United States v. Bowker

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 11, 2004
• Docket: 02-4086
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Bowker No. 02-4086 ELECTRONIC CITATION: 2004 FED App. 0178P (6th Cir.) File Name: 04a0178p.06 UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X CLAY, Circuit Judge. Defendant-Appellant Erik S. Bowker appeals his convictions and sentence for one count of Plaintiff-Appellee, - interstate stalking, in violation of 18 U.S.C. § 2261A(1); one - - No. 02-4086 count of cyberstalking, in violation of 18 U.S.C. § 2261A(2); v. - one count of theft of mail, in violation of 18 U.S.C. § 1708; > and one count of telephone harassment, in violation of 47 , U.S.C. § 223(a)(1)(C). Bowker also appeals the district ERIK BOWKER, - Defendant-Appellant. - court’s failure to rule on his motion to return seized property and the district court’s enhancement of his sentence based on N extreme psychological harm to the victim. For the reasons Appeal from the United States District Court that follow, we AFFIRM Bowker’s convictions and sentence, for the Northern District of Ohio at Cleveland. but REMAND to the district court for a ruling on Bowker’s No. 01-00441—John M. Manos, District Judge. motion to return seized property.

Submitted: March 10, 2004 I Facts Decided and Filed: June 11, 2004 A. Procedural History Before: MARTIN and CLAY, Circuit Judges; MILLS, District Judge.* On August 28, 2001, United States Magistrate Judge George J. Limbert signed a criminal complaint charging Erik. _________________ S. Bowker (“Bowker”) with one count of telephone harassment in violation of 47 U.S.C. § 223(a)(1)(C). Bowker COUNSEL was arrested on August 29, 2001. On September 7, 2001, the magistrate judge held a preliminary examination and ON BRIEF: Jay Milano, MILANO & CO., Rocky River, detention hearing for Bowker. The magistrate judge Ohio, for Appellant. Edward F. Feran, ASSISTANT determined that probable cause for Bowker’s arrest had been established, and he ordered Bowker detained.

* On September 25, 2001, a federal grand jury returned a The Hon orable R ichard M ills, United States District Judge for the four-count indictment against Bowker. Bowker was charged Central District of Illinois, sitting by designation.

1 No. 02-4086 United States v. Bowker 3 4 United States v. Bowker No. 02-4086

with one count of interstate stalking, in violation of 18 U.S.C. number of emails relating to Knight. The emails were sent § 2261A(1); one count of cyberstalking, in violation of from several different email addresses and purported to be 18 U.S.C. § 2261A(2); one count of theft of mail, in violation from an individual variously identified as “User x,” Eric of 18 U.S.C. § 1708; and one count of telephone harassment, Neubauer, Karen Walters, and “BB.” Several of the emails in violation of 47 U.S.C. § 223(a)(1)(C). attached photographs with verbal captions. One caption referred to Knight being shot with a pellet gun, and another Bowker filed several pretrial motions which are the subject email said, “Thanks for my daily Tina Knight fix. Thanks for of this appeal – a pro se motion to represent himself, a motion helping me get my nuts off,” and another said “More Tina to dismiss Counts 1, 2, and 4 of the indictment, a motion to Knight, that is what I want and need.” After receiving sever Count 3 from the indictment, a motion to suppress approximately nine of these types of email, WKBN’s news evidence, and a pro se motion for return of seized property director took them to the station’s general manager. They and items, pursuant to Rule 41 of the Federal Rules of then contacted Special Agent Deane Hassman of the FBI. Criminal Procedure. The district court denied all of the Soon thereafter, Knight was shown the emails, and she was foregoing motions, except for the motion to return seized stunned and frightened. property, on which the district court never ruled. On March 26, 2002, after the denial of Bowker’s pro se motion to FBI Agent Hassman began investigating the Tina Knight represent himself, Bowker’s counsel moved to withdraw from emails in July, 2000. Hassman was concerned about the case, and Bowker signed a separate statement asking the Knight’s personal safety based on the content of the emails. court to grant the motion and assign him new counsel. The One of the emails that concerned Hassman stated, “I’m not district court granted the motion and assigned Bowker new the type of obsessed viewer that hides in the bushes near your counsel. home to watch you come home from work, but we shall see. That may actually be fun.” Another disturbing email stated, Bowker’s jury trial commenced on June 3, 2002. On June in part, “Dear Ms. Knight. Now I’m really pissed that you 6, 2002, the jury returned verdicts of guilty against Bowker were looking even cuter than normally. You fucked up a little on all counts. On September 5, 2002, the government moved bit and here I am watching on this black and white thrift store for an upward departure from the sentencing guidelines based TV. Cute, cute, cute. I bet you were a Ho at Ohio University on the victim’s extreme psychological harm. On September in Athens, doing chicks and everything. Wow.” 10, 2002, the district court sentenced Bowker to 96 months’ incarceration, three years of supervised release, and a $400 On July 25, 2000, Hassman sent emails to the various email special assessment. In assessing the term of incarceration, the addresses on the correspondence pertaining to Knight. district court granted the government’s motion for an upward Hassman asked the sender of the emails to contact him so that departure. he could determine the sender’s intent. Within 24 to 48 hours, Hassman received a telephone call from an individual B. Substantive Facts who identified himself as Erik Bowker. Hassman wanted to set up a meeting with Bowker so Hassman could positively In March, 2000, Tina Knight began working as a part-time identify the sender of the emails and also ask him to cease and general assignment reporter at WKBN Television in desist from contacting Knight. They arranged to meet at the Youngstown, Ohio. WKBN has a general email account for public library in Youngstown, but Bowker never showed. most employees, and in June, 2000, WKBN received a No. 02-4086 United States v. Bowker 5 6 United States v. Bowker No. 02-4086

A few weeks later, Knight began receiving hand-written served at Knight’s home address in West Virginia. Bowker’s notes at WKBN, the majority of which were signed by “Doug lawsuit accused Knight of stalking him. Agent Hassman Wagner.” By September, the letters were arriving at the attended a status conference for the lawsuit on March 16, station almost every couple of days. One of the letters 2001, so that he could make face-to-face contact with included the phrase, “All this week I will be playing the role Bowker. After meeting Bowker at the hearing and of Doug Wagner.” A letter dated August 9, 2000 was signed confirming that Bowker had been sending the unsolicited “Chad Felton”; stated, “I think you are a super babe”; and correspondence to Knight, Hassman told Bowker that the included a necklace. The return addresses on the letters were correspondence was unwelcome and might be a violation of one of two P.O. Boxes registered to Erik Bowker or his federal law. Hassman advised Bowker that if the conduct mother. continued, it might result in his arrest. Bowker responded that he had a First Amendment right to engage in that type of Knight left her employment at WKBN in November, 2000 conduct. Nevertheless, during the meeting, Bowker wrote to take a position at WOWK CBS13 in Charleston, West and signed a note stating, “I understand that Tina M. Knight Virginia. WKBN did not inform the general public of wishes all further contact with her or any family member to Knight’s new location. stop and I agree to do so, pursuant to conversation with Deane Hassman, special agent, Federal Bureau of Investigation ….” In late December, 2000, Knight’s parents, who reside in Bowker also agreed to voluntarily dismiss his lawsuit against Medina, Ohio, received a card and a handwritten note at their Knight. home. The card purported to be from “Kathryn Harris.” The letter read, “Dear Tina Knight: I am Kathryn Harris today. I Despite Bowker’s March, 16, 2001 agreement to cease and didn’t want your parents asking you a lot of questions, nor did desist from any further contact with Knight, on that very same I want to attract a lot of attention to you. My letters to you day, Bowker mailed a letter to Knight. Bowker also are all online at yahoo.com in a standard mail account. It is continued to attempt telephone contact with Knight. Between all explained there so please check in and read what I have January 26 and August 29, 2001, Bowker made 146 telephone written.… The E-mail address is tinahatesme@yahoo.com.” calls from his cell phone to WOWK CBS 13, where Knight Agent Hassman visited the email address to check if any worked. Bowker also made 16 calls to Knight’s personal letters had been sent to the email address mentioned in the residential telephone in West Virginia between August 11 and letter. Hassman discovered that an email had been sent 28, 2001. Knight’s number was unlisted and unpublished. December 25, 2000. At the end of the email, the name “Doug According to telephone records, each of the 16 calls placed to Wagner” was typed. The email read, in part, “I told you I Knight’s home were preceded by *67, which enables a caller would not contact you by mail anymore but I am sorry, I am to block identification of his telephone number on the in agony. I’m thinking about you all the time. You really are recipient’s caller identification display. Bowker also called my dream girl.… I am blinded with affection for you. I did Knight’s co-worker and a neighbor. not ask for this. Nope, it’s all your fault.… Please don’t cat dance on my emotions by failing to respond to me at all.” As the telephone calls to Knight’s television station persisted through the summer of 2001, Agent Hassman In February, 2001, Bowker filed a lawsuit against Knight believed it was important to capture Bowker’s voice on tape, in the Mahoning County Common Pleas Court. Knight’s so Hassman provided Knight with a recording device at the social security number was stated in the complaint, which was television station. On June 12, 2001, Knight recorded a 45 No. 02-4086 United States v. Bowker 7 8 United States v. Bowker No. 02-4086

