UNITED STATES of America, Appellee, v. Shawn SAYER, Defendant, Appellant.
No. 12-2489
United States Court of Appeals, First Circuit
May 2, 2014
748 F.3d 425
Bellone also claims that the School District did not uniformly apply its fitness-for-duty certification requirement, see
Bellone also argues for the first time on appeal that the district court should have analyzed his case pursuant to the FMLA‘s special rules for school employees. See
III. Conclusion
For the foregoing reasons, we affirm. Each party shall bear its own costs.
Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Before LYNCH, Chief Judge, HOWARD and THOMPSON, Circuit Judges.
LYNCH, Chief Judge.
This case challenges the constitutionality of the cyberstalking statute,
A. Factual Background
The facts are not disputed on appeal.
Sayer and the victim in this case, Jane Doe,1 had dated in Maine starting some time in 2004 until Jane Doe ended their relationship in January 2006. After their break-up, Sayer persistently stalked and harassed Jane Doe for over four years. At first, Sayer showed up at stores and other places where he knew that Jane Doe would be. In response, Jane Doe changed her routine and gave up activities she loved for fear of seeing Sayer. She also acquired a protection order against him in state court.
Later, in the fall of 2008, Sayer started to usе the internet to induce anonymous third parties to harass Jane Doe. Specifically, several unknown men came to Jane Doe‘s house in Maine one day in October 2008 claiming that they had met her online and were seeking “sexual entertainment.” Jane Doe was “shock[ed]” and “terrified” by these “dangerous“-looking men and decided to stay with a friend because she no longer felt safe in her home. She later discovered an online ad in the “casual encounters” section of Craigslist, a classified advertisements website, that had pictures of her in lingerie that Sayer had taken while they were dating. The ad gave detailed directions to her home and described a list of sexual acts she was supposedly willing to рerform. Jane Doe did not place these ads nor did she authorize Sayer to place them.
The unwanted visits from men seeking sex persisted for eight months until June 2009, when Jane Doe changed her name and moved to her aunt‘s house in Louisiana to escape from Sayer and this harassment. Jane Doe began a new career and felt safe for a couple of months until August 25, 2009, when an unknown man showed up at her home in Louisiana and addressed her by her new name. Jane Doe said “the hairs on [her] arms stood up,” as she had not told anyone except for a neighbor and her parents that she was moving. The man said he had met her online and was seeking a sexual encounter, having seen pictures of her on an adult рornography site. When Jane Doe later searched the internet, she found videos of herself and Sayer engaged in consensual sexual acts from when they were dating on at least three pornography sites. Several of the websites included Jane Doe‘s name and then-current Louisiana address. One site encouraged viewers to write to Jane Doe and tell her what they thought of the videos.
Jane Doe contacted the police again in late September 2009 because someone had posted a fraudulent account in her name on Facebook, a social networking site, which included sexually explicit pictures of her. The false Facebook account was creаted on August 21, 2009 from 24 Marion Avenue in Biddeford, Maine, which had an unsecured wireless network; Sayer lived at 23 Marion Avenue. The police found videos of Jane Doe “engaged in sexually explicit activity” that had been posted to adult pornography sites on August 22, 25, and 29, 2009.
On November 5, 2009, the police searched Sayer‘s home pursuant to a warrant. They found two desktop computers that lacked hard drives and an empty laptop computer case. Sayer said that his computers had been hacked, so he had thrown out the hard drives. He also said he had thrown out his laptop after spilling water on it. The police did not believe him because they had seen “dozens of comput-
The police seized a Nikon digital camera during this search. Although Sayer had said there were no pictures of Jane Doe on it, a forensic analysis of the camera uncovered a picture of Jane Doe in a sexual position and another photo of her engaged in a sex act.
In December 2009, Jane Doe again contacted the police to report another fake profile that had been created under her name on MySpace, another social networking site. The profile had both her old and new names, her Louisiana address, and links to adult pornography sites hosting sex videos of Jane Doe.
