           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                          2    United States v. Bowker                     No. 02-4086
        ELECTRONIC CITATION: 2004 FED App. 0178P (6th Cir.)
                    File Name: 04a0178p.06                                  UNITED STATES ATTORNEY, Cleveland, Ohio, for
                                                                            Appellee.
UNITED STATES COURT OF APPEALS                                                                  _________________
                   FOR THE SIXTH CIRCUIT                                                            OPINION
                     _________________                                                          _________________

 UNITED STATES OF AMERICA , X                                                 CLAY, Circuit Judge. Defendant-Appellant Erik S.
                                                                            Bowker appeals his convictions and sentence for one count of
             Plaintiff-Appellee, -                                          interstate stalking, in violation of 18 U.S.C. § 2261A(1); one
                                    -
                                    -  No. 02-4086                          count of cyberstalking, in violation of 18 U.S.C. § 2261A(2);
            v.                      -                                       one count of theft of mail, in violation of 18 U.S.C. § 1708;
                                     >                                      and one count of telephone harassment, in violation of 47
                                    ,                                       U.S.C. § 223(a)(1)(C). Bowker also appeals the district
 ERIK BOWKER,                       -
          Defendant-Appellant. -                                            court’s failure to rule on his motion to return seized property
                                                                            and the district court’s enhancement of his sentence based on
                                   N                                        extreme psychological harm to the victim. For the reasons
       Appeal from the United States District Court                         that follow, we AFFIRM Bowker’s convictions and sentence,
      for the Northern District of Ohio at Cleveland.                       but REMAND to the district court for a ruling on Bowker’s
     No. 01-00441—John M. Manos, District Judge.                            motion to return seized property.

                   Submitted: March 10, 2004                                                              I
                                                                                                        Facts
               Decided and Filed: June 11, 2004
                                                                            A. Procedural History
   Before: MARTIN and CLAY, Circuit Judges; MILLS,
                   District Judge.*                                           On August 28, 2001, United States Magistrate Judge
                                                                            George J. Limbert signed a criminal complaint charging Erik.
                       _________________                                    S. Bowker (“Bowker”) with one count of telephone
                                                                            harassment in violation of 47 U.S.C. § 223(a)(1)(C). Bowker
                             COUNSEL                                        was arrested on August 29, 2001. On September 7, 2001, the
                                                                            magistrate judge held a preliminary examination and
ON BRIEF: Jay Milano, MILANO & CO., Rocky River,                            detention hearing for Bowker. The magistrate judge
Ohio, for Appellant. Edward F. Feran, ASSISTANT                             determined that probable cause for Bowker’s arrest had been
                                                                            established, and he ordered Bowker detained.

    *
                                                                              On September 25, 2001, a federal grand jury returned a
     The Hon orable R ichard M ills, United States District Judge for the   four-count indictment against Bowker. Bowker was charged
Central District of Illinois, sitting by designation.

                                   1
No. 02-4086                     United States v. Bowker       3    4    United States v. Bowker                     No. 02-4086

with one count of interstate stalking, in violation of 18 U.S.C.   number of emails relating to Knight. The emails were sent
§ 2261A(1); one count of cyberstalking, in violation of            from several different email addresses and purported to be
18 U.S.C. § 2261A(2); one count of theft of mail, in violation     from an individual variously identified as “User x,” Eric
of 18 U.S.C. § 1708; and one count of telephone harassment,        Neubauer, Karen Walters, and “BB.” Several of the emails
in violation of 47 U.S.C. § 223(a)(1)(C).                          attached photographs with verbal captions. One caption
                                                                   referred to Knight being shot with a pellet gun, and another
  Bowker filed several pretrial motions which are the subject      email said, “Thanks for my daily Tina Knight fix. Thanks for
of this appeal – a pro se motion to represent himself, a motion    helping me get my nuts off,” and another said “More Tina
to dismiss Counts 1, 2, and 4 of the indictment, a motion to       Knight, that is what I want and need.” After receiving
sever Count 3 from the indictment, a motion to suppress            approximately nine of these types of email, WKBN’s news
evidence, and a pro se motion for return of seized property        director took them to the station’s general manager. They
and items, pursuant to Rule 41 of the Federal Rules of             then contacted Special Agent Deane Hassman of the FBI.
Criminal Procedure. The district court denied all of the           Soon thereafter, Knight was shown the emails, and she was
foregoing motions, except for the motion to return seized          stunned and frightened.
property, on which the district court never ruled. On March
26, 2002, after the denial of Bowker’s pro se motion to              FBI Agent Hassman began investigating the Tina Knight
represent himself, Bowker’s counsel moved to withdraw from         emails in July, 2000.       Hassman was concerned about
the case, and Bowker signed a separate statement asking the        Knight’s personal safety based on the content of the emails.
court to grant the motion and assign him new counsel. The          One of the emails that concerned Hassman stated, “I’m not
district court granted the motion and assigned Bowker new          the type of obsessed viewer that hides in the bushes near your
counsel.                                                           home to watch you come home from work, but we shall see.
                                                                   That may actually be fun.” Another disturbing email stated,
   Bowker’s jury trial commenced on June 3, 2002. On June          in part, “Dear Ms. Knight. Now I’m really pissed that you
6, 2002, the jury returned verdicts of guilty against Bowker       were looking even cuter than normally. You fucked up a little
on all counts. On September 5, 2002, the government moved          bit and here I am watching on this black and white thrift store
for an upward departure from the sentencing guidelines based       TV. Cute, cute, cute. I bet you were a Ho at Ohio University
on the victim’s extreme psychological harm. On September           in Athens, doing chicks and everything. Wow.”
10, 2002, the district court sentenced Bowker to 96 months’
incarceration, three years of supervised release, and a $400         On July 25, 2000, Hassman sent emails to the various email
special assessment. In assessing the term of incarceration, the    addresses on the correspondence pertaining to Knight.
district court granted the government’s motion for an upward       Hassman asked the sender of the emails to contact him so that
departure.                                                         he could determine the sender’s intent. Within 24 to 48
                                                                   hours, Hassman received a telephone call from an individual
B. Substantive Facts                                               who identified himself as Erik Bowker. Hassman wanted to
                                                                   set up a meeting with Bowker so Hassman could positively
  In March, 2000, Tina Knight began working as a part-time         identify the sender of the emails and also ask him to cease and
general assignment reporter at WKBN Television in                  desist from contacting Knight. They arranged to meet at the
Youngstown, Ohio. WKBN has a general email account for             public library in Youngstown, but Bowker never showed.
most employees, and in June, 2000, WKBN received a
No. 02-4086                    United States v. Bowker       5    6    United States v. Bowker                    No. 02-4086

   A few weeks later, Knight began receiving hand-written         served at Knight’s home address in West Virginia. Bowker’s
notes at WKBN, the majority of which were signed by “Doug         lawsuit accused Knight of stalking him. Agent Hassman
Wagner.” By September, the letters were arriving at the           attended a status conference for the lawsuit on March 16,
station almost every couple of days. One of the letters           2001, so that he could make face-to-face contact with
included the phrase, “All this week I will be playing the role    Bowker. After meeting Bowker at the hearing and
of Doug Wagner.” A letter dated August 9, 2000 was signed         confirming that Bowker had been sending the unsolicited
“Chad Felton”; stated, “I think you are a super babe”; and        correspondence to Knight, Hassman told Bowker that the
included a necklace. The return addresses on the letters were     correspondence was unwelcome and might be a violation of
one of two P.O. Boxes registered to Erik Bowker or his            federal law. Hassman advised Bowker that if the conduct
mother.                                                           continued, it might result in his arrest. Bowker responded
                                                                  that he had a First Amendment right to engage in that type of
  Knight left her employment at WKBN in November, 2000            conduct. Nevertheless, during the meeting, Bowker wrote
to take a position at WOWK CBS13 in Charleston, West              and signed a note stating, “I understand that Tina M. Knight
Virginia. WKBN did not inform the general public of               wishes all further contact with her or any family member to
Knight’s new location.                                            stop and I agree to do so, pursuant to conversation with Deane
                                                                  Hassman, special agent, Federal Bureau of Investigation ….”
   In late December, 2000, Knight’s parents, who reside in        Bowker also agreed to voluntarily dismiss his lawsuit against
Medina, Ohio, received a card and a handwritten note at their     Knight.
home. The card purported to be from “Kathryn Harris.” The
letter read, “Dear Tina Knight: I am Kathryn Harris today. I        Despite Bowker’s March, 16, 2001 agreement to cease and
didn’t want your parents asking you a lot of questions, nor did   desist from any further contact with Knight, on that very same
I want to attract a lot of attention to you. My letters to you    day, Bowker mailed a letter to Knight. Bowker also
are all online at yahoo.com in a standard mail account. It is     continued to attempt telephone contact with Knight. Between
all explained there so please check in and read what I have       January 26 and August 29, 2001, Bowker made 146 telephone
written.… The E-mail address is tinahatesme@yahoo.com.”           calls from his cell phone to WOWK CBS 13, where Knight
Agent Hassman visited the email address to check if any           worked. Bowker also made 16 calls to Knight’s personal
letters had been sent to the email address mentioned in the       residential telephone in West Virginia between August 11 and
letter. Hassman discovered that an email had been sent            28, 2001. Knight’s number was unlisted and unpublished.
December 25, 2000. At the end of the email, the name “Doug        According to telephone records, each of the 16 calls placed to
Wagner” was typed. The email read, in part, “I told you I         Knight’s home were preceded by *67, which enables a caller
would not contact you by mail anymore but I am sorry, I am        to block identification of his telephone number on the
in agony. I’m thinking about you all the time. You really are     recipient’s caller identification display. Bowker also called
my dream girl.… I am blinded with affection for you. I did        Knight’s co-worker and a neighbor.
not ask for this. Nope, it’s all your fault.… Please don’t cat
dance on my emotions by failing to respond to me at all.”            As the telephone calls to Knight’s television station
                                                                  persisted through the summer of 2001, Agent Hassman
  In February, 2001, Bowker filed a lawsuit against Knight        believed it was important to capture Bowker’s voice on tape,
in the Mahoning County Common Pleas Court. Knight’s               so Hassman provided Knight with a recording device at the
social security number was stated in the complaint, which was     television station. On June 12, 2001, Knight recorded a 45
No. 02-4086                    United States v. Bowker       7    8      United States v. Bowker                     No. 02-4086