minute telephone call from Bowker who, at one point, I don’t even know why I’m nice to you ever at all, you identified himself as “Mike.” During the conversation, and your fucked-up friend should not even be working in Bowker referred to Knight’s neighbors, her family members the media. You know you gotta mother-fucking realize and her social security number. He also indicated he might be there’s like 50 percent men in this country and you better watching Knight with his binoculars. Knight provided the mother-fucking learn that you’re going to have to deal tape to the FBI and never spoke to Bowker again on the with us sometime.… telephone. Well, it looks like nobody is going to answer me if Tina Knight is okay, so I’m gonna take the 1:00 a.m. bus On July 16, 2001, Knight received a letter at the television out of Columbus, Ohio and come down there and see for station. In the letter, Bowker referred to Knight’s parents and myself. Okay, I’ll be there about 6:00 a.m. Bye. stated several times, “You do not hang up on me.” The letter also crassly referred to Knight’s car, threatened to file a Knight testified that these messages made her afraid to leave mechanic’s lien on her car and her co-worker’s car, accused the house everyday, and she feared that Bowker might try to Knight and her colleague of being “fuck-ups, assholes and rape her. She gave the answering machine recordings to the seriously emotional and mentally unbalanced,” and contained FBI. numerous sexual references. The letter stated that Bowker would be contacting Knight’s neighbors, pointed out that Bowker was arrested on August 29, 2001 at a self-storage Knight had not registered her car in West Virginia, and facility in Youngstown where he kept some of his concluded with the words, “So bye-by, fuck you, you are an possessions. Among other things recovered from the storage asshole and a sociopath and an embarrassment to mothers facility, Bowker’s car and other locations, were a police everywhere sir.… Adios, Eric.… Smooch, Smooch.” scanner set to the frequency of the Youngstown Police Department, a paper with scanner frequencies from the On August 10, 2001, Knight received a certified letter Dunbar, West Virginia Police Department, letters bearing the mailed to her residence in West Virginia. Accompanying the name “Chad Felton,” a credit report for Tina Knight, Knight’s letter were numerous photographs of Bowker at various birth certificate, a map of Dunbar, West Virginia, Greyhound locations in West Virginia, Knight’s home state. The letter bus schedules with West Virginia routes, and photos taken by stated, in part, “Send me an E-Mail address. It keeps me long Bowker during a West Virignia trip on July 11, 2001, which distance, you know what I mean.” Knight forwarded the included pictures of Knight’s place of work, her car and CBS letter and the photographs to the FBI. Bowker’s credit card news trucks. The FBI also discovered that Bowker had in his statement later revealed purchases from a Kmart and a Kroger possession a Discover Card credit card bill addressed to Tina near Knight’s place of employment and residence in West Knight in West Virginia. Knight never received that Virginia between June 12 and July 30, 2001. statement in the mail. In August 2001, Bowker left a series of messages on II Knight’s answering machine asking that Knight or Knight’s Probable Cause for Bowker’s Arrest friend call him back, which did not occur. Among other things, Bowker stated: Bowker argues that the magistrate judge erroneously found that there was probable cause to issue a warrant for his arrest premised on an alleged violation of 47 U.S.C. No. 02-4086 United States v. Bowker 9 10 United States v. Bowker No. 02-4086

§ 2223(a)(1)(C), which prohibits telephone harassment. He Knight in which Bowker did not identify himself, including further argues that trial court committed the same error when a conversation with Knight on June 12, 2001, and messages it denied Bowker’s motion to suppress evidence obtained left on Knight’s answering machine on August 17-19 and 25- through the arrest warrant. We reject Bowker’s arguments for 26, 2001. Agent Hassman’s affidavit also provided extensive the reasons stated below. background details on Bowker’s campaign of harassment against Knight via emails, letters and telephone calls. A. Standard of Review Bowker concedes that the magistrate judge could have The Court considers the evidence that the warrant-issuing found probable cause on the elements of using the telephone magistrate judge had before him only to ensure that the with the intent to annoy, abuse, threaten or harass. He argues, magistrate had a substantial basis for concluding that probable however, that the magistrate had no basis to find the element cause existed. See United States v. Jones, 159 F.3d 969, 973 of failing to disclose identity during the telephone calls (6th Cir.1998) (citing Illinois v. Gates, 462 U.S. 213, 238-39 because Knight, the recipient of those calls, allegedly (1983)). The Court defers to findings of probable cause made recognized his voice, making it unnecessary for him to state by a magistrate, and will not set aside such findings unless his name. See J.A. 581 (testimony of Agent Hassman: they were arbitrarily made. United States v. Brown, 147 F.3d “There came a point in time where Tina [Knight] began to 477, 484 (6th Cir.1998). When reviewing a district court's recognize a certain voice on the phone, which she believed to denial of a motion to suppress, the Court reviews the district be Eric [sic] Bowker.”). Bowker points to the fact that during court's findings of fact for clear error and its conclusions of the June 12, 2001 telephone conversation with Knight, she law de novo. Id. referred to Bowker as “Eric” [sic]. B. Analysis Bowker’s argument is flawed in several respects. His argument does not address the numerous occasions when At the preliminary hearing, the government brought a one- Bowker called Knight and no conversation ensued and no count criminal complaint against Bowker for the crime of messages were left or her answering machine. The evidence telephone harassment, in violation of 47 U.S.C. before the magistrate showed that Bowker used a caller § 223(a)(1)(C). That section provides for a fine, identification blocking feature (*67) to place these calls, imprisonment, or both for anyone, who in interstate or foreign thereby concealing his identity. Since the telephone communications: harassment law prohibits calls made with the intent to harass or annoy “whether or not conversation or communication makes a telephone call or utilizes a telecommunications ensues,” there was probable cause to find that Bowker had device, whether or not conversation or communication concealed his identity in those instances. Knight’s alleged ensues, without disclosing his identity and with intent to ability to identify Bowker’s voice was irrelevant. annoy, abuse, threaten, or harass any person at the called number or who receives the communications. Bowker responds that his use of the *67 feature should be legally irrelevant, since it penalizes him for placing telephone 47 U.S.C.A. § 223. Incorporated into the criminal complaint calls to numbers with a caller identification service. He was the affidavit of FBI Agent Deane Hassman, who alleged contends that criminal liability should not hinge on what that Bowker had made numerous telephone calls to Tina telephone features a person pays for each month to the local No. 02-4086 United States v. Bowker 11 12 United States v. Bowker No. 02-4086

phone company. Bowker, however, is not being penalized establish (1) the allegation of perjury or reckless disregard based on the telephone features to which his victim “by the defendant by a preponderance of the evidence” and subscribed, but for using the *67 feature in conjunction with (2) “with the affidavit’s false material set to one side, the his intent to annoy or harass Knight. Had he lacked that affidavit’s remaining content is insufficient to establish intent, no criminal liability would have attached. probable cause, [such that] the search warrant must be voided and the fruits of the search’ suppressed.” United States v. Even assuming that Knight was able to identify Bowker’s Graham, 275 F.3d 490, 505 (6th Cir .2001) (quoting Franks voice, the magistrate judge properly found probable cause to v. Delaware, 438 U.S. 156, 155-56 (1978)). Bowker has not believe that Bowker had not disclosed his identity during the established that Agent Hassman perjured himself in his June 12, 2001 conversation in which he mis-identified affidavit in support of the criminal complaint or at the himself as “Mike” and in August, 2001, when he left suppression hearing. At most, he quibbles with Hassman’s messages on Knight’s answering machine without providing characterization of Bowker’s letters and emails as sexual and any name at all. On its face, the telephone harassment statute threatening. Hassman’s characterization, however, largely is makes it illegal to place a call, with the intent to annoy, abuse a matter of opinion, and the content of Bowker’s threaten or harass, whenever the caller fails to identify communications speak for themselves. Thus, there is no himself. Since Bowker concedes that the magistrate judge indication that the magistrate judge was misled in reaching its could have found probable cause that he had the requisite probable cause finding. Accordingly, the district court did intent, it was Bowker’s provision of a false name and/or his not err in denying Bowker’s motion to suppress evidence. failure to identify himself – not an erroneous judicial determination about the victim’s recognition of his voice – III that led to the issuance of his arrest warrant. Motion to Dismiss Counts 1, 2 and 4 of the Indictment Bowker similarly argues that the district court, which Bowker argues that the district court erred in failing to supervised the trial proceedings, erred in denying his motion dismiss Counts 1 (interstate stalking), 2 (cyberstalking) and to suppress evidence derived from his arrest for telephone 4 (telephone harassment) of the indictment on the ground that harassment. In addition to his argument that the evidence did the indictment inadequately alleged the elements of the not support a finding of probable cause to believe that offenses charged, and on the ground that the statutes that the Bowker had failed to disclose his identity (discussed above), indictment alleged he violated are unconstitutionally vague Bowker argues that the district court erred in ruling that FBI and overbroad. We review the denial of a motion to dismiss agent Hassman did not intentionally mislead or omit crucial de novo. United States v. Maney, 226 F.3d 660, 663 (6th Cir. material facts in his affidavit supporting probable cause. 2000). For the reasons that follow, we affirm the decision of Bowker argues that he showed, by a preponderance of the the district court. evidence, materially false representations and omissions by Agent Hassman, and that absent those misrepresentations, A. Sufficiency of the Indictment probable cause would not have been found. Under the Notice Clause of the Sixth Amendment, a To prevail on a motion to suppress based on allegations of criminal defendant has the right “to be informed of the nature intentional misrepresentation by a law enforcement officer in and cause of the accusation” against him. U.S. CONST . the course of obtaining an arrest warrant, Bowker must amend. VI. In addition, the Indictment Clause of the Fifth No. 02-4086 United States v. Bowker 13 14 United States v. Bowker No. 02-4086

