United States v. Bandy

UNITED STATES OF AMERICA, Plaintiff, v. CHRIS BANDY, Defendant.

No. 17-CR-3402 MV

UNITED STATES DISTRICT COURT DISTRICT OF NEW MEXICO

March 9, 2021

MEMORANUM OPINION AND ORDER

THIS MATTER is before the Court on Defendant Chris Bandy's Motion to Dismiss the Indictment. Doc. 119. The Government filed a response in opposition [Doc. 134] and Mr. Bandy filed a reply [Doc. 157]. Having reviewed the briefs, exhibits, relevant law, and being otherwise fully informed, the Court finds that the motion is not well-taken and will be DENIED.

BACKGROUND

In a single-count indictment returned on December 5, 2017, Mr. Bandy was charged with Stalking in violation of 18 U.S.C. § 2261A(2)(B). Doc. 2. The Indictment alleges that between December 9, 2016 and February 3, 2017, Mr. Bandy,

with the intent to harass and intimidate Jane Doe, knowingly used facilities of interstate and foreign commerce, including the Internet, Twitter, and electronic mail, all interactive computer services and electronic computer services of interstate commerce, to engage in a course of conduct that caused, attempted to cause, and would reasonably be expected to cause substantial emotional distress to Jane Doe.¹

Doc. 2 at 1. The charging language largely tracks the statutory language found in § 2261A(2)(B), commonly known as the cyberstalking statute. See, e.g., United States v. Traficante, 966 F.3d 99, 101 (2d Cir. 2020).

The Indictment followed Mr. Bandy's alleged use of interactive and electronic computer services to send five emails and multiple tweets describing graphic sexual content attributed to M.D. Doc. 119 at 1-3. M.D. was the Senior Vice President of Human Resources who oversaw Mr. Bandy's termination from his employment at Nusenda Credit Union (Nusenda) as an information technology (IT) specialist. Doc. 78 at 2-3. The emails were sent to M.D. and to other employees at Nusenda from various email accounts, including one impersonating another former manager at Nusenda ("Andy"). Id. at 6-10. Several of the communications suggested that M.D. was under surveillance and many referenced individuals employed at Nusenda. Id. Examples of the language in the emails and tweets include:

"Watching you shave this morning ... you are the best pole dancing whore of all time."

"Look forward to see you masturbating"

"[M.D.'s] husband hasn't had a good fuck in years because her pussy is as closed as her mind."

"Do you still wax everything down under and leave that little patch in the front."

"Well Andy's watching you."

"The camera in your shower was a beautiful picture this morning. Watching you rub a dub dub all of the parts."

"Is that thong stretched tight across your pole dancing asshole? Watching you all day is real entertaining. Andy will see you soon."

"Are you wet right now? Can everyone in the office smell you right now? Andy is coming to see you tomorrow. Be on the lookout."

"Just so you know he has his eye on you."

"[W]atching you walk in this morning made Andy horny."

"Andy loves watching you."

Doc. 119 at 1-3; Doc. 134 at 5.

In the instant motion, Mr. Bandy asks the Court to dismiss the indictment because "18 U.S.C. § 2261A(2)(B) violates the First and Fifth Amendments of the United States Constitution." Doc. 119 at 1. More specifically, Mr. Bandy argues that (1) the statute is substantially overbroad and criminalizes speech that does not serve a compelling government interest, (2) the indictment criminalizes protected speech in a manner that runs afoul of strict scrutiny, and (3) the statute is unconstitutionally vague. See generally Doc. 119. He argues that the Supreme Court has carved out very limited classes of speech that are unprotected—obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct. Id. at 4-5. Additionally, he notes that a law regulating unprotected speech can be overbroad if it touches upon protected speech, and he asserts that § 2261A(2)(B) does precisely this. Id. at 5, 8. Mr. Bandy further argues that the Supreme Court has held that speech cannot be punished solely because it "may have an adverse emotional impact upon the audience." Id. at 7 (citing Hustler Magazine, et al. v. Falwell, 485 U.S. 46, 55 (1988). He asserts that § 2261A(2)(B) is facially invalid because it encompasses more speech than threats, which are unprotected, and that it unconstitutionally punishes protected speech based on its content. Id. at 10. Even if § 2261A(2)(B) is not facially invalid, Mr. Bandy argues that in this case it is unconstitutional to indict him under the statute because the communications he allegedly sent are "neither defamatory nor obscene," do not incite violence or fraud, and do not contain any threats to M.D.'s physical safety. Id. at 11. Finally, he asserts that the statute is unconstitutionally vague under the Fifth Amendment because it does not provide fair warning of the conduct it prohibits and creates a risk of arbitrary enforcement. Id. at 14.

