Defendants-Appellants Jeffrey Kilbride and James Schaffer (“Defendants”) appeal their convictions and sentences for fraud and conspiracy to commit fraud in connection with electronic mail, interstate transportation and interstate transportation for sale of obscene materials, and conspiracy to commit money laundering. We affirm, but remand for a clerical correction.
Defendants’ convictions arose from conduct relating to their business of sending unsolicited bulk email, popularly known as “spam,” advertising adult websites.
See United States v. Kelley,
I. Background
A. Defendants’ Bulk Email Advertising Business
Defendants began their bulk email advertising business in 2003. They initially operated the business through an American corporation, using servers in Arizona. In response to new legislation regulating email communication, the Defendants shifted the operation of their business overseas, running it through Ganymede Marketing (“Ganymede”), a Mauritian company, and using servers located in the Netherlands. Although Defendants used a business structure preventing a direct link to Ganymede, Defendants were its true owners and operators. If a recipient of Defendants’ emails signed on to the advertised website and paid a fee, Defendants earned a commission from the entity promoted. The advertisements appearing in Defendants’ emails included sexually explicit images, two of which formed the basis for the obscenity convictions.
Defendants had their employees place fictitious information in the headers 1 of their bulk emails. Defendants’ employee Jennifer Clason created nonsensical domain names and matched them with generic user names to generate a series of different email addresses that were almost certainly nonfunctional. These were placed in the “From” field of the headers of each email sent out. 2 Another employee of Defendants, Kirk Rogers, designed a program utilized by Defendants that gen *1245 erated non-functioning email addresses in the “From” field by combining the domain name used to send each email with the recipient of the email’s user name. In addition, the email address appearing in the “From” field and “Return-Path” field of the headers of Defendants’ emails differed, indicating at least one was false.
Defendants also falsified information appearing in the registration of the domain names they used. The registrant for each of the emails was listed as Ganymede Marketing. The correct physical address for Ganymede was listed, but the contact person and phone number listed were false. The email listed in the registration was never tested for functionality, though the evidence indicates that at some point it became invalid. A reverse look-up of the internet provider address appearing in the email headers came back to a different entity, Kobalt Networks, registered in the Netherlands.
B. Indictment and Tñal
On August 25, 2005, Defendants were indicted for conspiracy to violate 18 U.S.C. § 1037(a)(3) through fraud in connection with electronic mail (Count 1), violation of § 1037(a)(3) and (a)(4) through such fraud (Counts 2 and 3), interstate transportation of obscene materials in violation of 18 U.S.C. § 1462 (Counts 4 and 5), interstate transportation of obscene materials for sale in violation of 18 U.S.C. § 1465 (Counts 6 and 7); conspiracy to commit money laundering in violation of 18 U.S.C. § 1956 (Count 8), and failure to meet record keeping requirements in violation of 18 U.S.C. § 2257 (Count 9). Jennifer Clason was indicted as a co-conspirator. She pled guilty and testified against Defendants.
Defendants were convicted on all counts following a three-week jury trial. The two sexually explicit images forming the basis of the obscenity charges were introduced. Jennifer Clason testified to sending these images on behalf of Defendants using the Defendants’ bulk email interface. Evidence was presented at trial as to the obscenity of the two images. The Government called eight witnesses from various parts of the country who had complained to the Federal Trade Commission (“FTC”) about Defendants’ emails. These witnesses testified to the circumstances under which they received Defendants’ emails, their reactions to and attitude towards the images sent by Defendants, and their views on pornography generally. Some of the witnesses did not specifically recall receiving the two images at issue. The Government also presented evidence of over 662,000 complaints received by the FTC from around the country concerning Defendants’ emails, including the text of some of the complaints. Defendants called Jay Pirouznia, a private investigator, who testified as to various digital video discs containing images similar to those at issue that he purchased in the Phoenix metropolitan area and other counties in Arizona.
Prior to the reading of the jury instructions at trial, Defendants objected to instructions relating to Counts 1 through 7 on various grounds, some of which are raised in this appeal. Following their convictions, Defendants filed a motion for judgment of acquittal or a new trial raising grounds not at issue in this appeal. The motion was denied, but a separate motion to dismiss Count 9 was granted.
