KAREN NELSON MOORE, Circuit Judge.
This direct criminal appeal concerns the conviction of defendants Scott Edward Sippola ("Sippola") and Allison Lenore Coss ("Coss") for extortion of a celebrity. Sippola and Coss challenge the sufficiency of the indictment forming the basis for their convictions, as well as the constitutionality of the extortion statute under which they were charged. They also appeal the district court's determination that they were not entitled to a downward adjustment for acceptance of responsibility pursuant to § 3E1.1 of the United States Sentencing Guidelines ("U.S.S.G."). Because the indictment was sufficient, the extortion statute is constitutional, and their sentences were properly imposed, we AFFIRM the defendants' convictions and sentences.
In April 2004, John Stamos ("Stamos"), a well-known actor, visited the Walt Disney World resort area in Orlando, Florida with a group of male friends. During the trip, Stamos met Coss, who was seventeen years old at the time, at an eighteen-and-over night club at Pleasure Island.
Stamos and Coss corresponded periodically for five or six years following their meeting in Florida. In addition, in October 2005, Coss flew to Chicago to visit Stamos while he was filming an episode of the television show "ER."
In 2008, Coss began dating Sippola. After Sippola saw photographs that Coss had of Stamos from the trip to Florida in 2004, Sippola suggested that they attempt to sell them. Subsequently, the two devised and executed a plan to obtain money from Stamos in exchange for the photographs. The scheme involved the creation of two fictitious personas through whom Coss and Sippola initiated email correspondence with Stamos: "Jessica T." and "Brian L."
On September 15, 2009, Coss and Sippola sent Stamos an email purporting to be from "Jessica Taylor" via the email address "jessi_t0909@yahoo.com." In the email, "Jessica Taylor" claimed to be a seventeen-year-old girl whom Stamos had impregnated during a sexual encounter while on vacation. On September 19, 2009, after receiving no response from Stamos, Coss and Sippola sent a second email from the "Jessica Taylor" email account that urged Stamos to respond and stated: "That night was full of drinking and drugs and I am sure you do not want any of those pictures to get out." Tr. Exh.App. at 2. Stamos sent both emails from "Jessica Taylor" to his lawyer, and his lawyer sent a cease-and-desist letter to the email account. Stamos did not receive any further emails from "Jessica Taylor."
In October 2009, Coss initiated email correspondence with Stamos, which continued through the end of November 2009. Throughout this correspondence, Coss relayed to Stamos that someone, whom she later identified as "Brian," had obtained "bad" photographs from the night of the party in April 2004.
Eventually, Coss suggested that Stamos and "Brian" communicate directly regarding Stamos's potential purchase of the photographs. Coss and Sippola, pretending to be "Brian," then initiated correspondence with Stamos regarding his purchase of the photographs from the email address
On May 11, 2010, Coss and Sippola were indicted on one count of conspiracy to extort money by use of interstate communications in violation of 18 U.S.C. §§ 371 and 875(d) (Count One) and two counts of transmission of interstate communications of threat to injure the reputation of another with intent to extort money in violation of 18 U.S.C. §§ 875(d) and 2(a) (Counts Two and Three). On July 6, 2010, Coss and Sippola each moved to dismiss the indictment claiming that it was defective insofar as it failed to allege facts constituting a violation of 18 U.S.C. § 875(d) and that 18 U.S.C. § 875(d) was unconstitutionally vague and overbroad. The district court denied their motions because they were untimely and without merit. The case then proceeded to trial and the jury returned a verdict of guilty on all counts as to both defendants. Coss and Sippola were each sentenced to forty-eight months of imprisonment on Count One and twenty-four months of imprisonment on Counts Two and Three to be served concurrently. Coss and Sippola timely appeal their convictions and sentences.
Coss and Sippola argue that, in order to avoid constitutional infirmities, 18 U.S.C. § 875(d) must be "read narrowly, so as to prohibit only unlawful threats" and not merely wrongful threats. Appellant Coss Br. at 20 (emphasis added); Appellant Sippola Br. at 20 (emphasis added). However, they also argue that if the statute is construed to prohibit unlawful threats, then the indictment failed to allege facts sufficient to constitute a violation of the statute. We consider each argument in turn.
Although the district court considered and rejected the merits of defendants' statutory and constitutional challenges to the indictment, the district court also held that their motions to dismiss were "untimely" insofar as they were filed "long after the deadline for pretrial motions" set by the district court "expired." R. 73 (Dist. Ct. Op. at 1).
