Appendix — Herring v. United States

IN THE OISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF

AMERICA

Vv. CR. NO. 90-252-S

BENNIE DEAN HERRING

ORDER

4 federal grand jury has indicted

defendant Bennie Dean Herring on two counts

of assisting in the unauthorized decryption

of satellite cable programming in violation

of 47 U.$.C.A. Sec .605(e )(4).(1) The

indictment specifically charges that Herring

illegally modified and distributed devices

designed to “descramble" satellite

television signals transmitted from cable

programmers to subscribers. Herring has

moved to dismiss the indictment on a variety

of grounds. For the reasons that follow,

the court concludes that his motion is due

to be denied.

APP-1

27

I. Selective Prosecution

Herring contends that the government has

singled him out for prosecution while

failing to prosecute other persons who, the

Sa This portion of the statute

provides, in relevant part, that,

Any person who manufactures, assembles,

modifies, imports, exports, sells, or

distributes any electronic or

mechanical, or other deivice or

equipment, knowing or having reason to

know that the device or equipment is

primarily of assistance in the

unauthorized decryption of satellite

cable programming ... shall be fined not

more than $500,000 for each violation,

or imprisoned for not more than 5 years

for each violation, or both.

Sec. 605(e)( 4)

government is aware, possess and use the

same kinds of "“descrambler" devices as

Herring. He requests an evidentiary hearing

in order to present proof in support of this

claim of selective prosecution, a criminal

defendant must establish, among other thing,

that the decision to prosecute was based on

an invidious classification such as race or

religion. Wayte v. United States, 470 U.S.

598, 608, 105 $.Ct. 1524, 1531 (1985);

United States v. Gordon, 817 F.2d 1538, 1539

(11th Cir. 1987) (per curiam), vacated in

Part on other grounds, 836 F.2d 1312 (11th

Cir. 1988). Even if Herring is correct in

arguing that the government had “no rational

basis" to prosecute him and not others

Similarly situated, he has failed to show

| that he was singled for any invidious or

otherwise impermissible reason. Therefore,

his selective prosecution claim lacks merit.

II. Lack of a “Marketing System"

Herring also claims that the indictment

should be dismissed because Sec. 605, by its

| 29

own terms, cannot be enforced unless and

until a “marketing system" is established

under which “an agent...has been lawfully

designated for the purpose of authorizing

private viewing by individuals." Sec.

605(b )(2). However, among other flaws in

this arguement, Herring ignores the fact

that the marketing system excetion of Sec.

605 (b)(2) applies only if, in addition,

“the programming involved is not

encrypted." 47 U.S.C.A. Sec. 605(b)(1).

Herring does not--nor could he

logically--contend that the decrpytion

page 2

devices he is charged with modifying and

distributing were intended to receive

unencrypted programming. In any event, the

government contends that a markeing system

has been established.

III. No Legal Evidence in Support

of Indictment

Herring has also moved to dismiss the

indictment on the ground that there was no

legal evidence before the grand jury that he

had violated Sec. 605(e)(4). However, an

indictment valid on its face may not be

challenged on the basis of inadequate

ividence. United states v. Calandra, 414

U.S. 338, 345, 94 $.Ct. 613, 618 (1974);

United States v. Hyder, 732 F2d 841, 845

(11th Cir. 1984). See also Midland Asphalt

Corp, v. United States, U.S. __, 109

S.Ct. 1494, 1499-1500 (1989) (“only a defect

so fundamental that it causes the grand jury

no longer to be a_e grand jury. or the

indictment no longer to be an indictment,

gives rise to the constitutional right not

to be tried").

IV. Indictment’s Lack of Specificity

Herring claims that the indictment does

31

not contain a plain, concise statement of

the facts constituting the crimes he is

charged with committing.(2) The indi-tment

in this case sets out the approxima = dates

and places of the offens*s, <s* Ex /

describes the "descrambler" devices that

Herring used and shat he did wi - tnem, and

contains all the elements of a violation of

Sec.

2. Herring has not reque. scak Of

particulars.

605(e ( 4).(3) The indictment is sufficient

to inform Herring of the charge against

which he must defend, under both the sixth

amendment to the United States C-~- -itution,

see United States v. Ramos, 600 F.2d 469,

474 (11th Cir. 1982), and Fed. R. Crim. P.

7(c M1).

