USA v. Yener

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 24-cr-20523-BLOOM/Elfenbein
UNITED STATES OF AMERICA,
Plaintiff,
v.
HARUN ABDUL-HAMID YENER,
Defendant.
________________________________/
ORDER ON MOTION TO DISMISS
THIS CAUSE is before the Court upon Defendant Harun Abdul-Hamid Yener’s Motion
to Dismiss Count VI of the Superseding Indictment (“Motion”), ECF No. [63]. The Government
filed a Response in Opposition, ECF No. [67]. Yener filed a Reply in Support, ECF No. [71]. The
Court has reviewed the Motions, the supporting and opposing submissions, the record, and is
otherwise fully advised. For the reasons that follow, Defendant’s Motion is granted in part and
denied in part.
I. 	BACKGROUND
On August 27, 2025, Yener was charged by Superseding Indictment with Attempted Use of a
Weapon of Mass Destruction, in violation of 18 U.S.C. § 2332(a) (Count 1), Attempted Use of
Explosive, in violation of 18 U.S.C. § 844(i) (Count 2); Threatening to Assault and Murder a
Federal Law Enforcement Officer, in violation of 18 U.S.C. § 115(a)(l)(B) (Counts 3-5) and
Possession of Obscene Visual Representations of the Sexual Abuse of Children, in violation of 18
U.S.C. § 1466A(b) (Count 6). ECF No. [46] at 4.
Yener moves to dismiss Count 6 and contends that § 1466A is unconstitutional as applied to
him, because “the Supreme Court has made clear that simple possession of obscene materials can
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criminalized only. . . if the material at issue depicts the sexual exploitation of an actual, minor
human being.” ECF No. [63] at 11. The Government responds that § 1466A “does not prohibit the
mere possession of obscene material; rather, it is the possession of obscene material that has been
shipped or transported through commerce or produced by a device that shipped through
commerce.” ECF No. [67] at 7.
Alternatively, Yener seeks to sever Count 6 from the other offenses to be presented to the
jury in the upcoming trial, arguing it is improperly joined with Counts 1-5 and impermissibly
prejudicial to his defense. ECF No. [63] at 15. The Government takes no position on Yener’s
Motion to sever. ECF No. [67] at 14.
II. 	LEGAL STANDARD
A motion to dismiss an indictment is governed by Federal Rule of Criminal Procedure 12(b).
A defendant may challenge an indictment on various grounds, including failure to state an offense,
lack of jurisdiction, or constitutional reasons. See United States v. Kaley, 677 F.3d 1316, 1325
(11th Cir. 2012). “Under Fed. R. Crim. P. 12(b) an indictment may be dismissed where there is an
infirmity of law in the prosecution; a court may not dismiss an indictment, however, on a
determination of facts that should have developed at trial.” United States v. Torkington, 812 F.2d
1347, 1354 (11th Cir. 1987). Further, “[t]he sufficiency of a criminal indictment is determined
from its face.” United States v. Critzer, 951 F.2d 306, 307 (11th Cir. 1992). “The indictment is
sufficient if it charges in the language of the statute.” Id. “Constitutional requirements are fulfilled
‘by an indictment that tracks the wording of the statute, as long as the language sets forth the
essential elements of the crime.’” Id. at 308; see also United States v. Cole, 755 F.2d 748, 760.
The indictment's allegations are assumed to be true and are viewed in the light most favorable to
the government. See Torkington, 812 F.2d at 1354.
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III. 	DISCUSSION
A. Defendant’s As Applied Constitutional Challenge to § 1466A
Count 6 alleges that, on or about March 3, 2024, Defendant:
did knowingly possess a visual depiction of any kind, including a drawing and
cartoon, that depicts a minor engaging in sexually explicit conduct and is obscene,
and depicts an image that is, and appears to be, of a minor engaging in sexual
intercourse, including genital-genital, oral-genital, anal-genital, and oral-anal,
whether between persons of the same or opposite sex, and lacks serious literary,
artistic, political, and scientific value, and such depiction had been shipped and
transported in interstate and foreign commerce, including by computer, and was
produced using material that had been shipped and transported in interstate or
foreign commerce by any means, including by computer, in violation of Title 18,
United States Code, Sections 1466A(b) and 2522A(b )(2).
As Defendant acknowledges, the Eleventh Circuit has not considered an as applied challenge
to § 1466A. ECF No. [63] at 11. Instead, Yener asks the Court to consider Untied States v.
Anderegg, where a district court in Wisconsin found that § 1466A as applied, was unconstitutional.