C. Sentencing
Jeffrey Kilbride (“Kilbride”) was sentenced to 78 months and Robert Schaffer (“Schaffer”) was sentenced to 63 months. The district court determined that Defendants’ convictions under Counts 1, 2, and 3 were misdemeanors under the terms of § 1037 because the jury had not been asked to make the necessary findings under the statute to render Defendants’ con *1246 victions felonies. However, despite referencing the misdemeanor penalty provisions of § 1037, the written judgments for Defendants designated these convictions as felonies.
Over Kilbride’s objection, the district court applied a two-level obstruction of justice enhancement to his sentence. The enhancement was based on Kilbride’s attempts to prevent Laval Law, an officer of Ganymede, from testifying. Law traveled to the United States from Mauritius to testify for the Government in Defendants’ trial. 3 On June 8, 2007, several days prior to Law’s testimony, Defendant Kilbride filed an action in the courts of Mauritius against Law and other entities, alleging the illegal disclosure of Ganymede documents. He obtained a temporary injunction prohibiting Law and the other respondents from testifying concerning the affairs of Ganymede and related entities and beneficiaries. Kilbride filed his action shortly prior to the time for Law’s scheduled testimony, despite the fact that the Ganymede documents at issue in the action were obtained by the Government in 2005, and had been disclosed in discovery, and the fact that the Government had made arrangements in May 2007 for Law to travel and testify. In addition, in filing the action, Kilbride asserted an interest in Ganymede in contradiction to his attempts at trial to distance himself from Ganymede. Law subsequently declined to testify out of fear that he would be held in contempt in Mauritius. On June 11, 2007, in light of the injunction, the Government filed an emergency motion requesting that the district court enter a protective order determining the scope of Law’s testimony. When confronted by the district court at a hearing on the matter, Kilbride’s trial counsel agreed to take action that eventually led to the lifting of the injunction as to Law, allowing Law to testify. Rejecting Kilbride’s explanations for obtaining the order, the district court found that Kilbride filed the action as an intentional tactical maneuver to prevent Law from testifying and, therefore, merited application of the obstruction of justice enhancement.
II. Discussion
A. Challenge to Jury Instructions Defining Obscenity
The Defendants challenge their convictions on Counts 4 through 7 on the ground that the district court erred in instructing the jury as to the definition of obscene expression regulated by 18 U.S.C. §§ 1462 and 1465. Obscene expression is not protected by the First Amendment.
Kois v. Wisconsin,
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable ... law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Defendants’ challenge to the adequacy of the jury instructions’ definition of obscenity focuses on the instructions’ explication of the meaning of the term “contemporary community standards.” The application of contemporary community standards in defining obscenity is intended to ensure that “so far as material is not aimed at a deviant group, it will be judged by its impact on an average person, rather than a particularly susceptible or sensitive person — or indeed a totally insensitive one.”
Miller,
Defendants raise alternative arguments as to why the district court improperly instructed the jury about the meaning of “contemporary community standards.” Defendants first assert that the district court erred by instructing the jurors to apply the standards of communities beyond their own community or of a global community in determining contemporary community standards, contravening Ham-ling’s, expectation that jurors would look only to their own local community’s standards. Second, Defendants argue that as the obscenity at issue was transported via email, the district court erred by failing to hold that existing precedent was inapplicable and instructing the jury to determine contemporary community standards by reference to the national community. Hence, in a sense, Defendants argue the instructions fell between two stools. In the view of Defendants, the instructions neither complied with the localized definition of contemporary community standards mandated by existing precedent, nor complied with the national definition of contemporary community standards that Defendants propose we should now hold is applicable to expression disseminated through email. We review these alternative contentions in sequence.
1. Standards of Review
We “review de novo whether a jury instruction misstates an element of a crime, and we review for abuse of discretion a district court’s formulation of an instruction.”
United States v. Peterson,
2. Adequacy of Jury Instructions
Defendants assert first that the jury-instructions failed to comply with the prevailing definition of contemporary community standards for purposes of federal obscenity prosecutions outlined in Hamling. Defendants object specifically to various phrases in the district court’s Jury Instruction Number 36 defining obscenity, claiming they impermissibly allowed the jurors to rely on standards outside their own community or on some broad global standard in determining contemporary community standards. First, Defendants object to the instruction’s reference to contemporary community standards as involving
what is in fact accepted in the community as a whole; that is to say by society at large, or people in general, and not merely by what the community tolerates nor by what some persons or groups of persons may believe the community as a whole ought to accept or refuse to accept.
