United States v. Brandon Michael Fleury

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[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-11037

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRANDON MICHAEL FLEURY,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:19-cr-60056-RAR-1

____________________

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2 Opinion of the Court 20-11037

Before WILSON, ROSENBAUM, and HULL, Circuit Judges.

WILSON, Circuit Judge:

Defendant-Appellant Brandon Fleury was convicted by a

jury in the Southern District of Florida on one count of transmit-

ting interstate threats, in violation of 18 U.S.C. § 875(c) (Count 1),

and three counts of cyberstalking, in violation of 18 U.S.C.

§ 2261A(2)(B) (Counts 2–4). Fleury’s convictions stem from posts

he made and messages he sent on Instagram, posing as various

mass murderers including notorious serial killer Ted Bundy and Ni-

kolas Cruz, the perpetrator of the Marjory Stoneman Douglas High

School shooting. Fleury directed these posts and messages to three

individuals (Jesse Guttenberg, Alexis Sealy, and Max Schachter re-

ferred to in the indictment as Victims 1, 2, and 3, respectively) who

lost loved ones in the shooting.

The district court sentenced Fleury to sixty months in prison

for each of Counts 1–3, to run concurrently, and six months in

prison as to Count 4, to be served consecutively to Counts 1–3. He

was also sentenced to three years of supervised release for each

count. On appeal, Fleury raises various challenges to the constitu-

tionality of § 2261A(2)(B), the sufficiency of the indictment and ev-

idence, the jury instructions, and the admission of expert testi-

mony.

BACKGROUND

On February 14, 2018, Nikolas Cruz murdered seventeen

students and faculty members at Marjory Stoneman Douglas High

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20-11037 Opinion of the Court 3

School in Parkland, Florida, using an AR-15 style semi-automatic

rifle (MSD shooting). Between December 22, 2018, and January 11,

2019, Brandon Fleury—bearing aliases like nikolas.killed.your.sis-

ter, the.douglas.shooter, and Teddykillspeople (referencing Ted

Bundy)—sent victims’ family members and friends taunting and

harassing Instagram messages that they allege put them in fear for

their own lives.

The following evidence was adduced at trial. The govern-

ment’s case-in-chief centered on three victims: Max Schachter,

Jesse Guttenberg, and Alexis Sealy. 1 Max Schachter’s fourteen-year-

old son, Alex, was killed in the MSD shooting. Following Alex’s

murder, Schachter started a scholarship fund in his name and

served as an advocate for school safety. In December 2018,

Schachter began receiving “very scary messages” on his Instagram

account. Examples of the messages he received include: “I killed

Alex and it was fun” and “they had their whole lives ahead of them

and I f**king stole it from them.” While all of these messages were

abhorrent, Schachter testified that he was especially frightened by

two messages in particular: “I’m your abductor I’m kidnapping you

fool” and “With the power of my AR-15, I take your loved ones

away from you PERMANENTLY.”

1 Count 2 of the indictment encompasses messages directed towards Jesse Gut-

tenberg, Count 3 towards Alexis Sealy, and Count 4 towards Max Schachter.

All three victims testified at trial.

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4 Opinion of the Court 20-11037

Similar messages were sent to Jesse Guttenberg and Alexis

Sealy. Jesse’s younger sister Jaime was also killed in the MSD shoot-

ing. On December 22, 2018, during his senior year of high school,

Jesse woke to find a barrage of messages sent to his Instagram ac-

count. These messages included “I’m a murderer,” and “[t]hey had

their whole lives ahead of them and I f**king stole it from them.”

As with Max Schachter, Jesse received a message that said, “I’m

your abductor I’m kidnapping you fool.” And a later series of mes-

sages included, “With the power of my AR-15 I take your loved

ones away from you”; “I’m the monster that killed your family”;

and “With the power of my AR-15 you all die.” Jesse showed the

messages to his parents, who contacted law enforcement. Police

consequently maintained a presence outside the Guttenberg home

during the 2018 winter break and continued to closely monitor

Jesse’s movements upon his return to school, which began to “af-

fect [his] personal life and take away from what [he] needed to be

doing.”

In mid-December 2018, Alexis Sealy also began receiving

harassing messages on Instagram. A lot of these messages taunted

Alexis about the death of her best friend, Jaime Guttenberg. Like

Max Schachter and Jesse Guttenberg, she received messages that

said: “With the power of my AR-15 I erased their existence. Your

grief is my joy”; “I’m your abductor I’m kidnapping you fool”; and

“with the power of my AR-15 I take your loved ones away from

you PERMANENTLY.”

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On December 22, 2018, having sent harassing messages to

another MSD survivor, Cameron Kasky, Fleury admitted in a pri-

vate message that he “took it way too far with [his] trolling.”

Law enforcement obtained the IP address associated with

the usernames from which the messages were sent, and deter-

mined it was assigned to Fleury’s home address. In a post-Miranda

statement, Fleury admitted to having sent the messages at issue

and said that the usernames he used were inspired by his attraction

to “aggressive people with violent tendencies,” such as Nikolas

Cruz and Ted Bundy.

A grand jury returned a four-count indictment charging

Fleury with interstate transmission of a threat to kidnap, in viola-

tion of 18 U.S.C. § 875(c) (Count 1) 2, and interstate cyberstalking,

in violation of 18 U.S.C. § 2261A(2)(B) (Counts 2–4). Fleury filed a

pre-trial motion to dismiss the cyberstalking counts as facially over-

broad under the First Amendment and unconstitutional as applied

to his offense conduct, which the government opposed. The dis-

trict court denied Fleury’s motion in a written order, finding the

cyberstalking statute neither overbroad nor unconstitutional as ap-

plied.

2 The basis for Count 1 was the message Fleury sent from the username “Ted-

dykillspeople” to all three victims that read: “I’m your abductor [smile emoji

and applauding emoji]. I’m kidnapping you fool [lock emoji and blowing kiss

emoji].”

