United States v. Christopher Osinger

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50338
Plaintiff-Appellee,
D.C. No.
v. 2:10-cr-00758-ODW-1
CHRISTOPHER OSINGER,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
July 10, 2013—Pasadena, California
Filed June 4, 2014
Before: Susan P. Graber, Johnnie B. Rawlinson,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Rawlinson;
Concurrence by Judge Watford
2 UNITED STATES V. OSINGER
SUMMARY*
Criminal Law
The panel affirmed a conviction and sentence for stalking
in violation of 18 U.S.C. § 2261A.
The panel held that because § 2261A proscribes harassing
and intimidating conduct, it is not facially invalid under the
First Amendment. The panel rejected the defendant’s
argument that the statute’s failure to define “harass” or
“substantial emotional distress” renders it unconstitutionally
vague.
The panel also rejected the defendant’s contention that
§ 2261A was unconstitutionally applied to his protected
speech, where the defendant engaged in a course of conduct,
unmistakably proscribed by the statute, with the intent to
harass and intimidate the victim and to cause her substantial
emotional distress, and where any related speech was integral
to the defendant’s criminal conduct and involved sexually
explicit publications concerning a private individual.
The panel held that the defendant was not entitled to a
downward adjustment premised on acceptance of
responsibility, and rejected a contention that a disparity with
the sentence imposed on a defendant who pled guilty in a
different stalking case rendered the sentence in this case
unreasonable.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. OSINGER 3
Concurring, Judge Watford wrote separately to add
thoughts on why the as-applied challenge fails, including that
the “speech integral to criminal conduct” exception to First
Amendment protection surely applies when the defendant
commits an offense by engaging in both speech and non-
speech conduct, and the sole objective of the speech is to
facilitate the defendant’s criminal behavior.
COUNSEL
Michael K. Cernyar, Long Beach, California, for Defendant-
Appellant.
André Birotte Jr., United States Attorney, Robert E. Dugdale,
Chief Criminal Division, Ryan White (argued), Assistant
United States Attorney, Los Angeles, California, for Plaintiff-
Appellee.
OPINION
RAWLINSON, Circuit Judge:
Appellant Christopher Osinger (Osinger) challenges his
conviction for stalking in violation of 18 U.S.C. § 2261A.
Osinger asserts a facial challenge to 18 U.S.C. § 2261A as
unconstitutionally vague on its face and as applied to his
conduct.
Osinger also maintains that the district court’s sentence of
46 months’ imprisonment was unreasonable because his
acceptance of responsibility and a sentencing disparity
4 UNITED STATES V. OSINGER
warranted a more lenient sentence. We affirm Osinger’s
conviction and sentence.
I. BACKGROUND
Osinger was indicted for engaging in a course of
harassing and intimidating conduct in violation of 18 U.S.C.
§§ 2261A(2)(A) and 2261(b)(5). The indictment alleged that
Osinger sent several threatening and sexually explicit text
messages, emails, and photographs of V.B., a former
girlfriend, to V.B., as well as to her co-workers and friends.
The indictment also alleged that Osinger “used the Internet to
create a Facebook page in a name close to V.B.’s name” to
post “suggestive and explicit photos of V.B.” and “demeaning
statements, purportedly made by V.B. . . .”
Prior to trial, Osinger sought dismissal of the indictment,
asserting that 18 U.S.C. § 2261A(2)(A) was
unconstitutionally vague. The district court ruled that
18 U.S.C. § 2261A(2)(A) was not unconstitutionally vague
and denied Osinger’s motion to dismiss the indictment.
At trial, V.B. testified that she was introduced to Osinger
through a mutual friend. Osinger subsequently became
V.B.’s roommate and they became romantically involved.
During their nine-month relationship, V.B. allowed Osinger
to take nude photographs of her.
Osinger told V.B. that he had divorced his wife in 2005.
V.B. eventually moved out of the apartment she shared with
Osinger and ended their relationship when she discovered that
Osinger was still married. V.B. did not provide Osinger with
her new address because she “didn’t want him to contact
[her].” Osinger contacted V.B.’s sister-in-law and told her
UNITED STATES V. OSINGER 5
that he knew where V.B. lived and that “he wanted to be with
[V.B.].” According to V.B., Osinger “repossessed cars” and
“could easily find addresses . . .” After Osinger spoke with
V.B.’s sister-in-law, V.B. telephoned Osinger because she
“wanted him to stop looking for [her] family or friends, and
[she] wanted to hear what he had to say.”
Osinger later came to V.B.’s new residence in an attempt
at reconciliation. Osinger arrived in the “early hours of the
morning, like 1, 2 in the morning.” V.B. did not answer
when he knocked on her window or door because she “didn’t
want to speak to him.” Osinger also “came to [her] work a
few times.”
When V.B. eventually agreed to meet with Osinger, he
told her that he was getting a divorce. Osinger left copies of
divorce papers in V.B.’s mailbox, but V.B. doubted their
authenticity because they lacked the signature of Osinger’s
wife or “any court stamps.” V.B. informed Osinger that she
was not interested in continuing their relationship and moved
in with her sister. V.B. did not tell Osinger that she was
living with her sister and did not provide him with the
address. Nevertheless, Osinger called and texted V.B. and
eventually came to her sister’s home. V.B. informed him that
she was not interested in reviving their relationship.
After V.B. received an offer for a new position in
California, she informed Osinger that she was leaving Illinois.
Osinger told her that “he would do anything for [them] to be
back together,” and was upset that V.B. left without saying
goodbye. V.B. did not provide her California address to
Osinger.
6 UNITED STATES V. OSINGER
Following her relocation to California, V.B. continued to
receive text messages from Osinger, including messages that
he wanted “one last chance.” V.B. contacted Osinger when
he stated that he would move to California. V.B. told Osinger
“to stop texting [her], to stop calling . . .”
V.B. continued to receive text messages from Osinger
despite her remonstrations. Considering the content of the
messages, V.B. inferred that Osinger had sexually explicit
videos of her. V.B. construed the text messages as “a threat.”
