United States v. Amy Gonzalez , 905 F.3d 165 ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-1540
_____________
UNITED STATES OF AMERICA
v.
AMY GONZALEZ
Appellant
_____________
No. 16-1559
_____________
UNITED STATES OF AMERICA
v.
DAVID MATUSIEWICZ
Appellant
_____________
On Appeal from the United States District Court for the
District of Delaware
(D.C. Nos. 1-13-cr-00083-001, 1-13-cr-00083-003)
District Judge: Hon. Gerald A. McHugh
Argued: February 7, 2018
__________
Before: CHAGARES, SCIRICA, RENDELL, Circuit Judges.
(Opinion Filed: September 7, 2018)
Jeremy H.G. Ibrahim, Sr. [ARGUED]
P.O. Box 1025
1631 Baltimore Pike
Chadds Ford, PA 19317
Counsel for Appellant Amy Gonzalez
Edson A. Bostic
Tieffa N. Harper [ARGUED]
Office of the Federal Public Defender
800 King Street, Suite 200
Wilmington, DE 19801
Counsel for Appellant David Matusiewicz
David C. Weiss
Jamie M. McCall [ARGUED]
Shawn A. Weede
Office of United States Attorney
1007 N. Orange Street, Suite 700
P.O. Box 2046
Wilmington, DE 19801
2
Counsel for Appellee
Edward J. McAndrew
Lindsey B. Zionts
Ballard Spahr
1735 Market Street, 51st Floor
Philadelphia, PA 19103
Counsel for Amici Curiae Beau Biden Foundation for
the Protection of Children, Delaware Coalition Against
Domestic Violence, National Center for Victims of
Crime, and National Network to End Domestic
Violence in support of Appellee
____________
OPINION
____________
CHAGARES, Circuit Judge.
I. Introduction ..................................................................... 4
II. Facts and Procedural History .......................................... 5
III. Analysis ......................................................................... 14
A. Sufficiency of the Evidence Challenge ..................... 14
B. Jury Instruction Challenges ....................................... 22
1. Lack of a Specific Unanimity Instruction ............ 23
2. “Death Results” Instruction .................................. 31
C. Substantive Challenges to the Prosecution of the
Case .......................................................................... 39
3
1. First Amendment .................................................. 39
2. Venue in Delaware ............................................... 47
D. Evidentiary Challenges ............................................. 49
1. Family Court Opinion .......................................... 50
2. Belford’s Therapy Tapes and Emails ................... 57
a. Therapy Sessions .............................................. 57
b. Emails................................................................ 61
c. Confrontation Clause ........................................ 62
3. Testimony of FBI Case Agent .............................. 64
4. Exclusion of Polygraph Rebuttal Evidence .......... 66
5. Character Evidence Cross-Examination............... 69
E. Sentencing Challenges .............................................. 70
1. Fifth and Sixth Amendments................................ 70
2. Official Victim Enhancement ............................... 72
3. Vulnerable Victim Enhancement ......................... 74
4. Eighth Amendment............................................... 76
IV. Conclusion ..................................................................... 76
I. Introduction
This case concerns challenges by David Matusiewicz
and Amy Gonzalez (together, the “defendants”) to their
convictions for conspiracy to commit interstate stalking and
cyberstalking, interstate stalking resulting in death, and cyber
stalking resulting in death, and to their resulting life sentences
for conspiracy to commit interstate stalking and cyberstalking
which resulted in the death of Christine Belford, the ex-wife of
David Matusiewicz. The defendants are siblings and were
4
indicted, along with their mother, Lenore Matusiewicz, after
their father, Thomas Matusiewicz, shot and killed Belford and
himself in the lobby of the New Castle County Courthouse.
They engaged in a years-long conspiracy with Thomas
Matusiewicz, an unindicted co-conspirator, to harass Belford,
which ultimately resulted in her death. On appeal, each
defendant challenges, inter alia, the constitutionality of the
statutes under which they were convicted, the jury’s verdict on
sufficiency of the evidence grounds, various evidentiary
rulings of the District Court, as well as numerous challenges to
their sentences of life imprisonment. Faced with numerous
issues of first impression in this complicated case, District
Judge Gerald McHugh, sitting by designation, handled this
case with exceptional precision and care. We will affirm the
District Court in all respects.
II. Facts and Procedural History
David Matusiewicz1 and Christine Belford were
married from 2001 to 2006, during which time they had three
children, L.M.1, L.M.2, and K.M.1 (the “children”). The
couple and their children also lived with Belford’s one child
from a previous marriage, K.M.2.2 After their divorce, Belford
and David engaged in a bitter custody dispute, during which
David accused Belford of being an unfit mother and suffering
from mental health disorders. On February 13, 2007,
following an evaluation by a psychologist who determined that
1
Hereinafter, we will refer to David Matusiewicz,
Lenore Matusiewicz, and Thomas Matusiewicz, respectively,
as David, Lenore, and Thomas.
2
To protect their privacy, we will use only initials to
refer to the children.
5
David’s allegations were unfounded, the Delaware Family
Court awarded joint custody of the children.
On August 26, 2007, rather than let the children return
from staying with David to live with Belford, David, along
with his mother Lenore, kidnapped L.M.1, L.M.2, and K.M.1
and absconded to Central America. During the kidnapping,
David told L.M.1 that Belford had committed suicide. In
March 2009, the children were located in Nicaragua and
rescued, and David and Lenore were arrested. The children
returned to live with Belford, who had been awarded sole
custody during the kidnapping. David pleaded guilty to federal
kidnapping charges and was sentenced to 48 months of
imprisonment on December 10, 2009. Appendix (“App.”) 137.
Later that month, while incarcerated, David sent a letter
to his sister, Amy Gonzalez, in which he stated, “I’m done
playing Mr. Nice Guy,” and urged her to “begin making
complaints anonymously and repeatedly to [Delaware Youth
and Family Services].” App. 3389-90, 7222. He also
instructed her to “make sure Melinda’s website is up and has a
true story on it and is well publicized.” App. 3390, 7222.
Beginning in December 2009, a webpage was published that
identified Belford and her children by name and set forth
detailed claims against Belford of sexual abuse, physical
abuse, and neglect of the children. That website was registered
to Melinda Kula, the sister-in-law of Thomas and Lenore. It
stated that the “[a]ctual names were used by the request and
with the permission of David Matusiewicz.” App. 7882.
In March and April 2011, Gonzalez published three
YouTube videos, which included secret recordings of Belford
and the children taken by a private investigator; posts claiming
6
Belford sexually abused her daughter, L.M.1; and images of
polygraph test results of Lenore and Gonzalez, which
described the accusations of sexual abuse. From May 2011
through September 2012, David and Gonzalez had contact with
David’s former girlfriend, Cindy Bender, and enlisted her to
probe Belford for details about her life and to share what she
learned, which included information from Belford’s private
Facebook account.
Acting on instructions received from David while he
was in prison, Lenore and Gonzalez mailed letters that accused
Belford of sexual abuse to numerous media outlets, to the
children’s school and teachers, and to Belford’s family
members, neighbors, employer, church, and other members of
her community. The defendants also mailed letters and cards
directly to Belford and her children. Gonzalez and Thomas
solicited their friends to drive past Belford’s home and report
on what they observed. The defendants also convinced a real
estate agent in Delaware to conduct surveillance of Belford’s
house and to provide them with information about Belford’s
residence and about various persons who were part of
Belford’s life and who were coming and going from her home.
Between November 2010 and July 2011, the Delaware
Family Court conducted a hearing over seven separate days on
Belford’s petition for termination of David’s parental rights as
to the children. On August 18, 2011, the Delaware Family
Court entered an order terminating David’s parental rights as
well as Thomas’s, Lenore’s, and Gonzalez’s familial rights
(the “TPR Order”). App. 7827-68, 4310. The Delaware
Supreme Court affirmed that decision. App. 2154-55. In spite
of the TPR Order, the defendants continued to send letters to
Belford’s home and made extrajudicial contact with the
7
lawyers, judges, and witnesses involved in the TPR matter.
Thomas and Lenore made numerous phone calls to the
chambers of the judge overseeing a separate civil matter
between Belford and the Matusiewicz family, during which
they told the judge’s assistant, referring to Belford, that the
“bitch is going to get what is coming to her.” App. 3057.
On December 1, 2011, Thomas and Lenore travelled to
Delaware and showed up uninvited at Belford’s house.
Although Belford was not at home, the children and Belford’s
boyfriend were. Belford’s boyfriend instructed Thomas to
leave. This trip was ostensibly to visit the children, despite the
fact that Delaware Family Court had previously denied
petitions by both Thomas and Gonzalez to visit the children.
The night before the trip, Thomas and Gonzalez exchanged
emails in which Thomas informed Gonzalez of the visit,
instructed her to clean out his home safe, and told her that he
would let her know how things worked out. App. 3319-21,
8886. In response, Gonzalez gave Thomas her temporary cell
phone number and told him to be careful. App. 8886. In the
emails, Thomas and David refer to Belford by a
nickname,“wb,” which stood for “Whore Bitch.” App. 3243-
44. Thomas sent a letter to David after his visit that contained
the details of what he had observed. App. 7226-28. After this
visit, Belford took steps to sell her home and move. The
defendants then obtained the real estate listing — before it was
made publicly available — from the real estate agent whom
they had enlisted to surveil Belford.
On November 1, 2012, David sent Gonzalez an email
saying, “[p]repare yourself to be managing four by this time in
2013.” App. 3460-61. Gonzalez responded to the email by
stating that she was “praying for it.” App. 3462. The
8
Government’s case agent later testified that the reference to
“four” equated to David’s three children plus Gonzalez’s one
child. App. 3461.
On November 5, 2012, David filed a petition to reduce
his back payments of child support in Delaware Family Court.
A hearing was scheduled in Delaware, and although David was
informed he could participate by phone as he resided with his
family in Texas at the time, he chose to attend in person. David
received permission from his probation officers to attend, but
he failed to disclose to them that he could participate by phone
or that his parents would be accompanying him. On February
4, 2013, David, Lenore, and Thomas drove to Delaware in two
vehicles, which were loaded with an assault rifle, handguns,
military-style knives, thousands of rounds of ammunition,
restraints, body armor, binoculars, an electric shock device, gas
cans, a shovel, photographs of Belford’s children and
residence, and handwritten notes about Belford’s neighbors.
Thomas left a note for Gonzalez in a hutch in the family’s
residence, instructing her to keep his guns for protection and
that stated “hopefully we can end this BS now – up to Dave.”
App. 3318, 7461.
On February 11, 2013, Thomas and David entered the
New Castle County Courthouse lobby, in Delaware, and
remained there for approximately 25 to 30 minutes, during
which time David and Thomas exchanged envelopes, before
David passed through the security checkpoint. Belford entered
the courthouse with her friend Laura “Beth” Mulford a short
time later. Thomas then shot and killed both women, injured
two police officers in an exchange of fire, and then shot himself
in the head. Investigators recovered from Thomas’s person
two death certificates that were filled out with the names of
9
Belford and her family court attorney. Investigators also found
papers containing Thomas’s burial request during a search of
David’s person following his arrest.
On February 13, 2013 — two days later — Gonzalez
submitted a petition for custody of the children to the Delaware
Family Court in the New Castle County Courthouse, with a
check dated February 12, 2013. App. 4306-07. The petition
was denied. In the ensuing six months, Gonzalez continued to
file additional custody petitions. App. 4307-12, 7974-8009.
Gonzales also made repeated attempts to contact the children
through the mail. App. 4312-13, 8542-45.
On August 6, 2013, David Matusiewicz, Lenore
Matusiewicz, and Amy Gonzalez were indicted on the
following counts: (1) conspiracy to commit interstate stalking
and cyberstalking, in violation of 18 U.S.C. §§ 2261A(1) and
(2), all in violation of 18 U.S.C. § 371; (2) interstate stalking
in violation of 18 U.S.C. §§ 2261A(1), 2261(b) and 2;
(3) interstate stalking resulting in the death of Belford, in violation
of 18 U.S.C. §§ 2261A(1), 2261(b) and 2; and (4) cyberstalking
resulting in the death of Belford, in violation of 18 U.S.C.
§§ 2261A(2), 2261(b) and 2. Counts One and Four were
against all defendants. Count Two was only against Lenore.
Count Three was against David and Lenore. Thomas was
listed as an unindicted co-conspirator in the indictment. All
three defendants pleaded not guilty, and the case proceeded to
trial.
We set forth a brief summary of the evidence introduced
by the Government at trial relevant to the issues on appeal.
This includes evidence that after the shooting, law enforcement
officers found firearms and ammunition in the vehicles that the
10
Matusiewicz family had driven from Texas. The key to this
vehicle was found on David’s person. The Government also
introduced evidence of a surveillance video from a Walmart
parking lot in Maryland that depicted Thomas, David, and
Lenore walking around the vehicle with its trunk open,
demonstrating that all three knew of the weapons and
ammunition.
Law enforcement recovered a red notebook entitled
“Important Information for David Matusiewicz” from the
vehicle that David and Thomas drove to the courthouse; the
contents of this notebook were in Thomas’s handwriting. App.
3224-35. Within were the real estate listing for and pictures of
Belford’s home, accompanied by handwritten notes
identifying the bedrooms in which Belford and her children
slept. It also contained personal, identifying information on
Belford’s family, lawyers, doctors, boyfriend, and employer,
as well as a daily surveillance log tracking Belford’s
movements over a twelve-day period in March 2010.
