675 F.3d 300 (4th Cir. 2012), 10-5169, United States v. Shrader

Docket Nº:10-5169.
Citation:675 F.3d 300
Opinion Judge:WILKINSON, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Thomas Creighton SHRADER, Defendant-Appellant.
Attorney:Jonathan D. Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant. Thomas Charles Ryan, Office of the United States Attorney, Charleston, West Virginia, for Appellee. Mary Lou Newberger, Federal Public Defender, Christian M. Capece, Assistant Federal Public Defend...
Judge Panel:Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Judge WILKINSON wrote the opinion, in which Judge MOTZ and Judge SHEDD joined.
Case Date:April 04, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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675 F.3d 300 (4th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,


Thomas Creighton SHRADER, Defendant-Appellant.

No. 10-5169.

United States Court of Appeals, Fourth Circuit.

April 4, 2012

Argued: Dec. 9, 2011.

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[Copyrighted Material Omitted]

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Jonathan D. Byrne, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant.

Thomas Charles Ryan, Office of the United States Attorney, Charleston, West Virginia, for Appellee.


Mary Lou Newberger, Federal Public Defender, Christian M. Capece, Assistant Federal Public Defender, Office of the Federal Public Defender, Charleston, West Virginia, for Appellant.

R. Booth Goodwin II, United States Attorney, Charleston, West Virginia, for Appellee.

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by published opinion.

Judge WILKINSON wrote the opinion, in which Judge MOTZ and Judge SHEDD joined.


WILKINSON, Circuit Judge:

Over the course of more than three decades, Thomas Creighton Shrader harassed and intimidated D.S. and later her husband

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R.S., causing them to fear for their safety and that of their children. He stands convicted after trial of two counts of stalking through the use of a facility of interstate commerce and one count of being a felon in possession of a firearm. Shrader raises multiple issues in this appeal, including the vagueness of the stalking statute and the length of his sentence. Accepting his contentions, however, would undermine Congress' efforts to protect people like D.S. and R.S. from precisely the sort of terrifying conduct that took place in this case. We therefore affirm.



Starting sometime around 1973, while still a high school student in McDowell County, West Virginia, D.S. began a relationship with Shrader. Over time he became increasingly demanding and possessive, repeatedly appearing uninvited at D.S.'s house. This led her to break off the relationship in 1975 after approximately two years. When she did so, the defendant threatened to kill D.S.'s two nephews if she did not continue seeing him. Around the same time, the defendant physically assaulted D.S. at her workplace, choking her in an elevator.

On July 16, 1975, the defendant confronted D.S. while she was at home with her mother, Geneva Miller, and a family friend, Rusty Adams. D.S. refused to leave with the defendant. Twenty minutes later, he returned to her home with a high-powered rifle. Entering the house, he shot and killed Rusty Adams in a side room. He next shot Geneva Miller, who died ten days later of gangrene contracted in her wound. D.S. ran out of the house, fleeing across the street to the home of her neighbor, John Kowaleski. Shrader continued shooting and wounded Kowaleski in the arm. The defendant was subdued and arrested, and was charged in West Virginia state court with two counts of first degree murder in violation of W. Va.Code § 61-2-1 and one count of unlawful wounding in violation of W. Va.Code § 61-2-9.

Shrader pled guilty to these charges on January 20, 1976, and was sentenced to concurrent life sentences with a recommendation of mercy on the murder charges as well as an additional year of incarceration for the wounding offense. Approximately a year later, Shrader escaped from prison. D.S. and her younger sister were taken into protective custody by the state police. Shrader was recaptured and sentenced to an additional year of imprisonment for the escape.

During his incarceration, Shrader continued to contact D.S. He sent approximately fifteen to twenty letters to her at the bank where she worked, repeatedly referencing his murder of D.S.'s friend and mother, and causing D.S. to feel severely threatened. In 1978, the defendant filed a lawsuit against D.S. in Mercer County, West Virginia, alleging that D.S. had breached a promise to marry him and seeking $700,000 in damages from her.

By this time, D.S. had married R.S. In 1979, they moved to Texas, severing all ties with West Virginia, and took a variety of additional precautions to ensure their safety and anonymity. This did not deter Shrader, who wrote letters to D.S.'s father, mother-in-law, and sister, asking whether D.S.'s family was involved in witchcraft, whether D.S. had ever had an abortion, and requesting recent pictures of D.S. He alleged in these letters that he pled guilty to the murders in 1975 to cover up a conspiracy between himself and D.S., and threatened that he would " convict [D.S.] of Rusties death." In 1993, Shrader

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was released from prison on parole, and was released from parole in 1999.