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6 Opinion of the Court 20-11037

At trial, the defense did not contest that Fleury sent the mes-

sages in question. Instead, the defense contended that Fleury, who

is autistic, did not have the requisite intent to be convicted because

he did not understand that his actions would cause substantial emo-

tional distress to others. Fleury’s father, Patrick, testified that his

son had been diagnosed with attention deficit disorder (ADD), at-

tention deficit hyperactivity disorder (ADHD), autism spectrum

disorder (ASD), and obsessive compulsive disorder (OCD), and

that his son existed “in his own little fantasy world.” Dr. Lori Butts,

the defense’s expert in forensic psychology, testified that she exam-

ined Fleury and diagnosed him as suffering from ASD Level 2 with-

out intellectual impairment. She opined that he had difficulty un-

derstanding the emotions of others and that he did not understand

the emotional impact of his behavior on his victims. Specifically,

she testified that Fleury could understand sadness in others but not

grief.

In response, the government called Dr. Park Dietz, an expert

in forensic psychiatry who evaluated Fleury for eight hours over

two days and diagnosed him with ASD Level 1. Dr. Dietz testified

that Fleury could appreciate the emotional impact of his messages

on his victims and that he intended for the messages to cause anger,

grief, and fear. Disagreeing with Dr. Butts, he concluded Fleury

“may not have had complete understanding the way most of us

would, but . . . he understood enough to know how bad this was.”

During Dr. Dietz’s evaluation, Fleury acknowledged that he was

sexually attracted to serial killers and that this attraction “focused

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20-11037 Opinion of the Court 7

on both the physical attractiveness of the person and also on what

they had done.” Dr. Dietz testified that he questioned Fleury in

some detail about what Fleury found alluring about the serial kill-

ers, and Dr. Dietz’s understanding of Fleury’s response was that

“he found it arousing that they were so domineering and had done

so much harm to others.” Dr. Dietz posited a connection between

Fleury’s sexual proclivities to taunting and the charged conduct:

“he was aroused by the people but also by their bad acts, including

victim taunting. And . . . he wanted to be like them, and that’s why

he chose the persona of Nikolas Cruz or Ted Bundy to present him-

self to the world in these anonymous communications.”

After a five-day trial, the jury convicted Fleury of all four

counts. The district court sentenced Fleury to 66 months’ impris-

onment, to be followed by three years of supervised release. Fleury

timely appealed, raising challenges to the constitutionality of 18

U.S.C. § 2261A(2)(B), the jury instructions, the sufficiency of the

evidence for intent, the admissibility of Dr. Dietz’s expert testi-

mony, and the sufficiency of the indictment. We address each issue

in turn.

DISCUSSION

I. Constitutional Challenges to 18 U.S.C. § 2261A(2)(B)

Prior to trial, Fleury moved the district court to dismiss

Counts 2–4 of the indictment, contending the cyberstalking statute,

18 U.S.C. § 2261A(2)(B), was facially unconstitutional for being

overbroad because it applied to a substantial amount of protected

speech and unconstitutional as applied to his conduct under the

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8 Opinion of the Court 20-11037

First Amendment. The district court denied Fleury’s motion, first

rejecting his facial overbreadth argument by concluding “the plain

language of section 2261A(2)(B) is directed towards conduct, not

speech, and the statute does not punish a substantial amount of

protected free speech in relation to its plainly legitimate sweep.”

Regarding Fleury’s as-applied challenge, the court found the mes-

sages qualified as true threats and thus did not merit protection un-

der the First Amendment. The court noted that Fleury “made nu-

merous comments indicating a serious expression of an intent to

commit an act of unlawful violence towards the victims,” and that

his use of monikers based on notorious mass murderers “commu-

nicated to [the victims] that he had an intent to kidnap, kill, or oth-

erwise harm them.” The court ultimately concluded that the mes-

sages “implied an ongoing intent to commit future acts of vio-

lence.”

At the close of the government’s case-in-chief, Fleury moved

for a judgment of acquittal under Federal Rule of Criminal Proce-

dure 29, arguing the messages he sent were not true threats and

thus were subject to First Amendment protection. In response, the

government noted that it had presented evidence showing that

Fleury sent the threatening and harassing messages anonymously,

adopted usernames referencing known serial killers, and drafted a

number of the threatening messages in the present tense, which

indicated an ongoing threat to the victims. The district court de-

nied Fleury’s motion and later denied Fleury’s renewed motion at

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20-11037 Opinion of the Court 9

the close of evidence, concluding that the government had pre-

sented sufficient evidence to send all four counts to the jury.

During the charge conference, the district court reiterated

that, because the course of conduct underlying Fleury’s

§ 2261A(2)(B) charges was speech, the jury would have to find that

his course of conduct included true threats. Accordingly, the court

included an instruction for those counts stating: “You may only

find the Defendant guilty if his course of conduct included the com-

munication of a true threat.” 3

On appeal, Fleury reasserts his facial overbreadth and as-ap-

plied challenges to the constitutionality of 18 U.S.C. § 2261A(2)(B).

He contends that the statute is unconstitutionally overbroad be-

cause it has a wide-ranging sweep that encompasses protected

speech—including a substantial amount of speech on matters of

public concern—simply for causing an emotional reaction. Fleury

argues that the statute is also unconstitutional as applied to his con-

duct because it amounts to a content-based restriction, limiting

speech on the basis of whether that speech is emotionally distress-

ing. The speech at issue, according to Fleury, was also on a matter

of public concern and thus was entitled to special protection.

The government responds that Fleury glosses over critical

statutory elements, including criminal intent, in his effort to por-

tray § 2261A(2)(B) as facially unconstitutional. Section 2261A(2)(B)

3 We will discuss the definition of “true threat” given to the jury and the par-

ties’ attendant arguments in detail below.

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10 Opinion of the Court 20-11037

is also not unconstitutional as applied to Fleury’s conduct, the gov-

ernment argues, because true threats—like the messages Fleury

sent to the victims—are entitled to no First Amendment protection

and the messages did not address a matter of public concern.

