know they contraband in prison for violation of eighteen u s c seven hundred ninety one eighty two and b five this appeal presents the legal question of whether the defendant while serving a sentence at the federal correctional institute in morgantown and fair insufficient notice that he was subject to a federal criminal prosecution for possessing a prohibited object that threatens order discipline the security of a prison under contraband this is an important issue for the panel to consider for three reasons number one because a broad interpretation of the contraband statute as it was at the time of this incident would permit arbitrary enforcement and prosecution who whose face depend on the resolution of this case and the fourth circuit should decide and johnny b is in favor because a person of ordinary intelligence would not know that under the statute as it was controlling at the time of this case the incident in this case the possession of a cell phone would result in a federal criminal charge rendering the statute void for vagueness as applied to such a person and how could he not know code that is memon why these things are confiscated off fairly regular basis than of the b o p s actually required to use monitored systems approved numbers  well he admits to an administrative infraction and and prior to this prior to june of two thousand and ten no other inmate at f e i morgantown had ever been criminally prosecuted for having a cell phone many individuals had received administrative thanks just says this is a claim of selective prosecution it's a void for  yes it does in fact the congressional budget office when discussing the the costs that would be incurred by the government in changing the statute said that the change the addition of cellphones to the contraband statute closes a loophole and allows the government to prosecute other individuals that they otherwise would not likely be able to prosecute chatman it's a one nine hundred seventy six case where this is the only other void for vagueness challenge that i could locate in the fourth circuit or the prison contraband statute and the prison contraband statute at that point was arguably broader than the one that was in place at the time of this incident and the one that's in place now because in that statute anything whatsoever was revoted at a federal correctional it's what that's a lot clearer than that i agree whatsoever is a lot clearer than trying to guess what threatens the order the civil exactly but in congress's wisdom it decided to change the contraband statute and at the point in which we're concerned the contraband statute forbade guns explosives currency and  was prosecuted under the catch all provision in the statute which includes anything and another object that threatens the order discipline or security of a president or the life health and safety of an individual guards or other inmates to coordinate deliveries of contraband coordinator scary coordinate retaliation against witnesses  communicate between members of prison gangs in ways that what retaliations or retaliation they take against all over members of another gang there's  argument about the nature of the communication that mr pease and was making at the time that he was caught using a cell phone and he had made a comment he was making really cation with someone who was on his  but in our peel we decided not to pursue that because it's irrelevant what he was actually using the phone for what's relevant is that he was chosen out of the thirty five to forty individuals who were also i understand that the that some of the inmates were advised in meetings that they could be punished but i don't know that mr pease and in particular received that  and punished for something that the fact that something is not permitted or prohibited at a federal institution is of no moment in determining whether that's actually a violation of criminal law or federal l and with cell phones up until this point and the statute as the guards in to be a p were aware was going to be changed in a manner three months in which time they would be able to prosecute anyone for self and possession whether that person was an honest none of this speaks does it to the to the question of whether a cell phone the only question is whether the cell phone can reasonably b seen as an instrument that in a variety of different ways undermines prison discipline and an order and i don't understand i mean if you're that there's simply a different set of rules and then what would pose a threat on the outside when you get me into a prison environment in a variety of practical ways this if you wanted to retaliate against another you made for an incident in the prison cafeteria the way you would do it  talk with some other members of the prison population and coordinate the power and coordinate to play somebody this isn't over yet may people take those dignitary assaults very seriously and what are they do they get some of their buddies and make sure that somebody is served notice sometimes in a very brutal sounds and the timing of the attack and who's going to be involved in it and how it's going to be carried out cellphones are instrumental and that kind of in that kind of planning  flout me please the court your honor i think what's important in the courts already touched on this already is the policy determination that the chapman court discussed although the statutes have dispatch your honor that's a question you can ask with any kind of display infraction that occurs in a prison setting from a the most serious offense or could occur would be a killing that inmates were disciplined for all the way down to some sort of soft contraband that that it is is possessed the reason and specifically in this case and the record lays this out is there had become an epidemic of cell phones being found at f c i morgantown the record chain link fence there's no barbed wire there's no armed guard patrol and really there are gaps in the fence where inmates can get access to the outside very easily and others can get access in contraband is a problem specifically things like like cell phones and in this case the prison decided they needed to do more than just administrative sanctions where an inmate make it burn in the special housing unit for a period time lou some good time criminal prosecution would be the next step in terms of a deterrent you agree that the fair notice of what is illegal must come in the face of the statute i think in looking at this your hon r i would agree with that if we're looking at a criminal statute you on do you think on its face that this statute would prohibit the possession of powdered coffee creamer i'm not sure that that's something that prison and are we left to guess from this statute is the way the way it's written at the time this happens as alleged are we just to use our common sense and say well i think so somebody else might not or are we to use the objective standard the ordinary reasonable person is that weapons you know that that is a sign of the reasonable person standard but i think a common sense terminating goes into that what an ordinary person who their common sense would think would be something that threatens the security order and discipline of an institution chapman specifically held that it would almost be impossible to catalog every single item that could potentially threaten the security in order to spawn of an institution but they could have in the statute as they do in many stages they could have reference prison regulations  put in there some vision in the statutes that we would look to prison regulations or we would look to the institutions rules but there's no delegation on the face of the statute is there not but one thing that i think it is important in this when you talk about a list of contraband and you go back to what the disciplinary procedures