Full opinion text
AMENDED OPINION AND ORDER SOTOMAYOR, District Judge. Defendants move, pursuant to Fed. R.Crim.P. 21(b), to change the venue of this action from the Southern District of New York to the Western District of Texas. Further, defendants move to dismiss a portion of Count 1, as well as Counts 2 through 16 and 17 through 31 of the Indictment on the ground that the statute upon which the prosecution of these counts is based, 18 U.S.C. § 2512, is unconstitutionally vague. For the reasons to be discussed, defendants’ motions are DENIED. BACKGROUND The Spy Factory “is a retail store concept developed in 1989 to sell personal protection devices and personal security items to the general public and law enforcement agencies.” (Defs.’ Vagueness Mem. at 3). “At the time of the initial searches and arrests in this case, Spy Factory, which is headquartered in Texas, had 16 stores located throughout the United States.” (I'd). “In 1993, the United States Customs Service ... began an investigation of illegal bugging and wiretapping devices that were imported into the United States and sold by various so-called ‘spy shops.’ ” (Govt Mem. at 2). According to the Government, “Spy Factory was and is the largest chain of retail ‘spy shops’ in the country.” (Id.) Working across the country, but centralizing its efforts in New York City, the Government used undercover agents and confidential informants to gather evidence to prosecute the Spy Factory and the individually-named defendants for “violations of customs laws, Section 2512 of Title III, and the Communications Act of 1934.” (Govt Mem. at 4). “On August 16, 1995, a grand jury sitting in the Southern District of New York returned an eight-count indictment ... charging Spy Factory, its owner, Ronald Kimball, its general manager, Marlin Richardson, a/k/a ‘Brud,’ and its deputy general manager, Tracy Edward Ford, with a conspiracy to smuggle and sell illegal bugging and wiretapping devices_” (Govt Mem. at 4). On June 12, 1996, a grand jury returned a 70-eount superseding indictment adding to the original indictment “several objects to the conspiracy, and additional substantive violations of Title 18, United States Code, Sections 2512(l)(a), 2512(l)(b), and 545 relating to numerous sales of illegal bugging and wiretapping devices from the Southern District of New York.” (Id.) The indictment also included “a conspiracy and substantive counts of money laundering.” (Id.). On June 14, 1996, the Honorable Milton Pollack, then acting as Part One Judge of this District, signed an ex parte restraining order that put the assets of Spy Factory “under the control of a special monitor from the accounting firm of KPMG Peat Marwick, LLP, who oversees and controls expenditures of funds, including expenditures for legal expenses in this ease.” (Defs.’ Venue Mem. at 14). “Under the terms of the Restraining Order ... and related letter agreement ... dated August 28, 1996, ... the corporation is limited to $2,000.00 per month for the payment of legal expenses.” (Defs.’ Venue Mem. at 14). On September 16, 1996, less than four months before the scheduled trial date of January 14, 1997, and approximately one year after the first pre-trial conference in this action, the defendants filed their pretrial motions in this action. The defendants moved, inter alia, for a change of venue from the Southern District of New York to the Western District of Texas, where Spy Factory is headquartered and where all the defendants and most of the defense witnesses reside. The defendants claim that trial in New York is beyond the means of at least two of the defendants to afford and that forcing defendants and their counsel and witnesses to travel to, and be lodged in, New York, “one of the most expensive cities in the world,” (Defs.’ Venue Mem. at 4), would impose a tremendous financial burden upon them. Further, defendants insist that if they are forced to stand trial in the Southern District of New York, their businesses and employment in San Antonio would be seriously jeopardized. They contend that given these considerations, “the interests of justice” require that the trial be moved to San Antonio, Texas. The Government counters that defendants unduly delayed their filing of the change of venue motion and that such delay should militate against the Court’s granting of the motion. Furthermore, the Government argues that if the trial were transferred to Texas, not only would the Government incur significant financial expenses to move all its case-related materials and personnel out-of-state, but that the trial itself inevitably would be delayed so that local assistant United States attorneys in Texas could familiarize themselves with the intricacies of the ease. With respect to the defendants’ assertions that their businesses and employment prospects would suffer if they were tried in New York, the Government minimizes this argument by contending that “inconvenience and interference with normal occupational and personal activities occur whenever a defendant is involved in a trail [sic] facing serious charges.” (Govt Mem. at 43). They conclude, “[t]he defendants’ contention that they plan to carry on their normal occupational activities during the lunch hour and after-hours of this major trial in which they face serious charges is highly dubious, and is insufficient in light of the delay and other factors in this case to warrant a change of venue.” (Govt Mem. at 44). With respect to the personal financial burden that at least two of the defendants would have to endure by having the ease tried in New York, the Government contends that the financial impact on the defendants of trial in New York can be alleviated considerably. At an oral argument held on December 13, 1996, the Court determined that both defendants Tracy Ford and Marlin Richardson qualified for appointment of CJA counsel. The Court asked the Government whether it would agree to pay the travel and lodging expenses of these defendants in the same manner it had offered to do in United States v. Wheaton, 463 F.Supp. 1073, 1078 (S.D.N.Y.), aff’d sub nom., United States v. Williams, 614 F.2d 1293 (2d Cir.1979). During a conference held with the Court on December 19, 1996, the Government agreed to pay for the travel and lodging costs of defendants Tracy Ford and Marlin Richardson and their attorneys during the trial. The Government also agreed to pay for three trips home for defendants Ford and Richardson and their counsel during the course of the trial so that the effect of the defendants’ separation from their families and businesses would be alleviated to some extent. At the same conference, the Government noted that the Criminal Justice Act would cover any expenditures necessary to bring relevant defense witnesses for these defendants to New York for trial. The defendants also move to dismiss the majority of the counts in the Indictment on the grounds that the statute upon which the prosecution is based, 18 U.S.C. § 2512, is unconstitutionally vague as applied to them. In short, the defendants argue that the terms “primarily” and “surreptitious” in the statute render its meaning unconstitutionally