(Emphasis added.) Second, Defendants object to the portion of the instruction stating: “The ‘community’ you should consider in deciding these questions is not defined by a precise geographic area. You may consider evidence of standards existing in places outside of this particular district.” Finally, Defendants object to the portion of the instruction stating: “The parties have presented evidence concerning contemporary community standards. You should consider the evidence presented, but you may also consider your own experience and judgment in determining contemporary community standards.” Defendants assert this final portion is problematic because the only evidence of community standards presented by the Government related to communities outside the district where the prosecution occurred. Defendants objected to all these portions of the instruction in the district court.
We conclude, applying the prevailing definition of contemporary community standards put forth in
Hamling,
that the challenged portions do not constitute prejudicial error.
See Chapman,
Similarly, the challenged portion of the instruction explicitly and implicitly allowing jurors to consider evidence of standards existing in places outside of the district is clearly permitted under
Hamling.
There, the Court found that, though jurors would most likely draw from the standards of the community they came from in determining contemporary community standards, “this is not to say that a district court would not be at liberty to admit
*1249
evidence of standards existing in some place outside of this particular district, if it felt such evidence would assist the jurors in the resolution of the issues which they were to decide.”
Furthermore, at trial neither the Government nor Defendants argued that the jury should apply anything other than their own sense of what contemporary community standards are. Both parties referenced the evidence of community standards outside the district merely as one piece of evidence to consider in determining contemporary community standards. Hence, even were we to accept Defendants’ view that the instructions could be read as permitting application of the standards of some community other than that of the jurors, neither party made any argument urging them to do so. 4
The instruction’s references to “society at large” and “people in general” are also not objectionable. Defendants assert that these references indicated that the relevant contemporary community standard is a global or societal one. However, the two references instead simply form part of a general instruction to apply the standards of the community as a whole and not of specific persons or groups, which is the rationale for defining obscenity by reference to contemporary community standards.
Miller,
*1250
Even assuming the challenged references erroneously allowed the jury to apply a global community standard, we conclude Defendants were not prejudiced. The Government at no point presented evidence to the jury purporting to illustrate a global or societal community standard and at no point argued to the jury for application of such a standard. The only reference to a global or communal community standard was in fact made by Defendants, necessarily implying that such a standard would be more tolerant of sexually explicit material than a local standard. Absent any argument or evidence presented to the jury illustrating a global or societal community standard less tolerant than that of the jurors’ own sense of contemporary community standards, instruction to the jury allowing application of a global standard or societal standard is harmless.
Cf. Cutting,
Hence, we conclude the district court’s instruction on the meaning of contemporary community standards was not prejudicial error according to the prevailing definition of obscenity in federal prosecutions. We now turn to Defendants’ alternative claim that the district court erred in not finding the prevailing definition of obscenity inapplicable to works disseminated via email communication.
3. Necessity of National Community Standard
Defendants assert in the alternative that
Hamling’s
prevailing definition of contemporary community standards is not appropriate for speech disseminated via email. Because persons utilizing email to distribute possibly obscene works cannot control which geographic community then-works will enter, Defendants argue that applying
Hamling’s
definition of contemporary community standards to works distributed via email unavoidably subjects such works to the standards of the least tolerant community in the country. This, Defendants assert, unacceptably burdens First Amendment protected speech. To avoid this constitutional problem, Defendants argue, obscenity disseminated via email must be defined according to a national community standard. Defendants, however, did not raise this argument in the district court. Accordingly, we review the district court’s failure to instruct the jury to apply a national community standard for plain error.
Peterson,
Defendants’ argument is not an entirely novel one. In
Sable Communications of
*1251
California, Inc. v. FCC,
Defendants assert that speech disseminated via email is distinguishable from the speech disseminated via regular mails or telephone at issue in Hamling and Sable because there is no means to control where geographically their messages will be received. Hence, they cannot tailor their message to the specific communities into which they disseminate their speech and truly must comply with the standards of the least tolerant community in a manner the defendants in Hamling and Sable did not.