minute telephone call from Bowker who, at one point,                    I don’t even know why I’m nice to you ever at all, you
identified himself as “Mike.” During the conversation,                and your fucked-up friend should not even be working in
Bowker referred to Knight’s neighbors, her family members             the media. You know you gotta mother-fucking realize
and her social security number. He also indicated he might be         there’s like 50 percent men in this country and you better
watching Knight with his binoculars. Knight provided the              mother-fucking learn that you’re going to have to deal
tape to the FBI and never spoke to Bowker again on the                with us sometime.…
telephone.                                                              Well, it looks like nobody is going to answer me if
                                                                      Tina Knight is okay, so I’m gonna take the 1:00 a.m. bus
   On July 16, 2001, Knight received a letter at the television       out of Columbus, Ohio and come down there and see for
station. In the letter, Bowker referred to Knight’s parents and       myself. Okay, I’ll be there about 6:00 a.m. Bye.
stated several times, “You do not hang up on me.” The letter
also crassly referred to Knight’s car, threatened to file a       Knight testified that these messages made her afraid to leave
mechanic’s lien on her car and her co-worker’s car, accused       the house everyday, and she feared that Bowker might try to
Knight and her colleague of being “fuck-ups, assholes and         rape her. She gave the answering machine recordings to the
seriously emotional and mentally unbalanced,” and contained       FBI.
numerous sexual references. The letter stated that Bowker
would be contacting Knight’s neighbors, pointed out that            Bowker was arrested on August 29, 2001 at a self-storage
Knight had not registered her car in West Virginia, and           facility in Youngstown where he kept some of his
concluded with the words, “So bye-by, fuck you, you are an        possessions. Among other things recovered from the storage
asshole and a sociopath and an embarrassment to mothers           facility, Bowker’s car and other locations, were a police
everywhere sir.… Adios, Eric.… Smooch, Smooch.”                   scanner set to the frequency of the Youngstown Police
                                                                  Department, a paper with scanner frequencies from the
   On August 10, 2001, Knight received a certified letter         Dunbar, West Virginia Police Department, letters bearing the
mailed to her residence in West Virginia. Accompanying the        name “Chad Felton,” a credit report for Tina Knight, Knight’s
letter were numerous photographs of Bowker at various             birth certificate, a map of Dunbar, West Virginia, Greyhound
locations in West Virginia, Knight’s home state. The letter       bus schedules with West Virginia routes, and photos taken by
stated, in part, “Send me an E-Mail address. It keeps me long     Bowker during a West Virignia trip on July 11, 2001, which
distance, you know what I mean.” Knight forwarded the             included pictures of Knight’s place of work, her car and CBS
letter and the photographs to the FBI. Bowker’s credit card       news trucks. The FBI also discovered that Bowker had in his
statement later revealed purchases from a Kmart and a Kroger      possession a Discover Card credit card bill addressed to Tina
near Knight’s place of employment and residence in West           Knight in West Virginia. Knight never received that
Virginia between June 12 and July 30, 2001.                       statement in the mail.
   In August 2001, Bowker left a series of messages on                                        II
Knight’s answering machine asking that Knight or Knight’s                     Probable Cause for Bowker’s Arrest
friend call him back, which did not occur. Among other
things, Bowker stated:                                              Bowker argues that the magistrate judge erroneously found
                                                                  that there was probable cause to issue a warrant for his arrest
                                                                  premised on an alleged violation of 47 U.S.C.
No. 02-4086                    United States v. Bowker         9   10   United States v. Bowker                      No. 02-4086

§ 2223(a)(1)(C), which prohibits telephone harassment. He          Knight in which Bowker did not identify himself, including
further argues that trial court committed the same error when      a conversation with Knight on June 12, 2001, and messages
it denied Bowker’s motion to suppress evidence obtained            left on Knight’s answering machine on August 17-19 and 25-
through the arrest warrant. We reject Bowker’s arguments for       26, 2001. Agent Hassman’s affidavit also provided extensive
the reasons stated below.                                          background details on Bowker’s campaign of harassment
                                                                   against Knight via emails, letters and telephone calls.
A. Standard of Review
                                                                     Bowker concedes that the magistrate judge could have
  The Court considers the evidence that the warrant-issuing        found probable cause on the elements of using the telephone
magistrate judge had before him only to ensure that the            with the intent to annoy, abuse, threaten or harass. He argues,
magistrate had a substantial basis for concluding that probable    however, that the magistrate had no basis to find the element
cause existed. See United States v. Jones, 159 F.3d 969, 973       of failing to disclose identity during the telephone calls
(6th Cir.1998) (citing Illinois v. Gates, 462 U.S. 213, 238-39     because Knight, the recipient of those calls, allegedly
(1983)). The Court defers to findings of probable cause made       recognized his voice, making it unnecessary for him to state
by a magistrate, and will not set aside such findings unless       his name. See J.A. 581 (testimony of Agent Hassman:
they were arbitrarily made. United States v. Brown, 147 F.3d       “There came a point in time where Tina [Knight] began to
477, 484 (6th Cir.1998). When reviewing a district court's         recognize a certain voice on the phone, which she believed to
denial of a motion to suppress, the Court reviews the district     be Eric [sic] Bowker.”). Bowker points to the fact that during
court's findings of fact for clear error and its conclusions of    the June 12, 2001 telephone conversation with Knight, she
law de novo. Id.                                                   referred to Bowker as “Eric” [sic].
B. Analysis                                                          Bowker’s argument is flawed in several respects. His
                                                                   argument does not address the numerous occasions when
   At the preliminary hearing, the government brought a one-       Bowker called Knight and no conversation ensued and no
count criminal complaint against Bowker for the crime of           messages were left or her answering machine. The evidence
telephone harassment, in violation of 47 U.S.C.                    before the magistrate showed that Bowker used a caller
§ 223(a)(1)(C).       That section provides for a fine,            identification blocking feature (*67) to place these calls,
imprisonment, or both for anyone, who in interstate or foreign     thereby concealing his identity. Since the telephone
communications:                                                    harassment law prohibits calls made with the intent to harass
                                                                   or annoy “whether or not conversation or communication
  makes a telephone call or utilizes a telecommunications          ensues,” there was probable cause to find that Bowker had
  device, whether or not conversation or communication             concealed his identity in those instances. Knight’s alleged
  ensues, without disclosing his identity and with intent to       ability to identify Bowker’s voice was irrelevant.
  annoy, abuse, threaten, or harass any person at the called
  number or who receives the communications.                          Bowker responds that his use of the *67 feature should be
                                                                   legally irrelevant, since it penalizes him for placing telephone
47 U.S.C.A. § 223. Incorporated into the criminal complaint        calls to numbers with a caller identification service. He
was the affidavit of FBI Agent Deane Hassman, who alleged          contends that criminal liability should not hinge on what
that Bowker had made numerous telephone calls to Tina              telephone features a person pays for each month to the local
No. 02-4086                     United States v. Bowker       11    12   United States v. Bowker                     No. 02-4086

phone company. Bowker, however, is not being penalized              establish (1) the allegation of perjury or reckless disregard
based on the telephone features to which his victim                 “by the defendant by a preponderance of the evidence” and
subscribed, but for using the *67 feature in conjunction with       (2) “with the affidavit’s false material set to one side, the
his intent to annoy or harass Knight. Had he lacked that            affidavit’s remaining content is insufficient to establish
intent, no criminal liability would have attached.                  probable cause, [such that] the search warrant must be voided
                                                                    and the fruits of the search’ suppressed.” United States v.
  Even assuming that Knight was able to identify Bowker’s           Graham, 275 F.3d 490, 505 (6th Cir .2001) (quoting Franks
voice, the magistrate judge properly found probable cause to        v. Delaware, 438 U.S. 156, 155-56 (1978)). Bowker has not
believe that Bowker had not disclosed his identity during the       established that Agent Hassman perjured himself in his
June 12, 2001 conversation in which he mis-identified               affidavit in support of the criminal complaint or at the
himself as “Mike” and in August, 2001, when he left                 suppression hearing. At most, he quibbles with Hassman’s
messages on Knight’s answering machine without providing            characterization of Bowker’s letters and emails as sexual and
any name at all. On its face, the telephone harassment statute      threatening. Hassman’s characterization, however, largely is
makes it illegal to place a call, with the intent to annoy, abuse   a matter of opinion, and the content of Bowker’s
threaten or harass, whenever the caller fails to identify           communications speak for themselves. Thus, there is no
himself. Since Bowker concedes that the magistrate judge            indication that the magistrate judge was misled in reaching its
could have found probable cause that he had the requisite           probable cause finding. Accordingly, the district court did
intent, it was Bowker’s provision of a false name and/or his        not err in denying Bowker’s motion to suppress evidence.
failure to identify himself – not an erroneous judicial
determination about the victim’s recognition of his voice –                                  III
that led to the issuance of his arrest warrant.                      Motion to Dismiss Counts 1, 2 and 4 of the Indictment
  Bowker similarly argues that the district court, which               Bowker argues that the district court erred in failing to
supervised the trial proceedings, erred in denying his motion       dismiss Counts 1 (interstate stalking), 2 (cyberstalking) and
to suppress evidence derived from his arrest for telephone          4 (telephone harassment) of the indictment on the ground that
harassment. In addition to his argument that the evidence did       the indictment inadequately alleged the elements of the
not support a finding of probable cause to believe that             offenses charged, and on the ground that the statutes that the
Bowker had failed to disclose his identity (discussed above),       indictment alleged he violated are unconstitutionally vague
Bowker argues that the district court erred in ruling that FBI      and overbroad. We review the denial of a motion to dismiss
agent Hassman did not intentionally mislead or omit crucial         de novo. United States v. Maney, 226 F.3d 660, 663 (6th Cir.
material facts in his affidavit supporting probable cause.          2000). For the reasons that follow, we affirm the decision of
Bowker argues that he showed, by a preponderance of the             the district court.
evidence, materially false representations and omissions by
Agent Hassman, and that absent those misrepresentations,            A. Sufficiency of the Indictment
probable cause would not have been found.
                                                                      Under the Notice Clause of the Sixth Amendment, a
  To prevail on a motion to suppress based on allegations of        criminal defendant has the right “to be informed of the nature
intentional misrepresentation by a law enforcement officer in       and cause of the accusation” against him. U.S. CONST .
the course of obtaining an arrest warrant, Bowker must              amend. VI. In addition, the Indictment Clause of the Fifth
No. 02-4086                      United States v. Bowker        13    14       United States v. Bowker                            No. 02-4086

