20 F.4th 1353
11th Cir.2021Background
- Between Dec. 22, 2018 and Jan. 11, 2019 Brandon Fleury sent dozens of anonymous Instagram messages and posts impersonating mass murderers (e.g., “Teddykillspeople,” “nikolas.killed.your.sister”) to three people who lost relatives in the Marjory Stoneman Douglas (MSD) school shooting. Law enforcement traced the messages to Fleury’s IP and he admitted sending them.
- Messages included present-tense statements (e.g., “I’m your abductor. I’m kidnapping you fool,” “With the power of my AR-15, you all die”) that victims testified caused fear and led to police protection for one victim.
- Indictment charged Fleury with one count of interstate transmission of threats (18 U.S.C. § 875(c)) and three counts of cyberstalking (18 U.S.C. § 2261A(2)(B)).
- Defense conceded Fleury sent the messages but argued he lacked requisite subjective intent because of ASD and other disorders; defense expert (Dr. Butts) diagnosed ASD Level 2 and minimized emotional comprehension; government expert (Dr. Dietz) diagnosed ASD Level 1 and testified Fleury intended to cause fear/grief.
- Jury convicted on all counts; district court sentenced Fleury to 66 months’ imprisonment plus supervised release. Fleury appealed raising challenges to § 2261A(2)(B)’s constitutionality, sufficiency of the indictment and evidence of intent, expert testimony admissibility, and jury instructions.
Issues
| Issue | Fleury's Argument | Government's Argument | Held |
|---|---|---|---|
| Facial overbreadth of § 2261A(2)(B) | Statute sweeps in substantial protected speech by criminalizing speech that merely causes emotional distress | Statute requires intent and a course of conduct, so it targets criminal conduct not protected speech | Rejected — statute not substantially overbroad; it targets conduct with mens rea and many unprotected applications exist |
| As-applied challenge: true threats / public concern / content-based restriction | Messages addressed a public- concern event (MSD shooting) and statute impermissibly restricts content by criminalizing emotionally distressing speech | Messages were true threats (unprotected); they did not address public issues and statute applies to intent-based conduct | Rejected — messages were true threats, not public- concern speech; content-based restriction permissible as it falls within true-threats exception |
| Sufficiency of indictment on cyberstalking counts | Indictment relied on emotional distress language rather than explicitly alleging messages were true threats | Indictment tracked statute, gave adequate notice, and was sufficient | Rejected — indictment sufficient; defendant did not raise challenge below, and the charging language tracked statute |
| Sufficiency of evidence of subjective intent | Fleury’s ASD precluded proof he intended to threaten — experts conflicted, so evidence insufficient | Government presented expert and other evidence (present-tense threats, aliases, volume/frequency, admissions) from which a jury could infer intent | Rejected — viewing evidence in prosecution’s favor, a rational jury could find requisite intent |
| Admissibility of Dr. Dietz’s testimony | Dr. Dietz lacked ASD specialization; testimony about Fleury’s sexual attraction to killers unfairly prejudicial and invited guilt by association | Dr. Dietz is a forensic psychiatrist who evaluated Fleury for eight hours; his testimony was relevant to motive, understanding, and intent | Rejected (plain-error standard): testimony admissible and relevant under Rules 401/702; no plain error shown |
| Jury instructions (Elonis mens rea issue & theory-of-defense instruction) | Court should have required proof of defendant’s subjective intent to communicate a true threat (per Elonis rationale) and should have given Fleury’s proposed true-threat definition | §2261A(2)(B) already contains mens rea (intent to harass/intimidate); additional subjective-true-threat element would rewrite statute; jury charge adequately covered defense | Rejected — Elonis does not require extra mens rea here because statute contains intent elements; trial court’s instructions (including true-threat language and intent-to-harass/intimidate definitions) were adequate |
Key Cases Cited
- United States v. Ackell, 907 F.3d 67 (1st Cir.) (upholding §2261A(2)(B) against facial overbreadth; statute targets conduct with criminal intent)
- United States v. Petrovic, 701 F.3d 849 (8th Cir.) (rejecting overbreadth challenge to prior version of §2261A)
- United States v. Osinger, 753 F.3d 939 (9th Cir.) (similar rejection of overbreadth challenge to cyberstalking statute)
- Elonis v. United States, 575 U.S. 723 (2015) (interpreting mens rea for §875(c); jury cannot convict solely on reasonable-person standard)
- Virginia v. Black, 538 U.S. 343 (2003) (defining category of true threats and their unprotected status)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for sufficiency of the evidence review)
- United States v. Williams, 553 U.S. 285 (2008) (overbreadth doctrine requires substantial infringement relative to legitimate sweep)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (identifying well-defined unprotected speech categories)
- Snyder v. Phelps, 562 U.S. 443 (2011) (explaining public-concern speech receives heightened protection)