UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 98-50372


                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee;

                                VERSUS

         ROBERT FRANK STEWART, SR, also known as Frank R Odom,

                                                  Defendant-Appellant.



             Appeal from the United States District Court
                   for the Western District of Texas
                             (A-97-CR-045)


                            January 6, 2000
Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

     Robert F. Stewart, Sr., defendant-appellant, was convicted by

a jury of four violations of the Interstate Stalking Act, 18 U.S.C.

§ 2261A.    The district court sentenced Stewart and committed him to

the custody of the United States Bureau of Prisons to be imprisoned

for a term of 240 months, consisting of a 60 month period of

imprisonment on each of his four counts of conviction to run

consecutively. The district court also ordered the defendant to pay

to the United States a special assessment of $100 to the Crime

     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

                                   1
Victims Fund under 18 U.S.C. § 3013 for each of the four counts of

his convictions, to serve a term of three years supervised release

from imprisonment, and to pay a fine of $50,000.            The defendant

appealed.

     Robert F. Stewart, Sr., defendant-appellant, died on November

10, 1999 while this appeal was pending.           Prior to his death,

Stewart, pursuant to the district court’s order, paid $400 to the

Crime Victims Fund and $158 of the $50,000 fine.           This court has

adopted the general rule that the death of a criminal defendant

pending his appeal from his conviction abates the entire criminal

proceedings from its inception, including the appeal, conviction,

sentence, and indictment. See United States v. Mmahat, 

,

93 (5th Cir. 1997); United States v. Asset, 

, 210 (5th

Cir. 1993); United States v. Schuster, 

, 1133 (5th Cir.

1985); United States v. Pauline, 

, 684-85 (5th Cir.

1980).    The principal reason for this rule is that, after the

defendant dies, criminal punishment serves no legitimate purpose.

See 

; United States v. Morton, 

,

725 (8th Cir. 1980).   Consistent with the rationale of the general

rule, however, we have held that an order in connection with the

judgment of conviction and sentence requiring the defendant to make

restitution or compensatory payments for the benefit of crime

victims   survives   the   defendant’s   death   because    it   does   not

constitute punishment.     See 

; 

.   In such a case, “only the portion of the proceedings

unrelated to the restitution order is abated.”      

93 (citing United States v. Dudley, 

, 179 (4th Cir.

1984)); see also 

(“[T]he courts have

consistently interpreted the abatement principle to apply only to

penal aspects of the criminal proceeding.”).

     Accordingly, all of Stewart’s criminal proceedings related to

criminal punishment, rather than restitution or compensation of

crime victims, including his convictions, sentences of imprisonment,

and the unpaid portion of his fine,   must be abated ab initio.   We

reject the suggestion or motion and argument of Stewart’s appellate

counsel, in behalf of Stewart’s estate, that a continuance of his

appeal for a full consideration of his substantive arguments, as in

United States v. Mmahat, 

, 93-98 (5th Cir. 1997), must

result in our conclusion that Stewart’s convictions were flawed by

reversible error requiring a return of the $400 assessments and the

$158 paid portion of the fine to Stewart’s estate.         Assuming

arguendo that such a review is called for in this case, and without

deciding whether the Crime Victims Fund assessments in this case are

penal or compensatory, our full consideration of the oral and

written arguments of counsel, the record, and additional study and

research, convinces us that no error requiring a reversal of

Stewart’s convictions occurred.   For these reasons, this appeal is

dismissed as moot, and the case is remanded with directions to the

District Court to vacate the convictions and sentences, except for

the $400 payment to the Crime Victims Fund and the $158 portion of

the fine paid by Stewart before his death, and to dismiss the

indictment.


                                  3
REMANDED WITH DIRECTIONS.




                            4
DENNIS, Circuit Judge, concurring:

     I respectfully concur and assign the following as my reasons

for joining in the conclusions we have reached.

     Robert Frank Stewart, Sr., defendant-appellant, (“Stewart” and

“defendant”), was convicted by a jury of four violations of the

Interstate Stalking Act, 18 U.S.C. § 2261A, which makes it illegal

for a person to [1] “travel[] across a State line...with the intent

to injure or harass another person, and [2] in the course of, or as

a result of, such travel [3] place[] that person in reasonable fear

of the death of, or serious bodily injury...to that person or a

member of that person’s immediate family....”2   The gravamen of the

charges against Stewart was that he traveled from Montgomery,

Alabama to Georgetown, Texas, with the intent to injure or harass

Doris Stewart, his former wife, and their three adult sons, and that

he knowingly placed each of them in reasonable fear of death or

serious bodily harm.

     On appeal, Stewart argued that: (1) the Interstate Stalking Act

is an unconstitutional use of Congressional legislative power under

the Commerce Clause; (2) the Act violates the Due Process Clause

because it is void for vagueness and unconstitutionally overbroad;

and (3) the trial court erred in its jury instructions defining the


      2
       The full text of 18 U.S.C. § 2261A is: “Whoever travels
across a State line or within the special maritime and territorial
jurisdiction of the United States with the intent to injure or
harass another person, and in the course of, or as a result of,
such travel places that person in reasonable fear of the death of,
or serious bodily injury (as defined in section 1365(g)(3) of this
title) to, that person or a member of that person’s immediate
family (as defined in section 115 of this title) shall be punished
as provided in section 2261 of this title.”

                                 5
charged offenses.3



         I. Congressional Authority Under The Commerce Clause

     The defendant contends that the Interstate Stalking Act is

unconstitutional because it exceeds Congress’ authority under the

Commerce Clause.     This Court reviews the constitutionality of

statutes de novo.     United States v. Luna, 

, 319 (5th

Cir. 1999).

     In United States v. Lopez, 

(1995), the Supreme

Court held that the Gun-Free School Zones Act of 1990, 18 U.S.C. §

922(q)    “exceeds   the   authority   of   Congress   ‘[to]   regulate

Commerce...among the several States....’ U.S. CONST. art. I, § 8,

cl. 3.”    

.     In analyzing the statute, the

Court “identified three broad categories of activity that Congress

may regulate under its commerce power”:

     First, Congress may regulate the use of the channels of
     interstate commerce. Second, Congress is empowered to
     regulate and protect the instrumentalities of interstate
     commerce, or persons or things in interstate commerce,
     even though the threat may come only from intrastate


    3
     Stewart also assigned as errors: (1) the trial court violated
his First Amendment right to access the courts by allowing the
prosecution to argue that the child custody and visitation suits
Stewart filed in Texas state court evinced that he traveled between
states with the intent of harassing other persons; (2) the trial
court’s denial of his eleventh hour requests to vacate its order
allowing Stewart to represent himself, to reappoint counsel Stewart
had previously rejected, and for a continuance for additional trial
preparation; (3) the defendant’s indictments are multiplicitous and
violate his constitutional right against double jeopardy; (4) the
trial court erred in departing from the Sentencing Guidelines.
None of the first three assignments has merit. In view of the
abatement of Stewart’s sentences upon his death and their
irrelevance to a review of the proceedings with respect to his
conviction, the fourth assignment is moot.

                                   6
     activities.    Finally, Congress’ commerce authority
     includes...those activities that substantially affect
     interstate commerce.4

(internal citations omitted).    The Court then turned

to consider the power of Congress, in light of this framework, to

enact the Gun-Free School Zones Act, which made it a federal offense

“for any individual knowingly to possess a firearm at a place that

the individual knows, or has reasonable cause to believe, is a

school zone.” 18 U.S.C. § 922(q)(1)(A) (1988).     The Court quickly

concluded that § 922(q) is not a regulation of the use of channels

of interstate commerce or a regulation by which Congress has sought

to protect an instrumentality of interstate commerce, or persons or

things in interstate commerce.   See 

.    After

an extensive analysis of its Commerce Clause opinions, the Lopez

Court held, in a perhaps “epochal” decision, that the Congressional

enactment of § 922(q) could not be sustained, even under the third

category as a regulation of activities that “substantially affect”

interstate commerce. 

see also 

(Souter,

J., dissenting).

