United States v. Sryniawski

48 F.4th 583

UNITED STATES of America, Plaintiff - Appellee,

v.Dennis SRYNIAWSKI, Defendant - Appellant.

No. 21-3487

United States Court of Appeals, Eighth Circuit.

Submitted: May 13, 2022

Filed: September 2, 2022

Counsel who presented argument on behalf of the appellant and appeared on the appellant brief was David R. Stickman, FPD, of Omaha, NE.

Counsel who presented argument on behalf of the appellee and appeared on the appellee brief was John Higgins, AUSA, of Omaha, NE.

Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.

COLLOTON, Circuit Judge.

Dennis Sryniawski was charged with federal offenses of cyberstalking and extortion after he sent a series of e-mails to a candidate for the Nebraska legislature. A jury acquitted Sryniawski of extortion but convicted him of cyberstalking, in violation of 18 U.S.C. § 2261A(2)(B). Sryniawski appeals the conviction, arguing that the e-mails constituted speech that is protected by the First Amendment, and that the evidence was insufficient to support a conviction. We conclude that the evidence was insufficient under a proper interpretation of the cyberstalking statute, and therefore reverse the conviction.

I.

Jeff Parris ran for the Nebraska legislature in 2018. At the time of the campaign, Parris was married to Diane Parris and was the step-father of Diane's adult daughter from a previous marriage. Jeff and Diane married in 1992, divorced in 1994, and then remarried in 2007. Between the two marriages, Diane was married to Dennis Sryniawski from 1994 to 1995.

In October 2018, during the legislative campaign, Sryniawski sent an e-mail to Parris's official campaign e-mail address from the name "Isaac Freely." The subject line of the e-mail was "Check your skeletons?" The e-mail called Parris's step-daughter a pedophile, and hyperlinked to two websites showing that she had been charged with online solicitation of a minor and sexual assault of a minor in Texas. The e-mail included a hyperlink to the step-daughter's sexually explicit weblog, and asserted that the step-daughter's " ‘Pansexuality’ does not recognize age either." Sryniawski also implied that he might report the step-daughter for fraudulently crowdfunding tickets to see a concert. The message was signed "Until next time, Exposing the Hypocrites!"

The e-mail message also referred to Diane Parris's relationship with her father. When Diane and Sryniawski were married, Diane told him that her father had molested her, and that she took prescription medication to address her emotional condition. Referring to Diane's disclosures about her father's conduct, the e-mail said: "Which did he really? Or was the Multiple Personality Disorder all a hoax to be a Pharm Addict?" The e-mail warned that "this is only just the beginning," and that there was "[m]ore to come," especially because Jeff and Diane had a "dozen" ex-spouses between them who did not want to see Jeff in politics. The e-mail concluded with a "suggestion" that Jeff should "bow out of the race."

Two days later, over a period of eight hours, Sryniawski sent five more e-mails to the Parris campaign address. The first of these, the second e-mail overall, bore the subject line "Gone But Not Forgotten." Sryniawski again sent this message from the name "Isaac Freely," and signed "Sincerely, Exposing the Hypocrisy" at the bottom. The e-mail attached a screen shot of a comment that Sryniawski had posted on the Parris campaign Facebook page under the name "Nicole Jacobs." The comment contained one of the same hyperlinks that Sryniawski sent in the first e-mail about the step-daughter's arrest for sexual assault and online solicitation of a minor. The body of the e-mail said that "the Ghosts will continue to haunt you," and included a statement as follows: "All we are asking, is Quit the Race. Step down from running for State Legislature, Never run for any Political Office again, & All will be Sweet, especially for the ‘Good Life’."

The third e-mail was from "Dennis Sryniawski" with the subject line, "Good Day?" The entire text of the e-mail read, "I so see the resemblance in Mother and Daughter!" The e-mail contained four broken-image thumbnails, but no images.

Sryniawski sent the fourth e-mail under the name "Joe Poluka." Like the third e-mail, it bore the subject line "Good Day?" and contained the text, "I so see the resemblance in Mother and Daughter!" The fourth e-mail included four photographs as attachments. The first showed Diane Parris campaigning, and the second showed Parris's step-daughter wearing a camisole. The third photo purportedly depicted the step-daughter performing oral sex on a male, and the fourth photo depicted Diane Parris performing oral sex on a male.

