United States v. Crawford

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 30, 2025
• Docket: 23-2532
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-2532 D.C. No. Plaintiff - Appellee, 2:22-cr-00087-JLR-1 v. MEMORANDUM* CHRISTOPHER SCOTT CRAWFORD,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Argued and Submitted February 10, 2025 Seattle, Washington

Before: W. FLETCHER and NGUYEN, Circuit Judges, and BENNETT, District Judge.**

Christopher Scott Crawford was convicted by a jury for cyberstalking his ex-

wife, see 18 U.S.C. § 2261A(2)(B), and making threats by interstate

communications, see 18 U.S.C. § 875(c). He appeals the conviction as well as a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. condition of his sentence limiting his access to firearms. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1. The cyberstalking statute, 18 U.S.C. § 2261A(2), does not violate the

First Amendment for facial overbreadth or vagueness. A constitutional challenge

to a statute is reviewed de novo, even if unpreserved. See United States v.

Naghani, 361 F.3d 1255, 1259 (9th Cir. 2004).

We have already held that the cyberstalking statute is not facially overbroad.

See United States v. Osinger, 753 F.3d 939 (9th Cir. 2014).1 “‘Because the statute

requires both malicious intent on the part of the defendant and substantial harm to

the victim, it is difficult to imagine what constitutionally-protected speech would

fall under these statutory prohibitions.’” Id. at 944 (quoting United States v.

Petrovic, 701 F.3d 849, 856 (8th Cir. 2012) (cleaned up)).

The Supreme Court’s ruling in Counterman v. Colorado, 600 U.S. 66

(2023), does not require us to overrule Osinger. See Miller v. Gammie, 335 F.3d

889, 893 (9th Cir. 2003). While Osinger discusses vagueness and overbreadth of

the cyberstalking statute, see 753 F.3d at 943–45, Counterman instructs that if a

defendant is being prosecuted for threatening speech, “the First Amendment still

1 The statute has since been amended, but the changes made do not disrupt the analysis in Osinger. See Pub.L. 115-334, Title XII, § 12502(a)(1), Dec. 20, 2018, 132 Stat. 4982; see also Pub.L. 116-249, § 2(c), Dec. 22, 2020, 134 Stat. 1126 (not amending § 2261A).

2 23-2532 requires proof that the defendant had some subjective understanding of the

threatening nature of his statements” and that the minimum mens rea for this

subjective intent is recklessness, 600 U.S. at 69. The cyberstalking statute at issue

here and in Osinger criminalizes conduct or speech that is harassing or

intimidating. That conduct or speech need not involve true threats. See, e.g.,

Osinger, 753 F.3d at 947 (finding the nonconsensual dissemination of nude photos

to be “‘integral to criminal conduct’ in intentionally harassing, intimidating or

causing substantial emotional distress”). Accordingly, Counterman is not clearly

irreconcilable with Osinger.

Further, the limiting instruction provided by Counterman—namely, that a

person cannot be prosecuted for making a threat unless he has a subjective intent—

eliminates Crawford’s void-for-vagueness challenge. United States v. Sutcliffe,

505 F.3d 944, 953 (9th Cir. 2007) (rejecting a vagueness challenge to a statute that

“neither requires specific intent nor defines true threats” because “the narrowing

construction provided by the relevant cases actually alleviates possible void-for-

vagueness concerns”).

2. Crawford’s four challenges to the jury instructions fail. “We review the

district court’s ‘precise formulation’ of jury instructions for abuse of discretion,”

United States v. Smith, 831 F.3d 1207, 1214 (9th Cir. 2016) (quoting United States

v. Lloyd, 807 F.3d 1128, 1165 (9th Cir. 2015)), and “whether the jury instructions

3 23-2532 misstated an element of the crime de novo,” United States v. Kirst, 54 F.4th 610,

624 (9th Cir. 2022) (cleaned up). But if the defendant failed to object to a jury

instruction below, we review for plain error. United States v. Jaimez, 45 F.4th

1118, 1122 (9th Cir. 2022).

A. The parties dispute which standard of review applies to Crawford’s first

jury instruction challenge—that the cyberstalking instruction improperly defined

the mens rea components of a true threat—but under any standard, his claim fails.

