43 F.4th 437
5th Cir.2022Background
- In April 2020 Perez posted on Facebook that he had paid a COVID‑19–positive relative to lick “everything” in two San Antonio grocery stores; the statements were false.
- An unknown tip triggered an FBI investigation; agents interviewed Perez, obtained warrants, searched his home, and arrested him. H‑E‑B investigated but did not close stores; no public panic is shown.
- Perez was indicted on two counts under 18 U.S.C. § 1038(a)(1) (terrorist‑hoax statute) for hoaxes simulating violations of 18 U.S.C. § 175 (biological‑weapons statute), convicted by a jury, and sentenced to 15 months’ imprisonment.
- On appeal Perez argued (1) § 175 does not reach purely local conduct (invoking Bond v. United States) so his alleged conduct was outside federal reach; (2) § 1038(a)(1) violates the First Amendment (as‑applied and facially); and (3) the PSR miscalculated his criminal‑history points.
- The Fifth Circuit: (a) agreed § 175 contains a Bond‑style local‑crimes exception but held Perez’s claimed scheme was not purely local and therefore within § 175’s sweep; (b) held Perez’s posts qualified as unprotected true threats and rejected his facial overbreadth challenge to § 1038(a)(1); (c) affirmed the conviction but vacated and remanded for resentencing because the PSR plainly erred in criminal‑history calculation.
Issues
| Issue | Plaintiff's Argument (U.S.) | Defendant's Argument (Perez) | Held |
|---|---|---|---|
| Whether § 175 contains a Bond‑style implied exception for purely local crimes and whether Perez’s alleged conduct falls outside federal reach | §175 covers biological weapons and, given interstate implications and potential for mass harm, applies to Perez’s claimed conduct | §175, like §229 in Bond, should not reach purely local conduct such as licking items in local grocery stores | Court: §175 does have a Bond local‑crimes exception, but Perez’s alleged scheme (internet posts, use of interstate instrumentality, potential for mass harm) was not purely local and falls within §175’s reach |
| Whether applying §1038(a)(1) to Perez’s Facebook posts violated the First Amendment as‑applied | Posts threatened to spread COVID‑19 at public stores—these are true threats and are unprotected speech | Posts were hyperbole/jokes or political exhortation to follow lockdowns and thus protected | Court: As‑applied challenge fails; posts qualify as true threats (serious expression of intent to commit unlawful violence) and are unprotected |
| Whether §1038(a)(1) is facially overbroad under the First Amendment | The statute is narrowly targeted to hoaxes posing risks (panic, waste of resources) and requires intent and circumstances that make falsehoods reasonably believable | The statute is broad and could criminalize protected lies, mockumentaries, or inadvertent misinformation | Court: Facial overbreadth fails—statute’s mens rea and “reasonably be believed” requirement cabin its scope and do not render it substantially overbroad relative to its legitimate sweep |
| Whether the district court plainly erred in calculating Perez’s criminal‑history points at sentencing | Government concedes the PSR misapplied Guidelines regarding a deferred‑adjudication sentence over 10 years old | Perez argues the PSR improperly added two criminal‑history points, affecting his Guidelines range | Court: Plain error shown; recalculation required—vacates sentence and remands for resentencing |
Key Cases Cited
- Bond v. United States, 572 U.S. 844 (establishing clear‑statement federalism principle and local‑crime exception)
- Gregory v. Ashcroft, 501 U.S. 452 (clear‑statement rule for federal intrusion into traditional state authority)
- United States v. Levenderis, 806 F.3d 390 (6th Cir.) (applying Bond analysis to §175)
- United States v. Le, 902 F.3d 104 (2d Cir.) (considering internet/interstate factors in §175 analysis)
- United States v. Hale, 762 F.3d 1214 (10th Cir.) (guidance on when biological‑weapon conduct is not purely local)
- Virginia v. Black, 538 U.S. 343 (defining true threats as unprotected speech)
- United States v. Stevens, 559 U.S. 460 (overbreadth framework and caution on facial challenges)
- United States v. Williams, 553 U.S. 285 (first step in overbreadth analysis is statutory construction)
- Molina‑Martinez v. United States, 578 U.S. 189 (incorrect Guidelines range can create reasonable probability of a different outcome)
- Rosales‑Mireles v. United States, 138 S. Ct. 1897 (plain‑error review standards)
- United States v. Morales, 272 F.3d 284 (5th Cir.) (standard for speech that may reasonably be believed)