United States v. Stewart ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50372
UNITED STATES OF AMERICA,
Plaintiff-Appellee;
VERSUS
ROBERT FRANK STEWART, SR, also known as Frank R Odom,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(A-97-CR-045)
January 6, 2000
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
Robert F. Stewart, Sr., defendant-appellant, was convicted by
a jury of four violations of the Interstate Stalking Act, 18 U.S.C.
§ 2261A. The district court sentenced Stewart and committed him to
the custody of the United States Bureau of Prisons to be imprisoned
for a term of 240 months, consisting of a 60 month period of
imprisonment on each of his four counts of conviction to run
consecutively. The district court also ordered the defendant to pay
to the United States a special assessment of $100 to the Crime
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
Victims Fund under 18 U.S.C. § 3013 for each of the four counts of
his convictions, to serve a term of three years supervised release
from imprisonment, and to pay a fine of $50,000. The defendant
appealed.
Robert F. Stewart, Sr., defendant-appellant, died on November
10, 1999 while this appeal was pending. Prior to his death,
Stewart, pursuant to the district court’s order, paid $400 to the
Crime Victims Fund and $158 of the $50,000 fine. This court has
adopted the general rule that the death of a criminal defendant
pending his appeal from his conviction abates the entire criminal
proceedings from its inception, including the appeal, conviction,
sentence, and indictment. See United States v. Mmahat, 106 F.3d 89,
93 (5th Cir. 1997); United States v. Asset, 990 F.2d 208, 210 (5th
Cir. 1993); United States v. Schuster, 778 F.2d 1132, 1133 (5th Cir.
1985); United States v. Pauline, 625 F.2d 684, 684-85 (5th Cir.
1980). The principal reason for this rule is that, after the
defendant dies, criminal punishment serves no legitimate purpose.
See Asset, 990 F.2d at 212; United States v. Morton, 635 F.2d 723,
725 (8th Cir. 1980). Consistent with the rationale of the general
rule, however, we have held that an order in connection with the
judgment of conviction and sentence requiring the defendant to make
restitution or compensatory payments for the benefit of crime
victims survives the defendant’s death because it does not
constitute punishment. See Mmahat, 106 F.3d at 93; Asset, 990 F.2d
at 213-14. In such a case, “only the portion of the proceedings
unrelated to the restitution order is abated.” Mmahat, 106 F.3d at
2
93 (citing United States v. Dudley, 739 F.2d 175, 179 (4th Cir.
1984)); see also Asset, 990 F.2d at 211 (“[T]he courts have
consistently interpreted the abatement principle to apply only to
penal aspects of the criminal proceeding.”).
Accordingly, all of Stewart’s criminal proceedings related to
criminal punishment, rather than restitution or compensation of
crime victims, including his convictions, sentences of imprisonment,
and the unpaid portion of his fine, must be abated ab initio. We
reject the suggestion or motion and argument of Stewart’s appellate
counsel, in behalf of Stewart’s estate, that a continuance of his
appeal for a full consideration of his substantive arguments, as in
United States v. Mmahat, 106 F.3d 89, 93-98 (5th Cir. 1997), must
result in our conclusion that Stewart’s convictions were flawed by
reversible error requiring a return of the $400 assessments and the
$158 paid portion of the fine to Stewart’s estate. Assuming
arguendo that such a review is called for in this case, and without
deciding whether the Crime Victims Fund assessments in this case are
penal or compensatory, our full consideration of the oral and
written arguments of counsel, the record, and additional study and
research, convinces us that no error requiring a reversal of
Stewart’s convictions occurred. For these reasons, this appeal is
dismissed as moot, and the case is remanded with directions to the
District Court to vacate the convictions and sentences, except for
the $400 payment to the Crime Victims Fund and the $158 portion of
the fine paid by Stewart before his death, and to dismiss the
indictment.
3
REMANDED WITH DIRECTIONS.
4
DENNIS, Circuit Judge, concurring:
I respectfully concur and assign the following as my reasons
for joining in the conclusions we have reached.
Robert Frank Stewart, Sr., defendant-appellant, (“Stewart” and
“defendant”), was convicted by a jury of four violations of the
Interstate Stalking Act, 18 U.S.C. § 2261A, which makes it illegal
for a person to [1] “travel[] across a State line...with the intent
to injure or harass another person, and [2] in the course of, or as
a result of, such travel [3] place[] that person in reasonable fear
of the death of, or serious bodily injury...to that person or a
member of that person’s immediate family....”2 The gravamen of the
charges against Stewart was that he traveled from Montgomery,
Alabama to Georgetown, Texas, with the intent to injure or harass
Doris Stewart, his former wife, and their three adult sons, and that
he knowingly placed each of them in reasonable fear of death or
serious bodily harm.
On appeal, Stewart argued that: (1) the Interstate Stalking Act
is an unconstitutional use of Congressional legislative power under
the Commerce Clause; (2) the Act violates the Due Process Clause
because it is void for vagueness and unconstitutionally overbroad;
and (3) the trial court erred in its jury instructions defining the
2
The full text of 18 U.S.C. § 2261A is: “Whoever travels
across a State line or within the special maritime and territorial
jurisdiction of the United States with the intent to injure or
harass another person, and in the course of, or as a result of,
such travel places that person in reasonable fear of the death of,
or serious bodily injury (as defined in section 1365(g)(3) of this
title) to, that person or a member of that person’s immediate
family (as defined in section 115 of this title) shall be punished
as provided in section 2261 of this title.”
5
charged offenses.3
I. Congressional Authority Under The Commerce Clause
The defendant contends that the Interstate Stalking Act is
unconstitutional because it exceeds Congress’ authority under the
Commerce Clause. This Court reviews the constitutionality of
statutes de novo. United States v. Luna, 165 F.3d 316, 319 (5th
Cir. 1999).
In United States v. Lopez, 514 U.S. 549 (1995), the Supreme
Court held that the Gun-Free School Zones Act of 1990, 18 U.S.C. §
922(q) “exceeds the authority of Congress ‘[to] regulate
Commerce...among the several States....’ U.S. CONST. art. I, § 8,
cl. 3.” Lopez, 514 U.S. at 551. In analyzing the statute, the
Court “identified three broad categories of activity that Congress
may regulate under its commerce power”:
First, Congress may regulate the use of the channels of
interstate commerce. Second, Congress is empowered to
regulate and protect the instrumentalities of interstate
commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate
3
Stewart also assigned as errors: (1) the trial court violated
his First Amendment right to access the courts by allowing the
prosecution to argue that the child custody and visitation suits
Stewart filed in Texas state court evinced that he traveled between
states with the intent of harassing other persons; (2) the trial
court’s denial of his eleventh hour requests to vacate its order
allowing Stewart to represent himself, to reappoint counsel Stewart
had previously rejected, and for a continuance for additional trial
preparation; (3) the defendant’s indictments are multiplicitous and
violate his constitutional right against double jeopardy; (4) the
trial court erred in departing from the Sentencing Guidelines.
None of the first three assignments has merit. In view of the
abatement of Stewart’s sentences upon his death and their
irrelevance to a review of the proceedings with respect to his
conviction, the fourth assignment is moot.
6
activities. Finally, Congress’ commerce authority
includes...those activities that substantially affect
interstate commerce.4
Id. at 558-59 (internal citations omitted). The Court then turned
to consider the power of Congress, in light of this framework, to
enact the Gun-Free School Zones Act, which made it a federal offense
“for any individual knowingly to possess a firearm at a place that
the individual knows, or has reasonable cause to believe, is a
school zone.” 18 U.S.C. § 922(q)(1)(A) (1988). The Court quickly
concluded that § 922(q) is not a regulation of the use of channels
of interstate commerce or a regulation by which Congress has sought
to protect an instrumentality of interstate commerce, or persons or
things in interstate commerce. See Lopez, 514 U.S. at 559. After
an extensive analysis of its Commerce Clause opinions, the Lopez
Court held, in a perhaps “epochal” decision, that the Congressional
enactment of § 922(q) could not be sustained, even under the third
category as a regulation of activities that “substantially affect”
interstate commerce. Id. at 559-68; see also id. at 614-15 (Souter,
J., dissenting).