Id. (citing United States v. Anderegg, No. 24-CR-50-JDP, 2025 WL 3126093, at *7 (W.D. Wis.
Feb. 13, 2025).
In Anderegg, the defendant was charged with production and possession of AI generated
images of naked boys. Anderegg at *1. The defendant sought dismissal, arguing that under Stanley
v. Georgia1, § 1466A was unconstitutional as applied because he has the right to possess and
produce obscene material in his own home. Id. at *7. The government urged the court to apply
principles established in Osbourne v. Ohio2, and to limit Stanley, arguing “the in-home possession
1 In Stanley, the Supreme Court held that the First Amendment prohibited making private possession by an
individual of obscene material in the privacy of his own home criminal. Stanley v. Georgia, 394 U.S.
557,558 (1969).
2 In Osbourne, the Supreme Court upheld Ohio’s prohibition against the possession of child pornography.
495 U.S. 103, 110 (1990) (“It is evident beyond the need for elaboration that a State's interest in
‘safeguarding the physical and psychological well-being of a minor’ is ‘compelling.’ ... The legislative
judgment, as well as the judgment found in relevant literature, is that the use of children as subjects of
pornographic materials is harmful to the physiological, emotional, and mental health of the child. That
judgment, we think, easily passes muster under the First Amendment.”) (quoting New York v. Ferber, 458
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of obscene material is much more like Osbourne than it is Stanley.” Id. at *9. Ultimately, the Court
rejected comparisons to Osbourne because the images the defendant possessed in Anderegg were
not of real children. Id.
As in Anderegg, the Government argues Stanley is distinguishable because § 1466A contains
an added element requiring the Government prove the images “have been shipped or transported
in interstate or foreign commerce or were produced using materials that had been shipped or
transported in interstate or foreign commerce.” Id; ECF No. [67] at 7. The Anderegg court found
the government’s jurisdictional argument unpersuasive and reasoned that “the obscene materials
in Stanley (reels of eight-millimeter film) almost certainly moved in interstate commerce too.” Id.
Moreover, the court noted “[i]f the jurisdictional element were enough to overcome Stanley,
Stanley would be a dead letter.” Id. The court in Anderegg dismissed the possession charge.
Here, as the Government points out, “Yener’s possession of the obscene material was not
confined to his residence. One of the cellular telephones containing the obscene material was found
on his person while he was present at a diner and the other was stored inside of his storage unit.”
ECF No. [67] at 8. Critically, such facts distinguish Defendant’s case from Anderegg and render
Stanley inapplicable. As the Supreme Court held, “Stanley depended, not on any First Amendment
right to purchase or possess obscene materials, but on the right to privacy in the home.” United
States v. 12 200-Foot Reels of Super 8mm. Film, 413 U.S. 123, 126 (1973).
Defendant replies that “the hard drive of an electronic device ‘is the digital equivalent of its
owner’s home, capable of holding a universe of private information.’” ECF No. [71] at 4 (quoting
United States v. Mitchell, 565 F.3d 1347, 1352 (11th Cir. 2009). However, the Eleventh Circuit in
Mitchell was specifically concerned with the hard drives of the defendant’s computers seized
U.S. 747, 756, (1982)).
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within the home, not mobile cellular telephones. Mitchell, at 1352. Moreover, the Eleventh Circuit
only analyzed the hard drives in terms of the reasonableness of the government’s three-week delay
in obtaining a warrant compared to the rights of the defendant in having his property interests
restored. Id.
While “a cell phone itself warrants Fourth Amendment protections due to the nature of the
privacy expectation bestowed on it by its owner and the public generally”, United States v. Gomez,
807 F. Supp. 2d 1134, 1141 (S.D. Fla. 2011), the Court declines to extend the specific protections
Stanley prescribed to the home, to a cellular telephone possessed outside the home. As Stanley
made clear, the right at issue was “the right to satisfy his intellectual and emotional needs in the
privacy of his own home.” 394 U.S. 557, 565 (1969). As such, Defendant’s Motion is denied as to
his as-applied constitutional challenge3.
B. Defendant’s Motion to Sever
Alternatively, Defendant seeks to sever Count 6 from Counts 1-5. ECF No. [63] at 14.
Defendant argues Count 6 is improperly joined with Counts that concern terrorism-related offenses
taking place between March 1, 2024, and November 20, 2024, while the “cartoon pornography
was downloaded on Mr. Yener’s phone before March 1, 2024.” Id. at 15. As such, Defendant posits
that Count 6 is neither “of the same or similar character” nor “based on the same act or transaction
as the other counts.” Id. Moreover, Defendant contends that even if not improperly joined, “Count
VI impermissibly prejudices his defense.” Id. The Government takes no position. ECF No. [67] at
14.