     Lopez is most likely to have a significant impact on the

application of the substantial effects test to intrastate activity

that is not commercial or economic in nature. See TRIBE, § 5-5, at



     4
        “As the Court’s articulation of these categories indicated,
and as the Court confirmed the following week in United States v.
Robertson, [

(1995)] the ‘substantial effects’
requirement applies only to the third category; the first two
categories, by definition, substantially affect–-because they are
components of--interstate commerce.”      LAURENCE H. TRIBE, AMERICAN
CONSTITUTIONAL LAW § 5-5, at 826-27 (3d ed. 1999)(emphasis in
original) (footnote omitted) [hereinafter TRIBE].

                                  7
825.    But as Professor Tribe astutely observed, “[a]t least as

important...is what Lopez did not touch[:][T]he majority opinion

seemingly declared the Court’s allegiance to rational basis review,

aggregation, and the substantial effects principle [and] reaffirmed

Congress’ plenary power over the channels and instrumentalities of

interstate commerce, as well as its power over objects and persons

that are in some sense participating directly ‘in’ interstate

commerce   and   over   activities   jurisdictionally   ‘connected’   to

interstate commerce.”     TRIBE, § 5-5, at 825-26 (citing 

, 561, 599) (footnotes omitted).

        In 

, the Court, in identifying the

“channels” category, cited and quoted from Heart of Atlanta Motel,

Inc. v. United States, 

, 256 (1964)(“‘[T]he authority

of Congress to keep the channels of interstate commerce free from

immoral and injurious uses has been frequently sustained, and is no

longer open to question.’”)(quoting Caminetti v. United States, 

, 491 (1917)) and cited United States v. Darby, 

, 114 (1941)(“Congress, following its own conception of public

policy concerning the restrictions which may appropriately            be

imposed on interstate commerce, is free to exclude from [such]

commerce articles whose use in the states for which they are

destined it may conceive to be injurious to the public health,

morals, or welfare, even though the state has not sought to regulate

their use.”).

       The Lopez Court cited as identifying the “instrumentalities”

and “persons in” category, inter alia, Southern R. Co. v. United


                                     8
States, 

(1911)(Safety Appliance Act amendments applying

to vehicles used in intrastate commerce) and Perez v. United States,

, 150 (1971)(“[F]or example, the destruction of an

aircraft (18 U.S.C. § 32), or...thefts from interstate shipments (18

U.S.C. § 659)”).       In United States v. Robertson, 

(1995), decided the week following Lopez, the Court indicated that

regulation of a “person in” interstate commerce includes, for

example, the application of the RICO statute to a gold mine operator

who receives equipment from other states and solicits workers from

other states.      See TRIBE, § 5-5, at 829.

     The Court in Lopez reaffirmed Congress’ power to enact statutes

having a “jurisdictional element which would ensure, through case-

by-case inquiry, that the firearm possession in question affects

interstate commerce.”      

.       As an example, the

Court pointed to the felon-in-possession statute, former 18 U.S.C.

§ 1202(a), which made it a crime for a felon to “receiv[e],

posses[s], or transpor[t] in commerce or affecting commerce...any

firearm.” 

(citing United States v. Bass, 

(1971)). Unlike the felon-in-possession statute, the Court

observed,    the    Gun-Free   School      Zones   Act   “has   no   express

jurisdictional element which might limit its reach to a discrete set

of   firearms   possessions    that       additionally   have   an   explicit

connection with or effect on interstate commerce.”          

.     The Court cited with approval its decision in Bass, in

which the Court had interpreted the possession component of the

felon-in-possession statute to require an additional nexus to


                                      9
interstate commerce, viz., that the possession was in commerce or

affected commerce.    See 

.       Accordingly, it is

apparent that Lopez left “largely untouched” Congress’ power to

enact   “statutes   containing   a     jurisdictional   element     expressly

requiring the trier of fact to find some sort of connection or link

to interstate commerce as a precondition of a given statute’s

applicability to the case at hand.”         TRIBE, § 5-5, at 829.

     Under the precepts reaffirmed by Lopez, the Interstate Stalking

Act does not exceed Congressional power, but is a valid            regulation

of (1) the use of the channels of interstate commerce, (2) persons

participating   directly   in    such     commerce,   and   (3)    activities

jurisdictionally connected to interstate commerce.                The statute

prohibits persons from using interstate channels of transportation

for the purpose of placing others in reasonable fear of death or

serious bodily harm.    The Act regulates the conduct of persons and

protects persons participating directly in interstate commerce. And

the statute has an express jurisdictional element which limits its

reach to a discrete class of travel (by persons with intent to

injure or harass others and who place others in reasonable fear of

death or serious bodily harm) that additionally has an explicit

connection with or effect on interstate commerce.

     Nevertheless, Stewart claims support for his Commerce Clause

challenge on passages from Caminetti v. United States, 

,

491 (1917)(“It may be conceded, for the purpose of argument, that

Congress has no power to punish one who travels in interstate

commerce   merely    because   [that    person]   has   the   intention    of


                                     10
committing an illegal or immoral act at the conclusion of the

journey.”) and     Rewis v. United States, 

, 811-12

(1971)(“[The Travel Act, 18 U.S.C. § 1952,] prohibits interstate

travel with the intent to ‘promote, manage, establish, carry on, or

facilitate’ certain kinds of illegal activity; and the ordinary

meaning of this language suggests that the traveler’s purpose must

involve    more   than   the   desire   to   patronize   the    illegal

activity....[Otherwise,] the geographic origin of customers, a

matter of happenstance, would transform relatively minor state

offenses   into   federal   felonies.”).5    Contrary    to    Stewart’s


     5
       The Rewis case provides additional precedent for upholding
the Interstate Stalking Act. The Supreme Court in Rewis held that
defendants who ran a gambling operation illegally under Florida
law, but who had not crossed state lines in that connection, could
not be convicted of violation of the Travel Act merely because
their gambling operation was frequented by out-of-state bettors.

. The Travel Act, 18 U.S.C. § 1952, which is
similar in some respects to the Interstate Stalking Act, makes it
unlawful, inter alia, to “travel in interstate or foreign
commerce...with the intent to...(2) commit any crime of violence to
further any unlawful activity; or (3) otherwise promote, manage,
establish, carry on...any unlawful activity, and thereafter
perfor[m] or attemp[t] to perform any of the acts specified in [the
above subparagraphs].” Significantly, however, the Supreme Court
in Rewis emphasized that “there are cases in which federal courts
have correctly applied [the Travel Act] to those individuals whose
agents or employees cross state lines in furtherance of illegal
activity.” 

(citing, e.g., United States v. Chambers,

, 913-14 (6th Cir. 1967); United States v. Barrow, 

, 64-65 (3d Cir. 1966), cert. denied, 

(1967);
United States v. Zizzo, 

, 580 (7th Cir. 1964), cert.
denied, 

(1965)).
     In Zizzo the Seventh Circuit held that “Congress had the
power, under the Commerce Clause, to make it unlawful to travel
from one state to another to promote a gambling enterprise which
was illicit by the laws of the state where the gambling was carried
on.” 