Lopez is most likely to have a significant impact on the
application of the substantial effects test to intrastate activity
that is not commercial or economic in nature. See TRIBE, § 5-5, at
4
“As the Court’s articulation of these categories indicated,
and as the Court confirmed the following week in United States v.
Robertson, [514 U.S. 669 (1995)] the ‘substantial effects’
requirement applies only to the third category; the first two
categories, by definition, substantially affect–-because they are
components of--interstate commerce.” LAURENCE H. TRIBE, AMERICAN
CONSTITUTIONAL LAW § 5-5, at 826-27 (3d ed. 1999)(emphasis in
original) (footnote omitted) [hereinafter TRIBE].
7
825. But as Professor Tribe astutely observed, “[a]t least as
important...is what Lopez did not touch[:][T]he majority opinion
seemingly declared the Court’s allegiance to rational basis review,
aggregation, and the substantial effects principle [and] reaffirmed
Congress’ plenary power over the channels and instrumentalities of
interstate commerce, as well as its power over objects and persons
that are in some sense participating directly ‘in’ interstate
commerce and over activities jurisdictionally ‘connected’ to
interstate commerce.” TRIBE, § 5-5, at 825-26 (citing Lopez, 514
U.S. at 559, 561, 599) (footnotes omitted).
In Lopez, 514 U.S. at 558, the Court, in identifying the
“channels” category, cited and quoted from Heart of Atlanta Motel,
Inc. v. United States, 379 U.S. 241, 256 (1964)(“‘[T]he authority
of Congress to keep the channels of interstate commerce free from
immoral and injurious uses has been frequently sustained, and is no
longer open to question.’”)(quoting Caminetti v. United States, 242
U.S. 470, 491 (1917)) and cited United States v. Darby, 312 U.S.
100, 114 (1941)(“Congress, following its own conception of public
policy concerning the restrictions which may appropriately be
imposed on interstate commerce, is free to exclude from [such]
commerce articles whose use in the states for which they are
destined it may conceive to be injurious to the public health,
morals, or welfare, even though the state has not sought to regulate
their use.”).
The Lopez Court cited as identifying the “instrumentalities”
and “persons in” category, inter alia, Southern R. Co. v. United
8
States, 222 U.S. 20 (1911)(Safety Appliance Act amendments applying
to vehicles used in intrastate commerce) and Perez v. United States,
402 U.S. 146, 150 (1971)(“[F]or example, the destruction of an
aircraft (18 U.S.C. § 32), or...thefts from interstate shipments (18
U.S.C. § 659)”). In United States v. Robertson, 514 U.S. 669(1995), decided the week following Lopez, the Court indicated that
regulation of a “person in” interstate commerce includes, for
example, the application of the RICO statute to a gold mine operator
who receives equipment from other states and solicits workers from
other states. See TRIBE, § 5-5, at 829.
The Court in Lopez reaffirmed Congress’ power to enact statutes
having a “jurisdictional element which would ensure, through case-
by-case inquiry, that the firearm possession in question affects
interstate commerce.” Lopez, 514 U.S. at 561. As an example, the
Court pointed to the felon-in-possession statute, former 18 U.S.C.
§ 1202(a), which made it a crime for a felon to “receiv[e],
posses[s], or transpor[t] in commerce or affecting commerce...any
firearm.” Lopez, 514 U.S. at 561 (citing United States v. Bass, 404
U.S. 336 (1971)). Unlike the felon-in-possession statute, the Court
observed, the Gun-Free School Zones Act “has no express
jurisdictional element which might limit its reach to a discrete set
of firearms possessions that additionally have an explicit
connection with or effect on interstate commerce.” Lopez, 514 U.S.
at 562. The Court cited with approval its decision in Bass, in
which the Court had interpreted the possession component of the
felon-in-possession statute to require an additional nexus to
9
interstate commerce, viz., that the possession was in commerce or
affected commerce. See Lopez, 514 U.S. at 561. Accordingly, it is
apparent that Lopez left “largely untouched” Congress’ power to
enact “statutes containing a jurisdictional element expressly
requiring the trier of fact to find some sort of connection or link
to interstate commerce as a precondition of a given statute’s
applicability to the case at hand.” TRIBE, § 5-5, at 829.
Under the precepts reaffirmed by Lopez, the Interstate Stalking
Act does not exceed Congressional power, but is a valid regulation
of (1) the use of the channels of interstate commerce, (2) persons
participating directly in such commerce, and (3) activities
jurisdictionally connected to interstate commerce. The statute
prohibits persons from using interstate channels of transportation
for the purpose of placing others in reasonable fear of death or
serious bodily harm. The Act regulates the conduct of persons and
protects persons participating directly in interstate commerce. And
the statute has an express jurisdictional element which limits its
reach to a discrete class of travel (by persons with intent to
injure or harass others and who place others in reasonable fear of
death or serious bodily harm) that additionally has an explicit
connection with or effect on interstate commerce.
Nevertheless, Stewart claims support for his Commerce Clause
challenge on passages from Caminetti v. United States, 242 U.S. 470,
491 (1917)(“It may be conceded, for the purpose of argument, that
Congress has no power to punish one who travels in interstate
commerce merely because [that person] has the intention of
10
committing an illegal or immoral act at the conclusion of the
journey.”) and Rewis v. United States, 401 U.S. 808, 811-12
(1971)(“[The Travel Act, 18 U.S.C. § 1952,] prohibits interstate
travel with the intent to ‘promote, manage, establish, carry on, or
facilitate’ certain kinds of illegal activity; and the ordinary
meaning of this language suggests that the traveler’s purpose must
involve more than the desire to patronize the illegal
activity....[Otherwise,] the geographic origin of customers, a
matter of happenstance, would transform relatively minor state
offenses into federal felonies.”).5 Contrary to Stewart’s
5
The Rewis case provides additional precedent for upholding
the Interstate Stalking Act. The Supreme Court in Rewis held that
defendants who ran a gambling operation illegally under Florida
law, but who had not crossed state lines in that connection, could
not be convicted of violation of the Travel Act merely because
their gambling operation was frequented by out-of-state bettors.
Rewis, 401 U.S. at 811. The Travel Act, 18 U.S.C. § 1952, which is
similar in some respects to the Interstate Stalking Act, makes it
unlawful, inter alia, to “travel in interstate or foreign
commerce...with the intent to...(2) commit any crime of violence to
further any unlawful activity; or (3) otherwise promote, manage,
establish, carry on...any unlawful activity, and thereafter
perfor[m] or attemp[t] to perform any of the acts specified in [the
above subparagraphs].” Significantly, however, the Supreme Court
in Rewis emphasized that “there are cases in which federal courts
have correctly applied [the Travel Act] to those individuals whose
agents or employees cross state lines in furtherance of illegal
activity.” Id. at 813 (citing, e.g., United States v. Chambers,
382 F.2d 910, 913-14 (6th Cir. 1967); United States v. Barrow, 363
F.2d 62, 64-65 (3d Cir. 1966), cert. denied, 381 U.S. 1001 (1967);
United States v. Zizzo, 338 U.S. 557, 580 (7th Cir. 1964), cert.
denied, 381 U.S. 915 (1965)).
