UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4676

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHNNY BEASON,

Defendant - Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Clarksburg. Irene M. Keeley, 

District Judge. (1:10-cr-00105-IMK-JSK-1)

Argued: February 1, 2013 Decided: April 19, 2013

Before WILKINSON and FLOYD, Circuit Judges, and Joseph R. 

GOODWIN, United States District Judge for the Southern District 

of West Virginia, sitting by designation.

Reversed by unpublished opinion. Judge Floyd wrote the majority 

opinion, in which Judge Goodwin joined. Judge Wilkinson wrote a 

dissenting opinion.

ARGUED: Kristen Marie Leddy, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Martinsburg, West Virginia, for Appellant. Brandon 

Scott Flower, OFFICE OF THE UNITED STATES ATTORNEY, Clarksburg, 

West Virginia, for Appellee. ON BRIEF: Brian J. Kornbrath, 

Federal Public Defender, Clarksburg, West Virginia, for 

Appellant. William J. Ihlenfeld, II, United States Attorney, 

Wheeling, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit.
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FLOYD, Circuit Judge:

Appellant Johnny Beason pled guilty to possessing 

contraband in prison in violation of 18 U.S.C. § 1791(a)(2), 

(d)(1)(F) (2006) (amended 2010). Beason appeals his conviction, 

contending that the statute’s catchall contraband provision that 

prohibits possession of “any other object that threatens the 

order, discipline, or security of a prison, or the life, health, 

or safety of an individual,” id. § 1791(d)(1)(F), is void for 

vagueness as applied to his conduct.* We agree and for the 

reasons that follow reverse his conviction. 

I.

While in federal prison for violating the terms of his 

supervised release on unrelated charges, Beason acquired a cell

phone. On May 20, 2010, the prison unit corrections officer 

observed Beason using a cell phone in his cell. Upon realizing 

he was being watched, Beason initially tried to hide the cell 

phone. Beason then complied with the officer’s request to 

surrender the phone. The Bureau of Prisons (BOP) avers that 

 * The statute criminalizes “[w]hoever . . . being an inmate 

of a prison, makes, possesses, or obtains, or attempts to make 

or obtain, a prohibited object. . . .” 18 U.S.C. § 1791(a)(2). 

In addition to the catchall provision at issue here, the statute 

specifically prohibits “firearm[s] or destructive device[s],” 

“marijuana,” and “any United States or foreign currency.” Id.

§ 1791(d)(1)(A),(B),(E).
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cell phones pose significant security risks to prisons because 

inmates can use cell phones to arrange fraud schemes, plan 

assaults, and coordinate escapes. The presence of cell phones 

has recently escalated in Federal Correctional Institution (FCI)

Morgantown, where Beason was housed. Because of this, several 

cases of possession were referred for prosecution in hopes of

deterring the problem.

Upon entry to FCI Morgantown, each inmate is given a 

Handbook, prepared by the BOP, of the prison’s rules and 

regulations. As relevant in the instant case, the Handbook 

requires inmates to use the prison’s phone system. The prison 

system records the calls because inmates have used the system 

for various improper purposes, including attempts to introduce 

contraband into the prison. The prison also requires all names 

of individuals and telephone numbers to be on the inmate’s 

approved telephone list before a call can be placed. The prison 

reviews the lists and calls “to ensure the safety and security 

of the institution.” The Handbook also prohibits the possession 

of “contraband” in the prison. The BOP defines contraband as 

anything not received through official means. If found in 

violation of these rules, the Handbook alerts the inmate that he 

can be subject to various administrative penalties. However, at 

the time, the words “cellular phone” or “mobile phone” did not 

appear in the Handbook. Additionally, the Handbook provides for
5

punishment for a Code 108 which punishes inmates for prohibited 

acts, including possession of a hazardous tool. When the 

problem of cell phone possession escalated, the prison staff 

attempted to inform inmates that cell phone possession would now 

be prosecuted. Apparently some inmates were informed at 

briefings that cases of cell phone possession could be 

prosecuted. Although Beason admits that he was aware that cell 

phones were prohibited contraband and a possible Code 108 

violation and that possession could subject him to 

administrative sanctions, he states that he did not know that 

possession of a cell phone could lead to prosecution. 

