Professional Documents
Culture Documents
No. 10-5169
COUNSEL
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Charleston, West Virginia, for Appellant. Thomas Charles Ryan, OFFICE OF THE UNITED
STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF: Mary Lou Newberger, Federal Public
OPINION
WILKINSON, Circuit Judge:
Over the course of more than three decades, Thomas
Creighton Shrader harassed and intimidated D.S. and later her
husband R.S., causing them to fear for their safety and that of
their children. He stands convicted after trial of two counts of
stalking through the use of a facility of interstate commerce
and one count of being a felon in possession of a firearm.
Shrader raises multiple issues in this appeal, including the
vagueness of the stalking statute and the length of his sentence. Accepting his contentions, however, would undermine
Congress efforts to protect people like D.S. and R.S. from
precisely the sort of terrifying conduct that took place in this
case. We therefore affirm.
I.
A.
Starting sometime around 1973, while still a high school
student in McDowell County, West Virginia, D.S. began a
relationship with Shrader. Over time he became increasingly
demanding and possessive, repeatedly appearing uninvited at
D.S.s house. This led her to break off the relationship in 1975
after approximately two years. When she did so, the defendant threatened to kill D.S.s two nephews if she did not continue seeing him. Around the same time, the defendant
physically assaulted D.S. at her workplace, choking her in an
elevator.
control depending on the inferences you draw from the evidence presented in the case." Shraders counsel again
objected, but was overruled, and Shrader was convicted on
July 14, 2010.
Shrader filed a wide variety of motions prior to his stalking
trial. First, he moved to dismiss the indictment on the grounds
that 18 U.S.C. 2261A(2) was unconstitutionally vague. The
district court disagreed, finding that the plain terms of the
statute, which incorporate a specific intent requirement, were
enough to provide "a person of ordinary intelligence fair
notice of what is prohibited." Second, Shrader filed a motion
to elect, seeking to compel the government to proceed on only
one of the stalking counts and arguing that the indictment was
multiplicitous because the stalking statutes unit of prosecution is the "course of conduct" that the defendant engaged in.
Again the district court disagreed, finding that the unambiguous terms of the statute "define[ ] the unit of prosecution as
the person," and that the same course of conduct could be
prosecuted twice if the government could show "two different
mens rea on the part of a defendant" to target two different
victims.
On August 20, 2010, the defendant was convicted of both
counts in the stalking trial. Prior to his sentencing, Shrader
objected to the Pre-Sentence Reports recommendation that
he be sentenced under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. 924(e)(1), due to his prior convictions
for murder, wounding, and escape. The government conceded
that the escape did not qualify as a felony under the ACCA,
because it was not subject to a penalty of greater than one
year. As to his other crimes, Shrader conceded that they met
the statutory definition of violent felonies, but disputed that
they had been committed on different occasions, as the ACCA
requires. In response, the government offered evidence that
had been admitted at the stalking trial, including the testimony
of D.S. and the defendants letter. Shrader disputed the use of
this evidence, arguing that it was not approved under the
Shrader does not dispute that his aunt had authority to consent to the search. He further acknowledges that her consent
was voluntarily given. Instead, he relies on the Supreme
Courts holding in Georgia v. Randolph, 547 U.S. 103 (2006),
which held that "a physically present inhabitants express
refusal of consent to a police search is dispositive as to him,
regardless of the consent of a fellow occupant." Id. at 122-23.
But Shrader has failed to satisfy a key requirement of Randolph: he was not "physically present" to object to his aunts
consent. The Supreme Court made clear that to defeat a cotenants consent, the defendant must be both "present and
objecting." Id. at 114. The Courts decision is replete with references to the requirement that the defendant be "standing at
the door and expressly refusing consent" at the time the police
solicit entry from the cotenant. Id. at 119; see also id. at 120
(cotenant consent is invalid "over the express refusal of consent by a physically present resident"); id. at 121 (search is
invalid "if a potential defendant with self-interest in objecting
is in fact at the door").
