# Appendix — Herring v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0809%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 510 U.S. 1111

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386003_0809%3A2. Public record. Not legal advice.