In Zizzo the Seventh Circuit held that “Congress had the
power, under the Commerce Clause, to make it unlawful to travel
from one state to another to promote a gambling enterprise which
was illicit by the laws of the state where the gambling was carried
on.” Zizzo, 338 F.2d at 579. While a constitutional issue was not
raised on appeal in Chambers, the Third Circuit in Barrow held that
the Travel Act was not unconstitutional as involving a local
activity beyond the reach of Congressional authority under the
Commerce Clause in application to employees of a Pennsylvania
11
contention, however, the Interstate Stalking Act does not
criminalize “mere travel with intent.” Rather, the statute
prohibits crossing a state line with an evil intent, and then
placing persons in reasonable fear of death or bodily injury to
themselves or family members. Therefore, the Act falls within
Congress’ authority “to keep the channels of interstate commerce
free from immoral and injurious uses.” Caminetti, 242 U.S. at 491;
see also United States v. Wright, 128 F.3d 1274, 1276 (8th Cir.
1997)(disposing of a similar argument under the Violence Against
Women Act).
Finally, the Interstate Stalking Act is similar in purpose and
effect to its precursor, the Violence Against Women Act (“VAWA”),
18 U.S.C. §§ 2261-66, which consistently has been sustained against
Commerce Clause challenges by other Circuits. See, e.g., United
States v. Page, 167 F.3d 325, 335 (6th Cir. 1999) (concluding that
18 U.S.C. § 2261(a)(2), which forbids a person to “cause[] a spouse
or intimate partner to cross a State line...by force, coercion,
duress, or fraud and, in the course or as a result of that conduct,
intentionally commits a crime of violence and thereby causes bodily
injury to the person’s spouse or intimate partner,” is a valid
exercise of Congress’ power to regulate the use of the channels of
gambling casino, being operated in violation of state laws, who
traveled to work from their New Jersey homes. See Barrow, 363 F.2d
at 65. Thus, the Supreme Court’s decision in Rewis, by approving
the decisions in Zizzo and Barrow, by analogy supports upholding
the application of the Interstate Stalking Act to the activity of
Stewart in traveling across state lines from Alabama to Texas, with
the intent to engage in certain acts of harassment, even though
part of his activity was a criminal offense under the laws of
Texas.
12
interstate commerce); United States v. Gluzman, 154 F.3d 49, 50 (2d
Cir. 1998) (finding that 18 U.S.C. § 2261(a)(1), which makes
punishable “[a] person who travels across a State line...with the
intent to injure, harass, or intimidate that person’s spouse or
intimate partner, and who, in the course of or as a result of such
travel, intentionally commits a crime of violence and thereby causes
bodily injury to such spouse or intimate partner,” is a valid
regulation of the channels of interstate commerce); United States
v. Von Foelkel, 136 F.3d 339, 341 (2d Cir. 1998) (holding that 18
U.S.C. § 2262(a)(1)(A)(i), which criminalizes crossing a state line
with the intent to violate a protection order and then violating it,
does not exceed Congress’ authority to regulate the use of the
channels and instrumentalities of interstate commerce); United
States v. Wright, 128 F.3d 1274, 1275 (8th Cir. 1997) (holding to
the same effect as Von Foelkel); United States v. Bailey, 112 F.3d
758, 766 (4th Cir. 1997)(holding that 18 U.S.C. § 2261(a)(2) upheld
as a valid exercise of the authority of Congress to keep the
channels of interstate commerce free from immoral and injurious
uses); cf. Brzonkala v. Virginia Polytechnic Inst. and State Univ.,
169 F.3d 820, 836 (4th Cir. 1999)(en banc)(finding that VAWA §
40302, 42 U.S.C. § 13981, creating a private cause of action against
any person who commits a crime of violence motivated by gender, was
not within the power of Congress under the Commerce Clause–-
“Although the criminal statutes enacted by Congress as part of the
Violence Against Women Act [18 U.S.C. §§ 2261-66] predicate
liability on the crossing of state lines...[42 U.S.C. §] 13981
13
includes no similar jurisdictional requirement[.]”).
II. Statutory Indefiniteness and Statutory Construction
Stewart contends on appeal that the Interstate Stalking Act,
facially and as applied, is void for vagueness and overbreadth
because of its use of the ambiguous term “harass” and because it
“fails to specify what acts are required to place a person in fear
and thus [fails to] place the Defendant on notice of what acts
constitute a crime[.]” Additionally, he argues that the statute
creates a “status” crime because it permits government officials to
arrest, prosecute, and punish an individual for his status as a
“feared person” rather than for his conduct.
The prosecution contends that the district court correctly
interpreted and applied the statute in its jury instructions; that
the court, in response to the jury’s request, adequately defined the
term “harass” as used in the material element of traveling across
a state line with the intent to injure or harass; that in the
statute and the jury instructions “the use of the qualifying words
‘as a result’ or ‘placed’...and the phrase ‘in the course of’...do
suggest and seem to require some affirmative actions on the part of
the defendant at a time contemporaneous with the travel[;]” and that
the statute and the jury charge did not permit the defendant to be
convicted solely because of his status as a feared person.
In order to evaluate the parties’ arguments, the first task is
to determine the meaning of the statute as intended by Congress.
“The definition of the elements of a criminal offense is entrusted
to the legislature, particularly in the case of federal crimes,
14
which are solely creatures of statute.” Liparota v. United States,
471 U.S. 419, 424 (1985) (citing United States v. Hudson, 7 U.S.
(Cranch) 32 (1812)). In particular, “courts obviously must follow
Congress’ intent as to the required level of mental culpability for
any particular offense. Principles derived from common law as well
as precepts suggested by the American Law Institute must bow to
legislative mandates[]”, including legislative language and history.
United States v. Bailey, 444 U.S. 394, 406 (1980).
The Interstate Stalking Act, 18 U.S.C. § 2261A, makes it
unlawful for a person to (1) travel across a state line with the
intent to injure or harass another person, and (2) place that other
person in reasonable fear of death or serious bodily injury to
himself or a member of his immediate family, if (3) the offender
places that victim in such fear in the course of, or as a result of,
such travel. In enacting 18 U.S.C. § 2261A, Congress certainly
intended by use of the word “intent” to require some mental state
with respect to one or more of the material elements of the statute.
Beyond this, however, Congress did not explicitly spell out the
mental state or states required. Nor did Congress expressly define
the term “harass” used in the statute.
The Supreme Court has recognized that the required mental state
of mind may be different for different elements of a crime. See
Liparota, 471 U.S. at 423, n.5 (citing Bailey, 444 U.S. at 405-06;
United States v. Freed, 401 U.S. 601, 612-14 (1971)(Brennan, J.,
concurring)); see also Robinson & Grall, Element Analysis in
Defining Criminal Liability: The Model Penal Code and Beyond, 35
15
STAN.L.REV. 681 (1983). “‘[C]lear analysis requires that the
question of the kind of culpability required to establish the
commission of an offense be faced separately with respect to each
material element of the crime[.]’” Bailey, 444 U.S. at 406 (quoting
MODEL PENAL CODE § 2.02, Comments, p. 123 (Tent. Draft No. 4, 1955));
see also United States v. X-Citement Video, 513 U.S. 64, 72 (1994)
(“Morissette, reinforced by Staples, instructs that the presumption
in favor of a scienter requirement should apply to each of the
statutory elements that criminalize otherwise innocent conduct”);
United States v. Feola, 420 U.S. 671 (1975); United States v. Ahmad,
101 F.3d 386, 391 (5th Cir. 1997).
The Court has also noted that the mental element in criminal
law encompasses more than the two possibilities of “specific” and
“general” intent. See Liparota, 471 U.S. at 423, n.5 (citing
Bailey, 444 U.S. at 403-07; United States v. United States Gypsum
Co., 438 U.S. 422, 444-45 (1978); Freed, 401 U.S. at 613 (Brennan,
J. concurring)). The four mental states recognized by the ALI MODEL
PENAL CODE §2.02 -– purpose, knowledge, recklessness, and negligence
-- have implicitly been endorsed by the Supreme Court as clear and
comparatively unambiguous categories describing the various kinds
of culpability that may be required by federal criminal statutes.
