IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TENNESSEE

AT KNOXVILLE

UNITED STATES OF AMERICA )

Plaintiff, )
v. ) Case No. 3:10-CR-73
) JUDGE VARLAN
DARREN WESLEY HUFF )
Defendant. )

OBJECTION TO THE U.S. MAGISTRATE JUDGE’S REPORT RECOMMENDING

THE DENIAL OF MR. HUFF’S MOTION TO DISMISS
DUE TO OVERBREADTH AND VAGUENESS

Comes the defendant, DARREN WESLEY HUFF, by and through counsel, pursuant to

28 U.S.C. § 636, Rule 59(b)(2) of the Federal Rules of Criminal Procedure, and the authorities

cited below, and herein objects to the Report and Recommendation (hereinafter “Report”) [Doc.

68] recommending denial of his Motion to Dismiss the indictment because the statute upon

which the charges are based is unconstitutionally overbroad and vague [Doc. 33].1 In his motion,

Mr. Huff challenged 18 U.S.C. § 231(a)(2) as overbroad because the scope of conduct it purports

to criminalize includes activities protected by the First and Second Amendments to the U.S.

Constitution, and he showed that § 231(a)(2) is unconstitutionally vague because it encourages

arbitrary and discriminatory enforcement of the law.

Mr. Huff therefore objects to the Report’s finding that “18 U.S.C. § 231(a)(2) is

constitutional both in scope and application in the instant case” [Doc. 68 at 15] in that it is not

overbroad or unconstitutionally vague [Doc. 68 at 3], and specifically objects to the following

findings which are more fully discussed below: (1) that it does not matter that no civil disorder

was alleged or occurred because “the Government does not have to wait until the violent acts are

1
The relevant pleadings are: [Doc. 33: Motion]; [Doc. 46: Response]; [Doc. 50: Reply].

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occurring to prosecute someone for acting to further those violent acts” [Doc. 68 at 6]; (2) that

“section 231(a)(2) is not overly broad because it is not directed toward constitutionally protected

conduct but, instead, seeks to prohibit illegal acts” [Doc. 68 at 6]; see also [Doc. 68 at 10 n.4];

(3) that “section 231(a)(2) prohibits an act, that of transporting a firearm in commerce, for a

specific purpose, that of unlawful use in furtherance of a civil disorder, while the individual has a

certain intent, that of ‘knowing or having reason to know or intending that’ the firearm will be so

used” [Doc. 68 at 5]; (4) that “having reason to know” is a sufficient mental state upon which to

base criminal liability [Doc. 68 at 8]; (5) that “the term ‘unlawful’ is [not] vague within the

statute” [Doc. 68 at 11]; see also [Doc. 68 at 11] (that the analysis in United States v. Stevens,

130 S. Ct. 1577 (2010), is inapposite); (6) that “Congress may constitutionally enact laws that

rely upon or incorporate state law” [Doc. 68 at 8-9]; see also [Doc. 68 at 10]; (7) that because

“the defendant chooses the jurisdiction into which he or she transports the firearm…with the

intent that it be used to further a civil disorder” that “the defendant should be charged with

knowledge of what conduct violates the law in that jurisdiction” [Doc. 68 at 11]; (8) that “this

definition [for civil disorder] is sufficient to provide a person of ordinary intelligence with fair

notice that his or her actions come within the ambit of the statute” [Doc. 68 at 12]; (9) that

section 231(a)(2) is not obscure [Doc. 68 at 13]; [Doc. 68 at 13] (statute has “withstood the test

of time” and “deemed constitutional by the two circuit courts of appeals that have considered the

question”); and (10) that “the scope of the statute is clear and unambiguous” and thus “the rule

of lenity is not applicable” [Doc. 68 at 14].

I. STANDARD OF REVIEW

The standard of review is de novo. 28 U.S.C. § 636; Fed. R. Crim. P. 59(b).

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 II. FACTUAL BACKGROUND

Mr. Huff is charged in a two-count indictment with violating 18 U.S.C. § 231(a)(2) and

using or carrying a firearm during and in relation to that offense. See [Doc. 19]. Section

231(a)(2) provides as follows:

Whoever transports or manufactures for transportation in commerce any firearm,

or explosive or incendiary device, knowing or having reason to know or intending
that the same will be used unlawfully in furtherance of a civil disorder shall be
fined under this title or imprisoned not more than five years, or both.

