United States v. Sayer

• Decision Date: 15 May 2012
• Docket Number: Criminal No. 2:11-CR-113-DBH,CRIMINAL NO. 2:11-CR-47-DBH
• Parties: UNITED STATES OF AMERICA v. SHAWN SAYER, DEFENDANT UNITED STATES OF AMERICA v. MICHAEL R. THOMAS, DEFENDANT
• Court: U.S. District Court — District of Maine

UNITED STATES OF AMERICA

v.SHAWN SAYER, DEFENDANT

UNITED STATES OF AMERICA

v.MICHAEL R. THOMAS, DEFENDANT

Criminal No. 2:11-CR-113-DBH

CRIMINAL NO. 2:11-CR-47-DBH

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

Dated: May 15, 2012

DECISION AND ORDER ON DEFENDANT SAYER'S MOTION TO DISMISS

COUNT ONE OF THE INDICTMENT AND DEFENDANT THOMAS'S MOTION

TO DISMISS COUNT EIGHT OF THE SUPERSEDING INDICTMENT

These defendants have each moved to dismiss interstate stalking charges against them for constitutional and other reasons. Because their constitutional arguments raise the same issues in both cases, I held a consolidated oral argument on May 4, 2012.

Part of the interstate stalking statute provides:

Whoever . . . with the intent . . . 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 or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States . . . 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 the death of, or serious bodily injury to [that person,a member of the immediate family . . . or a spouse or intimate partner of that person] . . . shall be punished . . . .

18 U.S.C. § 2261A(2).¹ When the internet is involved, the cases refer to this as a cyberstalking statute. See, e.g., United States v. Walker, 665 F.3d 212 (1st Cir. 2011).

Count One of the Indictment against the defendant Sayer charges:

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.

Sayer Indictment (ECF No. 18).

Count Eight of the Superseding Indictment against the defendant Thomas charges:

From about July 2006 to about March 2011, in the District of Maine, the defendant, MICHAEL R. THOMAS f/k/a Sean P. Higgins, Shawn P. Higgins knowingly, willfully and with the intent to harass and cause substantial emotional distress to a person in the state of Massachusetts, used theUnited States mail to engage in a course of conduct that caused substantial emotional distress to that person. Specifically, THOMAS sent letters containing threats and harassing information through the United States mail that were received at several addresses in Danvers and Peabody, Massachusetts. As a result of THOMAS's course of conduct, the person who was the target of the course of conduct experienced substantial emotional distress.

Thomas Superseding Indictment at 6 (ECF No. 52).

I now DENY both motions to dismiss.

Constitutional Issues in the Interstate Stalking Statute

The defendants make three constitutional challenges to the interstate stalking charge: the statute is unconstitutional as applied to each of them; it is unconstitutionally overbroad; and it is unconstitutionally vague. Necessarily, I deal with their "as applied" arguments individually. But I deal with their unconstitutional overbreadth and unconstitutional vagueness arguments on a consolidated basis. Finally, there is also a separate issue concerning the sufficiency of the indictment for each defendant.

As Applied: The Defendant Sayer

It is difficult to make an "as applied" ruling at this early stage of the proceedings against Sayer because I do not know what the actual evidence at trial will establish that Sayer said or did vis-à-vis the victim. But to the extent that there is consensus as to what Sayer is accused of communicating or doing, the charge certainly survives a First Amendment as-applied attack. According to the government, after Sayer's former girlfriend changed her name and moved from Maine to Louisiana to escape him, the defendant Sayer, still in Maine,

created fictitious internet advertisements and social media profiles using [the victim's] name and other identifying information. The fictitious internet postings included [the victim's] address and invited men to come to her home for sexual encounters. The Defendant also posted video clips to several adult pornography websites depicting sexual acts [the victim] had consensually performed with him during their relationship. The Defendant edited the clips so they also displayed [the victim's] name and actual address. As a result of the Defendant's actions, numerous men arrived at [the victim's] Louisiana residence seeking sexual encounters, terrifying her and causing her to fear that she would be raped or assaulted.

