                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3778
                        ___________________________

                             United States of America,

                       lllllllllllllllllllll Plaintiff - Appellee,

                                           v.

                              James Daniel Hobgood,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                             Submitted: April 7, 2017
                              Filed: August 22, 2017
                                  ____________

Before COLLOTON and BENTON, Circuit Judges, and GERRARD,1 District Judge.
                         ____________




      1
      The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska, sitting by designation.
COLLOTON, Circuit Judge.

       James Daniel Hobgood conditionally pleaded guilty to interstate stalking, in
violation of 18 U.S.C. § 2261A(2). Hobgood appeals an order of the district court2
denying his motion to dismiss the indictment. He argues that the statute cannot be
applied to his conduct without violating the First Amendment. He also disputes the
amount of restitution ordered at sentencing. We reject the contentions and affirm the
judgment of the district court.

                                         I.

       Hobgood and the government stipulated to the following facts. In September
2014, KB met Hobgood and had a brief romantic relationship with him in Richmond,
Virginia. KB began rebuffing Hobgood’s advances, and in January 2015, she moved
to Arkansas. KB alleges that Hobgood, still living in Richmond, began contacting
her via e-mail, Facebook messages, and third-party text messages to demand that she
apologize to him in person for her treatment of him. KB did not do so.

       KB alleges that Hobgood then created publicly accessible social media
accounts in which he portrayed KB as an exotic dancer and prostitute. Hobgood also
sent letters to KB’s employer through the mail and over the Internet claiming that KB
was an exotic dancer and prostitute. Hobgood contacted KB and KB’s family by e-
mail, stating that unless she apologized to him, he would continue to make these
representations. According to KB, Hobgood’s actions caused her substantial
emotional distress and contributed to her need for short-term hospitalization.




      2
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.

                                         -2-
       Law enforcement investigators eventually contacted Hobgood about his
conduct. Hobgood admitted sending KB, her family, and her employer
communications by e-mail, telephone, and mail, in which he stated that KB was an
exotic dancer. Hobgood told investigators that he would not stop contacting KB until
he caused her to lose her job, or caused her to “repent” for the unspecified wrong that
she committed against him. Investigators also were able to corroborate that Hobgood
was responsible for the publicly accessible social media accounts that portrayed KB
as an exotic dancer and prostitute.

       In October 2015, a grand jury charged Hobgood with interstate stalking, in
violation of 18 U.S.C. § 2261A(2). Before trial, Hobgood moved to dismiss the
indictment. He argued that § 2261A(2), as applied to him, violated the First
Amendment. The district court denied the motion. The court concluded that because
Hobgood’s communications also violated the extortion statute, 18 U.S.C. § 875(d),
they constituted “speech . . . integral to criminal conduct” that could be restricted
without violating the First Amendment. See Giboney v. Empire Storage & Ice Co.,
336 U.S. 490, 498 (1949); United States v. Petrovic, 701 F.3d 849, 855-56 (8th Cir.
2012).

        Hobgood conditionally pleaded guilty to interstate stalking, reserving the right
to appeal the district court’s denial of the motion to dismiss. The court sentenced him
to a term of imprisonment of 12 months and 1 day. The court also ordered Hobgood
to pay KB $2,387.91 in restitution.

                                          II.

      Hobgood first challenges the denial of his motion to dismiss. He renews the
argument that his communications to KB and others were protected speech under the
First Amendment. He contends, therefore, that his conviction under 18 U.S.C.
§ 2261A(2) based on that speech infringes on his constitutional rights. Hobgood

                                          -3-
reasons that the conviction constitutes an impermissible content-based restriction of
speech.

       Generally speaking, the First Amendment forbids the government from
restricting speech because of its content. United States v. Stevens, 559 U.S. 460, 468
(2010). But content-based restrictions are permitted “in a few limited areas.” Id. at
468 (quotation omitted). One such area or category is “speech integral to criminal
conduct.” Id. (citing Giboney, 336 U.S. at 498). The district court concluded that
Hobgood’s communications to KB and to others were unprotected speech integral to
criminal conduct, because the communications were integral to the crime of extortion
under 18 U.S.C. § 875(d). Therefore, the court determined that the interstate stalking
statute was constitutional as applied to Hobgood on the stipulated facts of this case.