She subsequently received a telephone call from an ex-
boyfriend who informed her that “someone had posted a
Facebook page with nude pictures of [V.B.] and horrible
content . . .” When V.B. viewed the Facebook page, she
recognized the photographs as ones that Osinger had taken of
her. V.B. feared that her family might see the photographs,
as one of her cousins had already accepted the Facebook
posting.
V.B. contacted Carlos Enriquez, her supervisor, to assist
her in removing the Facebook page. V.B. was “crying
hysterically” and “could not believe what [Osinger] had done,
and [she] was just shocked.” Enriquez removed the Facebook
page and informed V.B. that he had been contacted by
another employee who had received “an e-mail through his
[company] web e-mail with nude pictures of [V.B.].” V.B.
received a telephone call from a former co-worker in Chicago
that “he had also received an e-mail with nude pictures.”
V.B. eventually reported the incidents to the Torrance
Police Department because she “was scared. [She] did not
know what else [Osinger] was going to try to do.” V.B.
ultimately obtained a restraining order against Osinger.
UNITED STATES V. OSINGER 7
Enriquez corroborated V.B.’s testimony regarding her
emotional state and his assistance in removing the Facebook
page. Enriquez stayed with V.B. because she “was really
bad, still shaking and kind of . . . desperate.” Enriquez also
received an email at work “with some pictures and with really
bad content . . .” Enriquez contacted company headquarters
to have the email blocked. When Enriquez informed V.B.
about the email, she started to cry and shake.
Jason Roberts, V.B.’s former co-worker in Chicago,
testified that he “received some pretty disturbing e-mails” on
his corporate account. Roberts informed V.B., who “was
very, very disturbed, very upset. . . .”
Darek Pawelek, V.B.’s ex-boyfriend, testified that he
received a Facebook invite that he thought was from V.B.,
although the name was spelled differently. When Pawelek
informed V.B. of the Facebook page’s content, “[s]he got
really upset. She started crying, saying things like [she
didn’t] know why he is doing this. Why won’t he leave [her]
alone. . . .”
The jury found Osinger guilty of stalking in violation of
18 U.S.C. §§ 2261A(2)(A) and 2261(b)(5) as alleged in count
one of the indictment.
At sentencing, Osinger objected to the recommendation
from the probation officer that a downward departure for
acceptance of responsibility was unwarranted. Osinger also
asserted that a more lenient sentence was supported by the
27-month sentence of another defendant convicted of
violating 18 U.S.C. § 2261A. Osinger requested a six-month
prison sentence and twelve months in a halfway house.
8 UNITED STATES V. OSINGER
The district court calculated a base offense level of 18, an
adjusted offense level of 22, and a guidelines range of 46 to
57 months’ imprisonment. The district court rejected
Osinger’s request for a downward adjustment premised on
acceptance of responsibility. After considering the requisite
18 U.S.C. § 3553(a) factors, the district court sentenced
Osinger to 46 months’ imprisonment, at the low end of the
guidelines range, and three years of supervised release.
Osinger filed a timely notice of appeal.
II. STANDARDS OF REVIEW
“A challenge to the constitutionality of a statute is
reviewed de novo.” United States v. Berry, 683 F.3d 1015,
1020 (9th Cir. 2012) (citation omitted). “We also review de
novo when a criminal statute is challenged for vagueness.”
Id. (citation omitted).
“We review a sentence for both procedural error and
substantive reasonableness. . . .” United States v. Joseph,
716 F.3d 1273, 1276 (9th Cir. 2013) (citation omitted). “We
review for clear error the district court’s finding that
[Osinger] did not accept responsibility for his crime.” United
States v. Ramos-Medina, 706 F.3d 932, 936 (9th Cir.), as
amended, cert. denied, 134 S.Ct. 64 (2013) (citation omitted).
UNITED STATES V. OSINGER 9
III. DISCUSSION
A. Constitutionality of 18 U.S.C. § 2261A1,2
1
18 U.S.C. § 2261A(2)(A) provided:
Whoever . . . (2) with the intent — (A) to kill, injure,
harass, or place under surveillance with intent to kill,
injure, harass, or intimidate, or cause substantial
emotional distress to a person in another State or tribal
jurisdiction or within the special maritime and
territorial jurisdiction of the United States . . . uses the
mail, any interactive computer service, or any facility
of interstate or foreign commerce to engage in a course
of conduct that causes substantial emotional distress to
that person . . . shall be punished as provided in section
2261(b) of this title.
2
18 U.S.C. § 2261(b) provided:
A person who violates this section or section 2261A
shall be fined under this title, imprisoned — (1) for life
or any term of years, if death of the victim results;
(2) for not more than 20 years if permanent
disfigurement or life threatening bodily injury to the
victim results; (3) for not more than 10 years, if serious
bodily injury to the victim results or if the offender uses
a dangerous weapon during the offense; (4) as provided
for the applicable conduct under chapter 109A if the
offense would constitute an offense under chapter 109A
(without regard to whether the offense was committed
in the special maritime and territorial jurisdiction of the
United States or in a Federal prison); and (5) for not
more than 5 years, in any other case, (6) Whoever
commits the crime of stalking in violation of a
temporary or permanent civil or criminal injunction,
restraining order, no-contact order, or other order
10 UNITED STATES V. OSINGER
1. Facial Challenge
Osinger contends that the version of 18 U.S.C. § 2261A
in effect when he was convicted is facially unconstitutional
because it prohibits speech protected by the First
Amendment. Osinger also argues that 18 U.S.C.
§ 2261A(2)(A) is overly broad because it does not define
“substantial emotional distress” or “harassment.”3
“In a facial challenge, a statute is unconstitutionally vague
if it fails to provide a person of ordinary intelligence fair
notice of what is prohibited, or is so standardless that it
authorizes or encourages seriously discriminatory
enforcement. . . .” United States v. Harris, 705 F.3d 929, 932
(9th Cir.), as amended, cert. denied, 133 S.Ct. 1510 (2013)
(citation and internal quotation marks omitted). Although we
have not extensively addressed the First Amendment
described in section 2266 of title 18, United States
Code, shall be punished by imprisonment for not less
than 1 year.
