United States v. Conlan

• Decision Date: 14 May 2015
• Docket Number: No. 13–50842.,13–50842.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Joshua CONLAN, Also Known as Joco, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

786 F.3d 380

UNITED STATES of America, Plaintiff–Appellee

v.Joshua CONLAN, Also Known as Joco, Defendant–Appellant.

No. 13–50842.

United States Court of Appeals, Fifth Circuit.

May 14, 2015.

Scott A.C. Meisler, Esq. (argued), U.S. Department of Justice, Washington, DC, Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, for Plaintiff–Appellee.

Seth Kretzer (argued), Law Offices of Seth Kretzer, Houston, TX, for Defendant–Appellant.

Appeals from the United States District Court for the Western District of Texas.

Before SMITH, PRADO, and OWEN, Circuit Judges.

Opinion

JERRY E. SMITH, Circuit Judge:

A jury found Joshua Conlan guilty of stalking a television news reporter (“JMP”) and her husband (“JP”) in violation of 18 U.S.C. § 2261A. He raises ten issues on appeal, involving sufficiency of the evidence; unconstitutional vagueness; double jeopardy; suppression of evidence; withdrawal and substitution of counsel; denial of self-representation; juror misconduct; speedy trial violations; and sentencing. We affirm.

I.

Conlan and JMP dated as teenagers but had no further contact until JMP appeared on national news networks several years later. Conlan sent her a flirtatious Facebook message; she responded politely but made it plain that she was not interested in him romantically. He then sent a large bouquet of flowers to her workplace with a note reading, “The next time our paths cross, I will not know hesitation.” Worried about her safety, JMP sought help from local police and, at an officer's suggestion, sent Conlan an email explaining that she did not want any communication from him.

Conlan then began an escalating, year-long campaign of email, text-message, social-media, telephonic, and face-to-face contact with JMP, her family, work colleagues, and church members. Many of the messages were hateful, threatening, and graphically sexual. JMP repeatedly asked Conlan's brothers to intervene. That effort was unsuccessful, and Conlan accused JMP and JP of violating his privacy, “not something [he would] take lightly,” and if she did not “straighten out this s—t in person,” he would “be forced to return the favor.” He told her that “things would get worse” and asked her to “send [him] a pretty picture once a week, that would keep [him] under control....” He sent a package to her workplace containing a cellphone that had lip marks on the screen. He also sent her a single-line email reciting her home address and repeatedly told her to kill herself.

The messages did not stop after Detective Michael King told Conlan that his communications were unwelcome and that he would be arrested if he came to Austin, Texas, where JMP and JP resided. Instead, Conlan sent JMP a message that read, “You know what? I can come to you. Can Austin's finest brave that?”

Conlan also sent messages to JP, a professional musician. He commented, on a blog post about JMP's work, that he could not “wait for chicken head hunting in Texas” and that he was “[g]oing to be in every little bitch music shop every weekend every night until I find the right chicken head.” He sent JP a Facebook message asking, “Are you scared, princess?” and messages to JMP stating, “I was thinking about beating the s– –t out of princess” and, “Doesn't princess want a face-to-face confrontation?” Conlan disparaged JMP in emails to the leadership of her church and went to her parents' house asking to see her.

Shortly thereafter, Conlan drove from Missouri to JMP and JP's house. As JP was driving from their residence, he saw a white vehicle with Missouri plates moving slowly and recognized Conlan as the driver. Conlan went around the block and passed JP a second time. Fearing that that he would be attacked, JP called the police and went to a police substation. Conlan was arrested at a nearby motel pursuant to a warrant; in his motel room, police found cellphones that had been used to call JMP's workplace and obtain directions to her house, and a laptop that contained Internet searches for her name. A loaded handgun and riot stick were found in Conlan's vehicle.

II.

Conlan was indicted on three counts of interstate stalking in violation of 18 U.S.C. § 2261A. The district court found him incompetent to stand trial and ordered him committed to the custody of the Attorney General.¹ The court later found him competent, and a grand jury returned a superseding indictment with the same three counts: violations of § 2261A(2) as to JMP (Count One) and JP (Count Three), and § 2261A(1) (Count Two). A jury found Conlan guilty of all charges, and he was sentenced to ninety-six months of imprisonment and three years of supervised release.

III.