* * *

We review both of Fleury’s constitutional challenges de

novo. United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir. 2011).

A. Overbreadth Challenge.

Section 2261A(2)(B) applies to whomever “with the intent

to kill, injure, harass, intimidate . . . uses . . . any interactive com-

puter service or electronic communication system of interstate

commerce . . . to engage in a course of conduct that” “causes, at-

tempts to cause, or would be reasonably expected to cause substan-

tial emotional distress.” 18 U.S.C. § 2261A(2)(B). The term “course

of conduct” is defined as “a pattern of conduct composed of 2 or

more acts, evidencing a continuity of purpose.” 18 U.S.C. § 2266(2).

A conviction under § 2261A(2)(B) thus requires proof that

“(1) the defendant had the requisite intent; (2) the defendant en-

gaged in a course of conduct; (3) the defendant used a facility of

interstate commerce; and (4) the defendant’s course of conduct

caused, attempted to cause, or would be reasonably expected to

cause substantial emotional distress.” United States v. Ackell, 907

F.3d 67, 72 (1st Cir. 2018) (alterations adopted and internal quota-

tion marks omitted).

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A statute is impermissibly overbroad under the First Amend-

ment—and facially unconstitutional—if it prohibits “a substantial

amount of protected speech.” United States v. Williams, 553 U.S.

285, 292 (2008). The Supreme Court has long recognized that “the

overbreadth doctrine is ‘strong medicine’ and ha[s] employed it

with hesitation, and then ‘only as a last resort.’” New York v. Fer-

ber, 458 U.S. 747, 769 (1982). The burden of establishing over-

breadth rests on the party challenging the statute. Virginia v. Hicks,

539 U.S. 113, 122 (2003).

Fleury has not met his burden of demonstrating that

§ 2261A(2)(B) is unconstitutionally overbroad. His facial challenge

fails because it ignores key statutory elements that narrow the con-

duct it applies to—including, for example, proof that the defendant

acted with “intent to kill, injure, harass, [or] intimidate” and evi-

dence that the defendant “engage[d] in a course of conduct” con-

sisting of two or more acts evidencing a continuity of purpose. 18

U.S.C. § 2261A(2)(B). Further, “[t]he mere fact that one can con-

ceive of some impermissible applications of a statute is not suffi-

cient to render it susceptible to an overbreadth challenge.” Wil-

liams, 553 U.S. at 303 (internal quotation mark omitted). The Su-

preme Court has “vigorously enforced the requirement that a stat-

ute’s overbreadth be substantial, not only in an absolute sense, but

also relative to the statute’s plainly legitimate sweep.” Id. at 292–

93.

Because § 2261A(2)(B) is not “substantial[ly]” overbroad, we

uphold the constitutionality of the statute. See id. In doing so we

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12 Opinion of the Court 20-11037

join every circuit court of appeals that has addressed a facial attack

to § 2261A(2)(B). See United States v. Ackell, 907 F.3d 67, 73 (1st

Cir. 2018) (concluding that § 2261A(2)(B) does not target speech,

and therefore is not unconstitutionally overbroad, because even

though the statute “could reach highly expressive conduct, it is

plain from the statute’s text that it covers countless amounts of un-

protected conduct”); United States v. Petrovic, 701 F.3d 849, 856

(8th Cir. 2012) (concluding, under the prior version of the statute,

that “[m]ost, if not all, of the statute’s legal applications are to con-

duct that is not protected by the First Amendment” (alteration

adopted)); United States v. Osinger, 753 F.3d 939, 944 (9th Cir.

2014) (rejecting an overbreadth challenge to the prior version of

§ 2261A(2)(B) and concluding that because the statute “proscribes

harassing and intimidating conduct, the statute is not facially inva-

lid”).

We find the analysis the First Circuit employed in Ackell par-

ticularly persuasive. In that case, the defendant was charged and

convicted with one count of cyberstalking under Section

2261A(2)(B) in a sextortion case involving a teenager. Defendant

Ackell had threatened to send explicit photos of a teenage girl to

her family and friends if she did not do what he wanted. Ackell

challenged the statute as facially overbroad on appeal. The First

Circuit upheld the conviction and dismissed Ackell’s overbreadth

argument, concluding that the statute does not target speech; ra-

ther, it “targets conduct, specifically ‘conduct performed with seri-

ous criminal intent.’” 907 F.3d at 74. “[W]hile § 2261A(2)(B) could

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20-11037 Opinion of the Court 13

reach highly expressive conduct,” the court explained, “it is plain

from the statute’s text that it covers countless amounts of unpro-

tected conduct.” Id. at 73. To demonstrate this point, the court pro-

vided examples of unprotected conduct covered under the statute:

a defendant could send envelopes of unknown white

powder to the victim in the mail; he could send the

victim nude photographs of herself; he could repeat-

edly infect the victim’s computers with viruses; he

could open unwanted on-line dating profiles under

the victim’s identity; he could take out unwanted

loans in the victim’s name; or he could arrange every

day for deliveries to be made at the victim’s home at

all hours of the night.

Id. Thus, the First Circuit declined to employ the “strong medi-

cine” of overbreadth and strike down Section 2261A(2)(B). So too

do we.

B. As-Applied Challenge.

Fleury’s as-applied challenge fares no better than his facial

challenge. While it’s feasible to think of limited instances in which

§ 2261A(2)(B) could apply to constitutionally-protected speech,

Fleury’s case is not one of them. He argues that the statute is un-

constitutional as applied to his conduct because (1) his speech con-

cerned a matter of public concern, and (2) the statute impermissi-

bly restricts the content of his speech. Neither argument has merit.

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14 Opinion of the Court 20-11037

a. Matter of Public Concern.

“Speech on matters of public concern is at the heart of the

First Amendment’s protection.” Snyder v. Phelps, 562 U.S. 443,

451–52 (2011) (cleaned up). Speech is considered to deal with a mat-

ter of public concern “when it can be fairly considered as relating

to any matter of political, social, or other concern to the commu-

nity, or when it is a subject of legitimate news interest; that is, a

subject of general interest and of value and concern to the public[.]”