3
In conclusory fashion, Osinger also asserts that “the Indictment filed
in this case must be dismissed because it fails to state an offense.”
However, Osinger has waived any challenge to the sufficiency of the
indictment as he provided no argument in support of this issue in his
opening brief. See Autotel v. Nev. Bell Tel. Co., 697 F.3d 846, 857 n.9
(9th Cir. 2012), cert. denied, 133 S.Ct. 1250 (2013) (“[T]he conclusory
statement in [the defendant’s] opening brief, unaccompanied by argument
or citation to the record, is insufficient to preserve the issue for appeal, and
we do not address it.”) (citations omitted). In any event, the indictment
sufficiently alleged the requisite elements to charge a violation of
18 U.S.C. § 2261A. See United States v. Rojas-Pedroza, 716 F.3d 1253,
1261 (9th Cir. 2013) (“Generally, an indictment is sufficient so long as it
sets forth all the elements necessary to constitute the offense. . . .”)
(citation omitted).
UNITED STATES V. OSINGER 11
implications of 18 U.S.C. § 2261A(2)(A), other circuits have
rejected similar facial challenges.
For example, in United States v. Petrovic, 701 F.3d 849(8th Cir. 2012), the Eighth Circuit observed that “[a]n
overbreadth challenge . . . will rarely 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).” Id. at 856 (citation, alterations, and
internal quotation marks omitted). “Section 2261A(2)(A) is
directed toward courses of conduct, not speech, and the
conduct it proscribes is not necessarily associated with
speech. . . .” Id. (alteration and internal quotation marks
omitted). “Most, if not all, of the statute’s legal applications
are to conduct that is not protected by the First Amendment.”
Id. (citation and alteration omitted). Additionally, “[t]he rare
application of the statute that offends the First Amendment
can still be remedied through as-applied litigation.” Id.(citation and internal quotation marks omitted). “Because a
substantial number of the statute’s applications will not be
unconstitutional, [the Eighth Circuit] decline[d] to use the
strong medicine of overbreadth to invalidate the entire
statute.” Id. (citations, alteration, and internal quotation
marks omitted).
We agree with the Eighth Circuit’s rationale that, because
18 U.S.C. § 2261A proscribes harassing and intimidating
conduct, the statute is not facially invalid under the First
Amendment. In particular, 18 U.S.C. § 2261A specifically
criminalizes “a course of conduct that . . . causes . . .
substantial emotional distress to [the harassee].” 18 U.S.C.
§ 2261A(2)(B) (emphasis added). Additionally, 18 U.S.C.
§ 2266(2) provides that “[t]he term ‘course of conduct’ means
a pattern of conduct composed of 2 or more acts, evidencing
12 UNITED STATES V. OSINGER
a continuity of purpose.” Thus, the proscribed acts are
tethered to the underlying criminal conduct and not to speech.
Moreover, we concur in the Eighth Circuit’s reasoning that,
“[b]ecause the statute requires both malicious intent on the
part of the defendant and substantial harm to the victim, it
is difficult to imagine what constitutionally-protected
speech would fall under these statutory prohibitions.”
Petrovic, 701 F.3d at 856 (alterations and internal quotation
marks omitted); see also United States v. Sayer, No. 12-2489,
– F.3d –, 2014 WL 1758453, at *7–*8 (1st Cir. May 2, 2014)
(rejecting facial challenge to 18 U.S.C. § 2261A(2)(A) on
similar grounds).4
Osinger’s argument that 18 U.S.C. § 2261A(2)(A) is
unconstitutionally vague because it does not define “harass”
or “substantial emotional distress” is equally unavailing.
“Vague statutes are invalidated for three reasons: (1) to avoid
punishing people for behavior that they could not have known
was illegal; (2) to avoid subjective enforcement of laws based
on arbitrary and discriminatory enforcement by government
officers; and (3) to avoid any chilling effect on the exercise
of First Amendment freedoms. . . .” United States v.
Kilbride, 584 F.3d 1240, 1256 (9th Cir. 2009) (citation and
4
Our decision in United States v. Bagdasarian, 652 F.3d 1113 (9th Cir.
2011), is not to the contrary. In that case, we held that, “[i]n order to
affirm a conviction under any threat statute that criminalizes pure speech,
we must find sufficient evidence that the speech at issue constitutes a true
threat . . .” Id. at 1117 (internal quotation marks omitted). As the Eighth
Circuit properly concluded in Petrovic, 18 U.S.C. § 2261A is targeted at
a course of conduct, not speech. See Petrovic, 701 F.3d at 856 (“Section
2261A(2)(A) is directed toward courses of conduct, not speech, and the
conduct it proscribes is not necessarily associated with speech. . . .”)
(alteration and internal quotation marks omitted). Bagdasarian, therefore,
is inapplicable to our analysis of 18 U.S.C. § 2261A.
UNITED STATES V. OSINGER 13
internal quotation marks omitted). None of these reasons
applies here.
Contrary to Osinger’s argument, “harass” and “substantial
emotional distress” are not esoteric or complicated terms
devoid of common understanding. See, e.g., Adams v. Ford
Motor Co., 653 F.3d 299, 307 (3d Cir. 2011) (“Black’s
Dictionary [784 (9th ed. 2009)] defines harassment as ‘words,
conduct, or action (usu. repeated or persistent) that, being
directed at a specific person, annoys, alarms, or causes
substantial emotional distress in that person and serves no
legitimate purpose. . . .’”); see also Veile v. Martinson,
258 F.3d 1180, 1189 (10th Cir. 2001) (describing “substantial
emotional distress” to be “understood by persons of common
intelligence” to mean “mental distress, mental suffering, or
mental anguish, and includes depression, dejection, shame,
humiliation, mortification, shock, indignity, embarrassment,
grief, anxiety, worry, fright, disappointment, nausea, and
nervousness, as well as physical pain” in the context of a state
stalking statute) (citations omitted). As the Fourth Circuit
observed in United States v. Shrader, 675 F.3d 300 (4th Cir.),
cert. denied, 133 S.Ct. 757 (2012), “[w]hatever other
definitions one might hypothesize for the meaning of harass
or intimidate, there can be little doubt that [the defendant’s]
stalking falls within the conduct the statute is intended to
proscribe. [The defendant’s] own words evince his intent to
cause substantial emotional distress. . . . In short, we reject
[the defendant’s] contention that his stalking convictions
must be overturned on vagueness grounds.” Id. at 312(citation, alteration, footnote reference, and internal quotation
marks omitted).