Additionally, there was a page marked “HL,” which the
Government argued stood for “hit list,” that identified sixteen
individuals, including the judges, lawyers, and witnesses
involved in the prior federal kidnapping and family court cases.
App. 3249-53, 5442, 6995.
The Government introduced evidence recovered from a
search of Gonzalez’s residence. This included large volumes
of correspondence with third parties about the stalking
campaign. It also introduced letters from Thomas to Gonzalez
that they “must drink to WB’s, [a nickname for Belford,] final
day,” that Belford “can not keep” the children “at all costs,”
and that Belford “can not [and] will not have our girls into her
old age. Ain’t gonna happen.” App. 3442-43.
11
At trial, a key part of the Government’s case was that
the defendants’ accusations that Belford sexually molested her
children and suffered from mental health disorders were false
and defamatory. The spreading of these false claims was an
important part of the defendants’ campaign to harass and
intimidate Belford. The Government provided ample evidence
demonstrating the falsity of these claims. Notably, L.M.1
testified that her mother did not abuse her, and refuted the
specific claimed incidents of abuse advanced by the
defendants. L.M.1 also testified that she was afraid when she
learned of the allegations and saw her name and personal
information online. The Government also provided the
testimony of L.M.1’s pediatrician and psychologist who
corroborated that L.M.1 never reported nor showed any signs
of abuse.
The Government also discredited the defendants’
accusations of abuse by pointing out that the timeline of their
claims of abuse did not add up. No accusations of sexual abuse
were made prior to the kidnapping in August 2007. Evidence
was introduced that at his TPR hearing, David testified that he
kidnapped the children upon learning about the abuse in either
July or August 2007. However, evidence also showed that
David began preparing for the kidnapping as early as fall 2006.
The Government introduced evidence that defendants gave
contradictory and shifting statements about when and how they
learned of the abuse, and about the details of the incidents of
abuse. The Director of the Delaware Division of Family
Services (“DDFS”), the state organization responsible for
investigation of child abuse, also testified, explaining that
DDFS did not open an investigation into the abuse because it
12
found that the defendants’ contradictory claims lacked
credibility.
Belford’s eldest child, K.M.2, testified that she, her
mother, and her siblings were aware of the defendants’ conduct
and it caused them to fear for their lives. L.M.1 also testified
about her fear, and the pain of losing her mother. The
Government also produced evidence from numerous third
parties to whom Belford had confided her own fears of the
defendants, resulting from their conduct. For example,
Belford’s therapist testified as to the emotional and
psychological toll that the defendants’ actions were having on
Belford.
After a five week trial, the jury convicted the defendants
on all counts. On February 18, 2016, the District Court held a
sentencing hearing. The District Court applied a number of
sentencing enhancements, including: (1) the first-degree
murder cross-reference pursuant to United States Sentencing
Guidelines (“U.S.S.G.”) § 2A1.1; (2) the vulnerable victim
enhancement pursuant to U.S.S.G. § 3A1.1(b)(1); and (3) the
official victim enhancement pursuant to U.S.S.G.
§ 3A1.2(c)(1). App. 6057-6126. The District Court sentenced
each of the defendants to a term of five years of imprisonment
on Count One, and a term of life imprisonment for Count Four.
App. 2-8, 10-15.3 This timely appeal followed.
3
Lenore died before the conclusion of her appeal, so her
sentence was abated.
13
III. Analysis4
The defendants raise numerous challenges to their
convictions and sentences. David brings challenges to: (1) the
sufficiency of the evidence; (2) the lack of a specific unanimity
instruction; (3) the District Court’s “death resulted”
instruction; (4) the District Court’s alleged judicial factfinding
in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000),
in imposing the sentence; (5) the application of the vulnerable
victim and official victim sentencing enhancements; (6) the
admission of the TPR Order into evidence; (7) the admission
of Belford’s past therapy sessions and emails into evidence;
and (8) the testimony of the FBI case agent vouching for the
weight of the case. In addition to joining these challenges,
Gonzalez also raises the following additional issues: (9) that
the anti-cyberstalking statute violates the First Amendment and
is void for vagueness; (10) that the District Court lacked
jurisdiction to sit in the District of Delaware because venue was
transferred out of Delaware; (11) that her polygraph evidence
offered in rebuttal was erroneously excluded; (12) that the
District Court erred in ruling that Government would be
permitted to cross-examine any character witnesses about her
prior conduct in relation to the kidnapping; and (13) that her
sentence of life imprisonment violates the Eighth Amendment.
We will address each of these issues in turn.
A. Sufficiency of the Evidence Challenge
4
The District Court had jurisdiction over the underlying
criminal proceedings pursuant to 18 U.S.C. § 3231. We have
jurisdiction over these direct appeals pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742(a).
14
“We apply a ‘particularly deferential’ standard of
review to a challenge to the sufficiency of evidence supporting
a jury verdict.” United States v. Peppers, 302 F.3d 120, 125
(3d Cir. 2002) (quoting United States v. Cothran, 286 F.3d 173,
175 (3d Cir. 2002)). Under this standard, we will affirm the
verdict if “‘any rational juror’ could have found the challenged
elements beyond a reasonable doubt, viewing the evidence in
the manner that is most favorable to the government, neither
reweighing evidence, nor making an independent
determination as to witnesses’ credibility.” Id. (quoting
Cothran, 286 F.3d at 175).
Count One charged the defendants with conspiring to
commit interstate stalking and cyberstalking, in violation of 18
U.S.C. § 371. To establish a conspiracy under this section, the
Government must prove: (1) an agreement between two or
more persons to commit the substantive offense; (2) that each
defendant knowingly joined the conspiracy; and (3) an overt
act committed by one of the conspirators in furtherance of the
conspiracy. See United States v. Gebbie, 294 F.3d 540, 544
(3d Cir. 2002). This requires proof that a defendant has
“knowledge of the conspiracy’s specific objective.” United
States v. Caraballo-Rodriguez, 726 F.2d 418, 431 (3d Cir.
2013) (en banc). We have held that “a conspiratorial
agreement can be proven circumstantially based upon
reasonable inferences drawn from actions and statements of the
conspirators or from the circumstances surrounding the
scheme.” United States v. McKee, 506 F.3d 225, 238 (3d Cir.
2007).
15
Count Three charged only David and Lenore with
interstate stalking, in violation of 18 U.S.C. § 2261A(1).5 To
prove interstate stalking, the Government was required to
prove that David:
[(1)] travel[ed] in interstate or foreign commerce
. . . [(2)] with the intent to kill, injure, harass,
intimidate, or place under surveillance with
intent to kill, injure, harass, or intimidate another
person, and [(3)] in the course of, or as a result
of, such travel . . . engage[d] in conduct that--
(A) place[d] that person in reasonable fear
of the death of, or serious bodily injury
to—
(i) that person;
(ii) an immediate family member .
. . of that person; or
(iii) a spouse or intimate partner of
that person; or
(B) cause[d], attempt[ed] to cause, or
would be reasonably expected to cause
substantial emotional distress [to that
person or their spouse, intimate partner,
or immediate family member].
18 U.S.C. § 2261A(1).
Count Four, brought against all of the defendants, charged
cyberstalking resulting in the death of Belford, in violation of 18
U.S.C. §§ 2261A(2), 2261(b), and 2. We have held that to prove
5
Because Count Two was brought only against Lenore,
it is not at issue in this appeal.
16
stalking under 18 U.S.C. § 2261A(2), the Government must
establish that (1) the defendants used a facility of interstate
commerce; (2) to engage in a course of conduct that places a
person in reasonable fear of death or serious bodily injury, or
causes substantial emotional distress, either to that person or to
a partner or immediate family member; (3) “with the intent to
kill, injure, harass, intimidate, or place under surveillance with
intent to kill, injure, harass, or intimidate that person.” 18
U.S.C. § 2261A(2); see also United States v. Fullmer, 584 F.3d
132, 163 (3d Cir. 2009). The statute defines a “course of
conduct” as “a pattern of conduct composed of 2 or more acts,
evidencing a continuity of purpose.” 18 U.S.C. § 2266. A
defendant who violates § 2261A is eligible for a sentence of
life imprisonment if the “death of the victim results.” Id.
§ 2261(b)(1).
The defendants each argue that the evidence presented
to the jury was insufficient to convict them of any of the counts
in the indictment. Their sufficiency challenges revolve around
the same argument that was presented to and rejected by the
jury: that Thomas acted alone in killing Belford and the
defendants neither knew about nor participated in his plan.6
The defendants argue that there is insufficient evidence of a
conspiracy because there was no evidence of an express
agreement to stalk or kill Belford. They do not dispute the
existence of their campaign to spread accusations that Belford
sexually abused the children, but contend that it was not a
stalking campaign because it was meant to spur an
investigation of these claims, which the defendants purport to
have sincerely believed. However, the jury was presented with
6
The defendants do not contest the interstate commerce
elements of any of the counts.
17
overwhelming evidence demonstrating both that the sexual
abuse accusations against Belford were false and that
defendants knew that these allegations were false.
We have reviewed the substantial amount of evidence
before the jury. Taken in the light most favorable to the
Government, see Peppers, 302 F.3d at 125, the evidence is
more than sufficient to support the jury’s verdict in its entirety.
Throughout the course of the five-week trial, the Government
produced approximately 65 witnesses and over 760 exhibits,
which show that the defendants conspired to engage in an
escalating campaign of harassment, intimidation, and
surveillance against Belford, all with the goal of regaining
custody of the children. This three-year stalking campaign
culminated in the murder of Belford in the New Castle County
Courthouse lobby by Thomas, a member of the conspiracy.
Both David and Gonzalez were intimately involved in
this stalking campaign and conspiracy. The evidence
demonstrating David’s involvement included: directing his
family to send letters to Belford’s acquaintances accusing
Belford of sexual abuse; setting up the in-person court hearing
that brought Belford to the courthouse where Thomas shot her;
lying to probation officers about the need to attend the hearing
in person; and traveling from Texas to Delaware in two vehicles
that were filled with numerous weapons.
The evidence demonstrating Gonzalez’s involvement
included: spreading the false accusations of child abuse by
creating online postings and YouTube videos, and sending
defamatory emails and letters to Belford’s acquaintances;
preparing false polygraph reports about these accusations;
recruiting third parties to surveil and report on Belford and the
18
children; providing Thomas with her temporary cell phone
number and cleaning out his safe when he traveled to Delaware
in 2011 and showed up at Belford’s house; and filing numerous
petitions for custody of the children beginning two days after
Belford was killed. Thus, we conclude that the evidence was
more than sufficient to support the conspiracy charges against
David and Gonzalez.
As to the charged violation of § 2261A(2), the
Government produced sufficient evidence that David and
Gonzalez committed cyberstalking that resulted in Belford’s
death. Our review of the record demonstrates that the evidence
shows that each of the defendants engaged in many more than
the two requisite acts in furtherance of their long campaign to
defame and accuse Belford of sexual abuse of her children.
The purpose of this campaign, and the acts committed in
furtherance thereof, was to regain custody of the children by
removing Belford — or causing her to remove herself — from
the equation. The evidence discussed above was more than
sufficient for the jury to determine that the accusations against
Belford were false, and thus infer that the defendants continued
making these accusations with the intent to harass or intimidate
Belford.
The record also contains overwhelming evidence of the
fear and emotional distress suffered by Belford and her
children. This includes testimony by Belford’s children about
their awareness and fear of the defendants’ conduct. The
Government also produced evidence from numerous third
parties to whom Belford had confided her fears of the
defendants due to their conduct, including Belford’s
19
discussions with her therapist about the emotional and
psychological toll that the defendants’ actions had on her.7
Finally, the Government produced sufficient evidence
to prove that the defendants’ conduct resulted in Belford’s
death, thus making them eligible for life sentences under
§ 2261(b)(1). As discussed more thoroughly below with
regard to the jury instruction challenge, the District Court
properly instructed the jury that the defendants could be
responsible for Belford’s death either because their actions
were the actual and proximate cause of her death, or by way of
co-conspirator liability, if she was killed by a co-conspirator
acting in furtherance of the conspiracy. Our review of the
record demonstrates that there is sufficient evidence to
establish either theory of liability.
7
We have reviewed the record and conclude that it also
contains sufficient evidence to support the count brought only
against David for interstate stalking under § 2261A(1). This
includes the evidence that he initiated the court hearing in
Delaware, to which he traveled from Texas, with his parents in
two vehicles that were filled with numerous weapons.
Together with the fact that he did not inform his probation
officers that he could participate in the hearing by telephone to
get permission to leave the state, this is sufficient to support an
inference by the jury that he traveled in interstate commerce
with “the intent to kill, injure, harass, intimidate, or place under
surveillance with intent to kill, injure, harass, or intimidate”
Belford. 18 U.S.C. § 2261A(1). The above-discussed
evidence of emotional distress that satisfied the § 2261A(2)
violation is also sufficient to satisfy the § 2261A(1) violation.
20
David’s involvement in the stalking campaign, as well
as his actions in setting up the court hearing and bringing
Thomas to the courthouse where he then shot Belford, are
sufficient to support an interference that he was the “but for”
cause of Belford’s death. And as discussed above, there is
sufficient evidence to support the inference that he had the
specific intent that Belford should die. See supra, note 7. As
to Gonzalez, her involvement in the stalking campaign also
demonstrates that she was a “but for” cause of Belford’s death.