Id. at 453 (internal quotation marks and citations omitted). Such

speech is afforded greater First Amendment protection than speech

on purely private matters because restricting the latter presents “no

threat to the free and robust debate of public issues . . . [or] poten-

tial interference with a meaningful dialogue of ideas.” Id. at 452.

Whether speech addresses a matter of public or private concern

turns on “the content, form, and context” of the speech. Id. at 453.

The district court correctly concluded—after considering

their content, form, and context—that Fleury’s messages address

purely private matters. Of course, the MSD shooting itself is a mat-

ter of public concern that kick-started a debate on multiple political

and social issues, including mental health, gun control, and school

safety. However, Fleury’s messages did not address any of these

topics, attempt to engage in a dialogue concerning these issues, or

provide any other relevant information. Instead, as the district

court noted, the messages threatened and intimidated the victims

by gloating over the death of their loved ones and “focused only on

exacerbating the victims’ grief—a purely private matter.” The

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government is correct in stating that “[t]he fact that Fleury’s threat-

ening and intimidating messages arose in the wake of a public trag-

edy does not transform their ‘overarching purpose’ into constitu-

tionally protected commentary on a matter of public concern.” Put

simply, restricting the speech at issue presents “no threat to the free

and robust debate of public issues [nor] potential interference with

a meaningful dialogue of ideas.” Phelps, 562 U.S. at 452.

b. Content-Based Regulation.

We now turn to Fleury’s argument that § 2261A(2)(B) un-

constitutionally restricts the content of his speech.

Regulations are content based—and subject to strict scru-

tiny—if they, “by their terms[,] distinguish favored speech from dis-

favored speech on the basis of the ideas or views expressed.”

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). On the

other hand, “laws that confer benefits or impose burdens on speech

without reference to the ideas or views expressed are in most in-

stances content neutral.” Id.

As an initial matter, we agree with Fleury that the applica-

tion of § 2261A(2)(B) to his speech amounts to a content-based re-

striction. It is precisely because of the content of his speech—which

included threats to kidnap the three victims and to kill them and

their other loved ones—that Fleury was investigated, indicted, and,

ultimately, convicted. This conclusion does not, however, end our

analysis. The district court found that § 2261A(2)(B)—as applied to

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16 Opinion of the Court 20-11037

Fleury—did not violate the First Amendment because his messages

were true threats. We agree with the district court.

The Supreme Court has long recognized certain “well-de-

fined and narrowly limited classes of speech, the prevention and

punishment of which have never been thought to raise any Consti-

tutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568,

571–72 (1942). Among these categories are incitement, obscenity,

defamation, speech integral to criminal conduct, fighting words,

child pornography, fraud, speech presenting a grave and imminent

threat, and true threats. See United States v. Alvarez, 567 U.S. 709,

717 (2012). Content-based restrictions are permitted when they are

confined to these categories of speech. Id. In fact, the Supreme

Court has recognized that the protection of our tradition of free

speech and thought “can still thrive, and even be furthered, by ad-

herence to [these] categories” and restrictions. Id. at 718.

The relevant category of speech here is that of true threats.

“‘True threats’ encompass those statements where the speaker

means to communicate a serious expression of an intent to commit

an act of unlawful violence to a particular individual or group of

individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). The

speaker does not have to actually intend to carry out the threat for

the statement to constitute a true threat. Id. at 359–60. “Rather, a

prohibition on true threats protects individuals from the fear of vi-

olence and from the disruption that fear engenders, in addition to

protecting people from the possibility that the threatened violence

will occur.” Id. at 360 (cleaned up).

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Fleury made numerous comments that indicated a serious

expression of an intent to commit an act of unlawful violence to-

ward each victim. For example, Fleury assumed the alias of one of

the nation’s most notorious serial killers, Ted Bundy, when he sent

messages to all three victims from the username “Teddykillspeo-

ple” that he had the intent to kidnap or otherwise harm them. In

other messages sent over the course of several days, Fleury charac-

terized himself as Nikolas Cruz, declared himself a “murderer” and

threatened that “[w]ith the power of my AR-15, you all die.”

The district court correctly noted that “[t]hese messages did

more than celebrate the death of the victims’ loved ones. Instead,

they implied an ongoing intent to commit future acts of violence.”

Take, for instance, the message that Fleury sent all three victims:

“I’m your abductor. I’m kidnapping you fool.” This message is

worded in the present tense and evidences an intent to intimidate

and place the recipient of the message in fear of bodily harm or

death. See Black, 538 U.S. at 360. In fact, Alexis Sealy testified that

receiving this message affected her “because this was the first mes-

sage [she] had received that enforced some kind of action.” Further,

messages stating “you all die” and expressing an intent to “take

your loved ones away” clearly show an intent to harm or kill indi-

viduals that are still alive, rather than merely taunting the victims

over the lives that had already been lost. Moreover, at least one of

the victims, Jesse Guttenberg, was in such fear for his life that his

parents requested law enforcement maintain a presence outside

the Guttenberg home and monitor Jesse’s movements at school.

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18 Opinion of the Court 20-11037

And law enforcement apparently agreed with the assessment, as

they went ahead and provided the protection.

When viewing Fleury’s messages within the context of his

entire course of conduct—including the sheer number and fre-

quency of the messages 4—they create the visual of an anonymous,

persistent tormenter who desires to harm the victims. This is pre-

cisely the type of fear that the “true threats” doctrine is intended to

prevent. See Black, 538 U.S. at 360 (noting that a prohibition on

true threats serves to protect individuals from the fear of violence).

Because we agree with the district court that the messages

Fleury sent amount to true threats, they are not afforded protec-

tion under the First Amendment. Accordingly, § 2261A(2)(B) is

constitutional as applied to Fleury’s conduct.