See, e.g., Liparota, 471 U.S. at 423; Bailey, 444 U.S. at 405;
Gypsum, 438 U.S. at 444.
In Bailey, the Court distinguished between the mental states
of “purpose” and “knowledge”, explaining that, “except in narrow
classes of offenses, proof that the defendant acted knowingly is
16
sufficient to support a conviction.” Bailey, 444 U.S. at 408; see
also Posters ‘N’ Things Ltd. v. United States, 511 U.S. 513, 523
(1994). As examples of classes of crimes in which heightened
culpability has been thought to merit special attention, the Court
cited the statutory and common law of homicide, treason, and
inchoate offenses. See Bailey, 444 U.S. at 405.
The Interstate Stalking Act was modeled on the Interstate
Domestic Violence Act, 18 U.S.C. § 2261, which, in pertinent part,
provides: “A person who travels across a State line...with the
intent to injure, harass, or intimidate that person’s spouse or
intimate partner, and who, in the course of or as a result of such
travel, intentionally commits a crime of violence and thereby causes
bodily injury to such spouse or intimate partner, shall be punished
as provided in subsection (b).” The legislative history of the
Interstate Stalking Act demonstrates that it was enacted to extend
§ 2261's protection against spousal and intimate partner stalking
to victims of non-spousal and non-intimate partner stalking.
Senator Hutchison, who proposed the Interstate Stalking legislation,
stated:
[W]e are not federalizing the crime of stalking.
Stalking is and will remain a State crime, subject to
State jurisdiction and sanction. But under the bill I am
proposing, if a stalker crosses State lines, then Federal
resources can be brought to bear to ensure the stalker is
caught and stopped, the same protection we provided last
year for victims of domestic violence.
142 CONG. REC. S4804-02, S4804-4805 (daily ed. May 7, 1996)
(statement of Sen. Hutchison). The Department of Justice advised
Congress that it viewed the proposed legislation as modeled on the
17
existing interstate domestic violence offense, 18 U.S.C. § 2261, and
covering travel across a state line with the intent to harass
another person “where the actor in the course of, or as a result of,
such travel places that person in reasonable fear of death or
serious bodily injury to the person or an immediate family member.”
H.R. REP. NO. 104-557, at 5 (1996). The Department of Justice
supported the legislation because “it fills a gap in existing
federal law, which reaches interstate domestic violence (under 18
U.S.C. § 2261) and interstate violations of protection orders (under
18 U.S.C. § 2262), but does not cover essentially similar types of
conduct where the victim has not had an intimate relationship with
the offender and has not obtained a protection order.” Id. The
Justice Department also noted that the Act “will provide a
supplementary measure for cases where the interstate nature of the
offense may create difficulties for effective state investigation
and prosecution.” Id.The text, structure, history, and purpose of the Interstate
Stalking Act indicate that a violation of § 2261A requires that the
offender must have crossed a state line with the knowledge that he
would injure or harass a person, and that the offender, in the
course of or as a result of such travel, must have knowingly caused
that person to be placed in reasonable fear of death or serious
bodily harm. Criminalization of this pattern of intentional conduct
resembles that prohibited by the provisions of 18 U.S.C. § 2261 (the
interstate domestic violence statute), upon which the Interstate
Stalking Act, 18 U.S.C. § 2261A, was modeled. Section 2261(a)(1)
18
criminalizes crossing a state line with the intent to injure,
harass, or intimidate a spouse or intimate partner and intentionally
committing a crime of violence that causes bodily injury to such
spouse or partner. See Gluzman, 154 F.3d at 50. Section
2262(a)(1)(A)(i) criminalizes crossing a state line with the intent
to engage in conduct that violates a protection order and
subsequently intentionally engaging in that conduct. See Von
Foelkel, 136 F.3d at 341. The legislative history of § 2261A does
not indicate that Congress intended to create a kind of non-fault
based criminal liability that could arise merely from the offender
having crossed a state line with the intent to harass another person
and then unintentionally causing that person to be placed in
reasonable fear of death or serious bodily harm. Such a federal
criminal law would deviate markedly from the statute upon which §
2261A was modeled and far exceed the scope of the proposed
interstate stalking legislation described by Senator Hutchison and
the Department of Justice, viz., a measure that does not federalize
stalking crimes, but only supplements typical state stalking laws,
and merely extends the protection of its model, § 2261, to non-
spouse and non-intimate partner victims.
The words “harass” and “harassment” may convey different
meanings depending upon the context in which they are used. BLACK’S
LAW DICTIONARY 717 (6th ed. 1990) notes that the term “harassment” “is
used in a variety of legal contexts to describe words, gestures and
actions which tend to annoy, alarm and abuse (verbally) another
person; e.g., the use of ‘obscene or profane language or language
19
the natural consequence of which is to abuse the hearer or reader’
is unlawful harassment under the Federal Fair Debt Collection
Practices Act. 15 U.S.C.A. § 1692(d)(2).” See also 15 U.S.C. §
1692c et seq. (prohibiting harassment tactics such as threats,
abusive language, or telephone excesses). As defined in 18 U.S.C.
§ 1514(c), which provides a civil action to restrain harassment of
a victim or a witness in a federal criminal case, “harassment” means
“a course of conduct directed at a specific person that causes
substantial emotional distress in such person and serves no
legitimate purpose.” Under MODEL PENAL CODE § 250.4, harassing
another may include making a telephone call without purpose of
legitimate communication; insults, taunts or challenges in a manner
likely to provoke violent or disorderly response; repeated anonymous
communications at extremely inconvenient hours, or in offensively
coarse language; offensive touching, or any other course of alarming
conduct serving no legitimate purpose of the actor. In ordinary
usage “harass” may mean to irritate or torment persistently; to wear
out, exhaust; to impede and exhaust (an enemy) by repeated attacks
or raids. See THE AMERICAN HERITAGE COLLEGE DICTIONARY 618 (3d ed. 1993).
When the text, structure, history, and purpose of a criminal
statute fail to establish its meaning unambiguously, doubts are
resolved in favor of the defendant. See, e.g., United States v.
Granderson, 511 U.S. 39, 54 (1994); Adamo Wrecking Co. v. United
States, 434 U.S. 275, 285 (1978); United States v. Levy, 579 F.2d
1332, 1337 (5th Cir. 1978); see also Cispes v. Federal Bureau of
Investigation, 770 F.2d 468, 476 (5th Cir. 1985)(“Although the term
20
[“harass”] considered on its own might otherwise arguably present
a possibility of arbitrary and discriminatory enforcement....[w]hen
considered in the context of the rest of the statute, especially as
we have construed it, supra, the meaning and scope of the word
becomes clear.”)
Applying these precepts, I conclude that to “harass” another
person within the context of § 2261A means to place that person in
reasonable fear of death or serious bodily harm to himself or to a
member of his immediate family. The purpose of the statute is to
prevent any person from being placed in such fear by the intentional
act of an interstate stalker. The legislative history confirms that
it was Congress’ intention to protect persons from such fear and not
from less severe harassments that do not cause fear for life or
personal safety. See Senator Hutchison’s remarks, 142 CONG. REC.
S4804-02 (“Mr. President, I am introducing legislation today to
strengthen the protections our society offers to stalking victims,
those individuals whose stories we so often hear only after they end
in tragedy....Freedom from fear is one of the most cherished
advantages we are supposed to enjoy in our country, but stalking
victims have been robbed of that freedom.”)6
For the foregoing reasons, absent indication of a contrary
purpose in the language or legislative history of the statute, I
6
Consequently, it is unwarranted to assume, as the trial court
did in the present case, that exposure to criminal liability under
the Interstate Stalking Act can be triggered by crossing a state
line with an intent to cause any “substantial emotional distress”,
which is the minimum level of harassment that may be restrained in
a civil action to protect the mental composure of witnesses and
victims in federal criminal cases. See 18 U.S.C. § 1514.
