OPINION AND ORDER
JOHN E. DOWDELL, UNITED STATES DISTRICT JUDGE.
Before the Court are two motions to dismiss, filed by the defendant, Charles Jason Moreland. In the first motion (Doc. 22), Moreland asserts that 18 U.S.C. § 2261(A)(2)(B) — the cyberstalking statute under which he was indicted — is unconstitutional because it (1) violates the First Amendment to the United States Constitution, (2) is unconstitutionally vague in violation of the Fifth Amendment's Due Process Clause, and (3) is unconstitutional
In a single count Indictment returned in June 2016, Moreland was charged with cyberstalking in violation of 18 U.S.C. § 2261A(2)(B). (Doc. 2). The Indictment alleges that, from in or about May 2015 and continuing through the date of the Indictment, Moreland,
(Doc. 2). The charging language largely tracks the statutory language found in 18 U.S.C. § 2261A(2)(B).
The Indictment followed hundreds of communications from Moreland to CP, who is a journalist and author working in the Washington, DC area. Moreland's communications to CP were through e-mails, social media, and deliveries to CP's office. Although CP never responded to Moreland, several of his communications to CP referenced violence, indicated that he believed that CP had threatened him or was trying to harm or kill him, stated that CP better make sure to kill him, and ultimately threatened that it was "time to just eliminate things" and that he was ready for a "fight to the death." Moreland also advised CP that the federal government had raided his house.
In his first dismissal motion, Moreland glosses over the language in many of the communications directed at CP and attempts to characterize them as obviously harmless and non-threatening. To be clear, many of Moreland's writings were merely nonsensical or strange (see, e.g. Plaintiff's Exhibit (PX) 17, 32 [volunteering, in a one-sentence email, that "I'm not homosexual") and many referenced political topics. But several other communications contained references to violence or perceived threats that were never made to Moreland, and his repeated contacts appear intended to convey dissociation with reality. He repeatedly represented that he would stop contacting CP, only to almost immediately contact her again. (E.g., PX 29, 30, 51, 52-60). His contacts, some of which initially touched on issues of arguable public concern, ultimately escalated, became personal in referencing CP and her family members, and directly referring to violence and a fight to the death.
Examples of Moreland's writings — which, as noted, CP never responded to — included the following:
In his briefing, Moreland asserts that "he consistently repeated that he is not a danger to anyone and intends no harm to anyone [and] repeatedly states he won't continue to contact [CP] if his communications are unwanted," and he then notes that CP "never told [him] to stop sending her emails, and never apparently asked any administrator, police, or agency to inform Moreland to stop contacting her." (Doc. 22 at 2). Yet, he has cited no authority that would support a conclusion, as a matter of law, that an alleged victim has an obligation to advise a defendant to "stop" cyberstalking or that a defendant can absolve himself of criminal responsibility by merely claiming that he is not dangerous. Although Moreland did repeatedly indicate that he would not contact CP again and he repeatedly apologized to her, those representations were often immediately followed up with additional communications to CP.
A. Overbreadth Challenge
Moreland first argues that § 2261A(2)(B) is facially overbroad and unconstitutional because it "wrongfully infringes on protected speech." (Doc. 22). The overbreadth doctrine authorizes "the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when judged in relation to the statute's plainly legitimate sweep." City of Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999). "Facial challenges, ... including those based on overbreadth, `are disfavored for several reasons,'" including concerns that such challenges counteract principles of judicial restraint and separation of powers. United States v. Brune, 767 F.3d 1009, 1018 (10th Cir. 2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1469, 191 L.Ed.2d 414 (2015) (quoting Washington State Grange v. Washington State Repub. Party, 552 U.S. 442, 450, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008)). As a result, the overbreadth doctrine "has been employed ... sparingly and only as a last resort." Brune, 767 F.3d at 1019 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)).
