United States v. Sayer

• Decision Date: 02 May 2014
• Docket Number: No. 12–2489.,12–2489.
• Citation: 748 F.3d 425
• Parties: UNITED STATES of America, Appellee, v. Shawn SAYER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

748 F.3d 425

UNITED STATES of America, Appellee,

v.Shawn SAYER, Defendant, Appellant.

No. 12–2489.

United States Court of Appeals, First Circuit.

May 2, 2014.

Peter J. Cyr for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.

LYNCH, Chief Judge.

This case challenges the constitutionality of the cyberstalking statute, 18 U.S.C. § 2261A. Shawn Sayer pled guilty to one count of cyberstalking and was sentenced to sixty months' imprisonment, the statutory maximum. Sayer appeals, on constitutional grounds, from the district court's denial of his motion to dismiss the cyberstalking charge in the indictment. He also appeals from his sentence, arguing that he was eligible for a downward departure from a Guidelines sentence and so his sentence above the Guidelines range was unreasonable. We affirm.

I.

A. Factual Background

The facts are not disputed on appeal.

Sayer and the victim in this case, Jane Doe,¹ had dated in Maine starting some time in 2004 until Jane Doe ended their relationship in January 2006. After their break-up, Sayer persistently stalked and harassed Jane Doe for over four years. At first, Sayer showed up at stores and other places where he knew that Jane Doe would be. In response, Jane Doe changed her routine and gave up activities she loved for fear of seeing Sayer. She also acquired a protection order against him in state court.

Later, in the fall of 2008, Sayer started to use the internet to induce anonymous third parties to harass Jane Doe. Specifically, several unknown men came to Jane Doe's house in Maine one day in October 2008 claiming that they had met her online and were seeking “sexual entertainment.” Jane Doe was “shock[ed]” and “terrified” by these “dangerous”-looking men and decided to stay with a friend because she no longer felt safe in her home. She later discovered an online ad in the “casual encounters” section of Craigslist, a classified advertisements website, that had pictures of her in lingerie that Sayer had taken while they were dating. The ad gave detailed directions to her home and described a list of sexual acts she was supposedly willing to perform. Jane Doe did not place these ads nor did she authorize Sayer to place them.

The unwanted visits from men seeking sex persisted for eight months until June 2009, when Jane Doe changed her name and moved to her aunt's house in Louisiana to escape from Sayer and this harassment. Jane Doe began a new career and felt safe for a couple of months until August 25, 2009, when an unknown man showed up at her home in Louisiana and addressed her by her new name. Jane Doe said “the hairs on [her] arms stood up,” as she had not told anyone except for a neighbor and her parents that she was moving. The man said he had met her online and was seeking a sexual encounter, having seen pictures of her on an adult pornography site. When Jane Doe later searched the internet, she found videos of herself and Sayer engaged in consensual sexual acts from when they were dating on at least three pornography sites. Several of the websites included Jane Doe's name and then-current Louisiana address. One site encouraged viewers to write to Jane Doe and tell her what they thought of the videos.

Jane Doe contacted the police again in late September 2009 because someone had posted a fraudulent account in her name on Facebook, a social networking site, which included sexually explicit pictures of her. The false Facebook account was created on August 21, 2009 from 24 Marion Avenue in Biddeford, Maine, which had an unsecured wireless network; Sayer lived at 23 Marion Avenue. The police found videos of Jane Doe “engaged in sexually explicit activity” that had been posted to adult pornography sites on August 22, 25, and 29, 2009.

On November 5, 2009, the police searched Sayer's home pursuant to a warrant. They found two desktop computers that lacked hard drives and an empty laptop computer case. Sayer said that his computers had been hacked, so he had thrown out the hard drives. He also said he had thrown out his laptop after spilling water on it. The police did not believe him because they had seen “dozens of computercomponents scattered throughout his house.”

The police seized a Nikon digital camera during this search. Although Sayer had said there were no pictures of Jane Doe on it, a forensic analysis of the camera uncovered a picture of Jane Doe in a sexual position and another photo of her engaged in a sex act.

In December 2009, Jane Doe again contacted the police to report another fake profile that had been created under her name on MySpace, another social networking site. The profile had both her old and new names, her Louisiana address, and links to adult pornography sites hosting sex videos of Jane Doe.