"Federal Rules of Criminal Procedure 12(b)(3)(A) & (B) provide that motions alleging a defect in ... the indictment must be raised before trial." United
The district court clearly held that defendants' motions to dismiss were untimely and that there was no justification for the delay. R. 73 (Dist. Ct. Op. at 1).
The district court "read[] into 18 U.S.C. § 875(d) the requirement that the threat must be wrongful" and held that the indictment was "not deficient." R. 73 (Dist. Ct. Op. at 2). Both determinations are questions of law that we review de novo. United States v. McMurray, 653 F.3d 367, 370 (6th Cir.2011) ("We review de novo challenges to the sufficiency of an indictment."); United States v. Batti, 631 F.3d 371, 375 (6th Cir.2011) ("A matter requiring statutory interpretation is a question of law requiring de novo review....") (internal quotation marks omitted).
The "starting point" for any question of statutory interpretation "is the language of the statute itself." Batti, 631 F.3d at 375 (internal quotation marks omitted). Title 18 U.S.C. § 875(d) provides as follows:
(emphasis added). The precise meaning of "extort" and "threat" in the context of 18 U.S.C. § 875(d) is an issue of first impression in the Sixth Circuit.
The Second Circuit concluded that a "wrongfulness" requirement was implicit in 18 U.S.C. § 875(d) by analyzing the structure and substance of 18 U.S.C. § 875 as a whole, the ordinary meaning of extortion, and 18 U.S.C. § 875(d)'s legislative history. Its reasoning on each point is persuasive. The Second Circuit noted that each of the various subsections in 18 U.S.C. § 875 criminalizes conduct "that plainly is inherently wrongful." Id. at 67. Subsection (a) criminalizes a "demand or request for a ransom or reward for the release of any kidnaped person," 18 U.S.C. § 875(a), while subsections (b) and (c) both criminalize a "threat to kidnap" or a "threat to injure the person of another," 18 U.S.C. § 875(b), (c). That these subsections all criminalize "conduct that plainly is inherently wrongful" suggests that Congress also meant to criminalize "inherently wrongful" conduct in subsection (d)—that is "inherently wrongful" threats to property or reputation. Jackson, 180 F.3d at 67.
The "intent to extort" element of § 875(d) supports the conclusion that Congress intended to criminalize only wrongful threats. While admittedly the statute does not define extortion, the term's plain meaning, as well as its definition in other statutory contexts, illuminates its significance with respect to § 875(d). As the
While Coss and Sippola agree that Congress meant to criminalize something more than "threats to reputation," they argue that the something more must be not merely "wrongful" but "unlawful."
The law of extortion
The Jackson court did not have occasion to decide whether an "unlawful," as opposed to "wrongful," threat requirement should be read into 18 U.S.C. § 875(d). In Jackson, the government argued that the statute criminalized all threats to reputation, while the defendant argued that the statute criminalized only wrongful threats to reputation. See 180 F.3d at 66. The Second Circuit agreed with the defendant
Consider, first, the most classic extortion scenario where individual X demands money from individual Y in exchange for individual X's silence or agreement to destroy evidence of individual Y's marital infidelity. In this instance, the threat to reputation is wrongful because individual X has no claim of right against individual Y to the money demanded. This is clear because as soon as the marital infidelity is exposed individual X loses her ability to demand the money from individual Y. Individual X's only leverage or claim to the money demanded from individual Y is the threat of exposing the marital infidelity and, thus, individual X's threat has no nexus to a true claim of right. By way of contrast, consider the Second Circuit's example of a country club manager who threatens to publish a list of members delinquent in their dues if the members do not promptly pay the manager their outstanding account balances. Id. at 71. In that instance, there is a nexus between the threat and a claim of right: The duty of the members to pay the country club the outstanding dues exists independently of the threat and will continue to exist even if the club manager publishes the list as threatened. The law recognizes the club manager's threat as a lawful and valid exercise of his enforcement rights and, therefore, does not criminalize his conduct as extortion.