18 U.S.C. § 231(a)(2). The term “civil disorder” is defined to mean:

[A]ny public disturbance involving acts of violence by assemblages of three or

more persons, which causes an immediate danger of or results in damage or injury
to the property or person of any other individual.

18 U.S.C. § 232(1). Count One charges a violation of § 231(a)(2) in the following manner:

On or about April 20, 2010, in Monroe County, in the Eastern District of

Tennessee and elsewhere, the defendant DARREN WESLEY HUFF, did
transport in commerce a firearm, knowing and having reason to know and
intending that such firearm would be used unlawfully in furtherance of a civil
disorder.

[Doc. 19].

III. ARGUMENT

In the motion to dismiss, Mr. Huff questioned the constitutionality of § 231(a)(2) and

whether that statute could constitutionally be applied to his conduct, as alleged in the indictment.

The Report relies on two forty-year-old opinions from different circuits which address different

subsections of the statute to conclude, despite the fact that no civil disorder was alleged in this

case and the effect of the statute on conduct protected by the First and Second Amendments to

the U.S. Constitution, that § 231(a)(2) is constitutional and Mr. Huff may be prosecuted.

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 A. Mr. Huff objects to the findings that 18 U.S.C. § 231(a)(2) does not
infringe protected rights and is not overbroad.

Mr. Huff objects to the general finding that § 231(a)(2) is not overbroad and the Report’s

related findings in support of that conclusion. Under the doctrine of overbreadth, a law may be

facially overbroad if its existence could cause individuals to refrain from constitutionally

protected speech or conduct. See Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973); Grayned v.

City of Rockford, 408 U.S. 104, 114 (1972). An overbreadth challenge may be raised even if

“the conduct of the person making the attack is clearly unprotected and could be proscribed by a

law drawn with the requisite specificity. New York v. Ferber, 458 U.S. 747, 769 (1982). The

Constitution prohibits laws that abridge the freedom of speech or infringe the right to keep and

bear arms, and it protects the right of the people to peaceably assemble and petition the

Government for a redress of grievances. U.S. Const. amends. I and II. These rights are not

unlimited. See Grayned, 408 U.S. at 116 (peaceful assembly can lose protected quality if it turns

violent). However, the government generally has no power to restrict such activity based on its

message. Id. Cf. Bates v. Little Rock, 361 U.S. 516, 523 (1960) (“Freedoms such as these [the

“freedom of association for the purpose of advancing ideas and airing grievances”] are protected

not only against heavy-handed frontal attack, but also from being stifled by more subtle

governmental interference.”). The motion to dismiss suggested that, if proof of a civil disorder

(i.e., proof of a violent act) is not required to establish a violation of § 231(a)(2) and if a

defendant’s criminal intent may be inferred from his possession of a firearm, his speech or an

association, the statute infringes upon constitutionally protected activities.

The doctrine of overbreadth is usually applied to the freedom of speech protected by the

First Amendment. Attacks on overly broad statutes have also been allowed when statutes

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interfere with the freedom of association. See Keyishian v. Board of Regents, 385 U.S. 589

(1967) (finding legislation aimed at keeping “subversives” out of teaching profession

unconstitutional). In addition to causing individuals to refrain from conduct protected by the

First Amendment, Mr. Huff asserted that § 231(a)(2) effectively criminalizes conduct that falls

within one’s right to possess firearms. [Doc. 55 at 5]. Cf. District of Columbia v. Heller, 128

S.Ct. 2783 (2008) (holding Second Amendment protects right to keep and bear arms for self-

defense).

The Report rejects Mr. Huff’s argument, concluding that the statute does not prohibit

constitutionally protected activities or intent alone but “seeks to prohibit illegal acts.” [Doc. 68

at 6]. The Report relies on the reasoning of United States v. Mechanic, 454 F.2d 849 (1971), for

its position that § 231(a)(2) “prohibits an act, that of transporting a firearm in commerce, for a

specific purpose, that of unlawful use in furtherance of a civil disorder, while the individual has a

certain intent, that of ‘knowing or having reason to know or intending that’ the firearm will be so

used.” [Doc. 68 at 4-5].2 Mr. Huff respectfully submits that the Report’s analysis does not give

sufficient weight to the fact that no civil disorder occurred in this case, and he objects to the

finding that a hypothetical civil disorder is enough to overcome one’s right to bear arms or to

freely associate and speak.