V. Right to Privacy

Herring suggests that Sec. 605(e)(4) is

unconstitutional both on its face and as

applied to him in this criminal prosecution

because it violates his right to monitor

satellite signals that travel throught the

public airwaves.(4) Herring relies on the

Eight circuit’s decision in Iyler v. Berodt,

877 F2d 705 (Sth Cir. 1999), qertsc:

Ganied, .... U.S. 4. 2£30._$.Ct. Feo (ieee ee

holding that private citizens do not have a

"justifiable expectation of privacy" in

their cordless telephone conversations,

sufficient to bring a civil action under 47

U.S.C.A. Sec. 605. Tyler says nothing about

whether the government may proscribe_ the

unauthorized decrytpion

3. Count I charges:

On or about the 11th day of May, 1990,

in the Middle District of Alabama,

33

BENNIE DEAN HERRING did manufacture,

assemble, modify, sell, and distribute

an electronic, mechanical and other

device, that is a General Instruments

Videocipher descrambler, serial number

P10500654 containing a modified circuit

board with serial number A/O AO32A7C2D,

knowing, and having reason to know that

the device is primarily of assistance in

the unauthorized decryption of satellite

cable programming, in violation of

Title, 47, United States Code, Section

605(e)( 4).

Count II refers to a “descrambler” with a

different serial number which Herring

allegedly used on 4 different date;

otherwise, its language is identical to that

of Count I.

Herring describes this right as a

component of the constitutional right to

privacy.

page 4

of satellite cable programming. Herring’s

Proposition that his conduct is protected by

@ right to monitor the airwaves or any other

Kind of privacy right finds no support in

Tyler or elsewhere.(5)

VI. Outrageous Government Conduct

According to Herring, the indictment in

his case should be dismissed because the

government has engaged in outrageous conduct

by prosecuting him at the urging of, and in

order to benefit, an illegal monopoly of

satellite cable companies. Herring has

presented no evidence of any connection

between the government’s prosecution of this

case and any illegal acts on the part of

cable companies; even if he had, this would

not be sufficient to demonstrate government

conduct so outrageous that it violates his

right to due process. See Hampton v. United

35

Ys

States, 425 U.S. 484, 489-90, 96 S.Ct. 1646,

1649-50 (1976); United States v. Russell,

411 U.S. 423, 431-32, 93

$.Ct. 1637, 1643

(1974). Cf. Rochin v. California, 342 U.S.

16S, 72 $.Ct. 205 (i952).

VII. Sec. 605(e)(4) as Void for Vagueness

Finally, Herring asserts that the law

shich he is charged with

violating, Sec.

605(e)(4), is unconstitutional on its face

because it is “indefinite” and "“vague".

However, there is no indication that

S. See also ON/TV of Chicago v. Julien,

763 F.2d 839, 843 (7th Cir.

devices solely designed

protected communications

industry and there is no

1985) (“Sales of

to intercept

an

threaten the

Viability of the subscription television

countervailing

social or policy consideration that would

justify these sales").

page 5

the statute sweeps within its reach any

constitutionally protected conduct or that

it draws an imprecise or uncertain line

a a

between permitted and illegal activity.(6)

Section 605(e)(4) defines the offense

Herring is accused of committing “with

sufficient definite-ness that ordinary

people can understand what conduct is

prohibited,“ and “in what manner that does

not encourage arbitrary and discriminatory

enforcement." Kolendar v. Lawson, 461 U.S.

352, 357, 103 S.Ct. 1855, 1858 (1983).

VIII. Conclusion

| Accordingly, it is the ORDER, JUDGMENT,

AND DECREE of the court, that the motion to

dismiss the indictment, filed by defendant

Bennie Dean Herring on October 26, 1990, be

and it is hereby denied.

37

DONE ,

1990.

this the 14th day of November,

Myron Thompson

United States District Judge

6.

statute’s

knowledge

605(e)( 4).

The court also notes that the

applicability is limited by its

requirement. See 47 U.S.C.A. Sec.

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF

AMERICA

vs. CR. NO. 90-252-S

BENNIE DEAN HERRING

ORDER

This cause is now before the court on

defendant Bennie Dean Herring’s motion for

bond and release pending appeal. For the

following reasons, this motion is due to be

granted.

The Bail Reform Act of 1984, 18 U.S.C.A.

Section 3143, the court presumes that

detention is valid despite the pending

appeal, and the defendant bears the burden

of overcoming that presumption and proving

APP-2

39

that release is appropriate. Morison v._

United States, 486 U.S. 1306, 108 S.Ct. 1837

(Rehnquist, Circuit Justice 1988) (release

pending certiorari petition); United States

v. Giancola, 754 F.2d 898, 901 (11th Cir.

1985) (per curiam), cert. denied, 479 U.S.

1018, 107 $.Ct. 669 (1986) (release pending

appeal ). In order to grant a defendant’s

motion for release pending appeal, the

district court must make the following

findings:

(1) that the defendant is not likely to

flee or pose a danger to the safety

of any other person or the

community if released;

(2) that the appeal is not for purpose

of delay;

page 1

(3) that the eppen) raises a

substantial question of law or

fact; and

(4) that if that substantial question

is determined favorably to

defendant on appeal, that decision

is likely to result in reversal or

an order for a new trial of all

counts on which imprisonment has

been imposed.