Conlan challenges the sufficiency of evidence from which a jury could conclude that he acted “with the intent to kill, injure, harass, intimidate, or place under surveillance with the intent to kill, injure, harass, or intimidate” JMP, as required by § 2261A. We “review[ ] the record to determine whether, considering the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”²

Intent is often established by inference from circumstantial evidence. See United States v. Pruett, 681 F.3d 232, 239 (5th Cir.2012) (per curiam). The increasingly ominous tone and content of his messages reveal Conlan's desire to subject JMP to unwanted sexual acts, for her to die, and for a violent confrontation with JP and police. Instead of desisting when told to do so by JMP, his family, and the police, Conlan escalated his behavior by contacting JMP's colleagues, church leaders, and father, culminating in an interstate trip to her house armed with a handgun and riot stick.³ There was sufficient evidence for a rational jury to conclude beyond a reasonable doubt that Conlan acted with the requisite intent.⁴

IV.

Conlan maintains that 18 U.S.C. § 2261A is unconstitutionally vague because neither “harass” nor “intimidate” is defined. We review that “challenge for plain error because he did not present [it] to the district court.” United States v. Howard, 766 F.3d 414, 428 (5th Cir.2014). A penal statute is unconstitutionally vague “if the conduct it prohibits is not clearly defined.” Id. “To satisfy constitutional due process, ‘a penal statute [must] define the criminal offense [1] with sufficient definiteness that ordinary people can understand what conduct is prohibited and [2] in a manner that does not encourage arbitrary and discriminatory enforcement.’ ”⁵ As every court of appeals to consider the question has held, § 2261A satisfies both of those requirements.⁶

The statute need not define “harass” and “intimidate” because they are not obscure words and are readily understandable by most people.⁷ Any vagueness concerns are further alleviated by the list of easily understood terms surrounding “harass” and “intimidate”—“kill, injure ... or cause substantial emotional distress”—and by the statute's scienter requirement, which narrows its scope and mitigates arbitrary enforcement.⁸

Conlan's fear that § 2261A criminalizes “otherwise legal actions—such as sending a letter or traveling from one state to another ... even if some of those actions were undertaken without any ill intent” is unfounded. As a preliminary matter, he cannot rely on hypothetical vagueness arguments because § 2261A “clearly proscribed” his year-long campaign of escalating sexual innuendo, threats of physical violence, and unwanted contacts with JMP's family, friends, and colleagues, culminating in an interstate trip to his victims' house.⁹ Furthermore, the statute defines “course of conduct” as “a pattern of conduct composed of 2 or more acts, evidencing a continuity of purpose.” 18 U.S.C. § 2266(2). That makes clear that the statute's intent requirement “modifies the cumulative course of conduct as a whole,” Shrader, 675 F.3d at 311, and “avoids sweeping up innocent acts,” id. at 312.

Moreover, unlike the restriction on wearing “a mask with the intent to intimidate, threaten, abuse or harass any other person” at issue in Church of the American Knights of the Ku Klux Klan v. City of Erie, 99 F.Supp.2d 583, 591 (W.D.Pa.2000) (internal quotation marks omitted), on which Conlan relies, § 2261A does not criminalize constitutionally protected free expression. To violate the statute one must both intend to cause victims serious harm and in fact cause a reasonable fear of death or serious bodily injury. See Shrader, 675 F.3d at 310. That combination of “intent and effect” distinguishes § 2261A from “the ordinance in Ku Klux Klan, which did not require that the harassment or intimidation result in any particular type of reaction in the audience.” Bowker, 372 F.3d at 382. Conlan has not shown, on plain-error review, that § 2261A is unconstitutionally vague.

V.

Conlan contends that his sentences on Counts One and Three violate the Double Jeopardy Clause because “the alleged course of conduct [for both offenses is] identical.” “We review defendant's contention of multiplicitous sentences, which involves an issue of double jeopardy, for plain error.” United States v. Dixon, 273 F.3d 636, 642 (5th Cir.2001). Sentences are multiplicitous where a defendant “receive[s] more than one sentence for a single offense.”¹⁰ The analysis begins by identifying the statute's “unit of prosecution,” relying in the first instance on the statutory language. See id. If the unit of prosecution is uncertain, “ambiguity should be resolved in favor of lenity.” Bell v. United States, 349 U.S. 81, 83, 75 S.Ct. 620, 99 L.Ed. 905 (1955).

The plain language of § 2261A(2) “unambiguously contemplate[s] that the unit of prosecution is the targeted individual, requiring that the defendant act with intent towards a particular ‘person,’ that his actions produce the requisite effect in ‘that person,’ and defining punishment [in § 2261(b)(1)-(3) ] in terms of the effect on ‘the victim.’ ” Shrader, 675 F.3d...