United States v. Brandon Michael Fleury ( 2021 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-11037
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRANDON MICHAEL FLEURY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:19-cr-60056-RAR-1
____________________
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2 Opinion of the Court 20-11037
Before WILSON, ROSENBAUM, and HULL, Circuit Judges.
WILSON, Circuit Judge:
Defendant-Appellant Brandon Fleury was convicted by a
jury in the Southern District of Florida on one count of transmit-
ting interstate threats, in violation of 18 U.S.C. § 875(c) (Count 1),
and three counts of cyberstalking, in violation of 18 U.S.C.
§ 2261A(2)(B) (Counts 2–4). Fleury’s convictions stem from posts
he made and messages he sent on Instagram, posing as various
mass murderers including notorious serial killer Ted Bundy and Ni-
kolas Cruz, the perpetrator of the Marjory Stoneman Douglas High
School shooting. Fleury directed these posts and messages to three
individuals (Jesse Guttenberg, Alexis Sealy, and Max Schachter re-
ferred to in the indictment as Victims 1, 2, and 3, respectively) who
lost loved ones in the shooting.
The district court sentenced Fleury to sixty months in prison
for each of Counts 1–3, to run concurrently, and six months in
prison as to Count 4, to be served consecutively to Counts 1–3. He
was also sentenced to three years of supervised release for each
count. On appeal, Fleury raises various challenges to the constitu-
tionality of § 2261A(2)(B), the sufficiency of the indictment and ev-
idence, the jury instructions, and the admission of expert testi-
mony.
BACKGROUND
On February 14, 2018, Nikolas Cruz murdered seventeen
students and faculty members at Marjory Stoneman Douglas High
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20-11037 Opinion of the Court 3
School in Parkland, Florida, using an AR-15 style semi-automatic
rifle (MSD shooting). Between December 22, 2018, and January 11,
2019, Brandon Fleury—bearing aliases like nikolas.killed.your.sis-
ter, the.douglas.shooter, and Teddykillspeople (referencing Ted
Bundy)—sent victims’ family members and friends taunting and
harassing Instagram messages that they allege put them in fear for
their own lives.
The following evidence was adduced at trial. The govern-
ment’s case-in-chief centered on three victims: Max Schachter,
Jesse Guttenberg, and Alexis Sealy. 1 Max Schachter’s fourteen-year-
old son, Alex, was killed in the MSD shooting. Following Alex’s
murder, Schachter started a scholarship fund in his name and
served as an advocate for school safety. In December 2018,
Schachter began receiving “very scary messages” on his Instagram
account. Examples of the messages he received include: “I killed
Alex and it was fun” and “they had their whole lives ahead of them
and I f**king stole it from them.” While all of these messages were
abhorrent, Schachter testified that he was especially frightened by
two messages in particular: “I’m your abductor I’m kidnapping you
fool” and “With the power of my AR-15, I take your loved ones
away from you PERMANENTLY.”
1 Count 2 of the indictment encompasses messages directed towards Jesse Gut-
tenberg, Count 3 towards Alexis Sealy, and Count 4 towards Max Schachter.
All three victims testified at trial.
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Similar messages were sent to Jesse Guttenberg and Alexis
Sealy. Jesse’s younger sister Jaime was also killed in the MSD shoot-
ing. On December 22, 2018, during his senior year of high school,
Jesse woke to find a barrage of messages sent to his Instagram ac-
count. These messages included “I’m a murderer,” and “[t]hey had
their whole lives ahead of them and I f**king stole it from them.”
As with Max Schachter, Jesse received a message that said, “I’m
your abductor I’m kidnapping you fool.” And a later series of mes-
sages included, “With the power of my AR-15 I take your loved
ones away from you”; “I’m the monster that killed your family”;
and “With the power of my AR-15 you all die.” Jesse showed the
messages to his parents, who contacted law enforcement. Police
consequently maintained a presence outside the Guttenberg home
during the 2018 winter break and continued to closely monitor
Jesse’s movements upon his return to school, which began to “af-
fect [his] personal life and take away from what [he] needed to be
doing.”
In mid-December 2018, Alexis Sealy also began receiving
harassing messages on Instagram. A lot of these messages taunted
Alexis about the death of her best friend, Jaime Guttenberg. Like
Max Schachter and Jesse Guttenberg, she received messages that
said: “With the power of my AR-15 I erased their existence. Your
grief is my joy”; “I’m your abductor I’m kidnapping you fool”; and
“with the power of my AR-15 I take your loved ones away from
you PERMANENTLY.”
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On December 22, 2018, having sent harassing messages to
another MSD survivor, Cameron Kasky, Fleury admitted in a pri-
vate message that he “took it way too far with [his] trolling.”
Law enforcement obtained the IP address associated with
the usernames from which the messages were sent, and deter-
mined it was assigned to Fleury’s home address. In a post-Miranda
statement, Fleury admitted to having sent the messages at issue
and said that the usernames he used were inspired by his attraction
to “aggressive people with violent tendencies,” such as Nikolas
Cruz and Ted Bundy.
A grand jury returned a four-count indictment charging
Fleury with interstate transmission of a threat to kidnap, in viola-
tion of 18 U.S.C. § 875(c) (Count 1) 2, and interstate cyberstalking,
in violation of 18 U.S.C. § 2261A(2)(B) (Counts 2–4). Fleury filed a
pre-trial motion to dismiss the cyberstalking counts as facially over-
broad under the First Amendment and unconstitutional as applied
to his offense conduct, which the government opposed. The dis-
trict court denied Fleury’s motion in a written order, finding the
cyberstalking statute neither overbroad nor unconstitutional as ap-
plied.
2 The basis for Count 1 was the message Fleury sent from the username “Ted-
dykillspeople” to all three victims that read: “I’m your abductor [smile emoji
and applauding emoji]. I’m kidnapping you fool [lock emoji and blowing kiss
emoji].”