Moreover, 18 U.S.C. § 2261A requires that the defendant
act with the intent to harass, intimidate, or cause substantial
14 UNITED STATES V. OSINGER
emotional distress. See 18 U.S.C. § 2261A(2)(A). This
scienter requirement, which the jury found had been proven
beyond a reasonable doubt, thoroughly undermines Osinger’s
contention that he was unable to discern that his harassment
of V.B. was proscribed by 18 U.S.C. § 2261A. See United
States v. Jae Gab Kim, 449 F.3d 933, 943 (9th Cir. 2006), as
amended (“[A] scienter requirement may mitigate a law’s
vagueness, especially with respect to the adequacy of notice
to the complainant that his conduct is proscribed. . . .”)
(citation omitted).
Osinger’s threats, creation of a false Facebook page with
sexually explicit photographs of V.B., and emails to V.B.’s
co-workers and friends containing explicit photographs
evinced Osinger’s “intent to . . . cause substantial emotional
distress . . .” 18 U.S.C. § 2261A(2). Thus, Osinger’s
unrelenting harassment and intimidation of V.B. was not
based on conduct that he “could not have known was illegal.”
Kilbride, 584 F.3d at 1256.5
5
Osinger contends that pending legislation to amend 18 U.S.C.
§ 2261A(2)(A) bolsters his vagueness challenge. Osinger relies on a
proposed bill entitled “Simplifying The Ambiguous Law, Keeping
Everyone Reliably Safe Act of 2011.” H.R. 196, 112th Cong. (2011).
Notably, even if the proposed amendments were otherwise relevant to our
analysis, which we doubt, those proposals would not eliminate the terms
that Osinger challenges as vague. Indeed, if any implication can be
drawn, it is that the drafters did not consider the challenged terms “harass”
and “emotional distress” to be ambiguous. The proposed bill provides:
(a) Whoever, with intent to kill, physically injure,
harass, or intimidate a person, or place under
surveillance with the intent to kill, physically injure,
harass, or intimidate a person, travels in interstate or
foreign commerce or within the special maritime and
territorial jurisdiction of the United States, or enters or
UNITED STATES V. OSINGER 15
2. As-Applied Challenge
Osinger next contends that 18 U.S.C. § 2261A(2)(A) was
unconstitutionally applied to his protected speech.
“In an as-applied challenge, a statute is unconstitutionally
vague if it fails to put a defendant on notice that his conduct
was criminal. For statutes involving criminal sanctions the
requirement for clarity is enhanced.” Harris, 705 F.3d at 932
(citations, alterations, and internal quotation marks omitted).
Osinger’s as-applied challenge is unpersuasive given the
nature of the implicated speech. “The First Amendment
prohibits any law abridging the freedom of speech. However,
the Supreme Court has carved out some limited categories of
unprotected speech, including obscenity, defamation, fraud,
incitement, and speech integral to criminal conduct.” United
States v. Meredith, 685 F.3d 814, 819 (9th Cir.), cert. denied,
133 S.Ct. 536 (2012) sub. nom. Giordano v. United States
(citations, alteration, and internal quotation marks omitted).
“At issue here is the First Amendment exception that allows
leaves Indian country, and in the course of, or as a
result of, such travel- (1) causes or attempts to cause
bodily injury or serious emotional distress to a person
other than the person engaging in the conduct; or
(2) engages in conduct that would be reasonably
expected to cause the other person serious emotional
distress; shall be punished as provided in subsection
(c).
Id. (emphases added). Although the bill utilizes the term “serious
emotional distress” in lieu of “substantial emotional distress,” the
proposed legislation does not support Osinger’s vagueness challenge
given that Osinger’s proscribed course of conduct in threatening and
intimidating V.B. caused both serious and substantial emotional distress.
16 UNITED STATES V. OSINGER
the government to regulate speech that is integral to criminal
conduct. . . .” Id. at 819–20.
In Meredith, we considered whether the defendants’
convictions for advocacy of tax evasion violated the First
Amendment. See id. at 817. In addition to selling books
explaining how to avoid taxes, the defendants sold a
particular type of financial trust “which they claimed was
exempt from taxes. . . .” Id. at 818. The defendants were
charged “with conspiring to defraud the United States by
impeding, impairing, obstructing, and defeating the lawful
functions of the IRS in the ascertainment, computation,
assessment, and collection of federal taxes, in violation of 18
U.S.C. § 371. . . .” Id. In rejecting the defendants’ First
Amendment argument, we observed that “in those instances,
where speech becomes an integral part of the crime, a First
Amendment defense is foreclosed even if the prosecution
rests on words alone.” Id. at 820 (citation, alteration, and
footnote reference omitted). Because the defendants’ conduct
“involved far more than mere advocacy of tax evasion,” the
First Amendment was not implicated by the defendants’
“speech integral to criminal conduct.” Id. at 819, 823(citation omitted).
Although Meredith implicitly undermines Osinger’s
argument that he engaged in protected speech, other circuits
have explicitly rejected as-applied challenges to 18 U.S.C.
§ 2261A(2)(A). In Petrovic, the defendant sent the victim
text messages stating that he had sexually explicit images of
her, which the defendant subsequently mailed as postcards to
the victim’s family and workplace. See Petrovic, 701 F.3d at
852–53. The defendant also designed a website containing
links to the images. See id. at 853. In rejecting the
defendant’s as-applied challenge, the Eighth Circuit reasoned
UNITED STATES V. OSINGER 17
that the defendant’s “communications fall outside the First
Amendment’s protection” because “[t]he communications for
which [the defendant] was convicted under § 2261A(2)(A)
were integral to this criminal conduct as they constituted the
means of carrying out his extortionate threats. . . .” Id. at
854–55 (citation omitted).
