Summary
The Eleventh Circuit upheld the constitutionality of 18 U.S.C. § 2261A(2)(B) (cyberstalking) against facial overbreadth and as-applied First Amendment challenges, holding that the statute's "intent to harass or intimidate" and "course of conduct" elements sufficiently narrow its reach and that the defendant's harassing messages impersonating mass murderers to victims' families constituted "true threats" unprotected by the First Amendment. The court also affirmed that the jury instructions for the cyberstalking counts did not require an additional subjective-intent-to-threaten element beyond the statutory mens rea, and that the indictment tracking the statutory language was sufficient. Additionally, the court found no plain error in admitting expert testimony on the defendant's motive and upheld the sufficiency of the evidence for his subjective intent to threaten and harass.
Topics
Practice areas
Questions Presented
- Whether 18 U.S.C. § 2261A(2)(B) is facially overbroad under the First Amendment.
- Whether § 2261A(2)(B) is unconstitutional as applied to Fleury's conduct.
- Whether the indictment was sufficient to charge the cyberstalking counts.
- Whether the evidence was sufficient to prove Fleury's subjective intent to threaten.
- Whether the district court erred in admitting expert testimony from Dr. Dietz.
- Whether the jury instructions properly defined 'true threat' and covered Fleury's theory of defense.
Holdings
- The statute is not unconstitutionally overbroad because it is directed at conduct, not speech, and any potential overbreadth is not substantial relative to its legitimate sweep.
- The statute is constitutional as applied because Fleury's messages were true threats, which are not protected by the First Amendment.
- The indictment was sufficient because it tracked the language of the statute and provided adequate notice.
- Viewing the evidence in the light most favorable to the prosecution, a rational jury could find the essential elements beyond a reasonable doubt.
- The admission of Dr. Dietz's testimony was not plain error because it was relevant and not unfairly prejudicial.
- The district court did not err in giving an instruction that required only intent to harass or intimidate, not a separate subjective intent to communicate a true threat, because the statute already contains a mental state requirement.
- The district court did not abuse its discretion because the modified instruction, together with the charge as a whole, adequately covered the gist of Fleury's theory.
Key quotations
“True threats' 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.” (16 (quoting Virginia v. Black))
“Because § 2261A(2)(B) is not 'substantial[ly]' overbroad, we uphold the constitutionality of the statute.” (11)
“These messages did more than celebrate the death of the victims' loved ones. Instead, they implied an ongoing intent to commit future acts of violence.” (17)
“Speech on matters of public concern is at the heart of the First Amendment's protection.” (14)
Factual background
Between December 22, 2018, and January 11, 2019, Brandon Fleury sent harassing and threatening Instagram messages to three individuals who lost loved ones in the Marjory Stoneman Douglas High School shooting. Using aliases referencing Nikolas Cruz and Ted Bundy, Fleury posted messages that included threats to kidnap, kill, and harm the victims. The victims testified that they feared for their lives, and police monitored one victim's home. Fleury, diagnosed with autism spectrum disorder, admitted to sending the messages but claimed he did not understand the emotional impact. The government's expert testified that Fleury intended to cause fear and grief.
Procedural history
Fleury was convicted by a jury in the Southern District of Florida on one count of transmitting interstate threats (18 U.S.C. § 875(c)) and three counts of cyberstalking (18 U.S.C. § 2261A(2)(B)). He was sentenced to 66 months' imprisonment. He appealed, challenging the constitutionality of the cyberstalking statute, sufficiency of the indictment and evidence, jury instructions, and admission of expert testimony.