Threatening Communications & Interstate Stalking Sean B. Hoar [email protected] 541-465-6792...

Threatening Communications Threatening Communications & Interstate Stalking& Interstate Stalking

Sean B. HoarSean B. Hoar

[email protected]

541-465-6792 (voice)541-465-6792 (voice)

Class OverviewClass OverviewI. I. The criminalization of threatening The criminalization of threatening

communications & cyberstalking.communications & cyberstalking.

II.II. 18 U.S.C. §§ 875(c) & 2261A. 18 U.S.C. §§ 875(c) & 2261A.

III.III. United States v. KammersellUnited States v. Kammersell

IV.IV. United States v. AlkhabazUnited States v. Alkhabaz

V.V. United States v. BowkerUnited States v. Bowker

VI.VI. U.S.S.G. §§ 2A6.1 & 2A6.2.U.S.S.G. §§ 2A6.1 & 2A6.2.

18 U.S.C. § 87518 U.S.C. § 875

This statute is often referred to as the This statute is often referred to as the “threatening communications” statute. “threatening communications” statute.

It generally prohibits the transmission of It generally prohibits the transmission of extortion or threatening communications through extortion or threatening communications through interstate commerce.interstate commerce.

Threatening communications include the threat Threatening communications include the threat of any injury to a person, property, or reputation.of any injury to a person, property, or reputation.

18 U.S.C. § 875(c)18 U.S.C. § 875(c)Threatening CommunicationsThreatening Communications

Text of statute:Text of statute:– Whoever transmits in interstate or foreign Whoever transmits in interstate or foreign

commerce any communication containing any commerce any communication containing any threat to kidnap any person or any threat to threat to kidnap any person or any threat to injure the person of another, shall be fined injure the person of another, shall be fined under this title or imprisoned not more than under this title or imprisoned not more than five years, or both.five years, or both.

Elements of 18 U.S.C. § 875(c)Elements of 18 U.S.C. § 875(c) Threatening Communications Threatening Communications

D must cause a transmission in interstate [or foreign] D must cause a transmission in interstate [or foreign] commerce; commerce; the communication must contain a threat – which the communication must contain a threat – which a reasonable person would take as a a reasonable person would take as a seriousexpression of an intention to inflict bodily harm seriousexpression of an intention to inflict bodily harm andand would perceive as being communicated to effect would perceive as being communicated to effect some change or achieve some goal some change or achieve some goal throughintimidationthroughintimidation, , United States v. AlkhabazUnited States v. Alkhabaz, 104 , 104 F.3d 1492, 1494 (1997);F.3d 1492, 1494 (1997);the threat must be a threat to injure [or kidnap] the the threat must be a threat to injure [or kidnap] the person of another. person of another.

United States v. KammersellUnited States v. Kammersell

FactsFacts:: A 19-year old defendant, Matthew A 19-year old defendant, Matthew Kammersell, sent an instant message containing a bomb Kammersell, sent an instant message containing a bomb threat to his girlfriend’s computer at the AOL service threat to his girlfriend’s computer at the AOL service center in Utah. His hope was that doing so would allow center in Utah. His hope was that doing so would allow her to leave work early so they could go on a date. He her to leave work early so they could go on a date. He was charged with sending a “threatening communication was charged with sending a “threatening communication in interstate commerce,” in violation of 18 U.S.C. § in interstate commerce,” in violation of 18 U.S.C. § 875(c).875(c).

IssuesIssues:: Is the jurisdictional element of 18 U.S.C. § Is the jurisdictional element of 18 U.S.C. § 875(c) met when both the sender (Kammersell) and the 875(c) met when both the sender (Kammersell) and the recipient (his girlfriend) are located in the same state? recipient (his girlfriend) are located in the same state? Does this message qualify as a “threatening Does this message qualify as a “threatening communication” when it was viewable only by his communication” when it was viewable only by his girlfriend? girlfriend?

United States v. KammersellUnited States v. Kammersell HoldingHolding:: The court relied on the plain language of the statute and held The court relied on the plain language of the statute and held

that the threat unquestionably traveled in interstate commerce and gave that the threat unquestionably traveled in interstate commerce and gave rise to federal jurisdiction. It made no difference whether the sender and rise to federal jurisdiction. It made no difference whether the sender and receiver were located in the same state or whether it was only viewable by receiver were located in the same state or whether it was only viewable by the defendant’s girlfriend. The court also dismissed the defendant’s the defendant’s girlfriend. The court also dismissed the defendant’s overbreadth challenge. overbreadth challenge.

