               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                       Docket No. 40175

STATE OF IDAHO,                                 )    2014 Opinion No. 35S
                                                )
       Plaintiff-Appellant,                     )    Filed: May 12, 2014
                                                )
v.                                              )    Stephen W. Kenyon, Clerk
                                                )
PHILIP MILTON RUGGIERO,                         )    SUBSTITUTE OPINION
                                                )    THE COURT’S PRIOR
       Defendant-Respondent.                    )    OPINION DATED APRIL 28,
                                                )    2014 IS HEREBY WITHDRAWN
                                                )

       Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada
       County. Hon. Deborah A. Bail, District Judge.

       Order dismissing information charging three counts of preparing false
       evidence, reversed.

       Hon. Lawrence G. Wasden, Attorney General; Jessica M. Lorello, Deputy
       Attorney General, Boise, for appellant. Jessica M. Lorello argued.

       Nevin, Benjamin, McKay & Bartlett LLP; Robyn Fyffe, Boise, for respondent.
       Robyn Fyffe argued.
                 ________________________________________________
LANSING, Judge
       The State appeals from the district court’s order dismissing the information charging
Philip Milton Ruggiero with three counts of preparing false evidence. For the reasons set forth
below, we reverse.
                                               I.
                                 FACTS AND PROCEDURE
       Ruggiero was charged with misdemeanor stalking. While that case was pending, three
letters were sent to the magistrate assigned to the case. The letters purported to be from the
alleged stalking victim and two other persons indicating they had knowledge of relevant facts
concerning the stalking charge. All three letters supported the proposition that Ruggiero was not
guilty of the charge. The letters were forwarded to the Boise City prosecutor handling the
stalking case, who contacted the alleged victim to inquire whether she had written a letter. The


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alleged victim said she had not and signed an affidavit to that fact. A detective interrogated
Ruggiero as to whether he had written the letters, which Ruggiero denied.           Nevertheless,
Ruggiero was charged by information with three counts of preparing false evidence in violation
of Idaho Code § 18-2602. Following a hearing, a magistrate found probable cause to bind
Ruggiero over to district court on the three charges.
       Ruggiero filed a motion to dismiss, arguing there was not substantial evidence presented
at the preliminary hearing that he committed the crimes alleged.            He also argued that
section 18-2602 infringes upon speech protected by the First Amendment, as interpreted by the
Supreme Court in United States v. Alvarez, 567 U.S. ___, 132 S. Ct. 2537 (2012), and argued
section 18-2602 is void for vagueness. After a hearing, the district court granted the motion to
dismiss, relying on Alvarez to find that the statute violated Ruggiero’s First Amendment rights.
The State now appeals.
                                                II.
                                           ANALYSIS
A.     First Amendment
       The State contends the district court erred by determining that section 18-2602
unconstitutionally infringed on Ruggiero’s First Amendment rights. Where an issue presented
involves the constitutionality of a statute, we review the district court’s determination de novo.
State v. Bonner, 138 Idaho 254, 256, 61 P.3d 611, 613 (Ct. App. 2002); State v. Richards, 127
Idaho 31, 34, 896 P.2d 357, 360 (Ct. App. 1995).
       Section 18-2602 provides:
       Preparing false evidence. -- Every person guilty of preparing any false or
       antedated book, paper, record, instrument in writing, or other matter or thing, with
       intent to produce it, or allow it to be produced, for any fraudulent or deceitful
       purpose, as genuine or true, upon any trial, proceeding or inquiry whatever,
       authorized by law, is guilty of felony.
       In granting Ruggiero’s motion to dismiss, the district court noted that a magistrate is not
ethically permitted to receive or review ex parte communication; therefore, the district court
reasoned that, as applied in the instance at hand, section 18-2602 was being used to punish a
false statement that could not be used in evidence and could not be used to gain any material
advantage. The district court determined that section 18-2602, “in the context of criminalizing a
false or forged letter sent to a judge who is not ethically permitted to consider the ex parte