To place § 231(a)(2) outside the realm of constitutionally protected conduct, the Report

2
If the Report is suggesting that § 231(a)(2) “does not punish intent alone” by adding an
additional intent requirement, Mr. Huff objects. Compare [Doc. 68 at 5] (“prohibit[ing] an act,
that of transporting a firearm in commerce, for a specific purpose, that of unlawful use in
furtherance of a civil disorder, while the individual has a certain intent, that of ‘knowing or
having reason to know or intending that’ the firearm will be so used”) (emphasis added) with 18
U.S.C. § 231(a)(2) (prohibiting transporting a firearm in commerce “knowing or having reason
to know or intending that the same will be used unlawfully in furtherance of a civil disorder”).

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quotes Mechanic for the proposition that “the civil disorder ‘is simply the environment’ into

which the firearm must be transported by someone with the intention to use the firearm to

promote acts of violence.” [Doc. 68 at 4-5]. In Mechanic, though, the violent environment of a

civil disorder existed when the defendant acted. In fact, the allegation against the defendant in

that case was that a witness saw him “propel a cherry bomb in the direction of the police line and

saw it explode at or about the knee level of one of the patrolmen.” Mechanic, 454 F.2d at 851.

The defendant’s act took place in the midst of a protest attended by between five hundred and

one thousand demonstrators who threw rocks, bottles and other items at a fire truck; who

“continually subjected [police officers] to a barrage of bricks, stones, glass, and cherry bombs;”

and who burned and ransacked the Air Force R.O.T.C. building. Id. at 851. The Eighth Circuit

found that “[t]he First Amendment has not been extended to protect rioting, inciting to riot, or

other forms of physical violence. Nor has it been construed to protect, as symbolic speech, the

act of throwing cherry bombs at police officers and firemen.” Id. at 852 (internal citations

omitted). In Mr. Huff’s case, the Report sanctions a reading of § 231(a)(2) that allows a

prosecution where no civil disorder occurred and thus no acts of physical violence would appear

to justify making an exception for constitutional protections being applied to Mr. Huff.

The Report describes Mr. Huff’s argument about the breadth of the statute as “flawed”

because “a civil disorder by definition requires acts of violence, even if those violent acts only

imminently threaten, rather than actually result in, personal injury or property damage.” [Doc.

68 at 5]. If the Report is correct to find that § 231(a)(2) is not overbroad because it prohibits

civil disorders and because the term civil disorder means “public disturbances involving acts of

violence,” it logically follows that proof of a civil disorder must exist if one’s conduct is to be

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removed from constitutional protection and made criminal by § 231(a)(2). However, having

concluded that § 231(a)(2) is not overbroad because civil disorders are not protected conduct, the

Report finds that the government does not need to wait until there is a civil disorder to prosecute

someone for furthering one. [Doc. 68 at 6]. The Report cites United States v. Featherston, 461

F.2d 1119 (5th Cir. 1972), in support. It is significant that Featherston was decided based on §

231(a)(1) rather than § 231(a)(2). As charged in this case, § 231(a)(2) prohibits the “transport . .

. in commerce of a firearm.” By comparison, § 231(a)(1) prohibits one from “teach[ing] or

demonstrat[ing] to any other person the use, application, or making of any firearm or explosive

or incendiary devise, or technique capable of causing injury or death to persons” and in

Featherston the defendant “gave instructions to the members [of the Black Afro Militant

Movement] in attendance on how to make and assemble explosive and incendiary devices. The

stated purpose of this demonstration was to prepare the members off BAMM, for ‘the coming

revolution.’” Featherston, 461 F.2d at 1121. See also id. at 1122-23 (“Taken within this factual

setting, we hold that there was a sufficient showing of clear and present danger to justify

governmental intervention and the prosecution . . . .”). Whether or not the government proves

the existence of a particular civil disorder in any given prosecution for § 231(a)(1), it will have to

show that a defendant taught or demonstrated a violent use of a weapon at which point a harm

will have occurred. The “transport” of a firearm is categorically different, and otherwise lawful

possession of a firearm should not lose its protected status except when there is an allegegation

of a civil disorder.

B. Mr. Huff objects to the finding that 18 U.S.C. § 231(a)(2) is not void for
vagueness because it encourages arbitrary and discriminatory enforcement
of the law.

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 Mr. Huff objects to the finding that § 231(a)(2) is not unconstitutionally vague on its face

or as applied to him. [Doc. 68 at 6]. The Fifth Amendment to the U.S. Constitution provides

that “[n]o person shall be. . .deprived of life, liberty, or property, without due process of law….”