. While a constitutional issue was not
raised on appeal in Chambers, the Third Circuit in Barrow held that
the Travel Act was not unconstitutional as involving a local
activity beyond the reach of Congressional authority under the
Commerce Clause in application to employees of a Pennsylvania

                                  11
contention,   however,   the    Interstate    Stalking   Act   does   not

criminalize   “mere   travel   with    intent.”   Rather,   the   statute

prohibits crossing a state line with an evil intent, and then

placing persons in reasonable fear of death or bodily injury to

themselves or family members.          Therefore, the Act falls within

Congress’ authority “to keep the channels of interstate commerce

free from immoral and injurious uses.” 

;

see also United States v. Wright, 

, 1276 (8th Cir.

1997)(disposing of a similar argument under the Violence Against

Women Act).

     Finally, the Interstate Stalking Act is similar in purpose and

effect to its precursor, the Violence Against Women Act (“VAWA”),

18 U.S.C. §§ 2261-66, which consistently has been sustained against

Commerce Clause challenges by other Circuits.        See, e.g., United

States v. Page, 

, 335 (6th Cir. 1999) (concluding that

18 U.S.C. § 2261(a)(2), which forbids a person to “cause[] a spouse

or intimate partner to cross a State line...by force, coercion,

duress, or fraud and, in the course or as a result of that conduct,

intentionally commits a crime of violence and thereby causes bodily

injury to the person’s spouse or intimate partner,” is a valid

exercise of Congress’ power to regulate the use of the channels of


gambling casino, being operated in violation of state laws, who
traveled to work from their New Jersey homes. See 

. Thus, the Supreme Court’s decision in Rewis, by approving
the decisions in Zizzo and Barrow, by analogy supports upholding
the application of the Interstate Stalking Act to the activity of
Stewart in traveling across state lines from Alabama to Texas, with
the intent to engage in certain acts of harassment, even though
part of his activity was a criminal offense under the laws of
Texas.

                                      12
interstate commerce); United States v. Gluzman, 

, 50 (2d

Cir. 1998) (finding that 18 U.S.C. § 2261(a)(1), which makes

punishable “[a] person who travels across a State line...with the

intent to injure, harass, or intimidate that person’s spouse or

intimate partner, and who, in the course of or as a result of such

travel, intentionally commits a crime of violence and thereby causes

bodily injury to such spouse or intimate partner,” is a valid

regulation of the channels of interstate commerce); United States

v. Von Foelkel, 

, 341 (2d Cir. 1998) (holding that 18

U.S.C. § 2262(a)(1)(A)(i), which criminalizes crossing a state line

with the intent to violate a protection order and then violating it,

does not exceed Congress’ authority to regulate the use of the

channels and instrumentalities of interstate commerce); United

States v. Wright, 

, 1275 (8th Cir. 1997) (holding to

the same effect as Von Foelkel); United States v. Bailey, 

, 766 (4th Cir. 1997)(holding that 18 U.S.C. § 2261(a)(2) upheld

as a valid exercise of the authority of Congress to keep the

channels of interstate commerce free from immoral and injurious

uses); cf. Brzonkala v. Virginia Polytechnic Inst. and State Univ.,

, 836 (4th Cir. 1999)(en banc)(finding that VAWA §

40302, 42 U.S.C. § 13981, creating a private cause of action against

any person who commits a crime of violence motivated by gender, was

not within the power of Congress under the Commerce Clause–-

“Although the criminal statutes enacted by Congress as part of the

Violence   Against   Women   Act   [18   U.S.C.   §§   2261-66]   predicate

liability on the crossing of state lines...[42 U.S.C. §] 13981


                                    13
includes no similar jurisdictional requirement[.]”).

   II. Statutory Indefiniteness and Statutory Construction

     Stewart contends on appeal that the Interstate Stalking Act,

facially and as applied, is void for vagueness and overbreadth

because of its use of the ambiguous term “harass” and because it

“fails to specify what acts are required to place a person in fear

and thus [fails to] place the Defendant on notice of what acts

constitute a crime[.]”   Additionally, he argues that the statute

creates a “status” crime because it permits government officials to

arrest, prosecute, and punish an individual for his status as a

“feared person” rather than for his conduct.

     The prosecution contends that the district court correctly

interpreted and applied the statute in its jury instructions; that

the court, in response to the jury’s request, adequately defined the

term “harass” as used in the material element of traveling across

a state line with the intent to injure or harass;      that in the

statute and the jury instructions “the use of the qualifying words

‘as a result’ or ‘placed’...and the phrase ‘in the course of’...do

suggest and seem to require some affirmative actions on the part of

the defendant at a time contemporaneous with the travel[;]” and that

the statute and the jury charge did not permit the defendant to be

convicted solely because of his status as a feared person.

     In order to evaluate the parties’ arguments, the first task is

to determine the meaning of the statute as intended by Congress.

“The definition of the elements of a criminal offense is entrusted

to the legislature, particularly in the case of federal crimes,


                                14
which are solely creatures of statute.”        Liparota v. United States,

, 424 (1985) (citing United States v. Hudson, 7 U.S.

(Cranch) 32 (1812)).    In particular, “courts obviously must follow

Congress’ intent as to the required level of mental culpability for

any particular offense.      Principles derived from common law as well

as precepts suggested by the American Law Institute must bow to

legislative mandates[]”, including legislative language and history.

United States v. Bailey, 

, 406 (1980).

     The Interstate Stalking Act, 18 U.S.C. § 2261A, makes it

unlawful for a person to (1) travel across a state line with the

intent to injure or harass another person, and (2) place that other

person in reasonable fear of death or serious bodily injury to

himself or a member of his immediate family, if (3) the offender

places that victim in such fear in the course of, or as a result of,

such travel.    In enacting 18 U.S.C. § 2261A, Congress certainly

intended by use of the word “intent” to require some mental state

with respect to one or more of the material elements of the statute.

Beyond this, however, Congress did not explicitly spell out the

mental state or states required.        Nor did Congress expressly define

the term “harass” used in the statute.

     The Supreme Court has recognized that the required mental state

of mind may be different for different elements of a crime. See

, n.5 (citing 

;

United States v. Freed, 

, 612-14 (1971)(Brennan, J.,

concurring));   see   also   Robinson    &   Grall,   Element   Analysis   in

Defining Criminal Liability: The Model Penal Code and Beyond, 35


                                    15
STAN.L.REV.   681   (1983).   “‘[C]lear   analysis   requires   that   the

question of the kind of culpability required to establish the

commission of an offense be faced separately with respect to each

material element of the crime[.]’” 

(quoting

MODEL PENAL CODE § 2.02, Comments, p. 123 (Tent. Draft No. 4, 1955));

see also United States v. X-Citement Video, 

, 72 (1994)

(“Morissette, reinforced by Staples, instructs that the presumption

in favor of a scienter requirement should apply to each of the

statutory elements that criminalize otherwise innocent conduct”);

United States v. Feola, 

(1975); United States v. Ahmad,

, 391 (5th Cir. 1997).

     The Court has also noted that the mental element in criminal

law encompasses more than the two possibilities of “specific” and

“general” intent.      See 

, n.5 (citing

; United States v. United States Gypsum

Co., 

, 444-45 (1978); 

(Brennan,

J. concurring)).     The four mental states recognized by the ALI MODEL

PENAL CODE §2.02 -– purpose, knowledge, recklessness, and negligence

-- have implicitly been endorsed by the Supreme Court as clear and

comparatively unambiguous categories describing the various kinds

of culpability that may be required by federal criminal statutes.

See, e.g., 

; 

;

.

     In Bailey, the Court distinguished between the mental states

of “purpose” and “knowledge”, explaining that, “except in narrow

classes of offenses, proof that the defendant acted knowingly is


                                   16
sufficient to support a conviction.”            

; see

also Posters ‘N’ Things Ltd. v. United States, 

, 523

(1994).        As examples of classes of crimes in which heightened

culpability has been thought to merit special attention, the Court

cited the statutory and common law of homicide, treason, and

inchoate offenses. See 

.