The fake MySpace account was associated with multiple IP addresses from unsecured wireless networks in Saco, Maine, near where Sayer lived. A business with one of the unsecured networks had surveillance, which had captured an old green pickup truck resembling Sayer‘s green 1999 Ford truck parked outside for twenty minutes at about the same time that the fake MySpace account was being accessed. No one was seen getting into or out of the truck during the time that it was parked there.
Jane Doe returned to Maine the first week of November 2009 because the men that Sayer sent to her Louisiana home had scared her aunt and cousin, with whom she was staying. The cyberstalking charge in this case only encompasses Sayer‘s harassment of Jane Doe from “July 2009, the exact date being unknown, until about November 2009.” However, Sayer continued to harass Jane Doe after she returned to Maine. As a result of new fraudulent accounts Sayer posted in Jane Doe‘s name soliciting sex from strangers, as many as six different men per night showed up at her home in June 2010. The police searched Sayer‘s home again on July 1, 2010. Forensic analysis of a laptop computer they seized showed that Sayer had created “numerous fake profiles” through Yahoo! Messenger, an online chat service, using some variation of Jane Doe‘s name, between June and November 2009. All of the profiles had sexually suggestive or explicit pictures of Jane Doe and in many cases directed viewers to sex videos of her on аdult pornography sites. In many instances, Sayer, posing as Jane Doe, chatted with men online and encouraged them to visit Jane Doe at her home in Louisiana.
Jane Doe said Sayer did not stop sending men to her home until he was arrested by state police in July 2010 for violating a protection order she had against him.2
B. Procedural History
1. Pre-Sentence Proceedings
On July 13, 2011, Sayer was indicted with one count of cyberstalking,
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.
(emphasis added).
Sayer initially pled not guilty to both counts on July 19, 2011. On February 16, 2012, in a pre-trial motion to dismiss the cyberstalking count, Sayer made three constitutional arguments: (1) the cyberstalking statute is unconstitutional as applied to him because it imposes criminal sanctions on protected speech; (2) the statute is overbroad in violation of the First Amendment; and (3) the statute is unconstitutionally vague in violation of the Fifth Amendment.
The cyberstalking statute provided:
Whoever—
(2) with the intent—
(A) 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 ... 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 ... death ... or serious bodily injury ... shall be punished as provided in section 2261(b) of this title.
The government opposed Sayer‘s motion on March 8, 2012, and the district court held a hearing on May 4, 2012. On May 15, 2012, the district court issued a memorandum and order denying Sayer‘s motion, ruling that
The court rejected Sayer‘s as-applied First Amendment challenge because “[n]one of th[e] activity [of which Sayer is accused] is speech protected by the First Amendment.” Id. at *2. In addition, it reasoned that “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,” and so not protected by the First Amendment under Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498, 69 S.Ct. 684, 93 L.Ed. 834 (1949). Id. at *2, *3.
As to Sayer‘s facial challenge, the district court held that
In a plea agreement dated August 2, 2012, the government agreed to dismiss the identity theft charge against Sayer.4 On August 13, 2012, Sayer entered a conditional plea of guilty to the cyberstalking charge, reserving the right to appeal from the district court‘s denial of his motion to dismiss that count in the indictment.
2. Sentencing Proceedings
The Presentence Investigation Report (PSR) calculated Sayer‘s Guidelines sentencing range as 37 to 46 months, based on a total offense level of 19 and a criminal history category (CHC) of III. As to the offense level, the PSR gave Sayer credit for acceptance of responsibility and deducted three levels from his base offense level of 18. See
The PSR arrived at Sayer‘s CHC of III based largely on Sayer‘s state court convictions for in-person stalking of Jane Doe and violations of protection orders issued on her behalf.5 These convictions arise from Sayer‘s conduct that pre-dates his July 2009-November 2009 activities establishing his federal cyberstalking conviction.