The void for vagueness doctrine informs that a “statute which either forbids or requires the doing

of an act in terms so vague that men of common intelligence must necessarily guess at its

meaning and differ as to its application violates the first essential of due process of law.”

Connally v. General Const. Co., 269 U.S. 385, 391 (1926) (citing International Harvester Co. v.

Kentucky, 234 U.S. 216 (1914) (ruling state statute unconstitutionally void and noting that

“between the two extremes of the obviously illegal and the plainly lawful there is a gradual

approach, and that the complexity of life makes it impossible to draw a line in advance without

an artificial simplification that would be unjust”)). Section 231(a)(2)’s vagueness does not

necessarily mean it cannot be read and applied narrowly, though. See also See Skilling v. United

States, 130 S. Ct. 2896, 2929-30 (2010) (narrowing 18 U.S.C. § 1346 to apply only to bribes and

kickbacks).

The degree of vagueness that is constitutionally permissible, as well as the relative

importance of fair enforcement, depends at least in part on the nature of the statute at issue. For

example, economic regulations are subject to a less strict vagueness test, and courts have

permitted tolerance of enactments with civil rather than criminal penalties, “because the

consequences of imprecision are qualitatively less severe.” Hoffman Estates v. Flipside, 455

U.S. at 499-500. Moreover, where a statute imposes criminal penalties, the standard of certainty

required is higher. Kolender, 461 U.S. at 358-59 n.8. As set out in the Report, Mr. Huff

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described four main reasons why 18 U.S.C. § 231(a)(2) is void for vagueness. The U.S.

Magistrate Judge rejected all four, and Mr. Huff objects.

i.The use of a statute is relevant to Due Process vagueness analysis.

Mr. Huff objects to the finding that § 231(a)(2) is not obscure and that, even if it were,

that would be an irrelevant consideration for the Court’s vagueness analysis. [Doc. 68 at 13].

Mr. Huff’s motion argued that whether a law is standardless and vague for due process purposes

is related to how frequently it is used, because the obscurity of a malum prohibitum crime is

related to whether a person of common intelligence is given fair notice that his conduct is

criminal.

The Report cites a case from the Sixth Circuit in which it was noted that even though

ignorance of the law is generally no excuse, “The United States Supreme Court has abrogated the

maxim when faced with a law so technical or obscure that it threatens to ensnare individuals

engaged in apparently innocent conduct.” [Doc. 68 at 13] (citing United States v. Baker, 197

F.3d 211, 218-19 (6th Cir. 1999), cert. denied, 528 U.S. 1197 (2000)). It is relevant to Mr.

Huff’s argument that when the Report rejects his position and the exception to the general rule

described in Baker, it does so by citing two cases that deal with different subsections of § 231(a)

and that both opinions are from 40 years ago. See [Doc. 68 at 13] (“[T]he Court finds it has

withstood the test of time and has been deemed constitutional by the two circuit courts of appeals

that have considered the question. See Mechanic, 454 F.2d at 852-53; Featherston, 461 F.2d

1121-22. Accordingly the Court finds that the minimal case law on section 231(a)(2) does not

render it obscure . . .”). The case law is minimal with respect to § 231(a)(1) and § 231(a)(3);

with respect to § 231(a)(2), Mr. Huff has been unable to find any cases that address its

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constitutionality, and it does not appear that any are cited in the Report.3 Mr. Huff submits that

this fact speaks to whether there has been fair notice or arbitrary and discriminatory enforcement

of a law and whether, looking at his case in which no civil disorder was alleged to have occurred,

whether an ordinary person would be surprised to be similarly charged. See United States v.

Williams, 128 S.Ct. 1830 (2008) (vagueness doctrine is outgrown of Due Process Clause of the

Fifth Amendment). A person in Mr. Huff’s position would not be on notice that his conduct

would cause the government to find § 231(a)(2) and charge it twice in a single indictment.

ii.Vague Terms Make An Obscure Statute More Problematic

Mr. Huff objects to the finding that “having reason to know” is a sufficient mental state

for criminal liability. [Doc. 68 at 8] (citing Featherston). In United States v. Featherston, 461

F.2d 1119 (5th Cir. 1972), the defendants were convicted of teaching the use or making of

explosives or incendiary devices not simply transporting a firearm with a particular mental state.

In rejecting the challenge to their convictions and the vagueness of “knowing or having reason to

know” as interpreted and applied against these particular defendants, the Fifth Circuit noted that

“the district court instructed the jury that in order to convict the defendants, they must find that at

the time and place in question, the defendants knew and intended the incendiary devices to be

unlawfully employed for use in, or in furtherance of, a civil disorder.” Id. at 1121-22.