       The Interstate Stalking Act was modeled on the Interstate

Domestic Violence Act, 18 U.S.C. § 2261, which, in pertinent part,

provides: “A person who travels across a State line...with the

intent to injure, harass, or intimidate that person’s spouse or

intimate partner, and who, in the course of or as a result of such

travel, intentionally commits a crime of violence and thereby causes

bodily injury to such spouse or intimate partner, shall be punished

as provided in subsection (b).”              The legislative history of the

Interstate Stalking Act demonstrates that it was enacted to extend

§ 2261's protection against spousal and intimate partner stalking

to    victims    of    non-spousal   and    non-intimate   partner     stalking.

Senator Hutchison, who proposed the Interstate Stalking legislation,

stated:

       [W]e are not federalizing the crime of stalking.
       Stalking is and will remain a State crime, subject to
       State jurisdiction and sanction. But under the bill I am
       proposing, if a stalker crosses State lines, then Federal
       resources can be brought to bear to ensure the stalker is
       caught and stopped, the same protection we provided last
       year for victims of domestic violence.

142    CONG.    REC.   S4804-02,   S4804-4805    (daily    ed.   May   7,   1996)

(statement of Sen. Hutchison).             The Department of Justice advised

Congress that it viewed the proposed legislation as modeled on the


                                       17
existing interstate domestic violence offense, 18 U.S.C. § 2261, and

covering travel across a state line with the intent to harass

another person “where the actor in the course of, or as a result of,

such travel places that person in reasonable fear of death or

serious bodily injury to the person or an immediate family member.”

H.R. REP. NO. 104-557, at 5 (1996).            The Department of Justice

supported the legislation because “it fills a gap in existing

federal law, which reaches interstate domestic violence (under 18

U.S.C. § 2261) and interstate violations of protection orders (under

18 U.S.C. § 2262), but does not cover essentially similar types of

conduct where the victim has not had an intimate relationship with

the offender and has not obtained a protection order.”               

  Department    also   noted    that   the   Act    “will   provide   a

supplementary measure for cases where the interstate nature of the

offense may create difficulties for effective state investigation

and prosecution.”      

structure, history, and purpose of the Interstate

Stalking Act indicate that a violation of § 2261A requires that the

offender must have crossed a state line with the knowledge that he

would injure or harass a person, and that the offender, in the

course of or as a result of such travel, must have knowingly caused

that person to be placed in reasonable fear of death or serious

bodily harm. Criminalization of this pattern of intentional conduct

resembles that prohibited by the provisions of 18 U.S.C. § 2261 (the

interstate domestic violence statute), upon which the Interstate

Stalking Act, 18 U.S.C. § 2261A, was modeled.              Section 2261(a)(1)


                                       18
criminalizes crossing a state line with the intent to injure,

harass, or intimidate a spouse or intimate partner and intentionally

committing a crime of violence that causes bodily injury to such

spouse    or   partner.       See    

.      Section

2262(a)(1)(A)(i) criminalizes crossing a state line with the intent

to   engage    in   conduct     that   violates       a    protection        order   and

subsequently intentionally engaging in that conduct.                           See Von

.           The legislative history of § 2261A does

not indicate that Congress intended to create a kind of non-fault

based criminal liability that could arise merely from the offender

having crossed a state line with the intent to harass another person

and then unintentionally causing that person to be placed in

reasonable fear of death or serious bodily harm.                       Such a federal

criminal law would deviate markedly from the statute upon which §

2261A    was   modeled    and   far    exceed   the       scope   of    the    proposed

interstate stalking legislation described by Senator Hutchison and

the Department of Justice, viz., a measure that does not federalize

stalking crimes, but only supplements typical state stalking laws,

and merely extends the protection of its model, § 2261, to non-

spouse and non-intimate partner victims.

      The words “harass” and “harassment” may convey different

meanings depending upon the context in which they are used.                      BLACK’S

LAW DICTIONARY 717 (6th ed. 1990) notes that the term “harassment” “is

used in a variety of legal contexts to describe words, gestures and

actions which tend to annoy, alarm and abuse (verbally) another

person; e.g., the use of ‘obscene or profane language or language


                                         19
the natural consequence of which is to abuse the hearer or reader’

is unlawful harassment under the Federal Fair Debt Collection

Practices Act.    15 U.S.C.A. § 1692(d)(2).”        See also 15 U.S.C. §

1692c et seq. (prohibiting harassment tactics such as threats,

abusive language, or telephone excesses).         As defined in 18 U.S.C.

§ 1514(c), which provides a civil action to restrain harassment of

a victim or a witness in a federal criminal case, “harassment” means

“a course of conduct directed at a specific person that causes

substantial   emotional   distress    in   such   person   and    serves   no

legitimate purpose.”       Under MODEL PENAL CODE § 250.4, harassing

another may include making a telephone call without purpose of

legitimate communication; insults, taunts or challenges in a manner

likely to provoke violent or disorderly response; repeated anonymous

communications at extremely inconvenient hours, or in offensively

coarse language; offensive touching, or any other course of alarming

conduct serving no legitimate purpose of the actor.              In ordinary

usage “harass” may mean to irritate or torment persistently; to wear

out, exhaust; to impede and exhaust (an enemy) by repeated attacks

or raids.   See THE AMERICAN HERITAGE COLLEGE DICTIONARY 618 (3d ed. 1993).

     When the text, structure, history, and purpose of a criminal

statute fail to establish its meaning unambiguously, doubts are

resolved in favor of the defendant.        See, e.g., United States v.

Granderson, 

, 54 (1994); Adamo Wrecking Co. v. United

States, 

, 285 (1978); United States v. Levy, 

, 1337 (5th Cir. 1978); see also Cispes v. Federal Bureau of

Investigation, 

, 476 (5th Cir. 1985)(“Although the term


                                     20
[“harass”] considered on its own might otherwise arguably present

a possibility of arbitrary and discriminatory enforcement....[w]hen

considered in the context of the rest of the statute, especially as

we have construed 

, the meaning and scope of the word

becomes clear.”)

     Applying these precepts, I conclude that to “harass” another

person within the context of § 2261A means to place that person in

reasonable fear of death or serious bodily harm to himself or to a

member of his immediate family.    The purpose of the statute is to

prevent any person from being placed in such fear by the intentional

act of an interstate stalker. The legislative history confirms that

it was Congress’ intention to protect persons from such fear and not

from less severe harassments that do not cause fear for life or

personal safety.   See Senator Hutchison’s remarks, 142 CONG. REC.

S4804-02 (“Mr. President, I am introducing legislation today to

strengthen the protections our society offers to stalking victims,

those individuals whose stories we so often hear only after they end

in tragedy....Freedom from fear is one of the most cherished

advantages we are supposed to enjoy in our country, but stalking

victims have been robbed of that freedom.”)6

     For the foregoing reasons, absent indication of a contrary

purpose in the language or legislative history of the statute, I


    6
     Consequently, it is unwarranted to assume, as the trial court
did in the present case, that exposure to criminal liability under
the Interstate Stalking Act can be triggered by crossing a state
line with an intent to cause any “substantial emotional distress”,
which is the minimum level of harassment that may be restrained in
a civil action to protect the mental composure of witnesses and
victims in federal criminal cases. See 18 U.S.C. § 1514.

                                  21
believe that § 2261A requires (1) a showing that the defendant knew

when he crossed a state line that it was practically certain that

he would engage in future conduct to injure a particular person or

harass that person by placing him or her in reasonable fear of death

or serious bodily injury to that person or to a member of that

person’s immediate family, and (2) a showing that the defendant

engaged in conduct with present awareness that it was practically

certain to place that person in such reasonable fear of death or

serious bodily injury.    “‘The contention that an injury can amount

to a crime only when inflicted by intention is no provincial or

transient notion.     It is as universal and persistent in mature

systems of law as belief in freedom of the human will and a

consequent ability and duty of the normal individual to choose

between good and evil.’”       