Amendment requires that a defendant be charged with only Count1 (interstate stalking)1, Count 2 (cyberstalking)2 and those charges brought before the grand jury. U.S. CONST . Count 4 (telephone harassment)3 track the language of the amend. V. An indictment satisfies these constitutional requirements “if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against 1 Count 1 of the indictment charges Bowker with interstate stalking, which he must defend, and, second, enables him to plead an in violation of 18 U.S.C. § 226 1A(1). That section penalizes whoever: acquittal or conviction in bar of future prosecutions for the same offense.” Maney, 226 F.3d at 663 (citing Hamling v. travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or United States, 418 U.S. 87, 117 (1974); Russell v. United enters or leav es Indian country, with the intent to kill, injure, States, 369 U.S. 749, 763-64 (1962); United States v. harass, or intimidate another person, and in the course of, or as Sturman, 951 F.2d 1466, 1478-79 (6th Cir.1991)). “To be a result of, such travel places that person in reasonable fear of legally sufficient, the indictment must assert facts which in the death of, or serious bodily injury to, that person, a member law constitute an offense; and which, if proved, would of the imme diate family (as defined in section 115) of that person, or the spouse or intimate partner of that person. establish prima facie the defendant’s commission of that crime.” Id. (quoting United States v. Superior Growers 2 Count 2 of the indictment charges Bo wker w ith cyberstalking, in Supply, Inc., 982 F.2d 173, 177 (6th Cir.1992)). violation of 18 U.S.C. § 22 61A(2). T hat section penalizes whoever:

“An indictment is usually sufficient if it states the offense with the intent-- using the words of the statute itself, as long as the statute fully (A) to kill or injure a person in another State or tribal and unambiguously states all the elements of the offense.” jurisdiction or within the special maritime and United States v. Landham, 251 F.3d 1072, 1079 (6th Cir. territorial jurisdiction of the United States; or (B) to plac e a pe rson in another State or tribal 2001) (citing Hamling, 418 U.S. at 117; United States v. jurisdiction, or within the special maritime and Monus, 128 F.3d 376, 388 (1997)). The Supreme Court has territorial jurisdiction of the United States, in cautioned, however, that while “the language of the statute reaso nable fear of the death of, or serious bodily injury may be used in the general description of the offense, …it to-- must be accompanied with such a statement of the facts and (i) that person; (ii) a member of the immediate family (as circumstances as will inform the accused of the specific defined in section 115) of that person; or offense, coming under the general description, with which he (iii) a spouse or intimate partner of that is charged.” Hamling, 418 U.S. at 117-18 (internal quotation person, marks and citation omitted). “‘Courts utilize a common sense uses the mail or any facility of interstate or foreign comm erce to construction in determining whether an indictment engage in a course of cond uct that places that person in reasonable fear of the death of, or serious bodily injury to, any sufficiently informs a defendant of an offense.’” Maney, 226 of the persons described in clauses (i) through (iii). F.3d at 663 (quoting Allen v. United States, 867 F.2d 969, 971 (6th Cir.1989)). 3 Count 4 of the indictment charges Bowker with telephone harassment, in violation of 47 U.S.C. § 223 (a)(1)(C). That section penalizes whoever:

(1) in interstate or foreign communications–

(C) makes a telephone call or utilizes a telecommunications No. 02-4086 United States v. Bowker 15 16 United States v. Bowker No. 02-4086

relevant statutes. Count 1 alleges that, between July 10 and threatening statement must be viewed from the objective July 30, 2001, Bowker knowingly and intentionally traveled perspective of the recipient, which frequently involves the across the Ohio state line with the intent to injure, harass, and context of the parties’ relationship…, it is incumbent on the intimidate Tina Knight, and as a result of such travel placed Government to make that context clear in such an indictment, Knight in reasonable fear of death or serious bodily injury, in unless the alleged threat is direct”). violation of 18 U.S.C. § 2261A(1). Count 2 alleges that between December 25, 2000 and August 18, 2001 Bowker, Landham is distinguishable, however. There, the Court located in Ohio, knowingly and repeatedly used the internet held that the indictment failed to sufficiently allege a to engage in a course of conduct that intentionally placed kidnaping threat because the indictment was missing several Knight, then located in West Virginia, in reasonable fear of elements of the offense, specifically, a communication death or serious bodily injury, in violation of 18 U.S.C. containing a threat and a threat to kidnap. Id. at 1082. The § 2261A(2). Count 4 alleges that between June 12, 2001, and indictment failed to acknowledge that the defendant had been August 27, 2001, Bowker, located in Ohio, knowingly made in a custody battle with his ex-wife over their daughter and, telephone calls, whether or not conversation or therefore, the defendant’s obscure statements like “I’m going communication ensued, without disclosing his identity and to get her” were either unreasonably perceived to be with the intent to annoy, abuse, threaten and harass Knight, in kidnaping threats and, even if the alleged threat had been violation of 47 U.S.C. § 223(a)(1)(C). Because the carried out, it would not have constituted a crime as a matter indictment stated all of the statutory elements of the offenses, of substantive law. Id. at 1081-83. The Court further held and because the relevant statutes state the elements that the indictment failed to sufficiently allege a threat of unambiguously, the district court properly denied Bowker’s bodily harm, because the statement charged in the indictment motion to dismiss Counts 1, 2 and 4 of the indictment. The referred to past conduct of the defendant, not present or future indictment’s reference to the specific dates and locations of conduct, and, in any event, did not mention a threat to inflict the offenses, as well as the means used to carry them out bodily harm. Id. at 1082-83. Bowker’s indictment, by (travel, internet, telephone), provided Bowker fair notice of contrast, did not contain similar deficiencies. All of the the conduct with which he was being charged. statutory elements of the prohibited conduct were properly alleged, including the intent to cause a reasonable fear of Relying on the Landham case, supra, Bowker argues that death or serious bodily harm. And unlike the parties involved the indictment was defective because it does not charge him in Landham, whose custody battle was highly relevant to the with making direct threats against Knight and therefore charged conduct, Bowker’s relationship with Knight had no should have contained a statement of facts and circumstances relevant bearing on the alleged illegality of his conduct. We surrounding the alleged indirect threats he made against her, therefore reject Bowker’s challenge to the sufficiency of the such as an explanation of the parties’ relationship. See indictment. Landham, 251 F.3d at 1080 (holding “because the alleged B. Overbreadth Challenge According to the Supreme Court, imprecise laws can be device, whether or not conversation or com munication ensues, attacked on their face under two different doctrines – without disclosing his identity and with intent to annoy, abuse, overbreadth and vagueness. City of Chicago v. Morales, 527 threaten, or harass any person at the called number or who U.S. 41, 529 (1999). The “overbreadth doctrine is a limited receives the communications. No. 02-4086 United States v. Bowker 17 18 United States v. Bowker No. 02-4086