II. Sufficiency of the Indictment for § 2261A(2)(B)

Having determined that § 2261A(2)(B) is constitutional both

facially and as applied to Fleury’s conduct, we turn to Fleury’s chal-

lenge to the sufficiency of the indictment.

Fleury argues that the indictment was insufficient for his cy-

berstalking counts under 18 U.S.C. § 2261A(2)(B) because it was

4 When asked about the number of messages she received, Alexis Sealy testi-

fied that “[i]t would be about tens, maybe even a hundred messages a night

over the span of a few weeks.” More specifically, documents in evidence show

that, from December 22, 2018, to January 11, 2019, Fleury used thirteen differ-

ent Instagram accounts to send a total of 168 messages to Jesse Guttenberg, 75

messages to Alexis Sealy, and 58 messages to Max Schachter.

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20-11037 Opinion of the Court 19

based on the emotional distress his messages caused the victims,

not because they were “true threats.” The relevant portion of the

indictment reads:

BRANDON MICHAEL FLEURY, did, with the intent

to harass and intimidate, use an interactive computer

service and electronic communication service and

any other facility of interstate and foreign commerce

to engage in a course of conduct that caused, at-

tempted to cause, and would be reasonably expected

to cause substantial emotional distress . . . .

Fleury did not challenge the sufficiency of the indictment in

the district court. “When the adequacy of an indictment is chal-

lenged for the first time on appeal, this Court must find the indict-

ment sufficient unless it is so defective that it does not, by any rea-

sonable construction, charge an offense for which the defendant is

convicted.” United States v. Gray, 260 F.3d 1267, 1282 (11th Cir.

2001) (internal quotation mark omitted).

Fleury’s unpreserved challenge to his indictment provides

no basis for us to vacate his cyberstalking convictions. The indict-

ment tracked the language of the statute, provided Fleury with ad-

equate notice of his charges, and sufficiently charged the offense

for which he was convicted. See id. An indictment is not insufficient

simply because it “might have been drafted with more clarity.”

United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir. 2003). Ac-

cordingly, we affirm the district court.

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20 Opinion of the Court 20-11037

III. Sufficiency of the Evidence for Subjective Intent

Having found the indictment sufficient, we now turn to

Fleury’s challenge to the sufficiency of the evidence for his subjec-

tive intent to threaten.

At trial, Fleury moved for a judgment of acquittal under Fed-

eral Rule of Criminal Procedure 29. Fleury argues that the district

court erred in denying both his motion and his renewed motion

under Rule 29 because the government presented no evidence

whatsoever that Fleury—who the government acknowledged did

not have the same understanding of emotion as the average per-

son—intended to threaten anyone. There was thus insufficient ev-

idence, he contends, of his subjective intent to transmit interstate

threats and cyberstalk, and his convictions should be reversed.

“We review de novo a district court’s denial of judgment of

acquittal on sufficiency of evidence grounds.” United States v.

Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). In reviewing a chal-

lenge to the sufficiency of the evidence, we view the evidence in

the light most favorable to the prosecution and draw “all reasona-

ble inferences and credibility choices” in its favor. Id. “This inquiry

does not require that the evidence be inconsistent with ‘every rea-

sonable hypothesis except guilt.’” Id. Accordingly, we will uphold

the denial of judgment of acquittal—and affirm the guilty verdict—

if “any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979).

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20-11037 Opinion of the Court 21

Viewing the evidence in the light most favorable to the pros-

ecution, there was sufficient evidence of Fleury’s subjective intent

to threaten. The jury heard from both a defense expert witness, Dr.

Butts, and a government expert witness, Dr. Dietz, and they gave

conflicting accounts of Fleury’s culpability and the effect his ASD

had on his ability to comprehend emotions. Specifically, Dr. Dietz

concluded that Fleury intended to cause his victims anger, grief,

and fear. And, in response to a questionnaire Fleury completed dur-

ing Dr. Butts’s evaluation, Fleury described himself as “a sympa-

thetic person” and maintained that he “can put [himself] in other

people’s shoes.”

After hearing the testimony, the jury was free to determine

both experts’ credibility as it saw fit. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986) (explaining that “[c]redibility

determinations, the weighing of the evidence, and the drawing of

legitimate inferences from the facts are jury functions”). We de-

cline to invade the province of the jury by reevaluating the experts’

credibility and reweighing the evidence on appeal. In fact, it is pre-

cisely because “we recognize that ‘the jury is free to choose be-

tween or among the reasonable conclusions to be drawn from the

evidence presented at trial,’ [that] our sufficiency review requires

only that a guilty verdict be reasonable, not inevitable, based on

the evidence presented at trial.” Browne, 505 F.3d at 1253.

Because it is possible that a “rational trier of fact could have

found the essential elements of the crime beyond a reasonable

doubt,” Jackson, 443 U.S. at 319, we find sufficient evidence

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22 Opinion of the Court 20-11037

supported the jury’s findings that Fleury had the requisite intent to

be convicted of 18 U.S.C. §§ 875(c) and 2261A(2)(B).

IV. Admission of Expert Testimony

We next turn to Fleury’s contention that the district court

erred in allowing the testimony of government expert Dr. Dietz.

Because this argument is raised for the first time on appeal, we re-

view only for plain error. United States v. Clotaire, 963 F.3d 1288,

1292 (11th Cir. 2020). “To find plain error, there must be: (1) error,

(2) that is plain, and (3) that has affected the defendant’s substantial

rights.” United States v. Hesser, 800 F.3d 1310, 1324 (11th Cir. 2015)

(per curiam). “[W]e may exercise our discretion to recognize a for-

feited error . . . only if the error ‘seriously affect[s] the fairness, in-

tegrity[,] or public reputation of judicial proceedings.’” Id.

Fleury argues that Dr. Dietz’s testimony should not have

been permitted because it was irrelevant and unfairly prejudicial.