could have called for in this case what mr b sing could have been b is it your argument that anything that the word near prison officials determined is prohibited is a felony under the statute no your honor actually cell phone possession is only missed meaning even under the current it threatens the order and discipline in the present and therefore becomes a misdemeanor or a crime under this that your honor i'm not sure that would always be the case violate a rule with regard to contraband or god by definition undermining the order of the place provision that has to mean something the flip side of it is you can't just read the provision out of the statute by saying well i'm nothing that a warden feels is is dangerous one can fall into a proscription in the statute and your argument is as i understand it not one with respect to hand towels but with respect to a device that is almost uniquely instrumental in coordinating of a riot of prison actions that you because they are collective which i hand towel isn't it isn't the collective isn't an instrument of collective action or we're only rarely but because of the unique properties of a cellphone in coordinating collective action that surely would fall within the heart of this i'm to most provision which cannot be read to mean nothing and i don't understand why you're not giving those answers directly and quickly to what a good question yes your honor if you look at it if you take that any item that is not specifically enumerated in the statute could never be prosecuted the you would never be able to find a specific item when you're talking about cell phones in particular these carry great concerns in the prison they definitely what your are about a snickers snickers bar on that your honor would fall under soft contraband and i'm not sure i don't think a snickers bar would be something i would be pausing down and the of as weapons burn but what i'm worried about is i'm left to guess it isn't that the problem you yourself keep using the term catch all is and that of the real problem with vagueness is it's a catch all and i don't know what we're catching we're looking specifically on or in the context of a of a prison setting and actually all of these items that you're talking about are things that can be used if you saw a snickers bar that can be melted down there are a lot of items for instance plastic bags that inmates take they melt these down they they they forge him and shake him into stabbing weapons they become  not you know i don't think in every context those are going to be something that is prohibited i mean in fact these are items that are found in the prison and that inmates are permitted to have solved i suppose it's all i think we're looking at at the point that contraband may be found and is it at that point is that an item that can be used to threaten the order security discipline of the facility or endanger the health life and safety of an of an individual the plastic bag if it's just a plastic bag and it's  that the cell phone is so obviously fundamentally your own in a prison context a cell phone causes significant threats and it's not just necessarily that the collective action your case has to be but beyond that the provision the catch all provision house to mean something yeah it's not written in terms of just contraband and what car from a cow or a plastic bag or a snickers bar or or or or what have you because of this communicating potential  yes and and you also you look at this catch all provision as as chapman said you can't catalogue everything that is potentially going to threaten it isn't that the problem if you if you keep going back to that argument that you can't catalogue everything it means that on its face you can't tell what's prohibited no i think what this i mean aren't you undermining your own argument with that now when you look at cell phones specifically as i think judge look some pointed out this is something that's more of a recent technological innovation thirty years ago this wasn't something that would have even been considered as a possible item that can threaten a prison what your position is it can't mean everything but it must mean some yes and there's a and there's a zone between being everything and not mean anything and what you're saying is that given those b o b regulations given the fact that begin makes work on their own monitored suspect given the fact that cell phones are being confiscated in the prison given the fact that they were communicative device all of these things would put it into the core of the statute yes anybody with any reduced so without any need to have a thing sprawling over a large variety of dubious applications histrionic i mean we're specifically dealing with cell phones in this case that i mean i can communicate from a distance but it's the efficiency of the cell phone or the electronic communication to do the things it does wilkinson is cataloged that would make you say that the ordinary person is on notice on fair notice yes that a cell phone yes is that your argument yes it's unmonitored narrow argument isn't it because george goodwin's questions concern me i don't want this that you just wrote as all outdoors you'd be in the argument you're making is a very narrow and a very explicit argument yes i would be unique properties of a particular device yes at this case your honor i would agree is focused on a cell phone won't we're not looking at this statute in general and the concern specifically the judge good on raises is that it's unmonitored these these communications however they're conducted on cell phone or an i pad are unmonitored and that raises significant concerns for the security and order of their religion no debate that it's a good idea to ban so the question is whether or not he's on fair notice from the statute back i think it's instructive the fact that that there's a lack of cases that have challenges i think it shows that there is a discretion that the b o p and the government has used in applying to stay on my browser is that they made for cell phones before they amended to include in the northern district of west virginia and anywhere any in in there have been i can't give you the exact number but i know specifically in the southern district of west virginia there were two that are included that the government included with its response in this case before the district court there were at least two there there are other opinions published some published opinions that discuss the fact that centrally saying that common sense would dictate that a cell phone is an item that causes concerns to the security or discipline the reasons we've talked about the possibilities of the things that can be done with the cell phone by in arranging illegal illicit activit well it would depend on whether or not someone else could be prosecuted under the statute wouldn't it as it is a possible there may be additional it would you would you can see that there are some objects that are so obvious to the ordinary person that in terms of their ability does threaten the order disciplines period prison that they are covered by this statute or do you say that this provision is so broad that nothing would occur to the ordinary person i would say that that congress determined that yes cell phones are dangerous enough to be named specifically in the present kind of and i mean but meaning and that essentially nothing is is is covered because this if the cell phones are not covered i really am not sure exactly what  and we have to give some of fact do what congress has done and if you can't give effect to something that coordinates inmate action within america within within a restrictive environment system and there's a reason that the calls are monitored there's a reason congress passed a statute this is right at the core of congress's reason for acting and i just