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At trial, the defense did not contest that Fleury sent the mes-
sages in question. Instead, the defense contended that Fleury, who
is autistic, did not have the requisite intent to be convicted because
he did not understand that his actions would cause substantial emo-
tional distress to others. Fleury’s father, Patrick, testified that his
son had been diagnosed with attention deficit disorder (ADD), at-
tention deficit hyperactivity disorder (ADHD), autism spectrum
disorder (ASD), and obsessive compulsive disorder (OCD), and
that his son existed “in his own little fantasy world.” Dr. Lori Butts,
the defense’s expert in forensic psychology, testified that she exam-
ined Fleury and diagnosed him as suffering from ASD Level 2 with-
out intellectual impairment. She opined that he had difficulty un-
derstanding the emotions of others and that he did not understand
the emotional impact of his behavior on his victims. Specifically,
she testified that Fleury could understand sadness in others but not
grief.
In response, the government called Dr. Park Dietz, an expert
in forensic psychiatry who evaluated Fleury for eight hours over
two days and diagnosed him with ASD Level 1. Dr. Dietz testified
that Fleury could appreciate the emotional impact of his messages
on his victims and that he intended for the messages to cause anger,
grief, and fear. Disagreeing with Dr. Butts, he concluded Fleury
“may not have had complete understanding the way most of us
would, but . . . he understood enough to know how bad this was.”
During Dr. Dietz’s evaluation, Fleury acknowledged that he was
sexually attracted to serial killers and that this attraction “focused
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20-11037 Opinion of the Court 7
on both the physical attractiveness of the person and also on what
they had done.” Dr. Dietz testified that he questioned Fleury in
some detail about what Fleury found alluring about the serial kill-
ers, and Dr. Dietz’s understanding of Fleury’s response was that
“he found it arousing that they were so domineering and had done
so much harm to others.” Dr. Dietz posited a connection between
Fleury’s sexual proclivities to taunting and the charged conduct:
“he was aroused by the people but also by their bad acts, including
victim taunting. And . . . he wanted to be like them, and that’s why
he chose the persona of Nikolas Cruz or Ted Bundy to present him-
self to the world in these anonymous communications.”
After a five-day trial, the jury convicted Fleury of all four
counts. The district court sentenced Fleury to 66 months’ impris-
onment, to be followed by three years of supervised release. Fleury
timely appealed, raising challenges to the constitutionality of 18
U.S.C. § 2261A(2)(B), the jury instructions, the sufficiency of the
evidence for intent, the admissibility of Dr. Dietz’s expert testi-
mony, and the sufficiency of the indictment. We address each issue
in turn.
DISCUSSION
I. Constitutional Challenges to 18 U.S.C. § 2261A(2)(B)
Prior to trial, Fleury moved the district court to dismiss
Counts 2–4 of the indictment, contending the cyberstalking statute,
18 U.S.C. § 2261A(2)(B), was facially unconstitutional for being
overbroad because it applied to a substantial amount of protected
speech and unconstitutional as applied to his conduct under the
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8 Opinion of the Court 20-11037
First Amendment. The district court denied Fleury’s motion, first
rejecting his facial overbreadth argument by concluding “the plain
language of section 2261A(2)(B) is directed towards conduct, not
speech, and the statute does not punish a substantial amount of
protected free speech in relation to its plainly legitimate sweep.”
Regarding Fleury’s as-applied challenge, the court found the mes-
sages qualified as true threats and thus did not merit protection un-
der the First Amendment. The court noted that Fleury “made nu-
merous comments indicating a serious expression of an intent to
commit an act of unlawful violence towards the victims,” and that
his use of monikers based on notorious mass murderers “commu-
nicated to [the victims] that he had an intent to kidnap, kill, or oth-
erwise harm them.” The court ultimately concluded that the mes-
sages “implied an ongoing intent to commit future acts of vio-
lence.”
At the close of the government’s case-in-chief, Fleury moved
for a judgment of acquittal under Federal Rule of Criminal Proce-
dure 29, arguing the messages he sent were not true threats and
thus were subject to First Amendment protection. In response, the
government noted that it had presented evidence showing that
Fleury sent the threatening and harassing messages anonymously,
adopted usernames referencing known serial killers, and drafted a
number of the threatening messages in the present tense, which
indicated an ongoing threat to the victims. The district court de-
nied Fleury’s motion and later denied Fleury’s renewed motion at
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20-11037 Opinion of the Court 9
the close of evidence, concluding that the government had pre-
sented sufficient evidence to send all four counts to the jury.
During the charge conference, the district court reiterated
that, because the course of conduct underlying Fleury’s
§ 2261A(2)(B) charges was speech, the jury would have to find that
his course of conduct included true threats. Accordingly, the court
included an instruction for those counts stating: “You may only
find the Defendant guilty if his course of conduct included the com-
munication of a true threat.” 3
On appeal, Fleury reasserts his facial overbreadth and as-ap-
plied challenges to the constitutionality of 18 U.S.C. § 2261A(2)(B).
He contends that the statute is unconstitutionally overbroad be-
cause it has a wide-ranging sweep that encompasses protected
speech—including a substantial amount of speech on matters of
public concern—simply for causing an emotional reaction. Fleury
argues that the statute is also unconstitutional as applied to his con-
duct because it amounts to a content-based restriction, limiting
speech on the basis of whether that speech is emotionally distress-
ing. The speech at issue, according to Fleury, was also on a matter
of public concern and thus was entitled to special protection.
The government responds that Fleury glosses over critical
statutory elements, including criminal intent, in his effort to por-
tray § 2261A(2)(B) as facially unconstitutional. Section 2261A(2)(B)
3 We will discuss the definition of “true threat” given to the jury and the par-
ties’ attendant arguments in detail below.
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10 Opinion of the Court 20-11037
is also not unconstitutional as applied to Fleury’s conduct, the gov-
ernment argues, because true threats—like the messages Fleury
sent to the victims—are entitled to no First Amendment protection
and the messages did not address a matter of public concern.