"To succeed in an overbreadth challenge, thereby invalidating all enforcement of the law, a challenger `must show that the potential chilling effect on protected expression is `both real and substantial.'" Brune, 767 F.3d at 1018 (quoting Jordan v. Pugh, 425 F.3d 820, 828 (10th Cir. 2005)). "Finding some overbreadth only satisfies part of the inquiry, as the challenger must also show that the `law punishes a `substantial' amount of protected free speech, `judged in relation to the statute's plainly legitimate sweep.'" Brune, 767 F.3d at 1018 (quoting Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003)). "[E]ven where a fair amount of constitutional speech is implicated, [the courts] will not invalidate the statute unless significant imbalance exists." Id.
The crux of Moreland's overbreadth argument is that § 2261A(2)(B) could be stretched to prohibit some protected speech, such as mere heckling or
Sayer, 748 F.3d at 435 (citations omitted).
As the Sayer court concluded, the statute's proscription of a course of conduct done with the specific intent to injure, harass, or intimidate "clearly targets conduct performed with serious criminal intent, not just speech that happens to cause annoyance or insult." Id.; see also United States v. Shrader, 675 F.3d 300, 311 (4th Cir. 2012) (rejecting vagueness challenge to a stalking statute and noting that "a scienter requirement may mitigate a law's vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is prescribed") (quoting Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). Mr. Moreland's examples here — a heckler loudly criticizing a comedian's material, a protester calling an abortion provider a "baby killer," or a political protestor "promising to beat a politician at the next election" — ignore the statute's intent, "substantial emotional distress," and "course of conduct" requirements. See Sayer, 748 F.3d at 435, n.9; 18 U.S.C. § 2261A(2); see also 18 U.S.C. § 2266(2) ("The term `course of conduct' means a pattern of conduct composed of 2 or more acts, evidencing a continuity of purpose."). In addition, those examples are inapposite to Moreland's express references to violence in his direct and numerous communications to CP. Finally, "the `mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.'" Sayer, 748 F.3d at 436 (citing United States v. Williams, 553 U.S. 285, 303, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)).
Other Circuit Courts of Appeal have rejected similar overbreadth challenges to the cyberstalking statutes. See United States v. Petrovic, 701 F.3d 849, (8th Cir. 2012) ("Because a substantial number of the statute's applications will not be unconstitutional, we decline to use the "`strong medicine' of overbreadth to invalidate the entire [statute].'") (citation omitted); United
Moreland acknowledges that certain types of speech are not protected by the First Amendment, including defamation, fraud, obscenity, incitement, true threats, and speech integral to criminal conduct. (See Doc. 22 at 8). But he argues that, by "failing to limit complainants to private figures and by encompassing an undefined `substantial emotional distress' as the harm, Congress ignored the citizen's right to freely communicate under the First Amendment's protection." (Id. at 9). It is true that a heightened standard generally applies to speech about public officials. For example, a public figure must generally prove "actual malice" in addition to the usual elements of defamation in order to maintain such a defamation claim against the speaker in a manner that does not violate the First Amendment. But that does not render public officials unprotected from true threats or speech integral to criminal conduct, and Moreland has not cited any authority that dictates that public figures cannot be victims of cyberstalking or any other criminal behavior. In addition, Moreland has not specified what heightened standard he claims should apply to conduct that is directed at a public figure.
The First Amendment permits legal proscriptions of true threats, which the Supreme Court has said "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Virginia v. Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003). "The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats `protect[s] individuals from the fear of violence' and `from the disruption that fear engenders,' in addition to protecting people `from the possibility that the threatened violence will occur.'" Id. (citations omitted). "Intimidation in the constitutionally proscribable sense of the word is a type of true threat...." Id. As noted, § 2261A(2) expressly includes an element of intent to intimidate, which has also been charged in the Indictment in this case.
