Case o' The Week: The First and the Ninth - Osinger, First Amendment, and Internet Stalking
(But,
as Judge Rawlinson explains, not all offensive
and reprehensible speech is protected.)
United States v. Osinger, 2014
WL 2498131 (9th Cir. June 4, 2014), decision available here.
Players: Decision by Judge Rawlinson,
joined by Judges Graber and Watford. Concurrence by Judge Watford.
Facts: Christopher Osinger was indicted
for “engaging in a course of harassing conduct,” in violation of 18 USC §§
2261A(2)(A) and 2261(b)(5). Id. at
*1. Before trial he unsuccessfully moved to dismiss the indictment, arguing
that Section 2261A(2)(A) was unconstitutionally vague. Id. Trial testimony revealed that Osinger and the female victim,
V.B., had a romantic relationship that ended badly. Id. Osinger texted V.B., showed up at her house un-invited in the
early morning, and ultimately created a Facebook page in a name close to V.B.’s,
with nude photographs of her and offensive text. Id. at *1-*2. Osinger also sent disturbing emails to V.B.’s co-workers.
Id. He was convicted and sentenced to
46 months. Id. at *3.
Issue(s): “Osinger . . . contends that 18
USC § 2261A(2)(A) was unconstitutionally applied to his protected speech.” Id. at *5.
Held: “Any
expressive aspects of Osinger’s speech were not protected under the First
Amendment because they were ‘integral to criminal conduct’ in intentionally
harassing, intimidating, or causing substantial emotional distress to V.B. . .
. . In the limited context of 18 USC § 2261A, Osinger’s speech is not afforded
First Amendment protection for the additional reason that it involved sexually
explicit publications concerning a private individual.” Id. at *7.
Of Note: Hidden amongst the big constitutional fight is a
troubling holding of broad application: a denial of acceptance of
responsibility. Id. at *7. Osinger
was denied two-offense levels off for acceptance, even though he argued he went
to trial only to preserve his constitutional challenge to the statute. Id. at *7. In upholding that denial, the
Court relies heavily on defense counsel’s characterization of the evidence at
trial. Id. at *7. The Court also emphasizes
Osinger’s lack of contriteness, quoting equivocal acceptance of responsibility from his counsel (it appears). Id. at *8 (“Here, Mr. Osinger said and
did things out of anger.”)
If you want to navigate those narrow straits of
preserving an appellate issue through trial, while claiming acceptance, read Osinger. It is a sobering reminder that counsel’s actions can jeopardize acceptance
eligibility.
How to
Use: Concurring, Judge Watford would also uphold the statute against the as-applied
challenge. Id. at *9 (Watford, J.,
concurring). His First Amendment analysis is nuanced, however, and emphasizes that
this case involved both speech and
unprotected non-speech conduct. Id.
at *12. It is a thoughtful discussion, carefully tailored to the facts before
the Court.
Judge Watford ends with an observation that may be helpful in future
challenges: “It’s unclear whether this [more rigorous First Amendment] standard,
[that applies when a defendant is doing nothing but exercising the right of
free speech] would apply in a § 2261A prosecution in which the defendant caused
someone substantial emotional distress by engaging only in otherwise protected
speech. That is a question whose
resolution we wisely leave for another day.” Id. at *13 (emphasis added).
For
Further Reading: More than crack resentencing, probably
more than commutation, the retroactive application of the minus-two level
reduction in drug cases could have a profound impact for our incarcerated
clients. In the recent Commission hearing, DOJ offered a disappointing “compromise”
position that would limit retroactive application. For two critiques of DOJ’s
position, see Prof Berman's blog here.
And for ED Penn. AFPD Sarah Gannet’s compelling testimony, see here. Sarah did us all proud - make sure to thank her and the Sentencing Resource
Counsel for their hard work on a righteous cause.
First
Amendment logo from http://cojmc.unl.edu/firstamendment/funfacts.php
Steven
Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org
.
.
Labels: Acceptance of Responsibility, First Amendment, Rawlinson, Section 2261A, Watford
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