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communication for any reason punishes falsity alone” and was therefore unconstitutional. In
coming to this conclusion, the court relied heavily on the United States Supreme Court’s
decision in Alvarez, 567 U.S. ___, 132 S. Ct. 2537, which invalidated, under the First
Amendment, a federal statute criminalizing the making of false statements that one has received
certain military awards.
         As a general matter, the First Amendment means that government has no power to
restrict expression because of its message, ideas, subject matter, or content. Id. at ___, 132 S. Ct.
at 2543; Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002). As a result, the
Constitution demands that content-based restrictions on speech be presumed invalid and that the
government bear the burden of showing their constitutionality. Alvarez, 567 U.S. at ___, 132 S.
Ct. at 2543-44. The Supreme Court has repeatedly recognized, however, that certain categories
of speech do not enjoy the benefit of full First Amendment protection. See id. at ___, 132 S. Ct.
at 2544; United States v. Stevens, 559 U.S. 460, 468-69 (2010).
         At issue in Alvarez was the constitutionality of the Stolen Valor Act of 2005, 18 U.S.C.
§ 704(b) (2012), 1 which provided, in relevant part:
         (b)    FALSE CLAIMS ABOUT RECEIPT OF MILITARY DECORATIONS
         OR MEDALS. -- Whoever falsely represents himself or herself, verbally or in
         writing, to have been awarded any decoration or medal authorized by Congress
         for the Armed Forces of the United States . . . shall be fined under this title,
         imprisoned not more than six months, or both.
Alvarez, 567 U.S. at ___, 132 S. Ct. at 2543. Alvarez challenged the constitutionality of the
statute after the federal government filed charges against him for falsely telling fellow district
water board members, at a public meeting, that he had been awarded a Congressional Medal of
Honor.
         The Supreme Court struck down the Stolen Valor Act in a six-to-three decision, although
no opinion garnered a majority of the Court. Writing for the four-justice plurality, 2 Justice
Kennedy began by articulating the general rule that “content-based restrictions on speech have

1
       The Stolen Valor Act was amended in 2013 to comport with the Supreme Court’s holding
in United States v. Alvarez, 567 U.S. ___, 132 S. Ct. 2537 (2012).
2
        Two concurring justices provided the requisite votes to overturn the Stolen Valor Act, but
rejected the plurality’s “strict categorical analysis” to reach this result. Alvarez, 567 U.S. at ___,
132 S. Ct. at 2551. Instead, the concurrence stated intermediate scrutiny should apply. Id. at
___, 132 S. Ct. at 2551-52.

                                                  3
been permitted, as a general matter, only when confined to the few ‘historic and traditional
categories [of expression] long familiar to the bar.’” Id. at ___, 132 S. Ct. at 2544 (quoting
Stevens, 559 U.S. at 468). 3 The plurality listed the following such categories: incitement,
obscenity, defamation, speech integral to criminal conduct, fighting words, child pornography,
fraud, true threats, and speech presenting grave and imminent danger. Id. Noticeably absent
from this list, the plurality noted, is a general exception to the First Amendment for false
statements.   Id.   The plurality surmised that this absence “comports with the common
understanding that some false statements are inevitable if there is to be an open and vigorous
expression of views in public and private conversation, expression the First Amendment seeks to
guarantee.” Id.
       In response to the government’s argument that Supreme Court precedent has excluded
false statements from First Amendment protections, the Supreme Court distinguished the
examples cited:
               These quotations all derive from cases discussing defamation, fraud, or
       some other legally cognizable harm associated with a false statement, such as an
       invasion of privacy or the costs of vexatious litigation. In those decisions the
       falsity of the speech at issue was not irrelevant to our analysis, but neither was it
       determinative. The Court has never endorsed the categorical rule the Government
       advances: that false statements receive no First Amendment protection. Our
       prior decisions have not confronted a measure, like the Stolen Valor Act, that
       targets falsity and nothing more.
Id. at ___, 132 S. Ct. at 2545 (citations omitted). In this context, the plurality also addressed
three examples (raised by the government) of regulations of false speech that courts have
generally found permissible: the federal criminal prohibition of a false statement made to a
government official, federal and state laws punishing perjury, and federal prohibitions of the
false representation that one is speaking as a government official or on behalf of the government.
However, the plurality reasoned that these restrictions “do not establish a principle that all
proscriptions of false statements are exempt from exacting First Amendment scrutiny.” Id. at

3
        United States v. Stevens, 559 U.S. 460 (2010), is a landmark First Amendment case, in
which the Supreme Court rejected a balancing test (the value of the speech in question against its
societal cost) to determine when a category of speech should be excluded from constitutional
protection in favor of emphasizing narrow classes of speech that were historically unprotected.
Having set forth this analytical framework, the Court struck down a federal law criminalizing
commercial creation, sale, or possession of depictions of animal cruelty after finding no
historical First Amendment restrictions existed for depictions of animal cruelty.