Discussion Questions:Should it matter whether or not the defendant knew his IM would travel to the AOL servers in Virginia and then back to his girlfriend’s computer in Utah?The Tenth Circuit cited U.S. v. Kelner, a case where the defendant made a death threat on TV to kill Yasser Arafat. This message was broadcast over three states. Would the jurisdictional element be met if this message was broadcast on a local cable access channel?

United States v. AlkhabazUnited States v. Alkhabaz

Facts:Facts: The defendant, Abraham Jacob Alkhabaz, (also known as Jake The defendant, Abraham Jacob Alkhabaz, (also known as Jake Baker), was a student at the University of Michigan when he posted Baker), was a student at the University of Michigan when he posted several graphic stories on a Usenet news group describing a violent several graphic stories on a Usenet news group describing a violent sexual interest against women and girls. He also exchanged mails with sexual interest against women and girls. He also exchanged mails with an individual in Canada (Gonda) describing their shared violent sexual an individual in Canada (Gonda) describing their shared violent sexual interests. A federal grand jury charged him with five counts of violating interests. A federal grand jury charged him with five counts of violating 18 U.S.C. § 875(c). 18 U.S.C. § 875(c). Issue(s): Must a threat include both a mens rea

and an actus reus element? i.e. must a threat require not only that a reasonable person take the communication as a serious expression of an intent to inflict bodily harm, but must the communication also effect some change or achieve some goal through intimidation?

United States v. AlkhabazUnited States v. Alkhabaz Holding:Holding: The court discussed the various nature of The court discussed the various nature of

“threats” and held that a communication, even those “threats” and held that a communication, even those that offend our sensibilities, is not a threat unless it that offend our sensibilities, is not a threat unless it contains an actus reus element. It must be “conveyed contains an actus reus element. It must be “conveyed for the purpose of furthering some goal through the for the purpose of furthering some goal through the use of intimidation.” Alkhabaz’s communications use of intimidation.” Alkhabaz’s communications were held to not be threats and the dismissal of his were held to not be threats and the dismissal of his indictment was affirmed. There was a lengthy and indictment was affirmed. There was a lengthy and strongly worded dissent by Judge Krupansky.strongly worded dissent by Judge Krupansky.

Discussion Questions:

1. What was the dissenting judge’s purpose in including the actual Usenet postings? Did he accomplish his purpose?

2. Would the “actus reus” element be satisfied if it were proved that the “victim” of the communication, the woman who “shared the name” of the object of Alkhabaz’s communications, was intimidated as a result of the communication?

Sentencing Guidelines forSentencing Guidelines for 18 U.S.C. § 875(c) 18 U.S.C. § 875(c)

The sentencing guidelines recognize that The sentencing guidelines recognize that the seriousness of the conduct depends the seriousness of the conduct depends upon the defendant’s intent and the upon the defendant’s intent and the likelihood of the threat being carried out. likelihood of the threat being carried out.

The specific offense characteristics are The specific offense characteristics are intended to distinguish such cases. intended to distinguish such cases.


Threatening or Harassing CommunicationsThreatening or Harassing Communications

U.S.S.G. 2A6.1 (a) Base Offense Level:U.S.S.G. 2A6.1 (a) Base Offense Level:– 12; or 12; or – 6, if the defendant is convicted of an offense 6, if the defendant is convicted of an offense

under 47 U.S.C. 223(a)(1)(C), (D), or (E) that under 47 U.S.C. 223(a)(1)(C), (D), or (E) that did not involve a threat to injure a person or did not involve a threat to injure a person or property;property;

Sentencing Guidelines for Sentencing Guidelines for 18 U.S.C. § 875(c)18 U.S.C. § 875(c)

U.S.S.G. 2A6.1 (continued)U.S.S.G. 2A6.1 (continued)

(b) Specific Offense Characteristics(b) Specific Offense Characteristics– (1) If the offense involved any conduct (1) If the offense involved any conduct

evidencing an intent to carry out such threat, evidencing an intent to carry out such threat, increase by 6 levels.increase by 6 levels.

– (2) If the offense involved more than two (2) If the offense involved more than two threats, increase by 2 levels.threats, increase by 2 levels.

– (3) If the offense involved the violation of a (3) If the offense involved the violation of a court protection order, increase by 2 levels.court protection order, increase by 2 levels.