exception to the traditional standing rule that a person to and to be “annoying” to passersby. Id. at 611. The Court whom a statute may constitutionally be applied may not struck down the ordinance, reasoning that it was challenge that statute on the basis that it may conceivably be “unconstitutionally broad because it authorizes the applied in an unconstitutional manner to others not before the punishment of constitutionally protected conduct.” Id. at 614. court.” Staley v. Jones, 239 F.3d 769, 784 (6th Cir. 2001) (citations omitted). However, “overbreadth scrutiny Coates is distinguishable. First, the focus of the telephone diminishes as the behavior regulated by the statute moves harassment statute is not simply annoying telephonic from pure speech toward harmful, unprotected conduct.” Id. communications. It also prohibits abusive, threatening or at 785. “‘[P]articularly where conduct and not merely speech harassing communications. Thus, the thrust of the statute is is involved, we believe that the overbreadth of a statute must to prohibit communications intended to instill fear in the not only be real, but substantial as well, judged in relation to victim, not to provoke a discussion about political issues of the statute's plainly legitimate sweep.’” Id. (quoting the day. See United States v. Lampley, 573 F.2d 783, 787 (3d Broadrick v. Oklahoma, 413 U.S. 601, 615-161 (1973)). Cir. 1978) (holding that in enacting the telephone harassment statute, “Congress had a compelling interest in the protection Bowker has provided absolutely no argument as to how of innocent individuals from fear, abuse or annoyance at the 18 U.S.C. § 2261A, which prohibits interstate stalking and hands of persons who employ the telephone, not to cyberstalking, is facially overbroad, merely asserting that the communicate, but for other unjustifiable motives”) (citations statute “reaches large amounts of protected speech and omitted). Second, the telephone harassment statute operates conduct” and “potentially targets political or religious in a distinctly different realm of communication than the speech.” We fail to see how a law that prohibits interstate ordinance in Coates, which governed the manner in which travel with the intent to kill, injure, harass or intimidate has a individuals could assemble and communicate in the open on substantial sweep of constitutionally protected conduct. public property. Persons who find sidewalk speech annoying 18 U.S.C. § 2261A(1). The same is true with respect to the usually are not being singled out by the speaker and, in any prohibition of intentionally using the internet in a course of event, have the option of ignoring that speech by walking conduct that places a person in reasonable fear of death or away or taking a different route. Because the sidewalk seriously bodily injury. 18 U.S.C. § 2261A(2). It is difficult speaker is operating in the open, annoyed listeners have little to imagine what constitutionally-protected political or reason to fear for their safety and can readily identify and religious speech would fall under these statutory prohibitions. confront the speaker if they so choose. Not so with Most, if not all, of these laws’ legal applications are to individuals receiving unwelcome, anonymous telephone calls. conduct that is not protected by the First Amendment. Thus, Call recipients have to deal with much more inconvenience to Bowker has failed to demonstrate how 18 U.S.C. § 2261A is avoid the speech (e.g., changing telephone numbers or using substantially overbroad. a call-screening service); these calls usually are targeted toward a particular victim and are received outside of a public We also reject Bowker’s argument as to the purported forum (e.g., the home or the workplace); and, because the overbreadth of the telephone harassment statute, 47 U.S.C. caller does not identify himself, the speech is more likely to § 223(a)(1)(C). Bowker relies on the Supreme Court’s instill fear in the listener and, at a minimum, makes it more decision in Coates v. City of Cincinnati, 402 U.S. 611 (1971), difficult for the listener to confront the caller. Accordingly, which involved a city ordinance that made it a criminal the domain of prohibited speech is far more circumscribed, offense for three or more persons to assemble on a sidewalk and the government’s interest in protecting recipients of the No. 02-4086 United States v. Bowker 19 20 United States v. Bowker No. 02-4086

speech is far more compelling, under the telephone public that are sufficient to guard against the arbitrary harassment statute compared to the city ordinance at issue in deprivation of liberty interests.” Morales, 527 U.S. at 52 Coates. (citing Kolender v. Lawson, 461 U.S. 352, 358 (1983)). Vagueness may invalidate a criminal statute if it either We acknowledge that the telephone harassment statute, if (1) fails “to provide the kind of notice that will enable interpreted to its semantic limits, may have unconstitutional ordinary people to understand what conduct it prohibits” or applications. For example, if Bowker had been charged with (2) authorizes or encourages “arbitrary and discriminatory placing anonymous telephone calls to a public official with enforcement.” Id. at 56 (citing Kolender, 461 U.S. at 357). the intent to annoy him or her about a political issue, the “It is established that a law fails to meet the requirements of telephone harassment statute might have been the Due Process Clause if it is so vague and standardless that unconstitutional as applied to him. See United States v. Popa, it leaves the public uncertain as to the conduct it prohibits....” 187 F.3d 672, 677-78 (D.C. Cir. 1999) (holding that Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966). telephone harassment statute was unconstitutional as applied to defendant who had placed seven calls to a U.S. Attorney to The stalking and telephone harassment statutes charged in complain about his treatment by the police and the Bowker’s indictment provide sufficient notice of their prosecutor’s conduct of a case against him). But Bowker was respective prohibitions because citizens need not guess what not so charged. His calls were predominately, if not terms such as “harass” and “intimidate” mean. This Court’s exclusively, for the purpose of invading his victim’s privacy decision in Staley v. Jones, supra, is instructive. That case and communicating express and implied threats of bodily involved a habeas corpus review of a conviction for stalking harm. This type of speech is not constitutionally protected. under a Michigan law that defines stalking as “a willful Landham, 251 F.3d at 1080. But the fact that application of course of conduct involving repeated or continuing the telephone harassment statute may be unconstitutional in harassment of another individual that would cause a certain instances does not warrant facial invalidation. See reasonable person to feel terrorized, frightened, intimidated, Parker v. Levy, 417 U.S. 733, 760 (1974) (facial invalidation threatened, harassed, or molested and that actually causes the not appropriate when the remainder of the statute “covers a victim to feel terrorized, frightened, intimidated, threatened, whole range of easily identifiable and constitutionally harassed, or molested.” Mich. Comp. Laws Ann. proscribable conduct”); Staley, 239 F.3d at 786-87 (holding § 750.411i(e). Michigan law defines “harassment” as that “several examples of speech or expressive conduct that “conduct directed toward a victim that includes, but is not could conceivably be restricted under the statute” did not limited to, repeated or continuing unconsented contact that render anti-stalking statute unconstitutional). Whatever would cause a reasonable individual to suffer emotional overbreadth exists in the statute “can be cured on a case-by- distress and that actually causes the victim to suffer emotional case basis.” Staley, 239 F.3d at 787 (citing Broadrick, 413 distress.” Id. § 750.411i(d). Expressly excluded from the U.S. at 615-16). No cure is necessary in this case. definition of “harassment” is “constitutionally protected activity or conduct that serves a legitimate purpose.” Id. This C. Vagueness Challenge Court rejected the petitioner’s vagueness challenge to the Michigan statute, reasoning as follows: “[E]ven if an enactment does not reach a substantial amount of constitutionally protected conduct, it may be impermissibly A person of reasonable intelligence would not need to vague because it fails to establish standards for the police and guess at the meaning of the stalking statutes, nor would No. 02-4086 United States v. Bowker 21 22 United States v. Bowker No. 02-4086

his interpretation of the statutory language differ with We also reject Bowker’s argument that the stalking and regard to the statutes’ application, in part because the telephone harassment statutes’ failure to define words like definitions of crucial words and phrases that are provided “harass” and “intimidate” render them void for vagueness. in the statutes are clear and would be understandable to As noted by the Court in Staley, the meaning of these words a reasonable person reading the statute.… Also, the “can be ascertained fairly by reference to judicial decisions, meaning of the words used to describe the conduct can be common law, dictionaries, and the words themselves because ascertained fairly by reference to judicial decisions, they possess a common and generally accepted meaning.” common law, dictionaries, and the words themselves Staley, 239 F.3d at 791-92. Indeed, the Michigan anti- because they possess a common and generally accepted stalking statute, which the Staley Court upheld, does not meaning. We therefore conclude that the statutes are not appear to define the word “intimidate,” a word that Bowker void for vagueness on the basis of inadequate notice. claims is too vague in the federal law. For this reason as well, we reject Bowker’s vagueness challenge to the federal law. Staley, 239 F.3d at 791 -92. Bowker’s reliance on Church of the Am. Knights of the Ku The Michigan prohibition against willful harassment that Klux Klan v. City of Erie, 99 F. Supp. 2d 583 (W.D. Pa. causes a reasonable person to feel fear is almost 2000), also is misplaced. There, the court held that a city indistinguishable from the federal anti-stalking statute, ordinance that restricted the wearing of a mask “with the 18 U.S.C. § 2261A(1), which prohibits intentional harassment intent to intimidate, threaten, abuse or harass any other that causes a reasonable fear of death or serious bodily injury. person” was unconstitutionally vague. Id. at 591 (quotation In fact, the federal statute arguably is less vague because it marks and statutory citation omitted). The court found that circumscribes the type of fear a victim must feel, namely a each of these terms, given their ordinary meaning, could fear of death or serious bodily injury, whereas the Michigan encompass forms of expression that are constitutionally law does not. protected. Id. Not only might it prohibit certain types of advocacy, such as advocating the return to segregation, but it Bowker attempts to distinguish the Michigan statute by also might prohibit the simple act of wearing a mask. Id. The pointing to the fact that Michigan law defines the word court also found that the ordinance did not provide the public “harassment,” whereas federal law does not. The harassment with adequate notice of what type of conduct was prohibited. definition under Michigan law, however, contains nothing not The ordinance, however, is not comparable to the federal anti- already reflected in the federal statute’s general prohibition. stalking statute. The federal anti-stalking statute, which The Michigan definition of harassment requires conduct prohibits harassment or intimidation that causes a reasonable directed toward a victim, but this requirement is implicitly fear of death or serious bodily harm, imposes a far more reflected in the federal statute’s requirement that a perpetrator concrete harm requirement than the ordinance at issue in Ku intend to harass a victim. Michigan’s harassment definition Klux Klan, which did not require that the harassment or also requires that the conduct cause a reasonable individual to intimidation result in any particular type of reaction in the suffer emotional distress, but the federal statute requires audience. See id. at 592 (holding that ordinance was conduct that causes a fear of death or serious bodily injury. unconstitutionally vague: “To some extent, the speaker's There simply is no principled basis to distinguish the liability is potentially defined by the reaction or sensibilities language of the federal statute from the Michigan statute of the listener; what is ‘intimidating or threatening’ to one which this Court upheld in Staley. person may not be to another. And, although the provision No. 02-4086 United States v. Bowker 23 24 United States v. Bowker No. 02-4086