3
The Report indicates that the “assertion [that § 231(a)(2) is largely unused] fails to
account for federal prosecutions under the statute that were not the subject of a legal challenge.”
[Doc. 68 at 13 n.7]. Mr. Huff agrees and submits the additional -- albeit still wanting --
information that a search for prosecutions under 18 U.S.C. § 231 on the website of the Bureau of
Justice Statistics (data for 1994-2009 only) revealed five cases, including one that was dismissed
or nolle prosequi’d in 1994. See http://bjs.ojp.usdoj.gov/fjsrc. Mr. Huff was unable to
determine which subsection of § 231 was charged in these cases. As a point of reference, in
2009 alone, a similar search indicates that violations of 18 U.S.C. § 924(c) were charged 1,718
times. Id.

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 Mr. Huff also objects to the finding that the use of “unlawful” in § 231(a)(2) is not vague

and that United States v. Stevens, 130 S.Ct. 1577 (2010), is inapposite to an analysis of whether

the term renders the statute vague. [Doc. 68 at 11]. Mr. Huff argued in his motion that he is

charged with transporting a firearm knowing or intended that it would be used “unlawfully” but

that this term is too vague to support criminal liability. See [Doc. 33 at 10]. The Report

discusses Stevens but concludes that the case is inapposite because “Defendant argues that the

term ‘unlawful’ itself is vague.” [Doc. 68 at 11]. Mr. Huff submits that his argument and

lengthy quotation of Stevens in his motion was for the broader point that “[t]erms like

‘unlawfully’ or ‘contrary to law’ . . . can render a statute or indictment vague,” for reasons

including but not limited to the differences in what constitutes unlawful conduct among the

states. See [Doc. 33 at 10]. Mr. Huff also argues that § 231(a)(2) is vague because of the term

“unlawful,” if the government is not required to identify the source of the law.

Finally, Mr. Huff objects to the finding that the term “civil disorder” is not vague. Mr.

Huff questioned the breadth of the statute by suggesting that the statute could be read to hold

defendant’s liable even when a third party caused the “public disturbance.” [Doc. 33 at 12]. Mr.

Huff renews his objection that a prosecution may proceed without the allegation that there was a

civil disorder. Supra.

C. Rule of Lenity.

Both counts of the indictment are premised on a violation of § 231(a)(2). Given the

ambiguity of § 231(a)(2)’s scope and meaning (i.e., whether there must be proof of a civil

disorder to render the prohibited conduct outside the scope of constitutionally protected conduct,

or whether otherwise protected conduct may be criminalized based on an allegation of a

11

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theoretical civil disorder), this Court should use the Rule of Lenity to resolve any doubts about

the validity of this statute in favor of Mr. Huff. See United States v. Bass, 404 U.S. 336, 348

(1971) (“[W]here there is ambiguity [in a] criminal statute, doubts are resolved in favor of the

defendant.”); Skilling v. United States, 130 S. Ct. 2896, 2929-30 (2010) (narrowing 18 U.S.C. §

1346 to apply only to bribes and kickbacks).

IV. CONCLUSION

For the foregoing reasons, Mr. Huff moves this Court to enter an Order dismissing both

counts of the indictment because 18 U.S.C. § 231(a)(2) is unconstitutionally overbroad and

vague.

Respectfully submitted this the 17 day of January, 2011.

FEDERAL DEFENDER SERVICES OF

EASTERN TENNESSEE, INC.

By: s/ Jonathan A. Moffatt

Paula Voss
Jonathan A. Moffatt [BPR No. 18137]
Asst. Federal Community Defender
800 S. Gay Street, Suite 2400
Knoxville, TN 37902
(865) 637-7979

s/ Anne. E. Passino
Anne E. Passino [BPR No. 027456]
Ritchie, Dillard & Davies, P.C.
606 W. Main Street, Suite, 300
Knoxville, TN 37901-1126
(865) 637-0661

Counsel for Mr. Huff

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 CERTIFICATE OF SERVICE

I hereby certify that on January 17, 2011, a copy of the foregoing Motion was filed
electronically. Notice of this filing will be sent by operation of the Court’s electronic filing
system to all parties indicated on the electronic filing receipt. All other parties will be served by
regular U.S. Mail. Parties may access this filing through the Court’s electronic filing system.

s/Anne E. Passino
Anne E. Passino

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