Amendment requires that a defendant be charged with only               Count1 (interstate stalking)1, Count 2 (cyberstalking)2 and
those charges brought before the grand jury. U.S. CONST .             Count 4 (telephone harassment)3 track the language of the
amend. V. An indictment satisfies these constitutional
requirements “if it, first, contains the elements of the offense
charged and fairly informs a defendant of the charge against               1
                                                                            Count 1 of the indictment charges Bowker with interstate stalking,
which he must defend, and, second, enables him to plead an            in violation of 18 U.S.C. § 226 1A(1). That section penalizes whoever:
acquittal or conviction in bar of future prosecutions for the
same offense.” Maney, 226 F.3d at 663 (citing Hamling v.                   travels in interstate or foreign commerce or within the special
                                                                           maritime and territorial jurisdiction of the United States, or
United States, 418 U.S. 87, 117 (1974); Russell v. United                  enters or leav es Indian country, with the intent to kill, injure,
States, 369 U.S. 749, 763-64 (1962); United States v.                      harass, or intimidate another person, and in the course of, or as
Sturman, 951 F.2d 1466, 1478-79 (6th Cir.1991)). “To be                    a result of, such travel places that person in reasonable fear of
legally sufficient, the indictment must assert facts which in              the death of, or serious bodily injury to, that person, a member
law constitute an offense; and which, if proved, would                     of the imme diate family (as defined in section 115) of that
                                                                           person, or the spouse or intimate partner of that person.
establish prima facie the defendant’s commission of that
crime.” Id. (quoting United States v. Superior Growers                     2
                                                                            Count 2 of the indictment charges Bo wker w ith cyberstalking, in
Supply, Inc., 982 F.2d 173, 177 (6th Cir.1992)).                      violation of 18 U.S.C. § 22 61A(2). T hat section penalizes whoever:

   “An indictment is usually sufficient if it states the offense           with the intent--
using the words of the statute itself, as long as the statute fully             (A) to kill or injure a person in another State or tribal
and unambiguously states all the elements of the offense.”                      jurisdiction or within the special maritime and
United States v. Landham, 251 F.3d 1072, 1079 (6th Cir.                         territorial jurisdiction of the United States; or
                                                                                (B) to plac e a pe rson in another State or tribal
2001) (citing Hamling, 418 U.S. at 117; United States v.                        jurisdiction, or within the special maritime and
Monus, 128 F.3d 376, 388 (1997)). The Supreme Court has                         territorial jurisdiction of the United States, in
cautioned, however, that while “the language of the statute                     reaso nable fear of the death of, or serious bodily injury
may be used in the general description of the offense, …it                      to--
must be accompanied with such a statement of the facts and                           (i) that person;
                                                                                     (ii) a member of the immediate family (as
circumstances as will inform the accused of the specific                             defined in section 115) of that person; or
offense, coming under the general description, with which he                         (iii) a spouse or intimate partner of that
is charged.” Hamling, 418 U.S. at 117-18 (internal quotation                         person,
marks and citation omitted). “‘Courts utilize a common sense               uses the mail or any facility of interstate or foreign comm erce to
construction in determining whether an indictment                          engage in a course of cond uct that places that person in
                                                                           reasonable fear of the death of, or serious bodily injury to, any
sufficiently informs a defendant of an offense.’” Maney, 226               of the persons described in clauses (i) through (iii).
F.3d at 663 (quoting Allen v. United States, 867 F.2d 969, 971
(6th Cir.1989)).                                                           3
                                                                           Count 4 of the indictment charges Bowker with telephone
                                                                      harassment, in violation of 47 U.S.C. § 223 (a)(1)(C). That section
                                                                      penalizes whoever:

                                                                           (1) in interstate or foreign communications–

                                                                                (C) makes a telephone call or utilizes a telecommunications
No. 02-4086                        United States v. Bowker          15     16   United States v. Bowker                      No. 02-4086

relevant statutes. Count 1 alleges that, between July 10 and               threatening statement must be viewed from the objective
July 30, 2001, Bowker knowingly and intentionally traveled                 perspective of the recipient, which frequently involves the
across the Ohio state line with the intent to injure, harass, and          context of the parties’ relationship…, it is incumbent on the
intimidate Tina Knight, and as a result of such travel placed              Government to make that context clear in such an indictment,
Knight in reasonable fear of death or serious bodily injury, in            unless the alleged threat is direct”).
violation of 18 U.S.C. § 2261A(1). Count 2 alleges that
between December 25, 2000 and August 18, 2001 Bowker,                         Landham is distinguishable, however. There, the Court
located in Ohio, knowingly and repeatedly used the internet                held that the indictment failed to sufficiently allege a
to engage in a course of conduct that intentionally placed                 kidnaping threat because the indictment was missing several
Knight, then located in West Virginia, in reasonable fear of               elements of the offense, specifically, a communication
death or serious bodily injury, in violation of 18 U.S.C.                  containing a threat and a threat to kidnap. Id. at 1082. The
§ 2261A(2). Count 4 alleges that between June 12, 2001, and                indictment failed to acknowledge that the defendant had been
August 27, 2001, Bowker, located in Ohio, knowingly made                   in a custody battle with his ex-wife over their daughter and,
telephone calls, whether or not conversation or                            therefore, the defendant’s obscure statements like “I’m going
communication ensued, without disclosing his identity and                  to get her” were either unreasonably perceived to be
with the intent to annoy, abuse, threaten and harass Knight, in            kidnaping threats and, even if the alleged threat had been
violation of 47 U.S.C. § 223(a)(1)(C). Because the                         carried out, it would not have constituted a crime as a matter
indictment stated all of the statutory elements of the offenses,           of substantive law. Id. at 1081-83. The Court further held
and because the relevant statutes state the elements                       that the indictment failed to sufficiently allege a threat of
unambiguously, the district court properly denied Bowker’s                 bodily harm, because the statement charged in the indictment
motion to dismiss Counts 1, 2 and 4 of the indictment. The                 referred to past conduct of the defendant, not present or future
indictment’s reference to the specific dates and locations of              conduct, and, in any event, did not mention a threat to inflict
the offenses, as well as the means used to carry them out                  bodily harm. Id. at 1082-83. Bowker’s indictment, by
(travel, internet, telephone), provided Bowker fair notice of              contrast, did not contain similar deficiencies. All of the
the conduct with which he was being charged.                               statutory elements of the prohibited conduct were properly
                                                                           alleged, including the intent to cause a reasonable fear of
  Relying on the Landham case, supra, Bowker argues that                   death or serious bodily harm. And unlike the parties involved
the indictment was defective because it does not charge him                in Landham, whose custody battle was highly relevant to the
with making direct threats against Knight and therefore                    charged conduct, Bowker’s relationship with Knight had no
should have contained a statement of facts and circumstances               relevant bearing on the alleged illegality of his conduct. We
surrounding the alleged indirect threats he made against her,              therefore reject Bowker’s challenge to the sufficiency of the
such as an explanation of the parties’ relationship. See                   indictment.
Landham, 251 F.3d at 1080 (holding “because the alleged
                                                                           B. Overbreadth Challenge
                                                                              According to the Supreme Court, imprecise laws can be
        device, whether or not conversation or com munication ensues,      attacked on their face under two different doctrines –
        without disclosing his identity and with intent to annoy, abuse,   overbreadth and vagueness. City of Chicago v. Morales, 527
        threaten, or harass any person at the called number or who         U.S. 41, 529 (1999). The “overbreadth doctrine is a limited
        receives the communications.
No. 02-4086                      United States v. Bowker       17    18   United States v. Bowker                     No. 02-4086

