United States v. Osinger, No. 11-50338 (9th Cir. 2014)
Annotate this CaseDefendant challenged his conviction for stalking in violation of 18 U.S.C. 2261A. The court agreed with the Eighth Circuit's rationale that, because section 2261A proscribes harassing and intimidating conduct, the statute is not facially invalid under the First Amendment. Defendant's argument that section 2261A(2)(A) is unconstitutionally vague because it does not define "harass" or "substantial emotional distress" is equally unavailing. Defendant's threats, creation of a false Facebook page with sexually explicit photographs of his ex-girlfriend, and emails to her co-workers and friends containing explicit photographs evinced defendant's intent to cause substantial emotional distress. Therefore, defendant's unrelenting harassment and intimidation of his ex-girlfriend was not based on conduct that he could not have known was illegal. Defendant's as-applied challenge was similarly unavailing given his intent to harass and intimidate a private individual by circulating sexually explicit publications that were never in the public domain. Finally, the district court's sentence was reasonable where defendant was not entitled to any downward adjustment premised on acceptance of responsibility or on sentence disparity. Accordingly, the court affirmed the judgment of the district court.
Court Description: Criminal Law. The panel affirmed a conviction and sentence for stalking in violation of 18 U.S.C. § 2261A. The panel held that because § 2261A proscribes harassing and intimidating conduct, it is not facially invalid under the First Amendment. The panel rejected the defendant’s argument that the statute’s failure to define “harass” or “substantial emotional distress” renders it unconstitutionally vague. The panel also rejected the defendant’s contention that § 2261A was unconstitutionally applied to his protected speech, where the defendant engaged in a course of conduct, unmistakably proscribed by the statute, with the intent to harass and intimidate the victim and to cause her substantial emotional distress, and where any related speech was integral to the defendant’s criminal conduct and involved sexually explicit publications concerning a private individual. The panel held that the defendant was not entitled to a downward adjustment premised on acceptance of responsibility, and rejected a contention that a disparity with the sentence imposed on a defendant who pled guilty in a different stalking case rendered the sentence in this case unreasonable. Concurring, Judge Watford wrote separately to add thoughts on why the as-applied challenge fails, including that the “speech integral to criminal conduct” exception to First Amendment protection surely applies when the defendant commits an offense by engaging in both speech and non- speech conduct, and the sole objective of the speech is to facilitate the defendant’s criminal behavior.
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