The Supreme Court has analogously recognized that the application of localized community standards to define regulated indecent and obscene Internet speech may generate constitutional concerns for exactly this reason. In
Reno v. ACLU,
The Supreme Court’s fractured decision in
Ashcroft v. ACLU,
Justice Thomas, joined by two other justices, recognized that, regardless of whether a national or local community standard was used for defining material harmful to minors under COPA, “the variance in community standards across the country could still cause juries in different locations to reach inconsistent conclusions as to whether a particular work is ‘harmful to minors.’ ”
Id.
at 577,
But Justice Thomas’s blanket dismissal of the overbreadth problem identified by the Third Circuit was not joined by a majority of the Court. The remaining two Justices forming the majority were much less sanguine about the application of local community standards in defining Internet obscenity. Justice O’Connor, writing for herself, agreed with Justice Thomas that the respondents had failed to demonstrate on the record before the Court that any variance in local community standards supported a finding that COPA was facially overbroad.
Id.
at 586,
Justice Breyer, also writing for himself, agreed with Justice O’Connor that
[t]o read the statute as adopting the community standards of every locality in the United States would provide the most puritan of communities with a heckler’s Internet veto affecting the rest of the Nation. The technical difficulties associated with efforts to confine Internet material to particular geographic areas make the problem particularly serious.
Id.
at 590,
The remaining justices in the majority joined Justice Kennedy’s opinion. Justice Kennedy agreed with Justices O’Connor and Breyer that “[t]he national variation in community standards constitutes a particular burden on Internet speech.”
Id.
at 597,
The lone dissenter, Justice Stevens would have held that the use of varying local community standards to define speech regulated by COPA rendered the law unconstitutionally overbroad for the reasons outlined by Justices O’Connor and Breyer regardless of how it was construed.
Id.
at 602-12,
The divergent reasoning of the justices in and out of the majority in
Ashcroft
leaves us with no explicit holding as to the appropriate geographic definition of contemporary community standards to be applied here. Nonetheless, we are able to derive guidance from the areas of agreement in the various opinions. “When a fragmented Court decides a case and no single rationale explaining the result en
*1254
joys the assent of five Justices, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.’ ”
Marks v. United States,
Accepting this distinction, in turn, persuades us to join Justices O’Con-nor and Breyer in holding that a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. “‘A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.’ ”
Almendarez-Torres v. United States,
*1255
The Government argues our proposed holding is foreclosed by our opinion in
United States v. Dhingra,
That the persuasion of others for sexual activity occurs over the Internet offers no talismanic protection from the established rule that the burden of complying with the statute rests with the person doing the persuading. The fact that various community standards might apply does not make the statute unconstitutional.
Id. at 564 (internal quotation marks and citations omitted). However, our analysis in Dhingra is inapplicable here because we found § 2422(b) did not regulate speech. Id. at 563 (“Because the statute regulates conduct, not speech, it is inappropriate to bootstrap our First Amendment jurisprudence into the context of criminal sexual contact.”). To the extent Dhingra’s language could be broadly interpreted as applying to regulation of Internet speech, it is dictum and hence not controlling. Therefore, Dhingra does not preclude our reading of Ashcroft.
In light of our holding, the district court’s jury instructions defining obscenity pursuant to
Hamling
was error. However, this error does not require reversal because the district court’s error was far from plain. “Error is plain where it is ‘clear and obvious.’ ”
United States v. Recio,
*1256 B. Vagueness Challenge to 18 U.S.C. § 1037
Defendants challenge their convictions for violation of 18 U.S.C. § 1037 on the ground that § 1037 is unconstitutionally vague both on its face and as applied to Defendants’ conduct. Defendants previously raised their vagueness challenge in the district court. Therefore, we review the district court’s determination of the constitutionality of § 1037
de novo. United States v. Naghani,
18 U.S.C. § 1037 was enacted as part of the Controlling the Assault of Non-Solicited Pornography and Marketings Act of 2003 (“CAN-SPAM Act”), Pub.L. No. 108-187, 117 Stat. 2699 (codified at 18 U.S.C. § 1037, 15 U.S.C. §§ 7701-7713). The CAN-SPAM Act was enacted to prevent senders of electronic mail from deceiving recipients “as to the source or content of such mail” and to ensure that recipients “have a right to decline to receive additional commercial electronic mail from the same source.” 15 U.S.C. § 7701(b)(2)-(3). Defendants were convicted specifically under 18 U.S.C. § 1037(a)(3) and (a)(4). Section 1037(a)(3) provides:
Whoever, in or affecting interstate or foreign commerce, knowingly—.... materially falsifies header information in multiple commercial electronic mail messages and intentionally initiates the transmission of such messages ... shall be punished....
