Threatening Communications & Interstate Stalking

1. Threatening Communications & Interstate Stalking Sean B. Hoar sean.hoar@usdoj.gov 541-465-6792 (voice)

2. Class Overview I. The criminalization of threatening communications & cyberstalking. II. 18 U.S.C. §§ 875(c) & 2261A. III. United States v. Kammersell IV. United States v. Alkhabaz V. United States v. Bowker VI. U.S.S.G. §§ 2A6.1 & 2A6.2.

3. 18 U.S.C. § 875 • This statute is often referred to as the “threatening communications” statute. • It generally prohibits the transmission of extortion or threatening communications through interstate commerce. • Threatening communications include the threat of any injury to a person, property, or reputation.

4. 18 U.S.C. § 875(c)Threatening Communications • Text of statute: • Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.

5. Elements of 18 U.S.C. § 875(c) Threatening Communications • D must cause a transmission in interstate [or foreign] commerce; • the communication must contain a threat – which a reasonable person would take as a seriousexpression of an intention to inflict bodily harm and would perceive as being communicated to effect some change or achieve some goal throughintimidation, United States v. Alkhabaz, 104 F.3d 1492, 1494 (1997); • the threat must be a threat to injure [or kidnap] the person of another.

6. United States v. Kammersell Facts:A 19-year old defendant, Matthew Kammersell, sent an instant message containing a bomb threat to his girlfriend’s computer at the AOL service center in Utah. His hope was that doing so would allow her to leave work early so they could go on a date. He was charged with sending a “threatening communication in interstate commerce,” in violation of 18 U.S.C. § 875(c). Issues:Is the jurisdictional element of 18 U.S.C. § 875(c) met when both the sender (Kammersell) and the recipient (his girlfriend) are located in the same state? Does this message qualify as a “threatening communication” when it was viewable only by his girlfriend?

7. United States v. Kammersell • Discussion Questions: • Should it matter whether or not the defendant knew his IM would travel to the AOL servers in Virginia and then back to his girlfriend’s computer in Utah? • The Tenth Circuit cited U.S. v. Kelner, a case where the defendant made a death threat on TV to kill Yasser Arafat. This message was broadcast over three states. Would the jurisdictional element be met if this message was broadcast on a local cable access channel? Holding:The court relied on the plain language of the statute and held that the threat unquestionably traveled in interstate commerce and gave rise to federal jurisdiction. It made no difference whether the sender and receiver were located in the same state or whether it was only viewable by the defendant’s girlfriend. The court also dismissed the defendant’s overbreadth challenge.

8. United States v. Alkhabaz Issue(s): Must a threat include both a mens rea and an actus reus element? i.e. must a threat require not only that a reasonable person take the communication as a serious expression of an intent to inflict bodily harm, but must the communication also effect some change or achieve some goal through intimidation? Facts:The defendant, Abraham Jacob Alkhabaz, (also known as Jake Baker), was a student at the University of Michigan when he posted several graphic stories on a Usenet news group describing a violent sexual interest against women and girls. He also exchanged mails with an individual in Canada (Gonda) describing their shared violent sexual interests. A federal grand jury charged him with five counts of violating 18 U.S.C. § 875(c).

9. United States v. Alkhabaz Holding:The court discussed the various nature of “threats” and held that a communication, even those that offend our sensibilities, is not a threat unless it contains an actusreus element. It must be “conveyed for the purpose of furthering some goal through the use of intimidation.” Alkhabaz’s communications were held to not be threats and the dismissal of his indictment was affirmed. There was a lengthy and strongly worded dissent by Judge Krupansky. • Discussion Questions: • What was the dissenting judge’s purpose in including the actual Usenet postings? Did he accomplish his purpose? • Would the “actus reus” element be satisfied if it were proved that the “victim” of the communication, the woman who “shared the name” of the object of Alkhabaz’s communications, was intimidated as a result of the communication?

10. Sentencing Guidelines for 18 U.S.C. § 875(c) • The sentencing guidelines recognize that the seriousness of the conduct depends upon the defendant’s intent and the likelihood of the threat being carried out. • The specific offense characteristics are intended to distinguish such cases.

11. Sentencing Guidelines for 18 U.S.C. § 875(c) Threatening or Harassing Communications • U.S.S.G. 2A6.1 (a) Base Offense Level: • 12; or • 6, if the defendant is convicted of an offense under 47 U.S.C. 223(a)(1)(C), (D), or (E) that did not involve a threat to injure a person or property;

12. Sentencing Guidelines for 18 U.S.C. § 875(c) • U.S.S.G. 2A6.1 (continued) • (b) Specific Offense Characteristics • (1) If the offense involved any conduct evidencing an intent to carry out such threat, increase by 6 levels. • (2) If the offense involved more than two threats, increase by 2 levels. • (3) If the offense involved the violation of a court protection order, increase by 2 levels.

