United States v. Weir, 2:18-cr-00108

Anthony Weir previously pled guilty in 2002 to multiple child-sex offenses and was sentenced to 210 months imprisonment and five years supervised release; his supervision began October 2015.
A probation-office search on November 8, 2017 uncovered 23 images on a microSD card depicting pre‑pubescent children; genitalia not clearly discernable but some images focus on pubic region and are taken in bedroom/bathroom settings.
A federal grand jury indicted Weir on May 2, 2018 for possession of child pornography under 18 U.S.C. § 2252(a)(4)(B).
Weir moved to dismiss the indictment, arguing the statute is unconstitutionally vague (facially and as applied), overbroad, and that the court lacks subject‑matter jurisdiction; he also invoked the rule of lenity.
The court reviewed images in camera and considered whether they meet the statutory definition of “sexually explicit conduct,” focusing on the lascivious‑exhibition element and applying Dost factors.
The court denied the motion, holding the statute is not vague or overbroad as applied, Congress acted within Commerce Clause power, and lenity does not apply.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Vagueness of “lascivious”	Statute gives adequate notice; prior precedent supports clarity	Term “lascivious” is vague facially and as applied; he lacked notice images were proscribed	Court: Not vague; Ninth Circuit and Supreme Court precedent reject vagueness; question of images is factual, not basis to dismiss indictment
Overbreadth	Protecting children justifies statute; legitimate applications substantial	Statute criminalizes protected expression and chills speech	Court: Overbreadth challenge fails; statute’s legitimate applications predominate
Subject‑matter jurisdiction (Commerce Clause)	Federal interest in regulating child pornography affects interstate commerce	Statute exceeds Congress’s Commerce power for intrastate possession	Court: Congress acted within Commerce Clause; jurisdiction proper
Rule of lenity	Not applicable because statute is clear	Ambiguities should be resolved in defendant’s favor	Court: No grievous ambiguity; lenity inapplicable

United States v. Wiegand, 812 F.2d 1239 (9th Cir.) (upholding non‑vagueness of “lascivious”)
United States v. Adams, 343 F.3d 1024 (9th Cir.) (applying Ferber analysis to § 2256 and rejecting overbreadth and Commerce Clause challenges)
United States v. X‑Citement Video, Inc., 513 U.S. 64 (1994) (rejecting vagueness challenge to § 2256)
United States v. Overton, 573 F.3d 679 (9th Cir.) (endorsing Dost factors as starting point)
Dost v. United States, 636 F. Supp. 828 (S.D. Cal.) (articulating the six Dost factors for lasciviousness)
United States v. Williams, 553 U.S. 285 (2008) (explaining close statutory cases are for proof, not vagueness dismissal)
New York v. Ferber, 458 U.S. 747 (1982) (addressing overbreadth in child‑pornography context)
United States v. Gallenardo, 579 F.3d 1076 (9th Cir.) (upholding federal jurisdiction over child‑pornography possession)
Kolender v. Lawson, 461 U.S. 352 (1983) (void‑for‑vagueness principle requiring minimal guidelines)