Of course, police may not seek to exploit this rule by "remov[ing] the potentially objecting tenant from the entrance
for the sake of avoiding a possible objection." Id. at 121. But
there is no evidence that the police did so in this case. They
went to the house for the express purpose of executing a valid
warrant for Shraders arrest, so his subsequent arrest and
removal from the premises cannot be considered a pretext for
later seeking consent from his aunt. Indeed, Shrader concedes
that "there was no evidence in this case that the officers who
took Shrader away after his arrest did so to defeat his Fourth
Amendment rights." Appellants Br. at 41.
Shrader urges us, however, to expand the holding of Randolph and conclude that his earlier refusal vitiates his aunts
later consent, even though he was absent from the premises.
Physical presence may not be dismissed as a mere function of
the facts of Randolph, however. That presence reflected the
10
11
United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008).
This latter approach raises practical problems. How broadly is
constructive knowledge of a suspects prior refusal to consent
to be imputed to other officers? Must a suspect expressly indicate that he has changed his mind in the future, or may that
be assessed from the totality of the circumstances? Is there
some point at which the passage of time renders a prior objection inoperative? The Murphy interpretation of Randolph
would involve courts in such questions, diverting attention
from the basic social expectations that underlie not only the
opinion in Randolph, but the larger corpus of Fourth Amendment jurisprudence. Careful observance of the requirement
that an objecting cotenant be physically present thus not only
shows fealty to the Supreme Courts precedent, but also
focuses police and courts on the customary norms that form
the basis for this area of law.
III.
At the close of the firearms trial, Shrader challenged the
district courts refusal to give his proposed instruction to the
jury with respect to his constructive possession of a firearm.
The evidence at trial demonstrated that the firearms were
located in a cabinet with a glass front in a dining room
directly adjacent to the defendants bedroom. Photographs
showed that the gun cabinet was but a few feet from the
entrance to Shraders bedroom, visible through the open doorway.
Moreover, the testimony of Shraders cotenant, his aunt
Elizabeth Jones, indicated that the firearms were under
Shraders control. Jones lived in the house only part-time. She
testified that she was "scared to death" of gunsshe was even
reluctant to look at them during her cross-examination, and
that she was unaware of whether the cabinet had a lock "because [she] didnt mess with it." She explicitly stated that she
never handled the guns and had even attempted to obscure the
front of the gun cabinet with a cardboard box so she did not
12
have to see the guns. She testified that she believed it was
Shrader who had obtained the weapons and brought them into
the house and that it "was just his hobby."
Shraders counsel had requested that the court charge the
jury that "mere proximity of the firearms to Mr. Shrader goes
only to the firearms accessibility and not the dominion or
control which must be proven in order to establish possession
of the firearms." The court instead instructed the jury that
"[e]vidence of the mere proximity of the firearms to Mr.
Shrader may establish only the firearms accessibility. However, the proximity of the firearms to Mr. Shrader may also
help to establish dominion or control depending on the inferences you draw from the evidence in the case."
We review the district courts refusal to give a proffered
instruction for an abuse of discretion. United States v. Lighty,
616 F.3d 321, 366 (4th Cir. 2010). In order to conclude that
the district court erred in refusing to give the requested
charge, the defendants proposed instruction must be (1) correct; (2) not substantially covered by the courts charge; and
(3) dealing with some point in the trial so important, that failure to give the requested instruction seriously impaired the
defendants ability to conduct his defense. United States v.
Passaro, 577 F.3d 207, 221 (4th Cir. 2009). In assessing these
factors, we may not minutely parse the district courts words;
rather we consider "whether taken as a whole and in the context of the entire charge, the instructions accurately and fairly
state the controlling law." United States v. Rahman, 83 F.3d
89, 92 (4th Cir. 1996).