has a scienter requirement, it is reasonable to expect that the normative standard, but rather in the sense that no requisite intent could be inferred from circumstantial factors, standard of conduct is specified at all. which may include the effect that particular speech has on the speaker’s audience.”). Id. at 614. The Court further held that the ordinance violated the First Amendment right to freedom of assembly because We further reject Bowker’s argument that the federal the “First and Fourteenth Amendments do not permit a State stalking and telephone harassment statutes authorize or to make criminal the exercise of the right of assembly simply encourage arbitrary or discriminatory enforcement. Although because its exercise may be ‘annoying’ to some people.” Id. the statutes provide no guidelines on terms like harass and at 615. intimidate, the meanings of these terms “can be ascertained fairly by reference to judicial decisions, common law, We agree that the word “annoy,” standing alone and devoid dictionaries, and the words themselves because they possess of context and definition, may pose vagueness concerns. But a common and generally accepted meaning.” Staley, 239 that is not the case with the telephone harassment statute. The F.3d at 791-92. Thus, Bowker has not demonstrated that statute reads “annoy, abuse, threaten, or harass.” 47 U.S.C. these statutes fail to provide “sufficiently specific limits on § 223(a)(1)(C). The Supreme Court has observed that the enforcement discretion of the police to meet constitutional “[c]anons of construction ordinarily suggest that terms standards for definiteness and clarity.” Morales, 527 U.S. at connected by a disjunctive be given separate meanings, unless 64 (internal quotation marks and citation omitted). the context dictates otherwise.” Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979) (emphasis added). Here, the Only Bowker’s vagueness challenge to part of the statutory language must be read in the context of telephone harassment statute, 47 U.S.C. § 223(a)(1)(C), Congressional intent to protect innocent individuals from fear, merits further discussion. As noted above, that statute abuse or annoyance at the hands of persons who employ the prohibits using a telephone, without disclosing identity, with telephone, not to communicate, but for other unjustifiable the intent to annoy, abuse, threaten, or harass any person at motives. Lampley, 573 F.2d at 787. This context suggests the number called. Bowker argues that the term “annoy” is that the words annoy, abuse, threaten or harass should be read unconstitutionally vague, relying on the Supreme Court’s together to be given similar meanings. Any vagueness decision in Coates, supra. In rejecting the city ordinance associated with the word “annoy” is mitigated by the fact that which made it a criminal offense for three or more persons to the meanings of “threaten” and “harass” can easily be assemble on a sidewalk and to be “annoying” to passersby, ascertained and have generally accepted meanings. Staley, the Court reasoned: 239 F.3d at 791-92, In our opinion this ordinance is unconstitutionally vague Even assuming, arguendo, that Bowker’s vagueness because it subjects the exercise of the right of assembly argument theoretically has merit, he cannot rely on it to to an unascertainable standard, and unconstitutionally invalidate the indictment or his conviction for telephone broad because it authorizes the punishment of harassment, because the statute clearly applies to the conduct constitutionally protected conduct. Conduct that annoys he allegedly committed. The Supreme Court held in Parker some people does not annoy others. Thus, the ordinance v. Levy supra, 417 U.S. at 756: is vague, not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible No. 02-4086 United States v. Bowker 25 26 United States v. Bowker No. 02-4086

…[O]ne who has received fair warning of the criminality where, as here, the statute precisely specifies that the of his own conduct from the statute in question is [not] actor must intend to perform acts of harassment in order entitled to attack it because the language would not give to be culpable. similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose Lampley, 573 F.2d at 787. Thus, Bowker vagueness conduct a statute clearly applies may not successfully challenge fails. The district court did not err in denying his challenge it for vagueness. motion to dismiss Counts 1, 2 and 4 of the indictment.

Here, Bowker engaged in an anonymous campaign of IV threatening and harassing conduct directed toward Knight Motion to Sever Count 3 from the Indictment through use of the telephone (as well as the mails and the computer) that clearly fell within the statute’s prohibition. The district court denied Bowker’s motion to sever Count 3 This type of conduct lies at the core of what the telephone of the indictment (mail theft) from Counts 1 (interstate harassment statute was designed to prohibit. Lampley, 573 stalking), 2 (interstate stalking), and 4 (telephone F.2d at 787. FBI Agent Hassman specifically warned Bowker harassment). Bowker had argued that joinder of these counts that he might be arrested if he persisted in his course of would prejudice his rights under the Fifth Amendment and telephone harassment, but Bowker ignored that warning. Rules 8 and 14 of the Federal Rules of Criminal Procedure. Moreover, the fact that Bowker engaged in this campaign Specifically, he argued that the mail theft count should not be with an intent to threaten or harass mitigates any concern that admissible to support the other three counts for stalking and he may have been punished for merely having a telephone harassment on the ground that the crimes did not communication over the telephone. As the Third Circuit held possess the same or similar characteristics and that there was in rejecting a vagueness challenge to the very same statutory no nexus between the mail theft count and the other alleged language: crimes. He further argued that he wished to testify concerning the stalking and telephone harassment counts, The section’s specific intent requirement renders which require the government to prove intent, but not the mail unconvincing appellant's second claim that [the theft count, and that joinder precluded him from exercising predecessor to § 223(a)(1)(C) is] unconstitutionally his Fifth Amendment right to testify only as to the stalking vague. It has long been true that (t)he Court, indeed, has and telephone harassment counts. Last, he argued that the recognized that the requirement of a specific intent to do jury’s exposure to evidence pertaining to the stalking and a prohibited act may avoid those consequences to the telephone harassment counts would prejudice them in accused which may otherwise render a vague or deciding the mail theft count. Bowker renews these indefinite statute invalid. . . . (W)here the punishment arguments on appeal. imposed is only for an act knowingly done with the purpose of doing that which the statute prohibits, the A motion for relief from the prejudicial joinder of counts accused cannot be said to suffer from lack of warning or must be renewed at the close of the evidence. United States knowledge that the act which he does is a violation of v. Hudson, 53 F.3d 744, 747 (6th Cir. 1995). When the law. Screws v. United States, 325 U.S. 91, 101-02, 65 defendant fails to renew the motion, this Court can reverse a S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). The appellant conviction only upon a showing of plain error. United States cannot claim confusion about the conduct proscribed v. Anderson, 89 F.3d 1306, 1312 (6th Cir. 1996). Bowker No. 02-4086 United States v. Bowker 27 28 United States v. Bowker No. 02-4086