The PSR noted that Sayer had served a 22-month state sentence from July 1, 2010 through May 20, 2011. It said that a downward departure under
The district court held a sentencing hearing on December 4, 2012, at which the parties disputed whether Sayer was eligible for a
At the hearing, the district court inquired about a letter that the government had filed as a sentencing exhibit but was not included in the PSR. The letter was written by an inmate who had shared a jail cell with Sayer in Cumberland County Jail for two days in August 2011. Sayer‘s cellmate had mailed the letter to the Maine Computer Crime Unit right after being released from prison, and he also testified at Sayer‘s dеtention hearing before a magistrate judge on April 24, 2012.
The letter said that Sayer said he had “made [Jane Doe‘s] life into a living hell” by posting footage of them having sex. Sayer also told his cellmate that he “sent someone everyday to her house” in Maine, and “it got so bad” Jane Doe had to put up signs saying “they have the wrong person.” On one occasion, she even “pushed some guy down the stairs.” The letter also disclosed that Sayer asked the cellmate to get his friends who were “tough girls” to “beat the shit out of [Jane Doe]” and “make her swim and not come up from the water.”6
Jane Doe also testified at the sentencing hearing and recounted the progression of Sayer‘s stalking and harassment starting in 2006, when she endеd their relationship, up until he was arrested in July 2010. She explained that what started out as “creepiness,” with Sayer showing up at the places she frequented, “quickly ... turned into something very scary.” Jane Doe described the impact of Sayer‘s cyberstalking in particular, saying:
From November [2008] until [Sayer] was arrested in July of 2010 man after man showed up at my house. It didn‘t matter the time of day; ... I couldn‘t open my windows to let the fresh air in. I couldn‘t keep my blinds open to light. I felt scared to walk 25 feet out to my car. No longer was I afraid of just [Sayer]; I was afraid of any man who came near me because he was a potential predator....
It‘s very hard to sleep at night when there are predators coming to your home and banging on your windоws. It‘s very hard to do anything. It‘s hard to live.
[Sayer] had every intention o[f] terrorizing me and maybe even hurting me. I don‘t know how many times [a detective] called me up to say, ... [Sayer] has planned a gang bang at your home tonight; you may not go home. Don‘t go home. It‘s not a safe place....
I can‘t even describe to you, really, in the words that I‘m telling you how this has impacted my life.... I am forever changed. I will truly never be safe.... And so I am fearful of what happens when [Sayer] does get out of jail.... He knows what he did. He purposely did it. And I‘m not so sure that it won‘t happen again....
The court also heard testimony from witnesses who spoke briefly on Sayer‘s behalf, including his father, older brother, sister, and nephew. Sayer testified last, expressing remorse fоr the “hurt” he caused Jane Doe and “danger” he put her in, saying “I never ... wanted physical
Sayer confirmed that he did not object to the PSR‘s description of the facts, which the district court adopted. The court also adopted the PSR‘s Guidelines calculations, including the
The district court acknowledged all of the parties’ arguments at sentencing, including Sayer‘s argument for a
[T]here are factors here that the sentencing commission simply has not considered in the guideline analysis. And they are, for example, the use of anonymous third parties to harass the victim and the extra danger that that caused ... [where the victim] has no idea of the limits [these third parties] might go to; the effect of posting on the Internet her identity, address, intimate details, all of which, as we know, is permanent, unlike situations where stalking occurred in a different era without the Internet; the many involvements that this defendant had with law enforcement, which did not deter him until the final arrest; and the ongoing obsession that he apparently had even up until August of ‘11 as reflected by the letter and testimony of [Sayer‘s cellmate] at the detention hearing and the chilling things that the defendant was still possessing in his mind at that time.
We first address Sayer‘s constitutional challenges to the indictment before turning to his sentencing appeal.
II.