vague, especially when read in connection with § 2511 of the statute, which purports to legalize some forms of “surreptitious” interceptions, i.e., interceptions of conversations in which at least one party to the conversation consents, while other forms of “surreptitious” interceptions remain illegal, i.e., interceptions of conversations in which no party to the conversation consents to its interception. The Government responds that the terms “primarily” and “surreptitious” are sufficiently clear to provide notice to the defendants that their conduct was unlawful, particularly when considered in conjunction with the legislative history of the act which provides specific examples of prohibited items. With respect to the defendants’ argument that Section 2511 causes confusion in the interpretation of “surreptitious” under Section 2512, the Government maintains that there is no conflict between the two provisions because Section 2512 deals "with the prohibition of certain devices while Section 2511 speaks to the permissibility of certain conduct. In sum, the Government insists that any reasonable person would know that Spy Factory’s conduct was “at risk” under the act. (Govt. Mem. at 8). In their pretrial motions, defendants made several discovery requests and moved for the suppression of evidence seized in the search of Spy Factory stores. For the reasons set forth on the record at the December 13,1996 conference, the Court denies the discovery requests in part and grants others, in part, and denies the suppression motion. (12/13/96 Tr. at 39-59). As of May 6,1996, the Court had set a trial date of January 14, 1997. After oral argument on the instant motions, however, defendant Tracy Ford decided, after a Curdo hearing, that a potential conflict of interest with his counsel necessitated substitution of counsel. After conferring with new CJA counsel as to the time necessary to prepare the case, the Court adjourned the trial date until February 18,1997. DISCUSSION I.CHANGE OF VENUE A. THE STANDARD UNDER FED. R.CRIM.P. 21(b) Federal Rule of Criminal Procedure 21(b) provides that “[f]or the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to that defendant or any one or more of the counts thereof to another district.” Rule 22 of the Federal Rules of Criminal Procedure states that such a motion to transfer “may be made at or before arraignment or at such other time as the court or these rules may prescribe.” Fed.R.Cr.P. 22. B. THE PLATT FACTORS The following ten factors introduced in Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964), are routinely considered by courts deciding motions to change venue. 1. Location of the Defendants 2. Location of the Witnesses 3. Location of the Events in Issue 4. Location of Documents and Records 5. Disruption of the Defendants’ Businesses) 6. Expense to the Parties 7. Location of Counsel 8. Relative Accessibility of the Place of Trial 9. Docket Condition of Each District 10. Other Special Elements See United States v. Russell, 582 F.Supp. 660, 662 n. 2 (S.D.N.Y.1984) (“While not specifically adopting these factors, the Court implicitly approved them in Platt, and courts have consistently used them ever since.”). A Court should weigh the ten Platt factors against one another and against the backdrop of doing what is in the overarching interest of justice. A Court should not give any one factor preeminent weight nor should it assume that the quantity of factors favoring one party outweighs the quality of factors in opposition. See United States v. Maldo nado-Rivera, 922 F.2d 934, 966 (2d Cir.1990) (“No one of these considerations [the Platt factors] is dispositive, and ‘it remains for the court to try to strike a balance and determine which factors are of greatest importance.’ ”) (citing United States v. Stephenson, 895 F.2d 867, 875 (2d Cir.1990)), cert. denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991). Rather, a Court should look to all of the factors and determine whether the interests of justice would be better served by changing the trial venue. In essence, “[t]he determination of whether a particular case calls for transfer depends upon the peculiar facts and circumstances of that case.” United States v. Posner, 549 F.Supp. 475, 477 (S.D.N.Y.1982). 1. Location of the Defendants The first of the Platt factors, the location of the defendants, weighs in favor of a change of venue in this action. All three of the individual defendants reside in San Antonio, and Spy Factory was incorporated in Texas and is headquartered in San Antonio. Furthermore, it has been said that as a matter of “policy” courts should, “whenever possible,” try defendants “where they reside.” United States v. Russell, 582 F.Supp. 660, 662 (S.D.N.Y.1984); see also United States v. Cashin, 281 F.2d 669, 675 (2d Cir.1960) (“Recognizing the unfairness and hardship to which trial in an environment alien to the accused exposes him, and the important policies underlying the venue provisions of the Constitution and Bill of Rights, the Supreme Court has declared that venue statutes should, whenever possible, be construed so to permit trial at the residence of the defendant.”) (citations and internal quotation marks omitted); United States v. Aronoff, 463 F.Supp. 454, 457 (S.D.N.Y.1978) (“As ... many other judges have recognized, it can be a hardship for a defendant to face a trial far away from home and from ‘appropriate facilities for defense.’ ... It has been stated, therefore, that as a matter of policy, a defendant should ordinarily be tried, whenever possible, where he resides.”) (citations omitted). Thus, while the Supreme Court has said that the defendant’s residence has no “independent significance,” and should not be given dispositive weight, see Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct. 769, 772, 11 L.Ed.2d 674 (1964), the fact that all defendants reside in San Antonio weighs in favor of the transfer of venue, absent other countervailing considerations. 2. Location of Witnesses a). Defendants’ Witnesses Defendant Ron Kimball claims that the 20 witnesses he intends to call, most of them fact witnesses, all reside in San Antonio. Defendant Marlin Richardson maintains that the 9 fact witnesses he intends to call all reside in San Antonio and that “the majority of the remainder” of his 30 witnesses reside in the proximity of San Antonio. Finally, Defendant Tracy Ford insists that he plans to call 25 witnesses, all of whom reside in San Antonio. Defendants collectively claim that “[tjhese witnesses are willing and able to appear to testify in the Western District of Texas, but, for a variety of reasons, including a lack of financial resources, are unable to travel to the Southern District of New York to appear as witnesses if the trial is commenced there.” (Defs.’ Venue Mem. at 2). The expenses for any pertinent witnesses testifying on behalf of defendants Richardson and Ford will be paid from CJA funds. Defendant Kimball has not shown himself financially incapable of paying the expenses of his witnesses. More importantly, however, as the Government points out in its response, “[t]he defendants do not identify any of these witnesses or explain then-relevance to the pending charges.” (Govt Mem. at 41). Courts in other circuits have held that “[generally, a naked allegation that witnesses will be inconvenienced by trial in a distant forum will not suffice for transfer.... Defendants must offer specific examples of witnesses’ testimony and their inability to testify because of the location of the trial.... the court must rely on ‘concrete demonstrations’ of the proposed testimony.” United States v. Haley, 504 F.Supp. 1124, 1126 (E.D.Pa.1981) (citing United States v. Kelly, 467 F.2d 262, 265 (7th Cir.1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973); Jones v. Gasch, 404 F.2d 1231, 1243 (D.C.Cir.1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1414, 20 L.Ed.2d 286 (1968); United States v. Barrientos, 485 F.Supp. 789, 790 n. 2 (E.D.Pa.1980)). Thus, the defendants here have not met their burden of proving that the location of necessary and relevant witnesses compels a transfer to the Western District of Texas. b). Government’s Witnesses The Government’s witnesses are various Customs Service agents, FCC investigators and “seizing and custodial agents from each of the Spy Factory locations located in Atlanta, Chicago, Costa Mesa, Dallas, Denver, Houston, Las Vegas, San Antonio, St. Louis, Salt Lake City, San Diego, San Francisco, Seattle, Tucson, and. West Hollywood.” (Govt. Mem. at 40) “In addition, the Government may call as witnesses purchasers of the illegal devices in the Southern District of New York and elsewhere.” (Id. at 41). Because with the exception of the purchasers in the Southern District, most of the Government’s witnesses appear to be scattered around the country, and, given the defendants’ failure to meet their burden, the location of witnesses does not weigh in favor .of either party. 3. Location of the Events in Issue Defendants contend that “[t]he majority of the acts and conduct in furtherance of the alleged conspiracy occurred at corporate headquarters in San Antonio, Texas.” (Defs.’ Venue Motion at 2). They explain: All correspondence and purchasing from Japan occurred from the San Antonio office. Catalog sales took place in San Antonio. Revenue from all sales throughout the country were transferred to San Antonio. Payroll and payment of all other business expenses were paid or authorized from San Antonio. All business decisions were made in San Antonio. (Id. at 3). Defendants also underscore that Spy Factory has no stores in New York and only minimal business contacts here. Of “‘thousands’ of illegal transactions [alleged to have been committed] by Spy Factory,” the defendants argue that “only a few isolated telephone sales to four customers in New York are alleged in the Indictment and presumably are relied on by the Government to support venue in New York.” (Id.) They further insist that “Spy Factory did no advertising in New York, ... did no direct mailing [to] New York, ... did no soliciting in New York, ... had no plans to sell in New York, ... [and] had no sales personnel in New York_” (Defs.’ Venue Reply at 6 (quoting Richardson Aff.)). In response, the Government explains (1) that “[u]ndereover agents of the Customs Service conducted surveillance” at Spy Factory’s locations throughout the country, (2) that “the Customs Service” operated an undercover company in New York City from which telephone calls were made and illegal devices were received, and (3) that “of the 70 counts of the Superseding Indictment, 45 counts are substantive counts that are based on numerous sales of illegal devices to purchasers here in the Southern District of New York.” (Govt Mem. at 40). Because the criminal activity that was alleged to have occurred in this ease was coneededly national in scope, the location of the events at issue favors neither side. Cf. United States v. Alter, 81 F.R.D. 524, 526 (S.D.N.Y.1979) (finding that location of events at issue favored transfer to alternate forum where “[i]t is beyond dispute that most, if not all, of the acts and conduct in furtherance of the alleged scheme to defraud occurred in [the alternate venue] and that it was the ‘nerve center’ of the alleged illicit operations in carrying out the scheme....”); United States v. Bein, 539 F.Supp. 72, 74 (N.D.Ill.1982) (despite fact that “the entire [criminal] operation was centered in [the alternate forum],” the countervailing consideration that “victims were solicited [in the trial venue]” and that “victims wired funds from [the trial venue],” made the location of the events at issue factor weigh in favor of a transfer only by “a small margin.”); United States v. Haley, 504 F.Supp. 1124, 1128 (E.D.Pa.1981) (where “many of the overt acts described in the indictment purportedly occurred in [the transfer venue] or surrounding states,” this was showing of- a “nerve center” which weighed in favor of transferring venue to the alternate forum). lt. Location of Documents and Records Although the documentary evidence in this case is undoubtedly voluminous — “including more than 100 boxes of documents, consensual tape recording and other physical evidence” (Govt Mem. at 41) — and although the documentary evidence is currently stored in New York, this consolidation of the records in New York was voluntarily accomplished by the Government. (Defs.’ Reply at 7). The Court notes, however, that defendants did not object to the consolidation of these documents in New York. Nonetheless, given the reality of modern transportation and shipping capabilities, as well as the Government’s own role in causing the documents to be stored here in New York, it would seem that this factor as well lies in favor of neither party. In a similar ease, a district court found that where the government had seized documents from one location and transferred them to, and consolidated them at, the place of trial, the fact that the documents were to be found there could not properly lie in favor of the Government’s opposition to the change of venue. The court explained: Most of the ... documents and records are now in Chicago, but this is a result of the government having seized them in New York and bringing them here. Two things are clear: (a) It would be grossly unfair to permit the government to “create” venue, or to alter the balance of relevant considerations, simply by shipping documents. (b) Documents moved here can just as easily be moved back to New York, or photocopies may be shipped there. United States v. Bein, 539 F.Supp. 72, 74 (N.D.Ill.1982) (finding that “[t]his factor must therefore be viewed as essentially neutral. It thus drops out of the equation.”); see also United States v. Posner, 549 F.Supp. 475 (S.D.N.Y.1982) (Even where the Government has “five file drawers of documents,” “[t]he location of documents and records is not a major concern in these days of easy and rapid transportation.... This factor is in equilibrium insofar as transfer is concerned.”). 5. Disruption of Defendants’ Businesses) Defendant Ron Kimball, as President of Spy Factory and as the person in charge of its operations, contends that “[i]t will be extremely difficult if not impossible for him to run his business while’ in a two month trial in New York.” (Defs.’ Venue Mem. at 3-4). He claims that “[t]he recent resignation of Defendant Marlin Richardson who was extensively involved in the day-to-day operations of the business, has created a greater need for Defendant Kimball to participate in the running of the business.” (Id. at 4). Kimball insists that if the trial were in San Antonio he could “periodically meet with his employees after hours and ... maintain contact with his business.” (Id.) Defendant Marlin Richardson has just begun to manage a family-owned art gallery. He argues that “[i]t is critical to the survival of this new business” that he be able to stay in San Antonio and oversee the new enterprise. (Id.) Finally, Defendant Tracy Ford contends that he will be terminated from his employment as a manager at a swimming pool company if he is forced to stand trial in New York City. (Id.). Each defendant contends, therefore, that his presence in San Antonio during the trial is necessary for him to meet his business obligations. The Government correctly argues, however, that “inconvenience and interference with normal occupational and personal activities occur whenever a defendant is involved in a trial facing serious charges.” (Govt Mem. at 43) (citing United States v. United States Steel Corp., 233 F.Supp. 154, 157 (S.D.N.Y.1964); Oil & Gas Ventures-First 1958 Fund, Ltd. v. Kung, 250 F.Supp. 744, 755 (S.D.N.Y.1966)). It insists that “the defendant’s contention that they plan to carry on their normal occupational activities during the lunch hour and after-hours is highly dubious, and is insufficient in light of the delay and other factors in this case to warrant a change of venue.” (Govt Mem. at 44). I agree with the Government’s position on this issue, particularly where no defendant has shown why telephone and fax machine communication is insufficient to maintain the minimal contact that would be available to any of them over a lunch hour or after-hours if the trial were moved to San Antonio. Nevertheless, I recognize that as one court has stated, “[t]o a failing business that depends so much on personal involvement, even a few hours each weekday plus weekends could make a substantial difference.” United States v. Aronoff, 463 F.Supp. 454, 458 (S.D.N.Y.1978) (citing United States v. Olen, 183 F.Supp. 212, 219 (S.D.N.Y.) (transfer allowed defendants to use evenings and weekends to maintain their accounting practice), mandamus denied sub nom., United States v. Cashin, 281 F.2d 669 (2d Cir.1960)); see also United States v. Russell, 582 F.Supp. 660, 663 (S.D.N.Y.1984) (“Although a substantial amount of the [defendants’] time will be occupied by the trial wherever it is held, it will still be possible for them to carry on their business at least to a limited extent if they are tried in [the alternate venue]. Such a potential reduction in business interruption is an additional factor in favor of transfer.”); United States v. Haley, 504 F.Supp. 1124, 1128 (E.D.Pa.1981) (“Courts recognize that ‘personal involvement, even a few hours each weekday plus weekends could make a substantial difference’ to the success of a struggling business. Defending criminal charges should not include the penalty of financial ruin where the trial might be conducted properly and legally in a forum near defendants’ homes and businesses.”) (citations omitted). In summary, this factor weighs slightly in favor of the defendants, but not dispositively because modern methods of communication minimize the impact of the defendants’ absence from San Antonio. 6. Expense to the Parties a). Expense to Defendants Because of the recent imposition of Judge Pollack’s Ex Parte Order and its effect on defendants’ ability to use Spy Factory assets to support themselves, their families, and their legal defense, defendants argue that “[t]he cost to transport and provide accommodations for themselves, their lawyers and their witnesses in New York City, one of the most expensive cities in the world, for perhaps two months is beyond the capabilities of these defendants.” (Defs. Venue Mem. at 4). However, defendants Kimball and Spy Factory, Inc. have not demonstrated that they are financially incapable of funding their defense. Moreover, in light of the Government’s recent offer to fund the travel and lodging expenses of defendants Tracy Ford and Marlin Richardson and their counsel, and in light of the fact that CJA funds will cover the expenditures necessary to bring relevant defense witnesses to New York, the factor of expenses no longer weighs in favor of the defendants. b). Expense to the Government The Government contends that it “would be put to great expense to relocate its entire prosecution team to San Antonio, as well as bringing at least one Assistant United States Attorney in San Antonio up to speed on the case.” (Govt Mem. at 42). The Government also insists that it would not be inexpensive to relocate back to Texas all of the documentary evidence in this ease. For these reasons, the Government contends that “the expenses to the parties weighs in favor of neither side.” (Id.) Because the defendants’ argument regarding their expense in trying the ease in New York has been virtually eviscerated by the Government’s offer to fund the travel and lodging costs of defendants Tracy Ford and Marlin Richardson and their counsel if the case is tried in New York, and because the Government would have to undergo significant expenditures if the case were moved from New York, the expense to the parties factor weighs in favor of keeping the trial in the Southern District. 7. Location of Counsel At the time of the filing of defendants’ venue motion, all three lawyers representing the individual defendants were from San Antonio. However, in the interim, Tracy Ford’s San Antonio lawyer has been replaced by a CJA attorney from New York because of a potential conflict of interest with Ford’s prior counsel. Ronald Kimball’s San Antonio lawyer has advised the Court that if the trial is not transferred to San Antonio, local counsel in New York will assume the role of lead counsel in the case. In a letter to the Court dated December 20, 1996, Mr. Kimball’s attorney underscored that in the event the transfer is denied, this substitution of counsel would not occasion delay nor prejudice Mr. Kimball. (Letter from Goldstein to Court of 12/20/96 at 1-2 (assuring the Court that local counsel for Mr. Kimball “is a very able, New York practicing attorney, who has served as local counsel in this cause from the outset, performed many of the local discovery and jury selection duties on behalf of all Defendants in this cause and is sufficiently familiar with the facts and issues in this case that his substitution as lead counsel would occasion no delay in this cause.”)). The Spy Factory corporation’s attorney has at all times been a New York lawyer, and, obviously, the two assistant United States attorneys are both from this district. Therefore, given that there is only one counsel who currently resides in San Antonio, the location of counsel factor no longer weighs in favor of a transfer of venue. 