                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0453n.06

                                            No. 19-3591


                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                FILED
 UNITED STATES OF AMERICA,                                 )                 Aug 03, 2020
                                                           )             DEBORAH S. HUNT, Clerk
         Plaintiff-Appellee,                               )
                                                           )      ON APPEAL FROM THE
 v.                                                        )      UNITED STATES DISTRICT
                                                           )      COURT     FOR      THE
 MICHAEL A. HAGAR,                                         )      NORTHERN DISTRICT OF
                                                           )      OHIO
         Defendant-Appellant.                              )
                                                           )


BEFORE:        SUHRHEINRICH, GIBBONS, and BUSH, Circuit Judges.

       SUHRHEINRICH, Circuit Judge. After being fired by Goodyear and Eaton corporations,

Defendant Michael A. Hagar used the internet to harass and threaten employees of both companies,

as well as Oregon law enforcement officials.         He was tried and convicted on charges of

cyberstalking and making interstate threats. He raises various challenges to his conviction and

sentence in this appeal. We affirm the district court in all respects.

                                        I. BACKGROUND

                                              A. Facts

       In the fall of 2013 Goodyear fired Hagar for inappropriately accessing personnel

information with a Goodyear computer and then using it against his co-workers. In November

2015, Eaton fired Hagar because of Hagar’s anger management issues. Hagar worked at Oregon

sites for both companies.
No. 19-3591, United States v. Hagar


       Hagar’s tirades began shortly after his firing from Eaton. Hagar sent J.R., his manager at

Eaton, voice messages and emails stating “how he was going to basically make [J.R.] pay and how

he was going to ruin [J.R.’s] life.”

       Hagar asked other Eaton employees to confirm J.R.’s address. The address he possessed

was “almost identical” to J.R.’s actual address. Hagar’s threats impelled J.R. to buy a firearm and

install a home security system. Eaton posted a guard at J.R.’s house.

       Hagar followed the same playbook with Goodyear. In 2015 (a year and one-half after his

firing from Goodyear), Hagar sent a threatening email to R.D., his manager at Goodyear. Again,

Hagar emailed coworkers to confirm R.D.’s address, which Hagar had correct. R.D. bought a gun.

Goodyear placed a security guard at R.D.’s house, and at two Goodyear facilities in Oregon. The

company also hired a private security firm to surveil Hagar. Hagar referenced these “guards” in

one of his emails to R.D. and others.

       R.G., a female engineer at Eaton, was the principal object of Hagar’s ardor. About a month

after Eaton fired Hagar, he sent R.G. the following message through Facebook: “We only really

talked once, at the door leading to the break room. We do not know one another.” In another

Facebook message, he told R.G. that, “as you know I am attracted to you.” In still another, he

said, “Your mother is Facebook friends with [C.B.],” who is “Vice President Corporate Systems

Worldwide at Eaton.” In total, Hagar sent to R.G. 31 pages of Facebook messages between

February and May 2016. Hagar’s feelings went unrequited; R.G. did not respond to any of Hagar’s

missives.

       Hagar’s enchantment quickly turned to anger. On April 24, 2016, he wrote R.G. that:

       I GOING TO RUIN YOUR LIFE LIKE YOU TRIED TO RUIN MINE [repeated
       twice]
       ENJOY YOUR LIFE IN PRISON


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No. 19-3591, United States v. Hagar


         Hagar also sent emails to R.G.’s work and personal accounts. On April 24, he sent the

following email to R.G. and other Eaton employees:

         I AM GOING TO CREATE APPREHENSION IN EVERY MOMENT OF YOUR
         LIVES.
         On May 5, 2016, R.G. obtained a “temporary stalking protective order” against Hagar in

Oregon state court, which forbid all contact with R.G. The Oregon police personally served the

order on Hagar on May 9. In that order, Hagar was directed to appear on June 3 for a hearing to

extend the order indefinitely. Hagar admitted that he had been served with the order. Hagar failed

to appear in court, however.