3 Defendant also challenges § 1466A as overbroad and void for vagueness, though he concedes his argument
is foreclosed by the Eleventh Circuit’s decision in United States v. Ostrander, 114 F.4th 1348, 1355 (11th
Cir. 2024). ECF No. [71] at 5. The Court agrees, and the Motion is denied as to his overbreadth and void
for vagueness argument.
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The Court undertakes a two-step inquiry to determine whether separate charges may be
properly tried together. First, the government bears the burden to show that joinder of the offenses
is proper under Federal Rule of Criminal Procedure 8(b). United States v. Gabay, 923 F.2d 1536,
1539 (11th Cir. 1991). If it is, the Court then must consider whether it should exercise its discretion
to sever offenses to avoid prejudice to a defendant or the government. Id. (citing United States v.
Montes–Cardenas, 746 F.2d 771, 776 (11th Cir. 1984)).
Federal Rule of Criminal Procedure 8(a) provides:
The indictment of information may charge a defendant in separate counts with 2 or
more offenses if the offenses charged—whether felonies or misdemeanors or
both—are of the same or similar character, or are based on the same act or
transaction, or are connected or constitute parts of a common scheme or plan.
Fed. R. Crim. P. 8(a). Courts broadly construe this Rule in favor of joinder. United States v.
Dominguez, 226 F.3d 1235, 1238 (11th Cir. 2000).
Nonetheless, Count 6 is neither of the same or similar character, based on the same act or
transaction, or connected to parts of a common scheme or plan. The related factual nexus is as
follows: The Government received a tip that Yener “was storing bombmaking schematics in an
unlocked storage unit,” ECF No. [1] ¶ 4. Because of the tip, on March 5, 2024, the Government
seized “two cellular telephones found in Yener’s possession” and executed a search warrant on the
storage unit. Id, ¶¶ 11, 12. The cellular telephones ultimately contained the obscene material in
question and the storage unit contained “numerous electronic watches with alarm and timer
features, approximately ten sets of Bluetooth wireless headphones, and various electronic circuit
board components.” Id. ¶ 12.
An analysis of whether offenses share the “same or similar character”, requires the Court to
consider whether the offenses “have[] a general likeness.” United States v. Walser, 3 F.3d 380,
385 (11th Cir. 1993). For example, in Barber, the Eleventh Circuit found joinder proper where a
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defendant’s alleged knowing submission of false statements to a bank was substantially similar to
his alleged preparation and filing of false tax returns, as both categories of offenses were crimes
of deceit and related in time. United States v. Barber, 591 F. App'x 809, 822 (11th Cir. 2014).
Similarly, in Hersh, the court the found joinder proper of a child pornography charge and a travel
and transport charge, reasoning that both charges reflected the defendant’s “repeated participation
in the sexual exploitation of minors.” United States v. Hersh, 297 F.3d 1233, 1242 (11th Cir. 2002).
Unlike in Barber and Hersh, the Count 6 obscenity charge shares no general likeness with the
terrorism charges.
Furthermore, Count 6 is not based on the same act or transaction as the terrorism charges. To
determine whether an offense is based on the same act or transaction, a court must examine
whether the facts underlying each offense are so closely connected that proof of such facts are
necessary to establish each offense. United States v. Caldwell, 594 F. Supp. 548, 553 (N.D. Ga.
1984). Here, the Court cannot conclude that the facts underlying Count VI are so closely connected
to the facts of the terrorism charges. Though each offense originates with the same tip and
subsequent search, the basis for each of the terrorism charges post-dates the seizing of Defendant’s
cellular telephones which contained the obscene images. Moreover, it does not appear any
information on the cellular telephones form the evidentiary basis of the terrorism charges. As such,
the Court finds joinder improper, and Defendant’s Motion is granted to sever Count 6 from the
upcoming trial.
IV. 	CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. 	Defendant’s Motion, ECF No. [63] is GRANTED in part and DENIED in part.
2. 	Count 6 is SEVERED from Counts 1-5. The scheduled trial will proceed as to Counts
1-5.
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3. 	The hearing scheduled on February 6, 2026, shall relate solely to the Defendant’s
Motion to Suppress, ECF No. [62].
DONE AND ORDERED in Chambers at Miami, Florida, on January 21, 2026.
______ ___ ______________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:
counsel of record
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