Gonzalez’s numerous communications with her family
members indicate that it was reasonably foreseeable to her that
Belford’s murder at her family’s hands might soon come to
pass, and support an inference that she was the proximate cause
of Belford’s death. This evidence includes the correspondence
from Thomas to Gonzales that the two drink to Belford’s “final
day” and the communication from David that Gonzalez should
prepare herself to soon be managing four children. Further,
Gonzalez was ready to — and did — petition for custody of the
children almost immediately after Belford was killed.8
8
Even if this evidence of the defendants’ direct
involvement in Belford’s death were not sufficient, the jury’s
finding that their actions resulted in Belford’s death is proper
under co-conspirator liability. The doctrine of co-conspirator
liability “permits the government to prove the guilt of one
defendant through the acts of another committed within the
scope of and in furtherance of a conspiracy of which the
defendant was a member, provided the acts are reasonably
foreseeable as a necessary or natural consequence of the
conspiracy.” United States v. Lopez, 271 F.3d 472, 480 (3d
Cir. 2001). Because there was sufficient evidence supporting
the conspiracy conviction, there was also sufficient evidence
supporting finding David and Gonzalez responsible for
21
For the foregoing reasons, the evidence produced at trial
was more than sufficient to support the jury’s verdict.
B. Jury Instruction Challenges
The defendants raise two challenges to the District
Court’s jury instructions. They contend that the District Court
(1) erred in not providing a specific unanimity instruction, and
(2) erred in its construction of the “death results” instruction.
Our “[r]eview of the legal standard enunciated in a jury
instruction is plenary, but review of the wording of the
instruction, i.e., the expression, is for abuse of discretion.”
United States v. Yeaman, 194 F.3d 442, 452 (3d Cir. 1999)
(citation omitted). Because the defendants failed to object to
the unanimity instructions or raise the specific unanimity
instruction issue before the District Court, we review that issue
for plain error. See United States v. Poulson, 871 F.3d 261,
270 (3d Cir. 2017). Under plain error review, we require the
defendants to show that there is: (1) an error; (2) that is “clear
Belford’s death pursuant to co-conspirator liability. Thomas,
who shot Belford, was a co-conspirator. As discussed above, the
Government submitted sufficient evidence that the goal of the
conspiracy was to obtain custody of the children by driving
Belford out of the picture. Killing Belford would clearly be in
furtherance of this goal. And the evidence before the jury,
including the communications between Thomas and the other
defendants, the detailed surveillance of Belford, and the amount
of weapons brought with the Matusiewicz family to Delaware,
in addition to the other evidence that has been discussed above,
demonstrates that Thomas’s murder of Belford was reasonably
foreseeable to both David and Gonzalez. Thus, the
requirements of co-conspirator liability are satisfied.
22
or obvious;” and (3) that “affected the appellants’ substantial
rights.” United States v. Stinson, 734 F.3d 180, 184 (3d Cir.
2013) (citations omitted). “If those three prongs are satisfied,
we have ‘the discretion to remedy the error — discretion which
ought to be exercised only if the error seriously affect[s] the
fairness, integrity, or public reputation of judicial
proceedings.’” Id. (quoting Puckett v. United States, 556 U.S.
129, 135 (2009)).
1. Lack of a Specific Unanimity Instruction
The defendants argue that the District Court erred
because it failed to give a specific unanimity instruction to
inform the jury that it must unanimously agree on which
specific acts the defendants committed. To prove
cyberstalking under 18 U.S.C. § 2261A(2), the Government
must, inter alia, establish that the defendant engaged in a course
of conduct that placed a person in reasonable fear of death or
serious bodily injury, or causes substantial emotional distress,
either to that person or to a partner or immediate family
member, “with the intent to kill, injure, harass, intimidate, or
place under surveillance with intent to kill, injure, harass, or
intimidate” that person. 18 U.S.C. § 2261A(2); Fullmer, 584
F.3d at 163. The defendants argue that the jury was required to
be unanimous on which of the specific acts it found to be part
of the defendants’ course of conduct.
“It is well settled that a defendant in a federal criminal
trial has a constitutional right to a unanimous verdict.”
Yeaman, 194 F.3d at 453. We have acknowledged that “[t]his
includes the right to have the jury instructed that in order to
convict, it must reach unanimous agreement on each element
of the offense charged.” Id. This is known as the “general
23
unanimity instruction.” United States v. Beros, 833 F.2d 455,
460 (3d Cir. 1987). Typically, when an indictment alleges a
number of different factual bases for the defendants’ criminal
liability, the general unanimity instruction ensures that the jury
unanimously agrees on the factual basis for a conviction. Id.
However, “this does not mean one has a right to insist on an
instruction requiring unanimous agreement on the means by
which each element is satisfied.” Yeaman, 194 F.3d at 453. In
the case where “a statute enumerates alternative routes for its
violation, it may be less clear . . . whether these are mere means
of committing a single offense (for which unanimity is not
required) or whether these are independent elements of the
crime (for which unanimity is required).” Id.
Here, the defendants contend that specific unanimity is
required because the statute contains multiple alternative
routes for its violations, which consist of distinct elements. In
their briefing, the defendants identify two different portions of
the statute which they argue consist of distinct elements
requiring specific unanimity: (1) the two specific acts that
must be proven to establish the course of conduct requirement,
and (2) the mens rea requirement. The Government contends
that these are no more than distinct means of committing
cyberstalking, not elements. The defendants argue in the
alternative that the uncertainty over whether these are elements
or means creates the potential for jury confusion, which would
also necessitate a more specific unanimity instruction. See
Beros, 833 F.2d at 460 (observing that the general unanimity
instruction can be insufficient “where the complexity of the
case, or other factors, creates the potential that the jury will be
confused”). The defendants thus contend that under Beros, the
District Court was required to provide a more specific
unanimity instruction. We disagree.
24
In Beros, we described a scenario in which the general
unanimity instruction is not sufficient, concluding that
When it appears . . . that there is a genuine
possibility of jury confusion or that a conviction
may occur as the result of different jurors
concluding that the defendant committed
different acts, the general unanimity instruction
does not suffice. To correct any potential
confusion in such a case, the trial judge must
augment the general instruction to ensure the
jury understands its duty to unanimously agree to
a particular set of facts.
Id. at 461 (alteration in original) (emphasis omitted) (quoting
United States v. Echeverry, 698 F.2d 375 (9th Cir.), modified, 719
F.2d 974, 975 (9th Cir. 1983) (en banc)).
The indictment at issue in Beros advanced multiple
different theories for how the defendant had violated the
relevant statute. Id. at 460. There, the Government charged
the defendant under a disjunctively worded statute, alleging
that the defendant violated that statute by engaging in three
separate and different acts. Id. We held that the district court
abused its discretion in not specifically instructing the jury that it
had to be unanimous as to at least one of the three acts
committed. Id. at 460-63. We determined that “[w]hen the
government chooses to prosecute under an indictment
advancing multiple theories, it must prove beyond a reasonable
doubt at least one of the theories to the satisfaction of the entire
jury.” Id. at 462. We went on to specify that the Government
“cannot rely on a composite theory of guilt, producing twelve
25
jurors who unanimously thought the defendant was guilty but
who were not unanimous in their assessment of which act
supported the verdict.” Id.
Since Beros, we have reiterated that “the need for a
specific unanimity instruction is the exception to the ‘routine
case’ in which a ‘general unanimity instruction will ensure that
the jury is unanimous on the factual basis for a conviction, even
where an indictment alleges numerous factual bases for
criminal liability.’” United States v. Cusumano, 943 F.2d 305,
312 (3d Cir. 1991) (quoting Beros, 833 F.2d at 460). And, we
have held that “[t]he Beros rule comes into play only when the
circumstances are such that the jury is likely to be confused as
to whether it is required to be unanimous on an essential
element.” Id. Thus, Beros applies where the Government
advances different factual theories concerning the defendants’
charged conduct, each of which could independently satisfy the
elements of the crime. In such a situation, a specific unanimity
instruction is needed to ensure that the jury agrees on which of
a (or a set of) charged act(s) that the defendant committed
constituted criminal behavior. For example, in Beros, the
indictment alleged that defendant embezzled money from a
pension fund of which he was a trustee. Beros, 833 F.2d at
458. One count of the indictment
alleged three separate transactions of [his]
criminal conduct: (1) the use of a Joint Council
credit card to pay air fare for himself and his
wife; (2) occupying a hotel suite that cost
$160.00 per day rather than a single or double
room which would cost no more than $60.00 per
day; and (3) remaining in Florida for a couple of
26
additional days for personal reasons after the
conclusion of the conference.
Id. at 461.
We held that a specific unanimity instruction was
needed to ensure that the jury did not return a guilty verdict
where all jurors agreed that the defendant engaged in criminal
conduct, but some jurors thought that only the first transaction
constituted criminal conduct, and others thought that only the
second or third transactions constituted criminal conduct. Id.
We reasoned that in such a scenario, “the jury would
unanimously conclude that there was a mode or manner of
violating the law, but there would be no unanimity as to the
predicate act. Also, under such a scenario, any verdict would
be defective because of the lack of real unanimity.” Id. at 462.
In contrast, we have held that a specific unanimity instruction
is not needed, because the same potential for juror confusion
does not exist, where “the government did not allege different
sets of facts, and the only possible confusion arose from the
disjunctive nature of the charge under the statute.” Cusumano,
943 F.2d at 312. Applying Beros, we have since observed that
“[w]e have never required that jurors be in complete agreement
as to the collateral or underlying facts which relate to the
manner in which the culpable conduct was undertaken.”
United States v. Jackson, 879 F.2d 85, 88 (3d Cir. 1989).
We hold that the District Court was not required to issue
a specific unanimity instruction in this case. Neither the mens
rea requirements of § 2261A(2) nor the individual acts which
constituted the statute’s “course of conduct” requirement
constitute distinct elements of the offense. As to the mens rea
requirement, we have held that different mental states in a
27
statute constitute alternate means and not alternate elements.
See United States v. Navarro, 145 F.3d 580, 586 (3d Cir. 1998).
In Navarro, we determined that “it is neither clear nor obvious
that the three alternative mental states defined in § 1956[, the
anti-money-laundering statute,] could not properly be treated
as separate means of committing a single offense.” Id. at 592.
This conclusion followed from the Supreme Court’s decision
in Schad v. Arizona, 501 U.S. 624 (1991), which held that a
specific unanimity instruction was not needed for a prosecution
under “an Arizona statute which defined first-degree murder as
being either (a) willful, deliberate, or premeditated, or (b)
committed in the course of certain felonies,” because those two
alternatives were not separate elements but instead “alternative
means of satisfying an element of an offense.” Navarro, 145
F.3d at 586 (citing Schad, 501 U.S. at 628).
Here, the statute requires that the defendant act “with
the intent to kill, injure, harass, intimidate, or place under
surveillance with intent to kill, injure, harass, or intimidate.”
18 U.S.C. § 2261A(2). Nothing in the text of the statute or any
cases interpreting it indicates that it was intended to create
separate offenses for stalking “with the intent to kill” as
opposed to stalking “with the intent to . . . injure” or “with the
intent to . . . harass.” Instead, the statute requires that the
defendant engage in “a pattern of conduct composed of 2 or
more acts, evidencing a continuity of purpose” that “places that
person in reasonable fear of the death of or serious bodily
injury” or causes that person “substantial emotional distress.”
Id. §§ 2261A(2), 2266. A defendant violates the statute if that
conduct is engaged in with one of the aforementioned mentes
reae. We have noted that “different means for committing an
offense ‘must reflect notions of equivalent blameworthiness or
culpability.’” Yeaman, 194 F.3d at 454 n.6 (quoting United
28
States v. Edmonds, 80 F.3d 810, 820 (3d Cir. 1996)). The
offense here stresses the effect that the defendant’s conduct has
on the victim. Thus, as long as that conduct was taken with an
intent to cause the victim harm, the specific mental state does
not make a difference to the defendant’s culpability. This is
evidenced by the fact that the statute sets forth different tiers of
punishment based not on the mental state of the defendant, but
on the harm suffered by the victim. See 18 U.S.C. § 2261(b).
The decisions of our sister Courts of Appeals
interpreting § 2261A(2) support our view that the mens rea
requirement constitutes alternate means as opposed to alternate
elements of the offense. The Court of Appeals for the Fourth
Circuit, for instance, has declined to parse the different mentes
reae, and observed that “[i]t is an element of the crime that [the
defendant] have intended harm to a particular victim.” United
States v. Shrader, 675 F.3d 300, 311 (4th Cir. 2012). The Court
of Appeals for the Ninth Circuit has also treated the mens rea
requirement as a single element in conducting its analysis of
the statute. See United States v. Osinger, 753 F.3d 939, 947
(9th Cir. 2014).
A specific unanimity instruction was also not needed as
to the course of conduct requirement. The jury is not required
to agree on which specific acts were part of the stalking
campaign. The statute defines the required “course of
conduct” as “a pattern of conduct composed of 2 or more acts,
evidencing a continuity of purpose.” 18 U.S.C. § 2266(2). The
defendants argue that because, to be convicted of
cyberstalking, they must have committed two or more acts as
part of the course of conduct, the jury needs to agree on the
specifics of which acts were committed with the requisite
criminal intent.
