United States v. Petrovic

• Decision Date: 13 December 2012
• Docket Number: No. 12–1427.,12–1427.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Jovica PETROVIC, also known as Joshua Petrovic, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

701 F.3d 849

UNITED STATES of America, Plaintiff–Appellee

v.Jovica PETROVIC, also known as Joshua Petrovic, Defendant–Appellant.

No. 12–1427.

United States Court of Appeals, Eighth Circuit.

Submitted: Sept. 21, 2012.

Filed: Dec. 13, 2012.

Steven Vincent Stenger, argued, Saint Louis, MO, for appellant.

Dean John Sauer, AUSA, argued, Saint Louis, MO, for appellee.

Before RILEY, Chief Judge, SMITH and COLLOTON, Circuit Judges.

RILEY, Chief Judge.

Jovica Petrovic was convicted of four counts of interstate stalking and two counts of interstate extortionate threat. The district court ¹ sentenced Petrovic to ninety-six months imprisonment. Petrovic appeals his convictions and sentence, challenging the district court's (1) denial of his motion to dismiss the four stalking charges on First Amendment grounds, (2) denial of his motion for a mistrial, (3) jury instructions relating to one extortionate threat charge, and (4) two-level sentence enhancement for obstruction of justice. Petrovic also contests the sufficiency of the evidence to convict him of all charges. We affirm.

I. BACKGROUNDA. Facts

Petrovic and the victim, M.B., began a relationship in 2006, married in 2009, and later divorced. During their relationship, Petrovic resided in Florida and M.B. resided in Missouri, where she and her ex-husband, R.B., shared custody of their two young children. Petrovic and M.B. often met in Florida or Missouri, and M.B. occasionally allowed Petrovic to take pictures of her in the nude or performing various sex acts. M.B. also confided in Petrovic, revealing private and intimate information in text messages, such as the sexual abuse M.B. suffered as a young girl, her suicidal thoughts and tendencies, family secrets, and self-doubts about her fitness as a mother. Petrovic saved thousands of these text messages.

During their relationship, Petrovic also accumulated other potentially embarrassing information about M.B. In July 2009, M.B. attempted suicide at Petrovic's home after finding evidence leading her to believe Petrovic was having an extra-marital affair. After M.B. was taken to the hospital for treatment, Petrovic took pictures of the pool of blood that had formed on the floor. In December 2009, Petrovic took several trips to Missouri to see M.B. During these trips, Petrovic stayed at a local hotel and secretly filmed M.B. having sexual intercourse with him. Petrovic took steps to ensure that M.B. was identifiable in the videos. He refused to turn off the lights, removed the sheets from the bed, and directed M.B.'s face and exposed genitalia toward the concealed camera.

On December 28, 2009, M.B. informed Petrovic by text message that she was ending their relationship. In response, Petrovic sent M.B. text messages informing her that he had secretly recorded their recent sexual encounters and had saved all of the text messages M.B. previously sent him. Petrovic threatened to post this information on the internet so M.B.'s family could read the messages and see the videos, if M.B. did not continue their relationship. Petrovic stated he was not “blackmail[ing]” M.B. and was only saving the information for his own “protection,” but told M.B. to “be smart.” Petrovic informed M.B. she and her family could soon visit his new website, “www. [M. B.] slut. com.” M.B. understood Petrovic intended to “ruin [her] life” if she did not “get back together with [Petrovic],” but M.B. nevertheless permanently ended the relationship.

Petrovic then began a campaign to carry out his threats. Over the course of the next few months, Petrovic mailed dozens of homemade postcards to addresses throughout M.B.'s community, including to M.B.'s workplace, M.B.'s family members, R.B.'s home, and local businesses like the neighborhood drugstore. The postcards typically portrayed a picture of a scantily clad M.B. along with abusive language (for example, “I am just a whore 4 sale”) and directions to a website, “www. marriedto [M. B.]. com.” The postcards were viewed by M.B.'s children, other family members, and many acquaintances. News of the website spread throughout the community, and almost everyone M.B. knew became aware of the site.