Sayer‘s constitutional challenges to
A. As-Applied First Amendment Challenge
Under
“[I]t has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502, 69 S.Ct. 684, 93 L.Ed. 834 (1949). For example, in Giboney the Court held that enjoining otherwise lawful picketing activities did not violate the First Amendment where the sole purpose of that picketing was to force a company to enter an unlawful agreement restraining trade in violation of а state criminal statute. Id. at 501-02, 69 S.Ct. 684. Speech integral to criminal conduct is now recognized as a “long-established category of
Sayer does not claim that his acts of creating false online advertisements and accounts in Jane Doe‘s name or impersonating Jane Doe on the internet constitute legal conduct. In fact, he has admitted that his conduct, which deceptively enticed men to Jane Doe‘s home, put Jane Doe in danger and at risk of physical harm. To the extent his course of conduct targeting Jane Doe involved speech at all, his speech is not protected. Here, as in Giboney, it served only to implement Sayer‘s criminal purpose. See United States v. Rowlee, 899 F.2d 1275, 1278 (2d Cir.1990) (applying Giboney exception to a conspiracy charge because the “act of conspirаcy” does not implicate protected speech); United States v. Varani, 435 F.2d 758, 762 (6th Cir.1970) (explaining that, as in the crimes of perjury, bribery, extortion and threats, and conspiracy, “speech is not protected by the First Amendment when it is the very vehicle of the crime itself“).
The Eighth Circuit rejected a similar First Amendment challenge to
B. Facial Challenge
1. Overbreadth
Sayer asserts that
The showing that a law punishes a “substantial” amount of protected free speech, “judged in relation to the statute‘s plainly legitimate sweep,” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973), suffices to invalidate all enforcement of that law, “until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression,” id. at 613 [93 S.Ct. 2908].
Virginia v. Hicks, 539 U.S. 113, 118-19, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003). Assuming Sayer has standing to assert an overbreadth challenge, he bears the burden of showing ” ‘from the text of [the law] and from actual fact,’ that substantial overbreadth exists.” Id. at 122, 123 S.Ct. 2191 (alteration in original) (quoting N.Y. State Club Ass‘n, Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988)).
Sayer argues that because the text of
As to factual examples of unconstitutional applications of
2. Void for Vagueness
Sayer also states that
III.
Sayer also appeals from his sentence of sixty months’ imprisonment, the statutory maximum. He argues that the district court should have departed downward under
Sayer‘s argument, on appeal, that a
Here the district court was explicit that it did not need to decide whether Sayer in fact met the preconditions for a
The district court‘s reasoned decision to vary upward rather than depart downward under
Finally, Sayer argues the district court erred in considering his cellmаte‘s statements in its sentencing analysis because the PSR did not mention them and the government first introduced the statements for sentencing purposes at the sentencing hearing. His claim of lack of notice is not credible for three reasons. First, Sayer‘s defense counsel was at the April 24, 2012 detention hearing at which the cellmate testified and had vigorously cross-examined the cellmate at that hearing. Second, Sayer knew before the sentencing hearing that the government would argue the cellmate‘s statements supported an above-Guidelines sentence because that is precisely what its sentencing memorandum had argued. Third, the government had filed the cellmate‘s letter as a sentencing exhibit with the district сourt several days before the sentencing hearing. See United States v. Cintrón-Echautegui, 604 F.3d 1, 6 (1st Cir.2010) (holding that district court did not err in consider-
Sayer also contends the cellmate‘s statements were unreliable because of his criminal history, drug addiction, and access to Sayer‘s discovery materials while they were in jail together. The cellmate, however, had denied seeing Sayer‘s discovery materials at the detention hearing, and the magistrate judge who presided over that hearing found his testimony to be credible. Under these circumstances, the district court did not abuse its discretion in deeming the cellmate‘s testimony reliable and so relying on it at sentencing. See United States v. Platte, 577 F.3d 387, 392-93 (1st Cir.2009) (“[C]redibility determinations are part of the sentencing court‘s basic armamentarium.... [A] reviewing court must cede a sentencing court wide latitude in determining the probative value of ... testimony.“).
IV.
For the reasons stated above, we affirm.