                                                4
___, 132 S. Ct. at 2546. Rather, the plurality found each of these offenses were distinguishable
from the criminalization of pure speech.        In regard to the federal statute prohibiting false
statements to government officials, which punishes “whoever, in any matter within the
jurisdiction of the executive, legislative, or judicial branch of the Government . . . makes any
materially false, fictitious, or fraudulent statement or representation,” 18 U.S.C. § 1001, the
plurality noted the statute’s prohibition of false statements “made to Government officials, in
communications concerning official matters, does not lead to the broader proposition that false
statements are unprotected when made to any person at any time.” Alvarez, 567 U.S. at ___, 132
S. Ct. at 2546 (emphasis added). The plurality noted the same point could be made as to what
the Supreme Court has repeatedly confirmed is the unquestioned constitutionality of both federal
and state perjury statutes, reasoning:
       It is not simply because perjured statements are false that they lack First
       Amendment protection. Perjured testimony “is at war with justice” because it can
       cause a court to render a “judgment not resting on truth.” In re Michael, 326 U.S.
       224, 227 (1945). Perjury undermines the function and province of the law and
       threatens the integrity of judgments that are the basis of the legal system. See
       United States v. Dunnigan, 507 U.S. 87, 97 (1993) (“To uphold the integrity of
       our trial system . . . the constitutionality of perjury statutes is unquestioned”).
       Unlike speech in other contexts, testimony under oath has the formality and
       gravity necessary to remind the witness that his or her statements will be the basis
       for official government action, action that often affects the rights and liberties of
       others. Sworn testimony is quite distinct from lies not spoken under oath and
       simply intended to puff up oneself.
Alvarez, 567 U.S. at ___, 132 S. Ct. at 2546.
       Finally, the plurality distinguished statutes prohibiting false representation that one is
speaking on behalf of the government or prohibiting impersonating a government officer in that
they “also protect the integrity of Government processes, quite apart from merely restricting false
speech.” Id. To the extent such statutes “implicate fraud or speech integral to criminal conduct,”
the plurality reasoned, they were inapplicable to the issue at hand. The plurality summarized:
               As our law and tradition show, then, there are instances in which the
       falsity of speech bears upon whether it is protected. Some false speech may be
       prohibited even if analogous true speech could not be. This opinion does not
       imply that any of these targeted prohibitions are somehow vulnerable. But it also
       rejects the notion that false speech should be in a general category that is
       presumptively unprotected.
Id. at ___, 132 S. Ct. at 2546-47.


                                                  5
       Having established that the Court would not create a new category of unprotected speech
in regard to false statements, the plurality turned to the constitutionality of the Stolen Valor Act
as a content-based speech prohibition. Noting that “[t]he Act by its plain terms applies to a false
statement made at any time, in any place, to any person,” the plurality surmised that the
“sweeping, quite unprecedented reach of the statute puts it in conflict with the First
Amendment.” Id. at ___, 132 S. Ct. at 2547. The plurality continued:
       Here the lie was made in a public meeting, but the statute would apply with equal
       force to personal, whispered conversations within a home. The statute seeks to
       control and suppress all false statements on this one subject in almost limitless
       times and settings. And it does so entirely without regard to whether the lie was
       made for the purpose of material gain. . . .
                Permitting the government to decree this speech to be a criminal offense,
       whether shouted from the rooftops or made in a barely audible whisper, would
       endorse government authority to compile a list of subjects about which false
       statements are punishable. That governmental power has no clear limiting
       principle. Our constitutional tradition stands against the idea that we need
       Oceania’s Ministry of Truth. See G. ORWELL, NINETEEN EIGHTY-FOUR (1949)
       (Centennial ed. 2003). Were this law to be sustained, there could be an endless
       list of subjects the National Government or the States could single out. Where
       false claims are made to effect a fraud or secure moneys or other valuable
       considerations, say offers of employment, it is well established that the
       Government may restrict speech without affronting the First Amendment. See,
       e.g., Virginia Bd. of Pharmacy [v. Virginia Citizens Consumer Council, Inc., 425
       U.S. 748, 771 (1976)] (noting that fraudulent speech generally falls outside the
       protections of the First Amendment). But the Stolen Valor Act is not so limited in
       its reach. Were the Court to hold that the interest in truthful discourse alone is
       sufficient to sustain a ban on speech, absent any evidence that the speech was
       used to gain a material advantage, it would give government a broad censorial
       power unprecedented in the Court’s cases or in our constitutional tradition.
Alvarez, 567 U.S. at ___, 132 S. Ct. at 2547-48.
       Having found, based on the preceding discussion, that the Act “conflicts with free speech
principles,” the plurality then proceeded to apply “exacting scrutiny” to the Stolen Valor Act,
determining it could not survive. 4 Id. at ___, 132 S. Ct. at 2548. Although recognizing that the
government had compelling interests in protecting the integrity of the Congressional Medal of
Honor, the plurality determined the government had not shown its chosen restriction on speech