29
However, the two or more specific acts that constitute a
course of conduct are not distinct elements of the offense. The
crux of the course of conduct requirement is that the defendants
have engaged in “a pattern of conduct,” which “evidenc[es] a
continuity of purpose.” Id. § 2266(2). This language is
significant. The focus is not on the individual acts as separate,
distinct events, but instead on the purpose and scope of the
defendants’ pattern of stalking conduct as a whole. See United
States v. Conlan, 786 F.3d 380, 386 (5th Cir. 2015) (“[T]he
statute’s intent requirement ‘modifies the cumulative course of
conduct as a whole,’” and avoids criminalizing otherwise
innocent acts) (quoting Shrader, 675 F.3d at 311-12)). Nothing
in the statute requires that the individual acts be criminal
violations on their own. The statute does not require that a
defendant commit multiple criminal acts to engage in a course
of conduct. Instead, it is the pattern of conduct formed by the
individual acts, undertaken with a continuity of purpose, that
constitutes the criminal violation. As the Court of Appeals for
the Fourth Circuit observed,
While the statute does not impose a requirement
that the government prove that each act was
intended in isolation to cause serious distress or
fear of bodily injury to the victim, the
government is required to show that the totality
of the defendant’s conduct “evidenc[ed] a
continuity of purpose” to achieve the criminal
end.
Shrader, 675 F.3d at 311. The court then concluded that “[t]his
statutory scheme reflects a clear understanding on the part of
Congress that while severe emotional distress can of course be
30
the result of discrete traumatic acts, the persistent efforts of a
disturbed harasser over a period of time . . . can be equally or
even more injurious.” Id. at 311-12. As a result, “[t]he
cumulative effect of a course of stalking conduct may be
greater than the sum of its individual parts.” Id. at 312. The
court thus rejected the intent and unanimity position that the
defendants take here, because it held “[t]o read in a
requirement that each act have its own specific intent element
would undo the law’s protection for victims whose anguish is
the result of persistent or repetitive conduct on the part of a
harasser.” Id.
For the foregoing reasons, the District Court’s failure to
include a specific unanimity instructions was not an error, and
the defendants are not entitled to relief under plain error
review.
2. “Death Results” Instruction
The defendants next argue that the District Court erred
in its construction of the special instruction it gave the jury to
determine whether the defendants qualified for the “death of
the victim results” sentencing enhancement. 18 U.S.C. §
2261(b)(1). The proper construction of this instruction was an
issue of first impression for the District Court and remains one
for us. The defendants concede that this instruction should be
reviewed for plain error. Matusiewicz Br. 66, 75.
The District Court gave the following “death results”
instruction as part of its “Special Interrogatory Regarding the
Death of Christine Belford — Counts Three and Four” jury
instruction:
31
A person’s death “results” from an
offense only if that offense caused, or brought
about, that death. In determining whether the
particular offenses charged in Counts 3 or 4
caused Christine Belford’s death, you must
affirmatively answer two questions. First, would
Christine Belford’s death have occurred as
alleged in the Indictment in the absence of the
particular offense? Stated differently, you
should decide whether Ms. Belford would have
died at the New Castle County Courthouse on
February 11, 2013, but for the particular offense.
Second, was Christine Belford’s death the result
of the particular offense in a real and meaningful
way? This includes your consideration of
whether her death was a reasonably foreseeable
result of the particular offense and whether her
death could be expected to follow as a natural
consequence of the particular offense.
With regard to the special interrogatories
for Counts Three and Four, if you found the
Defendant guilty of conspiracy under Count One
it is not necessary for you to find that a particular
defendant’s personal actions resulted in the death
of Christine Belford. A defendant may be held
accountable for the death of Christine Belford
based on the legal rule that each member of a
specific conspiracy is responsible for acts
committed by the other members, as long as
those acts were committed to help further or
achieve the objective of the specific conspiracy
and were reasonably foreseeable to the defendant
32
as a necessary or natural consequence of the
agreement. In other words, under certain
circumstances the act of one conspirator may be
treated as the act of all. This means that all the
conspirators may be held accountable for acts
committed by any one or more of them, even
though they did not all personally participate in
that act themselves.
In order for you to answer “yes” to the
jury interrogatories for Counts Three or Four
based upon this legal rule, you must find that the
Government proved beyond a reasonable doubt
each of the following four (4) requirements with
regard to the charge at issue:
First: That the defendant was a member
of the conspiracy to commit the
particular offense charged in
Count One of the Indictment;
Second: That while the defendant was still
a member of the conspiracy, one or
more of the other members of the
same conspiracy also committed
the offense charged in Count Three
or Count Four, by committing each
of the elements of that offense as I
explained those elements to you in
these instructions, and his or her
acts therein resulted in the death of
Christine Belford according to the
instructions I have just given you.
33
However, the other member of the
conspiracy need not have been
found guilty of (or even charged
with) the offense in question, as
long as you find that the
Government proved beyond a
reasonable doubt that the other
member committed the offense.
Third: That the other member of the
conspiracy committed this
particular offense within the scope
of the unlawful agreement and to
help further or achieve the
objectives of the specific
conspiracy; and
Fourth: That Ms. Belford’s death was
reasonably foreseeable to or
reasonably anticipated by the
defendant as a necessary or natural
consequence of the unlawful
agreement.
The Government does not have to prove
that the defendant specifically agreed or knew
that Ms. Belford’s death would result. However,
the Government must prove that Ms. Belford’s
death was reasonably foreseeable to the
defendant, as a member of the conspiracy, and
within the scope of the agreement as the
defendant understood it.
34
Ohio App. 5871-72.
The defendants contend that the District Court erred by
giving this instruction. They contend that the instruction
should have required that the jury find that there was an
agreement among the defendants to cause Belford’s death.9
They also contend that under the instructions the District Court
gave, the jury could not have found that the defendants caused
Belford’s death. The Government argues that this instruction
properly set forth the two possible ways that the jury could find
that the defendants’ actions resulted in Belford’s death. These
theories of liability are that: (1) Belford’s death resulted from
the defendants’ personal actions if the defendants’ personal
actions were the actual and proximate cause of Belford’s death,
or (2) the defendants are responsible for Belford’s death under
co-conspirator liability.
The District Court included both theories in its jury
instruction and clearly distinguished between them. With
respect to the first theory, that the defendants’ personal actions
were the actual and proximate cause of Belford’s death, the
District Court observed that its instruction held the jury to a
higher standard than it believed the law required. See App. 61.
Under this theory, the instruction required that the jurors find
that each defendant’s conduct was the actual cause of Belford’s
death and, in the context of the proximate cause question, that
the death was “the result of the particular offense in a real and
meaningful way,” including whether it was “reasonably
9
While the defendants contend that the District Court’s
instruction was erroneous, they do not articulate clearly a
proposed alternative instruction. Instead, much of their
argument retreads their sufficiency of the evidence challenge.
35
foreseeable” and “could be expected to follow as a natural
consequence of the particular offense.” App. 5871. The
District Court observed that it included this language “to
increase the government’s burden by highlighting for the jury
the need for there to exist a genuine nexus between the
Defendants’ conduct and the victim’s death.” App. 61. It
explained that it required this heightened burden as to
proximate cause, beyond what would be typically required for
a proximate cause finding in tort law, as a “necessary
safeguard” for the defendants’ rights. App. 61.
Because the issue of how to define for the jury the proof
required to establish that the defendants’ conduct caused the
victim’s death, thus triggering the “death results” enhancement
under § 2261(b)(1), is one of first impression, the District
Court issued a supplemental opinion explaining its reasoning
for fashioning the jury instruction the way it did. See App. 56-
61. The District Court explained that it looked to the cases
defining “death results” language in other statutes, namely
Burrage v. United States, 571 U.S. 204 (2014) and Paroline v.
United States, 572 U.S. 434 (2014), to form the basis for its
causation instruction to the jury. The District Court then
explained why it viewed the proximate cause requirement as
requiring a heightened standard of proof here compared to that
required under general tort law.
We hold that the District Court did not err in crafting
the jury instruction for the “death results” enhancement. The
District Court properly followed Burrage and Paroline. In
Burrage, the Supreme Court held that a “death results”
sentencing enhancement in the Controlled Substances Act “is
an element that must be submitted to the jury and found beyond
a reasonable doubt,” because it “increased the minimum and
36
maximum sentences to which [the defendant] was exposed.”
Burrage, 571 U.S. at 210. The Court noted that such language
meant that “a defendant generally may not be convicted unless
his conduct is ‘both (1) the actual cause, and (2) the ‘legal’
cause (often called the ‘proximate cause’) of the result.’” Id.
(quoting 1 W. LaFave, Substantive Criminal Law § 6.4(a),
464-66 (2d ed. 2003)). The Court continued on to discuss the
“actual cause” standard, determining that it “requires proof
‘that the harm would not have occurred’ in the absence of—
that is, but for—the defendant’s conduct.” Id. at 211 (quoting
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347-48
(2013)). The Court did not discuss the proximate cause
requirement, because it held that the actual cause requirement
had not been satisfied where there was “no evidence” that the
conduct at issue “was an independently sufficient cause of . . .
death.” Id. at 190.
The Court did address in detail the concept of proximate
cause in Paroline. It observed that “a requirement of proximate
cause is more restrictive than a requirement of factual cause
alone,” and that “proximate cause forecloses liability in
situations where the causal link between conduct and result is
so attenuated that the so-called consequence is more akin to
mere fortuity.” 572 U.S. at 446, 448. The Court struggled to
define proximate cause, noting that it “defies easy summary”
and “is ‘a flexible concept.’” Id. at 444 (quoting Bridge v.
Phoenix Bond & Indem. Co., 553 U.S. 639, 654 (2008)). It
determined that “to say that one event was a proximate cause
of another means that it was not just any cause, but one with a
sufficient connection to the result.” Id. The Court observed
that the proximate cause analysis in criminal and tort law “is
parallel in many instances.” Id. In its discussion, the Court
noted that proximate cause is typically explained “in terms of
37
foreseeability or the scope of the risk created by the predicate
conduct.” Id. at 445.
We hold that the District Court did not erroneously
configure the portion of the “death results” instruction as to the
direct theory of liability. The “actual cause” part of the District
Court’s instruction appropriately tracks the “but for” causation
requirement of Burrage. 571 U.S. at 211. And the District
Court’s instruction on proximate cause required even a more
stringent finding than that discussed by the Supreme Court in
Paroline. Not only did the District Court require that the jury
find Belford’s “death was a reasonably foreseeable result of the
particular offense,” as is traditionally considered the proximate
cause requirement, but also the District Court went further,
requiring that the death result from the offense “in a real and
meaningful way” and as a “natural consequence.” App. 5871.
The defendants have pointed to no authority that such a
standard is insufficient to satisfy the proximate cause
requirement. Thus, if anything, the District Court’s instruction
on proximate cause provided more protection for the
defendants’ rights than necessary under Supreme Court
precedent. Accordingly, it was certainly not plain error for the
District Court to give this instruction.
Additionally, the District Court also properly instructed
the jury that they could find the defendants liable under an
alternative, co-conspirator theory of liability. The District
Court’s instruction on when conspirators can be held liable for
the actions of their co-conspirators was not plain error as it
followed this Court’s model jury instructions and precedent.
See Third Circuit’s Model Criminal Jury Instruction § 7.03
“Responsibility For Substantive Offenses Committed By Co-
Conspirators (Pinkerton Liability).” We have held that “a
38
participant in a conspiracy is liable for the reasonably
foreseeable acts of his coconspirators in furtherance of the
conspiracy.” United States v. Cross, 308 F.3d 308, 311 n.4 (3d
Cir. 2002) (citing Pinkerton v. United States, 328 U.S. 640, 647
(1946)). This is known as the Pinkerton theory of liability.
This doctrine “permits the government to prove the guilt of one
defendant through the acts of another committed within the
scope of and in furtherance of a conspiracy of which the
defendant was a member, provided the acts are reasonably
foreseeable as a necessary or natural consequence of the
conspiracy.” United States v. Lopez, 271 F.3d 472, 480 (3d
Cir. 2001). Accordingly, we hold that the District Court did
not plainly err in following our precedent and model jury
instructions when instructing the jury that it could rely on co-
conspirator liability.
C. Substantive Challenges to the Prosecution of the Case
1. First Amendment
Gonzalez argues that the indictment should have been
dismissed because it violated the First Amendment. She brings
an as-applied challenge to the cyberstalking statute. David
joins Gonzalez’s First Amendment arguments, but does not
provide any separate discussion for an as-applied challenge as
to his conduct. We review constitutional claims de novo.
Garcia v. Att’y Gen, 665 F.3d 496, 502 (3d Cir. 2011).
Gonzalez argues that she cannot be convicted for
violating § 2261A(2) because her conduct constituted protected
speech under the First Amendment. She argues that her speech
— which consisted of, inter alia, sending emails to her co-
defendants, sending correspondence to Belford and her
39
children, contacting third parties, posting polygraph results and
videos with accompanying commentary — was protected
because she was expressing her sincerely held belief about
Belford. She contends that her speech about Belford
constituted an opinion, and as such receives complete
protection under the First Amendment.10 The Government
10
Gonzalez also briefly includes a vagueness and
overbreadth challenge to the statute as a whole, which she
supports with virtually no analysis. These challenges fail. “In
the First Amendment context . . . a law may be invalidated as
overbroad if ‘a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly
legitimate sweep.’” United States v. Stevens, 559 U.S. 460,
473 (2010) (quoting Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449 n.6 (2008)). The
Supreme Court has counseled that an overbreadth challenge is
unlikely to “succeed against a law or regulation that is not
specifically addressed to speech or to conduct necessarily
associated with speech (such as picketing or demonstrating).”