According to Fleury, Dr. Dietz was not qualified to opine on how

Fleury’s ASD affected his mental state because Dr. Dietz is an ex-

pert on serial killers, not ASD. Not only was Dr. Dietz’s testimony

not relevant, Fleury argues, but it was also unfairly prejudicial—

Dr. Dietz testified that he was previously involved in the cases of

mass murderers like Jeffrey Dahmer and Ted Kaczynski, and in

Fleury’s view, his testimony forced the jury to equate Fleury with

these individuals and any other mass murderer in recent history.

Fleury also complains that the government elicited testimony

about Fleury’s sexual attraction to serial killers and other mass

murderers. Fleury argues that the admission of this testimony was

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20-11037 Opinion of the Court 23

plain error because it resulted in the jury convicting him based on

fear of a crime he did not commit.

“Evidence is relevant if: (a) it has any tendency to make a

fact more or less probable than it would be without the evidence;

and (b) the fact is of consequence in determining the action.” Fed.

R. Evid. 401. Only relevant evidence is admissible. Fed. R. Evid.

402. Relevant evidence may be excluded, however, “if its probative

value is substantially outweighed by a danger of . . . unfair preju-

dice[.]” Fed. R. Evid. 403.

A witness who is qualified as an expert . . . may testify

in the form of an opinion or otherwise if: (a) the ex-

pert’s scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; (b) the testi-

mony is based on sufficient facts or data; (c) the testi-

mony is the product of reliable principles and meth-

ods; and (d) the expert has reliably applied the princi-

ples and methods to the facts of the case.

Fed. R. Evid. 702.

The admission of Dr. Dietz’s testimony was not plain error.

Having undertaken an extensive eight-hour evaluation of Fleury

over two days, Dr. Dietz explained that Fleury’s attraction to the

domineering and taunting characteristics of serial killers motivated

him to send the intimidating messages and opined that Fleury

could appreciate the impact that his messages had on the recipients.

This testimony was thus clearly relevant under Rule 401, and

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24 Opinion of the Court 20-11037

Fleury does not explain how the government failed to meet its bur-

den under Rule 702. While it is true that Dr. Dietz is not an expert

on ASD, he is an expert on forensic psychiatry—not solely an ex-

pert on mass murderers as Fleury argues on appeal.

Nor did the district court plainly err when it did not sua

sponte preclude the government from introducing evidence relat-

ing to Fleury’s attraction to serial killers. Such evidence helped the

jury understand the motive for Fleury’s actions, and the court’s in-

structions ensured that the jury could convict Fleury only of the

crimes he was charged with. Finding no plain error, we affirm the

district court.

V. Jury Instructions

Finally, we address Fleury’s challenges to the jury instruc-

tions.

During the charge conference, the government acknowl-

edged that the speech necessary to convict Fleury of cyberstalking

under § 2261A(2)(B) (Counts 2–4) must amount to true threats.

Fleury insisted that the district court should require the jury to find

that he had the subjective intent to communicate a true threat to

convict him on these counts. Pointing out that “the scienter that

Congress has defined is intent to harass and intent to intimidate,”

however, the government argued that proof of Fleury’s subjective

intent was unnecessary as to these counts. The district court de-

clined to require proof of Fleury’s subjective intent to communi-

cate a true threat, concluding that § 2261A(2)(B) already includes

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20-11037 Opinion of the Court 25

“a scienter element on its very face” and that “adding a subjective

true threat to the scienter [would be] a statutory rewrite.”

The district court also rejected the use of Fleury’s proposed

definition of “true threat,” and instead chose to track the definition

contained in the pattern jury instruction for interstate threats under

18 U.S.C. § 875(c) 5: “A ‘true threat’ is a serious threat—not idle talk,

a careless remark or something said jokingly—that is made under

circumstances that would place a reasonable person in fear of being

kidnapped, killed or physically injured.”

On appeal, Fleury reasserts his challenges to the cyberstalk-

ing and theory of defense instructions. We address each instruction

in turn. 6

A. Cyberstalking Jury Instruction.

“We review jury instructions challenged in the district court

de novo to determine whether the instructions misstated the law

or misled the jury to the prejudice of the objecting party.” United

States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013) (internal quo-

tation mark omitted). “We will not reverse a defendant’s convic-

tion based on a challenge to the jury charge unless we are left with

5 18 U.S.C. § 875(c) provides: “Whoever transmits in interstate or foreign com-

merce any communication containing any threat to kidnap any person or any

threat to injure the person of another, shall be fined under this title or impris-

oned not more than five years, or both.”

6 Fleury does not appeal the jury instruction provided for Count 1, transmit-

ting interstate threats in violation of 18 U.S.C. § 875(c).

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26 Opinion of the Court 20-11037

a substantial and ineradicable doubt as to whether the jury was

properly guided in its deliberations.” Id. (internal quotation mark

omitted).

As outlined above, to convict Fleury of cyberstalking the

government was required to prove that (1) he had the requisite in-

tent to harass or intimidate; (2) he engaged in a pattern of conduct

composed of two or more acts, evidencing a continuity of purpose;

(3) he used an electronic communication system of interstate com-

merce; and (4) his pattern of conduct caused, attempted to cause,

or would be reasonably expected to cause substantial emotional

distress. See Ackell, 907 F.3d at 72; see also 18 U.S.C.

§§ 2261A(2)(B), 2266(2).

The jury instruction the trial judge gave as to § 2261A(2)(B)

reads in full as follows:

It’s a Federal crime to knowingly use, with the

intent to harass or intimidate, an interactive com-

puter service, electronic communications service, or

other facility of interstate or foreign commerce to en-

gage in a course of conduct that causes, attempts to

cause, or would be reasonably expected to cause sub-

stantial emotional distress.

The Defendant can be found guilty of this

crime only if the following facts are proved beyond a

reasonable doubt:

(1) the Defendant used an interactive computer

service, electronic communication service, or

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20-11037 Opinion of the Court 27

any other facility of interstate and foreign com-

merce to engage in a course of conduct;

(2) that the Defendant, while engaged in the

course of conduct, acted with the intent to har-

ass or intimidate Victims 1, 2, or 3;

(3) that the Defendant’s course of conduct caused,

attempted to cause, or would be reasonably ex-

pected to cause substantial emotional distress

to Victims 1, 2, or 3.