exception to the traditional standing rule that a person to          and to be “annoying” to passersby. Id. at 611. The Court
whom a statute may constitutionally be applied may not               struck down the ordinance, reasoning that it was
challenge that statute on the basis that it may conceivably be       “unconstitutionally broad because it authorizes the
applied in an unconstitutional manner to others not before the       punishment of constitutionally protected conduct.” Id. at 614.
court.” Staley v. Jones, 239 F.3d 769, 784 (6th Cir. 2001)
(citations omitted).      However, “overbreadth scrutiny                Coates is distinguishable. First, the focus of the telephone
diminishes as the behavior regulated by the statute moves            harassment statute is not simply annoying telephonic
from pure speech toward harmful, unprotected conduct.” Id.           communications. It also prohibits abusive, threatening or
at 785. “‘[P]articularly where conduct and not merely speech         harassing communications. Thus, the thrust of the statute is
is involved, we believe that the overbreadth of a statute must       to prohibit communications intended to instill fear in the
not only be real, but substantial as well, judged in relation to     victim, not to provoke a discussion about political issues of
the statute's plainly legitimate sweep.’” Id. (quoting               the day. See United States v. Lampley, 573 F.2d 783, 787 (3d
Broadrick v. Oklahoma, 413 U.S. 601, 615-161 (1973)).                Cir. 1978) (holding that in enacting the telephone harassment
                                                                     statute, “Congress had a compelling interest in the protection
   Bowker has provided absolutely no argument as to how              of innocent individuals from fear, abuse or annoyance at the
18 U.S.C. § 2261A, which prohibits interstate stalking and           hands of persons who employ the telephone, not to
cyberstalking, is facially overbroad, merely asserting that the      communicate, but for other unjustifiable motives”) (citations
statute “reaches large amounts of protected speech and               omitted). Second, the telephone harassment statute operates
conduct” and “potentially targets political or religious             in a distinctly different realm of communication than the
speech.” We fail to see how a law that prohibits interstate          ordinance in Coates, which governed the manner in which
travel with the intent to kill, injure, harass or intimidate has a   individuals could assemble and communicate in the open on
substantial sweep of constitutionally protected conduct.             public property. Persons who find sidewalk speech annoying
18 U.S.C. § 2261A(1). The same is true with respect to the           usually are not being singled out by the speaker and, in any
prohibition of intentionally using the internet in a course of       event, have the option of ignoring that speech by walking
conduct that places a person in reasonable fear of death or          away or taking a different route. Because the sidewalk
seriously bodily injury. 18 U.S.C. § 2261A(2). It is difficult       speaker is operating in the open, annoyed listeners have little
to imagine what constitutionally-protected political or              reason to fear for their safety and can readily identify and
religious speech would fall under these statutory prohibitions.      confront the speaker if they so choose. Not so with
Most, if not all, of these laws’ legal applications are to           individuals receiving unwelcome, anonymous telephone calls.
conduct that is not protected by the First Amendment. Thus,          Call recipients have to deal with much more inconvenience to
Bowker has failed to demonstrate how 18 U.S.C. § 2261A is            avoid the speech (e.g., changing telephone numbers or using
substantially overbroad.                                             a call-screening service); these calls usually are targeted
                                                                     toward a particular victim and are received outside of a public
  We also reject Bowker’s argument as to the purported               forum (e.g., the home or the workplace); and, because the
overbreadth of the telephone harassment statute, 47 U.S.C.           caller does not identify himself, the speech is more likely to
§ 223(a)(1)(C). Bowker relies on the Supreme Court’s                 instill fear in the listener and, at a minimum, makes it more
decision in Coates v. City of Cincinnati, 402 U.S. 611 (1971),       difficult for the listener to confront the caller. Accordingly,
which involved a city ordinance that made it a criminal              the domain of prohibited speech is far more circumscribed,
offense for three or more persons to assemble on a sidewalk          and the government’s interest in protecting recipients of the
No. 02-4086                     United States v. Bowker      19    20    United States v. Bowker                       No. 02-4086

speech is far more compelling, under the telephone                 public that are sufficient to guard against the arbitrary
harassment statute compared to the city ordinance at issue in      deprivation of liberty interests.” Morales, 527 U.S. at 52
Coates.                                                            (citing Kolender v. Lawson, 461 U.S. 352, 358 (1983)).
                                                                   Vagueness may invalidate a criminal statute if it either
   We acknowledge that the telephone harassment statute, if        (1) fails “to provide the kind of notice that will enable
interpreted to its semantic limits, may have unconstitutional      ordinary people to understand what conduct it prohibits” or
applications. For example, if Bowker had been charged with         (2) authorizes or encourages “arbitrary and discriminatory
placing anonymous telephone calls to a public official with        enforcement.” Id. at 56 (citing Kolender, 461 U.S. at 357).
the intent to annoy him or her about a political issue, the        “It is established that a law fails to meet the requirements of
telephone harassment statute might have been                       the Due Process Clause if it is so vague and standardless that
unconstitutional as applied to him. See United States v. Popa,     it leaves the public uncertain as to the conduct it prohibits....”
187 F.3d 672, 677-78 (D.C. Cir. 1999) (holding that                Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966).
telephone harassment statute was unconstitutional as applied
to defendant who had placed seven calls to a U.S. Attorney to         The stalking and telephone harassment statutes charged in
complain about his treatment by the police and the                 Bowker’s indictment provide sufficient notice of their
prosecutor’s conduct of a case against him). But Bowker was        respective prohibitions because citizens need not guess what
not so charged. His calls were predominately, if not               terms such as “harass” and “intimidate” mean. This Court’s
exclusively, for the purpose of invading his victim’s privacy      decision in Staley v. Jones, supra, is instructive. That case
and communicating express and implied threats of bodily            involved a habeas corpus review of a conviction for stalking
harm. This type of speech is not constitutionally protected.       under a Michigan law that defines stalking as “a willful
Landham, 251 F.3d at 1080. But the fact that application of        course of conduct involving repeated or continuing
the telephone harassment statute may be unconstitutional in        harassment of another individual that would cause a
certain instances does not warrant facial invalidation. See        reasonable person to feel terrorized, frightened, intimidated,
Parker v. Levy, 417 U.S. 733, 760 (1974) (facial invalidation      threatened, harassed, or molested and that actually causes the
not appropriate when the remainder of the statute “covers a        victim to feel terrorized, frightened, intimidated, threatened,
whole range of easily identifiable and constitutionally            harassed, or molested.”          Mich. Comp. Laws Ann.
proscribable conduct”); Staley, 239 F.3d at 786-87 (holding        § 750.411i(e). Michigan law defines “harassment” as
that “several examples of speech or expressive conduct that        “conduct directed toward a victim that includes, but is not
could conceivably be restricted under the statute” did not         limited to, repeated or continuing unconsented contact that
render anti-stalking statute unconstitutional). Whatever           would cause a reasonable individual to suffer emotional
overbreadth exists in the statute “can be cured on a case-by-      distress and that actually causes the victim to suffer emotional
case basis.” Staley, 239 F.3d at 787 (citing Broadrick, 413        distress.” Id. § 750.411i(d). Expressly excluded from the
U.S. at 615-16). No cure is necessary in this case.                definition of “harassment” is “constitutionally protected
                                                                   activity or conduct that serves a legitimate purpose.” Id. This
C. Vagueness Challenge                                             Court rejected the petitioner’s vagueness challenge to the
                                                                   Michigan statute, reasoning as follows:
  “[E]ven if an enactment does not reach a substantial amount
of constitutionally protected conduct, it may be impermissibly       A person of reasonable intelligence would not need to
vague because it fails to establish standards for the police and     guess at the meaning of the stalking statutes, nor would
No. 02-4086                     United States v. Bowker       21    22    United States v. Bowker                      No. 02-4086

  his interpretation of the statutory language differ with             We also reject Bowker’s argument that the stalking and
  regard to the statutes’ application, in part because the          telephone harassment statutes’ failure to define words like
  definitions of crucial words and phrases that are provided        “harass” and “intimidate” render them void for vagueness.
  in the statutes are clear and would be understandable to          As noted by the Court in Staley, the meaning of these words
  a reasonable person reading the statute.… Also, the               “can be ascertained fairly by reference to judicial decisions,
  meaning of the words used to describe the conduct can be          common law, dictionaries, and the words themselves because
  ascertained fairly by reference to judicial decisions,            they possess a common and generally accepted meaning.”
  common law, dictionaries, and the words themselves                Staley, 239 F.3d at 791-92. Indeed, the Michigan anti-
  because they possess a common and generally accepted              stalking statute, which the Staley Court upheld, does not
  meaning. We therefore conclude that the statutes are not          appear to define the word “intimidate,” a word that Bowker
  void for vagueness on the basis of inadequate notice.             claims is too vague in the federal law. For this reason as well,
                                                                    we reject Bowker’s vagueness challenge to the federal law.
Staley, 239 F.3d at 791 -92.
                                                                       Bowker’s reliance on Church of the Am. Knights of the Ku
   The Michigan prohibition against willful harassment that         Klux Klan v. City of Erie, 99 F. Supp. 2d 583 (W.D. Pa.
causes a reasonable person to feel fear is almost                   2000), also is misplaced. There, the court held that a city
indistinguishable from the federal anti-stalking statute,           ordinance that restricted the wearing of a mask “with the
18 U.S.C. § 2261A(1), which prohibits intentional harassment        intent to intimidate, threaten, abuse or harass any other
that causes a reasonable fear of death or serious bodily injury.    person” was unconstitutionally vague. Id. at 591 (quotation
In fact, the federal statute arguably is less vague because it      marks and statutory citation omitted). The court found that
circumscribes the type of fear a victim must feel, namely a         each of these terms, given their ordinary meaning, could
fear of death or serious bodily injury, whereas the Michigan        encompass forms of expression that are constitutionally
law does not.                                                       protected. Id. Not only might it prohibit certain types of
                                                                    advocacy, such as advocating the return to segregation, but it
   Bowker attempts to distinguish the Michigan statute by           also might prohibit the simple act of wearing a mask. Id. The
pointing to the fact that Michigan law defines the word             court also found that the ordinance did not provide the public
“harassment,” whereas federal law does not. The harassment          with adequate notice of what type of conduct was prohibited.
definition under Michigan law, however, contains nothing not        The ordinance, however, is not comparable to the federal anti-
already reflected in the federal statute’s general prohibition.     stalking statute. The federal anti-stalking statute, which
The Michigan definition of harassment requires conduct              prohibits harassment or intimidation that causes a reasonable
directed toward a victim, but this requirement is implicitly        fear of death or serious bodily harm, imposes a far more
reflected in the federal statute’s requirement that a perpetrator   concrete harm requirement than the ordinance at issue in Ku
intend to harass a victim. Michigan’s harassment definition         Klux Klan, which did not require that the harassment or
also requires that the conduct cause a reasonable individual to     intimidation result in any particular type of reaction in the
suffer emotional distress, but the federal statute requires         audience. See id. at 592 (holding that ordinance was
conduct that causes a fear of death or serious bodily injury.       unconstitutionally vague: “To some extent, the speaker's
There simply is no principled basis to distinguish the              liability is potentially defined by the reaction or sensibilities
language of the federal statute from the Michigan statute           of the listener; what is ‘intimidating or threatening’ to one
which this Court upheld in Staley.                                  person may not be to another. And, although the provision
No. 02-4086                    United States v. Bowker      23    24   United States v. Bowker                     No. 02-4086