Virginia v. Hicks, 539 U.S. 113, 124 (2003). Furthermore, a
statute is unconstitutionally vague only if it either (1) “fails to
provide people of ordinary intelligence a reasonable
opportunity to understand what conduct it prohibits” or (2)
“authorizes or even encourages arbitrary and discriminatory
enforcement.” Hill v. Colorado, 530 U.S. 703, 732 (2000). To
this end, we consider whether a statute’s prohibitions “are set
out in terms that the ordinary person exercising ordinary
common sense can sufficiently understand and comply with.”
U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413
U.S. 548, 579 (1973).
Section 2261A is neither overbroad nor
unconstitutionally vague. It is not targeted at “speech or to
40
argues that this statute does not violate the First Amendment
because it prohibits conduct, and any speech included in its
breadth falls into an exception that does not warrant First
Amendment protection.
The First Amendment “permit[s] restrictions upon the
content of speech in a few limited areas.” United States v.
Stevens, 559 U.S. 460, 468 (2010) (quoting R.A.V. v. City of
St. Paul, 505 U.S. 377, 382-83 (1992)). The Supreme Court
has identified certain “well-defined and narrowly limited
conduct necessarily associated with speech,” but with
harassing and intimidating conduct that is unprotected by the First
Amendment. Thus, because “a substantial number of the
statute’s applications” are not unconstitutional, it is not
overbroad. Wash. State Grange, 552 U.S. at 449 n.6. And, it
is not unconstitutionally vague, as it uses readily
understandable terms such as “harass” and “intimidate,” and
requires that a defendant intend to cause victims serious harm
and in fact cause a reasonable fear of death or serious bodily
injury. Thus, an “ordinary person exercising ordinary common
sense can sufficiently understand and comply with” the terms
of this statute. U.S. Civil Serv. Comm’n, 413 U.S. at 579.
Every one of our sister Courts of Appeals to consider similar
overbreadth and vagueness challenges to § 2261A has rejected
them. See United States v. Conlan, 786 F.3d 380, 385-86 (5th
Cir. 2015); United States v. Osinger, 753 F.3d 939, 944-45 (9th
Cir. 2014); United States v. Sayer, 748 F.3d 425, 436 (1st Cir.
2014); United States v. Petrovic, 701 F.3d 849, 854-56 (8th
Cir. 2012); United States v. Shrader, 675 F.3d 300, 310 (4th Cir.
2012); United States v. Bowker, 372 F.3d 365, 379-83 (6th Cir.
2004). The defendants have provided no authority or analysis
to the contrary.
41
classes of speech” that can be proscribed without implicating the
First Amendment. Id. at 468-69 (quoting Chaplinsky v. New
Hampshire, 315 U.S. 568, 571-72 (1942)). Relevant here,
these classes of speech include (1) “defamation” and (2)
“speech integral to criminal conduct.” Id. at 468.
As to the first class of speech, the Supreme Court has
held that defamatory statements are not protected by the First
Amendment, reasoning that “[r]esort to epithets or personal
abuse is not in any proper sense communication of information
or opinion safeguarded by the Constitution, and its punishment
as a criminal act would raise no question under that instrument.”
Beauharnais v. Illinois, 343 U.S. 250, 257 (1952) (quoting
Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)). And while
statements of personal opinion are protected under the First
Amendment, see Gertz v. Robert Welch, Inc., 418 U.S. 323,
339-40 (1974), “there is no constitutional value in false
statements of fact,” id. at 340. False statements of fact are not
protected because “[n]either the intentional lie nor the careless
error materially advances society’s interest in ‘uninhibited,
robust, and wide-open’ debate on public issues.” Id. (quoting
N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1970)).
As to the second class of speech, the Supreme Court has
long maintained that speech integral to engaging in criminal
conduct does not warrant First Amendment protection. See
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949).
Thus, “[s]pecific criminal acts are not protected speech even if
speech is the means for their commission.” Packingham v.
North Carolina, 137 S. Ct. 1730, 1737 (2017). In Giboney, the
Court held that enjoining otherwise lawful picketing activities
did not violate the First Amendment where the sole purpose of
that picketing was to force a company to enter an unlawful
42
agreement in violation of Missouri’s criminal antitrust laws.
336 U.S. at 501-02. The Court reasoned that such a restraint
was justified because the otherwise lawful expressive activity
was done for “the sole immediate purpose of continuing a
violation of law.” Id. at 501. The Court “reject[ed] the
contention” that “the constitutional freedom for speech and
press extends its immunity to speech or writing used as an
integral part of conduct in violation of a valid criminal statute.”
Id. at 498. The Court reasoned that “[s]uch an expansive
interpretation of the constitutional guaranties of speech and
press would make it practically impossible ever to enforce laws
against . . . agreements and conspiracies deemed injurious to
society.” Id. at 502.
We hold that 18 U.S.C. § 2261A does not violate the
First Amendment as applied to Gonzalez, because she did not
engage in protected speech. Her conduct was both defamatory
and speech integral to criminal conduct. The defendants
published false information about Belford on the internet and
to third parties. Gonzalez, acting along with the other members
of her family as a member of the conspiracy, defamed Belford
by falsely labeling her as a mentally unfit abuser who sexually
molested her own children. In addition, the members of the
conspiracy defamed the children by falsely labeling them as
victims of their mother’s sexual abuse. There is
overwhelming, uncontradicted evidence that the accusations
that Belford sexually molested and abused her children were
false.11 Falsely accusing Belford of sexual assault is
11
This evidence includes: (1) the testimony of L.M.1,
the child who was alleged to be abused, denying any abuse
occurred; (2) medical testimony corroborating L.M.1’s denial
of abuse; (3) materially inconsistent statements by the
43
unquestionably defamatory and not protected by the First
Amendment. See Beauharnais, 343 U.S. at 257 (“[I]t is
libelous falsely to charge another with being a rapist.”). That
Gonzalez claims to have sincerely held this belief, in light of
the overwhelming evidence to the contrary, does not transform
such a statement of fact into an opinion. Id. As “there is no
constitutional value in false statements of fact,” Gonzalez’s
speech on this ground does not warrant First Amendment
protection. Gertz, 418 U.S. at 340.
Even if it were not defamatory, this speech is still
unprotected as it falls squarely into the “speech integral to
criminal conduct” exception. The defendants’ speech served
no legitimate purpose other than to harass and intimidate
Belford, conduct that is illegal under § 2261A. Thus, the
speech was that which had a “sole immediate purpose of
continuing a violation of law.” Giboney, 366 U.S. at 501. As
discussed above, the evidence produced at trial sufficiently
demonstrated that the defendants’ conduct was part of a course
of conduct targeted at Belford, intended to cause her distress
and to obtain custody of her children. Thus, Gonzalez’s
internet postings and letters sent to Belford, the children, and
third parties were actions that were integral to the course of
conduct and the illegal purpose of the criminal cyberstalking
conspiracy. As such, this conduct is not protected by the First
Amendment.
defendants regarding their claims of abuse; (4) the fact that the
no claims of abuse were made until well after the kidnapping
charges were brought; (5) testimony from Belford’s mental
health providers; and (6) the analysis and conclusions found in
the order of the Delaware Family Court terminating David’s
parental rights and his family’s familial rights.
44
Our decision is in accord with those of our sister Courts
of Appeals that have had the opportunity to consider First
Amendment challenges to § 2261A. See, e.g., United States v.
Conlan, 786 F.3d 380, 386 (5th Cir. 2015); United States v.
Osinger, 753 F.3d 939, 947 (9th Cir. 2014); United States v.
Sayer, 748 F.3d 425, 434 (1st Cir. 2014); United States v.
Petrovic, 701 F.3d 849, 856 (8th Cir. 2012); United States v.
Bowker, 372 F.3d 365, 379 (6th Cir. 2004), judgment vacated
on other grounds, 543 U.S. 1182 (2005), reinstated in relevant
part, 125 Fed. App’x 701 (6th Cir. 2005).
In Petrovic, the Court of Appeals for the Eighth Circuit
held that the defendant’s conduct, including making highly
offensive online communications, “may be proscribed
consistent with the First Amendment.” Petrovic, 701 F.3d at
856. There, the defendant had created a website through which
he disseminated sexually explicit images and false statements
about his ex-wife. Id. at 852. He also sent mailings to third
parties who knew the victim, including her family and co-
workers, which contained similar information. Id. Based on
these facts, the court concluded that these communications
“were integral to this criminal conduct as they constituted the
means of carrying out his extortionate threats.” Id. at 855. The
court reached its conclusion due to the fact that “[s]ection
2261A(2)(A) is directed toward ‘course[s] of conduct,’ not
speech, and the conduct it proscribes is not ‘necessarily
associated with speech.’” Id. at 856 (citation omitted). This is
“[b]ecause the statute requires both malicious intent on the part
of the defendant and substantial harm to the victim.” Id.
In Sayer, the Court of Appeals for the First Circuit
rejected a First Amendment challenge to a conviction under
45
§ 2261A(2)(A). 748 F.3d at 435. There, the defendant
“creat[ed] false online advertisements and accounts in [the
victim’s] name [and] impersonat[ed the victim] on the internet
. . . which deceptively enticed men to [the victim’s] home.” Id.
at 434. The court concluded that “[t]o the extent his course of
conduct targeting [the victim] involved speech at all, his
speech is not protected,” because “it served only to implement
[his] criminal purpose.” Id. The court went on to observe that
by prohibiting “a course of conduct done with ‘intent to kill,
injure, harass, or place under surveillance with intent to kill,
injure, harass, or intimidate, or cause substantial emotional
distress,’” the statute “clearly targets conduct performed with
serious criminal intent, not just speech that happens to cause
annoyance or insult.” Id. at 435 (quoting 18 U.S.C.
§ 2261A(2)).
In Osinger, the Court of Appeals for the Ninth Circuit
reached a similar conclusion. There, the defendant sent
“threatening text messages” to the victim and “designed a false
Facebook page and sent emails to [her] co-workers containing
nude photographs of [her].” 753 F.3d at 947. The court held
that “[a]ny expressive aspects of [the defendant’s] speech were
not protected under the First Amendment because they were
‘integral to criminal conduct’ in intentionally harassing,
intimidating or causing substantial emotional distress to [the
victim].” Id. This was because the defendant was engaged in
a course of conduct with the intent to harass or intimidate the
victim. Id.
In Conlan, the Court of Appeals for the Fifth Circuit
similarly concluded that Ҥ 2261A does not criminalize
constitutionally protected free expression.” 786 F.3d at 386.
There, the defendant conducted a “year-long campaign of
46
escalating sexual innuendo, threats of physical violence, and
unwanted contacts with [the victims’] family, friends, and
colleagues, culminating in an interstate trip to his victims’
house.” Id. The court concluded that because “one must both
intend to cause victims serious harm and in fact cause a
reasonable fear of death or serious bodily injury” to violate the
statute, it criminalized conduct and not free expression
protected by the Constitution. Id.
Each of these decisions supports our holding today.
Here, what makes the defendants’ conduct violative of §
2261A(2) is not that they simply made statements expressing
their beliefs about Belford, but that these statements were sent
to Belford, the children, and third parties as part of an
extensive, and successful, campaign to threaten, intimidate, and
harass Belford. As our sister Courts of Appeals have concluded,
it is the intent with which the defendants’ engaged in this
conduct, and the effect this conduct had on the victims, that
makes what the defendants did a criminal violation. See
Conlan, 786 F.3d at 386; Osinger, 753 F.3d at 947; Sayer, 748
F.3d at 435; Petrovic, 701 F.3d at 856. Accordingly, we reject
the defendants’ First Amendment challenge, and will affirm
the District Court’s decision to decline to dismiss the case on
First Amendment grounds. The defendants’ convictions do not
violate the First Amendment.
2. Venue in Delaware
The defendants also argue that the District Court did not
have “jurisdiction” to preside over the case. This argument is
based on the defendants’ interpretation of an order from the
district court judge first assigned to the case, Judge Gregory M.
Sleet, which they claim transferred the case out of the district.
47
The defendants contend that because he then recused himself,
Judge Sleet was not permitted to enter a later clarifying order
specifying that he did not transfer the case in this earlier order.
They also argue that under the law-of-the-case doctrine, Judge
McHugh, who took over the case after all of the district judges
in the District of Delaware were recused, was bound to transfer
the case out of the district. We review a judge’s decision to
reconsider his or her predecessor’s ruling for an abuse of
discretion. Fagan v. City of Vineland, 22 F.3d 1283, 1290 (3d
Cir. 1994).
On September 12, 2014, Judge Sleet granted the
defendants’ motions for recusal, and recused himself from the
case. Gonzalez’s recusal motion was titled “Motion for
Transfer and Recusal,” and it requested a transfer of venue in
addition to Judge Sleet’s recusal. App. 16-23. The
memorandum opinion accompanying Judge Sleet’s order did
not mention venue transfer. See id. The defendants argued
that in addition to recusing himself, and all of the district judges
in the District of Delaware, from the case, this order also
transferred venue out of the District of Delaware. The
Government disputed that characterization, and the parties then
briefed the issue. On December 4, 2014, Judge Sleet issued an
amended order that clarified that the Motion for Transfer and
Recusal was granted in part, as to recusal only. App. 24.
Nonetheless, the defendants filed motions to enforce Judge
Sleet’s transfer of venue. On March 10, 2015, Judge McHugh
issued an order, ruling on those motions to enforce, and finding
that Judge Sleet never granted the venue-transfer portion of the
motion to transfer. App. 25-29. The defendants argue that this
was an abuse of discretion. We disagree.
48
Judge Sleet’s memorandum opinion clearly did not
transfer venue, because venue transfer is not mentioned in the
opinion. Because venue transfer was not discussed, Judge Sleet
thus also did not identify to what judicial district venue the case
was purportedly transferred or the reasons for that transfer.