4
        As a preface to applying “exacting scrutiny” after already having found the Act to be in
conflict with First Amendment principles, the plurality noted that “even when examined within
its own narrow sphere of operation, the Act cannot survive.” Alvarez, 567 U.S. at ___, 132 S. Ct.
at 2548.

                                                   6
was “‘actually necessary’” to achieve its interest or that the restriction was “‘the least restrictive
means among available, effective alternatives.’” Id. at ___, ___, 132 S. Ct. at 2549, 2551
(citations omitted).
        We are unconvinced that the Supreme Court’s decision in Alvarez, striking down the
Stolen Valor Act, dictates that section 18-2602 is unconstitutional. Unlike the Stolen Valor Act,
section 18-2602 does not target “falsity alone,” nor does it prohibit speech on “one subject in
almost limitless times and settings.” Alvarez, 567 U.S. at ___, ___, 132 S. Ct. at 2545,
2547. Rather, as the State points out, the statute’s reach is limited to a specific setting (“any trial,
proceeding or inquiry whatever”) where a false statement is offered for a particular purpose
(“with intent to produce it, or allow it to be produced, for any fraudulent or deceitful purpose”).
See I.C. § 18-2602. Thus, it is much more akin to the categories of false speech that the plurality
reaffirmed the government could criminalize without running afoul of the First Amendment:
false statements to federal officials, perjury, and impersonating government officials. Alvarez,
567 U.S. at ____, 132 S. Ct. at 2545-46. As discussed above, the plurality took pains to
distinguish these permissible crimes from that created under the Stolen Valor Act, noting both
the potential cognizable harm of each, which set them apart from statutes “merely restricting
false speech,” id. at ___, 132 S. Ct. at 2546, as well as the more limited scope of those statutes as
compared to the Stolen Valor Act. As to the latter consideration, the plurality distinguished the
federal statute prohibiting false statements to government officials, noting that, unlike the Stolen
Valor Act, the statute’s “prohibition on false statements made to Government officials, in
communications concerning official matters, does not lead to the broader proposition that false
statements are unprotected when made to any person, at any time, in any context.” Id. (citing
18 U.S.C. § 1001). As we noted above, section 18-2602 contains analogous limitations that
prevent the statute from criminalizing false statements in limitless contexts.
        As to the former consideration, the potential cognizable harm attendant to the preparation
of false evidence with the intent that it be produced for a fraudulent or deceitful purpose in a
court proceeding could certainly be considered as serious as the harm attendant to falsely
representing that one is speaking on behalf of the government and perjury, both recognized by




                                                   7
the Alvarez plurality as unprotected speech. 5 That the magistrate in this case was barred by
judicial canons from actually reading the letters is immaterial to the analysis of the
constitutionality of the statute. As the State points out, the statute bars preparing and submitting
such false statement with the intent it be considered--not that such false statement be actually
admitted into evidence. That the magistrate did not read the letters in this case does not, as
Ruggiero seems to assert, eliminate all potential harm accompanying his submission of the
letters. For example, the letters were forwarded to the handling prosecutor, who was forced to
expend resources determining their authenticity. Alvarez simply does not stand for the
proposition that the First Amendment categorically protects unsuccessful attempts to undermine
the judicial process by the assertion of false statements. Accordingly, the district court erred by
determining section 18-2602 is unconstitutional under the First Amendment and by dismissing
the charges on this basis.
B.     Substantial Evidence at the Preliminary Hearing
       Ruggiero contends that even if this Court finds that the district court erred by dismissing
the charges on First Amendment grounds, we should nonetheless affirm the dismissal because
the State presented insufficient evidence at the preliminary hearing for the magistrate to find
probable cause that he violated section 18-2602. See State v. Wagner, 149 Idaho 268, 270, 233
P.3d 199, 201 (Ct. App. 2010) (“An appellate court may affirm a lower court’s decision on a
legal theory different from the one applied by that court.”). Under Idaho law, a person charged
with a felony has the right to a preliminary hearing at which the magistrate court must determine
whether there is probable cause to believe the charged offense was committed and that the
defendant committed it. I.C. § 19-804; Idaho Criminal Rule 5.1. Depending upon the magistrate
court’s determination, a defendant will either be bound over to the district court to answer to the
charge or the charge will be dismissed. I.C. §§ 19-814, 19-815; I.C.R. 5.1. A defendant may
challenge a magistrate court’s finding of probable cause at the preliminary hearing by filing a
motion in the district court to dismiss the charge. I.C. § 19-815A. The probable cause standard
at a preliminary hearing does not require the State to prove the defendant guilty beyond a