(quoting

Morissette v. United States, 

, 250 (1952)).         Thus, the

Supreme Court has noted that “‘[c]ertainly far more than the simple

omission of the appropriate phrase from the statutory definition is

necessary to justify dispensing with an intent requirement’ and that

criminal offenses requiring no mens rea have a ‘generally disfavored

status.’”    

(quoting 

).   Similarly, in the present case, “the failure of Congress

explicitly   and   unambiguously   to   indicate   whether   mens   rea   is

required” in connection with placing a person in reasonable fear of

death or serious bodily injury “does not signal a departure from




                                   22
this background assumption of our criminal law.”7             

.

      This construction is particularly appropriate where, as here,

to interpret the statute otherwise would be to criminalize a

possibly broad range of conduct not normally considered criminally

reprehensible.      A strict reading of § 2261A with no limitation on

the term “harass” and no requirement that the offender commit an act

with present knowledge that it was practically certain to place the

victim in fear of death or serious harm would thus make a felon of

a   person   who,   for   example,   crossed   a   state   line   knowing   he

thereafter would engage in conduct to annoy a particular person but

ended up doing something accidentally and unintentionally that

placed that person in fear of death or serious harm.               Given the

language and legislative history of § 2261A, however, such a

sweeping interpretation of the statute is not justified.

      In addition, requiring mens rea in connection with the material

element of placing a person in reasonable fear of death or serious

harm and construing the term “harass” narrowly as referring to such

dreadful conduct are in keeping with the longstanding recognition

of the principle that “ambiguity concerning the ambit of criminal


      7
      See also United States v. X-Citement Video, Inc., 

, 69 (1994) (interpreting the Protection of Children Against
Sexual Exploitation Act of 1977 to require that the scienter
requirement ‘knowingly’ apply to all statutory elements, refusing
to assume that Congress intended to sweep unintentional behavior
within the statute’s ambit); United States v. Ahmad, 

,
391 (5th Cir. 1997) (“[W]e hold that the offenses charged in counts
one and two are not public welfare offenses and that the usual
presumption of a mens rea applies. With the exception of purely
jurisdictional elements, the mens rea of knowledge applies to each
element of the crimes.”).

                                      23
statutes should be resolved in favor of lenity.” 

(quoting Rewis v. United States, 

, 812 (1971))

(citing U.S. 

; United States v. Bass, 

, 347-48 (1971); Bell v. United States, 

, 83

(1955); United States v. Universal CIT Credit Corp., 

,

221-22 (1952)).      “Application of the rule of lenity ensures that

criminal statutes will provide fair warning concerning conduct

rendered illegal and strikes the appropriate balance between the

legislature, the prosecutor, and the court in defining criminal

liability.”     

.        “The rule of lenity is not

to be applied where to do so would conflict with the implied or

expressed   intent   of   Congress,    but   it    provides    a   time-honored

interpretive guideline when the congressional purpose is unclear.”

Supreme Court has recognized that “[h]istorically,

the   penalty   imposed   under   a   statute     has   been   a   significant

consideration in determining whether the statute should be construed

as dispensing with mens rea.”         See Staples v. United States, 

, 616 (1994).     In Staples, the Court found that the “harsh

penalty” of up to ten years imprisonment imposed by a statute

demands   “significant    consideration      in   determining      whether   the

statute should be construed as dispensing with mens rea.”                    See

; see also United States v. Anderson, 

, 1254 (5th Cir. 1989) (en banc) (finding ten year prison

sentence for gun possession under the National Firearms Act, 26

U.S.C. § 5861, excessive in the absence of an express mens rea


                                      24
requirement). The punishment for an offense under 18 U.S.C. § 2261A

may range from 5 years imprisonment to life imprisonment, depending

on the severity of consequences to the victim.                See 18 U.S.C. §§

2262(b) and 2261A.

     Under the foregoing construction of the Interstate Stalking

Act, it is not unconstitutionally vague or overbroad: (1) “As

generally stated, the void-for-vagueness doctrine requires that a

penal     statute    define     the   criminal     offense    with      sufficient

definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.”          Kolender v. Lawson, 

, 357

(1983).       The Supreme Court has recognized that the doctrine’s

requirement     of    minimal      statutory     guidelines       to   govern   law

enforcement is even more important than its mandate of notice or

fair warning.       

above, 18 U.S.C. § 2261A would

give adequate warning of the activities it proscribes and would not

permit “‘a standardless sweep [that] allows policemen, prosecutors,

and juries to pursue their personal predilections.’”                   

(quoting Smith v.         Goguen, 

, 575 (1974)). (2) In

principle, a person to whom a statue may constitutionally be applied

will not be heard to challenge that statute on the ground that it

may conceivably be applied unconstitutionally to others, in other

situations not before the court.              See Broadrick v. Oklahoma, 

, 610-16 (1973). This rule is subject only to a few limited

exceptions    supported       by   the   most    weighty     of    countervailing




                                         25
policies.8     See 

    Facial overbreadth claims have not been

allowed when a limiting construction has been or could be placed on

the challenged statute, and they have been curtailed, if entertained

at all, when invoked against ordinary criminal laws that are sought

to be applied to protected conduct.           See 

      “[W]here

conduct and not merely speech is involved, we believe that the

overbreadth of a statute must not only be real, but substantial as

well, judged in relation to the statute’s plainly legitimate sweep.”

    Applying these precepts, I conclude that § 2261A, as

limited   by    the    foregoing    construction,   is   not   substantially

overbroad and that any overbreadth that may exist should be cured

through case-by-case analysis of the fact situations to which it

assertedly may not be applied.         See 

     Moreover, the Supreme Court’s cases have long held that a

statute as construed may be applied to conduct occurring prior to

the construction, provided such application affords fair warning to

the defendant.        See Osborne v. Ohio, 

, 115-16 (1990)

(citing Dombrowski v. Pfister, 

, 491 n.7 (1965); Hamling

v. United States, 

, 114-16 (1974)).



     8
       E.g., “[w]here individuals not parties to a particular suit
stand to lose by its outcome and yet have no effective avenue of
preserving their rights themselves”, 

; in
the First Amendment area, attacks on overly broad statutes have
been permitted by persons whose conduct could not be regulated by
a statute drawn with the requisite specificity; where the rights of
association were ensnared in statutes which, by their broad sweep,
might result in burdening innocent associations; where statutes
purport to regulate the time, place and manner of expressive
conduct; and where laws delegated standardless discretionary power
to local functionaries, resulting in virtually unreviewable prior
restraints on First Amendment rights. See 

                                       26
     Like the defendants in Osborne and Hamling, Stewart had notice

that the conduct, in which the jury reasonably could have found that

he had engaged, was proscribed.           It is evident from the face of §

2261A that the goal of the statute is to prevent persons from being

placed in reasonable fear of death or serious bodily harm due to the

conduct of an interstate stalker.          It hardly needs elaboration that

the jury reasonably could have found from the evidence of Stewart’s

history of physically abusive treatment of his former wife Doris and

their three sons, and from the evidence of his more recent threats

to kill them in the few weeks or months before his trip,                  that

Stewart traveled from Alabama to Georgetown, Texas knowing that his

activities there would place them in fear for their lives and that

he in fact engaged in conduct there which he knew would place them

in reasonable fear of death or serious bodily harm to themselves or

their immediate families.         Therefore, although § 2261A as written

may not have been precisely contoured,               someone in Stewart’s

position would not be surprised to learn that his conduct in this

case constituted a crime.     See 

.