Without such explanations, venue could not properly be
transferred. See In re United States, 273 F.3d 380, 387 (3d Cir.
2001) (requiring the district court to provide “a statement of
reasons for granting the motion to transfer so that the appellate
court has a basis to determine whether the district court soundly
exercised its discretion and considered the appropriate factors”
that contains “a sufficient explanation of the factors
considered, the weight accorded them, and the balancing
performed”). That this order did not and was never intended to
transfer venue is confirmed by the amended order, which
clarified that the prior order granted the motion only as to
recusal and not as to venue transfer. We have held that “[t]he
law of the case doctrine does not preclude a trial judge from
clarifying or correcting an earlier, ambiguous ruling.” Fagan,
22 F.3d at 1290. That is what Judge Sleet did here. Thus,
Judge McHugh did not abuse his discretion by failing to transfer
venue, because Judge Sleet’s opinions make clear that venue was
never transferred.
D. Evidentiary Challenges
We exercise plenary review over the District Court’s
interpretation of the Federal Rules of Evidence. United States
v. Duka, 671 F.3d 329, 348 (3d Cir. 2011). We review the
District Court’s application of the Rules and its decisions to
admit or exclude evidence for abuse of discretion. Id. The
District Court abuses its discretion if its analysis and
conclusions are “arbitrary or irrational,” or if its “decision
49
‘rests upon a clearly erroneous finding of fact, an errant
conclusion of law or an improper application of law to fact.’”
United States v. Schneider, 801 F.3d 186, 198 (3d Cir. 2015)
(quoting Newton v. Merrill Lynch, Pierce, Fenner & Smith,
Inc., 259 F.3d 154, 165-66 (3d Cir. 2001), and United States v.
Universal Rehab. Servs. (PA), Inc., 205 F.3d 657, 665 (3d Cir.
2000) (en banc)).
1. Family Court Opinion
The defendants argue that the District Court erred by
admitting into evidence the August 18, 2011 TPR Order from
the Delaware Family Court. See App. 7827-68 (Gov. Ex. 308).
By way of the TPR Order, the Delaware Family Court
terminated David’s parental rights, as well as the familial rights
of his sister, Gonzalez, and their parents, with respect to
David’s children. The defendants argue that the TPR Order
should have been excluded pursuant to Federal Rule of
Evidence 403 because any probative value that it provided was
substantially outweighed by the risk of unfair prejudice. They
contend that factual findings as well as the statements about
David contained in the TPR Order could have prejudiced the
jury, since these statements were made by a judge. Further,
they assert that introducing the findings of a judge would
prejudice the jury because they would be likely to defer to these
findings and not reach an independent verdict. The defendants
also argue that the TPR Order constituted improper character
evidence because it painted David as a liar and manipulator and
was evidence of his prior bad acts which should not have been
admissible pursuant to Federal Rule of Evidence 404(b).
The defendants filed a motion in limine to have the TPR
Order excluded pursuant to Rules 403 and 404(b). The District
50
Court denied the motion, and admitted the TPR Order as
relevant to the defendants’ “state of mind and motive in
continuing to make allegations against” Belford and as to their
motive for engaging in the stalking. App. 51. The court
admitted the TPR Order with a cautionary instruction. App.
51. It also further explained its ruling from the bench, after
defense counsel again objected to the TPR Order being sent to
the jury. App. 5753-54. The District Court made redactions to
the TPR Order that were “carefully considered to remove from
the jury’s consideration the evidence that would really be
prejudicial.” App. 5753. The court also observed that the risk
of prejudice was lessened by the fact that most of the witnesses
who testified during the TPR hearing also testified at trial, and
that the one who did not, Dr. Orlov, was available to be called
by the defense, who chose not to do so.
The District Court gave multiple cautionary
instructions. The first was immediately after the TPR Order
was admitted into evidence and discussed by the Government’s
witness. See App. 2153-54. The court instructed that the TPR
Order, which included the Family Court’s findings that
David’s accusations of abuse by the children’s mother were
false, “does not definitively conclude that no abuse took place
because that issue is in front of the Court here.” App. 2153.
The District Court went on to explain that “what you just heard
about what the Family Court held might be considered as
relevant to potentially a motive for future things that occurred
including the stalking that the Government alleges occurred.”
App. 2153-54. The court also explained that the findings “are
not automatically binding on you” and should be considered in
light of all the evidence that the jury hears. App. 2154.
51
The District Court provided a second cautionary
instruction during the recitation of jury instructions. It
cautioned the jury that
[t]hese materials were allowed into evidence to
provide you with background for the offenses
charged here. You may consider the findings
made in Family Court in determining the
defendant’s state of mind, including knowledge,
intent and motive with respect to the offenses
charged in this indictment.
You should not, however, conclude
simply because the Family Court made certain
factual findings that you are bound by those
findings. As I’ve told you it is your duty to
decide the fact from the evidence you’ve heard
and seen in court during this trial. That is your
job and yours only.
App. 5655.
Rule 403 provides that “[t]he court may exclude
relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
Rule 403 “creates a presumption of admissibility.” United
States v. Claxton, 766 F.3d 280, 302 (3d Cir. 2014). In
considering a challenge under Rule 403, “the trial court ‘must
appraise the genuine need for the challenged evidence and
balance that necessity against the risk of prejudice to the
defendant.’” Gov’t of V.I. v. Archibald, 987 F.2d 180, 186 (3d
52
Cir. 1993) (internal quotations omitted) (quoting United States
v. Blyden, 964 F.2d 1375, 1378 (3d Cir. 1992)).
Typically, “we exercise great restraint in reviewing a
district court’s ruling on the admissibility of evidence under
Rule 403.” Id. However, we do not defer to the district court
where “the trial judge fails to perform the required balancing
and to explain the grounds for denying a Rule 403 objection.”
Id. Where, as here, a district court applies Rule 403 to
“determine the admissibility of Rule 404(b) evidence,” the
district court “must undertake some analysis, i.e., provide
‘meaningful balancing.’” United States v. Repak, 852 F.3d
230, 246 (3d Cir. 2017) (quoting United States v. Caldwell,
760 F.3d 267, 283 (3d Cir. 2014)).
The defendants contend that the admissibility of the
TPR Order should be subject to plenary review, because the
District Court did not sufficiently explain the reasoning of its
Rule 403 ruling. We disagree. The District Court properly
engaged in the requisite balancing and “articulate[d] . . . a
rational explanation” for its ruling. United States v. Sampson,
980 F.2d 883, 889 (3d Cir. 1992). The District Court in fact
issued a written ruling on the admissibility of the TPR Order,
which noted the relevance of the evidence and acknowledged
that a cautionary instruction was needed to address the
concerns raised by the defendants. See App. 51. Additionally,
the District Court gave further reasons for its ruling from the
bench. App. 5753-54. These explanations warrant deference
as they far exceed the “bare recitation of Rule 403” that we
have held is insufficient to warrant deference. See, e.g., Repak,
852 F.3d at 246. The District Court explained why the TPR
Order was relevant, observed that its prejudicial effect was
mitigated by the redactions as well as the fact that the findings
53
in the TPR Order were based on the testimony of witnesses
who either testified or were available to testify at trial, and only
admitted the TPR order for a limited purpose under Rule
404(b),12 with the appropriate limiting instructions.
Accordingly, we will review the Rule 403 ruling for abuse of
discretion.
The District Court did not abuse its discretion in
admitting the TPR Order. The TPR Order was highly relevant
and was a key piece of evidence in the case as it was the
Government’s argument that the TPR Order was one of the
main motivating factors that spurred the killing of Belford.
The Government argued that David was particularly angered
by the specific language used in the TPR Order. The
Government, in fact, introduced a version of the TPR Order
annotated with the defendants’ handwritten notes as evidence
of the effect that it had on them. See App. 7323. Further, this
was used as evidence that the defendants believed the
Delaware Family Court had let them down, and the Government
argued that the detailed examination and rejection of the
defendants’ claims that the children were abused contained in
the TPR Order rebuts the defendants’ central defense in this
case that they were not intending to harass Belford, but were
instead just attempting to raise awareness for their claims of
abuse and have them be heard. The District Court did not
12
Rule 404(b) permits otherwise inadmissible character
evidence to be admitted if it is used not to show a person’s
character, but instead for certain limited other purposes. See
Fed. R. Evid. 404(b)(2) (“This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident.”).
54
abuse its discretion in admitting the TPR Order as highly
relevant to the Government’s case.
The prejudicial effects about which the defendants
complain were mitigated by the cautionary instructions that the
District Court gave to the jury. “[W]e presume that the jury will
follow a curative instruction unless there is an ‘overwhelming
probability’ that the jury will be unable to follow it and a strong
likelihood that the effect of the evidence would be ‘devastating’
to the defendant.” United States v. Newby, 11 F.3d 1143, 1147
(3d Cir. 1993) (internal quotation marks and citations omitted)
(quoting Greer v. Miller, 483 U.S. 756, 766 n.8 (1987)). We
have ruled that the provision of a limiting instruction can alleviate
the potential prejudice of evidence admitted over a Rule 403
objection. See, e.g., Repak, 852 F.3d at 247 (“[T]he District
Court provided a limiting instruction, mitigating any concern
that the jury would have used this evidence to draw a
propensity inference.”); United States v. Sriyuth, 98 F.3d 739,
748 (3d Cir. 1996) (“[T]he risk of unfair prejudice was
minimized by the district court’s instruction to the jury on the
limited use of the sexual assault evidence.”). The District
Court gave two thorough curative instructions, in addition to
redacting the most prejudicial parts of the TPR Order. The jury
was expressly instructed that it was not bound by anything said
in TPR Order and that it was to use it in considering the
defendants’ state of mind in committing the stalking offenses,
and not for other impermissible purposes.13 The curative
13
Any potential prejudice from the TPR Order was
further limited by the fact that, during closing arguments, the
Government incorporated the cautionary instruction and
qualified its arguments to explicitly note that the TPR Order
was nonbinding. See App. 5442, 5593.
55
instructions here were sufficient to ameliorate the alleged
unfair prejudice of which the defendants complain.
Alternatively, the defendants argue that the TPR Order
was unduly prejudicial because it was issued by a court and the
jury would feel bound to follow the finding of a judge, even
with the limiting instruction. They argue that we should follow
the Court of Appeals for the Ninth Circuit’s opinion in United
States v. Sine, in which that court observed “that factual
testimony from a judge unduly can affect a jury” and that
“jurors are likely to defer to findings and determinations
relevant to credibility made by an authoritative, professional
factfinder rather than determine those issues for themselves.”
493 F.3d 1021, 1033 (9th Cir. 2007). However, Sine is
distinguishable. There, the government chose to present the
factual findings from a prior civil case in which the defendant
was involved in lieu of other evidence to prove those same
facts at trial, and sought to rely on the fact that these factual
findings were found by a judge, as a method of reinforcing the
truth of the findings. Id. at 1035. The court held that it was
improper for the government to attempt to usurp the jury’s role
as a factfinder in this way, and that the admission of these
findings in lieu of the direct evidence constituted inadmissible
hearsay. Id. at 1033, 1036. As discussed above, none of these
concerns are present here, where the Government did not
attempt to present the TPR Order for the truth of the factual
findings, presented the testimony of the witnesses from the
TPR hearing in its case, and itself stressed the Court’s limiting
instruction.
In sum, in light of the limiting instruction and the
redactions, we hold that the District Court did not abuse its
discretion in admitting the TPR Order.
56
2. Belford’s Therapy Tapes and Emails
The defendants next argue that the District Court abused
its discretion in admitting Belford’s statements to her therapist
as part of her therapy sessions as well as emails Belford sent to
her neighbors and colleagues. The defendants argue that these
statements are hearsay, and they were not properly admitted
under any hearsay exception, such as Rules 803(3) and 803(4).
The defendants also argue that the admission of this evidence
violated their rights under the Confrontation Clause.
The defendants objected at trial to the admission of this
evidence. Therefore, they contend that the abuse of discretion
standard should be applied. The Government argues that
although this evidence was objected to, the defendants did not
raise the same arguments as to its inadmissibility that they now
raise, and thus we should review the admissibility of this
evidence for plain error. We need not resolve this dispute,
because even under the more deferential abuse of discretion
standard, the District Court properly admitted this evidence.
a. Therapy Sessions
The defendants first object to the admission of portions
of recordings taken of Belford’s sixteen therapy sessions to
treat her anxiety and depression with Dawn Edgar, her
therapist. Edgar testified at trial, and these recordings were
admitted through her testimony as evidence of Belford’s state
of mind. The Government contends that they are admissible
under two separate hearsay exceptions: (1) as evidence of the
declarant’s state of mind, and (2) as a statement made for
purposes of medical diagnosis or treatment. Fed. R. Evid.
57
803(3) & (4). Rule 803(4) provides a hearsay exception for a
“Statement Made for Medical Diagnosis or Treatment,” which
is defined as follows: “A statement that: (A) is made for—and
is reasonably pertinent to—medical diagnosis or treatment; and
(B) describes medical history; past or present symptoms or
sensations; their inception; or their general cause.” Fed. R.
Evid. 803(4).
The defendants argue that Belford’s statements to her
therapist are not covered by Rule 803(4), because this
exception should not apply to statements made to mental health
professionals. They contend that statements made to mental
health professionals do not exhibit the same indicia of reliability
as do statements made to other medical professionals. The
defendants claim that these statements are unreliable because
the issue of the truth of a patient’s statements regarding his or
her mental condition is not as relevant for mental health
professionals as it is for physical health doctors. As a result,
the defendants argue that the statements were not made for
“medical diagnosis or treatment,” and thus do not qualify for
the Rule 803(4) exception.
