with illegal cannabis or drugs, as defined by Illinois Revised Statutes, without obtaining a
license therefor.'" Flipside, 455 U.S. at 492. The Seventh Circuit held that the words "designed
or marketed for use with illegal cannabis or drugs" provided no guidance as to the nature or
properties of the items prohibited for sale without a license. Flipside, 693 F.2d at 380-82. The
court pointed out that the ordinance's language was ambiguous enough to include ordinary pipes
and paper clips. Id. at 382 & n.22.
The Supreme Court reversed the decision of the Seventh Circuit. The Court first noted
that "the words, ``items, effect, paraphernalia, accessory, or thing' do not identify the type of
merchandise that the village desires to regulate." Flipside, 455 U.S. at 500 (emphasis added).
The Court concluded, however, that the words "designed for use," when read in conjunction with
the licensing guidelines prepared by the village attorney, clearly refer to the "structural
characteristics of an item" designed or marketed for use with illegal cannabis or drugs. Id. at
501. One item regulated under the guidelines and sold by Flipside was a "roach clip." The
12
Court explained that "the standard [designed for use] encompasses at least an item that is
principally used with illegal drugs by virtue of its objective features, i.e., features designed by
the manufacturer." Id. The village chief of police testified that "he had never seen a ``roach clip'
used for any purpose other than to smoke cannabis." Id. at 502. The Court held that the
ordinance was "reasonably clear in its application to the complainant." Id. at 505.
In Posters ``N' Things, the petitioners challenged the Mail Order Drug Paraphernalia
Control Act. Section 857(a) of that statute provides:
It is unlawful for any person--
(1) to make use of the services of the Postal Service or other interstate
conveyance as part of a scheme to sell drug paraphernalia;
(2) to offer for sale and transportation in interstate or foreign commerce
drug paraphernalia; or
(3) to import or export drug paraphernalia.
21 U.S.C. § 857(a).
The petitioners in Posters ``N' Things asserted before the Supreme Court that § 857 was
unconstitutionally vague as applied to them. Posters ``N' Things, 511 U.S. at 525. The Court
rejected this contention. The Court pointed out that in § 857(d), the statute includes a list of
items constituting per se drug paraphernalia including roach clips and pipes designed for use
with illegal drugs like those found in the petitioners' possession. Id. at 525-26. The Court also
noted that in § 857(e), the statute "sets forth objective criteria for assessing whether items
constitute drug paraphernalia." Id. at 526. The Court held that § 857 was not unconstitutionally
vague as applied to the petitioners. Id. at 525.
In this matter, the objective characteristics of the pens, wall plugs, and calculators
13
containing concealed transmitters come within the statutory prohibition regarding items that are
"primarily useful for the purpose of the surreptitious interception" of oral communications.
Alon maintains that there is no indication in the statute that "primarily useful" refers to
the objective design of the product, as opposed to the subjective intent of the user." (Alon's Br.
at 24.) In Flipside, the Supreme Court rejected a similar argument.
The Court of Appeals objected that "designed . . . for use" is
ambiguous with respect to whether items must be inherently suited only
for drug use; whether the retailer's intent or manner of display is
relevant; and whether the intent of a third party, the manufacturer, is
critical, since the manufacturer is the "designer." 639 F.2d, at 380-381.
For the reasons that follow, we conclude that this language is not
unconstitutionally vague on its face.
The Court of Appeals' speculation about the meaning of
"design" is largely unfounded. The guidelines refer to "paper of
colorful design" and to other specific items as conclusively "designed"
or not "designed" for illegal use. A principal meaning of "design" is
"[t]o fashion according to a plan." Webster's New International
Dictionary of the English Language 707 (2d ed. 1957). Cf. Lanzetta v.
New Jersey, 306 U.S. 451, 454, n. 3 (1939). It is therefore plain that
the standard encompasses at least an item that is principally used with
illegal drugs by virtue of its objective features, i.e., features designed
by the manufacturer. A business person of ordinary intelligence would
understand that this term refers to the design of the manufacturer, not
the intent of the retailer or customer.
Flipside, 455 U.S. 500-01 (footnote omitted). Additionally, this court has held that "the phrase
``designed for use' refers to structural features of objects . . . and that the intent implicated is that
of the designer (i.e., patent holder or manufacturer). . . . [T]he designer's intent for a design is
reflected by the objective physical characteristics of the finished product." Florida Businessmen
for Free Enterprise v. City of Hollywood, 673 F.2d 1213, 1214-15 (11th Cir. 1982).
