In United States v. Fleury, No. 20-11037 (Dec. 16, 2021) (Wilson, Rosenbaum, Hull), the Court affirmed the defendant’s convictions for transmitting interstate threats and cyberstalking.

First, the Court rejected the defendant’s facial and as-applied First Amendment challenges to the cyberstalking statute.  Joining every circuit to address the issue, the Court held that the statute was not facially overbroad because the elements did not target expressive speech but rather unprotected conduct involving an intent to kill, injure, harass, or intimidate.  And the Court rejected the defendant’s as-applied challenge because his conduct did not involve a matter of public concern but rather “true threats” to the families of the victims of the Parkland shooting.

Second, the Court held that the indictment sufficiently charged the cyberstalking counts because it tracked the statutory language and otherwise provided adequate notice of the charges.

Third, the Court held that the evidence was sufficient for a reasonable jury to find that the defendant had the subjective intent to transmit interstate threats and to cyberstalk the victims.  Although the defense expert testified about the defendant’s autism, the jury heard from the government’s competing expert and was free to weigh assess the experts’ credibility as it saw fit.

Fourth, the Court held that the district court did not plainly err by failing to sua sponte preclude the government from introducing evidence relating to the defendant’s attraction to serial killers, because it helped the jury understand the motive for his actions, and the instructions ensured that the jury could convict only for the crimes with which he was charged.

Finally, as to the cyberstalking instruction, the Court rejected the defendant’s argument that the district court was required to instruct the jury that the government had to prove his subjective intent to communicate a true threat, since the plain language of the statute already required proof that the defendant intended to harass or intimidate.  And the Court found no abuse of discretion when the district court modified the defendant’s theory of defense instruction because, while his theory contained a correct definition of a “true threat,” it was not the only correct definition from the Supreme Court’s decision in Virginia v. Black, and the court’s instructions as a whole adequately covered the defendant’s subjective-intent theory of defense.