has a scienter requirement, it is reasonable to expect that the     normative standard, but rather in the sense that no
requisite intent could be inferred from circumstantial factors,     standard of conduct is specified at all.
which may include the effect that particular speech has on the
speaker’s audience.”).                                            Id. at 614. The Court further held that the ordinance violated
                                                                  the First Amendment right to freedom of assembly because
   We further reject Bowker’s argument that the federal           the “First and Fourteenth Amendments do not permit a State
stalking and telephone harassment statutes authorize or           to make criminal the exercise of the right of assembly simply
encourage arbitrary or discriminatory enforcement. Although       because its exercise may be ‘annoying’ to some people.” Id.
the statutes provide no guidelines on terms like harass and       at 615.
intimidate, the meanings of these terms “can be ascertained
fairly by reference to judicial decisions, common law,               We agree that the word “annoy,” standing alone and devoid
dictionaries, and the words themselves because they possess       of context and definition, may pose vagueness concerns. But
a common and generally accepted meaning.” Staley, 239             that is not the case with the telephone harassment statute. The
F.3d at 791-92. Thus, Bowker has not demonstrated that            statute reads “annoy, abuse, threaten, or harass.” 47 U.S.C.
these statutes fail to provide “sufficiently specific limits on   § 223(a)(1)(C). The Supreme Court has observed that
the enforcement discretion of the police to meet constitutional   “[c]anons of construction ordinarily suggest that terms
standards for definiteness and clarity.” Morales, 527 U.S. at     connected by a disjunctive be given separate meanings, unless
64 (internal quotation marks and citation omitted).               the context dictates otherwise.” Reiter v. Sonotone Corp.,
                                                                  442 U.S. 330, 339 (1979) (emphasis added). Here, the
   Only Bowker’s vagueness challenge to part of the               statutory language must be read in the context of
telephone harassment statute, 47 U.S.C. § 223(a)(1)(C),           Congressional intent to protect innocent individuals from fear,
merits further discussion. As noted above, that statute           abuse or annoyance at the hands of persons who employ the
prohibits using a telephone, without disclosing identity, with    telephone, not to communicate, but for other unjustifiable
the intent to annoy, abuse, threaten, or harass any person at     motives. Lampley, 573 F.2d at 787. This context suggests
the number called. Bowker argues that the term “annoy” is         that the words annoy, abuse, threaten or harass should be read
unconstitutionally vague, relying on the Supreme Court’s          together to be given similar meanings. Any vagueness
decision in Coates, supra. In rejecting the city ordinance        associated with the word “annoy” is mitigated by the fact that
which made it a criminal offense for three or more persons to     the meanings of “threaten” and “harass” can easily be
assemble on a sidewalk and to be “annoying” to passersby,         ascertained and have generally accepted meanings. Staley,
the Court reasoned:                                               239 F.3d at 791-92,
  In our opinion this ordinance is unconstitutionally vague          Even assuming, arguendo, that Bowker’s vagueness
  because it subjects the exercise of the right of assembly       argument theoretically has merit, he cannot rely on it to
  to an unascertainable standard, and unconstitutionally          invalidate the indictment or his conviction for telephone
  broad because it authorizes the punishment of                   harassment, because the statute clearly applies to the conduct
  constitutionally protected conduct. Conduct that annoys         he allegedly committed. The Supreme Court held in Parker
  some people does not annoy others. Thus, the ordinance          v. Levy supra, 417 U.S. at 756:
  is vague, not in the sense that it requires a person to
  conform his conduct to an imprecise but comprehensible
No. 02-4086                    United States v. Bowker      25    26   United States v. Bowker                     No. 02-4086

  …[O]ne who has received fair warning of the criminality           where, as here, the statute precisely specifies that the
  of his own conduct from the statute in question is [not]          actor must intend to perform acts of harassment in order
  entitled to attack it because the language would not give         to be culpable.
  similar fair warning with respect to other conduct which
  might be within its broad and literal ambit. One to whose       Lampley, 573 F.2d at 787. Thus, Bowker vagueness
  conduct a statute clearly applies may not successfully          challenge fails. The district court did not err in denying his
  challenge it for vagueness.                                     motion to dismiss Counts 1, 2 and 4 of the indictment.

Here, Bowker engaged in an anonymous campaign of                                            IV
threatening and harassing conduct directed toward Knight                Motion to Sever Count 3 from the Indictment
through use of the telephone (as well as the mails and the
computer) that clearly fell within the statute’s prohibition.        The district court denied Bowker’s motion to sever Count 3
This type of conduct lies at the core of what the telephone       of the indictment (mail theft) from Counts 1 (interstate
harassment statute was designed to prohibit. Lampley, 573         stalking), 2 (interstate stalking), and 4 (telephone
F.2d at 787. FBI Agent Hassman specifically warned Bowker         harassment). Bowker had argued that joinder of these counts
that he might be arrested if he persisted in his course of        would prejudice his rights under the Fifth Amendment and
telephone harassment, but Bowker ignored that warning.            Rules 8 and 14 of the Federal Rules of Criminal Procedure.
Moreover, the fact that Bowker engaged in this campaign           Specifically, he argued that the mail theft count should not be
with an intent to threaten or harass mitigates any concern that   admissible to support the other three counts for stalking and
he may have been punished for merely having a                     telephone harassment on the ground that the crimes did not
communication over the telephone. As the Third Circuit held       possess the same or similar characteristics and that there was
in rejecting a vagueness challenge to the very same statutory     no nexus between the mail theft count and the other alleged
language:                                                         crimes. He further argued that he wished to testify
                                                                  concerning the stalking and telephone harassment counts,
  The section’s specific intent requirement renders               which require the government to prove intent, but not the mail
  unconvincing appellant's second claim that [the                 theft count, and that joinder precluded him from exercising
  predecessor to § 223(a)(1)(C) is] unconstitutionally            his Fifth Amendment right to testify only as to the stalking
  vague. It has long been true that (t)he Court, indeed, has      and telephone harassment counts. Last, he argued that the
  recognized that the requirement of a specific intent to do      jury’s exposure to evidence pertaining to the stalking and
  a prohibited act may avoid those consequences to the            telephone harassment counts would prejudice them in
  accused which may otherwise render a vague or                   deciding the mail theft count. Bowker renews these
  indefinite statute invalid. . . . (W)here the punishment        arguments on appeal.
  imposed is only for an act knowingly done with the
  purpose of doing that which the statute prohibits, the             A motion for relief from the prejudicial joinder of counts
  accused cannot be said to suffer from lack of warning or        must be renewed at the close of the evidence. United States
  knowledge that the act which he does is a violation of          v. Hudson, 53 F.3d 744, 747 (6th Cir. 1995). When the
  law. Screws v. United States, 325 U.S. 91, 101-02, 65           defendant fails to renew the motion, this Court can reverse a
  S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). The appellant           conviction only upon a showing of plain error. United States
  cannot claim confusion about the conduct proscribed             v. Anderson, 89 F.3d 1306, 1312 (6th Cir. 1996). Bowker
No. 02-4086                     United States v. Bowker      27   28    United States v. Bowker                      No. 02-4086