In Shrader, the Fourth Circuit similarly rejected the
defendant’s as-applied challenge. In that case, the defendant
made a series of harassing phone calls to the victim and her
family. See Shrader, 675 F.3d at 304. The Fourth Circuit
observed that “[t]he statute contains three important elements.
First, the defendant must possess either the intent to kill,
injure, harass, or place under surveillance with intent to kill,
injure, harass, or intimidate, or cause substantial emotional
distress to a person in another State . . .” Id. at 309–10
(citation and internal quotation marks omitted). “Second, the
defendant must pursue that intention through a course of
conduct, defined as a pattern of conduct composed of 2 or
more acts, evidencing a continuity of purpose, that makes use
of a facility of interstate commerce[.]” Id. at 310 (citations
and internal quotation marks omitted). “Finally, the
defendant’s conduct must in fact cause substantial emotional
distress to the intended victim or place that person in
reasonable fear of the death of, or serious bodily injury . . .”
Id. (citation, alterations, and internal quotation marks
omitted). Based on the defendant’s harassing and
intimidating conduct, the Fourth Circuit held that “the statute
clearly proscribed [the defendant’s] particular conduct in this
case. There can be little doubt that [the defendant’s] conduct
was harassing and intimidating . . .” Id. at 312. As a result,
the defendant’s “own words evince his intent to cause
substantial emotional distress . . .” Id. (citation and internal
quotation marks omitted).
18 UNITED STATES V. OSINGER
We reach a similar conclusion in this case. As described
in 18 U.S.C. § 2261A(2)(A), Osinger engaged in a course of
conduct “with the intent . . . to . . . harass, or intimidate, or
cause substantial emotional distress to” V.B. V.B. told
Osinger repeatedly that she no longer wanted to be contacted
by him. Nonetheless, Osinger was unrelenting in his pursuit
and harassment of her, including sending threatening text
messages. Osinger designed a false Facebook page and sent
emails to V.B.’s co-workers containing nude photographs of
V.B. Any expressive aspects of Osinger’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 V.B.
Meredith, 685 F.3d at 819–20. Pursuant to 18 U.S.C.
§ 2261A(2)(A), Osinger was on notice that his harassing and
intimidating conduct “was criminal.” Harris, 705 F.3d at
932.6
6
In United States v. Cassidy, 814 F. Supp. 2d 574, 588 (D. Md. 2011),
the district court granted a motion to dismiss the indictment because
18 U.S.C. § 2261A(2)(A) was unconstitutional as applied to the defendant.
However, Cassidy is entirely distinguishable from the present appeal. In
that case, the district court held that 18 U.S.C. § 2261A contravened the
First Amendment as applied because the victim was “a well-known
religious figure” and the defendant’s “Tweets and Blog posts about [the
victim] challenge[d] her character and qualifications as a religious leader.”
Id. at 583 (citation omitted). “And, while [the defendant’s] speech may
have inflicted substantial emotional distress, the Government’s Indictment
. . . [was] directed squarely at protected speech: anonymous,
uncomfortable Internet speech addressing religious matters. . . .” Id.
Other district courts have distinguished Cassidy in rejecting similar
constitutional challenges to 18 U.S.C. § 2261A. See, e.g., United States
v. Sayer, Nos. 2:11-CR-113-DBH, 2:11-CR-47-DBH, 2012 WL 1714746,
at *2–*3 (D. Me. May 15, 2012) (distinguishing Cassidy and concluding
that the defendants’ online posting of sexually explicit material and
harassment of the victim was not protected speech); United States v.
UNITED STATES V. OSINGER 19
In the limited context of 18 U.S.C. § 2261A, Osinger’s
speech is not afforded First Amendment protection for the
additional reason that it involved sexually explicit
publications concerning a private individual. In Petrovic, the
Eighth Circuit observed that the victim was “a private
individual” and that the defendant’s “communications
revealed intensely private information about [the victim].”
701 F.3d at 855 (citation omitted). The Eighth Circuit opined
that “the interstate stalking statute is viewpoint neutral. It
proscribes stalking and harassing conduct without making the
further content discrimination of proscribing only certain
forms of that conduct.” Id. at 855–56 (citation omitted).
“[T]he intimately private facts and photographs revealed by
[the defendant] were never in the public domain before [the
defendant] began his campaign to humiliate [the victim].” Id.
at 856. Additionally, “the public has no legitimate interest in
the private sexual activities of [the victim] or in the
embarrassing facts revealed about her life,” and “the
information [the defendant] publicized to the community was
highly offensive.” Id. (citations omitted). “The
communications for which [the defendant] was convicted
under § 2261A(2)(A) may be proscribed consistent with the
First Amendment. The statute is not unconstitutional as
applied to [the defendant].” Id.
Osinger’s as-applied challenge is similarly unavailing
given his intent to harass and intimidate a private individual
by circulating sexually explicit publications that were never
in the public domain. Applying the logic of Petrovic and
Shepard, No. CR 10-1032-TUC-CKJ, 2012 WL 1580609, at *5, (D. Ariz.
May 4, 2012) (holding that Cassidy was inapposite because the
defendant’s use of the internet to stalk the victim was not protected
speech).
20 UNITED STATES V. OSINGER
Shrader, we reject Osinger’s as-applied challenge to
18 U.S.C. § 2261A.
B. Osinger’s Sentence
1. Acceptance of Responsibility
Osinger asserts that the district court erred in denying his
request for a downward departure premised on acceptance of
responsibility. According to Osinger, he intended to plead
guilty and proceeded to trial only to preserve his
constitutional challenge to 18 U.S.C. § 2261A.
“The Sentencing Guidelines allow district courts to grant
a two-level downward adjustment to a defendant who clearly
demonstrates acceptance of responsibility for his offense.”