8. Relative Accessibility of Place of Trial Although the Government asserts that “[t]he relative accessibility of the place of trial weighs heavily in favor of denying the motion to transfer this case” (Govt Mem. at 42) because “New York has superior access to three airports, numerous train lines and an abundance of hotel accommodations,” (Govt Mem. at 43), the Government has not pointed to any problems of accessibility in the alternate forum. Accordingly, this factor does not weigh toward either conclusion. See, e.g., United States v. United States Steel Corp., 233 F.Supp. 154, 158 (S.D.N.Y.1964) (“The efficiency of modern air transportation renders rather sterile any argument” that one forum is more accessible than the other.). 9. Docket Condition of Each District Exhibit 10 to Defendants’ Reply Memorandum is a letter from Chief Judge Harry Lee Hudspeth of the Western District of Texas which provides Judge Hudspeth’s personal “assur[ancej” that a judge in that district “would be available to try this case if it were transferred to [their] district.” (Defs.’ Reply Ex. 10). This Court, however, is prepared to try this case immediately. Moreover, a transfer to San Antonio will inevitably necessitate a delay in the impending trial date, if for no other reason than that the local assistant United States attorneys as well as the local judge would have to prepare themselves for the trial of this case. In light of this almost certain delay, I find that this factor does not weigh in favor of either party. The Court notes that the existence of a potential conflict of interest and the resulting appointment of new counsel for defendant Tracy Ford has necessitated a postponement of the original January 14, 1997 trial date to February 18,1997. The interest of justice is not served, however, by requiring an assistant United States attorney and a judge in the Western District of Texas to immerse themselves in the case in the manner in which Ford’s new lawyer has agreed to do in order to meet the imminent trial date. In fact, given that this Court had to canvass a wide array of CJA counsel in order to locate one attorney whose schedule would allow him to devote himself exclusively to this matter— and without significant interruption over the holidays and weekends — the Court finds it unlikely that any assistant United States attorney or judge in the Western District of Texas would be in a position to devote such exclusive attention to this matter. Furthermore, although a delay of the trial has already been occasioned by the substitution of Ford’s attorney, the Court does not consider this factor to weigh in favor of a change of venue given that it was the failure of all the defendants to inform the Court earlier of the potential conflict that has caused this delay. If defense counsel had raised the potential conflict of interest at the beginning of the case, when they were initially retained with Spy Factory funds — instead of waiting for the Government to advise the Court of the conflict after the motion papers were filed — this adjournment would not have been necessary and the original trial date of January 14,1997 would have been kept. 10. Other Special Elements a). Delay It is true that in change of venue cases, as the Government explains, “[o]ne of the factors to which the Second Circuit has paid special attention is a defendant’s delay in moving to transfer the case.” (Govt Mem. at 35 (citing United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir.1979); United States v. Maldonado-Rivera, 922 F.2d at 966)). In the instant case, there is no question that the defendants were woefully late not only in filing their motion to change venue, but also in apprising the Court of their intention to file such a motion. By the lead defense counsel’s own admission, such neglect was inexcusable. (See, e.g., 12/13/96 Tr. at 72 (“MR. GOLDSTEIN: Your Honor, you are correct. I was the major spokesman at each of those hearings with respect to the defense, and I take full responsibility, and the Court is right, and I tried to say that each time, one, that we did not say anything to the Court about it and did not apprise the Court either in writing or at the numerous hearings we had, and we did have full opportunity to do so.”)). As the Government argues, “at each of the conferences before this Court, the defendants gave every indication that they intended to proceed with the trial in the Southern District of New York.” (Govt Mem. at 36). The original indictment in this case was returned in August of 1995. The Court held an initial status conference on September 28,1995. At that conference, both sides spoke of the enormous amount of discovery that was to take place; however, the defendants did not mention the possibility that they might file a motion to change venue, even though “the Government offered and the Court directed the Government to get all of the discovery centralized in New York” (Govt Mem. at 37) — a laborious and expensive process that might have been avoided if the Court had been informed earlier of the defendants’ intent to file a motion to change venue. In addition, at that same conference, the defendants “involved this Court in the discovery process by having this Court review all of the allegedly attorney-client privileged documents.” (Govt Mem. at 37 (citing transcripts)). Finally, before the parties left the conference, the Court instructed defense counsel to “tell me or [] be prepared to discuss with me the nature of the motion [sic] that you are thinking of making” at the next conference. (Govt Sur-Reply on Venue at 5 (quoting 9/28/85 Tr. at 16)). The parties returned to the Court on January 17, 1996, for another conference where discovery and privilege issues were discussed, but, again, the defendants did not mention a potential change of venue motion, even though the Court did inquire of the timing of motions in general. (See Govt Sur-Reply on Venue at 5). Two months later, on March 15, 1996, the parties again appeared before the Court to resolve privilege issues and to discuss possible motions, but defense counsel again did not mention the venue motion. Then at the May 6,1996 conference, a motion and trial schedule was set. Despite the fact that a January 1997 trial date was set, and that several possible pretrial motions were named, the defendants still failed to mention the fact that a change of venue might be among the defense motions. Mr. Goldstein, lead counsel for the defense, only mentioned the following: There are at least two motions that I would like to ask for leave — I will do that in writing and submit [sic] the Court with reasons. But obviously the question of the [constitutionality of] the statute, it is a question, at least with respect to this statute, that is going to be one of first impression.... The other one deals with motions to suppress, particularly if we consolidate them into one mowing [sic]. (Govt Sur-Reply on Venue at 6 (quoting 5/6/96 Tr. at 5)). Even though Spy Factory had stopped paying their legal fees months earlier and defendant Ford had left Spy Factory’s employment and defendant Richardson was imminently to leave to start a family business, at the August 26,1996 conference, held more than two months after the defendants