U.S. v. Bowker
| Citation | 372 F.3d 365 |
| Decision Date | 11 June 2004 |
| Docket Number | No. 02-4086.,02-4086. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Erik BOWKER, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Edward F. Feran (briefed), Assistant United States Attorney, Cleveland, OH, for Appellee.
Jay Milano (briefed), Milano & Co., Rocky River, OH, for Appellant.
Before MARTIN and CLAY, Circuit Judges; MILLS, District Judge.*
Defendant-Appellant Erik S. Bowker appeals his convictions and sentence for one count of interstate stalking, in violation of 18 U.S.C. § 2261A(1); one count of cyberstalking, in violation of 18 U.S.C. § 2261A(2); one count of theft of mail, in violation of 18 U.S.C. § 1708; and one count of telephone harassment, in violation of 47 U.S.C. § 223(a)(1)(C). Bowker also appeals the district court's failure to rule on his motion to return seized property and the district court's enhancement of his sentence based on extreme psychological harm to the victim. For the reasons that follow, we AFFIRM Bowker's convictions and sentence, but REMAND to the district court for a ruling on Bowker's motion to return seized property.
On August 28, 2001, United States Magistrate Judge George J. Limbert signed a criminal complaint charging Erik. S. Bowker ("Bowker") with one count of telephone harassment in violation of 47 U.S.C. § 223(a)(1)(C). Bowker was arrested on August 29, 2001. On September 7, 2001, the magistrate judge held a preliminary examination and detention hearing for Bowker. The magistrate judge determined that probable cause for Bowker's arrest had been established, and he ordered Bowker detained.
On September 25, 2001, a federal grand jury returned a four-count indictment against Bowker. Bowker was charged with one count of interstate stalking, in violation of 18 U.S.C. § 2261A(1); one count of cyberstalking, in violation of 18U.S.C. § 2261A(2); one count of theft of mail, in violation of 18 U.S.C. § 1708; and one count of telephone harassment, in violation of 47 U.S.C. § 223(a)(1)(C).
Bowker filed several pretrial motions which are the subject of this appeal — a pro se motion to represent himself, a motion to dismiss Counts 1, 2, and 4 of the indictment, a motion to sever Count 3 from the indictment, a motion to suppress evidence, and a pro se motion for return of seized property and items, pursuant to Rule 41 of the Federal Rules of Criminal Procedure. The district court denied all of the foregoing motions, except for the motion to return seized property, on which the district court never ruled. On March 26, 2002, after the denial of Bowker's pro se motion to represent himself, Bowker's counsel moved to withdraw from the case, and Bowker signed a separate statement asking the court to grant the motion and assign him new counsel. The district court granted the motion and assigned Bowker new counsel.
Bowker's jury trial commenced on June 3, 2002. On June 6, 2002, the jury returned verdicts of guilty against Bowker on all counts. On September 5, 2002, the government moved for an upward departure from the sentencing guidelines based on the victim's extreme psychological harm. On September 10, 2002, the district court sentenced Bowker to 96 months' incarceration, three years of supervised release, and a $400 special assessment. In assessing the term of incarceration, the district court granted the government's motion for an upward departure.
In March, 2000, Tina Knight began working as a part-time general assignment reporter at WKBN Television in Youngstown, Ohio. WKBN has a general email account for most employees, and in June, 2000, WKBN received a number of emails relating to Knight. The emails were sent from several different email addresses and purported to be from an individual variously identified as "User x," Eric Neubauer, Karen Walters, and "BB." Several of the emails attached photographs with verbal captions. One caption referred to Knight being shot with a pellet gun, and another email said, and another said "More Tina Knight, that is what I want and need." After receiving approximately nine of these types of email, WKBN's news director took them to the station's general manager. They then contacted Special Agent Deane Hassman of the FBI. Soon thereafter, Knight was shown the emails, and she was stunned and frightened.
FBI Agent Hassman began investigating the Tina Knight emails in July, 2000. Hassman was concerned about Knight's personal safety based on the content of the emails. One of the emails that concerned Hassman stated, Another disturbing email stated, in part,
On July 25, 2000, Hassman sent emails to the various email addresses on the correspondence pertaining to Knight. Hassman asked the sender of the emails to contact him so that he could determine the sender's intent. Within 24 to 48 hours, Hassman received a telephone call from an individual who identified himself as Erik Bowker. Hassman wanted to set up a meeting with Bowker so Hassman could positively identify the sender of the emails and also ask him to cease and desist from contacting Knight. They arranged to meet at the public library in Youngstown, but Bowker never showed.
A few weeks later, Knight began receiving hand-written notes at WKBN, the majority of which were signed by "Doug Wagner." By September, the letters were arriving at the station almost every couple of days. One of the letters included the phrase, "All this week I will be playing the role of Doug Wagner." A letter dated August 9, 2000 was signed "Chad Felton"; stated, "I think you are a super babe"; and included a necklace. The return addresses on the letters were one of two P.O. Boxes registered to Erik Bowker or his mother.
Knight left her employment at WKBN in November, 2000 to take a position at WOWK CBS13 in Charleston, West Virginia. WKBN did not inform the general public of Knight's new location.
In late December, 2000, Knight's parents, who reside in Medina, Ohio, received a card and a handwritten note at their home. The card purported to be from "Kathryn Harris." The letter read, Agent Hassman visited the email address to check if any letters had been sent to the email address mentioned in the letter. Hassman discovered that an email had been sent December 25, 2000. At the end of the email, the name "Doug Wagner" was typed. The email read, in part,
In February, 2001, Bowker filed a lawsuit against Knight in the Mahoning County Common Pleas Court. Knight's social security number was stated in the complaint, which was served at Knight's home address in West Virginia. Bowker's lawsuit accused Knight of stalking him. Agent Hassman attended a status conference for the lawsuit on March 16, 2001, so that he could make face-to-face contact with Bowker. After meeting Bowker at the hearing and confirming that Bowker had been sending the unsolicited correspondence to Knight, Hassman told Bowker that the correspondence was unwelcome and might be a violation of federal law. Hassman advised Bowker that if the conduct continued, it might result in his arrest. Bowker responded that he had a First Amendment right to engage in that type of conduct. Nevertheless, during the meeting, Bowker wrote and signed a note stating, "I understand that Tina M. Knight wishes all further contact with her or any family member to stop and I agree to do so, pursuant to conversation with Deane Hassman, special agent, Federal Bureau of Investigation...." Bowker also agreed to voluntarily dismiss his lawsuit against Knight.
Despite Bowker's March, 16, 2001 agreement to cease and desist from any further contact with Knight, on that very same day, Bowker mailed a letter to Knight. Bowker also continued to attempt telephone contact with Knight. Between January 26 and August 29, 2001, Bowker made 146 telephone calls from his cell phone to WOWK CBS 13, where Knight worked. Bowker also made 16 calls to Knight's personal residential telephone in West Virginia between August 11 and 28, 2001. Knight's number was unlisted and unpublished. According to telephone records, each of the 16 calls placed to Knight's home were preceded by *67, which enables a caller to block identification of his telephone number on the recipient's caller identification display. Bowker also called Knight's co-worker and a neighbor.
As the telephone calls to Knight's television station persisted through the summer of 2001, Agent Hassman believed it was important to capture Bowker's voice on tape, so Hassman provided Knight with a recording device at the television station. On June 12, 2001, Knight recorded a 45 minute...
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