The questions posed by the parties require us to apply and expand upon this logic provided in Jackson. At first blush, it is not entirely clear that the parties' arguments are so different from each other. At least some "wrongful" threats under the Second Circuit's "claim of right" definition would also be unlawful in a criminal or civil sense—such threats could implicate defamation or fraud. Moreover, identification of a "claim of right" requires reference to preexisting legal standards and thereby utilizes these standards in distinguishing lawful from unlawful conduct. Nevertheless, the two standards implicate an important difference. To require that a threat be unlawful would be to require that the prosecution demonstrate beyond a reasonable doubt that the threat
The crime of extortion has never been defined strictly in terms of the lawfulness or unlawfulness of one of the actor's underlying supporting actions.
Accordingly, we affirm the district court's holding that 18 U.S.C. § 875(d) carries with it an implicit "wrongful threat" requirement. Doing so harmonizes subsection (d) with subsections (a), (b), and (c) of 18 U.S.C. § 875, and the "intent to extort" element of subsection (d) itself. It also aligns § 875(d) with the commonly understood meaning of extortion. Utilizing this interpretation of the statute, we now consider whether the indictment alleged sufficient facts to charge Coss and Sippola under 18 U.S.C. § 875(d).
"[A]n indictment is sufficient if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Anderson, 605 F.3d 404, 411 (6th
Having determined that a wrongful-threat requirement is implicit in 18 U.S.C. § 875(d), we can easily conclude that the indictment was sufficient. The indictment specifically alleged that the defendants acted "with intent to extort" and that the communications they used contained "a wrongful threat to injure the reputation of the addressee." See id. at 1, 8-9; cf. Heller, 579 F.2d at 999 (holding indictment to be "fatally defective" for failing to "charge" the defendant with the "intent to extort" in a prosecution under 18 U.S.C. § 875(a)). From the facts alleged in the indictment, a jury could reasonably conclude that both of these allegations were true.
The indictment set out Coss's and Sippola's scheme involving the creation of fictitious personas "Jessica Taylor" and "Brian L." in order to induce Stamos to pay $680,000 in exchange for the photographs by threatening otherwise to sell the photographs to a tabloid magazine and damage Stamos's reputation. See R. 17 (Indictment ¶¶ 6-9). The threat that Coss and Sippola made—that they would sell the photographs to a tabloid unless Stamos paid them $680,000 in cash—was wrongful because Coss and Sippola had no claim of right to $680,000 in cash from Stamos. Their only leverage for obtaining this money was the threat of selling the photographs to a tabloid, as evidenced by the fact that if they had actually sold the photographs to a tabloid, they would have no longer had a basis for insisting that Stamos pay them $680,000 in cash. Thus, because Coss and Stamos were not using their threat to collect on a debt owed to them, or to exercise any other claim of right against Stamos, their threat had no nexus to a valid claim of right and was wrongful. Moreover, this wrongful threat was made with the deliberate intention of extracting the desired sum of money from Stamos. The indictment alleged an elaborate scheme that Coss and Sippola carefully executed over time to achieve their desired result. From these allegations, a jury could also conclude that both Coss and Sippola acted with the "intent to extort."
Although Coss and Sippola are correct that they may have had a lawful right to possess the photographs and a lawful right to offer Stamos the opportunity to purchase the photographs, their conduct became unlawful when their offer to Stamos was made in the form of a wrongful threat accompanied by an intent to extort. Thus, the indictment, by including both the "wrongful threat" and "intent to extort" elements with accompanying factual allegations, gave Coss and Sippola ample notice of the charges they must defend and the reason that their conduct was alleged to be criminal. Moreover, the detail provided in the indictment assured Coss and
Coss and Sippola argue that 18 U.S.C. § 875(d), construed to include a wrongful-threat requirement, is unconstitutionally vague and overbroad insofar as it infringes on commercial speech protected by the First Amendment. The district court rejected both the vagueness and overbreadth claims. We review de novo challenges to the constitutionality of a statute. United States v. Bowers, 594 F.3d 522, 527 (6th Cir.), cert. denied, ___ U.S. ___, 131 S.Ct. 340, 178 L.Ed.2d 222 (2010).
"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." Gonzales v. Carhart, 550 U.S. 124, 148-49, 127 S.Ct. 1610, 167 L.Ed.2d 480 (2007) (quoting Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)) (internal quotation marks omitted). "Although ordinarily `[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others,' we have relaxed that requirement in the First Amendment context, permitting plaintiffs to argue that a statute is overbroad because it is unclear whether it regulates a substantial amount of protected speech." United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (quoting Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982)). "To show that a statute is unconstitutionally overbroad, [a party] must demonstrate from the text of the statute and from actual fact that a substantial number of instances exist in which the law cannot be applied constitutionally." Am. Booksellers Found. for Free Expression v. Strickland, 601 F.3d 622, 627 (6th Cir.2010) (quoting Connection Distrib. Co. v. Holder, 557 F.3d 321, 336 (6th Cir.2009) (en banc)) (internal quotation marks and alterations in original omitted).