* * *
We review both of Fleury’s constitutional challenges de
novo. United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir. 2011).
A. Overbreadth Challenge.
Section 2261A(2)(B) applies to whomever “with the intent
to kill, injure, harass, intimidate . . . uses . . . any interactive com-
puter service or electronic communication system of interstate
commerce . . . to engage in a course of conduct that” “causes, at-
tempts to cause, or would be reasonably expected to cause substan-
tial emotional distress.” 18 U.S.C. § 2261A(2)(B). The term “course
of conduct” is defined as “a pattern of conduct composed of 2 or
more acts, evidencing a continuity of purpose.” 18 U.S.C. § 2266(2).
A conviction under § 2261A(2)(B) thus requires proof that
“(1) the defendant had the requisite intent; (2) the defendant en-
gaged in a course of conduct; (3) the defendant used a facility of
interstate commerce; and (4) the defendant’s course of conduct
caused, attempted to cause, or would be reasonably expected to
cause substantial emotional distress.” United States v. Ackell, 907
F.3d 67, 72 (1st Cir. 2018) (alterations adopted and internal quota-
tion marks omitted).
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A statute is impermissibly overbroad under the First Amend-
ment—and facially unconstitutional—if it prohibits “a substantial
amount of protected speech.” United States v. Williams, 553 U.S.
285, 292 (2008). The Supreme Court has long recognized that “the
overbreadth doctrine is ‘strong medicine’ and ha[s] employed it
with hesitation, and then ‘only as a last resort.’” New York v. Fer-
ber, 458 U.S. 747, 769 (1982). The burden of establishing over-
breadth rests on the party challenging the statute. Virginia v. Hicks,
539 U.S. 113, 122 (2003).
Fleury has not met his burden of demonstrating that
§ 2261A(2)(B) is unconstitutionally overbroad. His facial challenge
fails because it ignores key statutory elements that narrow the con-
duct it applies to—including, for example, proof that the defendant
acted with “intent to kill, injure, harass, [or] intimidate” and evi-
dence that the defendant “engage[d] in a course of conduct” con-
sisting of two or more acts evidencing a continuity of purpose. 18
U.S.C. § 2261A(2)(B). Further, “[t]he mere fact that one can con-
ceive of some impermissible applications of a statute is not suffi-
cient to render it susceptible to an overbreadth challenge.” Wil-
liams, 553 U.S. at 303 (internal quotation mark omitted). The Su-
preme Court has “vigorously enforced the requirement that a stat-
ute’s overbreadth be substantial, not only in an absolute sense, but
also relative to the statute’s plainly legitimate sweep.” Id. at 292–
93.
Because § 2261A(2)(B) is not “substantial[ly]” overbroad, we
uphold the constitutionality of the statute. See id. In doing so we
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12 Opinion of the Court 20-11037
join every circuit court of appeals that has addressed a facial attack
to § 2261A(2)(B). See United States v. Ackell, 907 F.3d 67, 73 (1st
Cir. 2018) (concluding that § 2261A(2)(B) does not target speech,
and therefore is not unconstitutionally overbroad, because even
though the statute “could reach highly expressive conduct, it is
plain from the statute’s text that it covers countless amounts of un-
protected conduct”); United States v. Petrovic, 701 F.3d 849, 856
(8th Cir. 2012) (concluding, under the prior version of the statute,
that “[m]ost, if not all, of the statute’s legal applications are to con-
duct that is not protected by the First Amendment” (alteration
adopted)); United States v. Osinger, 753 F.3d 939, 944 (9th Cir.
2014) (rejecting an overbreadth challenge to the prior version of
§ 2261A(2)(B) and concluding that because the statute “proscribes
harassing and intimidating conduct, the statute is not facially inva-
lid”).
We find the analysis the First Circuit employed in Ackell par-
ticularly persuasive. In that case, the defendant was charged and
convicted with one count of cyberstalking under Section
2261A(2)(B) in a sextortion case involving a teenager. Defendant
Ackell had threatened to send explicit photos of a teenage girl to
her family and friends if she did not do what he wanted. Ackell
challenged the statute as facially overbroad on appeal. The First
Circuit upheld the conviction and dismissed Ackell’s overbreadth
argument, concluding that the statute does not target speech; ra-
ther, it “targets conduct, specifically ‘conduct performed with seri-
ous criminal intent.’” 907 F.3d at 74. “[W]hile § 2261A(2)(B) could
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20-11037 Opinion of the Court 13
reach highly expressive conduct,” the court explained, “it is plain
from the statute’s text that it covers countless amounts of unpro-
tected conduct.” Id. at 73. To demonstrate this point, the court pro-
vided examples of unprotected conduct covered under the statute:
a defendant could send envelopes of unknown white
powder to the victim in the mail; he could send the
victim nude photographs of herself; he could repeat-
edly infect the victim’s computers with viruses; he
could open unwanted on-line dating profiles under
the victim’s identity; he could take out unwanted
loans in the victim’s name; or he could arrange every
day for deliveries to be made at the victim’s home at
all hours of the night.
Id. Thus, the First Circuit declined to employ the “strong medi-
cine” of overbreadth and strike down Section 2261A(2)(B). So too
do we.
B. As-Applied Challenge.
Fleury’s as-applied challenge fares no better than his facial
challenge. While it’s feasible to think of limited instances in which
§ 2261A(2)(B) could apply to constitutionally-protected speech,
Fleury’s case is not one of them. He argues that the statute is un-
constitutional as applied to his conduct because (1) his speech con-
cerned a matter of public concern, and (2) the statute impermissi-
bly restricts the content of his speech. Neither argument has merit.
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a. Matter of Public Concern.