Giancola, 754 F.2d at 901.* The burden of

proving these findings lies with the

defendant. Id.

The court heard oral argument on

Herring’s motion at a hearing held on May 1,

1991. Upon consideration of the record in

this case, the court finds that Herring is

neither likely to flee pending appeal, nor

does he pose any danger to the safety of any

other person or the community if released.

The court also finds that Herring’s appeal

is not for the purpose of delay.

As to the third factor, the Eleventh

Circuit has defined a substantial question

for purposes of section 3143 in the

following manner.

41

[A] “substantial question” is one

of more substance than would be

necessary to a finding that it was

not frivolous. It is a “close"

question or one that very well

could be decided the other way.

Further, there are no blanket

categories for what questions do or

do not constitute “substantial"

ones. Whether a question is

“substantial” must be determined on

a case-by-case basis.

Id. See generally United States v. Hicks,

611 F. Supp. 497, 499 & nn. 2,3 (S.D0. Fla.

1985) (discussing the Giancola standard).

* In the Anti-Drug Abuse Act of 1988,

Pub. L. No. 100-690, section 7091, 1988 U.S.

Code Cong. & Admin. News (102 Stat.) 4181,

4410 (Stat. Supp. Feb. 1989), Congress

amended section 3143 to apply as well to

substantial questions on appeal likely to

result in no imprisonment or in a reduction

of the defendant’s sentence below the amount

of time already served in custody.

page 2

At this time, Herring challenges his

conviction under 47 U.S.C.A. section

605(e )( 4). Section 605(e)(4) is a new law,

and, as a result, Herring’s conviction

presents a number of substantial questions

of first impression. Indeed, in resolving

pretrial and trial matters, the court found

little or no case law for guidance. The

court is, therefore, of the opinion that

this case presents substantial and novel

questions of law that, if resolved in

Herring’s favor, may be likely to result in

a reversal of his conviction or an order of

A new trial. Under these specific

circumstances, and in light of the court’s

findings, release pending appeal is

justified.

Accordingly, it is ORDERED that

43

defendant Bennie Dean Herring’s motion for

release pending appeal, filed on April 24,

1991, be and it is hereby granted.

It is further ORDERED the defendant

Herring’s release is under the same bond and

conditions imposed by the United States

Magistrate on October 12, 1990, as amended

by this court on February 6, 1991.

Myron Thompson

United States District Judge

page 3

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-7377

D.C. Docket No. CRI0-252

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENNIE DEAN HERRING,

Defendant-Appellant.

Appeal from the United States

District Court

for the Middle District of Alabama

(June 2, 1993)

APP-3

45

Before ANDERSON, Circuit Judge, MORGAN and

JOHNSON*, Senior Circuit Judges.

PER CURIAM:

AFFIRMED. See Circuit Rule 36-1.

*See Rule 34-2(b), Rules of the U.S. Court

of Appeals for the Eleventh Circuit.

Judgement Entered: June 2, 1993

For the Court: Miguel J. Cortez ,Clerk

By: Kathleen McNabe

Deputy Clerk

ISSUED AS MANDATE: Aug. 9, 1993

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 91-7377

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENNIE DEAN HERRING,

Defendant-Appellant.

On Appeal from the United States

District Court for the

Middle District of Alabama

ON PETITIONCS ) FOR REHEARING AND

SUGGESTION(S ) OF REHEARING EN BANC

APP-4

47

vee See ee ee eee, ee ee eee ee wes

Before: ANDERSON, Circuit Judge, MORGAN and

JOHNSON*, Senior Circuit Judges.

PER CURIAM:

(x) The petition(s) for Rehearing are

DENIED and no member of this panel nor other

Judge in regular active service on the Court

having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Eleventh Circuit Rule

35-5), the Suggestion(s) of Rehearing En

Banc are DENIED.

( ) The petition(s) for Rehearing are

Denied and the Court having been polled at

the request of one of the members of the

Court and a majority of the Circuit Judges

who are in regular active service not having

voted in favor of it (Rule 35, Federal Rules

of Appellate Procedure; Eleventh Circuit

Rule 35-5), the Suggestion(s) of Rehearing

En Banc are also DENIED.

( ) A member of the Court in active service

having requested 2 poll on the

reconsideration of this cause en banc, and a

majority of the Judges in active Service not

having voted in favor of it, Rehearing En

Banc is DENIED.

ENTERED FOR THIS COURT

Judge L. Anderson

UNITED STATES CIRCUIT JUDGE

ORD-42

(9/91)

49