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United States v. Dhavamani

United States District Court, S.D. West Virginia

August 26, 2019

UNITED STATES OF AMERICA
v.
ARUN DHAVAMANI

          MEMORANDUM OPINION AND ORDER

          Davi d A. Faber Senior United States District Judge

         Pending before the court is defendant's Motion to Dismiss (ECF No. 34)[1], and the Response of the United States to Defendant's Motion to Dismiss (ECF No. 37).[2] On August 14, 2019, the court held a pre-trial motions hearing pertaining to the defendant's Motion to Dismiss. Both parties were afforded an opportunity to argue. At the conclusion of the hearing, the court reserved its ruling. For the reasons that follow, the defendant's Motion to Dismiss (ECF No. 34) is DENIED.

         ANALYSIS

         Defendant, Arun Dhavamani, is charged in a single-count indictment alleging he violated 18 U.S.C. §§ 2423(b) and (e), which states, in pertinent part, that “[a] person who travels in interstate commerce . . . with a motivating purpose of engaging in any illicit sexual conduct with another person [shall be guilty of an offense against the United States].” In his Motion to Dismiss, the defendant contends the statute under which he is charged, 18 U.S.C. § 2423(b), is: (1) unconstitutionally vague; (2) violates his First Amendment rights to free speech; and (3) violates the Eighth Amendment's prohibition against cruel and unusual punishment. (ECF No. 34).

         In response to the defendant's motion, the government states that “. . . much of defendant's argument, while cloaked in allegations of constitutional shortcomings of the statute, is simply an argument that the facts of the case do not support a conviction of this particular defendant for the offense charged.” (ECF No. 37).

         The court agrees with the government's contention that the essence of the defendant's motion is argument of whether the facts of the defendant's case violate 18 U.S.C. §§ 2423(b) and (e), opposed to true issues with the constitutionality of the statute. Nonetheless, the court will analyze below the merits of the defendant's constitutional claims.

         1. Unconstitutionally Vague Argument

         The defendant argues the “statute is unconstitutionally vague because no reasonable person would believe it is possible to commit the crime and not be able to change your mind before doing anything but driving.” (ECF No. 34). This argument fails to demonstrate the statute is unconstitutionally vague.

         A statute is not unconstitutionally vague unless it “fails to give ordinary people fair notice of the conduct it punished, or [is] so standardless that it invites arbitrary enforcement.” Johnson v. U.S., 135 S.Ct. 2551, 2556 (2015). When determining vagueness, the question “focuses on the intractability of identifying the applicable legal standard, not on the difficulty of ascertaining the relevant facts in close cases.” Kolbe v. Hogan, 849 F.3d 114, 149 (4th Cir. 2017); see also U.S. v. Williams, 553 U.S. 285, 305-06 (2008) (“[T]he mere fact that close cases can be envisioned renders a statute vague. That is not so. Close cases can be imagined under virtually any statute. The problem that poses is addressed, not by the doctrine of vagueness, but by the requirement of proof beyond a reasonable doubt. What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes can be proved; but rather the indeterminacy of precisely what that fact is.”)

         Here, the government explained in its brief, “[t]he statute is clear as to what the illegal activity is-traveling in interstate commerce (i.e., crossing a state line) with the motivating purpose of that travel being to engage in illicit sexual conduct (a term which is specifically defined at 18 U.S.C. §2423(f).” (ECF No. 37, p. 8). The court agrees with the government and finds a reasonable person of common intelligence would be able to read the law and understand what actions and what mental state are necessary for the commission of the crime.

         Therefore, because Sections 2423(b) and (e) give ordinary people fair notice of the conduct it punishes, the defendant's motion to dismiss on the basis that the statute is unconstitutionally vague is denied.

         2. Free Speech Argument

         The defendant's next argument to support his Motion to Dismiss is that the statute infringes on his First Amendment rights because “[he] had the right to pretend to be interested in a 15-year-old girl.” (ECF No. 34). This argument is also without merit.

         “There is no First Amendment right to persuade minors to engage in illegal sex acts.” U.S. v. Tykarsy, 446 F.3d 458, 473 (3rd Cir. 2006). ‚ÄúSpeech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type ...


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