       Hobgood disputes the district court’s conclusion on two grounds. First, he
complains that he was not charged with or convicted of extortion, so it was improper
for the district court to deem his speech integral to that crime. But the dispute is
whether the interstate stalking statute may be applied constitutionally to Hobgood’s
conduct, so it is proper to consider the nature of that conduct. If we assume for the
sake of analysis that some applications of the stalking statute might impinge on
protected speech, then it is necessary to examine whether the particular speech at
issue was unprotected. Insofar as the interstate stalking statute overlaps with the
extortion statute, the court may consider that circumstance in determining whether the
speech is protected. Indeed, the Supreme Court’s leading decision on “speech
integral to criminal conduct” was not even a criminal case, but the Court allowed a
restriction on speech that enjoined the commission of a felony. Giboney, 336 U.S.
at 497-98, 501-02. By the same token, if Hobgood’s speech constituted both stalking
and extortion, then the court was permitted to consider whether extortionate speech
is protected.




                                         -4-
       Second, Hobgood contends that he did not commit extortion. A person violates
§ 875(d) if he transmits a communication containing any threat to injure the
reputation of a person with intent to extort a “thing of value” from that person.
Hobgood repeatedly contacted KB by e-mail, threatening that he would injure her
reputation by broadcasting that she was an exotic dancer and prostitute, unless KB
apologized to him. Hobgood asserts that an apology cannot be “thing of value” under
§ 875(d). But a “thing of value” includes intangible things—such as a “sexual
relationship,” for example—and “the focus of the . . . term is to be placed on the value
which the defendant subjectively attaches” to what he seeks. Petrovic, 701 F.3d at
858 (quotation omitted). The stipulated facts concerning Hobgood’s efforts to secure
a mea culpa from KB constituted sufficient evidence to support a finding that an
apology from KB was a thing of value to Hobgood.

       Hobgood also asserts that his conduct did not meet a “wrongfulness”
requirement of § 875(d), because he believed that he had a legitimate claim to an
apology from KB. Assuming that the statute includes this element, Hobgood’s threats
were “wrongful” in the sense that they had no causal nexus to a claim of right. See
United States v. Jackson, 180 F.3d 55, 70-71 (2d Cir. 1999). His threats to
disseminate information that KB was an exotic dancer and prostitute were not related
to why he thought she owed him an apology. Hobgood’s speech is a far cry from a
consumer complaint aimed at receiving a refund or a club manager’s public
identification of members who are delinquent on paying their dues. In those cases,
the speaker has a plausible claim of right to the thing of value, and the threat is
related to that right. Not so here.

       For these reasons, Hobgood’s violation of the interstate stalking statute also
constituted extortion. This court held in Petrovic that extortionate communications
that threatened another’s reputation, and communications carrying out the threat,
were not protected by the First Amendment. Petrovic, 701 F.3d at 855. Hobgood
concedes that extortionate speech is not constitutionally protected. See United States

                                          -5-
v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988); United States v. Quinn, 514 F.2d
1250, 1268 (5th Cir. 1975). The district court therefore properly denied Hobgood’s
motion to dismiss the indictment.

                                         III.

       Hobgood also challenges his sentence. He argues that the district court erred
in awarding restitution to KB for the cost of moving from one apartment to another
in the same apartment complex. To justify restitution, the government was required
to prove by a preponderance of the evidence that Hobgood’s offense proximately
caused the moving expenses. 18 U.S.C. §§ 2264(b)(3)(F), 3664(e). In her written
victim impact statement, KB stated that she was frightened because Hobgood sent
correspondence to her apartment, and she implied that she changed addresses to avoid
stalking by Hobgood. Based on this evidence, the district court did not clearly err in
concluding that Hobgood’s offense proximately caused KB’s change in residence and
the expense that it entailed.

                                  *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




                                         -6-