18 U.S.C. § 1037(a)(3). Section 1037(a)(4) provides:
Whoever, in or affecting interstate or foreign commerce, knowingly—.... registers, using information that materially falsifies the identity of the actual registrant, for five or more electronic mail accounts or online user accounts or two or more domain names, and intentionally initiates the transmission of multiple commercial electronic mail messages from any combination of such accounts or domain names ... shall be punished ....
Id. § 1037(a)(4). “Initiates” is defined by statute as “to originate or transmit such message or to procure the origination or transmission of such message.” 15 U.S.C. § 7702(9). The statute further provides that
header information or registration information is materially falsified if it is altered or concealed in a manner that would impair the ability of a recipient of the message, an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation.
18 U.S.C. § 1037(d)(2). Defendants argue that the terms “impair” and “altered or concealed” as used in the statute’s definition of “materially falsified” are unconstitutionally vague. They also assert an as-applied vagueness challenge claiming these terms gave them insufficient notice that the conduct they committed was illegal under § 1037. They do not raise a vagueness challenge as to any other terms in the statute.
“Vagueness doctrine is an outgrowth not of the First Amendment, but of the Due Process Clause of the Fifth Amendment.”
United States v. Williams,
1. As-Applied Challenge
We conclude Defendants’ as-applied vagueness challenge fails even applying a heightened requirement of clarity. They had clear notice their conduct was a violation of § 1037(a)(3) and (a)(4). Defendants assert that they lacked notice that their actions would constitute “material falsification” under the statute. The terms Defendants regard as vague in the definition of material falsification are “impair,” “altered,” and “concealed.” “When Congress does not define a term in a statute, we construe that term according to its ordinary, contemporary, common meaning.”
United States v. W.R. Grace,
Defendants sole concrete argument in support of their as-applied challenge is that, with regard to their conviction under § 1037(a)(4), there was no attempt made by the Government to determine whether the email listed in their domain registration was inaccurate. Defendants assert that they had no notice under the terms of the statute that the intentional placing of a false contact person and phone number in their registration would constitute intentional impairment when the email listed may have been accurate. This argument is unpersuasive. As an initial matter, evi *1258 dence was presented at trial that the email listed in the domain name registrations at issue was invalid. Even were this not the case, “impair” clearly is not synonymous with “completely obstruct.” To impair, according to its plain meaning, merely means to decrease. It should have been clear to Defendants that intentionally falsifying the identity of the contact person and phone number for the actual registrant constitutes intentionally decreasing the ability of a recipient to locate and contact the actual registrant, regardless of whether a recipient may still be left some avenue to do so. We therefore conclude Defendants had notice that their conduct violated § 1037.
2. Facial Challenge
Defendants’ facial vagueness challenge is similarly unavailing. We have held that “ordinarily a plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”
Williams,
In parallel to their as-applied challenge, Defendants’ facial challenge rests on the claim that the term “impair” is so vague as to leave it to the complete discretion of police officers how the statute is enforced. We disagree. “Impair” is a broad term that potentially subjects a wide swath of conduct to regulation under § 1037. Nonetheless, as already discussed, it has a clear meaning that is not open to wholly subjective interpretation in the manner of other terms found to be unconstitutionally vague.
Cf. Kolender v. Lawson,
*1259
Defendants also argue that the definition of “material falsification” renders § 1037 unconstitutionally vague specifically as to whether it would criminalize private registration of a domain name. As testified to at trial, private registration is a service that allows registration of a domain name in a manner that conceals the actual registrant’s identity from the public absent a subpoena. We fail to perceive any vagueness on this point. Based on the plain meaning of the relevant terms discussed above, private registration for the purpose of concealing the actual registrant’s identity would constitute “material falsification.” Defendants assert that many innocent people who privately register without the requisite intent may be subject to investigation for violation of § 1037 until their intent can be determined, allowing for abuse by enforcement authorities. This may be so, but it does not make the statute unconstitutionally vague. As we recently noted, “‘[w]hat renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.’ ”
Schales,
C. Clerical Error
Defendants additionally claim there is a clerical error in the written judgment incorrectly labeling Defendants’ Counts 1 through 3 convictions as Class D and E felonies. The written judgment as to Counts 2 and 3 references § 1037(b)(3) as the relevant penalty provision. Section 1037(b)(3) provides as a penalty “a fine under this title or imprisonment for not more than 1 year, or both.” 18 U.S.C. § 1037(b)(3). The written judgment’s reference to § 1037(b)(3) reflects the district court’s prior determination that the jury was not instructed to make the requisite additional factual findings necessary for applying the more severe § 1037(b)(1) or (b)(2) penalty provisions. A crime punishable by a year or less in prison is classified as a misdemeanor.