failed to renew his motion to sever Count 3 of the indictment       Bowker also has not demonstrated that the district court
from Counts 1, 2 and 4 at the close of the evidence.              committed plain error when it rejected his argument that
Accordingly, he must demonstrate plain error by the district      severance was required in order to permit him to testify as to
court.                                                            the mail theft count, but to avoid testimony as to the stalking
                                                                  and telephone harassment counts. The Tenth Circuit
  Federal Rule of Criminal Procedure 8 provides, in relevant      confronted a similar argument in United States v. Martin, 18
part:                                                             F.3d 1515, 1518-19 (10th Cir. 1994), stating:
  (a) Joinder of Offenses. The indictment or information            Martin contends that the denial of his severance motion
  may charge a defendant in separate counts with 2 or more          “forced [him] to testify at trial and convict himself as to
  offenses if the offenses charged—whether felonies or              the drug count in an attempt to win an acquittal of the
  misdemeanors or both—are of the same or similar                   gun count.”…Martin further contends that inasmuch as
  character, or are based on the same act or transaction, or        he “had both important testimony to give concerning one
  are connected with or constitute parts of a common                count and a strong need to refrain from testifying on the
  scheme or plan.                                                   other,” …the district court’s refusal to sever the counts
                                                                    deprived him of a fair trial.…[N]o need for a severance
Fed. R. Crim. P. 8(a). Rule 14 provides, in relevant part:          exists until the defendant makes a convincing showing
                                                                    that he has both important testimony to give concerning
  (a) Relief. If the joinder of offenses or defendants in an        one count and a strong need to refrain from testifying on
  indictment, an information, or a consolidation for trial          the other. Applying these standards to our case, we hold
  appears to prejudice a defendant or the government, the           that Martin failed to demonstrate a convincing need for
  court may order separate trials of counts, sever the              a severance.
  defendants’ trials, or provide any other relief that justice
  requires.                                                       Several other circuits have applied the same or similar
                                                                  standards. E.g., United States. v. Alosa, 14 F.3d 693, 695 (1st
Fed. R. Crim. P. 14(a). The record clearly shows that all of      Cir. 1994) (holding that defendant did not deserve severance
the counts in Bowker’s indictment were of the same or similar     because he failed to make a convincing showing that he had
character and that the allegations thereunder were an integral    both important testimony to give concerning one count and a
part of Bowker’s common scheme to harass and threaten             strong need to refrain from testifying on the other); United
Knight. This scheme involved a 14-month campaign of               States v. Gorecki, 813 F.2d 40, 43 (3d Cir. 1987) (holding that
sending emails and regular mail and placing telephone calls       defendant’s bare allegation that the joinder of counts
to her workplace in Youngstown; sending mail to her parent’s      prevented his testimony on one count, without a specific
home; placing telephone calls to Knight’s unpublished home        showing as to what that testimony may have been, failed to
number in West Virginia; placing telephone calls to Knight’s      meet the stringent requirements for severance under Rule 14);
West Virginia workplace; sending mail to Knight’s West            United States v. Ballis, 28 F.3d 1399, 1408 (5th Cir. 1994)
Virginia home; and stealing Knight’s mail from her West           (affirming denial of severance because defendant did not
Virginia home. Thus, all of the counts properly were joined       point out this alleged dilemma in testifying about some counts
pursuant to Rule 8, and the district court did not plainly err    but not others with sufficient specificity for the trial court to
under Rule 14 by refusing to sever the mail theft count.          have abused its discretion in denying the motion); United
No. 02-4086                    United States v. Bowker      29    30   United States v. Bowker                    No. 02-4086

States v. Alexander, 135 F.3d 470, 477 (7th Cir. 1998) (noting    intelligently waive his rights, to court-appointed counsel.”
that there may be cases in which a defendant can                  The district court purported to deny that motion via a hand-
convincingly show that he has important testimony to give on      written minute order on January 28, 2002, stating that
one count but a strong need to remain silent on another, and      “Defendant’s pro se motion for new counsel is denied.” The
in that circumstance, severance may be required; affirming        court did not refer to the fact that Bowker’s motion did not
denial of severance because defendant failed to provide           seek new counsel, but to waive his right to counsel. Bowker,
specific examples of the exculpatory testimony that he would      however, soon had a change of heart about representing
testify about).                                                   himself because on March 26, 2002, Bowker’s attorney
                                                                  moved to withdraw as counsel due to “the fractured lawyer-
  It is clear that Bowker failed to make a “convincing            client relationship.” In an attached statement signed by
showing” that he had important testimony concerning the           Bowker, Bowker requested that his appointed lawyer
interstate stalking and telephone harassment counts, as well      withdraw from the case “and that a new lawyer be appointed
as a “strong need” to refrain from testifying on the mail theft   to represent” him. The court granted the motion on April 10,
count. Indeed, his motion to sever provided absolutely no         2002 and appointed a new federal public defender for Bowker
indication as to what his testimony would be on the stalking      on April 22, 2002.
and harassment counts, stating only that his testimony was
“anticipated to be crucial” because these crimes have a              The sixth and fourteenth amendments guarantee state
specific intent requirement. In addition, Bowker showed           criminal defendants the right of self-representation at trial.
absolutely no need to avoid testifying on the mail theft count,   See Faretta v. California, 422 U.S. 806 (1975). Since it is
merely arguing that his testimony on this count was “not          more likely than not that a defendant would fare better with
needed” because mail theft lacks a specific intent                the assistance of counsel, id. at 835, he will be permitted to
requirement. Such non-specific assertions of prejudice are        represent himself only when he “knowingly and intelligently”
insufficient to warrant severance under Rule 14. For these        relinquishes his right to counsel. Id. Such a knowing waiver
reasons, the district court did not commit plain error in         must be made by a “clear and unequivocal” assertion of the
refusing to sever the counts of the indictment.                   right to self-representation. Id. “Once there is a clear
                                                                  assertion of that right, the court must conduct a hearing to
                             V                                    ensure that the defendant is fully aware of the dangers and
               Right to Self-Representation                       disadvantages of proceeding without counsel.” Raulerson v.
                                                                  Wainwright, 732 F.2d 803, 808 (11th Cir. 1984) (citation
  Bowker argues that he is entitled to a new trial because the    omitted).
district court denied his constitutional right to represent
himself. We review such a denial for an abuse of discretion.         We hold that the district court erred in denying Bowker’s
Robards v. Rees, 789 F.2d 379, 384 (6th Cir. 1986).               January 22, 2002 motion to represent himself which was
                                                                  accompanied by a clear and unequivocal assertion of the right
   On January 22, 2002, Bowker, then represented by counsel,      to self-representation. At a minimum, the court should have
filed on his own initiative a hand-written motion “for release    conducted some inquiry into the bases for Bowker’s motion.
of appointed attorney.” In that motion, Bowker stated, “Now       It is not apparent from the record that the district court did
Comes Defendant, being first advised of his rights to an          anything other than misconstrue the motion as a motion for
attorney, and does now knowingly, willingly, and                  appointment of new counsel and then deny the motion.
No. 02-4086                    United States v. Bowker      31    32    United States v. Bowker                      No. 02-4086

Nevertheless, the district court’s error was rendered harmless      return. The motion must be filed in the district where the
by Bowker’s change of heart about self-representation over          property was seized. The court must receive evidence on
two months prior to trial. As noted above, after being denied       any factual issue necessary to decide the motion. If it
the right to represent himself, Bowker explicitly joined his        grants the motion, the court must return the property to
then-attorney’s motion to withdraw from the case and to have        the movant, but may impose reasonable conditions to
new counsel appointed for him. Thus, Bowker’s last                  protect access to the property and its use in later
indication to the district court on the matter was that he did      proceedings.
not wish to represent himself. Cf. id. at 809 (“Even if
Raulerson's letter of July 18, 1980 constituted a clear and       Fed. R. Crim. P. 41(g). In United States v. Hess, 982 F.2d
unequivocal demand to represent himself, his agreement to         181 (6th Cir. 1992), this Court observed that “‘[a] district
proceed with the assistance of an attorney waived that original   court has both the jurisdiction and the duty to return the
request….”). Accordingly, the district court’s erroneous          contested property once the government’s need for it has
disposition of the January 22, 2002 motion for self-              ended.’” Id. at 187 (internal quotation marks omitted;
representation was rendered harmless error by Bowker’s            quoting United States v. Martinson, 809 F.2d 1364, 1370 (9th
subsequent waiver of his right to self-representation. Bowker,    Cir.1987) (citing United States v. Wilson, 540 F.2d 1100,
therefore, is not entitled to a new trial.                        1103-04 (D.C. Cir.1976)). There, the district court had failed
                                                                  to address the legal or factual issues raised in a party’s motion
                          VI                                      for return of seized records. The Court found it significant
            Motion to Return Seized Property                      that no hearing was held regarding who was entitled to
                                                                  possession of the documents, and the district court had failed
   On February 5, 2002, Bowker filed a pro se motion for          to consider the merits of the moving party’s arguments. The
return of seized property and items, pursuant to Rule 41 of the   Court also was troubled because there were no findings of
Federal Rules of Criminal Procedure. He sought an order           fact or conclusions of law regarding which party was entitled
from the court directing the government to return all items       to retain the records. Accordingly, the Court held that the
and tangible objects which were not going to be used as           district court did not discharge its duty under Rule 41(g) to
evidence in his case. As of May 29, 2002, the district court      hear and decide the issues, reasoning that Rule 41(g) “clearly
had not yet ruled on the motion, so Bowker filed a “request       contemplates a hearing ‘on any issue of fact necessary to the
for ruling on motion for return of property.” On June 4, 2002,    decision of the motion.’” Id. at 186.
the district court denied Bowker’s request for a ruling on the
motion for return of property. No reasons were provided by           Hess is directly on point. The district court below simply
the court for the denial, and the district court never held a     ignored Bowker’s motion to return records, and when Bowker
hearing on, nor has it ever ruled on, the underlying motion for   filed a motion to have the court rule on that motion, the court
return of property.                                               denied the motion, without ever reaching the merits of the
                                                                  underlying motion. The court held no hearing, took no
  Rule 41 provides, in relevant part:                             evidence, and gave no indication that it ever has considered
                                                                  the merits of Bowker’s motion. Accordingly, on remand, the
  (g) Motion to Return Property. A person aggrieved by            district court shall hold a hearing on Bowker’s motion for
  an unlawful search and seizure of property or by the            return of records, take evidence on any factual issues
  deprivation of property may move for the property’s
No. 02-4086                    United States v. Bowker      33    34   United States v. Bowker                      No. 02-4086