21
believe that § 2261A requires (1) a showing that the defendant knew
when he crossed a state line that it was practically certain that
he would engage in future conduct to injure a particular person or
harass that person by placing him or her in reasonable fear of death
or serious bodily injury to that person or to a member of that
person’s immediate family, and (2) a showing that the defendant
engaged in conduct with present awareness that it was practically
certain to place that person in such reasonable fear of death or
serious bodily injury. “‘The contention that an injury can amount
to a crime only when inflicted by intention is no provincial or
transient notion. It is as universal and persistent in mature
systems of law as belief in freedom of the human will and a
consequent ability and duty of the normal individual to choose
between good and evil.’” Liparota, 471 U.S. at 425 (quoting
Morissette v. United States, 342 U.S. 246, 250 (1952)). Thus, the
Supreme Court has noted that “‘[c]ertainly far more than the simple
omission of the appropriate phrase from the statutory definition is
necessary to justify dispensing with an intent requirement’ and that
criminal offenses requiring no mens rea have a ‘generally disfavored
status.’” Liparota, 471 U.S. at 426 (quoting Gypsum, 438 U.S. at
438). Similarly, in the present case, “the failure of Congress
explicitly and unambiguously to indicate whether mens rea is
required” in connection with placing a person in reasonable fear of
death or serious bodily injury “does not signal a departure from
22
this background assumption of our criminal law.”7 Liparota, 471
U.S. at 426.
This construction is particularly appropriate where, as here,
to interpret the statute otherwise would be to criminalize a
possibly broad range of conduct not normally considered criminally
reprehensible. A strict reading of § 2261A with no limitation on
the term “harass” and no requirement that the offender commit an act
with present knowledge that it was practically certain to place the
victim in fear of death or serious harm would thus make a felon of
a person who, for example, crossed a state line knowing he
thereafter would engage in conduct to annoy a particular person but
ended up doing something accidentally and unintentionally that
placed that person in fear of death or serious harm. Given the
language and legislative history of § 2261A, however, such a
sweeping interpretation of the statute is not justified.
In addition, requiring mens rea in connection with the material
element of placing a person in reasonable fear of death or serious
harm and construing the term “harass” narrowly as referring to such
dreadful conduct are in keeping with the longstanding recognition
of the principle that “ambiguity concerning the ambit of criminal
7
See also United States v. X-Citement Video, Inc., 513 U.S.
64, 69 (1994) (interpreting the Protection of Children Against
Sexual Exploitation Act of 1977 to require that the scienter
requirement ‘knowingly’ apply to all statutory elements, refusing
to assume that Congress intended to sweep unintentional behavior
within the statute’s ambit); United States v. Ahmad, 101 F.3d 386,
391 (5th Cir. 1997) (“[W]e hold that the offenses charged in counts
one and two are not public welfare offenses and that the usual
presumption of a mens rea applies. With the exception of purely
jurisdictional elements, the mens rea of knowledge applies to each
element of the crimes.”).
23
statutes should be resolved in favor of lenity.” Liparota, 471 U.S.
at 427 (quoting Rewis v. United States, 401 U.S. 808, 812 (1971))
(citing U.S. Gypsum, 438 U.S. at 437; United States v. Bass, 404
U.S. 336, 347-48 (1971); Bell v. United States, 349 U.S. 81, 83
(1955); United States v. Universal CIT Credit Corp., 344 U.S. 218,
221-22 (1952)). “Application of the rule of lenity ensures that
criminal statutes will provide fair warning concerning conduct
rendered illegal and strikes the appropriate balance between the
legislature, the prosecutor, and the court in defining criminal
liability.” Liparota, 471 U.S. at 427. “The rule of lenity is not
to be applied where to do so would conflict with the implied or
expressed intent of Congress, but it provides a time-honored
interpretive guideline when the congressional purpose is unclear.”
Id.Finally, the Supreme Court has recognized that “[h]istorically,
the penalty imposed under a statute has been a significant
consideration in determining whether the statute should be construed
as dispensing with mens rea.” See Staples v. United States, 511
U.S. 600, 616 (1994). In Staples, the Court found that the “harsh
penalty” of up to ten years imprisonment imposed by a statute
demands “significant consideration in determining whether the
statute should be construed as dispensing with mens rea.” See
Staples, 511 U.S. at 616; see also United States v. Anderson, 885
F.2d 1248, 1254 (5th Cir. 1989) (en banc) (finding ten year prison
sentence for gun possession under the National Firearms Act, 26
U.S.C. § 5861, excessive in the absence of an express mens rea
24
requirement). The punishment for an offense under 18 U.S.C. § 2261A
may range from 5 years imprisonment to life imprisonment, depending
on the severity of consequences to the victim. See 18 U.S.C. §§
2262(b) and 2261A.
Under the foregoing construction of the Interstate Stalking
Act, it is not unconstitutionally vague or overbroad: (1) “As
generally stated, the void-for-vagueness doctrine requires that a
penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement.” Kolender v. Lawson, 461 U.S. 352, 357
(1983). The Supreme Court has recognized that the doctrine’s
requirement of minimal statutory guidelines to govern law
enforcement is even more important than its mandate of notice or
fair warning. Id. As interpreted above, 18 U.S.C. § 2261A would
give adequate warning of the activities it proscribes and would not
permit “‘a standardless sweep [that] allows policemen, prosecutors,
and juries to pursue their personal predilections.’” Id. at 358
(quoting Smith v. Goguen, 415 U.S. 566, 575 (1974)). (2) In
principle, a person to whom a statue may constitutionally be applied
will not be heard to challenge that statute on the ground that it
may conceivably be applied unconstitutionally to others, in other
situations not before the court. See Broadrick v. Oklahoma, 413
U.S. 601, 610-16 (1973). This rule is subject only to a few limited
exceptions supported by the most weighty of countervailing
25
policies.8 See id. at 611. Facial overbreadth claims have not been
allowed when a limiting construction has been or could be placed on
the challenged statute, and they have been curtailed, if entertained
at all, when invoked against ordinary criminal laws that are sought
to be applied to protected conduct. See id. at 613. “[W]here
conduct and not merely speech is involved, we believe that the
overbreadth of a statute must not only be real, but substantial as
well, judged in relation to the statute’s plainly legitimate sweep.”
Id. at 615. Applying these precepts, I conclude that § 2261A, as
limited by the foregoing construction, is not substantially
overbroad and that any overbreadth that may exist should be cured
through case-by-case analysis of the fact situations to which it
assertedly may not be applied. See id. at 615-16.
Moreover, the Supreme Court’s cases have long held that a
statute as construed may be applied to conduct occurring prior to
the construction, provided such application affords fair warning to
the defendant. See Osborne v. Ohio, 495 U.S. 103, 115-16 (1990)
(citing Dombrowski v. Pfister, 380 U.S. 479, 491 n.7 (1965); Hamling
v. United States, 418 U.S. 87, 114-16 (1974)).
8
E.g., “[w]here individuals not parties to a particular suit
stand to lose by its outcome and yet have no effective avenue of
preserving their rights themselves”, Broadrick, 413 U.S. at 611; in
the First Amendment area, attacks on overly broad statutes have
been permitted by persons whose conduct could not be regulated by
a statute drawn with the requisite specificity; where the rights of
association were ensnared in statutes which, by their broad sweep,
might result in burdening innocent associations; where statutes
purport to regulate the time, place and manner of expressive
conduct; and where laws delegated standardless discretionary power
to local functionaries, resulting in virtually unreviewable prior
restraints on First Amendment rights. See id. at 612-13.