failed to renew his motion to sever Count 3 of the indictment Bowker also has not demonstrated that the district court from Counts 1, 2 and 4 at the close of the evidence. committed plain error when it rejected his argument that Accordingly, he must demonstrate plain error by the district severance was required in order to permit him to testify as to court. the mail theft count, but to avoid testimony as to the stalking and telephone harassment counts. The Tenth Circuit Federal Rule of Criminal Procedure 8 provides, in relevant confronted a similar argument in United States v. Martin, 18 part: F.3d 1515, 1518-19 (10th Cir. 1994), stating: (a) Joinder of Offenses. The indictment or information Martin contends that the denial of his severance motion may charge a defendant in separate counts with 2 or more “forced [him] to testify at trial and convict himself as to offenses if the offenses charged—whether felonies or the drug count in an attempt to win an acquittal of the misdemeanors or both—are of the same or similar gun count.”…Martin further contends that inasmuch as character, or are based on the same act or transaction, or he “had both important testimony to give concerning one are connected with or constitute parts of a common count and a strong need to refrain from testifying on the scheme or plan. other,” …the district court’s refusal to sever the counts deprived him of a fair trial.…[N]o need for a severance Fed. R. Crim. P. 8(a). Rule 14 provides, in relevant part: exists until the defendant makes a convincing showing that he has both important testimony to give concerning (a) Relief. If the joinder of offenses or defendants in an one count and a strong need to refrain from testifying on indictment, an information, or a consolidation for trial the other. Applying these standards to our case, we hold appears to prejudice a defendant or the government, the that Martin failed to demonstrate a convincing need for court may order separate trials of counts, sever the a severance. defendants’ trials, or provide any other relief that justice requires. Several other circuits have applied the same or similar standards. E.g., United States. v. Alosa, 14 F.3d 693, 695 (1st Fed. R. Crim. P. 14(a). The record clearly shows that all of Cir. 1994) (holding that defendant did not deserve severance the counts in Bowker’s indictment were of the same or similar because he failed to make a convincing showing that he had character and that the allegations thereunder were an integral both important testimony to give concerning one count and a part of Bowker’s common scheme to harass and threaten strong need to refrain from testifying on the other); United Knight. This scheme involved a 14-month campaign of States v. Gorecki, 813 F.2d 40, 43 (3d Cir. 1987) (holding that sending emails and regular mail and placing telephone calls defendant’s bare allegation that the joinder of counts to her workplace in Youngstown; sending mail to her parent’s prevented his testimony on one count, without a specific home; placing telephone calls to Knight’s unpublished home showing as to what that testimony may have been, failed to number in West Virginia; placing telephone calls to Knight’s meet the stringent requirements for severance under Rule 14); West Virginia workplace; sending mail to Knight’s West United States v. Ballis, 28 F.3d 1399, 1408 (5th Cir. 1994) Virginia home; and stealing Knight’s mail from her West (affirming denial of severance because defendant did not Virginia home. Thus, all of the counts properly were joined point out this alleged dilemma in testifying about some counts pursuant to Rule 8, and the district court did not plainly err but not others with sufficient specificity for the trial court to under Rule 14 by refusing to sever the mail theft count. have abused its discretion in denying the motion); United No. 02-4086 United States v. Bowker 29 30 United States v. Bowker No. 02-4086

States v. Alexander, 135 F.3d 470, 477 (7th Cir. 1998) (noting intelligently waive his rights, to court-appointed counsel.” that there may be cases in which a defendant can The district court purported to deny that motion via a hand- convincingly show that he has important testimony to give on written minute order on January 28, 2002, stating that one count but a strong need to remain silent on another, and “Defendant’s pro se motion for new counsel is denied.” The in that circumstance, severance may be required; affirming court did not refer to the fact that Bowker’s motion did not denial of severance because defendant failed to provide seek new counsel, but to waive his right to counsel. Bowker, specific examples of the exculpatory testimony that he would however, soon had a change of heart about representing testify about). himself because on March 26, 2002, Bowker’s attorney moved to withdraw as counsel due to “the fractured lawyer- It is clear that Bowker failed to make a “convincing client relationship.” In an attached statement signed by showing” that he had important testimony concerning the Bowker, Bowker requested that his appointed lawyer interstate stalking and telephone harassment counts, as well withdraw from the case “and that a new lawyer be appointed as a “strong need” to refrain from testifying on the mail theft to represent” him. The court granted the motion on April 10, count. Indeed, his motion to sever provided absolutely no 2002 and appointed a new federal public defender for Bowker indication as to what his testimony would be on the stalking on April 22, 2002. and harassment counts, stating only that his testimony was “anticipated to be crucial” because these crimes have a The sixth and fourteenth amendments guarantee state specific intent requirement. In addition, Bowker showed criminal defendants the right of self-representation at trial. absolutely no need to avoid testifying on the mail theft count, See Faretta v. California, 422 U.S. 806 (1975). Since it is merely arguing that his testimony on this count was “not more likely than not that a defendant would fare better with needed” because mail theft lacks a specific intent the assistance of counsel, id. at 835, he will be permitted to requirement. Such non-specific assertions of prejudice are represent himself only when he “knowingly and intelligently” insufficient to warrant severance under Rule 14. For these relinquishes his right to counsel. Id. Such a knowing waiver reasons, the district court did not commit plain error in must be made by a “clear and unequivocal” assertion of the refusing to sever the counts of the indictment. right to self-representation. Id. “Once there is a clear assertion of that right, the court must conduct a hearing to V ensure that the defendant is fully aware of the dangers and Right to Self-Representation disadvantages of proceeding without counsel.” Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir. 1984) (citation Bowker argues that he is entitled to a new trial because the omitted). district court denied his constitutional right to represent himself. We review such a denial for an abuse of discretion. We hold that the district court erred in denying Bowker’s Robards v. Rees, 789 F.2d 379, 384 (6th Cir. 1986). January 22, 2002 motion to represent himself which was accompanied by a clear and unequivocal assertion of the right On January 22, 2002, Bowker, then represented by counsel, to self-representation. At a minimum, the court should have filed on his own initiative a hand-written motion “for release conducted some inquiry into the bases for Bowker’s motion. of appointed attorney.” In that motion, Bowker stated, “Now It is not apparent from the record that the district court did Comes Defendant, being first advised of his rights to an anything other than misconstrue the motion as a motion for attorney, and does now knowingly, willingly, and appointment of new counsel and then deny the motion. No. 02-4086 United States v. Bowker 31 32 United States v. Bowker No. 02-4086

Nevertheless, the district court’s error was rendered harmless return. The motion must be filed in the district where the by Bowker’s change of heart about self-representation over property was seized. The court must receive evidence on two months prior to trial. As noted above, after being denied any factual issue necessary to decide the motion. If it the right to represent himself, Bowker explicitly joined his grants the motion, the court must return the property to then-attorney’s motion to withdraw from the case and to have the movant, but may impose reasonable conditions to new counsel appointed for him. Thus, Bowker’s last protect access to the property and its use in later indication to the district court on the matter was that he did proceedings. not wish to represent himself. Cf. id. at 809 (“Even if Raulerson's letter of July 18, 1980 constituted a clear and Fed. R. Crim. P. 41(g). In United States v. Hess, 982 F.2d unequivocal demand to represent himself, his agreement to 181 (6th Cir. 1992), this Court observed that “‘[a] district proceed with the assistance of an attorney waived that original court has both the jurisdiction and the duty to return the request….”). Accordingly, the district court’s erroneous contested property once the government’s need for it has disposition of the January 22, 2002 motion for self- ended.’” Id. at 187 (internal quotation marks omitted; representation was rendered harmless error by Bowker’s quoting United States v. Martinson, 809 F.2d 1364, 1370 (9th subsequent waiver of his right to self-representation. Bowker, Cir.1987) (citing United States v. Wilson, 540 F.2d 1100, therefore, is not entitled to a new trial. 1103-04 (D.C. Cir.1976)). There, the district court had failed to address the legal or factual issues raised in a party’s motion VI for return of seized records. The Court found it significant Motion to Return Seized Property that no hearing was held regarding who was entitled to possession of the documents, and the district court had failed On February 5, 2002, Bowker filed a pro se motion for to consider the merits of the moving party’s arguments. The return of seized property and items, pursuant to Rule 41 of the Court also was troubled because there were no findings of Federal Rules of Criminal Procedure. He sought an order fact or conclusions of law regarding which party was entitled from the court directing the government to return all items to retain the records. Accordingly, the Court held that the and tangible objects which were not going to be used as district court did not discharge its duty under Rule 41(g) to evidence in his case. As of May 29, 2002, the district court hear and decide the issues, reasoning that Rule 41(g) “clearly had not yet ruled on the motion, so Bowker filed a “request contemplates a hearing ‘on any issue of fact necessary to the for ruling on motion for return of property.” On June 4, 2002, decision of the motion.’” Id. at 186. the district court denied Bowker’s request for a ruling on the motion for return of property. No reasons were provided by Hess is directly on point. The district court below simply the court for the denial, and the district court never held a ignored Bowker’s motion to return records, and when Bowker hearing on, nor has it ever ruled on, the underlying motion for filed a motion to have the court rule on that motion, the court return of property. denied the motion, without ever reaching the merits of the underlying motion. The court held no hearing, took no Rule 41 provides, in relevant part: evidence, and gave no indication that it ever has considered the merits of Bowker’s motion. Accordingly, on remand, the (g) Motion to Return Property. A person aggrieved by district court shall hold a hearing on Bowker’s motion for an unlawful search and seizure of property or by the return of records, take evidence on any factual issues deprivation of property may move for the property’s No. 02-4086 United States v. Bowker 33 34 United States v. Bowker No. 02-4086