necessary to resolve that motion, and promptly rule on that         (1) that the defendant traveled in interstate or foreign
motion.                                                             commerce;
                                                                    (2) with the intent to kill, injure, harass, or intimidate
                        VII                                         another person; and
 Motion for a Judgment of Acquittal as to Counts 1, 2               (3) in the course of, or as a result of, such travel places
                       and 4                                        that person in reasonable fear of the death of, or serious
                                                                    bodily injury to, that person, a member of the immediate
  Bowker challenges the district court’s failure to grant his       family of that person, or the spouse or intimate partner of
motion for a judgment of acquittal on Counts 1, 2 and 4 of the      that person.
indictment, pursuant to Rule 29 of the Federal Rules of
Criminal Procedure. For the reasons that follow, we affirm           Bowker argues that the government did not prove, pursuant
the judgment of the district court.                               to the interstate stalking count, that the “result of” Bowker’s
                                                                  travel from Ohio to West Virginia in July, 2001, was to put
A. Standard of Review                                             Knight in reasonable fear of her life or bodily injury, because
                                                                  Knight did not learn of Bowker’s travels until August 2001,
   “In reviewing a district court’s denial of a motion for        after he had completed his travel. This argument is specious.
judgment of acquittal on a claim of insufficient evidence, ‘the   Knight learned of Bowker’s travel to West Virginia because
relevant question is whether after viewing the evidence in the    he sent her numerous photographs informing her that he had
light most favorable to the prosecution, any rational trier of    been in the state the preceding month. Accompanying the
fact could have found the essential elements of the crime         photographs was the statement, “Take the photos out to read
beyond a reasonable doubt.’” United States v. Lloyd, 10 F.3d      the backs of them. Send me an E-mail address. It keeps me
1197, 1210 (6th Cir. 1993) (quoting Jackson v. Virginia, 443      long distance, you know what I mean.” The clear implication
U.S. 307, 319 (1979)). “If the evidence, however, is such that    of this statement was that Bowker would continue to
a rational fact finder must conclude that a reasonable doubt is   communicate with Knight, unless she provided him with her
raised, this court is obligated to reverse a denial of an         email address. The jury was entitled to infer that this
acquittal motion.” Id. (quoting United States v. Collon, 426      statement, combined with the photographs of Bowker at
F.2d 939, 942 (6th Cir.1970)). The district court’s findings of   various locations in West Virginia, was intended to intimidate
fact are reviewed for clear error, and circumstantial evidence    Knight by showing her that Bowker had traveled to her state
alone is sufficient to sustain a conviction. Nationwide Mut.      and would do so in the future. The statute did not require the
Ins. Co. v. Home Ins. Co., 278 F.3d 621, 625 (6th Cir. 2002);     government to show that Bowker actually intended to harass
United States v. Peters, 15 F.3d 540, 544 (6th Cir. 1994).        or intimidate Knight during his travels, only that the result of
                                                                  the travel was a reasonable apprehension of fear in the victim.
B. Interstate Stalking Count                                      Since Knight testified that she was afraid that Bowker might
   Count 1 of the indictment charges Bowker with interstate       rape her, and her fear seemed reasonable, the government
stalking, in violation of 18 U.S.C. § 2261A(1). The               proved all of the elements of the interstate stalking count.
government was required to prove:
No. 02-4086                    United States v. Bowker      35    36   United States v. Bowker                       No. 02-4086

C. Cyberstalking Count                                            (J.A. 985-88, 1000.) A July 16, 2001 letter that Bowker sent
                                                                  to Knight at the television station had both sexual and
  Count 2 of the indictment charges Bowker with                   threatening connotations. It read, in part:
cyberstalking, in violation of 18 U.S.C. § 2261A(2). The
government was required to prove:                                      No. 1. You do not hang up on me.
                                                                       No. 2. You do not hang up on me, ever.
  (1) Bowker intentionally used the mail or any facility of            No. 3. If and when I call CBS 13 asking about a news
  interstate or foreign commerce;                                   story that you reported on, you do not hang up on me.
  (2) Bowker engaged in a course of conduct with the                You must at least do the bare minimum and answer my
  intent to place Knight in reasonable fear of death of, or         news related questions.
  serious bodily injury to, herself, her spouse or intimate            I know what you value most in life, your bullshit fake
  partner, or a member of her immediate family; and                 ass 1997 Pontiac Grand Am, which is about top on your
  (3) Bowker’s course of conduct actually placed Knight in          list as well as two other things. As far as the Grand Am
  reasonable fear of death of, or serious bodily injury to,         is concerned, say good-bye to it. I am going to file a
  herself.                                                          mechanics lien on it immediately and later seek civil
                                                                    forfeiture.
   The evidence shows that Bowker’s intended to instill in             All that you . . . would have to do is be polite, be nice,
Knight a fear of death or serious bodily harm through use of        and answer my news-related questions, just like the rest
the mails and other facilities of interstate commerce, required     of the reporters, except your buddy April Kaull. I’m
elements of the cyberstalking count. During a June 12, 2001         going to file a lien on her vehicle too. You are both fuck-
telephone conversation with Knight, Bowker told her:                ups, assholes and seriously emotionally and mentally
                                                                    unbalanced.…
  You don’t know where I’m at. I might be in your house                Also, WOWK will hire just about anyone. Or at least
  in Dunbar[, West Virginia]; you don’t know that.… I               a pretty girl reporter, as long as she does her hair and
  know all of your neighbors.… And I have access to all             makeup well.…
  that information, just like anybody else does who knows              That vehicle is exemplary of you, pretty on the outside
  where to find it. I have an enormous amount of things             and very worthless inside. You have female genitals and
  about you that I’m not going to disclose unless I have to.        that is about it. You are a very slander to the word
  I’m not going to tell anybody about it except if you lie to       woman. Oh, yeah, you dress like one but so do
  me. I might not say anything to you at the time, but that         transvestites. I think I would rather spend the evening
  might come back, you know.… I know the names of all               with a pretty transvestite than with you.…
  your relatives and where they live.… I know your                     Anyhow, I also think that it is time for your neighbors
  brothers’ wives[’] names, their ages, their Social Security       to get to know you better and I will be making attempts
  numbers and their birth dates … and their property                to inform them about how the prima donna from Ohio
  values.… Maybe I live on 20th street in Dunbar.…                  things [sic] she can eat from the top and throw her
  Maybe I watch you with binoculars all the time and                garbage on the sidewalk of West Virginia and Dunbar.…
  maybe I don’t.                                                       I also noticed that you already had the job and
                                                                    residence in West Virginia when you had your Ohio
                                                                    License plates renewed, for one year anyhow.…
No. 02-4086                    United States v. Bowker      37    38   United States v. Bowker                      No. 02-4086

     So bye-bye, fuck you, you are an asshole and a                 (3) in the telephone calls, whether or not conversation or
  sociopath and an embarrassment to mothers everywhere,             communication ensued, Bowker intended to annoy,
  sir. In parenthesis: (I wasn’t bringing up the mental case        abuse, threaten, or harass Knight or any person at the
  thing again since it is genetic.)                                 called number.
     Yes, sir. Adios, Eric [sic]. Smooch. Smooch.
                                                                     Bowker’s primary argument against his conviction for
(J.A. 1011-15.) In August 2001, Bowker left a series of           telephone harassment is that Knight allegedly was aware of
messages on Knight’s answering machine asking that Knight         Bowker’s identity when she received his calls. The statute,
or Knight’s friend call him back, which did not occur. These      however, does not preclude criminal responsibility merely
messages contained statements that Knight reasonably could        because the recipient may suspect, or have a very good idea
perceive to be threats to her personal safety. Excerpts include   of, the caller’s identity. Rather, assuming that Bowker called
the following statements:                                         Knight with the requisite intent to annoy, abuse, threaten, or
                                                                  harass, the only issue is whether Bowker disclosed his
    I don’t even know why I’m nice to you ever at all, you        identity in those calls. It is clear that in all of the at-issue
  and your fucked-up friend should not even be working in         telephone calls, Bowker never affirmatively identified himself
  the media. You know you gotta mother-fucking realize            as Erik Bowker. In fact, he denied being Bowker during a
  there’s like 50 percent men in this country and you better      conversation with Knight on June 12, 2001, and instead stated
  mother-fucking learn that you’re going to have to deal          that his name was Mike. Thus, a straightforward application
  with us sometime.…                                              of the telephone harassment statute shows that the jury
    Well, it looks like nobody is going to answer me if           reasonably found the non-disclosure element to be satisfied.
  Tina Knight is okay, so I’m gonna take the 1:00 a.m. bus
  out of Columbus, Ohio and come down there and see for                                   VIII
  myself. Okay, I’ll be there about 6:00 a.m. Bye.                      Motion for a New Trial on Counts 1, 2 and 4

(J.A. 1226-27.) Since Knight testified that these intentionally     The denial of a defendant’s motion for a new trial under
intimidating, threatening and harassing interstate                Federal Rule of Criminal Procedure 33 is reviewed for abuse
communications made her afraid to leave the house everyday        of discretion. United States v. Ashworth, 836 F.2d 260, 266
and that Bowker might try to rape her, the government proved      (6th Cir. 1988). The Court is “limited to examining the
all of the elements of the cyberstalking count.                   evidence produced at trial to determine whether the district
                                                                  court’s determination that the evidence does not
D. Telephone Harassment Count                                     ‘preponderate heavily against the verdict’ is a clear and
                                                                  manifest abuse of discretion.” Id. (citation omitted). As
  Count 4 of the indictment charged Bowker with telephone         discussed in the preceding section, there was ample evidence
harassment, in violation of 47 U.S.C. § 223(a)(1)(C). The         to support Bowker’s convictions on Counts 1, 2 and 4 of the
government had to prove that:                                     indictment. Thus, it was not an abuse of discretion to find
                                                                  that the evidence did not preponderate heavily against the
  (1) Bowker made interstate telephone calls to Knight;           verdict.
  (2) Bowker did not disclose his identity in the telephone
  calls; and
No. 02-4086                    United States v. Bowker      39    40   United States v. Bowker                      No. 02-4086