Ramos-Medina, 706 F.3d at 940 (citation and internal
quotation marks omitted). “The defendant bears the burden
of showing that he has accepted responsibility for his
actions.” Id. (citation omitted).
At trial, Osinger did not simply pursue his First
Amendment challenge to 18 U.S.C. § 2261A. Instead,
Osinger asserted that his actions were the legal equivalent of
“being prosecuted for ripping the label off a mattress. . . .”
His counsel argued that Osinger was “charged with stalking
in the absence of evidence to prove it. There is no history of
any violence. There is no history of any threat of violence.
There is no history that he ever waited outside her house.
There is no history that he ever visited her in Los Angeles.”
His counsel maintained that “[w]hat the government is asking
in this case is that the conviction rest solely on the fact that
somebody hurt somebody else’s feelings really, really badly.”
Osinger also challenged the jurisdictional basis for the
UNITED STATES V. OSINGER 21
charges by arguing that he thought that he was
communicating only with individuals in Chicago where
Osinger resided. Osinger asserted that there was no evidence
of any threats and that he did not direct the e-mails to V.B.,
as he sent them only to her co-workers. Osinger argued that
there was “[n]o evidence of repetitious conduct and no
evidence of malice. A love obsession is not malice. . . .”
Finally, Osinger maintained that he was not guilty of stalking
because he did not contact V.B. after sending the pictures.
“On this record, the district court did not clearly err in finding
that [Osinger’s] actions were inconsistent with acceptance of
responsibility. . . .” Ramos-Medina, 706 F.3d at 942.
In addition to challenging his guilt at trial, Osinger failed
to demonstrate the requisite contrition to warrant a downward
adjustment for acceptance of responsibility. See United
States v. Dhingra, 371 F.3d 557, 568 (9th Cir. 2004), as
amended (holding that the defendant “did not meet his burden
of demonstrating ‘genuine contrition for his acts’”) (citation
omitted). Osinger expressed that he “deeply regret[ted] his
conduct.” However, he conveyed his regrets in the context
that “as in many breakups things were said and done that
people regret. Here, Mr. Osinger said and did things out of
anger. . . .” Rather than directly accepting responsibility for
his conduct, Osinger intimated that his actions stemmed from
V.B.’s refusal to reconcile. Such equivocal expressions of
contrition “did not meet [the defendant’s] burden of
demonstrating genuine contrition for his acts,” and “it was not
clearly erroneous for the district court to deny downward
adjustment for acceptance of responsibility.” Dhingra,
371 F.3d at 568 (citation and internal quotation marks
omitted).
22 UNITED STATES V. OSINGER
2. Sentencing Disparity
Finally, Osinger contends that his sentence was
unreasonable because another defendant received a more
lenient sentence despite engaging in more extensive and
intrusive stalking. However, Osinger was not similarly
situated to the defendant who received a more lenient
sentence after pleading guilty in a different case. See United
States v. Espinoza-Baza, 647 F.3d 1182, 1195 (9th Cir. 2011)
(“It does not matter for the purposes of § 3553(a) that [the
defendant] can point to other criminal defendants who may
have received lighter sentences under materially different
circumstances. . . .”) (citation, alterations, and internal
quotation marks omitted). Osinger’s sentencing disparity
argument is undermined by his more extensive criminal
history. See id. (observing that the defendant was not
similarly situated to other defendants because “[t]here is
nothing in the record suggesting that these other defendants
had comparable criminal histories”) (citation omitted).
Moreover, Osinger’s sentence was at the low end of the
guidelines range. See United States v. Green, 592 F.3d 1057,
1072 (9th Cir. 2010) (“We have trouble imagining why a
sentence within the Guidelines range would create a disparity,
since it represents the sentence that most similarly situated
defendants are likely to receive.”) (citation and alteration
omitted). We hold that Osinger’s sentence was procedurally
and substantively reasonable.
IV. CONCLUSION
We adopt the reasoning articulated by the Eighth and
Fourth Circuits in Petrovic and Shrader and hold that
Osinger’s facial and as-applied challenges to 18 U.S.C.
§ 2261A are unavailing. Osinger’s threatening messages to
UNITED STATES V. OSINGER 23
V.B. and his sending of sexually explicit photographs to
V.B.’s co-workers and friends unquestionably evinced
Osinger’s intent to harass and intimidate V.B. and to cause
substantial emotional distress. Osinger’s course of conduct
was unmistakably proscribed by 18 U.S.C. § 2261A, and any
related speech was not afforded First Amendment protection,
as it was integral to Osinger’s criminal conduct and involved
sexually explicit publications concerning a private individual.
The district court’s sentence of 46 months’ imprisonment,
at the low end of the guidelines range, was reasonable
because Osinger was not entitled to any downward
adjustment premised on acceptance of responsibility or on
sentencing disparity.
AFFIRMED.
WATFORD, Circuit Judge, concurring:
I agree with my colleagues that Christopher Osinger’s
conviction and sentence for violating 18 U.S.C. § 2261A
should be affirmed, notwithstanding his First Amendment
objections. I write separately to add a few additional
thoughts on why Osinger’s as-applied challenge fails.
I
I agree with the court that Osinger’s speech isn’t entitled
to First Amendment protection because it was “speech
integral to criminal conduct.” See United States v. Stevens,
559 U.S. 460, 468 (2010); Giboney v. Empire Storage & Ice
Co., 336 U.S. 490, 502 (1949). This exception to the First
24 UNITED STATES V. OSINGER
Amendment has been and remains controversial; its
boundaries and underlying rationale have not been clearly
defined, leaving the precise scope of the exception unsettled.
See Eugene Volokh, Speech as Conduct: Generally
Applicable Laws, Illegal Courses of Conduct, “Situation-
Altering Utterances,” and the Uncharted Zones, 90 Cornell
L. Rev. 1277, 1311–26 (2005). But whatever difficulties may
arise from application of the exception in other contexts, it
surely applies when the defendant commits an offense by
engaging in both speech and non-speech conduct, and the sole
objective of the speech is to facilitate the defendant’s criminal
behavior. In those circumstances, the defendant’s speech
loses whatever First Amendment protection it might
otherwise have enjoyed, even if the speech, considered in
isolation, would be fully protected.