26
Like the defendants in Osborne and Hamling, Stewart had notice
that the conduct, in which the jury reasonably could have found that
he had engaged, was proscribed. It is evident from the face of §
2261A that the goal of the statute is to prevent persons from being
placed in reasonable fear of death or serious bodily harm due to the
conduct of an interstate stalker. It hardly needs elaboration that
the jury reasonably could have found from the evidence of Stewart’s
history of physically abusive treatment of his former wife Doris and
their three sons, and from the evidence of his more recent threats
to kill them in the few weeks or months before his trip, that
Stewart traveled from Alabama to Georgetown, Texas knowing that his
activities there would place them in fear for their lives and that
he in fact engaged in conduct there which he knew would place them
in reasonable fear of death or serious bodily harm to themselves or
their immediate families. Therefore, although § 2261A as written
may not have been precisely contoured, someone in Stewart’s
position would not be surprised to learn that his conduct in this
case constituted a crime. See Osborne, 495 U.S. at 116.
Because Stewart had notice that the conduct with which he was
charged was criminal, his case differs from others in which
defendants’ convictions were reversed on due process grounds because
of an appellate court’s unforeseeable judicial expansion of the
scope and terms of criminal statutes to criminalize their conduct
retroactively. See, e.g., Osborne, 495 U.S. at 117; Marks v. United
States, 430 U.S. 188 (1977)(retroactive application of judicially
broadened obscenity standard); Rabe v. Washington, 405 U.S. 31327
(1972)(unexpected judicial expansion of state obscenity statute);
Bouie v. City of Columbia, 378 U.S. 347 (1964)(state trespass
statute expanded beyond its proscription of unauthorized entry to
criminalize sit-in demonstrators’ refusal to leave a restaurant).
Although Stewart’s vagueness and overbreadth challenges must
be rejected for the foregoing reasons, it must still be determined
whether Stewart’s convictions were, unfairly and in plain error,
based on jury instructions as to the literal terms of §2261A rather
than upon instructions consistent with the foregoing construction
of the statute. See Osborne, 495 U.S. at 125; Shuttlesworth v. City
of Birmingham, 382 U.S. 87, 92 (1965).
III. Review For Plain Error In Jury Instructions
Stewart did not object at trial to the court's jury
instructions regarding the culpability requirements and the meaning
of “harass” within the context of § 2261A. Therefore, this court
may notice and correct any defects or errors with respect to these
instructions only as “plain error” under Federal Rule of Criminal
Procedure 52(b). Under Rule 52(b), before an appellate court can
correct an error not raised at trial, there must be (1) error, (2)
that is plain, and (3) that affects substantial rights; if all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affects the fairness, integrity, or public reputation of
judicial proceedings. See Johnson v. United States, 520 U.S. 461,
462 (1997); United States v. Olano, 507 U.S. 725, 732 (1993); United
States v. Young, 470 U.S. 1, 15 (1936).
28
In submitting the case to the jury, the district court
instructed the jury as follows:
Count 1 of the indictment charges that on or about
March 11th, 1997, within the Western District of Texas and
elsewhere, defendant, Robert Frank Stewart, Sr., also
known as Frank R. Odom, did knowingly and intentionally
travel across a state line, namely the Texas state line,
having previously been located in the State of Alabama,
and did travel across said state line with the intent to
harass and injure another person: To wit, [court’s
misstatement and immediate correction thereof deleted]
Richard L. Stewart, and as a result of said travel placed
Richard L. Stewart in reasonable fear of the death of or
serious bodily injury to Richard L. Stewart and the
immediate family of Richard L. Stewart, in violation of
Title 18, United States Code, Section 2261A.
[The Court instructed the jury similarly with respect
to Counts 2-4 of the indictment charging Stewart with
violations of § 2261A with respect to Robert Frank
Stewart, Jr., Doris Stewart, and Raymond Stewart.]
[]Section 2261A makes it a crime for anyone to travel
across a state line with the intent to injure or harass
another person and as a result of such travel place that
person in reasonable fear of death of or serious bodily
injury to that person or a member of that person’s
immediate family.
For you to find the defendant guilty of the crime as
charged in Counts 1 through 4 of the indictment, you must
be convinced that the government has proved each of the
following beyond a reasonable doubt: First, that the
defendant crossed a state line within the United States
with the intent to injure or harass another person. And
the named victim there means that the person named in
each one of those counts.
And, second, that as a result of such travel, that
person, the named victim, was placed in reasonable fear
of the death of or serious bodily injury to that person
or a member of that person’s immediate family.
* * *
The word, knowingly, as that term has been used from
time to time in these instructions, means that the act
was done voluntarily and intentionally and not because of
mistake or accident.
During their deliberations, the jurors sent the trial court a
note: “Please provide a legal definition of harassment or a
dictionary.” The trial court sent them an additional written
29
instruction: “The term, harassment, means a course of conduct
directed at a specific person that causes substantial emotional
distress in such person and serves no legitimate purpose.”9
Under the construction of the statute set forth above, a trial
court is obliged to instruct the jury that a conviction under 18
U.S.C. § 2261A requires proof that (1) the offender crossed a state
line knowing that he would injure or harass a particular victim in
the state of his destination; in this connection, “harass” means to
knowingly place another person in reasonable fear of death or
serious bodily injury to himself or to a member of his immediate
family; (2) the offender engaged in conduct that he knew would
place, and that actually placed, the victim in reasonable fear of
death or serious bodily injury to himself or to a member of his
immediate family; and (3) the victim’s reasonable fear of death or
serious bodily injury occurred in the course of or as a result of
the offender’s interstate travel. Consequently, the jury
instructions given in the case at bar were erroneous in two
respects. First, the instructions incorrectly used and defined
“harass” in describing the first material element of § 2261A; and,
second, the jury charge on the state of mind that the offender must
have to be guilty of “placing” a victim in reasonable fear of death
or serious bodily injury was not clear or correct.
Prior to the present case, these requirements of § 2261A had
not been explicitly defined by law or judicial interpretation.
9
This instruction was based on 18 U.S.C. § 1514(c), which
defines “harassment” for purposes of a civil action to restrain
harassment of a victim or witness in a federal criminal case.
30
Under Griffith v. Kentucky, 479 U.S. 314 (1987), a “new rule for the
conduct of criminal prosecutions is to be applied retroactively to
all cases...pending on direct review...with no exception for cases
in which the new rule constitutes a ‘clear break’ with the past.”
Id. at 328. Because Stewart is still on direct review, Griffith
requires that, if the statutory construction I have outlined above
were adopted by this court, it would have to be applied herein
retroactively. Accordingly, under the statutory construction that
should be adopted and applied, I conclude there was “error,” and
the first prong of Olano is satisfied. See Johnson, 520 U.S. at
462.
With respect to the second prong, Olano explained that the word
“plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious.’”
See Olano, 507 U.S. at 734. As to when the error must be plain,
Olano concluded that “[a]t a minimum, a court of appeals cannot
correct an error pursuant to Rule 52(b) unless the error is clear
under current law.” Id. Johnson rejected the Government’s
contention that, “for an error to be ‘plain,’ it must have been so
both at the time of trial and at the time of appellate
consideration[,]” because “such a rule would result in counsel’s
inevitably making a long and virtually useless laundry list of
objections to rulings that were plainly supported by existing
precedent.” Johnson, 520 U.S. at 467-68. Accordingly, the Court
in Johnson held “that in a case such as this–-where the law at the
time of trial was settled and clearly contrary to the law at the
time of appeal–it is enough that an error be ‘plain’ at the time of
31
appellate consideration.” Id. at 468. Prior to Johnson, this court
had already adopted a similar rule that permits defendants to assert
plain error based on intervening changes in the law. See United
States v. Jobe, 101 F.3d 1046, 1062 (5th Cir. 1996)(“Allowing plain
error review when an objection would have been baseless under then-
current law does not countenance the sandbagging that the
contemporaneous objection rule is designed to prevent, while denying
plain error review in that situation would encourage frivolous
objections by defense attorneys trying to preserve error based on
every conceivable future change in the law.”)(citing United States
v. David, 83 F.3d 638, 645 (4th Cir. 1996)).