Beginning on August 6, 2008, Shrader made a series of phone calls to the unlisted number of D.S.'s Texas home. Speaking with D.S., he identified himself and said, " I need to talk to your kids before we die." She denied having children, but Shrader identified them by name. D.S. called 911, but the local police were unable to help her, even though D.S. made clear that she was living in terror. The defendant called back at least four times that evening. He spoke with R.S. as well as D.S., proclaiming to him that D.S. " is my God and I would have done anything for my God," and telling R.S. that he had obtained their contact information in Texas through a Freedom of Information Act request for letters mailed by the parole board notifying D.S. of Shrader's parole hearings.

As a result of these calls, D.S. became afraid for her children to leave their home. R.S. began sleeping with a loaded shotgun under the bed, prepared to defend his family. Shrader persisted, obtaining a photograph of D.S.'s daughter from the website MySpace, and attempting to call her as well. Shrader also showed his friend Carol Miller aerial photographs of D.S.'s home in Texas, commenting about where he could covertly observe the home from across the street. He also formulated a plan to send underwear to D.S.'s daughter with the intent to anger D.S.

On October 30, 2009, R.S. received a UPS package addressed to his wife at their Texas home. Inside was a thirty-two page letter from Shrader. In the letter, Shrader warned D.S. that she had to read it " for [her] own good ... or don't read and face the consequences blindly." He reiterated his delusion that the murders of Rusty Adams and Geneva Miller were part of a plot hatched by D.S.: " Your plan didn't work and it cost the life of your mother." He claimed that D.S. had aborted their child, wishing for " God to take one of your children's live's in an accident to show me that you did have an abortion." Shrader described how he almost killed D.S. in graphic detail:

You have failed to realize that the only reason (after everything fell apart at your house that day), I did not shoot you in the back that day as you ran down the middle of the road for Kowaleski's house. Was because I was so deeply in love with you and believed you felt the same for me. Even though while standing on the front porch of the house I had the rifle raised and the cross hair's of the scope were dead center between your shoulder blades. Bye-bye heart, bye-bye lungs, sternum and some ribs.

And he warned D.S. about possible physical violence against her: " Be smart also! Realize I have never laid a finger on you or hurt you physically. In fact I could have, like I told you earlier in this latter, while you were running down the road. Or on the morning that I escaped from the McDowell County Jail." Finally, he closed the letter with thinly-veiled threats about the future, claiming that " It's time to face the piper." He concluded that " From the date you receive this, I am allowing two (2) weeks or 14 days to pass before I initiate my next step."

Understandably terrified, D.S. and R.S. contacted the FBI, which secured a criminal complaint against Shrader and a warrant for his arrest. On November 13, 2009, FBI agents went to the home that Shrader shared with his aunt, Elizabeth Jones, to execute the arrest warrant. Shrader was alone at the house when the agents arrived. He informed Special Agent Terry Schwartz that there were firearms in the home, but refused to consent to a search of the premises to recover them. While several agents took the defendant

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into custody, Agent Schwartz and other officers awaited Jones's return. Two hours later, she arrived, and consented to the search. In the dining room of the home, officers found a cabinet containing two shotguns and a rifle.


Shrader was ultimately charged with two counts of stalking via a facility of interstate commerce in violation of 18 U.S.C. § 2261A(2)— one alleged that he targeted D.S. and the other that he targeted R.S.— and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The counts were severed and two separate trials were held, first on the firearms charge and subsequently on the two stalking counts.

Prior to the firearms trial, Shrader moved to suppress the firearms found in the house, arguing that the agents violated the Supreme Court's decision in Georgia v. Randolph, 547 U.S. 103, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006), by soliciting consent from his aunt after he had been arrested even though he already refused permission for the search. The district court denied the motion, finding that Randolph required the defendant to be present at the time his aunt consented in order to object to the search, and that there was " no evidence to suggest that [the agents'] intent was to extraordinarily render Defendant away from the scene to violate his Fourth Amendment rights."

At the close of the firearms trial, Shrader requested that the court instruct the jury that "...

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