had been arraigned on the Superseding Indictment — and well after the financial impact of the ex parte order was patently clear — “the defendants raised several issues with this Court, all of which indicated that they planned to go to trial in the Southern District of New York.” (Govt Mem. at 38). “For instance, attorneys for Ronald Kimball, on behalf of all defendants, agreed to meet with the Government and the Southern District of New York’s jury clerk to discuss a process for jury selection.... Counsel also inquired about this Court’s requirements for the presence of local counsel during a trial in the Southern District of New York.” (Id.). Despite the fact that the Court emphasized to defense counsel that the January trial date would not be moved “[b]arring an act of God,” (Govt Mem. at 38 (citing 8/26/96 Tr. at 27)) defense counsel still failed to raise the issue of the venue motion, even though they had to have known that such a motion would have a significant impact on the timing of the trial. In the face of this inexcusable delay, it is of little significance that defendants point out that both of the cases relied upon by the Government involved situations in which the defendant(s) filed their motions “virtually on the eve of trial” and, more importantly, after the filing of pre trial motions. (Defs.’ Venue Reply at 6-7). In fact, defendants’ contention is misleading upon a close reading of the cases relied upon by the Government. While it is true that in both United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991) and United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir.1979), the change of venue motions were submitted after the filing of pretrial motions, in neither case was the delay between the indictment and the filing of the venue motion as great as it is in the instant case. For example, in United States v. Maldonado-Rivera, 922 F.2d 934, 966 (2d Cir.1990), cert. denied, 501 U.S. 1211, 111 S.Ct. 2811, 115 L.Ed.2d 984 (1991), the defendants filed their motion “some nine months after commencement of the prosecution, after discovery was nearly complete, after substantive motions had been filed, and on the eve of the court’s setting a date for trial.” Here, of course, defendants filed their motion over one year after the “commencement of the prosecution;” after the “discovery was nearly complete,” and not just “on the eve of the court’s setting a date for trial,” but actually on the eve of the trial itself. Similarly, in United States v. Keuylian, 602 F.2d 1033, 1038 (2d Cir.1979), the Second Circuit upheld a denial of change of venue where the motion was filed only four months after the indictment. Therefore, even though the defendants in the instant case filed their venue motion together with the rest of the pretrial motions, and even though the complexity of the case and the extent of discovery might explain to some extent why the defendants waited so long to file their venue motion, there is no explanation nor excuse for why defense counsel failed earlier to bring to the Court’s attention the possibility that such a motion was being contemplated. In short, defense counsel should have brought to the Court’s attention the fact that they would seek a change of venue so the Court could require defendants to file such a motion much earlier in the court proceedings, before the Court ruled on numerous discovery questions, privilege issues, and other pretrial matters that have consumed over one year of this Court’s calendar. (12/13/96 Tr. at 61, 63, 72-74). Because of defendants’ delay, a transfer of the action to the Western District of Texas at this late stage would necessitate not only that the new judge be bound by important decisions already made by this Court, but also that the Western District of Texas judge duplicate the efforts made by this Court to become familiar with the case. Such a prospect does not comport with the efficient or fair administration of justice and this Court will not condone the delay occasioned by the defendants’ conduct. Therefore, the defendants’ delay not only in filing the motion to change venue, but also their delay in informing the Court of their intent to file the motion, weighs qualitatively and heavily in favor of retaining the trial in the Southern District. In sum, then, having considered with great care each of the above factors, the Court concludes that the defendants have not shown that the interests of justice require a transfer of this case. I find that most of the factors, such as the location of witnesses, events, counsel, documents and records, as well as the relative accessibility of the respective venues, weigh in favor of neither party. The factors weighing most strongly in the favor of the Government are the docket conditions of each district — to the extent that a transfer would inevitably necessitate some delay in the trial date — and the defendants’ delay in bringing the motion to change venue. Also, because all counsel except one now resides in New York, this factor now weighs more in the Government’s favor than in the defendants’. On the other hand, the factors weighing in favor of transferring venue are the location of the defendants, the potential for disruption of the defendants’ businesses and employment, and the defendants’ expenses in trying the case in New York. Because the strongest of these factors — namely the tremendous expense the defendants would be forced to undertake in trying the case in New York— has been largely eviscerated by appointment of CJA counsel and the Government’s offer to pay for other expenses, I find that a change of venue is unnecessary and not in the interests of justice. Although there is still a potential for disruption of the defendants’ businesses and personal life, I find that this factor, standing alone, does not outweigh the countervailing considerations for keeping the ease here: defendants’ delay in bringing this matter to my attention and the further delay such a transfer would occasion. See e.g., United States v. United States Steel Corp., 233 F.Supp. 154, 156 (S.D.N.Y.1964) (providing that “mere inconvenience, interference with one’s routine occupational and personal activities, and other incidental burdens which normally follow when one is called upon to resist a serious charge do not ipso facto make the necessary showing that a transfer is required in the interest of justice. As a general rule a criminal prosecution should remain in the original district.”); cf. United States v. Stephenson, 895 F.2d 867, 875 (2d Cir.1990) (reviewing district court’s decision for abuse of discretion and holding that “[although [the defendant] points to several considerations favoring the [alternate forum] as a more convenient forum, the residences of a number of Government witnesses and the location of the prosecutor and the documents and tape recordings relevant to the case against [the defendant] favored holding the trial in the Southern District.”). Furthermore, to the extent that there is a “policy” favoring the trial of defendants where they reside, this “policy” is in tension with the more general presumption that “a criminal prosecution should be