A “course of conduct” is a pattern of conduct

composed of two or more acts, evidencing a continu-

ity of purpose. You may consider each communica-

tion between the defendant and the victims as a sepa-

rate act.

Intent to “harass” means to act with the spe-

cific intent or purpose of causing an adverse emo-

tional reaction in a specific person, not merely speech

that happens to cause annoyance or insult.

Intent to “intimidate” means to act with the

specific intent or purpose of putting a person in fear

or apprehension of injury inflicted by a particular per-

son.

You may only find the Defendant guilty if his

course of conduct included the communication of a

true threat. A “true threat” is a serious threat—not

idle talk, a careless remark, or something said jok-

ingly—that is made under circumstances that would

place a reasonable person in fear of being kidnapped,

killed, or physically injured.

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28 Opinion of the Court 20-11037

“Substantial emotional distress” means signifi-

cant mental distress, mental suffering or anguish, as

well as physical pain. It therefore requires a serious

invasion of mental tranquility.

The Supreme Court analyzed the constitutionality of a jury

instruction that included a definition of “true threat” in the context

of 18 U.S.C. § 875(c) in Elonis v. United States, 575 U.S. 723 (2015).

Under § 875(c), it is a federal crime to transmit in interstate com-

merce “any communication containing any threat to kidnap any

person or . . . injure the person of another.” 18 U.S.C. § 875(c). In

Elonis, the Court reversed a conviction under § 875(c) when the

jury was instructed that:

A statement is a true threat when a defendant inten-

tionally makes a statement in a context or under such

circumstances wherein a reasonable person would

foresee that the statement would be interpreted by

those to whom the maker communicates the state-

ment as a serious expression of an intention to inflict

bodily injury or take the life of an individual.

Elonis, 575 U.S. at 731. Because neither the statutory text of § 875(c)

nor the jury instruction provided contained a scienter requirement,

the Court acknowledged that Elonis’s conviction “was premised

solely on how his posts would be understood by a reasonable per-

son.” Id. at 737.

“Such a ‘reasonable person’ standard,” the Court noted, “is

inconsistent with ‘the conventional requirement for criminal con-

duct—awareness of some wrongdoing.’” Id. at 737–38. The Court

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20-11037 Opinion of the Court 29

found that “Elonis’s conviction cannot stand” because “[t]he jury

was instructed that the Government need prove only that a reason-

able person would regard Elonis’s communications as threats, and

that was error.” Id. at 740 (“Federal criminal liability generally does

not turn solely on the results of an act without considering the de-

fendant’s mental state.”). The Court ultimately held that “the men-

tal state requirement in Section 875(c) is satisfied if the defendant

transmits a communication for the purpose of issuing a threat, or

with knowledge that the communication will be viewed as a

threat.” Id. Criminal negligence is not enough to convict under

§ 875(c). Id.

Because Elonis decided the requirements for liability under

§ 875(c) as a matter of statutory interpretation, it did not reach the

defendant’s First Amendment challenge to the jury instructions.

* * *

Fleury asserts on appeal that the cyberstalking—or “inter-

state stalking”—jury instruction presents an Elonis issue. He con-

tends that, after Elonis, we should hold that a defendant can be

constitutionally convicted of making a true threat only if the de-

fendant intended the recipient to feel threatened. The given jury

instruction, Fleury argues, does exactly what the Supreme Court

held was impermissible in Elonis—defines “true threat,” and hinges

criminal liability, on how a “reasonable person” would view the

messages rather than on the subjective intent of the sender of those

messages: the defendant.

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30 Opinion of the Court 20-11037

We find no error in the instruction provided to the jury. The

district court properly declined to instruct the jury that the govern-

ment had to prove Fleury’s subjective intent to communicate a

true threat to convict him of cyberstalking under 18 U.S.C.

§ 2261A(2)(B). Fleury relies in vain on Elonis, where the Supreme

Court read a mens rea requirement into a statute that lacked any

scienter element—the transmission of interstate threats under 18

U.S.C. § 875(c). No similar problem exists here because the cyber-

stalking statute required proof that the defendant acted with the

intent to harass or intimidate. See 18 U.S.C. § 2261A(2). 7

Because the plain language of § 2261A(2) establishes a mens

rea requirement sufficient “to separate wrongful conduct from

‘otherwise innocent conduct,’” Elonis, 575 U.S. at 736, it was not

reversible error for the district court to decline to impose an addi-

tional, subjective-intent requirement for the jury to convict Fleury

of cyberstalking. The jury was instructed on the mens rea ele-

ment—subjective intent to harass or intimidate—that Fleury must

have had while communicating true threats. 8 The jury found the

7 This was Fleury’s proposed jury instruction on mens rea for his 18 U.S.C.

§ 2261A(2)(B) charges:

“Intent to harass or intimidate” requires an intent to com-

municate a true threat. A “true threat” is a statement where

the speaker means to communicate a serious expression of an

intent to commit an act of unlawful violence to a particular

individual or group of individuals.

8 Notably, the court’s jury charge defining the subjective intent to harass or

intimidate required the specific intent or purpose of causing an adverse

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20-11037 Opinion of the Court 31

government proved the requisite mental state beyond a reasonable

doubt. Fleury cites no case law for his position that, even when a

statute contains an express mental state requirement, the district

court should read an additional mens rea requirement into the text,

nor does such a position make sense. See United States v. Bell, 303

F.3d 1187, 1191 (9th Cir. 2002) (declining to include a specific intent

instruction when the instruction already included “the intent to

harass,” and concluding that “[t]he instructions given were

properly tailored to the charged offense and the district court was

not obligated to do more”). Accordingly, we affirm the district

court as to this issue.