Sryniawski sent the fifth e-mail as a reply to the fourth e-mail using the pseudonym "C Payne," who is an ex-husband of Diane. The body of the e-mail said only, "Do We Have Your Attention Now?" Sryniawski sent the sixth and final e-mail as a reply to the preceding two e-mails using the step-daughter's name as the sender. The text read: "Are we not entertained?"

Jeff Parris shared the e-mails with his family. Jeff testified that the e-mails hurt him and his family "immensely," and that the photographs were "devastating." His step-daughter described the e-mails as "jarring," "unsettling," and "messed up." When Diane saw the e-mails, she became "very emotional" and was "obviously upset." Diane was also "horrified" and "afraid," because she inferred that Sryniawski must be the sender. Sryniawski was one of only a few people to whom Diane had disclosed the abuse that she suffered as a child, her diagnosis with a psychological condition, and her use of medication for that condition. Diane testified that after seeing the e-mails, she became frightened for her safety.

The day after receiving the sixth e-mail, Jeff Parris reported the messages to the La Vista Police Department. A local investigator and an FBI agent contacted Sryniawski at his workplace the same day. Sryniawski initially denied sending the e-mails, but soon admitted that he sent all of them.

A grand jury charged Sryniawski with cyberstalking, in violation of 18 U.S.C. § 2261A(2)(B), and extortion, in violation of 18 U.S.C. § 875(d). The case proceeded to trial. At the close of the government's case and at the close of all evidence, Sryniawski moved for judgment of acquittal. He argued that the evidence was insufficient to support a conviction, and that the cyberstalking and extortion statutes violated the First Amendment as applied to him. The district court denied the motions. The jury was instructed that speech is not protected by the First Amendment "if it is intended to harass or intimidate and would be reasonably expected to cause emotional distress," but the terms "harass" and "intimidate" were not further defined.

The jury convicted Sryniawski of cyberstalking but acquitted him of extortion. The district court imposed a sentence of one year and one day in prison, followed by three years of supervised release, and a $10,000 fine. Sryniawski appeals the conviction.

II.

Sryniawski contends that the cyberstalking statute, as applied to him, violates his right to freedom of speech under the First Amendment. He also contends that evidence was insufficient to sustain a conviction under the statute. In this case, Sryniawski's challenges merge into a single question: whether the evidence was sufficient to convict Sryniawski of cyberstalking under § 2261A(2)(B) when the statute is interpreted in a way that is consonant with the First Amendment.

A defendant is guilty of cyberstalking if he (1) "with the intent to ... harass [or] intimidate," (2) uses "any ... electronic communication system of interstate commerce ... to engage in a course of conduct," that (3) "causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to" the victim or his immediate family. 18 U.S.C. § 2261A(2)(B).

The mens rea element, as charged in this case, requires that a defendant act with the intent to "harass" or "intimidate." Id. § 2261A(2). If these terms are construed in their broadest sense, however, they would infringe on rights protected by the First Amendment. Broadly defined, "harass" can mean simply "to vex, trouble, or annoy continually or chronically." Webster's Third New International Dictionary of the English Language Unabridged 1031 (1993). "Intimidate" can mean "to make timid or fearful." Webster's Third New International Dictionary of the English Language Unabridged 1184 (2002).

Even where emotional distress is reasonably expected to result, the First Amendment prohibits Congress from punishing political speech intended to harass or intimidate in the broad senses of those words. The Free Speech Clause protects a variety of speech that is intended to trouble or annoy, or to make another timid or fearful. In Snyder v. Phelps , 562 U.S. 443, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011), for example, the Supreme Court held that protestors at a serviceman's funeral had the right to display signs that read, "Thank God for Dead Soldiers," "God Hates Fags," and "You're Going to Hell." Id. at 448, 461, 131 S.Ct. 1207. In R.A.V. v. City of St. Paul , 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992), the Court declared unconstitutional a criminal ordinance that prohibited the display of burning crosses, Nazi swastikas, and other symbols that the perpetrator had reasonable grounds to know would arouse "anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." Id. at 380, 391, 112 S.Ct. 2538. Hustler Magazine, Inc. v. Falwell , 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988), held that the First Amendment protected a parody that depicted a prominent minister having drunken sex with his mother. Id . at 47-48, 50, 108 S.Ct. 876 ; see also Saxe v. State Coll. Area Sch. Dist. , 240 F.3d 200, 204 (3d Cir. 2001) (Alito, J.) ("There is no categorical ‘harassment exception’ to the First Amendment's...