13. Sentencing Guidelines for 18 U.S.C. § 875(c) • U.S.S.G. 2A6.1 (continued) • (b) Specific Offense Characteristics * * * • (4) If the offense resulted in (A) substantial disruption of public, governmental, or business functions or services; or (B) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels. • (5) If (A) subsection (a)(2) and subdivisions (1), (2), (3), and (4) do not apply, and (B) the offense involved a single instance evidencing little or no deliberation, decrease by 4 levels.

14. Text of 18 U.S.C. § 2261A(2)Cyber Stalking • Whoever – • with the intent-- • to kill or injure a person in another State or tribal jurisdiction or within the jurisdiction of the United States; or • to place a person in another State or tribal jurisdiction, or within jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to-- • (i) that person; • (ii) a member of the immediate family of that person; or • (iii) a spouse or intimate partner of that person, • uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii), shall be punished as provided in section 2261(b).

15. Maximum statutory penalties for 18 U.S.C. § 2261ACyber Stalking • Life imprisonment if death to the victim results; • 20 years imprisonment if permanent disfigurement or life threatening bodily injury to the victim results; • 10 years imprisonment if serious bodily injury to the victim results or if the offender uses a dangerous weapon during the offense; • The applicable penalty under sections 2241-2246 (proscribing sexual abuse) if the offense would constitute an offense under those sections; and • Five (5) years imprisonment in any other case • And/or a $250,000 fine

16. Definitions for 18 U.S.C. § 2261AInterstate Stalking • The term "bodily injury" means any act, except one done in self-defense, that results in physical injury or sexual abuse.

17. Definitions for 18 U.S.C. § 2261AInterstate Stalking • The term "serious bodily injury” means bodily injury that involves – • A substantial risk of death • Extreme physical pain • Protracted and obvious disfigurement; or • Protracted loss or impairment of the functions of a bodily member, organ, or mental faculty;

18. Definitions for 18 U.S.C. § 2261AInterstate Stalking • The term "course of conduct" means a pattern of conduct composed of two (2) or more acts, evidencing a continuity of purpose.

19. Definitions for 18 U.S.C. § 2261AInterstate Stalking • The term "spouse or intimate partner" includes-- • (A) for purposes of— * * * * * • (ii) section 2261A, a spouse or former spouse of the target of the stalking, a person who shares a child in common with the target of the stalking, and a person who cohabits or has cohabited as a spouse with the target of the stalking; and • (B) any other person similarly situated to a spouse who is protected by the domestic or family violence laws of the State or tribal jurisdiction in which the injury occurred or where the victim resides.

20. Elements for 18 U.S.C. § 2261AInterstate Stalking • D acts with the intent to kill or injure a person or to place a person in reasonable fear of the death of, or serious bodily injury to-- • (i) that person; • (ii) a member of the immediate family of that person; or • (iii) a spouse or intimate partner of that person • D uses the mail or any facility of interstate or foreign commerce (the Internet) to engage in a course of conduct that places a person in reasonable fear of the death of, or serious bodily injury to and of the persons listed above.

21. United States v. Bowker Tina Knight worked for WKBN in Youngstown, OH Facts:The defendant, Erik Bowker, engaged in a pattern of stalking and harassment of Tina Knight, a television reporter in Ohio. Bowker began by sending emails to the TV station where Knight worked, but progressed to telephone calls and letters sent to her and her friends and family. This continued even when Knight moved from Ohio to West Virginia. Bowker was eventually charged with one count of interstate stalking, one count of cyberstalking, one count of mail theft, and one count of telephone harassment. Issues: Was there probable cause for Bowker’s arrest? Did the indictment adequately describe the elements of the offenses charged? Is the cyberstalking statute, 18 U.S.C. § 2261A, overbroad or void for vagueness? Tina Knight worked for WOWK TV station in West Virginia

22. United States v. Bowker Holding:The court engaged in a thorough analysis of each of Bowker’s claims and dismissed each in turn. The Sixth Circuit held that there was probable cause for his arrest and that the indictment stated all of the required statutory elements. The court responded to the overbreadth challenge by stating, “We fail to see how a law that prohibits interstate travel with the intent to kill, injure, harass, or intimidate has a substantial sweep of constitutionally protected content.” The vagueness challenge also failed because it provided adequate notice of the crime charged and because there was no need to define words like “harass” and “intimidate.” Discussion Questions: What do you think of the sentencing court’s upward departure for “extreme psychological injury to the victim”?

23. Sentencing Guidelines for 18 U.S.C. § 2261A • Base Offense Level: 18 • Specific Offense Characteristic • (1) If the offense involved one of the following aggravating factors: (A) the violation of a court protection order; (B) bodily injury; (C) possession, or threatened use, of a dangerous weapon; or (D) a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim, increase by 2 levels. If the offense involved more than one of these aggravating factors, increase by 4 levels. • Cross Reference • (1) If the offense involved the commission of another criminal offense, apply the offense guideline from Chapter Two, Part A (Offenses Against the Person) most applicable to that other criminal offense, if the resulting offense level is greater than that determined above.

24. Questions?

25. Threatening Communications & Interstate Stalking Sean B. Hoar sean.hoar@usdoj.gov 541-465-6792 (voice)