Shrader contends his proposed instruction draws from
United States v. Blue, 957 F.2d 106 (4th Cir. 1992), in which
we held that "this court requires more evidence of dominion
and control than" mere proximity of the defendant to a firearm. Id. at 108. But while we have held that proximity alone
is not conclusive on the question of dominion and control, we
have never held it to be irrelevant. On the contrary, we have
13
14
15
16
specific definitions possible. The test for vagueness "is necessarily a practical rather than hypertechnical one," United
States v. Biocic, 928 F.2d 112, 114 (4th Cir. 1991), and when
a statute fails to provide an explicit definition, we may resort
to ordinary meaning and common sense, considering whether
the statute "conveys sufficiently definite warning as to the
proscribed conduct when measured by common understanding and practices." United States v. Petrillo, 332 U.S. 1, 8
(1947).
Here, we think that a common sense reading of the statute
adequately defines the prohibited conduct. "Harass" and "intimidate" are not obscure words. Most people would readily
understand the former to mean "to disturb persistently; torment, as with troubles or cares; bother continually; pester;
persecute," Random House Dictionary of the English Language 870 (2d ed. 1987); and the latter to mean "to make
timid; fill with fear," id. at 1000. In United States v. Bowker,
372 F.3d 365, 380-82 (6th Cir. 2004), revd on other grounds,
543 U.S. 1182 (2005), the Sixth Circuit upheld this same statute against an identical vagueness challenge. That court too
found that "harass[ ] or intimidate" could be adequately
defined "by reference to judicial decisions, common law, dictionaries, and the words themselves because they possess a
common and generally accepted meaning." Id. at 382 (quoting
Staley v. Jones, 239 F.3d 769, 791-92 (6th Cir. 2001)).
In addition, Shraders claim that the intent element of the
statute is inadequately defined is in tension with the Supreme
Courts instruction that, rather than being a source of fatal
vagueness, "a scienter requirement may mitigate a laws
vagueness, especially with respect to the adequacy of notice
to the complainant that his conduct is proscribed." Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 499 (1982); see also Colautti v. Franklin, 439 U.S. 379,
395 (1979) ("[T]he constitutionality of a vague statutory standard is closely related to whether that standard incorporates a
requirement of mens rea."). In contrast to previously disap-
17
18
19
20
V.
Shrader next claims that the district court erred in concluding that Counts One and Two of the Second Superseding
Indictment were not multiplicitous, arguing that 18 U.S.C.
2261A(2) permits only one punishment for a "course of
conduct," regardless of the number of victims of that conduct.
Whether an indictment charges "one or more counts that are
actually a single offense charged multiple times" is a question
of law that we review de novo. United States v. Goodine, 400
F.3d 202, 207 n.7 (4th Cir. 2005).
The rule against multiplicity is rooted in the Double Jeopardy Clause of the Fifth Amendment, which serves both the
familiar function of prohibiting "successive prosecutions for
the same offense" as well as "the imposition of cumulative
punishments for the same offense in a single criminal trial."
United States v. Ragins, 840 F.2d 1184, 1187 (4th Cir. 1988).
When a defendant is charged with multiple violations of the
same statute arising from the same course of conduct, the
court must consider "[w]hat Congress has made the allowable
unit of prosecution," Bell v. United States, 349 U.S. 81, 81
(1955) (quoting United States v. Universal C.I.T. Credit
Corp., 344 U.S. 218, 221 (1952)). "To do so, we must look
to the language of the statute, being mindful that any ambiguity must be resolved in favor of the defendant under the rule
of lenity." United States v. Bennafield, 287 F.3d 320, 323 (4th
Cir. 2002).
We agree with the district court that 18 U.S.C. 2261A(2)
unambiguously makes the victim, rather than the course of
conduct, the unit of prosecution. We need look no further than
the plain words of the statute to reach this conclusion.
First, to violate the provision, a defendant must act "with
the [specific] intent" either to injure or to cause distress to a
particular individual. See id. 2261A(2)(A-B). Not just any
person will suffice; it must be "a person in another State or
21
22
23
24