The instruction captures an objective component of a true threat, not just the

subjective component mandated by Counterman. See United States v. Ehmer, 87

F.4th 1073, 1121 (9th Cir. 2023) (affirming “the district court correctly

included both [subjective and objective] elements” of a true threat (emphasis in

original)). Additionally, the instruction’s subjective component meets the

requirements of Counterman, explaining that “harass” means “to act with the

specific intent or purpose of distressing the victim by threatening.” To find an

intent to threaten necessarily requires that “the defendant had some understanding

of his statements’ threatening character.” Counterman, 600 U.S. at 73; see also

Ehmer, 87 F.4th at 1119 (a post-Counterman case affirming a substantially similar

instruction that “the speaker or actor must intend his or her words or conduct to

intimidate or to be a threat”).

B. Crawford is also incorrect that the cyberstalking instruction was

4 23-2532 defective for defining a true threat as “a serious statement expressing an intention

to inflict injury,” rather than “a serious expression of an intent to commit an act of

unlawful violence.” See Virginia v. Black, 538 U.S. 343, 359 (2003). True threats

can include “an expression of an intention to inflict evil, injury, or damage on

another.” Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life

Activists, 290 F.3d 1058, 1075 (9th Cir. 2002) (en banc) (cleaned up). True threats

can exist where no violence is involved, see United States v. Tan Duc Nguyen, 673

F.3d 1259, 1266 (9th Cir. 2012), and where the subject of injury is not a person,

see United States v. Cassel, 408 F.3d 622, 636 (9th Cir. 2005). Because

Crawford’s proposed definition was legally incomplete, the district court did not

abuse its discretion in refusing it.

C. Crawford’s third and fourth challenges bring the same arguments against

the district court’s instruction for an interstate threat, and his challenges fail for the

same reasons.

3. Crawford’s evidentiary challenges also fail. The district court did not

abuse its discretion in admitting evidence that Crawford disseminated nude photos

of his ex-wife without consent. Because the cyberstalking statute covers more than

true threats, the communications and photos were relevant to the charge, even if

they were not threatening. For the same reason, Crawford’s argument that the

evidence was prejudicial because the jury was given no guidance on how to

5 23-2532 determine if the evidence constituted a true threat is unpersuasive. Evidence of

Crawford’s dissemination of her photographs and his intense anger towards her is

relevant to show that his conduct was harassing and that he had an intent to harass.

See Osinger, 753 F.3d at 947. And contrary to Crawford’s assertion, the

nonconsensual dissemination of another’s sexually explicit photographs falls

outside the protection of the First Amendment. Id. at 948 (“Osinger’s speech is not

afforded First Amendment protection for the additional reason that it involved

sexually explicit publications concerning a private individual.”).

The district court did not plainly err in admitting evidence of the threats

Crawford made to his ex-wife’s coworkers. The messages detailed his intent to

disseminate the explicit photographs and illustrated the depth of his anger. The

conduct need not be limited to acts directly against the victim under the

cyberstalking statute. Id. at 947 (finding nude photographs and threats sent to the

victim’s friends, coworkers, and family to be harassment under § 2261A).

Finally, any prosecutorial misconduct or error in admitting evidence that

Crawford violated a protection order and allowing testimony about the Navy’s

historic failure to protect servicewomen from violence, was harmless given the

strength of other evidence showing Crawford’s extensive harassment.

4. Crawford’s condition of supervised release—prohibiting him from

owning, possessing, or having access to a firearm, ammunition, destructive device,

6 23-2532 or dangerous weapon—does not violate the Second Amendment. Crawford’s

“temporary disarmament is consistent with our nation’s historical tradition of

firearm regulation.” United States v. Perez-Garcia, 96 F.4th 1166, 1171 (9th Cir.

2024); see also New York State Rifle & Pistol Association Inc. v. Bruen, 597 U.S.

1, 24 (2022). First, “our society has traditionally subjected criminal defendants to

temporary restrictions on their liberty—including restrictions that affect their

ability to keep and bear arms—to protect public safety.” Id. at 1182. Second,

because “supervised release is part of a defendant’s sentence,” that period, “like

imprisonment, restricts a defendant’s liberty and fundamental rights.” United

States v. Weber, 451 F.3d 552, 559 (9th Cir. 2006) (citations omitted). And third,

restrictions on “the possession of firearms by ‘felons . . . ,’ are ‘presumptively

lawful.’” United States v. Rahimi, 602 U.S. 680, 626, 627 n.26 (2024) (quoting

D.C. v. Heller, 554 U.S. 570, 627, n.26 (2008)).

AFFIRMED.

7 23-2532