Moreland further asserts that Elonis v. United States, ___ U.S. ___, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015) requires dismissal of the Indictment. Unlike
Contrary to Moreland's argument, the statute does not criminalize a defendant's mere transmission of communications that could be perceived by anyone as merely annoying or insulting. Instead, a conviction under the statute requires proof beyond a reasonable doubt that his communications caused, attempted to cause, or were reasonably expected to cause substantial emotional distress, and that such transmissions were made with the intent to intimidate, harass, or injure. See 18 U.S.C. § 2261A(2)(B). Moreland's counsel has acknowledged that at least some of Moreland's communications may be "construed as scary." (Doc. 22 at 2). What he intended by such "scary" communications and whether he had the requisite intent is for the jury to decide, as the Court has no information as to defendant's intent in directing those "scary" communications to CP.
At the motions hearing, defense counsel suggested that a criminal statute cannot be utilized to punish speech that does not cause violence or bodily harm. However, as noted, the Supreme Court has held that criminal statutes may proscribe communications that are made with knowledge that they will be viewed as threatening, see Elonis, 135 S.Ct. at 2012, as well as communications that are "true threats," which include communications that may be made without any actual intent of carrying out violence, see Black, 538 U.S. at 359.
B. Vagueness Challenge
A law can be unconstitutionally vague on its face or in application. United States v. Rodebaugh, 798 F.3d 1281, 1294 (10th Cir. 2015). "A statute can be impermissibly vague for either of two independent reasons. First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement." Id. at 1295 (quoting Jordan v. Pugh, 425 F.3d 820, 824-25 (10th Cir. 2005) and Hill v. Colorado, 530 U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d
The defendant's vagueness arguments fail for the same reasons the Court has rejected his overbreadth arguments. He asserts that § 2261A(2) is vague because Congress has not provided a definition of "harass" or "substantial emotional distress" and thus citizens have not been provided fair warning of what conduct violates the statute. As noted above, courts have rejected similar arguments relating to the statute. See, e.g., Petrovic, 701 F.3d at 856; Osinger, 753 F.3d at 945; Sayer, 748 F.3d at 434-36. While Moreland attempts to distinguish these authorities, their reasoning applies to many of his arguments, including his contention that he was without notice of what conduct would violate the statute. Moreland's argument that the statute prohibits protected speech that is merely annoying or insulting has also been rejected. In Sayer, the defendant argued that the cyberstalking statute "encompasses speech that causes only substantial emotional distress" and therefore "proscribes protected expression that is merely annoying or insulting." 748 F.3d at 435. The First Circuit disagreed and concluded that the statute had many legitimate applications. Id. The statute requires an intent to harass or intimidate, and appellate courts have noted that the specific intent requirement mitigates any potential vagueness in the statutes. See, e.g., Shrader, 675 F.3d at 311; Osinger, 753 F.3d at 945.
Moreover, the definition of "course of conduct," which is an element of the statute that the government must prove beyond a reasonable doubt, undermines Moreland's contention that he was unable to discern what conduct was proscribed. By definition, the government must establish that he engaged in a pattern of conduct — not just a single act — which evidenced a continuity of purpose. 18 U.S.C. § 2266(2) ("The term `course of conduct' means a pattern of conduct composed of 2 or more acts, evidencing a continuity of purpose."). That element, combined with the statute's intent element, eliminates a risk of conviction for some unknowing or accidental transmission of merely insulting or annoying communications.
