United States v. Garcia

1

UNITED STATES OF AMERICA, Plaintiff, v. (1) ASHLEY TANYA GARCIA, Defendant.

No. SA-23-CR-00238-JKP

United States District Court, W.D. Texas, San Antonio Division

January 12, 2024

MEMORANDUM OPINION AND ORDER

JASON PULLIAM, UNITED STATES DISTRICT JUDGE.

Before the Court is Defendant Ashley Tanya Garcia's Motion to Dismiss the Indictment. See ECF No. 34. The Government filed a response and Garcia filed a reply. See ECF Nos. 35, 36. After due consideration of the parties' briefings, legal arguments, and the applicable law, the Court DENIES the motion. See ECF No. 34.

BACKGROUND

Defendant Ashley Tanya Garcia is charged with one Count of Cyberstalking, in violation of 18 U.S.C. § 2261A(2), and one Count of Identity Theft, in violation of 18 U.S.C. § 1028(a)(7). See ECF No. 12. The U.S. Government alleges that, between December 2020 and November 2022, Garcia registered 18 website domains, all variations on the victim's name and the terms which relate to the victim's employment and his alma mater. See Gov't Exhibit 1 (FBI GJ Serial 2, Report of Google Subpoena Returns). Garcia is alleged to have posted “blog entries” at these domains, and numerous other domains, relating to the victim. In total, the Government alleges Garcia posted over 750 blog entries just on the domains that used the victim's name. See Gov't Exhibit 2. As of the time of the Government's filing of its response brief, a Google search for the victim's name returned websites owned and operated by Garcia, referring to the victim. See Gov't Exhibit 3.

According to the Government, on or about March 28, 2020, Garcia sent an email to the victim's employers entitled, “[C.K.] posts pictures of his penis and masturbates for people on Reddit...” See Gov't Exhibit 4. Garcia allegedly told the victim her intent was to “ruin your fucking life.” See Gov't Exhibit 5. She also allegedly stated she hoped his employer “has a morality clause,” implying that she hoped he would lose his job, “[a]nd that everyone in finance hears about your firing. You'll never work again lol.” See Gov't Exhibit 6. Her animus was allegedly expressed in another message to the victim in which she stated she hoped he would “rot in hell you piece of shit.” See Gov't Exhibit 7. Garcia is also accused of creating several social media accounts using the victim's name and picture, including on Facebook Instagram and Twitter accounts. See Gov't Exhibit 8.

Garcia brings the instant motion arguing the Court should dismiss the indictment because, as to Count 1, § 2261A(2) is unconstitutional both facially and as applied to Garcia and as to Count 2, the Government failed to state a viable § 1028(a)(7) offense against Garcia and, in the alternative § 1028(a)(7) is unconstitutional as applied to Garcia. For the reasons discussed herein, the Court disagrees.

LEGAL STANDARD

Federal Rule of Criminal Procedure 12 provides that “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue.” Fed. R. Crim. P. 12(b)(1). If a pretrial motion presents a question of law in a case involving undisputed facts, Rule 12 authorizes the court to rule on the motion. United States v. Flores, 404 F.3d 320, 325 (5th Cir. 2005); see Fed. R. Crim. P. 12(d) (permitting the court to rule on a motion involving factual issues provided the court states its essential findings on the record); see also, United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994) (“a pretrial dismissal is essentially a determination that, as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.”). Otherwise, the court would waste resources by allowing a case to proceed to trial and later dismissing it based on the same legal argument and facts presented through a pretrial motion. See Flores, 404 F.3d at 325.

DISCUSSION

I. Count 1: Cyberstalking under § 2261A(2)

Count 1 charges Garcia with cyberstalking under 18 U.S.C. § 2261A(2). Garcia offers four reasons why the Court should dismiss this count: (1) the statute is facially unconstitutional under the First Amendment; (2) the Fifth Circuit narrowed the statute's application to “true threats” in United States v. Conlan and Garcia's alleged statements do not constitute true threats; (3) the statute is void for vagueness; and (4) the Government has failed to state a cognizable offense. The Court considers each of these arguments, in turn, below.

A. First Amendment Facial Challenge

Garcia argues § 2261A(2) is facially unconstitutional because it criminalizes First Amendment protected speech. The First Amendment provides, in relevant part, “Congress shall make no law ... abridging the freedom of speech....” U.S. Const. Amend. I. “[A]s a general matter, the First Amendment means the government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468 (2010). This broad pronouncement is subject to certain exceptions, including for incitement, obscenity, defamation, fighting words, child pornography, speech integral to criminal conduct, and true threats. United States v. Alvarez, 567 U.S. 709, 717 (2012). Courts determine whether a statute is unconstitutional under the First Amendment by assessing whether its text prohibits speech that is afforded First Amendment protection. United States v. Williams, 553 U.S. 285, 293 (2008). The cyberstalking statute under which Garcia is charged provides:

Whoever-

(1) travels in interstate or foreign commerce or is present within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel or presence engages in conduct that-

(A) places that person in reasonable fear of the death of, or serious bodily injury to-

(i) that person;

(ii) an immediate family member (as defined in section 115) of that person;

(iii) a spouse or intimate partner of that person; or

(iv) the pet, service animal, emotional support animal, or horse of that person; or

(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of subparagraph (A); or

(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that-

(A) places that person in reasonable fear of the death of or serious bodily injury to a person, a pet, a service animal, an emotional support animal, or a horse described in clause (i), (ii), (iii), or (iv) of paragraph (1)(A); or

(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A),

shall be punished as provided in section 2261(b) or section 2261B, as the case may be.

18 U.S.C. § 2261A. Specifically, the indictment charges Garcia, under § 2261A(2) with “intent to harass, intimidate and place under surveillance with intent to harass and intimidate another person, namely C.K., us[ing] an interactive computer service, electronic communication system of interstate commerce, and other facility of interstate and foreign commerce to engage in a course of conduct that caused, attempted to cause, and would be reasonably expected to cause substantial emotional distress to C.K.” See ECF No. 12 at 1.

The prohibited act in the statute is “conduct.” Specifically, the cyberstalking statute criminalizes, in relevant part, “conduct” that “causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress.” 18 U.S.C. § 2261A(2)(B). Such conduct may include both speech and nonspeech elements. For example, the complaint in this case alleges Garcia sent emails with embarrassing information about the victim to the victim's supervisors, intending to “ruin [the victim's] fucking life.” See ECF No. 3 at 3 ¶ 5. The complaint further alleges Garcia obtained internet domains with the victim's name and authored posts on those domains containing injurious and harassing information about the victim, in an attempt harm his reputation with potential employers who searched his name online. Id. at 3 ¶ 6. Garcia's alleged statements-the content of the emails and the internet posts-are speech. However, the act of sending emails to the victim's employer is not speech. Nor is the act of collecting internet domains with the victim's name and attempting to damage his reputation with potential employers. The Supreme Court has indicated that “when ‘speech' and ‘nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms” United States v. O'Brien, 391 U.S. 367, 376-77 (1968). By its plain text, § 2261A criminalizes a course of “conduct” that causes substantial emotional distress to the victim. The prohibited act is tethered to the underlying criminal conduct, not the speech. Such conduct is not afforded First Amendment protection even though it includes both speech and nonspeech elements.

In urging the Court to find the cyberstalking statute facially unconstitutional, Garcia cites extensively from a Third Circuit opinion which assessed a similar ...