“Speech on matters of public concern is at the heart of the
First Amendment’s protection.” Snyder v. Phelps, 562 U.S. 443,
451–52 (2011) (cleaned up). Speech is considered to deal with a mat-
ter of public concern “when it can be fairly considered as relating
to any matter of political, social, or other concern to the commu-
nity, or when it is a subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the public[.]”
Id. at 453 (internal quotation marks and citations omitted). Such
speech is afforded greater First Amendment protection than speech
on purely private matters because restricting the latter presents “no
threat to the free and robust debate of public issues . . . [or] poten-
tial interference with a meaningful dialogue of ideas.” Id. at 452.
Whether speech addresses a matter of public or private concern
turns on “the content, form, and context” of the speech. Id. at 453.
The district court correctly concluded—after considering
their content, form, and context—that Fleury’s messages address
purely private matters. Of course, the MSD shooting itself is a mat-
ter of public concern that kick-started a debate on multiple political
and social issues, including mental health, gun control, and school
safety. However, Fleury’s messages did not address any of these
topics, attempt to engage in a dialogue concerning these issues, or
provide any other relevant information. Instead, as the district
court noted, the messages threatened and intimidated the victims
by gloating over the death of their loved ones and “focused only on
exacerbating the victims’ grief—a purely private matter.” The
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government is correct in stating that “[t]he fact that Fleury’s threat-
ening and intimidating messages arose in the wake of a public trag-
edy does not transform their ‘overarching purpose’ into constitu-
tionally protected commentary on a matter of public concern.” Put
simply, restricting the speech at issue presents “no threat to the free
and robust debate of public issues [nor] potential interference with
a meaningful dialogue of ideas.” Phelps, 562 U.S. at 452.
b. Content-Based Regulation.
We now turn to Fleury’s argument that § 2261A(2)(B) un-
constitutionally restricts the content of his speech.
Regulations are content based—and subject to strict scru-
tiny—if they, “by their terms[,] distinguish favored speech from dis-
favored speech on the basis of the ideas or views expressed.”
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). On the
other hand, “laws that confer benefits or impose burdens on speech
without reference to the ideas or views expressed are in most in-
stances content neutral.” Id.As an initial matter, we agree with Fleury that the applica-
tion of § 2261A(2)(B) to his speech amounts to a content-based re-
striction. It is precisely because of the content of his speech—which
included threats to kidnap the three victims and to kill them and
their other loved ones—that Fleury was investigated, indicted, and,
ultimately, convicted. This conclusion does not, however, end our
analysis. The district court found that § 2261A(2)(B)—as applied to
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Fleury—did not violate the First Amendment because his messages
were true threats. We agree with the district court.
The Supreme Court has long recognized certain “well-de-
fined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Consti-
tutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568,
571–72 (1942). Among these categories are incitement, obscenity,
defamation, speech integral to criminal conduct, fighting words,
child pornography, fraud, speech presenting a grave and imminent
threat, and true threats. See United States v. Alvarez, 567 U.S. 709,
717 (2012). Content-based restrictions are permitted when they are
confined to these categories of speech. Id. In fact, the Supreme
Court has recognized that the protection of our tradition of free
speech and thought “can still thrive, and even be furthered, by ad-
herence to [these] categories” and restrictions. Id. at 718.
The relevant category of speech here is that of true threats.
“‘True threats’ encompass those statements where the speaker
means to communicate a serious expression of an intent to commit
an act of unlawful violence to a particular individual or group of
individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). The
speaker does not have to actually intend to carry out the threat for
the statement to constitute a true threat. Id. at 359–60. “Rather, a
prohibition on true threats protects individuals from the fear of vi-
olence and from the disruption that fear engenders, in addition to
protecting people from the possibility that the threatened violence
will occur.” Id. at 360 (cleaned up).
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Fleury made numerous comments that indicated a serious
expression of an intent to commit an act of unlawful violence to-
ward each victim. For example, Fleury assumed the alias of one of
the nation’s most notorious serial killers, Ted Bundy, when he sent
messages to all three victims from the username “Teddykillspeo-
ple” that he had the intent to kidnap or otherwise harm them. In
other messages sent over the course of several days, Fleury charac-
terized himself as Nikolas Cruz, declared himself a “murderer” and
threatened that “[w]ith the power of my AR-15, you all die.”
The district court correctly noted that “[t]hese messages did
more than celebrate the death of the victims’ loved ones. Instead,
they implied an ongoing intent to commit future acts of violence.”
Take, for instance, the message that Fleury sent all three victims:
“I’m your abductor. I’m kidnapping you fool.” This message is
worded in the present tense and evidences an intent to intimidate
and place the recipient of the message in fear of bodily harm or
death. See Black, 538 U.S. at 360. In fact, Alexis Sealy testified that
receiving this message affected her “because this was the first mes-
sage [she] had received that enforced some kind of action.” Further,
messages stating “you all die” and expressing an intent to “take
your loved ones away” clearly show an intent to harm or kill indi-
viduals that are still alive, rather than merely taunting the victims
over the lives that had already been lost. Moreover, at least one of
the victims, Jesse Guttenberg, was in such fear for his life that his
parents requested law enforcement maintain a presence outside
the Guttenberg home and monitor Jesse’s movements at school.
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And law enforcement apparently agreed with the assessment, as
they went ahead and provided the protection.
When viewing Fleury’s messages within the context of his
entire course of conduct—including the sheer number and fre-
quency of the messages 4—they create the visual of an anonymous,
persistent tormenter who desires to harm the victims. This is pre-
cisely the type of fear that the “true threats” doctrine is intended to
prevent. See Black, 538 U.S. at 360 (noting that a prohibition on
true threats serves to protect individuals from the fear of violence).
Because we agree with the district court that the messages
Fleury sent amount to true threats, they are not afforded protec-
tion under the First Amendment. Accordingly, § 2261A(2)(B) is
constitutional as applied to Fleury’s conduct.