In response, the Government submits that the indictment is legally sufficient because it properly alleges that Mr. Bandy committed each of the essential elements of the crime charged. Doc. 134 at 6. The Government notes the claim that § 2261A(2)(B) is constitutionally overbroadhas been "universally rejected as meritless." Id. at 7, 8-10. Additionally, the Government asserts that the statute is not overbroad as applied to the facts of this case, as the electronic communications specifically targeted M.D., a private person who has never been a public figure. Id. at 13. These communications were "explicitly defamatory and libelous in their entirety without serving any recognized public interest." Id. The Government also submits that a strict scrutiny analysis is not appropriate under the law, as § 2261A(2)(B) is a conduct-based statute (rather than content-based) and these communications are not protected speech under the First Amendment. Id. at 16. And even under strict scrutiny, the Government asserts that it has a compelling and legitimate interest in preventing the harassment of individuals. Id. at 17-18. Next, the Government argues that a "fair reading" of the communications Mr. Bandy allegedly sent to M.D., taken as a whole, is consistent with the messages being obscene and defamatory. Id. at 19. The messages also have "a threatening character" because Mr. Bandy "threatened [M.D.] in ominous, frightening and escalating terms with the real possibility that he was surveilling her, watching her and that implicitly (and overtly) that he had marked her as prey for a reckoning sexual assault." Id. at 20. Finally, the Government states that the statute is not unconstitutionally vague under the Fifth Amendment and notes that this argument has been "summarily rejected" by the courts that have analyzed § 2261A(2)(B) for vagueness. Id. at 22 (citing United States v. Osinger, 753 F.3d 939, 945 (9th Cir. 2014); United States v. Conlan, 786 F.3d 380, 386 (5th Cir. 2015)).

In his reply, Mr. Bandy asserts that his speech has been unconstitutionally prohibited "simply because society finds [it] offensive or disagreeable." Doc. 157 at 1 (citing Texas v. Johnson, 491 U.S. 397, 414 (1989)). He argues again that § 2261A(2)(B) is overbroad both facially and as applied in his case, and he maintains that the communications are not obscene, defamatory, or integral to criminal conduct. Id. at 5, 8, 11, 15. Mr. Bandy also maintains that§ 2261A(2)(B) does not pass strict scrutiny. He argues that there is not a compelling governmental interest in protecting individuals from fear, abuse, or annoyance because in this case, the victim "could have deleted the communication, blocked future communications, or applied technological filters to prevent further contact." Id. at 19. Accordingly, he requests that the Court dismiss the indictment.

STANDARD

I. Rule 12

Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure lists a number of grounds upon which a defendant can challenge his indictment prior to trial, including that the indictment joins two or more offenses in the same count (duplicity), charges the same offense in more than one count (multiplicity), lacks specificity, or fails to state an offense. Fed. R. Crim. P. 12(b)(3)(B). The Tenth Circuit has stated that "[a]n indictment is sufficient if it sets forth the elements of the offense charged, puts the defendant on fair notice of the charges against which he must defend, and enables the defendant to assert a double jeopardy defense." United States v. Dashney, 117 F.3d 1197, 1205 (10th Cir. 1997). Challenging an indictment is not a means of "testing the strength or weakness of the government's case, or the sufficiency of the government's evidence." United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (citing United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994)). Rather, "[a]n indictment should be tested solely on the basis of the allegations made on its face, and such allegations are to be taken as true." Todd, 446 F.3d at 1067. Courts should therefore avoid considering evidence outside of the indictment when testing the indictment's legal sufficiency. Id. The Tenth Circuit has recognized a "rare exception" to this rule, however, where "the operative facts are undisputed" and those undisputed facts show that "asa matter of law, the Defendant could not have committed the offense for which he was indicted." Id. at 1068.

II. First Amendment Overbreadth Challenges

The First Amendment states in part, "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend. I. The First Amendment overbreadth doctrine ensures that lawmakers are precise in drafting statutes that target unprotected speech so as not to infringe on speech that is constitutionally protected. See Nat'l Ass'n for Advancement of Colored People v. Button, 371 U.S. 415, 432 (1963). The overbreadth doctrine authorizes "the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law...