The website was publicly accessible in March 2010. Petrovic reported his site was “huge,” containing “20,000 or 30,000 pages” of material reflecting months of preparation by Petrovic, who began creating the site in August 2009. The site contained links to dozens of images of M.B. posing in the nude or engaging in sex acts with Petrovic, and included many from the tapes Petrovic secretly recorded. Visitors to the site could view scores of pictures of M.B.'s children and other family members by clicking on a link next to the pornographic material. Several photographs of M.B. performing a sex act with Petrovic were repeatedly and prominently displayed throughout the website, including on the site's home page. Petrovic also posted thousands of pages of the text messages M.B. had sent him. The messages were color-coded by speaker and organized chronologically, with the most private and embarrassing messages given special pages to increase readership. Petrovic posted the pictures of the blood from M.B.'s suicide attempt, further highlighting her suicidal thoughts and history. Private information about M.B. and her family was also revealed, including M.B.'s contact information and the social security numbers of her children. M.B. did not authorize Petrovic to release any of this information. After learning of the website, M.B. “had a breakdown” and “wanted to die.”

Besides the website and postcards, Petrovic sent several packages containing enlarged photographs of M.B. engaging in various sex acts with Petrovic to M.B. at her work, to M.B.'s boss, to M.B.'s family members, and to R.B.'s home, where M.B.'s seven-year-old child viewed the pornographic material. Petrovic also repeatedly made harassing phone calls to M.B's workplace, and physically intimidated M.B. on several occasions—on one such occasion, pursuing M.B. in a rental van at a high rate of speed while M.B. was on her way home from work.

In June 2010, M.B.'s sister was able to have Petrovic's website shut down for a few days. On June 20, 2010, Petrovic relaunched the site and posted a message stating, “Nobody can stop me to publish this website” and offering to shut down the site if M.B. gave him his “furniture, what she stoled [sic] from me, the wedding and engagement ring, ... and $100,000.” M.B. did not comply with Petrovic's demands, and the website remained operational. On July 19, 2010, Petrovic was arrested by United States Postal Inspectors.

B. Procedural History

On October 6, 2010, a grand jury indicted Petrovic with, among other charges, four counts of interstate stalking, in violation of 18 U.S.C. § 2261A(2)(A), and two counts of interstate extortionate threat, in violation of 18 U.S.C. § 875(d). Petrovic moved to dismiss the four stalking charges on the grounds the statute violated the First Amendment both facially and as applied to Petrovic. The district court denied this motion.

At trial, the district court denied Petrovic's motion for a mistrial after a government witness, a local municipal judge named Patrick Coyne, testified he had viewed the website and telephoned R.B. because Coyne thought Petrovic's conduct “look[ed] criminal.” The district court also approved, over Petrovic's objection, the government's proposed jury instruction stating a “sexual relationship” could constitute a “thing of value” one can intend to extort for purposes of conviction under § 875(d). The jury convicted Petrovic on four counts of interstate stalking and two counts of interstate extortionate threat. At sentencing, the district court applied a two-level sentence enhancement for obstruction of justice based on Petrovic's perjury at trial under United States Sentencing Guidelines (U.S.S.G.) § 3C1.1. Petrovic appeals.

II. DISCUSSIONA. First Amendment

Petrovic first argues 18 U.S.C. § 2261A(2)(A)², the interstate stalking statute, violates his right to freedom of speech under the First Amendment to the United States Constitution. Petrovic contends the statute is unconstitutional both facially and as applied to him. We review First Amendment challenges de novo. See United States v. Beale, 620 F.3d 856, 865 (8th Cir.2010).

1. As Applied Challenge

“[W]hen ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.” United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). A governmental regulation satisfies this standard if (1) “it is within the constitutional power of the Government”; (2) “it furthers an important or substantial governmental interest”; (3) “the governmental interest is unrelated to the suppression of free expression”; and (4) “the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” Id. at 377, 88 S.Ct. 1673.

Petrovic contends § 2261A(2)(A) fails O'Brien's four-pronged test in his case. However, we need not reach the merits of the O'Brien test if, as a preliminary matter, we determine the communications for which Petrovic was convicted under the statute are not protected by the First Amendment. Cf. id. at 376, 88 S.Ct. 1673. Because we hold Petrovic's communications fall outside the First Amendment's protection, we do not reach the merits of the O'Brien test.

The First Amendment provides “Congress shall make no law ... abridging the freedom of speech.” While it generally “means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content,” Ashcroft v. A.C.L.U., 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983)) (...