II. Sufficiency of the Indictment for § 2261A(2)(B)
Having determined that § 2261A(2)(B) is constitutional both
facially and as applied to Fleury’s conduct, we turn to Fleury’s chal-
lenge to the sufficiency of the indictment.
Fleury argues that the indictment was insufficient for his cy-
berstalking counts under 18 U.S.C. § 2261A(2)(B) because it was
4 When asked about the number of messages she received, Alexis Sealy testi-
fied that “[i]t would be about tens, maybe even a hundred messages a night
over the span of a few weeks.” More specifically, documents in evidence show
that, from December 22, 2018, to January 11, 2019, Fleury used thirteen differ-
ent Instagram accounts to send a total of 168 messages to Jesse Guttenberg, 75
messages to Alexis Sealy, and 58 messages to Max Schachter.
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based on the emotional distress his messages caused the victims,
not because they were “true threats.” The relevant portion of the
indictment reads:
BRANDON MICHAEL FLEURY, did, with the intent
to harass and intimidate, use an interactive computer
service and electronic communication service and
any other facility of interstate and foreign commerce
to engage in a course of conduct that caused, at-
tempted to cause, and would be reasonably expected
to cause substantial emotional distress . . . .
Fleury did not challenge the sufficiency of the indictment in
the district court. “When the adequacy of an indictment is chal-
lenged for the first time on appeal, this Court must find the indict-
ment sufficient unless it is so defective that it does not, by any rea-
sonable construction, charge an offense for which the defendant is
convicted.” United States v. Gray, 260 F.3d 1267, 1282 (11th Cir.
2001) (internal quotation mark omitted).
Fleury’s unpreserved challenge to his indictment provides
no basis for us to vacate his cyberstalking convictions. The indict-
ment tracked the language of the statute, provided Fleury with ad-
equate notice of his charges, and sufficiently charged the offense
for which he was convicted. See id. An indictment is not insufficient
simply because it “might have been drafted with more clarity.”
United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir. 2003). Ac-
cordingly, we affirm the district court.
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20 Opinion of the Court 20-11037
III. Sufficiency of the Evidence for Subjective Intent
Having found the indictment sufficient, we now turn to
Fleury’s challenge to the sufficiency of the evidence for his subjec-
tive intent to threaten.
At trial, Fleury moved for a judgment of acquittal under Fed-
eral Rule of Criminal Procedure 29. Fleury argues that the district
court erred in denying both his motion and his renewed motion
under Rule 29 because the government presented no evidence
whatsoever that Fleury—who the government acknowledged did
not have the same understanding of emotion as the average per-
son—intended to threaten anyone. There was thus insufficient ev-
idence, he contends, of his subjective intent to transmit interstate
threats and cyberstalk, and his convictions should be reversed.
“We review de novo a district court’s denial of judgment of
acquittal on sufficiency of evidence grounds.” United States v.
Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). In reviewing a chal-
lenge to the sufficiency of the evidence, we view the evidence in
the light most favorable to the prosecution and draw “all reasona-
ble inferences and credibility choices” in its favor. Id. “This inquiry
does not require that the evidence be inconsistent with ‘every rea-
sonable hypothesis except guilt.’” Id. Accordingly, we will uphold
the denial of judgment of acquittal—and affirm the guilty verdict—
if “any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443
U.S. 307, 319 (1979).
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20-11037 Opinion of the Court 21
Viewing the evidence in the light most favorable to the pros-
ecution, there was sufficient evidence of Fleury’s subjective intent
to threaten. The jury heard from both a defense expert witness, Dr.
Butts, and a government expert witness, Dr. Dietz, and they gave
conflicting accounts of Fleury’s culpability and the effect his ASD
had on his ability to comprehend emotions. Specifically, Dr. Dietz
concluded that Fleury intended to cause his victims anger, grief,
and fear. And, in response to a questionnaire Fleury completed dur-
ing Dr. Butts’s evaluation, Fleury described himself as “a sympa-
thetic person” and maintained that he “can put [himself] in other
people’s shoes.”
After hearing the testimony, the jury was free to determine
both experts’ credibility as it saw fit. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986) (explaining that “[c]redibility
determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions”). We de-
cline to invade the province of the jury by reevaluating the experts’
credibility and reweighing the evidence on appeal. In fact, it is pre-
cisely because “we recognize that ‘the jury is free to choose be-
tween or among the reasonable conclusions to be drawn from the
evidence presented at trial,’ [that] our sufficiency review requires
only that a guilty verdict be reasonable, not inevitable, based on
the evidence presented at trial.” Browne, 505 F.3d at 1253.
Because it is possible that a “rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt,” Jackson, 443 U.S. at 319, we find sufficient evidence
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22 Opinion of the Court 20-11037
supported the jury’s findings that Fleury had the requisite intent to
be convicted of 18 U.S.C. §§ 875(c) and 2261A(2)(B).
IV. Admission of Expert Testimony
We next turn to Fleury’s contention that the district court
erred in allowing the testimony of government expert Dr. Dietz.
Because this argument is raised for the first time on appeal, we re-
view only for plain error. United States v. Clotaire, 963 F.3d 1288,
1292 (11th Cir. 2020). “To find plain error, there must be: (1) error,
(2) that is plain, and (3) that has affected the defendant’s substantial
rights.” United States v. Hesser, 800 F.3d 1310, 1324 (11th Cir. 2015)
(per curiam). “[W]e may exercise our discretion to recognize a for-
feited error . . . only if the error ‘seriously affect[s] the fairness, in-
tegrity[,] or public reputation of judicial proceedings.’” Id.Fleury argues that Dr. Dietz’s testimony should not have
been permitted because it was irrelevant and unfairly prejudicial.
According to Fleury, Dr. Dietz was not qualified to opine on how
Fleury’s ASD affected his mental state because Dr. Dietz is an ex-
pert on serial killers, not ASD. Not only was Dr. Dietz’s testimony
not relevant, Fleury argues, but it was also unfairly prejudicial—
Dr. Dietz testified that he was previously involved in the cases of
mass murderers like Jeffrey Dahmer and Ted Kaczynski, and in
Fleury’s view, his testimony forced the jury to equate Fleury with
these individuals and any other mass murderer in recent history.