At the time of Beason’s offense, cell phones were not 

included explicitly in 18 U.S.C. § 1791’s definition of 

“prohibited object[s].” Beason was convicted under the catchall 

provision of the statute, which allows prosecution for 

possession of “any other object that threatens the order, 

discipline, or security of a prison.” Id. § 1791(d)(1)(F). In 

August 2010, Congress passed the Cell Phone Contraband Act of 

2010, which amended the statute at hand and specifically makes 

possession of a cell phone by federal inmates illegal. Pub. L. 

No. 111-225, § 2, 124 Stat. 2387 (codified at 18 U.S.C § 1791). 

On November 23, 2010, the government filed a one-count 

Information, charging Beason with possession of contraband in 

prison. Beason then filed a motion to dismiss the Information, 
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arguing that the statute, as applied to his conduct, was 

unconstitutionally void for vagueness. The magistrate judge 

issued a Report and Recommendation (R & R) that recommended that 

Beason’s motion to dismiss be denied. The district court 

adopted the magistrate’s R & R and denied Beason’s motion to 

dismiss. Beason then entered a conditional guilty plea to the 

offense, with the proviso that he reserved the right to appeal 

whether the statute is void for vagueness. After his guilty 

plea, the district court sentenced Beason to two years of

probation. Beason timely appealed, and we have jurisdiction 

pursuant to 28 U.S.C. § 1291. 

II.

This court reviews a district court’s interpretation of a 

statute de novo. United States v. Nelson, 484 F.3d 257, 260 

(4th Cir. 2007). 

Beason first argues that 18 U.S.C. § 1791’s catchall 

provision is void for vagueness as applied to him because the 

statute failed to put him on notice that possession of a cell 

phone was prohibited, and because of this his conviction must be 

set aside. A conviction does not comport with due process if 

the statute under which a defendant is charged: “fails to 

provide a person of ordinary intelligence fair notice of what is 

prohibited, or is so standardless that it authorizes or 
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encourages seriously discriminatory enforcement.” United States 

v. Williams, 553 U.S. 285, 304 (2008). This analysis should be 

conducted bearing in mind the context in which the statute is 

applied. See United States v. Chatman, 538 F.2d 567, 569 (4th 

Cir. 1976).

The government cites this Court’s decision in Chatman, 

which found that a prior version of the statute at issue in this 

case was not vague. 538 F.2d at 569. In Chatman, the defendant 

introduced 24.3 grams of marijuana into the correctional 

facility. Id. at 568. At that time, 18 U.S.C. § 1791 provided 

that “[w]hoever contrary to any rule or regulation promulgated 

by the Attorney General, introduces or attempts to introduce 

into or upon the grounds of any Federal penal or correctional 

institution . . . anything whatsoever,” 18 U.S.C. § 1791 (1976) 

(amended 1984), is subject to criminal penalties. Its 

implementing regulation gave further guidance, adding “without 

the knowledge or consent of the warden or superintendent of such 

Federal penal or correctional institution is prohibited.” 28 

C.F.R. § 6.1. (1975). Viewing the statute in its context of 

operation—federal prisons, this Court reasoned that:

A federal penal institution has peculiar needs, and 

statutes designed to regulate articles being 

introduced into such institutions must be scrutinized 

in light of those needs. Pragmatically speaking, it 

would be virtually impossible for a single statute to 

catalogue the numerous items which must be prohibited 

in the interest of prison safety and security.
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538 F.2d at 569 (citations omitted). 