See id.
§ 3581(b). Hence, Defendants’ Counts 2 and 3 convictions are properly classified as misdemeanors. Furthermore, because a conspiracy to commit a misdemeanor is a misdemean- or itself,
see id.
§ 371, Defendants’ Count 1 conviction is also properly classified as a misdemeanor. The Government does not cross-appeal the district court’s determination that the appropriate penalty provision for Defendants’ convictions was § 1037(b)(3). Therefore, we conclude the written judgment’s classification of Counts 1 through 3 as Class D and E felonies is a clerical error requiring remand for correction.
See
Fed.R.Crim.P. 36;
Territory of Guam v. Gill,
D. Challenge to Money Laundering Conspiracy Convictions
Defendants appeal their Count 8 convictions under 18 U.S.C. § 1956(h) for conspiracy to commit money laundering, asserting instructional error. As Defendants did not raise their objections to the § 1956 jury instructions in the district court, we
*1260
review for plain error.
Peterson,
transports, transmits, or transfers, or attempts to transport, transmit, or transfer a monetary instrument or funds from a place in the United States to or through a place outside the United States or to a place in the United States from or through a place outside the United States ... knowing that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity and knowing that such transportation, transmission, or transfer is designed in whole or in part ... to conceal or disguise the nature, the location, the source, the ownership, or the control of the proceeds of specified unlawful activity.
18 U.S.C. § 1956(a)(2)(B)(i) (emphasis added). Section 1956 further provides that
the term “knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity” means that the person knew the property involved in the transaction represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under State, Federal, or foreign law.
Id. § 1956(c)(1) (emphasis added). Both the Indictment and jury instructions specify that the “some form of unlawful activity” was Defendants’ conduct violating 18 U.S.C. § 1037(a)(3) and (a)(4) and that the “specified unlawful activity” was Defendants’ conduct violating 18 U.S.C. §§ 1462 and 1465.
Defendants raise two interrelated assertions of instructional error. First, Defendants argue that if the court overturns its 18 U.S.C. §§ 1037, 1462, and 1465 convictions pursuant to the other aspects of its appeal, it must also reverse its § 1956(h) conviction because Defendants’ § 1956(h) conviction relied on a finding that Defendants’ related activity was unlawful. As we do not sustain these other aspects of Defendants’ appeal, we may reject this argument without further discussion.
Second, Defendants argue that even if their 18 U.S.C. §§ 1037, 1462, and 1465 convictions are upheld, the fact that their 18 U.S.C. § 1037 convictions are properly categorized as misdemeanors, see supra Section II.C, requires reversal because § 1956 defines “some form of unlawful activity” as felonious activity. 18 U.S.C. § 1956(c)(1). We conclude that the district court’s instruction was in error. The district court’s Jury Instruction Number 46 on what constitutes a violation of § 1956(a)(2)(B)(i) included the following requirement:
The person knows that the money represents the proceeds of some form of unlawful activity, in this case, the a[sic] violation of 18 U.S.C. § 1037(a)(3) or § 1037(a)(4) as set forth in Counts Two and Three of the Indictment[.]
The instruction further stated:
To know that money involved in a financial transaction represents the proceeds of some form of unlawful activity, the person must know that the money represented proceeds from some form, though not necessarily which form, of activity that constitutes a felony under State, Federal, or foreign law.
As set forth in the Indictment, Counts Two and Three included allegations of conduct that would warrant application of felony-level penalties under § 1037(b)(2). However, Jury Instructions *1261 Number 25 and 29 related to these counts state clearly that “[i]n order to prove the charge” for each the jury needed only to find conduct sufficient to support application of the misdemeanor level penalties under § 1037(b)(3). Such instructions allowed the jury to convict Defendants of Count 8 by finding related activity that constituted only a misdemeanor violation of § 1037. We conclude it is unlikely that the jury interpreted the “as set forth in the Indictment” language in Jury Instruction Number 46 as requiring them to define a violation of § 1037(a)(3) and (a)(4) for purposes of finding a violation of § 1956 by reference to all the factual allegations made in Counts 2 and 3 of the Indictment. The jury more likely simply referred to Jury Instructions Number 25 and 29 to define a violation of those provisions for purposes of all counts. At a minimum, the instructions created serious ambiguity as to what was required. Furthermore, the instruction to the jury that the unlawful activity must be a felony could not have cured this error because there was no instruction given to the jury as to what was required to render a § 1037 violation a felony or as to whether any violation alleged in the Indictment was or was not a felony.