Fleury also complains that the government elicited testimony
about Fleury’s sexual attraction to serial killers and other mass
murderers. Fleury argues that the admission of this testimony was
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20-11037 Opinion of the Court 23
plain error because it resulted in the jury convicting him based on
fear of a crime he did not commit.
“Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence;
and (b) the fact is of consequence in determining the action.” Fed.
R. Evid. 401. Only relevant evidence is admissible. Fed. R. Evid.
402. Relevant evidence may be excluded, however, “if its probative
value is substantially outweighed by a danger of . . . unfair preju-
dice[.]” Fed. R. Evid. 403.
A witness who is qualified as an expert . . . may testify
in the form of an opinion or otherwise if: (a) the ex-
pert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testi-
mony is based on sufficient facts or data; (c) the testi-
mony is the product of reliable principles and meth-
ods; and (d) the expert has reliably applied the princi-
ples and methods to the facts of the case.
Fed. R. Evid. 702.
The admission of Dr. Dietz’s testimony was not plain error.
Having undertaken an extensive eight-hour evaluation of Fleury
over two days, Dr. Dietz explained that Fleury’s attraction to the
domineering and taunting characteristics of serial killers motivated
him to send the intimidating messages and opined that Fleury
could appreciate the impact that his messages had on the recipients.
This testimony was thus clearly relevant under Rule 401, and
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24 Opinion of the Court 20-11037
Fleury does not explain how the government failed to meet its bur-
den under Rule 702. While it is true that Dr. Dietz is not an expert
on ASD, he is an expert on forensic psychiatry—not solely an ex-
pert on mass murderers as Fleury argues on appeal.
Nor did the district court plainly err when it did not sua
sponte preclude the government from introducing evidence relat-
ing to Fleury’s attraction to serial killers. Such evidence helped the
jury understand the motive for Fleury’s actions, and the court’s in-
structions ensured that the jury could convict Fleury only of the
crimes he was charged with. Finding no plain error, we affirm the
district court.
V. Jury Instructions
Finally, we address Fleury’s challenges to the jury instruc-
tions.
During the charge conference, the government acknowl-
edged that the speech necessary to convict Fleury of cyberstalking
under § 2261A(2)(B) (Counts 2–4) must amount to true threats.
Fleury insisted that the district court should require the jury to find
that he had the subjective intent to communicate a true threat to
convict him on these counts. Pointing out that “the scienter that
Congress has defined is intent to harass and intent to intimidate,”
however, the government argued that proof of Fleury’s subjective
intent was unnecessary as to these counts. The district court de-
clined to require proof of Fleury’s subjective intent to communi-
cate a true threat, concluding that § 2261A(2)(B) already includes
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20-11037 Opinion of the Court 25
“a scienter element on its very face” and that “adding a subjective
true threat to the scienter [would be] a statutory rewrite.”
The district court also rejected the use of Fleury’s proposed
definition of “true threat,” and instead chose to track the definition
contained in the pattern jury instruction for interstate threats under
18 U.S.C. § 875(c) 5: “A ‘true threat’ is a serious threat—not idle talk,
a careless remark or something said jokingly—that is made under
circumstances that would place a reasonable person in fear of being
kidnapped, killed or physically injured.”
On appeal, Fleury reasserts his challenges to the cyberstalk-
ing and theory of defense instructions. We address each instruction
in turn. 6
A. Cyberstalking Jury Instruction.
“We review jury instructions challenged in the district court
de novo to determine whether the instructions misstated the law
or misled the jury to the prejudice of the objecting party.” United
States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013) (internal quo-
tation mark omitted). “We will not reverse a defendant’s convic-
tion based on a challenge to the jury charge unless we are left with
5 18 U.S.C. § 875(c) provides: “Whoever transmits in interstate or foreign com-
merce any communication containing any threat to kidnap any person or any
threat to injure the person of another, shall be fined under this title or impris-
oned not more than five years, or both.”
6 Fleury does not appeal the jury instruction provided for Count 1, transmit-
ting interstate threats in violation of 18 U.S.C. § 875(c).
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26 Opinion of the Court 20-11037
a substantial and ineradicable doubt as to whether the jury was
properly guided in its deliberations.” Id. (internal quotation mark
omitted).
As outlined above, to convict Fleury of cyberstalking the
government was required to prove that (1) he had the requisite in-
tent to harass or intimidate; (2) he engaged in a pattern of conduct
composed of two or more acts, evidencing a continuity of purpose;
(3) he used an electronic communication system of interstate com-
merce; and (4) his pattern of conduct caused, attempted to cause,
or would be reasonably expected to cause substantial emotional
distress. See Ackell, 907 F.3d at 72; see also 18 U.S.C.
§§ 2261A(2)(B), 2266(2).
The jury instruction the trial judge gave as to § 2261A(2)(B)
reads in full as follows:
It’s a Federal crime to knowingly use, with the
intent to harass or intimidate, an interactive com-
puter service, electronic communications service, or
other facility of interstate or foreign commerce to en-
gage in a course of conduct that causes, attempts to
cause, or would be reasonably expected to cause sub-
stantial emotional distress.
The Defendant can be found guilty of this
crime only if the following facts are proved beyond a
reasonable doubt:
(1) the Defendant used an interactive computer
service, electronic communication service, or
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20-11037 Opinion of the Court 27
any other facility of interstate and foreign com-
merce to engage in a course of conduct;
(2) that the Defendant, while engaged in the
course of conduct, acted with the intent to har-
ass or intimidate Victims 1, 2, or 3;
(3) that the Defendant’s course of conduct caused,
attempted to cause, or would be reasonably ex-
pected to cause substantial emotional distress
to Victims 1, 2, or 3.