We disagree. We have not previously decided whether
Rule 803(4) covers statements made to a mental health
professional, rather than to a physician. However, the plain
text of the Rule does not limit its application to statements
made to a physician. Rule 803(4) focuses on the purpose for
which the statement is made, not on the identity of the
recipient. The advisory committee note to Rule 803(4) makes
clear that statements made to a broad category of individuals
other than physicians are covered by the exception, such as
those made to “hospital attendants, ambulance drivers, or even
members of the family.” Fed. R. Evid. 803 advisory committee
58
note to paragraph (4). There is no indication from Rule 803(4)
or its accompanying advisory committee notes that it should
not extend to statements made to mental health professionals.
The defendants have provided no persuasive authority in
support of their position. If Rule 803(4) extends to cover
statements made to non-medical persons such as family
members, it logically also covers statements made to other
medical professionals, including those who specialize in
mental health. Accordingly, we hold that the exception in Rule
803(4) applies to statements made to therapists and mental
health professionals.
The decisions of our sister Courts of Appeals support
this conclusion, as every Court of Appeals to consider this
issue has determined that statements made to a mental health
professional for purposes of diagnosis or treatment qualify
under the hearsay exception in Rule 803(4). See, e.g., United
States v. Kappell, 418 F.3d 550, 556 (6th Cir. 2005);
Danaipour v. McLarey, 386 F.3d 289, 297 (1st Cir. 2004);
United States v. Yellow, 18 F.3d 1438, 1442 (8th Cir. 1994);
Morgan v. Foretich, 846 F.2d 941, 949 n.17 (4th Cir. 1988);
United States v. Lechoco, 542 F.2d 84, 89 n.6 (D.C. Cir. 1976),
abrogated on other grounds by In re Sealed Case, 352 F.3d 409
(D.C. Cir. 2003).
Belford made the statements in question to her therapist,
who she was consulting for treatment of her anxiety and
depression. Thus, these statements were made for “medical
diagnosis or treatment.” Fed. R. Evid. 803(4)(A). These
statements concerned Belford’s emotional state, including
discussions of her anxiety and depression, as well as their
cause. These types of statements are plainly within the
confines of Rule 803(4)(B) as they are a description of
59
Belford’s “past or present symptoms or sensations; their
inception; or their general cause.” Fed. R. Evid. 803(4)(B).
Accordingly, we hold that Belford’s statements to her therapist
were admissible pursuant to Rule 803(4).14
14
In the alternative, the Government argues that these
recordings are admissible pursuant to Rule 803(3), the state of
mind exception. The District Court admitted them because it
found that they qualified under Rule 803(3) to show Belford’s
emotional state, which was a necessary element of the charges.
Rule 803(3) provides that:
A statement of the declarant’s then-existing state
of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such
as mental feeling, pain, or bodily health), but not
including a statement of memory or belief to
prove the fact remembered or believed unless it
relates to the validity or terms of the declarant’s
will.
Belford’s statements to her therapist consist of Belford’s
description of her emotional condition. As the District Court
correctly observed, the recorded nature of the statements was
relevant to showing Belford’s state of mind because the tenor
of her voice in the recordings provided strong evidence of her
emotional condition at the time. These statements were
admitted to show the effect that the defendants’ stalking
campaign had on Belford and her resulting emotional state, not
for the truth of what she was saying. Belford’s emotional
condition and state of mind are directly relevant to the
Government’s burden to prove that the defendants’ actions
caused her substantial emotional distress. Accordingly, this
60
b. Emails
The second set of hearsay challenges that the defendants
bring are to emails that Belford sent to third parties. These
emails concerned Belford’s emotional condition. The
defendants argue that these emails were inadmissible because
they contained more than just a description of Belford’s
emotional state, as they also contained explanations of the facts
that were the cause of that emotional state. The defendants
contend that under the Rule 803(3) hearsay state of mind
exception, the hearsay statements cannot encompass the facts
that create the relevant state of mind. The Government
contends that these emails were not admitted to show the truth
of the descriptions of the defendants’ acts contained therein,
but to demonstrate that Belford was aware of the acts. The
Government also identifies the other admissible evidence at
trial that established these acts by the defendants. Thus, it
contends, any descriptions of the acts in Belford’s emails
would be harmless, because these acts were already before the
jury. See Gov. Br. 120 n.66 (identifying the portions of the
record where the acts described in the emails were also
described by other witnesses).
We hold that the District Court properly admitted these
emails under the Rule 803(3) state of mind exception. The
emails offer Belford’s descriptions of the defendants’ acts in the
context of how those acts affected her emotional state, fitting
squarely within the state of mind exception. These emails
demonstrate that Belford was aware of defendants’ actions and
that those actions were causing her emotional distress, which
evidence squarely fits within Rule 803(3) and are also
admissible under that rule.
61
are both substantive elements of the cyberstalking offense that
the Government was required to prove. See 18 U.S.C.
§ 2261A(2). Accordingly, these emails demonstrated
Belford’s “state of mind” and “emotional . . . condition,” Fed.
R. Evid. 803(3), and thus do not constitute hearsay. We hold
that the District Court did not abuse its discretion in admitting
this evidence under Rule 803(3).15
c. Confrontation Clause
The defendants also challenge the admission of all of
Belford’s statements at trial under the Confrontation Clause of
the Sixth Amendment. They contend that their rights were
violated by the admission of this evidence, which they contend
constitutes testimony by Belford, because they were unable to
cross-examine Belford at trial.
The Confrontation Clause of the Sixth Amendment
provides that, “[i]n all criminal prosecutions, the accused shall
15
Additionally, these statements also qualify as non-
hearsay under Rule 801(c) because the Government was not
offering them for the truth of the matter asserted in those
statements. See Fed. R. Evid. 801(c) advisory committee note
(“If the significance of an offered statement lies solely in the
fact that it was made, no issue is raised as to the truth of
anything asserted, and the statement is not hearsay.”); see also
United States v. Figueroa, 818 F.2d 1020, 1026 (1st Cir. 1987)
(“Statements proffered to show something other than the
accuracy of their contents—to show, say, the knowledge or
state of mind of the declarant or one in conversation with
him—are not considered hearsay.” (citing VI Wigmore on
Evidence § 1789 at 235 (3d ed. 1940))).
62
enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. A “witness” is any individual who
bears “testimony” against the defendant, and such “testimony”
can be contained in any functional equivalent of a witness’s in-
court statements, such as affidavits or “pretrial statements that
declarants would reasonably expect to be used
prosecutorially.” Crawford v. Washington, 541 U.S. 36, 51
(2004). To fall within the ambit of the Confrontation Clause,
proposed evidence must constitute a “statement,” and such a
statement must contain testimonial hearsay, meaning that the
statement was “a ‘solemn declaration or affirmation made for
the purpose of establishing or proving some fact;’ and . . . was
made primarily for the purpose of ‘prov[ing] past events
potentially relevant to later criminal prosecution.’” United
States v. Stimler, 864 F.3d 253, 272 (3d Cir. 2017) (alteration
in original) (footnote omitted) (first quoting Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 310 (2009); then quoting
Michigan v. Bryant, 562 U.S. 344, 361 (2011)). Examples of
testimonial statements include “prior testimony” as well as
“police interrogations.” Crawford, 541 U.S. at 68.
The defendants contend that Belford’s prior statements
to her therapist as presented in the recordings were testimonial
in nature. They argue that a therapy session “mimic[s]” the
format of a law enforcement interview of a crime victim,
because both scenarios are a “structured setting” that involves
questioning. Gonzalez Br. 66. They also argue that the two
are similar because both involve discussions of unlawful
conduct.
We disagree. Belford’s statements to her therapist are
not testimonial in nature. As her therapist testified, the purpose
of Belford’s visits were to receive therapy to treat her anxiety
63
and depression. The purpose of a visit to a therapist is not to
create a record for a future criminal case. As we discussed
previously, these statements were not hearsay because they
were made for the purposes of “medical diagnosis or
treatment.” Fed. R. Evid. 803(4)(A). Indeed, as the Supreme
Court has observed, many of the hearsay exceptions, including
Rule 803(4) “rest on the belief that certain statements are, by
their nature, made for a purpose other than use in a prosecution
and therefore should not be barred by hearsay prohibitions.”
Bryant, 562 U.S. at 362 n.9. It is clear from the record that the
purpose of Belford’s visits to her therapist was not to create a
record for a future prosecution that could be used as a substitute
for trial testimony. Accordingly, the admission of Belford’s
statements as evidence did not violate the Confrontation
Clause.
3. Testimony of FBI Case Agent
Next, the defendants assert that the District Court erred
by permitting the FBI case agent to vouch for the strength of
the Government’s case. On redirect examination of the case
agent, the District Court permitted him to respond to the single
question: “in the course of your investigation into this matter,
has anything occurred that has shaken your belief in your
actions?” App. 3696. The case agent responded in the
negative. Id. The District Court permitted this redirect
question, pursuant to the Government’s request, after counsel
for co-defendant Lenore on cross-examination asked the case
agent if he, “at any point in time,” had any “doubts” about the
defendants’ involvement in Belford’s death. App. 3638.
Counsel for the defendants David and Gonzalez did not object
to this initial line of questioning by counsel for Lenore, but did
object to the Government’s question on redirect. The District
64
Court overruled these objections, reasoning that counsel for
Lenore had opened the door to this redirect question, and
counsel for David and Gonzalez had implicitly consented to it
by not objecting to this line of questioning at the time.
Afterwards, the District Court then provided a limiting
instruction, informing the jury that it had permitted the
question in response to questions by defense counsel on cross-
examination and directing the jury that they were to follow
only their own assessment of the evidence.
We review for abuse of discretion “the District Court’s
ruling on a challenge to prosecutorial statements objected to at
trial.” United States v. Vitillo, 490 F.3d 314, 325 (3d Cir.
2007). And we review a “vouching issue for abuse of
discretion and harmless error.” Id. “Vouching constitutes an
assurance by the prosecuting attorney of the credibility of a
Government witness through personal knowledge or by other
information outside of the testimony before the jury.” United
States v. Walker, 155 F.3d 180, 184 (3d Cir. 1998) (citing
United States v. Lawn, 355 U.S. 339, 359 n.15 (1958)). To
prevail on a vouching claim, a defendant must demonstrate
that: “(1) the prosecutor [assured] the jury that the testimony
of a Government witness is credible; and (2) this assurance is
based on either the prosecutor’s personal knowledge, or other
information not contained in the record.” Id. at 187. We have
observed that a “defendant must be able to identify as the basis
for that comment an explicit or implicit reference to either the
personal knowledge of the prosecuting attorney or information
not contained in the record.” Id. Impermissible vouching can
occur through the use of witness testimony. United States v.
Berrios, 676 F.3d 118, 134 (3d Cir. 2012). However, “where
the purported vouching is a ‘reasonable response to allegations
of [impropriety]’ by the defense, it is not improper.” Id.
65
(alteration in original) (quoting United States v. Weatherly, 525
F.3d 265, 272 (3d Cir. 2008)).
Here, the challenged statement of the FBI case agent did
not constitute vouching. As the District Court acknowledged
both in overruling the defense objections and in providing the
limiting instruction to the jury, the challenged question was
permitted only as a response to the earlier questions on cross-
examination about any doubts the case agent might have had
about the strength of the case. The Government’s follow-up
question was a “reasonable response” to these defense
questions. Id.16 Accordingly, we hold that the District Court
did not abuse its discretion by permitting this question.
4. Exclusion of Polygraph Rebuttal Evidence
The defendants next argue that the District Court
committed reversible error by preventing Gonzalez from
introducing the results of a polygraph examination as rebuttal
evidence. They contend that this violated her right to an
opportunity to present a meaningful defense under the Sixth
and Fourteenth Amendments. They argue that the polygraph
rebuttal evidence should not have been excluded because it was
relevant, because the polygraph results are admissible under
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), and
16
Because we hold that this question was permissible as
a “reasonable response” to the questions asked by defense
counsel, we need not decide whether this question and
response even constitutes vouching due to the fact that neither
the prosecuting attorney nor the case agent gave a personal
assurance about the credibility of any witness. See Walker,
155 F.3d at 184.
66
because there is no per se rule excluding polygraph results in this
Circuit. See United States v. Lee, 315 F.3d 206, 214 (3d Cir.
2003). The defendants contend that this evidence was
necessary to rebut the prosecution’s challenges to both
Gonzalez’s veracity and the veracity of statements made in
another polygraph examination, which was a key part of the
defendants’ defamation campaign against Belford. Finally, they
contend that the exclusion of this evidence unfairly prejudiced
Gonzalez because it hindered her ability to rebut the
Government’s assertions that certain statements she made as
part of her harassment campaign were false and defamatory.
The District Court provided a supplemental opinion in
which it explained its decision to exclude this rebuttal
polygraph evidence. See App. 62-73. The District Court
explained that it could have excluded the evidence on
procedural grounds because the defendants did not timely or
properly disclose the experts or summaries of the expert reports
of those persons who administered this polygraph examination,
and previously had informed the Government that they would
not be seeking to admit this evidence. However, the District
Court instead chose to exclude this evidence on substantive
grounds, because it did not find the polygraph results evidence
to be reliable, but rather found that the defendants improperly
sought to offer it as direct evidence of the defendants’ guilt or
innocence. The District Court looked to recent scientific
evidence on the reliability of polygraphs examinations, and
determined that the scientific consensus reinforced doubts
about their reliability.