In the present case, the trial court sent the jury at its
request a written definition of “harassment” taken from 18 U.S.C.
§ 1514(c)(1). Section 2261A does not explicitly define the term
“harass” with respect to the first material element of the offense.
At the time of trial, there were no judicial decisions interpreting
“harass” for purposes of § 2261A. Thus, if the court were to adopt
the statutory construction, not until its decision interpreting §
2261A by adding clarification of the term “harass” would the error
committed by the district court in defining “harassment” become
clear and obvious, i.e., “plain.” Consequently, the decision to
this effect defining “harass” in § 2261A would represent an
unforeseen change of the law that was apparently existing at the
time of trial just as much as occurs when a well-settled
jurisprudential rule is overturned. In the present case, allowing
plain error review of this error would not undermine the
32
contemporaneous objection rule, but denying it would “encourage
frivolous objections by defense attorneys trying to preserve error
on every conceivable change in law.” Jobe, 101 F.3d at 1062.
Moreover, for Stewart to have the benefit of plain error review is
consistent with the requirement of Griffith that a new rule for the
conduct of criminal prosecutions is to be applied retroactively to
all cases pending on direct review and not yet final. See also
United States v. Retos, 25 F.3d 1220, 1230 (3d Cir. 1994)(plain
error review allowed where jury instruction error became clear only
with the Supreme Court’s intervening decision in Ratzlaf v. United
States, 510 U.S. 135 (1994), holding that to establish that the
defendant “willfully violated” the anti-structuring law, the
government must prove that the defendant acted with knowledge that
his conduct was unlawful). Therefore, for purposes of my review,
the second part of the Olano test is satisfied regarding the
erroneous jury instruction defining “harass.”
However, the error in the instructions regarding the proof of
the mental state required to establish the material element of
placing a victim in reasonable fear of death or serious bodily
injury is not “plain.” The jury instructions touched on this
culpability requirement in several different ways. First, the jury
was told that each count of the indictment charged that Stewart “did
knowingly and intentionally travel across a state line, namely the
Texas state line, and did travel across said state line with the
intent to harass and injure another person: to wit [name of the
particular alleged victim] and as a result of such travel placed
33
[that victim] in reasonable fear of death or serious bodily injury
[to that victim or the victim’s immediate family.]” Second, the
jury was instructed that “Section 2261A makes it a crime to travel
across a state line with the intent to injure or harass another
person and as a result of such travel place that person in
reasonable fear of the death of or serious bodily injury to that
person or a member of theat person’s immediate family.” Third, the
trial court instructed the jury that to find the defendant guilty
“you must be convinced that the government has proved each of the
following beyond a reasonable doubt: first, that the defendant
crossed a state line...with the intent to injure or harass another
person....And, second, that as a result of such travel, that person,
the named victim, was placed in reasonable fear of the death or
serious bodily injury to that person or a member of that person’s
immediate family.” Fourth, the jury was charged that “[y]ou may
also consider reasonable to draw the inference and find that a
person intends the natural and probable consequences of acts
knowingly done or knowingly omitted.” Finally, the trial court
instructed that “[t]he word, knowingly, as that term has been used
from time to time in these instructions, means that the act was done
voluntarily and intentionally and not because of mistake or
accident.”
These state of mind instructions, considered as a whole, were
ambiguous. They reasonably may have been understood to convey the
message that Stewart had to have knowingly caused a particular
victim to be placed in reasonable fear of death or serious bodily
34
injury in order for the jury to find him guilty on a particular
count. On the other hand, the jury charge may have indicated to a
reasonable juror that the government must prove only that Stewart
crossed the state line with the intent to injure or harass the
victim and that Stewart’s interstate travel resulted, knowingly or
unknowingly, in the victim’s reasonable fear of the prescribed
consequences. Perhaps a reasonable juror would be less likely to
make the latter interpretation because it would permit an accused
who had guilty thoughts concerning a particular person while
crossing the state line to be convicted even if that person’s
reasonable fear was caused unknowingly or unintentionally by the
accused’s travel or because of mistake or accident. Consequently,
the jury charge’s error in failing to give a clear instruction as
to the culpability or state of mind requirement with respect to
placing a victim in fear is not “obvious,” “clear,” or “plain,” and
may not be noticed or corrected under Rule 52(b).
The third requirement for plain error review under Rule 52(b)
is that the plain error affect substantial rights. This is the same
language used in Rule 52(a), the harmless error rule providing that
“[a]ny error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded.” Rule 52(b) normally
requires the same kind of harmless error inquiry, but “with one
important difference: It is the defendant rather than the Government
who bears the burden of persuasion with respect to prejudice.”
Olano, 507 U.S. at 734-35.
An improper instruction on an element of the offense violates
35
the Sixth Amendment’s jury trial guarantee. See Neder v. United
States, 119 S.Ct. 1827, 1835 (1999); Rose v. Clark, 478 U.S. 570,
580, n.8 (1986); Francis v. Franklin, 471 U.S. 307, 313 (1985);
Jackson v. Virginia, 443 U.S. 307, 320, n.14 (1979); Cool v. United
States, 409 U.S. 100, 102-03 (1972); In re Winship, 397 U.S. 358,
363 (1970); Screws v. United States, 325 U.S. 91, 107 (1945)
(plurality opinion). The test for determining whether such a
constitutional error is harmless is “whether it appears ‘beyond a
reasonable doubt that the error complained of did not contribute to
the verdict obtained.’” Neder, 119 S.Ct. at 1837 (quoting Chapman
v. California, 386 U.S. 18, 24 (1967) and Delaware v. Van Arsdall,
475 U.S. 673, 681 (1986)(“[A]n otherwise valid conviction should not
be set aside if the reviewing court may confidently say, on the
whole record, that the constitutional error was harmless beyond a
reasonable doubt.”)).
The defendant Stewart has sustained his burden of persuading
me that I cannot confidently say, on the whole record, that the
constitutional error in the jury charge and the additional written
instruction using an improper definition of the terms “harass” or
“harassment” constituted harmless beyond a reasonable doubt. The
trial court’s jury instructions failed to correctly inform the jury
that the government was obliged to prove that Stewart had crossed
a state line with the intention of either injuring each alleged
victim or placing each victim in reasonable fear of death or serious
bodily injury to himself or his family. The jury charge repeatedly
stated that, with respect to the first element of the offense, the
36
government was required to show only that Stewart had traveled
across a state line with the intent to “injure or harass” the named
victim. The jury instructions thus conveyed the message that the
prosecution could satisfy its burden under the first material
element by persuading the jury that Stewart crossed the state line
with the intent merely to cause substantial emotional distress to
each alleged victim for no legitimate purpose. Consequently, the
prosecution was able to represent to the jury that: “It’s whether
you believe the combination of actions here revealed that the
defendant came down with the intent to either injure or harass the
victims. And of course because he traveled down here, that they
were placed in reasonable fear of serious bodily injury or death.”
As the result of the improper instructions and the
prosecution’s arguments tailored closely to them, there is a
reasonable possibility that the jury was led to believe that
“harass” meant merely to cause substantial emotional distress to a
person for no good reason; and that Stewart could be found guilty
as charged if the jury was convinced of only two facts: (1) that
Stewart crossed a state line with the intent to cause substantial
emotional distress to Doris and his adult sons; and (2) that
Stewart’s travel to Georgetown, Texas resulted in placing them in
the requisite reasonable fear of death or serious harm.
Consequently, there is a reasonable possibility that the jury
believed that Stewart could be found guilty without the necessity
of their being convinced beyond a reasonable doubt that Stewart
37
crossed the state line with the knowledge or intent that he would
engage in conduct in Texas that would place each victim in the
requisite reasonable fear of death or serious harm. In other words,
the jury was possibly led to believe that the ambit of conduct
criminalized by the Interstate Stalking Act was very much broader
than that which was actually intended by Congress. Therefore, I
cannot confidently say, on the whole record, that the constitutional
error was harmless beyond a reasonable doubt. Thus, Olano’s third
requirement has in my opinion been met.