necessary to resolve that motion, and promptly rule on that (1) that the defendant traveled in interstate or foreign motion. commerce; (2) with the intent to kill, injure, harass, or intimidate VII another person; and Motion for a Judgment of Acquittal as to Counts 1, 2 (3) in the course of, or as a result of, such travel places and 4 that person in reasonable fear of the death of, or serious bodily injury to, that person, a member of the immediate Bowker challenges the district court’s failure to grant his family of that person, or the spouse or intimate partner of motion for a judgment of acquittal on Counts 1, 2 and 4 of the that person. indictment, pursuant to Rule 29 of the Federal Rules of Criminal Procedure. For the reasons that follow, we affirm Bowker argues that the government did not prove, pursuant the judgment of the district court. to the interstate stalking count, that the “result of” Bowker’s travel from Ohio to West Virginia in July, 2001, was to put A. Standard of Review Knight in reasonable fear of her life or bodily injury, because Knight did not learn of Bowker’s travels until August 2001, “In reviewing a district court’s denial of a motion for after he had completed his travel. This argument is specious. judgment of acquittal on a claim of insufficient evidence, ‘the Knight learned of Bowker’s travel to West Virginia because relevant question is whether after viewing the evidence in the he sent her numerous photographs informing her that he had light most favorable to the prosecution, any rational trier of been in the state the preceding month. Accompanying the fact could have found the essential elements of the crime photographs was the statement, “Take the photos out to read beyond a reasonable doubt.’” United States v. Lloyd, 10 F.3d the backs of them. Send me an E-mail address. It keeps me 1197, 1210 (6th Cir. 1993) (quoting Jackson v. Virginia, 443 long distance, you know what I mean.” The clear implication U.S. 307, 319 (1979)). “If the evidence, however, is such that of this statement was that Bowker would continue to a rational fact finder must conclude that a reasonable doubt is communicate with Knight, unless she provided him with her raised, this court is obligated to reverse a denial of an email address. The jury was entitled to infer that this acquittal motion.” Id. (quoting United States v. Collon, 426 statement, combined with the photographs of Bowker at F.2d 939, 942 (6th Cir.1970)). The district court’s findings of various locations in West Virginia, was intended to intimidate fact are reviewed for clear error, and circumstantial evidence Knight by showing her that Bowker had traveled to her state alone is sufficient to sustain a conviction. Nationwide Mut. and would do so in the future. The statute did not require the Ins. Co. v. Home Ins. Co., 278 F.3d 621, 625 (6th Cir. 2002); government to show that Bowker actually intended to harass United States v. Peters, 15 F.3d 540, 544 (6th Cir. 1994). or intimidate Knight during his travels, only that the result of the travel was a reasonable apprehension of fear in the victim. B. Interstate Stalking Count Since Knight testified that she was afraid that Bowker might Count 1 of the indictment charges Bowker with interstate rape her, and her fear seemed reasonable, the government stalking, in violation of 18 U.S.C. § 2261A(1). The proved all of the elements of the interstate stalking count. government was required to prove: No. 02-4086 United States v. Bowker 35 36 United States v. Bowker No. 02-4086

C. Cyberstalking Count (J.A. 985-88, 1000.) A July 16, 2001 letter that Bowker sent to Knight at the television station had both sexual and Count 2 of the indictment charges Bowker with threatening connotations. It read, in part: cyberstalking, in violation of 18 U.S.C. § 2261A(2). The government was required to prove: No. 1. You do not hang up on me. No. 2. You do not hang up on me, ever. (1) Bowker intentionally used the mail or any facility of No. 3. If and when I call CBS 13 asking about a news interstate or foreign commerce; story that you reported on, you do not hang up on me. (2) Bowker engaged in a course of conduct with the You must at least do the bare minimum and answer my intent to place Knight in reasonable fear of death of, or news related questions. serious bodily injury to, herself, her spouse or intimate I know what you value most in life, your bullshit fake partner, or a member of her immediate family; and ass 1997 Pontiac Grand Am, which is about top on your (3) Bowker’s course of conduct actually placed Knight in list as well as two other things. As far as the Grand Am reasonable fear of death of, or serious bodily injury to, is concerned, say good-bye to it. I am going to file a herself. mechanics lien on it immediately and later seek civil forfeiture. The evidence shows that Bowker’s intended to instill in All that you . . . would have to do is be polite, be nice, Knight a fear of death or serious bodily harm through use of and answer my news-related questions, just like the rest the mails and other facilities of interstate commerce, required of the reporters, except your buddy April Kaull. I’m elements of the cyberstalking count. During a June 12, 2001 going to file a lien on her vehicle too. You are both fuck- telephone conversation with Knight, Bowker told her: ups, assholes and seriously emotionally and mentally unbalanced.… You don’t know where I’m at. I might be in your house Also, WOWK will hire just about anyone. Or at least in Dunbar[, West Virginia]; you don’t know that.… I a pretty girl reporter, as long as she does her hair and know all of your neighbors.… And I have access to all makeup well.… that information, just like anybody else does who knows That vehicle is exemplary of you, pretty on the outside where to find it. I have an enormous amount of things and very worthless inside. You have female genitals and about you that I’m not going to disclose unless I have to. that is about it. You are a very slander to the word I’m not going to tell anybody about it except if you lie to woman. Oh, yeah, you dress like one but so do me. I might not say anything to you at the time, but that transvestites. I think I would rather spend the evening might come back, you know.… I know the names of all with a pretty transvestite than with you.… your relatives and where they live.… I know your Anyhow, I also think that it is time for your neighbors brothers’ wives[’] names, their ages, their Social Security to get to know you better and I will be making attempts numbers and their birth dates … and their property to inform them about how the prima donna from Ohio values.… Maybe I live on 20th street in Dunbar.… things [sic] she can eat from the top and throw her Maybe I watch you with binoculars all the time and garbage on the sidewalk of West Virginia and Dunbar.… maybe I don’t. I also noticed that you already had the job and residence in West Virginia when you had your Ohio License plates renewed, for one year anyhow.… No. 02-4086 United States v. Bowker 37 38 United States v. Bowker No. 02-4086

So bye-bye, fuck you, you are an asshole and a (3) in the telephone calls, whether or not conversation or sociopath and an embarrassment to mothers everywhere, communication ensued, Bowker intended to annoy, sir. In parenthesis: (I wasn’t bringing up the mental case abuse, threaten, or harass Knight or any person at the thing again since it is genetic.) called number. Yes, sir. Adios, Eric [sic]. Smooch. Smooch. Bowker’s primary argument against his conviction for (J.A. 1011-15.) In August 2001, Bowker left a series of telephone harassment is that Knight allegedly was aware of messages on Knight’s answering machine asking that Knight Bowker’s identity when she received his calls. The statute, or Knight’s friend call him back, which did not occur. These however, does not preclude criminal responsibility merely messages contained statements that Knight reasonably could because the recipient may suspect, or have a very good idea perceive to be threats to her personal safety. Excerpts include of, the caller’s identity. Rather, assuming that Bowker called the following statements: Knight with the requisite intent to annoy, abuse, threaten, or harass, the only issue is whether Bowker disclosed his I don’t even know why I’m nice to you ever at all, you identity in those calls. It is clear that in all of the at-issue and your fucked-up friend should not even be working in telephone calls, Bowker never affirmatively identified himself the media. You know you gotta mother-fucking realize as Erik Bowker. In fact, he denied being Bowker during a there’s like 50 percent men in this country and you better conversation with Knight on June 12, 2001, and instead stated mother-fucking learn that you’re going to have to deal that his name was Mike. Thus, a straightforward application with us sometime.… of the telephone harassment statute shows that the jury Well, it looks like nobody is going to answer me if reasonably found the non-disclosure element to be satisfied. Tina Knight is okay, so I’m gonna take the 1:00 a.m. bus out of Columbus, Ohio and come down there and see for VIII myself. Okay, I’ll be there about 6:00 a.m. Bye. Motion for a New Trial on Counts 1, 2 and 4

(J.A. 1226-27.) Since Knight testified that these intentionally The denial of a defendant’s motion for a new trial under intimidating, threatening and harassing interstate Federal Rule of Criminal Procedure 33 is reviewed for abuse communications made her afraid to leave the house everyday of discretion. United States v. Ashworth, 836 F.2d 260, 266 and that Bowker might try to rape her, the government proved (6th Cir. 1988). The Court is “limited to examining the all of the elements of the cyberstalking count. evidence produced at trial to determine whether the district court’s determination that the evidence does not D. Telephone Harassment Count ‘preponderate heavily against the verdict’ is a clear and manifest abuse of discretion.” Id. (citation omitted). As Count 4 of the indictment charged Bowker with telephone discussed in the preceding section, there was ample evidence harassment, in violation of 47 U.S.C. § 223(a)(1)(C). The to support Bowker’s convictions on Counts 1, 2 and 4 of the government had to prove that: indictment. Thus, it was not an abuse of discretion to find that the evidence did not preponderate heavily against the (1) Bowker made interstate telephone calls to Knight; verdict. (2) Bowker did not disclose his identity in the telephone calls; and No. 02-4086 United States v. Bowker 39 40 United States v. Bowker No. 02-4086