That, in my view, is the proper reading of Giboney.
There, a labor union engaged in non-speech conduct that
amounted to, as the Court later put it, “a secondary boycott
which a State had validly outlawed.” New York v. Ferber,
458 U.S. 747, 762 n.14 (1982). Specifically, the union
orchestrated a series of agreements among Kansas City ice
distributors under which they pledged not to sell ice to non-
union peddlers, conduct that violated Missouri’s anti-trade-
restraint law. Giboney, 336 U.S. at 492. When the lone
holdout distributor (Empire) refused to join the boycott, the
union “informed Empire that it would use other means at its
disposal to force Empire to come around to the union view.”
Id. Union members began picketing Empire with placards
protesting its willingness to deal with non-union peddlers.
The “avowed immediate purpose of the picketing was to
compel Empire to agree to stop selling ice to nonunion
peddlers”—an agreement that would have been punishable as
UNITED STATES V. OSINGER 25
a felony under Missouri law. Id. Empire sought an
injunction prohibiting the picketing.
Although the union was engaged in peaceful picketing
that “publicize[d] truthful facts about a labor dispute”—
speech which, standing on its own, would have been fully
protected under the First Amendment—the Court held that
the union’s speech could not be “treated in isolation.” Id. at
498. The union’s speech lost whatever First Amendment
protection it might otherwise have enjoyed, the Court
concluded, because it was “used as an integral part of conduct
in violation of a valid criminal statute,” and its “sole
immediate object” was to facilitate the union’s commission
of that offense. Id. That the union’s unlawful course of
conduct “was in part initiated, evidenced, or carried out by
means of language” mattered not for First Amendment
purposes. Id. at 502.
Osinger’s case fits comfortably within this formulation of
the exception for speech integral to criminal conduct. As in
Giboney, we’re dealing with a valid criminal statute: No one
disputes that, as a general matter, Congress has the power to
punish those who engage in interstate stalking. And the court
properly rejects Osinger’s facial challenge to the particular
variant of that crime at issue here—engaging in a course of
conduct intending to harass or inflict substantial emotional
distress on a person in another State. 18 U.S.C.
§ 2261A(2)(A). As I’ll sketch out below, Osinger committed
the crime of interstate stalking by engaging in a course of
conduct that consisted of both speech and non-speech
conduct. True, Osinger engaged in some speech that,
considered in isolation, might have been entitled to First
Amendment protection. But as the court correctly holds, that
speech lost whatever protection it might have enjoyed
26 UNITED STATES V. OSINGER
because its “sole immediate object” was to facilitate his
commission of the stalking offense. Giboney, 336 U.S. at
498.
II
Like many stalking offenses, this one began with a failed
relationship. The victim in this case, V.B., broke up with
Osinger when she discovered that he was married to another
woman. A few months after V.B. ended their relationship,
Osinger began showing up uninvited at V.B.’s home. On
multiple occasions, he arrived around 1:00 or 2:00 a.m. and
telephoned her or knocked at her window or door. V.B.
refused to speak with him, but Osinger continued to make
unwanted visits to her home anyway. He also appeared
several times at the restaurant where V.B. worked. After
these encounters, V.B. moved to another neighborhood,
hoping that Osinger’s unwanted visits to her home, at least,
would stop.
They didn’t. As a repossession agent, Osinger could
easily get addresses for people he wanted to find, and he
successfully tracked V.B. down at her new home. The two
briefly reconciled, but that ended when V.B. concluded that
Osinger had given her fraudulent divorce papers and was
seeing other women. After ending their relationship for the
final time, V.B. moved in with her sister, hoping Osinger
wouldn’t be able to find her there. But despite V.B.’s
decision to conceal her new address from Osinger, he
surprised her by showing up at her sister’s apartment. He
also called her and sent her text messages. V.B. responded by
telling Osinger their relationship was over.
UNITED STATES V. OSINGER 27
After a year of dealing with Osinger’s harassing behavior,
V.B. moved from Illinois to California, in part to get away
from him. She didn’t tell Osinger where she was moving,
and she didn’t give him her new address. For months, she
had no direct contact with him. V.B. appeared to have made
a clean break: She had a new job, a new home, and what she
believed was a fresh start with Osinger out of her life.
Then, out of the blue, Osinger started contacting V.B.
again. Over the course of two days, she received
approximately 40 text messages from him. The messages
started out with declarations of love, but they quickly turned
nasty—e.g., “You truly are the Devil.. I hate you I HATE
U.”—when V.B. made it clear that she would not give him
another chance. From there, Osinger’s messages took on a
threatening tone:
• Trust me after this weeknd ur going to feel like I ass
FUKD U.
• Am going to make sure u fucking hate me. After this
weeknd.
• So buckle up. This ride isn’t over just yet!!! . . .
• If I was you I get a big bottle. To drink. Ur going to
need it.
• So enjoy... What’s to come.
• [A]m about to pull the rug from rite under ur sexxy lil
feet!!!
28 UNITED STATES V. OSINGER
That weekend, Osinger made good on his threats. V.B.
got a call from an ex-boyfriend who told her that he had
received a “friend” request from what appeared to be a fake
Facebook account set up under her name (with a minor
spelling error). When V.B. accessed the Facebook page, she
was horrified by what she saw. Someone—Osinger, it turned
out—had posted over 30 photos of V.B., many of them
sexually explicit, organized into two albums titled “WHORE”
and “WHORE2.” Some of the photos showed V.B. topless or
bottomless. Others showed her partially or fully nude and
masturbating. Still others showed her performing oral sex.
The statements posted on the page, purportedly made by
V.B., included: “I like to go out and be the whore I am I uslly
get a job and fuck my bosses rite now I work for [company
name redacted] look me up pass my pix around . . . I just
move to [city redacted],” and “if you want video,, just send
me ur email.” Osinger sent “friend” requests to V.B.’s family
members and friends to encourage them to view the Facebook
page.