     Because Stewart had notice that the conduct with which he was

charged   was   criminal,   his    case    differs   from   others   in   which

defendants’ convictions were reversed on due process grounds because

of an appellate court’s unforeseeable judicial expansion of the

scope and terms of criminal statutes to criminalize their conduct

retroactively. See, e.g., 

; Marks v. United

States, 

(1977)(retroactive          application of judicially

broadened obscenity standard); Rabe v. Washington, 

                                      27
(1972)(unexpected judicial expansion of state obscenity statute);

Bouie v. City of Columbia, 

(1964)(state trespass

statute expanded beyond its proscription of unauthorized entry to

criminalize sit-in demonstrators’ refusal to leave a restaurant).

     Although Stewart’s vagueness and overbreadth challenges must

be rejected for the foregoing reasons, it must still be determined

whether Stewart’s convictions were, unfairly and in plain error,

based on jury instructions as to the literal terms of §2261A rather

than upon instructions consistent with the foregoing construction

of the statute. See 

; Shuttlesworth v. City

of Birmingham, 

, 92 (1965).

         III. Review For Plain Error In Jury Instructions

     Stewart   did   not    object   at   trial   to   the   court's   jury

instructions regarding the culpability requirements and the meaning

of “harass” within the context of § 2261A.         Therefore, this court

may notice and correct any defects or errors with respect to these

instructions only as “plain error” under Federal Rule of Criminal

Procedure 52(b).     Under Rule 52(b), before an appellate court can

correct an error not raised at trial, there must be (1) error, (2)

that is plain, and (3) that affects substantial rights; if all three

conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.      See Johnson v. United States, 

,

462 (1997); United States v. Olano, 

, 732 (1993); United

States v. Young, 

, 15 (1936).


                                     28
     In   submitting   the       case   to    the   jury,   the   district    court

instructed the jury as follows:

         Count 1 of the indictment charges that on or about
     March 11th, 1997, within the Western District of Texas and
     elsewhere, defendant, Robert Frank Stewart, Sr., also
     known as Frank R. Odom, did knowingly and intentionally
     travel across a state line, namely the Texas state line,
     having previously been located in the State of Alabama,
     and did travel across said state line with the intent to
     harass and injure another person: To wit, [court’s
     misstatement and immediate correction thereof deleted]
     Richard L. Stewart, and as a result of said travel placed
     Richard L. Stewart in reasonable fear of the death of or
     serious bodily injury to Richard L. Stewart and the
     immediate family of Richard L. Stewart, in violation of
     Title 18, United States Code, Section 2261A.
         [The Court instructed the jury similarly with respect
     to Counts 2-4 of the indictment charging Stewart with
     violations of § 2261A with respect to Robert Frank
     Stewart, Jr., Doris Stewart, and Raymond Stewart.]
        []Section 2261A makes it a crime for anyone to travel
     across a state line with the intent to injure or harass
     another person and as a result of such travel place that
     person in reasonable fear of death of or serious bodily
     injury to that person or a member of that person’s
     immediate family.
       For you to find the defendant guilty of the crime as
     charged in Counts 1 through 4 of the indictment, you must
     be convinced that the government has proved each of the
     following beyond a reasonable doubt: First, that the
     defendant crossed a state line within the United States
     with the intent to injure or harass another person. And
     the named victim there means that the person named in
     each one of those counts.
         And, second, that as a result of such travel, that
     person, the named victim, was placed in reasonable fear
     of the death of or serious bodily injury to that person
     or a member of that person’s immediate family.
                            * * *
      The word, knowingly, as that term has been used from
     time to time in these instructions, means that the act
     was done voluntarily and intentionally and not because of
     mistake or accident.

     During their deliberations, the jurors sent the trial court a

note:   “Please   provide    a    legal      definition     of   harassment   or   a

dictionary.”      The trial court sent them an additional written


                                        29
instruction: “The term, harassment, means a course of conduct

directed at a specific person that causes substantial emotional

distress in such person and serves no legitimate purpose.”9

      Under the construction of the statute set forth above, a trial

court is obliged to instruct the jury that a conviction under 18

U.S.C. § 2261A requires proof that (1) the offender crossed a state

line knowing that he would injure or harass a particular victim in

the state of his destination; in this connection, “harass” means to

knowingly place another person in reasonable fear of death or

serious bodily injury to himself or to a member of his immediate

family; (2) the offender engaged in conduct that he knew would

place, and that actually placed, the victim in reasonable fear of

death or serious bodily injury to himself or to a member of his

immediate family; and (3) the victim’s reasonable fear of death or

serious bodily injury occurred in the course of or as a result of

the   offender’s   interstate   travel.   Consequently,   the      jury

instructions given in the case at bar were erroneous          in   two

respects.   First, the instructions incorrectly used and defined

“harass” in describing the first material element of § 2261A; and,

second, the jury charge on the state of mind that the offender must

have to be guilty of “placing” a victim in reasonable fear of death

or serious bodily injury was not clear or correct.

      Prior to the present case, these requirements of § 2261A had

not been explicitly defined by law or judicial interpretation.


       9
       This instruction was based on 18 U.S.C. § 1514(c), which
defines “harassment” for purposes of a civil action to restrain
harassment of a victim or witness in a federal criminal case.

                                  30
Under Griffith v. Kentucky, 

(1987), a “new rule for the

conduct of criminal prosecutions is to be applied retroactively to

all cases...pending on direct review...with no exception for cases

in which the new rule constitutes a ‘clear break’ with the past.”

       Because Stewart is still on direct review, Griffith

requires that, if the statutory construction I have outlined above

were adopted by this court, it would have to be applied herein

retroactively.       Accordingly, under the statutory construction that

should be adopted and applied,             I conclude there was “error,” and

the first prong of Olano is satisfied.                See 

.

       With respect to the second prong, Olano explained that the word

“plain” is “synonymous with ‘clear’ or, equivalently, ‘obvious.’”

See 

.            As to when the error must be plain,

Olano concluded that “[a]t a minimum, a court of appeals cannot

correct an error pursuant to Rule 52(b) unless the error is clear

under   current     law.”        

  the    Government’s

contention that, “for an error to be ‘plain,’ it must have been so

both    at   the    time    of    trial    and   at   the   time     of   appellate

consideration[,]” because “such a rule would result in counsel’s

inevitably making a long and virtually useless laundry list of

objections to rulings that were plainly supported by existing

precedent.”    

.             Accordingly, the Court

in Johnson held “that in a case such as this–-where the law at the

time of trial was settled and clearly contrary to the law at the

time of appeal–it is enough that an error be ‘plain’ at the time of


                                           31
appellate consideration.” 

Prior to Johnson, this court

had already adopted a similar rule that permits defendants to assert

plain error based on intervening changes in the law.                          See United

States v. Jobe, 

, 1062 (5th Cir. 1996)(“Allowing plain

error review when an objection would have been baseless under then-

current      law   does     not     countenance         the   sandbagging      that     the

contemporaneous objection rule is designed to prevent, while denying

plain error review in that situation would encourage frivolous

objections by defense attorneys trying to preserve error based on

every conceivable future change in the law.”)(citing United States

v. David, 

, 645 (4th Cir. 1996)).

       In the present case, the trial court sent the jury at its

request a written definition of “harassment” taken from 18 U.S.C.

§ 1514(c)(1).        Section 2261A does not explicitly define the term

“harass” with respect to the first material element of the offense.