In considering the constitutionality of a rule that
operated as a per se exclusion of polygraph evidence, the
Supreme Court has held that “[a] defendant’s right to present
67
relevant evidence is not unlimited, but rather is subject to
reasonable restrictions.” United States v. Scheffer, 523 U.S.
303, 308 (1998). The Court observed that “federal rulemakers
have broad latitude under the Constitution to establish rules
excluding evidence from criminal trials,” and that they had
“found the exclusion of evidence to be unconstitutionally
arbitrary or disproportionate only where it has infringed upon
a weighty interest of the accused.” Id. Applying these
principles, the Court held that because of concerns over the
reliability of polygraph evidence, a per se exclusion of any
polygraph evidence did not violate the Constitution. Id. at 311.
It determined that a rule excluding polygraph evidence “does
not implicate any significant interest of the accused” because
in the absence of polygraph evidence, a defendant still
maintains the ability to testify on their own behalf and present
their own factual evidence. Id. at 316-17. The Court
concluded that the exclusion of polygraph evidence does not
significantly impair a defendant’s defense, as polygraph
evidence is merely “expert opinion testimony to bolster [the
defendant’s] own credibility.” Id. at 317.
The District Court did not err by excluding Gonzalez’s
polygraph evidence. Because a per se rule against polygraph
evidence is constitutionally permissible, see id. at 311, then the
District Court’s decision to exclude this polygraph evidence
after a thorough, well-reasoned, and careful opinion, is
certainly not an abuse of discretion. For the reasons articulated
in its supplemental opinion, the District Court’s concerns about
the polygraph examination’s reliability were sufficient to
support its decision to exclude the proffered polygraph rebuttal
evidence. Accordingly, we will affirm the District Court’s
exclusion of the polygraph evidence.
68
5. Character Evidence Cross-Examination
The defendants next argue that the District Court erred
in ruling that if Gonzalez called witnesses to testify to her
character, the Government would be permitted to either cross-
examine those witnesses on Gonzalez’s character or offer some
evidence in rebuttal. Gonzalez sought to present the testimony
of several character witnesses as to her honesty, peacefulness,
and law-abiding behavior, but declined to do so after the
District Court ruled that the Government would be permitted
to provide rebuttal evidence about her involvement in the
kidnapping of her nieces by David and Lenore. She contends
that this denied her the opportunity to put on a complete
defense.
We disagree. Rule 404(a) directly addresses this
situation. It states that “a defendant may offer evidence of the
defendant’s pertinent trait, and if the evidence is admitted, the
prosecutor may offer evidence to rebut it.” Fed. R. Evid.
404(a)(2)(A). Rule 405 permits “an inquiry into relevant
specific instances of the person’s conduct” during “cross-
examination of the character witness.” Fed. R. Evid. 405(a).
The District Court was well within the bounds of the Federal
Rules of Evidence when it ruled that it would permit the
Government to present rebuttal evidence if Gonzalez opened
the door on the issue of her character. Accordingly, the District
Court did not abuse its discretion in making this ruling.
Further, by electing not to put on such evidence, Gonzalez
failed to preserve this issue for appeal. See United States v.
Moskovits, 86 F.3d 1303, 1305-06 (3d Cir. 1996).17
17
The defendants also contend that the cumulative
effect of these evidentiary errors was prejudicial. This
69
E. Sentencing Challenges
The defendants also raise four challenges to their
sentences. They bring a challenge under the Fifth and Sixth
Amendments to the District Court’s factual findings,
challenges to the District Court’s application of the Official
Victim and Vulnerable Victim Guidelines, and an Eighth
Amendment challenge to the length of Gonzalez’s sentence.
“We exercise plenary review over the District Court’s
interpretation of the Sentencing Guidelines and constitutional
questions.” United States v. Lennon, 372 F.3d 535, 538 (3d
Cir. 2004). And, “[w]e review the District Court’s factual
findings for clear error, and the District Court’s application of
those facts to the Guidelines for an abuse of discretion.” Id.
(citations omitted).
1. Fifth and Sixth Amendments
The defendants contend that the District Court violated
both the Fifth and Sixth Amendments in calculating their
advisory Sentencing Guidelines ranges using a preponderance
of the evidence standard to make additional findings of fact.
They argue that the District Court should only have applied
factual findings made beyond a reasonable doubt by the jury
and should not have made any additional factual findings.
They contend that the District Court’s actions violate the
Supreme Court’s sentencing jurisprudence following
cumulative error challenge was not raised below, and thus is
subject to review for plain error. Because none of the rulings
was an error, by definition, the cumulative effect of each non-
error could not be prejudicial.
70
Apprendi, 530 U.S. at 490. We disagree. The District Court
did not violate Apprendi because it did not make any findings
that raised the defendants’ sentences above the statutory
maximum. Instead the District Court’s findings adjusted the
applicable range of the advisory Sentencing Guidelines.
We have previously rejected the defendants’ position in
an en banc decision, where we held that Apprendi does not
apply when a district court makes factual findings that affect
the advisory guidelines but not the statutory maximum. See
United States v. Grier, 475 F.3d 556, 565 (3d Cir. 2007) (en
banc). In Grier we confronted a similar challenge and held
“that the right to proof beyond a reasonable doubt does not
apply to facts relevant to enhancements under an advisory
Guidelines regime.” Id. Nevertheless, the defendants argue
that we should not follow the binding precedent of Grier
because intervening decisions by the Supreme Court, such as
Alleyne v. United States, 570 U.S. 99 (2013), have cast doubt
on its reasoning. However, we have expressly rejected that
position and continued to follow Grier. See United States v.
Smith, 751 F.3d 107, 117 (3d Cir. 2014) (determining that
Alleyne “did not curtail a sentencing court’s ability to find facts
relevant in selecting a sentence within the prescribed statutory
range”).
Although the defendants encourage us to follow the
dissenting opinion in Grier, we are bound to follow Grier and
Smith. Here, the statutory maximum was life imprisonment.
18 U.S.C. § 2261(b)(1). The District Court made additional
factual findings to apply the First Degree Murder sentencing
cross-reference, which “applies when death results from the
commission of certain felonies.” U.S.S.G. § 2A1.1 cmt. n.1.
This increased the defendants’ Guidelines range. But the
71
District Court’s findings did not increase the statutory
maximum. Thus, the District Court did not run afoul of
Apprendi. 530 U.S. at 490. In sum, the District Court did not
violate the defendants’ Fifth and Sixth Amendment rights.18
2. Official Victim Enhancement
The defendants19 next contend that the District Court
erred in applying the Official Victim enhancement in the
Sentencing Guidelines, U.S.S.G. § 3A1.2(c)(1), to David. The
Official Victim enhancement, in relevant part, applies
18
We decline to consider the additional challenge to his
Guideline range that David seeks to incorporate by reference
to his arguments made before the District Court. See
Matusiewicz Br. 82 (“The defense also presented two
alternative advisory Guidelines ranges based on other
Guidelines, but the district court ignored these arguments. The
defense also argued, and incorporates here, that the cross-
reference could not be applied on the basis of relevant
conduct.”). By failing to include this argument in his brief, it
is waived. See Tunis Bros. v. Ford Motor Co., 952 F.2d 715,
741 (3d Cir. 1991) (“We shall not address the issues raised by
the plaintiffs on their cross-appeal as the plaintiffs waived them
by failing to argue them in their briefs. Instead of providing
argument with respect to their issues, the plaintiffs merely
referred to their pre- and post-trial briefs. We therefore decline
to address those issues.” (citations omitted)).
19
Although Gonzalez joins this argument, see Gonzalez
Br. 3, the District Court did not apply this enhancement to her
sentence.
72
[i]f, in a manner creating a substantial risk of
serious bodily injury, the defendant or a person
for whose conduct the defendant is otherwise
accountable . . . knowing or having reasonable
cause to believe that a person was a law
enforcement officer, assaulted such officer
during the course of the offense or immediate
flight therefrom. . . .
U.S.S.G. § 3A1.2(c)(1). The defendants’ argument relies on
their sufficiency of the evidence challenge; that is, they argue
that this enhancement should not apply because David did not
know of his father’s plan to kill Belford, and thus, it was not
reasonably foreseeable to him that law enforcement officers
might have been harmed during the course of the conspiracy.
The defendants argue that David’s mere presence in the
courthouse is an insufficient basis on which to base this
enhancement.
The District Court applied this enhancement because
Thomas shot and wounded two police officers in the course of
the shootout following his killing of Belford. Additionally, the
District Court found that conducting a shooting in a courthouse
lobby, where officers were present, created a reasonably
foreseeable chance of harm coming to those officers. The jury
found that David’s actions resulted in the death of Belford. As
a result, during sentencing, the District Court found that David
was a knowing participant in his father’s plans on the day of
the shooting and he had a “specific intent to kill Belford.” App.
6057. The District Court concluded that in light of the fact that
David was present in the courthouse lobby, had accompanied
his father there, and was aware of the events that were about to
transpire, it was “entirely foreseeable” that there would be a
73
potential threat to the numerous uniformed law enforcement
officers present in the courthouse lobby. App. 6050.
We agree. In light of the evidence presented at trial and
before the District Court, the District Court’s application of the
facts to this enhancement was not an abuse of discretion. It was
entirely reasonable for the District Court to find that it was
foreseeable to David that a law enforcement officer might be
harmed in the events that were about to transpire. Accordingly,
the District Court did not err in applying this enhancement.
3. Vulnerable Victim Enhancement
The defendants next contend that the District Court
abused its discretion in applying the Vulnerable Victim
enhancement, U.S.S.G. § 3A1.1(b)(1), because they claim that
the Government failed to prove the existence of the requisite
nexus between the vulnerable status of the victims and the
ultimate success of the crime. The District Court determined
that there was such a nexus and applied the enhancement,
finding that Belford’s children were victims of the defendants’
stalking campaign.
The Vulnerable Victim enhancement, in relevant part,
applies “[i]f the defendant knew or should have known that a
victim of the offense was a vulnerable victim.” U.S.S.G. §
3A1.1(b)(1). The application note to this enhancement defines
a “vulnerable victim” as a victim of the defendant’s offense of
conviction, and any other conduct for which the defendant is
responsible, that is “particularly susceptible” or “unusually
vulnerable” to the criminal conduct due to, inter alia, their age,
physical condition, or mental condition. U.S.S.G. § 3A1.1 cmt.
n.2. In addition, we require that “the defendant knew or should
74
have known of this susceptibility or vulnerability” and that it
“facilitated the defendant’s crime in some manner.” United
States v. Iannone, 184 F.3d 214, 220 (3d Cir. 1999); see also
United States v. Monostra, 125 F.3d 183, 190 (3d Cir. 1997)
(requiring “a nexus between the victim’s vulnerability and the
crime’s ultimate success” (quoting United States v. Lee, 973
F.2d 832, 834 (10th Cir. 1992))).
The District Court did not abuse its discretion in
applying the Vulnerable Victim enhancement. Belford had
young children at the time she was killed, who also suffered
through the defendants’ years-long stalking campaign. As
young children, they were “particularly susceptible or
vulnerable to the criminal conduct.” Iannone, 184 F.3d at 220;
see also United States v. Walker, 665 F.3d 212, 233 (1st Cir.
2011) (“Minors are often regarded as especially vulnerable
victims.”). The defendants certainly knew of the young ages
of the children to whom they were related. All of Belford’s
children were victims of the stalking conduct targeted at their
mother. Indeed, some of them testified at trial that they were
aware of the stalking campaign — which included false
allegations that one of the children had been sexually molested
by her mother — and that they were afraid both for their own
safety and that of their mother. App. 2654-58. Due to their
young age, all of these children were more likely to experience
substantial emotional distress as a result of the defendants’
conduct; they were powerless to protect themselves from
allegations of sexual abuse, and as children, were less able to
defend and protect themselves against any attempted harm
from the adult defendants. These fears were reasonable in light
of the fact that two of the defendants, David and Lenore,
previously had kidnapped the children. Accordingly, the
75
District Court did not err in applying of the Vulnerable Victim
enhancement.20
4. Eighth Amendment
Finally, Gonzalez brings an Eighth Amendment
challenge to her sentence of life imprisonment. We have held
that “a sentence within the limits imposed by statute is neither
excessive nor cruel and unusual under the Eighth
Amendment.” United States v. Miknevich, 638 F.3d 178, 186
(3d Cir. 2011). Gonzalez’s life sentence was authorized by
statute and recommended by the Sentencing Guidelines. See
18 U.S.C. § 2261(b)(1); U.S.S.G. § 2A1.1; App. 6048. In
sentencing Gonzales to life imprisonment, the District Court noted
that she played an instrumental role in the conspiracy against
Belford, whose death was a reasonably foreseeable consequence
of the conspiracy. Thus, her life sentence does not violate the
Eighth Amendment.
IV. Conclusion
20
Additionally, even if both the Official Victim and
Vulnerable Victim enhancements were applied in error, the
error would be harmless as the relevant Guidelines range
would be the same without either enhancement. See United
States v. Isaac, 655 F.3d 148, 158 (3d Cir. 2011) (“However,
the error was completely harmless because even with the one
point reduction, Isaac would remain in criminal history
category IV and the same Guideline range would have
applied.”).
76
For the foregoing reasons, and recognizing the
outstanding work of Judge McHugh, we will affirm in all
respects.
77