V.B. immediately called her boss to enlist his help in
taking the Facebook page down before any more of her
friends or family members saw it. During that call, V.B.’s
boss told her that one of her co-workers, who also happened
to be V.B.’s roommate, had just received a disturbing email
sent to his company account. The email, sent by Osinger,
stated that he knew the recipient was working with V.B.,
offered supposed “tips” on what to do if the recipient wanted
to sleep with V.B., and ended by saying, “if you want video
send a mesg back I got tons.” The email attached some of the
photos Osinger had posted on the Facebook page, depicting
V.B. partially or fully nude and performing oral sex. Osinger
later sent the same email, lewd photos included, to V.B.’s
boss and one of V.B.’s former co-workers in Chicago, before
UNITED STATES V. OSINGER 29
the company’s IT department blocked Osinger’s email
address.
After learning about the fake Facebook page and the
disturbing emails Osinger had sent to her co-workers, V.B.
was understandably distraught. As she testified at trial, “I
was scared. I did not know what else he was going to try to
do.” V.B. quickly sought and received a restraining order
against Osinger.
III
As these facts show, Osinger engaged in a course of
conduct that amounted to interstate stalking. It began in
Illinois when he harassed V.B. by repeatedly showing up at
her home and workplace, despite her efforts to avoid him. It
continued after she moved to California, initially through a
string of unwelcome and implicitly threatening text messages,
and then through a fake Facebook page and emails sent to
V.B.’s co-workers.
The text messages, emails, and Facebook page constitute
speech that, considered in isolation, might have been entitled
to First Amendment protection. I say “might” because the
notion that any of Osinger’s speech should receive full First
Amendment protection is certainly debatable. The text
messages quoted above were sent only to V.B., an unwilling
listener, with no apparent purpose other than to harass or
frighten her. See Eugene Volokh, One-to-One Speech vs.
One-to-Many Speech, Criminal Harassment Laws, and
“Cyberstalking,” 107 Nw. U. L. Rev. 731, 742–43 (2013).
They formed part of the basis for Osinger’s prosecution not
because of any expressive idea they communicated, see Saxe
v. State Coll. Area Sch. Dist., 240 F.3d 200, 208 (3d Cir.
30 UNITED STATES V. OSINGER
2001), but rather because of the “implicit threat of conduct”
they contained. Rodriguez v. Maricopa Cnty. Cmty. Coll.
Dist., 605 F.3d 703, 710 (9th Cir. 2010). Still, there is no
categorical exception to the First Amendment for harassing
or offensive speech, id. at 708, and it’s hard to say that the
text messages rise to the level of “true threats” under Virginia
v. Black, 538 U.S. 343, 359 (2003), the closest recognized
exception, given their content and the absence of any history
of violence between Osinger and V.B. With respect to the
emails and Facebook page, they don’t fall within any
currently recognized exception either; the Supreme Court has
left unresolved whether the First Amendment protects
unauthorized disclosure of intensely private facts about a
purely private figure. See Time, Inc. v. Hill, 385 U.S. 374,
383 n.7 (1967); cf. Snyder v. Phelps, 131 S. Ct. 1207, 1217
(2011) (suggesting that highly offensive speech on matters of
purely private concern might not be insulated from civil
liability). All of this is simply a long way of saying that we
have to assume Osinger engaged in at least some speech that
could be constitutionally protected.
None of that speech is entitled to constitutional protection
here, however, because all of it falls within the exception for
speech integral to criminal conduct. Osinger used the text
messages, emails, and Facebook page “as an integral part of
conduct in violation of a valid criminal statute,” Giboney,
336 U.S. at 498—namely, his ongoing campaign to harass
V.B. through repeated unwanted contacts. Unable to harass
her in person after she left Illinois, he used speech to continue
the campaign. See John B. Major, Note, Cyberstalking,
Twitter, and the Captive Audience: A First Amendment
Analysis of 18 U.S.C. § 2261A(2), 86 S. Cal. L. Rev. 117, 126
(2012). Because the “sole immediate object” of Osinger’s
speech was to facilitate his commission of the interstate
UNITED STATES V. OSINGER 31
stalking offense, that speech isn’t entitled to constitutional
protection. Giboney, 336 U.S. at 498.
What makes this a straightforward case is the fact that
Osinger committed the offense by engaging in both speech
and unprotected non-speech conduct. For the speech-
integral-to-criminal-conduct exception to apply, the conduct
need not have been criminal on its own; it’s enough if the
conduct and speech together “constituted a single and
integrated course of conduct, which was in violation of [a]
valid law.” Id. Here, the non-speech conduct consisted of in-
person harassment, which, together with the text messages,
emails, and Facebook page, violated § 2261A(2). In other
cases the non-speech conduct might consist of categorically
unprotected speech, like the extortionate threats in United
States v. Petrovic, 701 F.3d 847, 855 (8th Cir. 2012), or non-
communicative aspects of speech, like repeated unwanted
telephone calls that are harassing due to their sheer number
and frequency. See Gormley v. Dir., Conn. State Dep’t of
Probation, 632 F.2d 938, 941–42 (2d Cir. 1980).
Cases in which the defendant’s harassing “course of
conduct” consists entirely of speech that would otherwise be
entitled to First Amendment protection are less
straightforward. The Court in Giboney made clear that the
union’s picketing lost its First Amendment protection only
because the union was “doing more than exercising a right of
free speech or press.” 336 U.S. at 503. If a defendant is
doing nothing but exercising a right of free speech, without
engaging in any non-speech conduct, the exception for speech
integral to criminal conduct shouldn’t apply. Instead, when
pure speech is involved, the Court has suggested that the
government’s ability “to shut off discourse solely to protect
others from hearing it” depends on “a showing that
32 UNITED STATES V. OSINGER
substantial privacy interests are being invaded in an
essentially intolerable manner.” Cohen v. California,
403 U.S. 15, 21 (1971). It’s unclear whether this standard
would apply in a § 2261A prosecution in which the defendant
caused someone substantial emotional distress by engaging
only in otherwise protected speech. That is a question whose
resolution we wisely leave for another day.