                        IX                                          impairment manifests itself by physical or psychological
Upward Departure for Extreme Psychological Harm to                  symptoms or by changes in behavior patterns. The court
                    the Victim                                      should consider the extent to which such harm was
                                                                    likely, given the nature of the defendant's conduct.
  After Bowker’s convictions, he was sentenced pursuant to
the 2000 edition of the United States Sentencing Commission       Guidelines §5K2.3 (Nov. 1, 2000). With regard to the crime
Guidelines Manual (“Guidelines”). Based upon a final              of stalking, Guidelines § 2A6.2 instructs that “an upward
offense level of 19, and a criminal history corresponding to      departure may be warranted if the defendant stalked the
Category V, Bowker’s Guidelines’ range was between 57 and         victim on many occasions over a prolonged period of time.”
71 months. The government moved for a three level upward          Guidelines § 2A6.2, Application Note 5.
departure in his sentence based on extreme psychological
injury to the victim, Tina Knight. The basis for the motion         The record shows that Bowker stalked Knight on many
was, in part, Guidelines § 5K2.3. The district court granted      occasions and over a prolonged period of time. See
the motion for upward departure. Because Bowker argues            Guidelines § 2A6.2, Application Note 5. FBI Special Agent
that the sentence imposed by the district court was outside the   James McNamara, an expert on stalking crimes, testified at
applicable guideline range and was based on a factor that is      the sentencing hearing as to the extreme nature of Bowker’s
not justified by the facts of the case, this Court reviews the    conduct. McNamara pointed to the facts that the harassment
district court’s determination under a de novo standard.          occurred over a period of years and in two different states;
18 U.S.C. § 3742(e).                                              involved numerous, multi-media contacts (letters, telephone
                                                                  calls, email and interstate travel); and involved contacts with
  Section 5K2.3 of the Guidelines provides:                       Knight’s friends and family members. Further, Bowker’s
                                                                  campaign of harassment substantially impaired Knight’s
  §5K2.3. EXTREME PSYCHOLOGICAL INJURY                            “behavioral functioning” as manifested by “changes in [her]
  (POLICY STATEMENT)                                              behavior patterns.” Guidelines § 5K2.3. Knight was so
                                                                  distressed that she was left with profound feelings of paranoia
  If a victim or victims suffered psychological injury much       and felt compelled to change banks and unlist her phone
  more serious than that normally resulting from                  number, and have her bills sent to a different address. She
  commission of the offense, the court may increase the           also purchased a gun, routinely uses a security escort, and,
  sentence above the authorized guideline range. The              most unfortunately, decided to forgo her on-air news career.
  extent of the increase ordinarily should depend on the
  severity of the psychological injury and the extent to            Knight’s Victim Impact Statement movingly captures the
  which the injury was intended or knowingly risked.              extreme psychological distress that Bowker’s stalking
                                                                  activities inflicted on her:
  Normally, psychological injury would be sufficiently
  severe to warrant application of this adjustment only             The two years that I was stalked changed my family and
  when there is a substantial impairment of the intellectual,       me. First of all since the stalking began because of my
  psychological, emotional, or behavioral functioning of a          job as a television news reporter it has turned me off to
  victim, when the impairment is likely to be of an                 a future in that career.…I don’t want to be anyone’s
  extended or continuous duration, and when the                     favorite newscaster because I fear it will turn into another
No. 02-4086                       United States v. Bowker         41    42   United States v. Bowker                    No. 02-4086

  situation like the one I had.…I am also concerned about                                          X
  major purchases in the future, like a home, and how he                              Expert Testimony on Stalking
  may be able to track me down….Even writing this I am
  careful not to mention anything about my personal life                  As noted in the preceding section, the government called an
  for fear he will read this and it will give him another               expert on stalking crimes, FBI Special Agent James
  means by which to contact me.…I am concerned about                    McNamara, to testify at Bowker’s sentencing hearing.
  the rest of my life….I am not confident this will stop.               Bowker argues that the district court’s decision to hear the
  That is my biggest fear. When he gets out of jail this                testimony of Agent McNamara was erroneous and that the
  could start all over again so I truly can never relax. It’s           court’s decision should be reviewed for an abuse of discretion
  just putting off my ultimate fear that someday, no matter             under Federal Rule of Evidence 702. The Federal Rules of
  what I do, he will show up at my front door with intent               Evidence, however, are by their own terms expressly
  to harm me. By now I’ve given him reason to really hate               inapplicable to sentencing hearings. Fed. R. Evid. 1101(d)(3).
  me in his mind. I testified against him in court and                  According to the federal statute that governs the use of
  helped put him in jail. I hope he isn’t out for revenge.4             information in sentencing, “[n]o limitation shall be placed on
                                                                        the information concerning the background, character, and
   We hold that the above-described facts amply justified the           conduct of a person convicted of an offense which a court of
district court’s upward departure determination. Cf. United             the United States may receive and consider for the purpose of
States v. Otto, 64 F.3d 367, 371 (8th Cir. 1995) (affirming             imposing an appropriate sentence.” 18 U.S.C. § 3661. The
upward departure where stalking victim lived in constant fear           Supreme Court has explained that this statute “codifies the
for herself and for her children and was always on the lookout          longstanding principle that sentencing courts have broad
for the defendant; could not eat or sleep; lost weight; required        discretion to consider various kinds of information.” United
counseling; and feared the defendant’s ultimate release);               States v. Watts, 519 U.S. 148, 151 (1997). Accordingly, this
United States v. Miller, 993 F.2d 16, 21 (2d Cir. 1993)                 Court reviews the district court’s admission of Agent
(affirming upward departure after the defendant had engaged             McNamara’s testimony for an abuse of discretion in
in a three year campaign of harassment; noting that the victim          determining that the testimony had “sufficient indicia of
had been afraid to answer the telephone or open her mail for            reliability to support its probable accuracy.” Guidelines
three years; was afraid to remain in the New York area; and             § 6A1.3(a).
believed that the years of harassment had hastened her
husband’s demise).                                                         Agent McNamara has been with the FBI for 15 years and
                                                                        is assigned to the FBI as a behavioral analyst. His duties
                                                                        include looking at the behavior of criminals, conducting
                                                                        research with convicted offenders and disseminating the
                                                                        results of that research, and working on active criminal cases
                                                                        as a law enforcement consultant. McNamara has been trained
                                                                        in a variety of disciplines, including criminal justice,
                                                                        psychology, forensic science, anthropology and psychology.
    4                                                                   Based on his review of transcripts and other materials
     Bowker made Knight’s Victim Impact Statement part of the public    pertaining to Bowker’s case, McNamara testified that Bowker
record in the district court when he attached it as an exhibit to his
response to the United States’ motion for an upward departure.          had engaged in multimedia attempts to contact Knight,
No. 02-4086                     United States v. Bowker      43    44    United States v. Bowker                       No. 02-4086

including letters, email, telephonic contacts, and the sending        After Bowker’s attorney cross-examined Agent McNamara,
of gifts. McNamara opined that the sending of gifts in a           the FBI expert on stalking, the district court asked Bowker
stalking case is “significantly important in the areas of          directly, “Is there anything that you have to say to this Court
increased dangerousness.” He further testified that Bowker         before it imposes sentence?” Bowker responded that he
escalated his activity, from contacts through the mail, to         would like to read a lengthy statement, and the court told
telephonic and electronic mail contact, to traveling interstate    Bowker to proceed. Bowker began by challenging his prior
to pursue Knight. McNamara also indicated that Bowker’s            criminal history. The court then went through each crime that
past history of violence, including domestic abuse, was a          formed the foundation for the assignment of a Criminal
predictor of future dangerousness or violence. As a                History Category V. Bowker then asked to address some
consequence of these findings, McNamara concluded that             things that occurred during his trial, and the court told him to
Bowker was a more dangerous type of stalker.                       proceed. Bowker gave a lengthy justification for his conduct
                                                                   underlying his convictions, complained about not being able
   We hold that the district court did not abuse its discretion    to testify as to his intent, and pointed out that he has severe
in admitting Agent McNamara’s testimony at the sentencing          physical disabilities and mental problems. Bowker next
hearing. His testimony was relevant to the court’s application     complained about the performance of his attorney. Bowker
of Guidelines § 2A6.2, which determines how the base               then asked the court to have his mother testify, which the
offense level is to be calculated for the crime of stalking.       court permitted. The only request the district court appeared
Guideline § 2A6.2 provides for a two-level increase in the         to deny Bowker was his desire to read a 15-page statement
base offense level for a pattern of activity involving stalking,   into the record. Based on the totality of the circumstances, we
threatening, harassing, or assaulting the same victim.             see no merit to Bowker’s argument that he was denied the
McNamara’s testimony directly addressed this issue. Agent          right of allocution. Cf. United States v. Kellogg, 955 F.2d
McNamara’s testimony also was relevant to determining              1244, 1250 (9th Cir. 1992) (“Although the defendant has a
whether an upward departure was warranted for extreme              right of allocution at sentencing, that right is not unlimited.”).
psychological injury to the victim. See Guidelines § 2A6.2,
Application Note 5 (instructing that the severity of the                                        XII
stalking may warrant an upward departure). Therefore, the                                    Conclusion
district court did not err in entertaining Agent McNamara’s
expert testimony at sentencing.                                       For all the foregoing reasons, we AFFIRM Defendant
                                                                   Bowker’s convictions and sentence. This case shall be
                           XI                                      REMANDED for the district court to conduct a hearing and
               Bowker’s Right of Allocution                        to rule on Bowker’s motion to return seized property.
   Federal Rule of Evidence 32(i)(4)(c)(ii) provides that,
before imposing a sentence, the court must “address the
defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence.” Bowker
argues that the district court denied him this right of
allocution. We apply a de novo standard of review. United
States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995).