At the time of trial, there were no judicial decisions interpreting

“harass” for purposes of § 2261A.                 Thus, if the court were to adopt

the statutory construction, not until its decision interpreting §

2261A by adding clarification of the term “harass” would the error

committed by the district court in defining “harassment” become

clear and obvious, i.e., “plain.”                  Consequently, the decision to

this    effect     defining       “harass”    in    §    2261A    would     represent    an

unforeseen change of the law that was apparently existing at the

time    of   trial    just    as     much    as     occurs       when   a   well-settled

jurisprudential rule is overturned.                 In the present case, allowing

plain     error    review     of     this    error       would    not     undermine     the


                                             32
contemporaneous objection rule, but denying it would “encourage

frivolous objections by defense attorneys trying to preserve error

on every conceivable change in law.”           

.

Moreover, for Stewart to have the benefit of plain error review is

consistent with the requirement of Griffith that a new rule for the

conduct of criminal prosecutions is to be applied retroactively to

all cases pending on direct review and not yet final.           See also

United States v. Retos, 

, 1230 (3d Cir. 1994)(plain

error review allowed where jury instruction error became clear only

with the Supreme Court’s intervening decision in Ratzlaf v. United

States, 

(1994), holding that to establish that the

defendant   “willfully   violated”     the   anti-structuring   law,   the

government must prove that the defendant acted with knowledge that

his conduct was unlawful).    Therefore, for purposes of my review,

the second part of the Olano test is satisfied regarding the

erroneous jury instruction defining “harass.”

     However, the error in the instructions regarding the proof of

the mental state required to establish the material element of

placing a victim in reasonable fear of death or serious bodily

injury is not “plain.”       The jury instructions touched on this

culpability requirement in several different ways.       First, the jury

was told that each count of the indictment charged that Stewart “did

knowingly and intentionally travel across a state line, namely the

Texas state line, and did travel across said state line with the

intent to harass and injure another person: to wit [name of the

particular alleged victim] and as a result of such travel placed


                                  33
[that victim] in reasonable fear of death or serious bodily injury

[to that victim or the victim’s immediate family.]”                      Second, the

jury was instructed that “Section 2261A makes it a crime to travel

across a state line with the intent to injure or harass another

person and    as    a    result   of   such    travel    place    that    person   in

reasonable fear of the death of or serious bodily injury to that

person or a member of theat person’s immediate family.”                   Third, the

trial court instructed the jury that to find the defendant guilty

“you must be convinced that the government has proved each of the

following beyond a reasonable doubt: first, that the defendant

crossed a state line...with the intent to injure or harass another

person....And, second, that as a result of such travel, that person,

the named victim, was placed in reasonable fear of the death or

serious bodily injury to that person or a member of that person’s

immediate family.”        Fourth, the jury was charged that “[y]ou may

also consider reasonable to draw the inference and find that a

person   intends    the    natural     and    probable    consequences      of   acts

knowingly done or knowingly omitted.”                 Finally, the trial court

instructed that “[t]he word, knowingly, as that term has been used

from time to time in these instructions, means that the act was done

voluntarily   and       intentionally    and    not     because   of     mistake   or

accident.”

     These state of mind instructions, considered as a whole, were

ambiguous.    They reasonably may have been understood to convey the

message that Stewart had to have knowingly caused a particular

victim to be placed in reasonable fear of death or serious bodily


                                         34
injury in order for the jury to find him guilty on a particular

count.      On the other hand, the jury charge may have indicated to a

reasonable juror that the government must prove only that Stewart

crossed the state line with the intent to injure or harass the

victim and that Stewart’s interstate travel resulted, knowingly or

unknowingly, in the victim’s reasonable fear of the prescribed

consequences.      Perhaps a reasonable juror would be less likely to

make the latter interpretation because it would permit an accused

who   had    guilty   thoughts   concerning   a   particular   person   while

crossing the state line to be convicted even if that person’s

reasonable fear was caused unknowingly or unintentionally by the

accused’s travel or because of mistake or accident.            Consequently,

the jury charge’s error in failing to give a clear instruction as

to the culpability or state of mind requirement with respect to

placing a victim in fear is not “obvious,” “clear,” or “plain,” and

may not be noticed or corrected under Rule 52(b).

      The third requirement for plain error review under Rule 52(b)

is that the plain error affect substantial rights. This is the same

language used in Rule 52(a), the harmless error rule providing that

“[a]ny error, defect, irregularity or variance which does not affect

substantial rights shall be disregarded.” Rule 52(b) normally

requires the same kind of harmless error inquiry, but “with one

important difference: It is the defendant rather than the Government

who bears the burden of persuasion with respect to prejudice.”

-35.

      An improper instruction on an element of the offense violates


                                      35
the Sixth Amendment’s jury trial guarantee.     See Neder v. United

States, 

, 1835 (1999); Rose v. Clark, 

,

580, n.8 (1986); Francis v. Franklin, 

, 313 (1985);

Jackson v. Virginia, 

, 320, n.14 (1979); Cool v. United

States, 

, 102-03 (1972); In re Winship, 

,

363 (1970); Screws v. United States, 

, 107 (1945)

(plurality opinion).    The test for determining whether such a

constitutional error is harmless is “whether it appears ‘beyond a

reasonable doubt that the error complained of did not contribute to

the verdict obtained.’” 

(quoting Chapman

v. California, 

, 24 (1967) and Delaware v. Van Arsdall,

, 681 (1986)(“[A]n otherwise valid conviction should not

be set aside if the reviewing court may confidently say, on the

whole record, that the constitutional error was harmless beyond a

reasonable doubt.”)).

     The defendant Stewart has sustained his burden of persuading

me that I cannot confidently say, on the whole record, that the

constitutional error in the jury charge and the additional written

instruction using an improper definition of the terms “harass” or

“harassment” constituted harmless beyond a reasonable doubt.    The

trial court’s jury instructions failed to correctly inform the jury

that the government was obliged to prove that Stewart had crossed

a state line with the intention of either injuring each alleged

victim or placing each victim in reasonable fear of death or serious

bodily injury to himself or his family.   The jury charge repeatedly

stated that, with respect to the first element of the offense, the


                                36
government was required to show only that Stewart had traveled

across a state line with the intent to “injure or harass” the named

victim.    The jury instructions thus conveyed the message that the

prosecution could satisfy its burden under the first material

element by persuading the jury that Stewart crossed the state line

with the intent merely to cause substantial emotional distress to

each alleged victim for no legitimate purpose.              Consequently, the

prosecution was able to represent to the jury that: “It’s whether

you believe the combination of actions here revealed that the

defendant came down with the intent to either injure or harass the

victims.    And of course because he traveled down here, that they

were placed in reasonable fear of serious bodily injury or death.”



      As   the    result   of    the   improper       instructions    and    the

prosecution’s     arguments     tailored    closely   to   them,   there    is   a

reasonable possibility that the jury was led to believe that

“harass” meant merely to cause substantial emotional distress to a

person for no good reason; and that Stewart could be found guilty

as charged if the jury was convinced of only two facts: (1) that

Stewart crossed a state line with the intent to cause substantial

emotional distress to Doris and his adult sons; and (2) that

Stewart’s travel to Georgetown, Texas resulted in placing them in

the   requisite     reasonable     fear     of   death     or   serious     harm.

Consequently, there is a reasonable possibility that the jury

believed that Stewart could be found guilty without the necessity

of their being convinced beyond a reasonable doubt that Stewart


                                       37
crossed the state line with the knowledge or intent that he would

engage in conduct in Texas that would place each victim in the

requisite reasonable fear of death or serious harm. In other words,

the jury was possibly led to believe that the ambit of conduct

criminalized by the Interstate Stalking Act was very much broader

than that which was actually intended by Congress.                 Therefore, I

cannot confidently say, on the whole record, that the constitutional

error was harmless beyond a reasonable doubt.              Thus, Olano’s third

requirement has in my opinion been met.

