The majority in United States v. Kerns held that the federal kidnapping statute under 18 U.S.C. 1201(a)(1) was not void for vagueness where the issue was raised for the first time of appeal. Under Section 1201(a)(1), federal kidnapping requires kidnapping or holding "for ransom or reward or otherwise" a person while traveling in interstate or foreign commerce. In holding that "otherwise" was not vague, the majority relied on the aging decision in Gooch v. United States, 297 U.S. 124, 128 (1936), which held that "otherwise" encompasses any benefit which a captor might attempt to obtain for himself. Given the "expansive" definition of the term, the majority held Mr. Kerns was on notice as to the criminality of his conduct.
However, Judge Readler wrote a concurring opinion suggesting that the federal kidnapping statute might be ripe for a stronger vagueness challenge under a more advantageous standard of review. Judge Readler indicates that the reasoning in Gooch may no longer be sound, as it "employed now-disfavored atextual interpretive methods, and in the process dramatically expanded the reach of federal criminal jurisdiction, leaving separation-of-powers and federalism concerns in its wake." In his view, the statute may invite the exercise of arbitrary power by allowing prosecutors and the courts to make up when the law is enforced.
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