U.S.S.G. 2A6.1 (continued)U.S.S.G. 2A6.1 (continued)(b) Specific Offense Characteristics(b) Specific Offense Characteristics

** ** **– (4) If the offense resulted in (A) substantial disruption (4) If the offense resulted in (A) substantial disruption

of public, governmental, or business functions or of public, governmental, or business functions or services; or (B) a substantial expenditure of funds to services; or (B) a substantial expenditure of funds to clean up, decontaminate, or otherwise respond to the clean up, decontaminate, or otherwise respond to the offense, increase by 4 levels.offense, increase by 4 levels.

– (5) If (A) subsection (a)(2) and subdivisions (1), (2), (5) If (A) subsection (a)(2) and subdivisions (1), (2), (3), and (4) do not apply, and (B) the offense (3), and (4) do not apply, and (B) the offense involved a single instance evidencing little or no involved a single instance evidencing little or no deliberation, decrease by 4 levels.deliberation, decrease by 4 levels.

Text of 18 U.S.C. § 2261A(2)Text of 18 U.S.C. § 2261A(2)Cyber StalkingCyber Stalking

Whoever – Whoever – – with the intent--with the intent--

to kill or injure a person in another State or tribal jurisdiction or to kill or injure a person in another State or tribal jurisdiction or within the jurisdiction of the United States; orwithin the jurisdiction of the United States; orto place a person in another State or tribal jurisdiction, or to place a person in another State or tribal jurisdiction, or within jurisdiction of the United States, in reasonable fear of within jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to--the death of, or serious bodily injury to--

– (i) that person;(i) that person;– (ii) a member of the immediate family of that person; or(ii) a member of the immediate family of that person; or– (iii) a spouse or intimate partner of that person,(iii) a spouse or intimate partner of that person,

– uses the mail, uses the mail, any interactive computer serviceany interactive computer service, or any , or any facility of interstate or foreign commerce to engage in a facility of interstate or foreign commerce to engage in a course of conduct that places that person in course of conduct that places that person in reasonable fear of the death of, or serious bodily injury reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through to, any of the persons described in clauses (i) through (iii), shall be punished as provided in section 2261(b).(iii), shall be punished as provided in section 2261(b).

Maximum statutory penalties Maximum statutory penalties for 18 U.S.C. § 2261Afor 18 U.S.C. § 2261A

Cyber StalkingCyber StalkingLife imprisonment if death to the victim results;Life imprisonment if death to the victim results;20 years imprisonment if permanent disfigurement or life 20 years imprisonment if permanent disfigurement or life threatening bodily injury to the victim results;threatening bodily injury to the victim results;10 years imprisonment if serious bodily injury to the victim 10 years imprisonment if serious bodily injury to the victim results or if the offender uses a dangerous weapon during results or if the offender uses a dangerous weapon during the offense;the offense;The applicable penalty under sections 2241-2246 The applicable penalty under sections 2241-2246 (proscribing sexual abuse) if the offense would constitute (proscribing sexual abuse) if the offense would constitute an offense under those sections; andan offense under those sections; andFive (5) years imprisonment in any other caseFive (5) years imprisonment in any other caseAnd/or a $250,000 fineAnd/or a $250,000 fine

Definitions for 18 U.S.C. § 2261ADefinitions for 18 U.S.C. § 2261AInterstate StalkingInterstate Stalking

The term "bodily injury" means any act, The term "bodily injury" means any act, except one done in self-defense, that except one done in self-defense, that results in physical injury or sexual abuse.results in physical injury or sexual abuse.


The term "serious bodily injury” means The term "serious bodily injury” means bodily injury that involves – bodily injury that involves –

A substantial risk of deathA substantial risk of death

Extreme physical painExtreme physical pain

Protracted and obvious disfigurement; or Protracted and obvious disfigurement; or

Protracted loss or impairment of the functions of a Protracted loss or impairment of the functions of a bodily member, organ, or mental faculty; bodily member, organ, or mental faculty;


The term "course of conduct" means a The term "course of conduct" means a pattern of conduct composed of two (2) or pattern of conduct composed of two (2) or more acts, evidencing a continuity of more acts, evidencing a continuity of purpose.purpose.