5
        Specifically, the Alvarez plurality noted that prohibition of falsely representing that one is
speaking on behalf of the government protects “the integrity of Government processes, quite
apart from merely restricting false speech.” Alvarez, 567 U.S. at ___, 132 S. Ct. at 2546. As to
perjury, the court noted that it “undermines the function and province of the law and threatens
the integrity of judgments that are the basis of the legal system.” Id.

                                                  8
reasonable doubt. State v. Phelps, 131 Idaho 249, 251, 953 P.2d 999, 1001 (Ct. App. 1998). A
magistrate’s commitment will not be deemed an abuse of discretion, if under any reasonable
view of the evidence, including permissible inferences, it appears likely that an offense occurred
and that the accused committed it. Id. A finding of probable cause must be based upon
substantial evidence as to every material element of the offense charged. I.C.R. 5.1(b); State v.
Porter, 142 Idaho 371, 373, 128 P.3d 908, 910 (2005); State v. McLellan, 154 Idaho 77, 78, 294
P.3d 203, 204 (Ct. App. 2013).       This requirement may be satisfied through circumstantial
evidence and reasonable inferences to be drawn from that evidence by the committing
magistrate. State v. Munhall, 118 Idaho 602, 606, 798 P.2d 61, 65 (Ct. App. 1990). A reviewing
court will not substitute its judgment for that of the magistrate as to the weight of the evidence.
Id.   We will overturn a magistrate’s finding of probable cause to believe a defendant has
committed an offense only upon a showing that the magistrate abused its discretion. State v.
Reyes, 139 Idaho 502, 504, 80 P.3d 1103, 1105 (Ct. App. 2003).
        Ruggiero argues the magistrate erred by finding probable cause because the magistrate
did not properly interpret the phrase in the statute that the perpetrator must have intended that the
false evidence be “produced . . . upon any trial, proceeding or inquiry whatever.” I.C. § 18-2602.
He contends the magistrate erred by concluding this phrase was not limited to circumstances in
which the accused intends to produce the item during a proceeding such as a trial or hearing, but
rather finding it was sufficient that Ruggiero sent the item to the handling judge with the intent to
“produce it somewhere in the trial proceeding or inquiry and have somebody rely on it.” This
was in error, Ruggiero argues, because the phrase in the statute refers to an “actual
proceeding--whether a trial, motion hearing or an administrative hearing--and does not extend to
any correspondence simply because it was sent to the handling judge while a case is pending.”
Ruggiero further contends there was not substantial evidence in the record that he intended the
correspondence to be produced and relied upon in open court.
        Ruggiero’s arguments are unavailing. As noted above, probable cause may be satisfied
through reasonable inferences to be drawn from that evidence by the committing magistrate.
Munhall, 118 Idaho at 606, 798 P.2d at 65. It is a reasonable inference from the fact that
Ruggiero sent letters, which purported to contain relevant facts concerning his culpability, to the
presiding magistrate of his pending criminal case, that Ruggiero intended the evidence, or at least
the facts therein, be considered in an “actual proceeding” pertaining to his criminal case.