Defendants' constitutional challenges fail because 18 U.S.C. § 875(d) criminalizes, in a clear and precise manner, extortionate threats, which are true threats, and therefore not protected speech. See Landham, 251 F.3d at 1080 ("[I]t is well established that true threats, unlike political hyperbole and other protected speech, are not protected by the First Amendment."); United States v. Hutson, 843 F.2d 1232, 1235 (9th Cir.1988) ("The `intent to extort' requirement of section 876 guarantees that the statute reaches only extortionate speech, which is undoubtedly within the government's power to prohibit."). Extortion, like robbery or murder, refers to criminal conduct that has a commonly understood meaning providing ample notice of the conduct falling within its ambit, limiting the potential for abuse in enforcement, and ensuring that protected First Amendment speech is not within its reach. See Jackson, 180 F.3d at 69 (quoting Representative Hobbs in debates surrounding the enactment of the Hobbs Act as "stat[ing] that the terms extortion and robbery `have been construed a thousand times by the courts. Everybody knows what they mean.'") (quoting 91 CONG. REC. 11,912 (1945)). While theoretically a statute criminalizing the making of threats in general could be unconstitutionally
In short, 18 U.S.C. § 875(d) is sufficiently cabined by its own wrongful threat and intent to extort requirements to survive constitutional muster.
Typically, we review for clear error a district court's determination that a defendant is not entitled to a downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. United States v. Reaume, 338 F.3d 577, 582 (6th Cir.2003), cert. denied, 540 U.S. 1166, 124 S.Ct. 1182, 157 L.Ed.2d 1214 (2004). "However, if the only issue presented is the propriety of applying the reduction to the uncontested facts, the decision is reviewed de novo." Id. In this case, the parties dispute the appropriate standard of review. The government maintains that the district court's determination was factual and therefore should be reviewed for clear error, while Coss and Sippola argue that de novo review is appropriate because "the only issue presented is the propriety of the application of the adjustment to uncontested facts." Appellant Coss Br. at 42; Appellant Sippola Br. at 43.
In Reaume, this Circuit decided a similar dispute. The defendant maintained
This Circuit has recognized that the "intent to extort" is a specific-intent requirement in the context of a parallel provision of the statute—18 U.S.C. § 875(b). Cooper, 523 F.2d at 10. Although defendants now appear to contest on appeal the specific-intent requirement of 18 U.S.C. § 875(d), they requested that the jury be given a specific-intent instruction at trial. See R. 84 (Summary of Authority for Defense Request for Specific Intent Instruction). Defendants on appeal cannot reverse their position as to the intent requirement of the statute in the hopes of obtaining a more favorable standard of review.
At sentencing, the district court determined that a downward adjustment was not warranted and stated that its determination was "not a close question." R. 116 (Sent. Tr. at 21:4). The district court noted that the defendants had consistently "denied an essential element of the case"— that they had the specific intent to extort Stamos—and had not "really" expressed any "remorse" or "guilt" apart from being "sorry" and "embarrassed" about the situation. Id. at 21:11-12, 20-23. The district court further stated:
Id. at 59:3-10.
We cannot conclude that the district court's determination that a downward adjustment for acceptance of responsibility was not warranted constitutes clear error. Although defendants did admit substantial elements of the crimes charged, they did not admit the requisite mens rea. Defense counsel explicitly denied that Coss and Sippola had the "intent to extort" Stamos during opening statements at trial, and informed the jury that this factual contention would be the cornerstone of their defense. R. 112 (Trial Tr. at 191:11-13) ("They had no intent to extort. That's their defense, and that's what the evidence will show."). Accordingly, the district court did not clearly err in denying the downward adjustment for acceptance of responsibility, and we affirm Coss's and Sippola's sentences.
Based on the foregoing, we AFFIRM the judgment of the district court.
Coss and Sippola do contend, however, that because each of the subsections criminalizes conduct that is inherently unlawful, an unlawful-threat requirement should be read into subsection (d). We reject this interpretation of § 875(d) for the reasons explained in this opinion.