The Court is also unable to determine that the statute is unconstitutional as applied to Moreland's conduct here. He principally argues that the emails, taken together or alone, do not comprise a true threat because CP did not ask him to stop, CP is a public figure who "involved herself in the most contentious arenas of the public fray," and the "bulk of [his] emails concerned politics." (Doc. 22 at 14). It is true that many of Moreland's emails to CP referenced topics that concern matters at least touching on politics or similar issues of public concern. But his communications to CP went well beyond political statements or comments about issues of public concern. His communications directly referenced violence, indicated frustration that CP would not respond to his hundreds of emails, reflected concern that CP or someone on her behalf wanted to kill Moreland, stated that it was time to "eliminate things" and "fight to the death," informed plaintiff that he knew where her brother was, and repeatedly conveyed that he expected a confrontation with CP or others on her behalf. Along with his numerous emails conveying purported perceptions that he had a relationship with CP (which he did not) and that she wanted to kill him, indicating that he might show up in the city of CP's workplace to force some acknowledgement
C. Sufficiency of the Indictment Regarding "CP's Immediate Family"
In his second motion, Moreland argues that the Indictment is insufficient and is supported by insufficient evidence to the extent that it includes the language "and CP's immediate family." (See Doc. 2). Ordinarily, a motion to dismiss an indictment does not involve consideration of "whether the government has presented sufficient evidence to support the charge, but solely whether the allegations in the indictment, if true, are sufficient to establish a violation of the charged offense." United States v. Todd, 446 F.3d 1062, 1068 (10th Cir. 2006). However, "a district court may `dismiss charges at the pretrial stage ... where the operative facts are undisputed and the government fails to object to the district court's consideration of those undisputed facts in making the determination regarding a submissible case.'" Id. A dismissal under that exception "is the `rare exception,' not the rule," and is granted where "undisputed evidence shows that, as a matter of law, the Defendant could not have committed the offense for which he was indicted." Id. (internal citations omitted).
Here, the Court is persuaded that this case does, in part, present the type of "rare exception" which requires dismissal or striking of the Indictment's charging language that the government represents to include any member of "CP's immediate family" as a victim of Moreland's communications to CP or as subjects who suffered substantial emotional distress as a result of Moreland's conduct.
Moreland also claims that "`immediate family' is an indefinite, imprecise term." That argument is inconsistent with the statute's express definition of "immediate family member," which is "as defined in section 115," and thus includes a "spouse, parent, brother or sister, child" or "any other person living in his household and related to him by blood or marriage," 18 U.S.C. § 115(c)(2), 2261A(1)(A)(ii). However, Moreland correctly points out that the failure to specify which "immediate family" of CP — amongst the very broad definition of that group — were alleged victims renders the Indictment deficient to properly notify the defendant of any particular charge as to the immediate family.
It is undisputed in this case that Moreland did not contact any member of CP's immediate family even once, much less that he engaged in a pattern of 2 or more acts with the intent to injure, harass, or intimidate any such immediate family member or with the purpose, attempt, or expectation that such family members would suffer substantial emotional distress. With regard to CP's family, the undisputed evidence indicates, at most, that CP forwarded or informed one or more family members of Moreland's communications. In the absence of evidence that Moreland himself contacted CP's family or had any intent to intimidate them through the requisite course of conduct, the defendant could not have committed any offense against them, and there is no nexus whatsoever to show that Moreland, by his own conduct, caused the immediate family members emotional distress. The government has not explained how a crime that caused the immediate family members to suffer substantial distress could have been completed — not by the defendant's own acts or pattern of conduct — but by CP's actions in forwarding Moreland's communications to her family members. Thus, the undisputed evidence establishes, as a matter of law, that Moreland could not have committed a § 2261A(2)(B) offense against any of CP's immediate family members, and there is no evidence that he engaged in a course of conduct intended to cause them distress. Any other reading or application of § 2261A(2)(B) to consider a crime allegedly completed by CP's transmission of emails to her immediate family members, thereby causing them substantial emotional distress, would render the inclusion of "immediate family member" within that subsection unconstitutionally vague as applied to the evidence here.
Accordingly, the defendant's Second Dismissal Motion (Doc. 44) is granted in part, to the extent that the charging language "and CP's immediate family" will not be considered by the jury at trial, and CP's immediate family shall not be presented as alleged victims or as subjects who were substantially emotionally distressed as a result of Moreland's conduct.
For the foregoing reasons, the First Motion to Dismiss (Doc. 22) is
SO ORDERED this 14th day of September, 2016.
While this may be some evidence of Moreland's intent, the Court need not determine that issue, as it is one for the jury to determine after weighing the evidence in this case.