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Certainly, the assertions contained in the letters that Ruggiero was innocent would be of no use
to him unless they were actually considered. That Ruggiero’s attempt at doing so was somewhat
clumsy and ultimately ineffective does not negate any intent he had in actually producing and
sending the letters. As we indicated above, a probable cause determination will be upheld if,
under any reasonable view of the evidence, including permissible inferences, it appears likely
that an offense occurred and that the accused committed it. Phelps, 131 Idaho at 251, 953 P.2d
at 1001. That standard was clearly met here. The magistrate did not err by finding there was
probable cause to believe that Ruggiero committed the three charges of preparing false evidence.
C.     Vagueness
       As an alternative basis for dismissal of his charges, Ruggiero argues section 18-2602 is
void for vagueness. The constitutionality of a statute is a question of law, over which this Court
exercises de novo review. State v. Cobb, 132 Idaho 195, 197, 969 P.2d 244, 246 (1998). An
appellate court is obligated to seek an interpretation of a statute that will uphold its
constitutionality. Id. In addition, “a statute should not be held void for uncertainty if any
practical interpretation can be given it.” Id.
       The void-for-vagueness doctrine is premised upon the Due Process Clause of the
Fourteenth Amendment to the United States Constitution. This doctrine requires that a statute
defining criminal conduct be worded with sufficient clarity and definiteness that ordinary people
can understand what conduct is prohibited and that the statute be worded in a manner that does
not allow arbitrary and discriminatory enforcement. State v. Korsen, 138 Idaho 706, 711, 69
P.3d 126, 131 (2003) abrogated on other grounds by Evans v. Michigan, ___ U.S. ___, 133 S.
Ct. 1069 (2013). It is a basic principle of due process that an enactment is void for vagueness if
its prohibitions are not clearly defined. Id. Furthermore, as a matter of due process, no one may
be required at the peril of loss of liberty to speculate as to the meaning of penal statutes. Id. at
711-12, 69 P.3d at 131-32. The Supreme Court has held that due process requires that all “be
informed as to what the State commands or forbids” and that “men of common intelligence” not
be forced to guess at the meaning of the criminal law. Id. at 712, 69 P.3d at 132; Cobb, 132
Idaho at 197, 969 P.2d at 246. A statute may be void for vagueness if it fails to give adequate
notice to people of ordinary intelligence concerning the conduct it proscribes or if it fails to
establish minimal guidelines to govern law enforcement or others who must enforce the statute.




                                                 10
Korsen, 138 Idaho at 712, 69 P.3d at 132; State v. Larsen, 135 Idaho 754, 756, 24 P.3d 702, 704
(2001).
           A statute may be challenged as unconstitutionally vague on its face or as applied to a
defendant’s conduct. Korsen, 138 Idaho at 712, 69 P.3d at 132. For a “‘facial vagueness’”
challenge to be successful, “‘the complainant must demonstrate that the law is impermissibly
vague in all of its applications.’” Id. (quoting Village of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 497 (1982)).           In other words, the challenger must show the
enactment is invalid in toto.        Id.   To succeed on an “as applied” vagueness challenge, a
complainant must show that the statute, as applied to the defendant’s conduct, failed to provide
fair notice that the defendant’s conduct was proscribed or failed to provide sufficient guidelines
such that the police had unbridled discretion in determining whether to arrest him. Id. A “facial
vagueness” analysis is mutually exclusive from an “as applied” analysis. Id.
           Ruggiero contends section 18-2602 is void for vagueness as applied in this case because,
at the preliminary hearing, the magistrate construed the phrase in “any trial proceeding or inquiry
whatever” as including a perpetrator’s intent to produce it “somewhere in the case and have
someone rely on it.” This interpretation, he contends, fails to give notice to people of ordinary
intelligence concerning the conduct proscribed by section 18-2602 and fails to establish minimal
guidelines to govern law enforcement or others who must enforce the statute.
           As the State points out, a magistrate’s interpretation of a statute does not render a statute
unconstitutionally vague; rather, it is this Court that is charged with determining the validity of a
statute.      Proceeding from this premise, we are unconvinced that section 18-2602 is
unconstitutionally vague as applied to Ruggiero’s conduct. The plain language of the statute
provided fair notice that it was illegal for Ruggiero to prepare false documents and submit them
to the magistrate with the intent they be produced in his criminal proceeding as “genuine or true”
for a “fraudulent or deceitful purpose,” which, in this case, was apparently to avoid culpability.
I.C. § 18-2602. Ruggiero provides no convincing argument that the statute allows for “arbitrary
and discriminatory enforcement” in violation of his due process rights. See Korsen, 138 Idaho at
711, 69 P.3d at 131. Thus, the statute is not unconstitutionally vague such that Ruggiero’s
charges must be dismissed.




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                                               III.
                                        CONCLUSION
       The district court erred by determining that section 19-2602 unconstitutionally infringes
upon speech protected by the First Amendment. The magistrate did not err by finding probable
cause to believe that Ruggiero committed the three charges of preparing false evidence and by
determining that the statute is not void for vagueness as applied to Ruggiero’s conduct.
Accordingly, we reverse the district court’s order dismissing the charges.
       Judge GRATTON CONCURS.
       Chief Judge GUTIERREZ sat but did not participate in the Court’s decision.




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