retained in the original district.” United States v. Posner, 549 F.Supp. 475, 477 (S.D.N.Y.1982) (citing cases). Hence, because “the burden is on the moving defendant to justify a transfer under Rule 21(b),” United States v. Aronoff, 463 F.Supp. 454, 460 (S.D.N.Y.1978), and defendants here have not persuasively proven why the interests of justice require a transfer, I decline to change venue in this case. Instead I will follow the practice of Judge Lasker in United States v. Wheaton, 463 F.Supp. 1073, 1078 (S.D.N.Y.), aff’d sub nom., United States v. Williams, 614 F.2d 1293 (2d Cir.1979), and condition the denial of the transfer motion on the Government’s “representation to make available to the defendant, upon a good faith showing of need, reasonable funds for transportation to New York City and for subsistence for the defendant and witnesses residing in the [alternate venue] whom he may reasonably call in his defense.” See also United States v. Haley, 504 F.Supp. 1124, 1129 (E.D.Pa.1981) (providing that “[t]o lessen this impact and the concomitant prejudice which inures to indigent defendants, the Government may offer to pay travel and subsistence expenses for defendants and their witnesses. Indeed the Government has done so in other instances where it opposed a motion to transfer.”) (citing Wheaton). II. DEFENDANTS’ MOTION TO DISMISS FOR VAGUENESS A. STANDARD FOR VAGUENESS It has been called the “first essential of due process of law,” Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), that statutes, particularly statutes whose violation carries criminal consequences, provide notice to citizens that their conduct is potentially unlawful. The rationale for this long-tested principle of due process has been articulated by the Supreme Court and is frequently reiterated: It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Grayned v. Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). Under due process, a statute may be challenged for vagueness on its face or vagueness as applied to the defendants’ specific conduct. 1. Vague On Its Face In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982), the Supreme Court stated that “[i]n a facial challenge to the overbreadth and vagueness of a law, a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.” The Supreme Court explained that if a statute does not reach constitutionally protected conduct, “then the overbreadth challenge must fail,” and the court must apply the statute to the particular conduct charged to determine whether it is impermissibly vague. Id.; see also Levas & Levas v. Village of Antioch, 684 F.2d 446, 451 (7th Cir.1982) (“a finding of unconstitutional vagueness cannot be based on uncertainty at the margins, or on a parade of bizarre hypothetical cases: problems of that order can be resolved in challenges to the ordinance as applied.”). A statute that does not involve constitutionally protected conduct can only be struck down for facial vagueness if it is vague in all of its applications. As the Second Circuit has stated, “[a] defendant claiming a statute is fatally vague on its face must show that the statute is vague ‘in the sense that no standard of conduct is specified at all.... The defendant bears the burden of showing the statute to be ‘impermissibly vague in all of its applications.’” United States v. Nadi, 996 F.2d 548, 550 (2d Cir.) (citations omitted), cert. denied, 510 U.S. 933, 114 S.Ct. 347, 126 L.Ed.2d 311 (1993). The statute at issue here does not implicate any constitutionally protected conduct. During oral argument, defendants, after having neglected to raise the issue in their written submissions to the Court, briefly raised the possibility that the statute might implicate First Amendment concerns because “2512 in many respects goes to speech. It talks about people talking. It talks about expressions of speech, interceptions of speech.” (12/13/96 Tr. at 89). I find this argument unpersuasive. Although there may be a constitutional right to hear there has never been articulated nor implied any constitutional right to hear the private speech of others or to be provided with a specific means to record one’s own speech. Therefore, because “vagueness- challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute’s facial validity,” Nadi, 996 F.2d at 550, I undertake a vagueness-as-applied analysis in this case. 2. Vague As Applied The heart of the case, therefore, is the question whether Section 2512 is vague as applied to the particular facts in question. See United States v. Santos, 64 F.3d 41, 47 (2d Cir.1995) (“Vagueness challenges that do not involve the First Amendment must be examined in light of the specific facts of the case at hand and not with regard to the statute’s facial validity.”), vacated on other grounds, — U.S. —, 116 S.Ct. 1038, 134 L.Ed.2d 186 (1996). The Court must examine the facial vagueness challenge and, “assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982); see also United States v. Nadi, 996 F.2d 548, 550 (2d Cir.) (“The defendant bears the burden of showing the statute to be ‘impermissibly vague in all of its applications.’”) (citations omitted), cert. denied, 510 U.S. 933, 114 S.Ct. 347, 126 L.Ed.2d 311 (1993). “A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others. A Court should therefore examine the complainant’s conduct before analyzing other hypothetical applications of the law.” Hoffman Estates 455 U.S. at 495, 102 S.Ct. at 1191. A two-part test is used to assess whether a particular statute is unconstitutionally vague as applied: When the challenge is vagueness ‘as applied,’ there is a two-part test: a court must first determine whether the statute *give[s] the person of ordinary intelligence a reasonable opportunity to know what is prohibited’ and then consider whether the law provides explicit standards for those who apply [it].... Because the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness. Nadi, 996 F.2d at 550; Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903 (1983) (“As generally stated, the void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”). In conducting a vagueness as applied analysis, the Seventh Circuit has noted that “criminal laws are more searehingly examined for vagueness, because the consequences of imprecision are severe, than are either pure economic regulation ... or civil legislation.” Levas & Levas v. Village of Antioch, 684 F.2d 446, 452 (7th Cir.1982). That same Court explained that “in the vagueness context, the canons of construction that would narrow a statute to avoid constitutional problems have no place. The statute must be construed to give full effect to any possible ambiguities.” Id. at 452. a) Fair Notice to Persons of Ordinary Intelligence The crux of this prong of the vagueness analysis is the requirement that the statute be sufficiently clear to provide notice to potential wrongdoers that the conduct in which they are engaged has the potential for civil or criminal liability. As the Second Circuit has explained, “Objections to vagueness ... rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk.” United States v. Strauss, 999 F.2d 692, 698 (2d