The key word in § 2512 that clearly conveys the intent of Congress in proscribing the
sale of communication interception devices is "surreptitious." In discussing the question
14
whether a device that was modified by the appellants to decipher scrambled satellite television
signals fell within the plain meaning of § 2512, this court stated in United States v. Henning, 993
F.2d 784 (11th Cir. 1993) (en banc):
Although the term "surreptitious" is not defined in the statute
itself, its dictionary definition is well established: secret and
unauthorized; clandestine; action by stealth or secretly. It is clear that
this device operates surreptitiously, that is, without authority, secretly,
and clandestinely. It is clear that the device was designed to intercept
satellite television signals without detection by the programmers of
pay-television.
Id. at 786 (footnote omitted).
We are persuaded that an ordinary person would understand that § 2512 prohibits a
vendor from selling a device to a customer designed by the manufacturer primarily for the
purpose of the surreptitious interception of communications. Section 2512 prohibits a person
inter alia from intentionally sending or selling a device "knowing or having reason to know that
the design of such device renders it primarily useful for the purpose of the surreptitious
interception of wire, oral, or electronic communication. 18 U.S.C. 2512(1)(a) and (b) (emphasis
added). The statute makes no reference to the customer's intended use of the product.
The evidence introduced at trial demonstrates beyond a reasonable doubt that the pens,
calculators, wall plugs, and other devices sold by the Appellants in this matter were designed to
conceal transmitters for the purpose of secretly intercepting oral communications. Moreover, the
evidence and the Appellants' theory of defense demonstrate that, as applied to them, § 2512
provided adequate notice regarding which devices were prohibited by the statute. The theory of
defense was essentially the same for each of the Appellants: they believed that they could
legally possess and sell ESIDs to law enforcement officers, or for export, and that the Spy Shops'
15
policy of checking identification and obtaining written disclaimers, in which customers were
informed of the law, was sufficient to comply with the law. This theory of defense and the
evidence in support of it are patently inconsistent with Appellants' assertion that § 2512 failed to
give them notice as to what constitutes a device designed primarily to be useful for the purpose
of the surreptitious interception of communications.
The evidence was sufficient to show that each Appellant had notice that the sale of
ESIDs violated federal law. Demeter was responsible for purchasing the inventory. He
instructed Taguchi to ship the ESIDs to PGF and to use the name "Seibu" in order to conceal the
true identify of the buyer and seller. Demeter also requested that the ESIDs not be packaged in
display boxes and that the value of the contents of the packages be misrepresented. Moreover,
Demeter established Spy Shops' policy that he and Arce had to approve the sales of ESIDs.
Arce was also responsible for purchasing inventory. Sales persons were required to
obtain his approval before completing the sale of an ESID. Additionally, Arce's reply brief
states that "Arce did not deny that Spy Shops sold ESIDs or that the sales were ``intentional' --
i.e., not accidental. Rather, he argued to the jury that, as far as he knew, the sales were perfectly
legal because sales of ESIDs were limited to (1) sales for export purposes only and (2) sales to
law enforcement." (Arce Reply Br. at 3.)
Biro's theory of defense at trial was that he was merely a salesman selling a variety of
security equipment, which happened to include ESIDs. The evidence introduced at trial clearly
demonstrated, however, that Biro was aware that the device he sold to Agent Lang was
proscribed by § 2512. The evidence showed that he followed company policy with respect to the
sale of ESIDs. In his encounter with Agent Lang, Biro verified Lang's identification and
16
checked with Demeter before agreeing to sell him an ESID. Biro warned Lang several times that
the ESID he purchased could only be exported or used by law enforcement, and Biro required
Lang to sign a waiver form in which Spy Shops disclaimed any responsibility for the customer's
use of the ESID. While handling the ESID, Biro used a piece of paper so as not to leave
fingerprints.
The Government introduced a Spy Shops catalog into evidence at trial. The catalog
contained a photograph of an ESID disguised as a light bulb. The device was described as
follows:
By inserting this bulb you are able to install a mains powered transmitter
in a flash. The operating time of the transmitter is unlimited and all
conversations within the room are transmitted up to a distance of
approximately 250 metres. The bulb transmitter is available for 220 V or
110 V. The bulb cannot be used as a light source.
(emphasis added).
Alon testified at trial that he was informed by his employees, who frequently researched
the law in this area, that he could sell ESIDs as long as they were for law enforcement or for
export. Alon also testified that Demeter told him that he exported and sold ESIDs to law
enforcement; accordingly, Alon obtained a waiver from Demeter. As described by Alon, the
waiver was "a disclaimer that in very large letters at the tops says ``BE ADVISED OF THE
LAW.' And we describe the law and the section, the chapters, the titles of everything and the
penalty that will be if you do not obey the law."