The term "spouse or intimate partner" The term "spouse or intimate partner" includes--includes--– (A) for purposes of—(A) for purposes of—

** ** ** ** **

(ii) section 2261A, a spouse or former (ii) section 2261A, a spouse or former spouse of the target of the stalking, a person who shares a spouse of the target of the stalking, a person who shares a child in common with the target of the stalking, and a child in common with the target of the stalking, and a person who cohabits or has cohabited as a spouse with the person who cohabits or has cohabited as a spouse with the target of the stalking; andtarget of the stalking; and

– (B) any other person similarly situated to a spouse (B) any other person similarly situated to a spouse who is protected by the domestic or family violence who is protected by the domestic or family violence laws of the State or tribal jurisdiction in which the laws of the State or tribal jurisdiction in which the injury occurred or where the victim resides.injury occurred or where the victim resides.

Elements for 18 U.S.C. § 2261AElements for 18 U.S.C. § 2261AInterstate StalkingInterstate Stalking

D acts with the intent to kill or injure a person D acts with the intent to kill or injure a person or to place a person in reasonable fear of the or to place a person in reasonable fear of the death of, or serious bodily injury to--death of, or serious bodily injury to--

(i) that person;(i) that person;(ii) a member of the immediate family of that (ii) a member of the immediate family of that person; orperson; or(iii) a spouse or intimate partner of that person(iii) a spouse or intimate partner of that person

D uses the mail or any facility of interstate or D uses the mail or any facility of interstate or foreign commerce (the Internet) to engage in foreign commerce (the Internet) to engage in a course of conduct that places a person in a course of conduct that places a person in reasonable fear of the death of, or serious reasonable fear of the death of, or serious bodily injury to and of the persons listed bodily injury to and of the persons listed above. above.

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

Tina Knight worked for WKBN in Youngstown, OH

Tina Knight worked for WOWK TV station in West Virginia

United States v. BowkerUnited States v. BowkerHolding:Holding: The court engaged in a thorough analysis of each of The court engaged in a thorough analysis of each of

Bowker’s claims and dismissed each in turn. The Sixth Bowker’s claims and dismissed each in turn. The Sixth Circuit held that there was probable cause for his arrest Circuit held that there was probable cause for his arrest and that the indictment stated all of the required statutory and that the indictment stated all of the required statutory elements. The court responded to the overbreadth elements. The court responded to the overbreadth challenge by stating, “We fail to see how a law that challenge by stating, “We fail to see how a law that prohibits interstate travel with the intent to kill, injure, prohibits interstate travel with the intent to kill, injure, harass, or intimidate has a substantial sweep of harass, or intimidate has a substantial sweep of constitutionally protected content.” The vagueness constitutionally protected content.” The vagueness challenge also failed because it provided adequate notice challenge also failed because it provided adequate notice of the crime charged and because there was no need to of the crime charged and because there was no need to

define words like “harass” and “intimidate.”define words like “harass” and “intimidate.”

Discussion Questions:

1. What do you think of the sentencing court’s upward departure for “extreme psychological injury to the victim”?

Sentencing Guidelines Sentencing Guidelines for 18 U.S.C. § 2261Afor 18 U.S.C. § 2261A

Base Offense Level: 18Base Offense Level: 18Specific Offense CharacteristicSpecific Offense Characteristic– (1) If the offense involved one of the following aggravating factors: (1) If the offense involved one of the following aggravating factors:

(A) the violation of a court protection order; (B) bodily injury; (C) (A) the violation of a court protection order; (B) bodily injury; (C) possession, or threatened use, of a dangerous weapon; or (D) a possession, or threatened use, of a dangerous weapon; or (D) a pattern of activity involving stalking, threatening, harassing, or pattern of activity involving stalking, threatening, harassing, or assaulting the same victim, increase by 2 levels. If the offense assaulting the same victim, increase by 2 levels. If the offense involved more than one of these aggravating factors, increase by involved more than one of these aggravating factors, increase by 4 levels. 4 levels.

Cross ReferenceCross Reference– (1) If the offense involved the commission of another criminal (1) If the offense involved the commission of another criminal

offense, apply the offense guideline from Chapter Two, Part A offense, apply the offense guideline from Chapter Two, Part A (Offenses Against the Person) most applicable to that other (Offenses Against the Person) most applicable to that other criminal offense, if the resulting offense level is greater than that criminal offense, if the resulting offense level is greater than that determined above.determined above.

Questions?Questions?

Threatening Communications Threatening Communications & Interstate Stalking& Interstate Stalking

Sean B. HoarSean B. Hoar

[email protected]

541-465-6792 (voice)541-465-6792 (voice)

Threatening Communications & Interstate Stalking Sean B. Hoar [email protected] 541-465-6792...

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