A “course of conduct” is a pattern of conduct
composed of two or more acts, evidencing a continu-
ity of purpose. You may consider each communica-
tion between the defendant and the victims as a sepa-
rate act.
Intent to “harass” means to act with the spe-
cific intent or purpose of causing an adverse emo-
tional reaction in a specific person, not merely speech
that happens to cause annoyance or insult.
Intent to “intimidate” means to act with the
specific intent or purpose of putting a person in fear
or apprehension of injury inflicted by a particular per-
son.
You may only find the Defendant guilty if his
course of conduct included the communication of a
true threat. A “true threat” is a serious threat—not
idle talk, a careless remark, or something said jok-
ingly—that is made under circumstances that would
place a reasonable person in fear of being kidnapped,
killed, or physically injured.
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28 Opinion of the Court 20-11037
“Substantial emotional distress” means signifi-
cant mental distress, mental suffering or anguish, as
well as physical pain. It therefore requires a serious
invasion of mental tranquility.
The Supreme Court analyzed the constitutionality of a jury
instruction that included a definition of “true threat” in the context
of 18 U.S.C. § 875(c) in Elonis v. United States, 575 U.S. 723 (2015).
Under § 875(c), it is a federal crime to transmit in interstate com-
merce “any communication containing any threat to kidnap any
person or . . . injure the person of another.” 18 U.S.C. § 875(c). In
Elonis, the Court reversed a conviction under § 875(c) when the
jury was instructed that:
A statement is a true threat when a defendant inten-
tionally makes a statement in a context or under such
circumstances wherein a reasonable person would
foresee that the statement would be interpreted by
those to whom the maker communicates the state-
ment as a serious expression of an intention to inflict
bodily injury or take the life of an individual.
Elonis, 575 U.S. at 731. Because neither the statutory text of § 875(c)
nor the jury instruction provided contained a scienter requirement,
the Court acknowledged that Elonis’s conviction “was premised
solely on how his posts would be understood by a reasonable per-
son.” Id. at 737.
“Such a ‘reasonable person’ standard,” the Court noted, “is
inconsistent with ‘the conventional requirement for criminal con-
duct—awareness of some wrongdoing.’” Id. at 737–38. The Court
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20-11037 Opinion of the Court 29
found that “Elonis’s conviction cannot stand” because “[t]he jury
was instructed that the Government need prove only that a reason-
able person would regard Elonis’s communications as threats, and
that was error.” Id. at 740 (“Federal criminal liability generally does
not turn solely on the results of an act without considering the de-
fendant’s mental state.”). The Court ultimately held that “the men-
tal state requirement in Section 875(c) is satisfied if the defendant
transmits a communication for the purpose of issuing a threat, or
with knowledge that the communication will be viewed as a
threat.” Id. Criminal negligence is not enough to convict under
§ 875(c). Id.
Because Elonis decided the requirements for liability under
§ 875(c) as a matter of statutory interpretation, it did not reach the
defendant’s First Amendment challenge to the jury instructions.
* * *
Fleury asserts on appeal that the cyberstalking—or “inter-
state stalking”—jury instruction presents an Elonis issue. He con-
tends that, after Elonis, we should hold that a defendant can be
constitutionally convicted of making a true threat only if the de-
fendant intended the recipient to feel threatened. The given jury
instruction, Fleury argues, does exactly what the Supreme Court
held was impermissible in Elonis—defines “true threat,” and hinges
criminal liability, on how a “reasonable person” would view the
messages rather than on the subjective intent of the sender of those
messages: the defendant.
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30 Opinion of the Court 20-11037
We find no error in the instruction provided to the jury. The
district court properly declined to instruct the jury that the govern-
ment had to prove Fleury’s subjective intent to communicate a
true threat to convict him of cyberstalking under 18 U.S.C.
§ 2261A(2)(B). Fleury relies in vain on Elonis, where the Supreme
Court read a mens rea requirement into a statute that lacked any
scienter element—the transmission of interstate threats under 18
U.S.C. § 875(c). No similar problem exists here because the cyber-
stalking statute required proof that the defendant acted with the
intent to harass or intimidate. See 18 U.S.C. § 2261A(2). 7
Because the plain language of § 2261A(2) establishes a mens
rea requirement sufficient “to separate wrongful conduct from
‘otherwise innocent conduct,’” Elonis, 575 U.S. at 736, it was not
reversible error for the district court to decline to impose an addi-
tional, subjective-intent requirement for the jury to convict Fleury
of cyberstalking. The jury was instructed on the mens rea ele-
ment—subjective intent to harass or intimidate—that Fleury must
have had while communicating true threats. 8 The jury found the
7 This was Fleury’s proposed jury instruction on mens rea for his 18 U.S.C.
§ 2261A(2)(B) charges:
“Intent to harass or intimidate” requires an intent to com-
municate a true threat. A “true threat” is a statement where
the speaker means to communicate a serious expression of an
intent to commit an act of unlawful violence to a particular
individual or group of individuals.
8 Notably, the court’s jury charge defining the subjective intent to harass or
intimidate required the specific intent or purpose of causing an adverse
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20-11037 Opinion of the Court 31
government proved the requisite mental state beyond a reasonable
doubt. Fleury cites no case law for his position that, even when a
statute contains an express mental state requirement, the district
court should read an additional mens rea requirement into the text,
nor does such a position make sense. See United States v. Bell, 303
F.3d 1187, 1191 (9th Cir. 2002) (declining to include a specific intent
instruction when the instruction already included “the intent to
harass,” and concluding that “[t]he instructions given were
properly tailored to the charged offense and the district court was
not obligated to do more”). Accordingly, we affirm the district
court as to this issue.