IX impairment manifests itself by physical or psychological Upward Departure for Extreme Psychological Harm to symptoms or by changes in behavior patterns. The court the Victim should consider the extent to which such harm was likely, given the nature of the defendant's conduct. After Bowker’s convictions, he was sentenced pursuant to the 2000 edition of the United States Sentencing Commission Guidelines §5K2.3 (Nov. 1, 2000). With regard to the crime Guidelines Manual (“Guidelines”). Based upon a final of stalking, Guidelines § 2A6.2 instructs that “an upward offense level of 19, and a criminal history corresponding to departure may be warranted if the defendant stalked the Category V, Bowker’s Guidelines’ range was between 57 and victim on many occasions over a prolonged period of time.” 71 months. The government moved for a three level upward Guidelines § 2A6.2, Application Note 5. departure in his sentence based on extreme psychological injury to the victim, Tina Knight. The basis for the motion The record shows that Bowker stalked Knight on many was, in part, Guidelines § 5K2.3. The district court granted occasions and over a prolonged period of time. See the motion for upward departure. Because Bowker argues Guidelines § 2A6.2, Application Note 5. FBI Special Agent that the sentence imposed by the district court was outside the James McNamara, an expert on stalking crimes, testified at applicable guideline range and was based on a factor that is the sentencing hearing as to the extreme nature of Bowker’s not justified by the facts of the case, this Court reviews the conduct. McNamara pointed to the facts that the harassment district court’s determination under a de novo standard. occurred over a period of years and in two different states; 18 U.S.C. § 3742(e). involved numerous, multi-media contacts (letters, telephone calls, email and interstate travel); and involved contacts with Section 5K2.3 of the Guidelines provides: Knight’s friends and family members. Further, Bowker’s campaign of harassment substantially impaired Knight’s §5K2.3. EXTREME PSYCHOLOGICAL INJURY “behavioral functioning” as manifested by “changes in [her] (POLICY STATEMENT) behavior patterns.” Guidelines § 5K2.3. Knight was so distressed that she was left with profound feelings of paranoia If a victim or victims suffered psychological injury much and felt compelled to change banks and unlist her phone more serious than that normally resulting from number, and have her bills sent to a different address. She commission of the offense, the court may increase the also purchased a gun, routinely uses a security escort, and, sentence above the authorized guideline range. The most unfortunately, decided to forgo her on-air news career. extent of the increase ordinarily should depend on the severity of the psychological injury and the extent to Knight’s Victim Impact Statement movingly captures the which the injury was intended or knowingly risked. extreme psychological distress that Bowker’s stalking activities inflicted on her: Normally, psychological injury would be sufficiently severe to warrant application of this adjustment only The two years that I was stalked changed my family and when there is a substantial impairment of the intellectual, me. First of all since the stalking began because of my psychological, emotional, or behavioral functioning of a job as a television news reporter it has turned me off to victim, when the impairment is likely to be of an a future in that career.…I don’t want to be anyone’s extended or continuous duration, and when the favorite newscaster because I fear it will turn into another No. 02-4086 United States v. Bowker 41 42 United States v. Bowker No. 02-4086

situation like the one I had.…I am also concerned about X major purchases in the future, like a home, and how he Expert Testimony on Stalking may be able to track me down….Even writing this I am careful not to mention anything about my personal life As noted in the preceding section, the government called an for fear he will read this and it will give him another expert on stalking crimes, FBI Special Agent James means by which to contact me.…I am concerned about McNamara, to testify at Bowker’s sentencing hearing. the rest of my life….I am not confident this will stop. Bowker argues that the district court’s decision to hear the That is my biggest fear. When he gets out of jail this testimony of Agent McNamara was erroneous and that the could start all over again so I truly can never relax. It’s court’s decision should be reviewed for an abuse of discretion just putting off my ultimate fear that someday, no matter under Federal Rule of Evidence 702. The Federal Rules of what I do, he will show up at my front door with intent Evidence, however, are by their own terms expressly to harm me. By now I’ve given him reason to really hate inapplicable to sentencing hearings. Fed. R. Evid. 1101(d)(3). me in his mind. I testified against him in court and According to the federal statute that governs the use of helped put him in jail. I hope he isn’t out for revenge.4 information in sentencing, “[n]o limitation shall be placed on the information concerning the background, character, and We hold that the above-described facts amply justified the conduct of a person convicted of an offense which a court of district court’s upward departure determination. Cf. United the United States may receive and consider for the purpose of States v. Otto, 64 F.3d 367, 371 (8th Cir. 1995) (affirming imposing an appropriate sentence.” 18 U.S.C. § 3661. The upward departure where stalking victim lived in constant fear Supreme Court has explained that this statute “codifies the for herself and for her children and was always on the lookout longstanding principle that sentencing courts have broad for the defendant; could not eat or sleep; lost weight; required discretion to consider various kinds of information.” United counseling; and feared the defendant’s ultimate release); States v. Watts, 519 U.S. 148, 151 (1997). Accordingly, this United States v. Miller, 993 F.2d 16, 21 (2d Cir. 1993) Court reviews the district court’s admission of Agent (affirming upward departure after the defendant had engaged McNamara’s testimony for an abuse of discretion in in a three year campaign of harassment; noting that the victim determining that the testimony had “sufficient indicia of had been afraid to answer the telephone or open her mail for reliability to support its probable accuracy.” Guidelines three years; was afraid to remain in the New York area; and § 6A1.3(a). believed that the years of harassment had hastened her husband’s demise). Agent McNamara has been with the FBI for 15 years and is assigned to the FBI as a behavioral analyst. His duties include looking at the behavior of criminals, conducting research with convicted offenders and disseminating the results of that research, and working on active criminal cases as a law enforcement consultant. McNamara has been trained in a variety of disciplines, including criminal justice, psychology, forensic science, anthropology and psychology. 4 Based on his review of transcripts and other materials Bowker made Knight’s Victim Impact Statement part of the public pertaining to Bowker’s case, McNamara testified that Bowker record in the district court when he attached it as an exhibit to his response to the United States’ motion for an upward departure. had engaged in multimedia attempts to contact Knight, No. 02-4086 United States v. Bowker 43 44 United States v. Bowker No. 02-4086

including letters, email, telephonic contacts, and the sending After Bowker’s attorney cross-examined Agent McNamara, of gifts. McNamara opined that the sending of gifts in a the FBI expert on stalking, the district court asked Bowker stalking case is “significantly important in the areas of directly, “Is there anything that you have to say to this Court increased dangerousness.” He further testified that Bowker before it imposes sentence?” Bowker responded that he escalated his activity, from contacts through the mail, to would like to read a lengthy statement, and the court told telephonic and electronic mail contact, to traveling interstate Bowker to proceed. Bowker began by challenging his prior to pursue Knight. McNamara also indicated that Bowker’s criminal history. The court then went through each crime that past history of violence, including domestic abuse, was a formed the foundation for the assignment of a Criminal predictor of future dangerousness or violence. As a History Category V. Bowker then asked to address some consequence of these findings, McNamara concluded that things that occurred during his trial, and the court told him to Bowker was a more dangerous type of stalker. proceed. Bowker gave a lengthy justification for his conduct underlying his convictions, complained about not being able We hold that the district court did not abuse its discretion to testify as to his intent, and pointed out that he has severe in admitting Agent McNamara’s testimony at the sentencing physical disabilities and mental problems. Bowker next hearing. His testimony was relevant to the court’s application complained about the performance of his attorney. Bowker of Guidelines § 2A6.2, which determines how the base then asked the court to have his mother testify, which the offense level is to be calculated for the crime of stalking. court permitted. The only request the district court appeared Guideline § 2A6.2 provides for a two-level increase in the to deny Bowker was his desire to read a 15-page statement base offense level for a pattern of activity involving stalking, into the record. Based on the totality of the circumstances, we threatening, harassing, or assaulting the same victim. see no merit to Bowker’s argument that he was denied the McNamara’s testimony directly addressed this issue. Agent right of allocution. Cf. United States v. Kellogg, 955 F.2d McNamara’s testimony also was relevant to determining 1244, 1250 (9th Cir. 1992) (“Although the defendant has a whether an upward departure was warranted for extreme right of allocution at sentencing, that right is not unlimited.”). psychological injury to the victim. See Guidelines § 2A6.2, Application Note 5 (instructing that the severity of the XII stalking may warrant an upward departure). Therefore, the Conclusion district court did not err in entertaining Agent McNamara’s expert testimony at sentencing. For all the foregoing reasons, we AFFIRM Defendant Bowker’s convictions and sentence. This case shall be XI REMANDED for the district court to conduct a hearing and Bowker’s Right of Allocution to rule on Bowker’s motion to return seized property. Federal Rule of Evidence 32(i)(4)(c)(ii) provides that, before imposing a sentence, the court must “address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence.” Bowker argues that the district court denied him this right of allocution. We apply a de novo standard of review. United States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995).