If the Appellants were unclear as to what constituted an ESID, they would not have been
as diligent in enacting the procedures that they mistakenly believed would shield them from
17
liability when they sold ESIDs without a contract from a government agency or communications
company.
Arce also argues that the vagueness of § 2512 is exacerbated by the fact that persons can
be convicted for "having reason to know" that the design of a device renders it "primarily useful"
for the purpose of the surreptitious interception of communications. Arce contends that this
language allows a person to be convicted on the basis of simple negligence. This contention is
unmeritorious.
This court has held that the phrase "reasonably should know" does not permit a
conviction for negligent conduct. Florida Businessmen For Free Enterprise v. City of
Hollywood, 673 F.2d 1213, 1219 (11th Cir. 1982). "The ``reasonably should know' standard does
not punish innocent or inadvertent conduct but establishes a scienter requirement that the
defendant acted in bad faith." Id. This court has noted that "proof that a defendant reasonably
should have known something is established in substantially the same manner as actual
knowledge." Id.This court has also held that the phrase "reasonably should know" is not impermissibly
vague. Id. This court stated that that phrase "is sufficiently certain to provide fair notice to
persons of ordinary intelligence of its meaning and application." Id.Our conclusion that the phrase "having reason to know" is not impermissibly vague is
supported by the many criminal statutes using the phrase "reasonably should know" or "having
reason to know" that have withstood constitutional attack. See e.g., Gorin v. United States, 312
U.S. 19, 27-28 (1941); Washington Mercantile Ass'n v. Williams, 733 F.2d 687, 692 (9th Cir.
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1984) (holding "reasonably should know" language not unconstitutionally vague under the more
rigorous standard applied where constitutionally protected commercial speech is at issue);
Camille Corp. v. Phares, 705 F.2d 223, 230 (7th Cir. 1983); United States v. Featherston, 461
F.2d 1119, 1121-22 (5th Cir. 1972) (holding "knowing or having reason to know" is not
unconstitutionally vague). Finally, we note that "the [Supreme] Court has recognized that a
scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of
notice . . . that [the] conduct is proscribed." Flipside, 455 U.S. at 499.
Demeter focuses his vagueness challenge on the discriminatory law enforcement prong of
the two-part vagueness test. First, Demeter argues that the vagueness of the statute is
demonstrated by the fact that the officers "had to be tutored in what to look for in making
undercover buys." (Demeter's Opening Br. at 53.) We believe that the necessity to brief the
officers regarding the deceptive appearance of the ESIDs is persuasive evidence that the
ashtrays, light bulbs, phone jacks, beepers, calculators, pens, and wall plugs containing hidden
transmitters were designed primarily for use in the surreptitious interception of oral
communications.
Demeter also maintains that the statute is so vague that it results in discriminatory law
enforcement. Demeter points to the fact that Radio Shack has not been prosecuted for selling a
transmitter it advertises as being so tiny that "[i]f you could hollow out a sugar cube, this little
baby would fit with room to spare." At trial, Biro offered evidence that his trial attorney went
into a Radio Shack store and requested a transmitter that he could use to listen to a business
competitor's conversations. The clerk sold him a wireless transmitter for $19.99.
The vagueness doctrine requires that legislation contain minimal guidelines to govern
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law enforcement in order to prevent arbitrary and discriminatory law enforcement. Kolender v.
Lawson, 461 U.S. 352, 357-58 (1983). There is no requirement, however, that statutes define
every factual situation that may arise. Boyce Motor Lines v. United States, 342 U.S. 337,
330-31 (1952). "That there may be marginal cases in which it is difficult to determine the side of
the line on which a particular fact situation falls is no sufficient reason to hold the language too
ambiguous to define a criminal offense." United States v. Petrillo, 332 U.S. 1, 7 (1947).
We need not decide whether the Radio Shack device is an ESID in order to determine
that § 2512 provides minimal guidelines for law enforcement. The evidence demonstrates that
there were significant differences between the devices sold by Demeter, Arce, Biro, and Alon
and the transmitter sold by Radio Shack. While the sale of the Radio Shack transmitter may
constitute a "marginal case" under § 2512, requiring expert evidence, it is obvious from their
structural characteristics that the devices sold by Spy Shops were designed to conceal a
transmitter for the purpose of surreptitiously intercepting communications. No reasonable
person would pay $720.00 for a wall plug that has the sole function of conducting electricity to a
floor lamp. Radio Shack sold a small device that can transmit oral communications. Appellants
failed to present any evidence establishing that it was the intent of the designer of the Radio
Shack transmitter that it be used primarily for the surreptitious interception of oral
communications. Tiny transmitters worn on lapels or clipped to clothing are used to amplify the
voices of news readers, talk show guests, actors, and singers. The distinction between the tiny
Radio Shack transmitter and the devices sold by Appellants is that their hidden transmitters were
disguised as everyday objects that do not transmit oral communications.