The fake MySpace account was associated with multiple IP addresses from unsecured wireless networks in Saco, Maine, near where Sayer lived. A business with one of the unsecured networks had surveillance, which had captured an old green pickup truck resembling Sayer's green 1999 Ford truck parked outside for twenty minutes at about the same time that the fake MySpace account was being accessed. No one was seen getting into or out of the truck during the time that it was parked there.

Jane Doe returned to Maine the first week of November 2009 because the men that Sayer sent to her Louisiana home had scared her aunt and cousin, with whom she was staying. The cyberstalking charge in this case only encompasses Sayer's harassment of Jane Doe from “July 2009, the exact date being unknown, until about November 2009.” However, Sayer continued to harass Jane Doe after she returned to Maine. As a result of new fraudulent accounts Sayer posted in Jane Doe's name soliciting sex from strangers, as many as six different men per night showed up at her home in June 2010. The police searched Sayer's home again on July 1, 2010. Forensic analysis of a laptop computer they seized showed that Sayer had created “numerous fake profiles” through Yahoo! Messenger, an online chat service, using some variation of Jane Doe's name, between June and November 2009. All of the profiles had sexually suggestive or explicit pictures of Jane Doe and in many cases directed viewers to sex videos of her on adult pornography sites. In many instances, Sayer, posing as Jane Doe, chatted with men online and encouraged them to visit Jane Doe at her home in Louisiana.

Jane Doe said Sayer did not stop sending men to her home until he was arrested by state police in July 2010 for violating a protection order she had against him.²

B. Procedural History1. Pre–Sentence Proceedings

On July 13, 2011, Sayer was indicted with one count of cyberstalking, 18 U.S.C. § 2261A(2)(A), and one count of identity theft, 18 U.S.C. § 1028(a)(7). As to the cyberstalking count, the indictment charged:

From about July 2009, the exact date being unknown, until about November 2009, in the District of Maine, and elsewhere, Defendant, Shawn Sayer with the intent to injure, harass, and cause substantial emotional distress to a person in another state, namely, Louisiana, used facilities of interstate or foreign commerce, including electronic mail and internet websites, to engage in a course of conduct that caused substantial emotional distress to the victim and placed her in reasonable fear of death or serious bodily injury.

(emphasis added).

Sayer initially pled not guilty to both counts on July 19, 2011. On February 16, 2012, in a pre-trial motion to dismiss the cyberstalking count, Sayer made three constitutional arguments: (1) the cyberstalking statute is unconstitutional as applied to him because it imposes criminal sanctions on protected speech; (2) the statute is overbroad in violation of the First Amendment; and (3) the statute is unconstitutionally vague in violation of the Fifth Amendment.

The cyberstalking statute provided:

Whoever—

(2) with the intent—

(A) to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State ... uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress to that person or places that person in reasonable fear of ... death ... or serious bodily injury ... shall be punished as provided in section 2261(b) of this title.

18 U.S.C. § 2261A(2)(A) (2006).³

The government opposed Sayer's motion on March 8, 2012, and the district court held a hearing on May 4, 2012. On May 15, 2012, the district court issued a memorandum and order denying Sayer's motion, ruling that § 2261A(2)(A) was neither unconstitutional as applied to Sayer nor facially invalid. United States v. Sayer, Nos. 2:11–CR–113–DBH, 2:11–CR–47–DBH, 2012 WL 1714746 (D.Me. May 15, 2012).

The court rejected Sayer's as-applied First Amendment challenge because “[n]one of th[e] activity [of which Sayer is accused] is speech protected by the First Amendment.” Id. at *2. In addition, it reasoned that “everything that Sayer allegedly said was ‘integral to criminal conduct,’ his criminal conduct seeking to injure, harass or cause substantial emotional distress to the victim,” and so not protected by the First Amendment under Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949). Id. at *2, *3.

As to Sayer's facial challenge, the district court held that § 2261A(2)(A) was not overbroad in violation of the First Amendment because Sayer had not shown that “a substantial number of [the statute's] applications [to protected speech] are unconstitutional,judged in relation to the statute's plainly legitimate sweep.” Id. at *6 (first alteration in original) (quoting United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577,...