B. Theory of Defense Jury Instruction.
Fleury argues next that the district court erred in modifying
his proposed theory of defense jury instruction. We review a re-
fusal to give a requested theory of defense instruction for an abuse
of discretion. United States v. Rutgerson, 822 F.3d 1223, 1236 (11th
Cir. 2016). A refusal to give a requested instruction “will be re-
versed only if (1) the requested instruction was substantively cor-
rect, (2) the court’s charge to the jury did not cover the gist of the
instruction, and (3) the failure to give the instruction substantially
reaction in a specific person or of putting a person in fear or apprehension of
injury inflicted by a particular person. Thus, in addition to the requirement
that the content of the message had to be a true threat, the court charged that
Fleury must have had the specific intent to cause an adverse emotional reac-
tion or to cause fear.
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32 Opinion of the Court 20-11037
impaired the defendant’s ability to present an effective defense.” Id.(internal quotation mark omitted).
As relevant to the resolution of this issue, Fleury proposed
the following instruction:
The First Amendment permits restrictions
upon the content of speech in only a few well-defined
and narrow classes of speech. The only exception rel-
evant here is for “true threats.” “True threats” are
statements where the speakers means to communi-
cate a serious expression of intent to commit an act of
unlawful violence to a particular individual or group
of individuals.
Mr. Fleury contends that his statements were
not “true threats” because they were not serious ex-
pressions of intent to commit an act of unlawful vio-
lence. If you have a reasonable doubt as to whether
the Instagram messages were “true threats,” you
must find Mr. Fleury not guilty.
Over Fleury’s objection the district court instead gave the
following instruction:
The First Amendment of the United States
Constitution permits restrictions upon the content of
speech in only a few well-defined and narrow classes
of speech. The only exception relevant here is for
“true threats.” A “true threat” is a serious threat—not
idle talk, a careless remark, or something said jok-
ingly—that is made under circumstances that would
place a reasonable person in fear of being kidnapped,
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20-11037 Opinion of the Court 33
killed, or physically injured. Mr. Fleury contends that
his statements were not “true threats.” If you have a
reasonable doubt as to whether the Instagram mes-
sages were “true threats,” you must find Mr. Fleury
not guilty as to all counts.
Fleury argues that the district court erroneously modified
his theory of defense instruction because (1) it was a correct state-
ment of law, as the proposed definition of “true threat” was taken
verbatim from Virgina v. Black, (2) it was not adequately covered
in the jury charge since the district court refused to instruct the jury
as to his subjective intent, and (3) the refusal to give the instruction
substantially impaired his ability to put forth a defense.
While Fleury is correct that his proposed definition is a cor-
rect statement of law, we afford district courts “wide discretion to
decide on the style and wording of [an] instruction” so long as it
“accurately reflect[s] the law.” United States v. Singer, 963 F.3d
1144, 1162 (11th Cir. 2020). Accordingly, “[w]e examine the jury
charge as a whole, determining whether the entire charge suffi-
ciently instructed the jury about the issues.” Id. 1162–63 (altera-
tions adopted and internal quotation mark omitted).
Here, the district court acted within its discretion in giving a
modified version of Fleury’s proposed theory of defense jury in-
struction. The district court was not required to adopt the precise
wording of Fleury’s proposed instruction. The district court cov-
ered the substance of Fleury’s proposed instruction in the theory of
defense instruction it gave, and in the jury charge as a whole.
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34 Opinion of the Court 20-11037
Fleury’s proposed definition of “true threats” is a correct definition,
but it is not the only correct definition. In fact, the Supreme Court
recognized as much in Virginia v. Black. The full sentence in Black,
from which Fleury omitted key words, reads: “‘True threats’ en-
compass those statements where the speaker means to communi-
cate a serious expression of an intent to commit an act of unlawful
violence to a particular individual or group of individuals.” 538 U.S.
at 359 (emphasis added). As such, the Court never stated that the
category of true threats is limited to such statements, only that the
category “encompass[es]” them. See id. And Fleury has not shown
that the definition given was an incorrect statement of the law. Fur-
ther, Fleury isolates parts of the charge and fails to take into ac-
count other parts of the charge or the charge as a whole, as dis-
cussed below.
Indeed, the substance of the proposed instruction was ade-
quately covered in the charge the district court gave to the jury.
Both substantive offense instructions required that the jury con-
sider Fleury’s subjective intent. The instruction for 18 U.S.C.
§ 875(c) required the jury to find that Fleury “sent the message with
the intent to communicate a true threat or with the knowledge that
it would be viewed as a true threat,” and the instruction for 18
U.S.C. § 2261A(2)(B) required the jury to find that Fleury “acted
with the intent to harass or intimidate.” The § 2261A(2)(B) instruc-
tion further defined “intent to harass” as “to act with the specific
intent or purpose of causing an adverse emotional reaction in a spe-
cific person, not merely speech that happens to cause annoyance
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20-11037 Opinion of the Court 35
or insult” and “intent to intimidate” as “to act with the specific in-
tent or purpose of putting a person in fear or apprehension of injury
inflicted by a particular person.” In Black, the Supreme Court
found that “[i]ntimidation in the constitutionally proscribable sense
of the word is a type of true threat, where a speaker directs a threat
to a person or group of persons with the intent of placing the victim
in fear of bodily harm or death.” 538 U.S. at 360. Thus, there was
no substantial impairment to Fleury’s ability to present his theory
of defense because the other instructions adequately covered it.
Because the theory of defense instruction the district court
gave, coupled with its charge as a whole, adequately “cover[ed] the
gist” of Fleury’s proposed instruction, and because the failure to
give the instruction did not substantially impair Fleury’s ability to
present an effective defense, the district court did not abuse its dis-
cretion and we affirm. See Rutgerson, 822 F.3d at 1236.
CONCLUSION
In conclusion, we hold that 18 U.S.C. § 2261A(2)(B) is both
facially constitutional and constitutional as applied to Fleury’s con-
duct. Having found no reversible error on any of the issues Fleury
presents on appeal, we affirm the district court’s rulings and
Fleury’s convictions.
AFFIRMED.