Having determined there was error, we must determine whether it was plain. We find it is not, as it did not seriously affect the fairness, integrity or public reputation of the proceedings.
See Peterson,
E. Challenge to Obstruction of Justice Enhancement
Kilbride asserts that the district court’s application of a two-level obstruction of justice enhancement to his sentence was error. “We review the district court’s interpretation of the Sentencing Guidelines de novo” and its “findings of fact ... for clear error.”
United States v. Rivera,
If (A) the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction, and (B) the obstructive conduct related to (i) the defendant’s offense of conviction and any relevant conduct; or (ii) a closely related offense, increase the offense level by 2 levels.
U.S.S.G. § 3C1.1. Among the examples of covered conduct described in the application notes is “threatening, intimidating, or otherwise unlawfully influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to do so.”
Id.
§ 3C1.1, App. Note 4(a);
see United States v. Rising Sun,
The undisputed factual findings of the district court with regard to the timing of Kilbride’s Mauritius lawsuit — that it was filed mere days prior to Law’s testimony when the documents underlying the action were disclosed to the defense in 2005— fully support the district court’s determination that the action was filed for the illegitimate purpose of preventing Law’s testimony. Actions filed without legitimate purpose may qualify as unlawful harassment and hence constitute an attempt to intimidate or unlawfully influence a witness.
See United States v. Lewis,
III. Conclusion
We affirm Defendants’ convictions and sentences. We remand to the district court to correct the clerical error in the written judgment describing Defendants’ misdemeanor convictions under Counts 1 through 3 as felonies.
AFFIRMED and REMANDED
Notes
. A “header'' is called “header information” in the relevant statute and defined as "the source, destination, and routing information attached to an electronic mail message, including the originating domain name and originating electronic mail address, and any other information that appears in the line identifying, or purporting to identify, a person initiating the message.” 15 U.S.C. § 7702(8).
. In an email address, the user name is the portion appearing before the @ symbol, while the domain name is the portion appearing after the @.
. The description of the events underlying the application of the obstruction of justice enhancement are drawn from the district court’s findings at sentencing, which are uncontested by Defendants.
. Defendants also briefly argue that this portion of the instruction was problematic because Defendants had no notice that other communities’ standards would be considered and, therefore, did not present any evidence of such standards. This argument lacks any foundation. The instructions applied by the district court were proposed prior to trial, the Government presented out-of-district evidence of community standards during the trial, and the instructions merely reflect the clear directive of Hamling.
. Defendants also note that the instructions given varied from the instructions given in an obscenity case in the same courthouse, which Defendants request the court to take judicial notice of. By separate order, we deny the motion. Any variance in the instructions is irrelevant. There is no requirement that instructions for the same offense be formulated in the exact same manner in different prosecutions.
See United States
v.
Hicks,
. While the posture of Dachsteiner and Cutting required us to apply a less stringent prejudice inquiry than we do here, our observations on the nature of prejudice in those cases are entirely applicable.
. The Government asserts that communication via email is not analogous to other Internet communication in that email allows the distributor control over who receives a communication. The Government points to the district court’s specific finding that "Defendants did not post images on the Internet for worldwide consumption; Defendants were not incapable of limiting the distribution of their messages; Defendants purposefully sent images to individual homes and had full control over where and by whom the images were received.” The district court’s finding is beside the point. The district court made no finding that the email technology utilized by Defendants provided them with an ability to control physically where the emails they disseminated were read. Hence, for purposes of the First Amendment concerns raised by Defendants, Defendants’ email communications are analogous to other Internet communication.
. We recognize that Justice Kennedy’s opinion, as well Justice Stevens's dissent, viewed a national community standard as not re
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solving the constitutional problem created by applying local community standards to define obscenity on the Internet.
Ashcroft,
. By itself, the statute's failure to define a baseline of ability a recipient should have for locating an initiator of an email or actual registrant of a domain name could render the meaning of ‘‘impair” imprecise. However, any vagueness concerns this failure creates are obviated by the statute’s requirement that any impairment to the recipient’s ability be intentional to result in culpability.
See, e.g., United States v. Wyatt,