Gov't's Opp'n to Sayer Mot. to Dismiss Count One of the Indictment at 2 (ECF No. 84).²

None of this activity is speech protected by the First Amendment. Yes, emails and websites involve communication and in that sense are speech. But bribery, extortion, conspiracy, fraud, identity theft and threats³ also all involve communication, and speech in that sense, and yet they are crimes not protected by the First Amendment. Instead, the Supreme Court has longrecognized that "speech or writing used as an integral part of conduct in violation of a valid criminal statute" is not protected. Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949), cited with approval in United States v. Stevens, 130 S. Ct. 1577, 1584 (2010); New York v. Ferber, 458 U.S. 747, 761-62 (1982) (citing Giboney in support of constitutionality of making child pornography illegal); Virginia v. Black, 538 U.S. 343, 360, 363 (2003) (although cross burning is symbolic expression, "First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate"); accord United States v. Gagliardi, 506 F.3d 140, 147-48 (2d Cir. 2007) (First Amendment does not protect attempts to entice a minor to engage in prohibited sexual activity); United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir. 1990) (applying Giboney in deciding that conspiracy is not protected by the First Amendment); United States v. Freeman, 761 F.2d 549, 552 (9th Cir. 1985) (First Amendment does not protect counseling violation of tax laws); United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970) (First Amendment does not protect perjury, bribery, extortion and threats, or conspiracy because the speech is "the very vehicle of the crime itself"); United States v. Kim, 808 F. Supp. 2d 44, 56 (D.D.C. 2011) (First Amendment does not protect oral disclosures of national security information); United States. v. Scruggs, 2011 WL 6812626, at *3-4 (N.D. Miss. 2011) (First Amendment does not protect aiding and abetting honest services mail fraud); United States v. Coronado, 461 F. Supp. 2d 1209, 1213 (S.D. Cal. 2006) (First Amendment does not protect teaching how to make and use a destructive device with the intent that it be used in furtherance of criminal activity).

Thus, this case is unlike United States v. Cassidy, 814 F. Supp. 2d 574 (D. Md. 2011), where the court found this statute unconstitutional as applied. In Cassidy, the victim was "not merely a private individual but rather an easily identifiable public figure that leads a religious sect, and . . . many of the Defendant's statements relate to [the sect's] beliefs and [the victim]'s qualifications as a leader." Id. at 586. The Cassidy court said that it was

clear that the Government's Indictment is directed at protected speech that is not exempted from protection by any of the recognized areas just described [which included the Giboney principle]. First, A.Z. is a well-known religious figure . . . . [A] Washington Post journalist wrote a critical non-fiction book about [her]. Second, although in bad taste, Mr. Cassidy's Tweets and Blog posts about A.Z. challenge her character and qualifications as a religious leader. And, while Mr. Cassidy's speech may have inflicted substantial emotional distress, the Government's Indictment here is directed squarely at protected speech: anonymous, uncomfortable Internet speech addressing religious matters. Tellingly, the Government's Indictment is not limited to categories of speech that fall outside of First Amendment protection—obscenity, fraud, defamation, true threats, incitement or speech integral to criminal conduct. Because this speech does not fall into any of the recognized exceptions, the speech remains protected.

Id. at 583. The facts of Cassidy are completely different from those here, and Cassidy does not support the proposition that the statute as applied here is unconstitutional. Sayer has pointed to nothing that he said in his course of conduct that amounts to Cassidy-type speech. What Sayer is alleged to have done involves no political or religious speech or the promotion of ideas of any sort. Instead, 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. I conclude that the statute is not unconstitutional as applied in Sayer's case.

As Applied: The Defendant Thomas

In response to the defendant Thomas's motion for a bill of particulars, the government specified the twelve letters that are the basis of Count Eight, and the defendant Thomas has attached them (with certain identifying information deleted) to his motion to dismiss. The letters are a series that Thomas allegedly sent to or about his former neighbor who moved from Maine to Massachusetts. Allegedly Thomas addressed seven to the victim and five to others, including the Danvers Massachusetts Police Department. Thomas Mot. to Dismiss Count Eight at 13-14 (ECF No. 85).⁴ Among other things, they accused the victim...