B. Theory of Defense Jury Instruction.

Fleury argues next that the district court erred in modifying

his proposed theory of defense jury instruction. We review a re-

fusal to give a requested theory of defense instruction for an abuse

of discretion. United States v. Rutgerson, 822 F.3d 1223, 1236 (11th

Cir. 2016). A refusal to give a requested instruction “will be re-

versed only if (1) the requested instruction was substantively cor-

rect, (2) the court’s charge to the jury did not cover the gist of the

instruction, and (3) the failure to give the instruction substantially

reaction in a specific person or of putting a person in fear or apprehension of

injury inflicted by a particular person. Thus, in addition to the requirement

that the content of the message had to be a true threat, the court charged that

Fleury must have had the specific intent to cause an adverse emotional reac-

tion or to cause fear.

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32 Opinion of the Court 20-11037

impaired the defendant’s ability to present an effective defense.” Id.

(internal quotation mark omitted).

As relevant to the resolution of this issue, Fleury proposed

the following instruction:

The First Amendment permits restrictions

upon the content of speech in only a few well-defined

and narrow classes of speech. The only exception rel-

evant here is for “true threats.” “True threats” are

statements where the speakers means to communi-

cate a serious expression of intent to commit an act of

unlawful violence to a particular individual or group

of individuals.

Mr. Fleury contends that his statements were

not “true threats” because they were not serious ex-

pressions of intent to commit an act of unlawful vio-

lence. If you have a reasonable doubt as to whether

the Instagram messages were “true threats,” you

must find Mr. Fleury not guilty.

Over Fleury’s objection the district court instead gave the

following instruction:

The First Amendment of the United States

Constitution permits restrictions upon the content of

speech in only a few well-defined and narrow classes

of speech. The only exception relevant here is for

“true threats.” A “true threat” is a serious threat—not

idle talk, a careless remark, or something said jok-

ingly—that is made under circumstances that would

place a reasonable person in fear of being kidnapped,

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20-11037 Opinion of the Court 33

killed, or physically injured. Mr. Fleury contends that

his statements were not “true threats.” If you have a

reasonable doubt as to whether the Instagram mes-

sages were “true threats,” you must find Mr. Fleury

not guilty as to all counts.

Fleury argues that the district court erroneously modified

his theory of defense instruction because (1) it was a correct state-

ment of law, as the proposed definition of “true threat” was taken

verbatim from Virgina v. Black, (2) it was not adequately covered

in the jury charge since the district court refused to instruct the jury

as to his subjective intent, and (3) the refusal to give the instruction

substantially impaired his ability to put forth a defense.

While Fleury is correct that his proposed definition is a cor-

rect statement of law, we afford district courts “wide discretion to

decide on the style and wording of [an] instruction” so long as it

“accurately reflect[s] the law.” United States v. Singer, 963 F.3d

1144, 1162 (11th Cir. 2020). Accordingly, “[w]e examine the jury

charge as a whole, determining whether the entire charge suffi-

ciently instructed the jury about the issues.” Id. 1162–63 (altera-

tions adopted and internal quotation mark omitted).

Here, the district court acted within its discretion in giving a

modified version of Fleury’s proposed theory of defense jury in-

struction. The district court was not required to adopt the precise

wording of Fleury’s proposed instruction. The district court cov-

ered the substance of Fleury’s proposed instruction in the theory of

defense instruction it gave, and in the jury charge as a whole.

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34 Opinion of the Court 20-11037

Fleury’s proposed definition of “true threats” is a correct definition,

but it is not the only correct definition. In fact, the Supreme Court

recognized as much in Virginia v. Black. The full sentence in Black,

from which Fleury omitted key words, reads: “‘True threats’ en-

compass those statements where the speaker means to communi-

cate a serious expression of an intent to commit an act of unlawful

violence to a particular individual or group of individuals.” 538 U.S.

at 359 (emphasis added). As such, the Court never stated that the

category of true threats is limited to such statements, only that the

category “encompass[es]” them. See id. And Fleury has not shown

that the definition given was an incorrect statement of the law. Fur-

ther, Fleury isolates parts of the charge and fails to take into ac-

count other parts of the charge or the charge as a whole, as dis-

cussed below.

Indeed, the substance of the proposed instruction was ade-

quately covered in the charge the district court gave to the jury.

Both substantive offense instructions required that the jury con-

sider Fleury’s subjective intent. The instruction for 18 U.S.C.

§ 875(c) required the jury to find that Fleury “sent the message with

the intent to communicate a true threat or with the knowledge that

it would be viewed as a true threat,” and the instruction for 18

U.S.C. § 2261A(2)(B) required the jury to find that Fleury “acted

with the intent to harass or intimidate.” The § 2261A(2)(B) instruc-

tion further defined “intent to harass” as “to act with the specific

intent or purpose of causing an adverse emotional reaction in a spe-

cific person, not merely speech that happens to cause annoyance

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20-11037 Opinion of the Court 35

or insult” and “intent to intimidate” as “to act with the specific in-

tent or purpose of putting a person in fear or apprehension of injury

inflicted by a particular person.” In Black, the Supreme Court

found that “[i]ntimidation in the constitutionally proscribable sense

of the word is a type of true threat, where a speaker directs a threat

to a person or group of persons with the intent of placing the victim

in fear of bodily harm or death.” 538 U.S. at 360. Thus, there was

no substantial impairment to Fleury’s ability to present his theory

of defense because the other instructions adequately covered it.

Because the theory of defense instruction the district court

gave, coupled with its charge as a whole, adequately “cover[ed] the

gist” of Fleury’s proposed instruction, and because the failure to

give the instruction did not substantially impair Fleury’s ability to

present an effective defense, the district court did not abuse its dis-

cretion and we affirm. See Rutgerson, 822 F.3d at 1236.

CONCLUSION

In conclusion, we hold that 18 U.S.C. § 2261A(2)(B) is both

facially constitutional and constitutional as applied to Fleury’s con-

duct. Having found no reversible error on any of the issues Fleury

presents on appeal, we affirm the district court’s rulings and

Fleury’s convictions.

AFFIRMED.