      When the first three parts of Olano are satisfied, an appellate

court   must   then   determine    whether        the   plain,   harmful   errors

“seriously affect[ed] the fairness, integrity or public reputation

of judicial proceedings” before it may exercise its discretion to

correct the errors.      

; see also 

(quoting United States v. Atkinson, 

, 160

(1936)).    Based on the evidence in this particular case including

a long history of terroristic conduct by the defendant toward the

victims and other persons in the victims’ presence, and his death

threats that he must have known would be communicated to the victims

shortly before his trip, that question               would be answered in the

negative by this court.

      “[W]hether an appellate court should take notice of an error

not raised below must be made on the facts of the particular case,

and there are no ‘hard and fast classifications in either the

application of the principle or the use of a descriptive title.’”

3A CHARLES ALAN WRIGHT, FEDERAL PRACTICE   AND   PROCEDURE § 856, at 337 (2d ed.


                                      38
1982) [hereinafter WRIGHT] (quoting Dupoint v. United States, 

, 45 (5th Cir. 1967))(citing, inter alia, United States v.

Gerald, 

, 1299 (5th Cir. 1980), cert. denied, 

(1981)).    This court exercises the power to notice and correct

a plain error cautiously and only in exceptional circumstances. See

United States v. Atkinson, 

, 160 (1936); United States

v. Adams, 

, 836 (5th Cir. 1981); WRIGHT, § 856, at 338.

The adversary system presupposes that a party must look to his

counsel to protect him and that he must bear the cost of the

mistakes of his counsel.      See WRIGHT, § 856, at 341 (citing United

States   v.    Powe,   

,   846-47   (D.C.   Cir.   1978)).

Nevertheless, courts should be more willing to find plain error if

it appears that the trial representation by a criminal defendant

acting as his own attorney or by a defense counsel,                whether

appointed or retained, was less than satisfactory.          See WRIGHT, §

856, at 341 (citing 

).          “It is important

that justice be done but it is also important that justice seem to

be done. ‘Even those guilty of the most heinous offenses are

entitled to a fair trial.’” See WRIGHT, § 856, at 340 (quoting Screws

v. United States, 

, 107 (1945) (opinion of Douglas, J.)).

     Recently, in Johnson v. United States, 

(1997), the

Supreme Court held that the forfeited error consisting of the trial

court’s failure to instruct the jury as to the materiality element

of the crime of perjury under 18 U.S.C. § 1623 did not seriously

affect the fairness, integrity or public reputation of judicial

proceedings so as to permit the court to exercise its discretion to


                                    39
correct the error.   

  The pertinent facts were as

follows:

         In the late 1980's, a federal investigation into the
     cocaine and marijuana trafficking of Earl James Fields
     revealed that he and his partner had amassed some $10
     million from their illicit activities.       Following the
     money trail, federal authorities subpoenaed petitioner
     Joyce B. Johnson, Fields' long-time girlfriend, to
     testify before a federal grand jury.      Johnson, who is
     the mother of a child by Fields, earned about $34,000 a
     year    at   the   Florida  Department   of   Health   and
     Rehabilitative Services. She testified before the grand
     jury that she owned five pieces of real property,
     including her house. That house was purchased by Johnson
     in 1991 for $75,600, and in the next two years she added
     sufficient improvements to it that in 1993 it was
     appraised at $344,800.      When asked the source of her
     home improvement funds, Johnson stated that she had put
     $80,000 to $120,000 into her house, all of which had come
     from a box of cash given her late mother by one Gerald
     Talcott in 1985 or 1986.
         On the basis of this testimony, Johnson was indicted
     for perjury under 18 U.S.C. § 1623.      At trial, it was
     rvae ta Fed hdngtae teoiia prhs o Jhsnshm adta Jhsnhdpi fr
      eeld ht ils a eoitd h rgnl ucae f ono' oe n ht ono a ad o
the property with eight different cashier's checks, including two
from a corporation in which Fields had an interest. It was also
established that Gerald Talcott had died in April 1982, several
years before the time Johnson claimed he had given her mother the
box full of cash.
        At the close of Johnson's trial, and in accordance with
     then-extant Circuit precedent, see, e.g., United States
     v. Molinares, 

, 653 (C.A.11 1983), the
     District Judge instructed the jury that the element of
     materiality was a question for the judge to decide, and
     that he had determined that her statements were material.
       Johnson did not object to this instruction.      Indeed,
     when the prosecution had presented evidence concerning
     materiality during the trial, she had then objected, on
     the ground that materiality was a matter for the judge,
     and not the jury, to decide.      

    The jury
     returned a verdict of guilty, and Johnson was sentenced
     to 30 months' imprisonment, three years' supervised
     release, and a $30,000 fine.
        After Johnson was convicted, but before her appeal to
     the Court of Appeals, we decided United States v. 

, which held that the materiality of a false
     statement must be submitted to the jury rather than
     decided by the trial judge.       On her appeal, Johnson
     argued that the trial judge's failure to submit
     materiality to the jury rendered her conviction invalid

                               40
      under Gaudin.

.

      In Johnson the Court observed that the evidence of materiality

was    “overwhelming,”    that     “materiality      was      essentially

uncontroverted” at trial and on appeal, and that Johnson had

“presented no plausible argument that the false statement under oath

for which she was convicted –- lying about the source of the tens

of thousands of dollars she used to improve her home –- was somehow

not material to the grand jury investigation.”           

    The

Court stated that there was no basis for concluding that the error

seriously affected the fairness, integrity or public reputation of

judicial proceedings and that no “miscarriage of justice” would

result if the error were not noticed.      

record in the present case, I believe that this court

would decide that there is no basis for concluding that the error

seriously affected the fairness, integrity or public reputation of

judicial   proceedings.   The    four   victims   were    members   of   one

immediate family who lived near each other.        At least two of the

sons were married and had families of their own.         Stewart admitted

his perpetration of serious physical and mental abuse upon his

former wife Doris and their sons in the years prior to 1983.        He did

not deny many of the threats to kill Doris, to kill his three adult

sons and their wives, and to kidnap his son Wesley that the

witnesses testified he made shortly before he traveled from Alabama

to Georgetown, Texas in March of 1997.      The threats he denied, he

did so only perfunctorily.   He offered no plausible explanation of


                                  41
why his attitude toward the subjects of his threats would have

changed before he crossed the Texas state line and arrived in

Georgetown.     Stewart offered no reasonable explanation for the

bizarre incident in which he drove a vehicle across a double yellow

line and two opposing traffic lanes to cause a collision with the

truck being driven by Richard Stewart.           Nor did he explain his

peculiar conduct following the accident in avoiding contact with

Richard Stewart although he claimed not to have recognized his son

until an investigating officer spoke his name over the police radio.

It is undisputed that Stewart was seen three times by Richard in the

vicinity of the police station when Richard was there, and that one

of those times Stewart followed Richard into the building, although

Stewart left when he was asked to do so.         Stewart did not explain

why   his   actions   did   not   knowingly   place   Richard   Stewart   in

reasonable fear of death or serious bodily injury to himself or his

immediate family; or why his actions did not place the entire tight

knit family in such fear for Richard and for each other.           Stewart

and all of his victims knew that Richard was the legal custodian of

Wesley and that Doris had been Wesley’s primary caretaker virtually

all of his life. As such, as the entire family was aware, Doris and

Richard were the main obstacles to Stewart’s goal of regaining

custody or possession of Wesley and removing him from the vicinity

and perhaps from the country.         Under the circumstances of this

particular case no miscarriage of justice will result from this

Court’s declining to notice the error in the proceedings with

respect to the convictions of the defendant.          See Johnson, 

at 470; 

.




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