Cir.1993) (citing Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 1857-58, 100 L.Ed.2d 372 (1988)). When assessing a statute for vagueness under this prong, only the actual conduct of the defendants involved can be considered; the Court must disregard other, more innocent or questionable hypothetical conduct under the statute. It has been emphatically reiterated that “[b]ecause the statute is judged on an as applied basis, one whose conduct is clearly proscribed by the statute cannot successfully challenge it for vagueness.” Nadi, 996 F.2d at 550. In elucidating what level of notice is required to survive a vagueness challenge, the Supreme Court has noted that statutes containing terms of degree are problematic in providing notice to potential wrongdoers. See Gentile v. State Bar of Nevada, 501 U.S. 1030, 1047, 111 S.Ct. 2720, 2730, 115 L.Ed.2d 888 (1991) (providing that statute allowing criminal defense attorney to describe to the public the “general nature of the defense without elaboration” was problematic because “general” and “elaboration” “are both classic terms of degree” that do not provide sufficient guidance to the public in determining where their conduct is unlawful.) In Gentile, the Supreme Court further insisted that it was an unfortunate indication of a statute’s vagueness when an individual had studied the law and still could not discern how to abide by its dictates. As the Court explained, “[t]he fact that Gentile was found in violation of the Rules after studying them and making a conscious effort at compliance demonstrates that Rule 177 creates a trap for the wary as well as the unwary.” Gentile, 501 U.S. at 1051, 111 S.Ct. at 2732 (1991). On the other hand, it has been said that vagueness: standards should not, of course, be mechanically applied. The degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement — depends in part on the nature of the enactment. Thus, economic regulation is subject to a less strict vagueness test because its subject matter is often more narrow, and because businesses, which face economic demands to plan behavior carefully, can be expected to consult relevant legislation in advance of action. Indeed, the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process. Hoffman Estates, 455 U.S. at 498, 102 S.Ct. at 1193. Finally, “the Court has recognized that a scienter requirement may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Id. at 499, 102 S.Ct. at 1193. The Second Circuit has explained that “[i]n fact, the inclusion of an intent provision will often save an otherwise vague statute.” United States v. Schneiderman, 968 F.2d 1564 (2d Cir.1992) (“The Supreme Court has repeatedly held that the constitutionality of a vague statutory standard is closely related to whether that standard incorporates a requirement of mens rea.”), cert. denied, 507 U.S. 921, 113 S.Ct. 1283, 122 L.Ed.2d 676 (1993); Strauss, 999 F.2d at 698 (same). b) Sufficient Guidance for Enforcers of the Law The second prong of the vagueness analysis looks to whether the given statute is sufficiently clear for prosecutors and police officers to enforce in a non-arbitrary and non-discriminatory fashion. The underlying fear is that “[w]here the legislature fails to provide such minimal guidelines, a criminal statute may permit ‘a standardless sweep’ [that] allows policemen, prosecutors, and juries to pursue their personal predilections.” Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75. L.Ed.2d 903 (1983). While the courts recognize that “[e]learly, ‘[e]ffective law enforcement’ often requires the exercise of some degree ... of [prosecu-torial] judgment [and] this alone does not render a statute unconstitutional,” Nadi, 996 F.2d at 550 (citations omitted), the courts do scrutinize the statute to discern whether its language “is so imprecise that discriminatory enforcement is a real possibility.” Gentile, 501 U.S. at 1051, 111 S.Ct. at 2732. B. ASSESSING THE VAGUENESS OF SECTION 2512 AS APPLIED TO DEFENDANTS Even though the Court must assess the vagueness of Section 2512 as it applies to the specific conduct of defendants and not according to the facial vagueness of the terms of the statute itself, the Court nevertheless must first look to the plain meaning of the terms of the statute in order to discern whether those terms impart sufficient clarity to a person of ordinary intelligence. The following is an excerpt from the relevant portion of the statute: § 2512. Manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices prohibited (1) Except as otherwise specifically provided in this chapter, any person who intentionally— ... (b) manufactures, assembles, possesses, or sells any electronic, mechanical, or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral, or electronic communications, and that such device or any component thereof has been or will be sent through the mail or transported in interstate or foreign commerce; .... 18 U.S.C. § 2512(1)(b) (emphasis added). Defendants are correct that there has been no extensive examination of whether Section 2512 is unconstitutionally vague. The few cases that have considered the proposition have concluded in conclusory terms that the statute is not vague, however. See e.g., United States v. Martin, 1 F.3d 1250, 1993 WL 298884, *1-*2 (10th Cir.1993) (unpublished disposition) (concluding in a satellite scrambler ease that “the language of § 2512(l)(b) was sufficiently clear to put [the defendant] on notice that his conduct was prohibited.”); id. at *2 (providing that “[w]here, as here, the language of the statute plainly covers the defendant’s actions, the statute need not have been previously held applicable on the same facts to survive a vagueness attack.”); United States v. Novel, 444 F.2d 114 (9th Cir.1971) (concluding in a one paragraph opinion “that the statute is not unconstitutionally vague and ambiguous”); cf. United States v. Bast, 495 F.2d 138, 144 (D.C.Cir.1974) (rejecting the argument that § 2512 and § 2511 are in conflict rendering either one inscrutable but providing that “[a]ny claim that fair notice is lacking is ... appropriately reached on a more complete record, after the Government has had an opportunity to establish scienter, for the scienter requirement needed for willful conduct may rescue a statute from the infirmity of vagueness.”). But see United States v. Hochman, 809 F.Supp. 202, 204 (E.D.N.Y.1992) (noting that the language in the statute providing that the devices are “primarily useful for the purposes of surreptitious interception” is “troublesome.”). Because the proposition has not been conclusively established by any court and certainly has not received any significant analysis, I consider the question of § 2512’s vagueness, if any, to be of first impression in this Circuit. Defendants point to two crucial concepts within the statute that render its meaning inscrutable to the person of ordinary intelligence: “primarily useful” and “surreptitious.” Defendants contend that the pivotal term of the section, “surreptitious” is nowhere defined in the statute and that its plain meaning or dictionary definition “engender intractable ambiguity.” (Defs’ Vagueness Mem. at 1). Defendants also argue t