The government argues that the previous version of 18 

U.S.C. § 1791 withstood a vagueness challenge despite being 

“even broader” than the statute at hand. The government notes 

that thereafter Congress refined the definition of “prohibited 

object[s],” therefore giving even more guidance as to what is 

prohibited in prisons. Despite the government’s arguments, we 

find Chatman to be inapposite for three reasons. First, the 

statute at hand does not provide more notice than the former 

version of the statute at issue in Chatman. In fact, the 

contrary is the case. Under the former statute’s wording that 

prohibited “anything whatsoever,” it was quite clear that no 

item may brought into a prison. Further, there was a simple way 

to get clarification regarding whether an item would be allowed 

in the prison—obtain the consent of the warden or 

superintendent. Pursuant to the current version, a person has 

no way to seek consent for possession of an item, and under this 

version inmates must guess at what items are prohibited. A 

statute that requires an inmate to guess at what exact items are 

prohibited “fails to provide a person of ordinary intelligence 

fair notice of what is prohibited,” Williams, 553 U.S. at 304, 

and is void for vagueness. 

Second, the challenged version of the statute specifically 

bans only three types of items: (1) items that can inflict 
9

injury on others, such as weapons; (2) items that can cause 

intoxication; and (3) currency. 18 U.S.C. § 1791(d)(1)(A)-(E). 

Unlike firearms or drugs that are listed in the statute, a cell 

phone in and of itself poses no threat to safety. “The fact 

that cell phones might be put to bad use is a reason for 

Congress to specifically include them—like cash, see 18 U.S.C. 

§ 1791(d)(1)(E)—in the statute, not to read the statute to 

include them.” United States v. Blake, 288 F. App’x 791, 796 

(3rd Cir. 2008) (Rendell, J., dissenting). In sum, there is no 

discernible relationship between the specifically enumerated 

items and a cell phone that would allow a reasonable person to 

infer that a cell phone would be prohibited as well. 

Third, unlike the marijuana in Chatman, the illegality of 

which is widely known to the general public, cell phones are not 

inherently illegal. It follows that a reasonable person would 

not be aware that possession of an innocuous legal item would 

subject them to prosecution. For all of these reasons, the 

statute does not provide an ordinary person fair notice that 

possession of a cell phone would subject him to federal criminal 

sanctions. 

The government next argues that Beason knew a cell phone 

could “threaten the order, security, and discipline of the 

prison” because he knew he could be disciplined for possession 

of the cell phone through the Handbook’s prohibitions on
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possessing contraband or by a Code 108 violation. The fact that 

Beason knew that he could be subjected to administrative 

sanctions for violation of the aforementioned Handbook 

provisions is of no moment in determining whether Beason had 

notice that his possession of a cell phone was in violation of 

federal law. The test is not whether Beason knew that cell 

phones were prohibited but rather, is “whether a person of 

ordinary intelligence would know the conduct was prohibited by 

federal criminal law, not by some other rule or regulation.” 

Id. at 797 (Rendell, J., dissenting). Here, Beason’s knowledge 

that he was not allowed to have the cell phone does not incline 

us to conclude that he therefore had fair notice that his 

actions would result in federal criminal penalties. 

III.

Accordingly, we reverse Beason’s conviction because the 

statute, as applied to him, is void for vagueness.

REVERSED
11

WILKINSON, Circuit Judge, dissenting:

I would affirm the judgment based on the reasoning given by 

the district court, United States v. Beason, No. 1:10CR105, 2011 

WL 399839 (N.D.W. Va. Feb. 1, 2011), and the Third Circuit in 

United States v. Blake, 288 F. App’x 791 (3d Cir. 2008). The 

practical effect of this whole matter, however, is limited. As 

the majority notes, Congress has since “amended the statute at 

hand [to] specifically make[] possession of a cell phone by 

federal inmates illegal.” Ante at 5 (citing Pub. L. No. 111-

225, § 2, 124 Stat. 2387 (codified at 18 U.S.C. § 1791)).