When the first three parts of Olano are satisfied, an appellate
court must then determine whether the plain, harmful errors
“seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings” before it may exercise its discretion to
correct the errors. Johnson, 520 U.S. at 469; see also Olano, 507
U.S. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)). Based on the evidence in this particular case including
a long history of terroristic conduct by the defendant toward the
victims and other persons in the victims’ presence, and his death
threats that he must have known would be communicated to the victims
shortly before his trip, that question would be answered in the
negative by this court.
“[W]hether an appellate court should take notice of an error
not raised below must be made on the facts of the particular case,
and there are no ‘hard and fast classifications in either the
application of the principle or the use of a descriptive title.’”
3A CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 856, at 337 (2d ed.
38
1982) [hereinafter WRIGHT] (quoting Dupoint v. United States, 388
F.2d 39, 45 (5th Cir. 1967))(citing, inter alia, United States v.
Gerald, 624 F.2d 1291, 1299 (5th Cir. 1980), cert. denied, 450 U.S.
920 (1981)). This court exercises the power to notice and correct
a plain error cautiously and only in exceptional circumstances. See
United States v. Atkinson, 297 U.S. 157, 160 (1936); United States
v. Adams, 634 F.2d 830, 836 (5th Cir. 1981); WRIGHT, § 856, at 338.
The adversary system presupposes that a party must look to his
counsel to protect him and that he must bear the cost of the
mistakes of his counsel. See WRIGHT, § 856, at 341 (citing United
States v. Powe, 591 F.2d 833, 846-47 (D.C. Cir. 1978)).
Nevertheless, courts should be more willing to find plain error if
it appears that the trial representation by a criminal defendant
acting as his own attorney or by a defense counsel, whether
appointed or retained, was less than satisfactory. See WRIGHT, §
856, at 341 (citing Powe, 591 F.2d at 846-47). “It is important
that justice be done but it is also important that justice seem to
be done. ‘Even those guilty of the most heinous offenses are
entitled to a fair trial.’” See WRIGHT, § 856, at 340 (quoting Screws
v. United States, 325 U.S. 91, 107 (1945) (opinion of Douglas, J.)).
Recently, in Johnson v. United States, 520 U.S. 461 (1997), the
Supreme Court held that the forfeited error consisting of the trial
court’s failure to instruct the jury as to the materiality element
of the crime of perjury under 18 U.S.C. § 1623 did not seriously
affect the fairness, integrity or public reputation of judicial
proceedings so as to permit the court to exercise its discretion to
39
correct the error. Id. at 469-70. The pertinent facts were as
follows:
In the late 1980's, a federal investigation into the
cocaine and marijuana trafficking of Earl James Fields
revealed that he and his partner had amassed some $10
million from their illicit activities. Following the
money trail, federal authorities subpoenaed petitioner
Joyce B. Johnson, Fields' long-time girlfriend, to
testify before a federal grand jury. Johnson, who is
the mother of a child by Fields, earned about $34,000 a
year at the Florida Department of Health and
Rehabilitative Services. She testified before the grand
jury that she owned five pieces of real property,
including her house. That house was purchased by Johnson
in 1991 for $75,600, and in the next two years she added
sufficient improvements to it that in 1993 it was
appraised at $344,800. When asked the source of her
home improvement funds, Johnson stated that she had put
$80,000 to $120,000 into her house, all of which had come
from a box of cash given her late mother by one Gerald
Talcott in 1985 or 1986.
On the basis of this testimony, Johnson was indicted
for perjury under 18 U.S.C. § 1623. At trial, it was
rvae ta Fed hdngtae teoiia prhs o Jhsnshm adta Jhsnhdpi fr
eeld ht ils a eoitd h rgnl ucae f ono' oe n ht ono a ad o
the property with eight different cashier's checks, including two
from a corporation in which Fields had an interest. It was also
established that Gerald Talcott had died in April 1982, several
years before the time Johnson claimed he had given her mother the
box full of cash.
At the close of Johnson's trial, and in accordance with
then-extant Circuit precedent, see, e.g., United States
v. Molinares, 700 F.2d 647, 653 (C.A.11 1983), the
District Judge instructed the jury that the element of
materiality was a question for the judge to decide, and
that he had determined that her statements were material.
Johnson did not object to this instruction. Indeed,
when the prosecution had presented evidence concerning
materiality during the trial, she had then objected, on
the ground that materiality was a matter for the judge,
and not the jury, to decide. Id., at 61. The jury
returned a verdict of guilty, and Johnson was sentenced
to 30 months' imprisonment, three years' supervised
release, and a $30,000 fine.
After Johnson was convicted, but before her appeal to
the Court of Appeals, we decided United States v. Gaudin,
supra, which held that the materiality of a false
statement must be submitted to the jury rather than
decided by the trial judge. On her appeal, Johnson
argued that the trial judge's failure to submit
materiality to the jury rendered her conviction invalid
40
under Gaudin.
Johnson, 520 U.S. at 463-64.
In Johnson the Court observed that the evidence of materiality
was “overwhelming,” that “materiality was essentially
uncontroverted” at trial and on appeal, and that Johnson had
“presented no plausible argument that the false statement under oath
for which she was convicted –- lying about the source of the tens
of thousands of dollars she used to improve her home –- was somehow
not material to the grand jury investigation.” Id. at 470. The
Court stated that there was no basis for concluding that the error
seriously affected the fairness, integrity or public reputation of
judicial proceedings and that no “miscarriage of justice” would
result if the error were not noticed. Id.On the record in the present case, I believe that this court
would decide that there is no basis for concluding that the error
seriously affected the fairness, integrity or public reputation of
judicial proceedings. The four victims were members of one
immediate family who lived near each other. At least two of the
sons were married and had families of their own. Stewart admitted
his perpetration of serious physical and mental abuse upon his
former wife Doris and their sons in the years prior to 1983. He did
not deny many of the threats to kill Doris, to kill his three adult
sons and their wives, and to kidnap his son Wesley that the
witnesses testified he made shortly before he traveled from Alabama
to Georgetown, Texas in March of 1997. The threats he denied, he
did so only perfunctorily. He offered no plausible explanation of
41
why his attitude toward the subjects of his threats would have
changed before he crossed the Texas state line and arrived in
Georgetown. Stewart offered no reasonable explanation for the
bizarre incident in which he drove a vehicle across a double yellow
line and two opposing traffic lanes to cause a collision with the
truck being driven by Richard Stewart. Nor did he explain his
peculiar conduct following the accident in avoiding contact with
Richard Stewart although he claimed not to have recognized his son
until an investigating officer spoke his name over the police radio.
It is undisputed that Stewart was seen three times by Richard in the
vicinity of the police station when Richard was there, and that one
of those times Stewart followed Richard into the building, although
Stewart left when he was asked to do so. Stewart did not explain
why his actions did not knowingly place Richard Stewart in
reasonable fear of death or serious bodily injury to himself or his
immediate family; or why his actions did not place the entire tight
knit family in such fear for Richard and for each other. Stewart
and all of his victims knew that Richard was the legal custodian of
Wesley and that Doris had been Wesley’s primary caretaker virtually
all of his life. As such, as the entire family was aware, Doris and
Richard were the main obstacles to Stewart’s goal of regaining
custody or possession of Wesley and removing him from the vicinity
and perhaps from the country. Under the circumstances of this
particular case no miscarriage of justice will result from this
Court’s declining to notice the error in the proceedings with
respect to the convictions of the defendant. See Johnson, 520 U.S.
42at 470; Olano, 507 U.S. at 736.
43