Moreover, there are legitimate reasons why law enforcement might target certain vendors
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of ESIDs over others. The district court in United States v. Spy Factory, Inc., an analogous case
in which § 2512 was challenged as unconstitutionally vague, stated as follows:
There is a perfectly understandable reason why officers and prosecutors
seek convictions of defendants like the Spy Factory and not institutions
like Radio Shack and Hammacher Schlemmer: because the Spy Factory,
by its very name, and in countless other ways evidenced in the
Government's papers, sets itself out as a place where one might be more
likely to locate devices that can be used for illegal, rather than legal
purposes. . . .Therefore, even though section 2512 might permit the
prosecution of Radio Shack and Hammacher Schlemmer and other
institutions selling similar devices, it is perfectly rational, and perhaps
even prudent, for law enforcement officials to concentrate their efforts on
the defendants who are not only most likely to be convicted, but also are
most likely to serve a clientele bent on illegal practices.
United States v. Spy Factory, Inc., 951 F. Supp. 450, 476-77 (S.D.N.Y. 1997) (footnote omitted).
The district court's rationale in Spy Factory is sound. The fact that law enforcement
chose to target its efforts during its sting operation on the Spy Shops, and not Radio Shack, does
not demonstrate that § 2512 encourages arbitrary and discriminatory law enforcement. The
district court did not err in rejecting each of Appellant's constitutional challenges.
B. The Deportation Order
The district court ordered Demeter deported as a condition of his supervised release.
Demeter argues for the first time in his reply brief that the district court lacked subject matter
jurisdiction to order deportation pursuant to the Illegal Immigration Reform and Immigrant
Responsibility Act, 8 U.S.C. § 1229a(a) ("IIRAIRA").8 We address Demeter's contention
8
The IIRAIRA provides in relevant part as follows:
§ 1229a. Removal Proceedings
(a) Proceeding
(1) In general
An immigration judge shall conduct proceedings for deciding the
inadmissibility or deportability of an alien.
....
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because a party may raise an objection to jurisdiction at any time during the pendency of the
proceedings. United States v. Ayarza-Garcia, 819 F.2d 1043, 1048 (11th Cir. 1987).
The IIRAIRA was enacted after sentencing, but during the pendency of this appeal. It
provides that "a hearing before an immigration judge is the exclusive procedure for determining
whether an alien may be deported from the United States." United States v. Romeo, 122 F.3d
941, 942 (11th Cir. 1997). In Romeo, we held that "§ 1229a(a) eliminates any jurisdiction
district courts enjoyed under [18 U.S.C. § 3583(d)] to independently order deportation." Id. at
943. As a result of the enactment of § 1229a(a), "§ 3583(d) authorizes a district court to
order that a defendant be surrendered to the INS for deportation proceedings in accordance with
the INA, but it does not authorize a court to order a defendant deported." Id. at 943-44. In
Romeo, we also held that § 1229a(a) is applicable to all pending cases. Id. at 944. Accordingly,
we must apply § 1229a(a) in this matter.
III
We hold that § 2512 is not unconstitutionally vague as applied to Appellants. The
devices they imported and sold were cleverly designed to intercept communications
surreptitiously. To conceal their primary function, they were disguised as common objects such
as pens, wall plugs, calculators and light bulbs that do not illuminate. Appellants actual
knowledge that domestic use of ESIDs was illegal was demonstrated by the waivers they
executed when selling these devices to persons who identified themselves as American
(3) Exclusive procedures
. . . [A] proceeding under this section shall be the sole and exclusive procedure
for determining whether an alien may be . . .removed from the United States.
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businessmen wanting to eavesdrop on their competitors. The statute contains an adequate
standard to guide government agents in enforcing the law by targeting only those devices
primarily designed by the manufacturer to intercept communications surreptitiously.
Because § 1229a(a) became effective during the pendency of Demeter's case, we must
vacate the portion of Demeter's sentence ordering his deportation as a condition of supervised
release. We remand to the district court for consideration whether Demeter should be
surrendered to the INS for deportation proceedings in accordance with the INA.
AFFIRMED in part, VACATED in part, and REMANDED with directions.
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