United States v. Osinger, No. 11-50338 (9th Cir. 2014)Annotate this Case
Defendant 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.