         Between April 24 and April 30, Hagar sent R.G. and other Eaton employees a series of

increasingly threatening emails. On May 30, 2016, Hagar emailed R.G., other Eaton employees,

and R.D. at Goodyear, targeting their “sanity” (the “Sanity email”). He added the Oregon police

to his hit list:

         I AM GOING TO MAKE CERTAIN EVERYONE OF YOU SUFFER THE
         MENTAL ABUSE I HAVE FOR THE PAST YEAR! AS ALL OF YOU A[RE]
         LITTLE PUSSIES, I IMAGINE IT WILL ONLY TAKE A SHORT PERIOD OF
         TIME UNTIL YOU REALIZE THAT I AM MASTER OVER YOUR PATHETIC
         LIVES NOW.
         ENJOY WHAT LITTLE TIME YOU HAVE LEFT OF YOU[R] SANITY.
         Oregon law enforcement officials became additional recipients of Hagar’s vitriol after he

was arrested on March 11, 2016 for trespassing when he appeared at one of Goodyear’s Oregon

sites. M.M., the state prosecutor assigned to Hagar’s trespass case, received over 50 emails from

Hagar. Hagar also visited Eaton after he was fired. On one occasion, he was seen driving through

the Wilsonville facility parking lot and on another he was seen standing across the street.

         Hagar also “reached out” to C.B., a Vice President at Eaton headquarters in Beachwood,

Ohio, and R.G.’s step-aunt. In May 2016, he sent four deranged and threatening Facebook


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No. 19-3591, United States v. Hagar


messages to C.B.’s work account at Eaton headquarters in Beachwood, Ohio. In one message,

Hagar indicated that he could “go to Ohio.”

         On the eve of the scheduled stalking order hearing, Hagar’s emails sent to R.G., C.G., J.R.,

and others reached a violent crescendo:

         I AM GOING TO SHOOT ONE OF MY GUARDS SOON . . . AND THEN I
         WILL MAKE CERTAIN ALL OF YOU ARE SHOT ALSO.
I ONLY HAVE TO S[H]OOT YOUR KNEE CAP . . . AND YOU WILL NEVER WALK

AGAIN[.]

         And, on June 3, Hagar sent an email to R.G. and C.B. exclusively, threatening to go to

“COLUMBIA MARYLAND” (where R.G.’s parents lived) “AND TELL YOU[R] FAMILY

PERSONALLY WHAT YOU ARE RESPONSIBLE FOR.”

         Oregon police searched Hagar’s residence following the “SHOOT” threats. There they

found four handguns, two rifles (an AR-15 and an AK-47), thousands of rounds of ammunition,

two U.S. Army field training manuals discussing attack tactics,1 extended magazines, two shoulder

holsters, a backpack, and handwritten notes on Eaton personnel, including on C.B. and R.G., as

well as the names of R.G.’s mother, father, and sister. Hagar’s personal notes on C.B. and R.G.

included “location information.”

                                          B. Detention and Charges

         On June 16, 2016, the United States petitioned the district court for a writ of habeas corpus

ad prosequendum to bring Hagar to the Northern District of Ohio from Oregon. At that time, he

was in jail for charges related to his violation of the protective order. The magistrate judge issued

an arrest warrant on June 14, 2016, and the writ on June 17, 2016. Hagar’s initial appearance date


1
 For example, one of the bookmarked passages read in pertinent part: “The tactician cannot ignore the human aspect.
He seeks to recognize and exploit indicators of fear and weakness in his enemy, and to defeat the enemy’s will, since
soldiers remain key to generating combat power.”

                                                        -4-
No. 19-3591, United States v. Hagar


was set for July 7, 2016, which was continued to July 26 and then to August 2. The United States

Marshals Service executed the writ on August 1, 2016 and Hagar appeared before the magistrate

judge on August 2, 2016. On August 5, the magistrate judge ordered that Hagar be detained

pending trial.

       On August 24, 2016, Hagar was charged in a three-count indictment with cyberstalking in

violation of a protective order, in violation of 18 U.S.C. §§ 2261A(2)(B) and 2261(b)(6) (Count

1); and two counts of making a threatening communication in interstate commerce, in violation of

18 U.S.C. § 875(c) (Counts 2 and 3). On September 11, 2018, the government filed a superseding

indictment, which added additional details to the initial indictment, but retained the three charges.

                                        C. Pretrial Rulings

       Between his initial August 24 indictment and his trial, which began in February 2019,

Hagar signed six speedy trial waivers, moved to dismiss his trial counsel moved to continue trial

three times and filed a motion in limine.

                                              D. Trial

       At trial, the government presented multiple witnesses. Detective Sergeant Lee Gosson of

the Multnomah County Sheriff’s Office testified that he interviewed Hagar on June 6, 2016, after

Hagar waived his Miranda rights. During the interview, they discussed Hagar’s intentions. Hagar

admitted to sending the SHOOT emails and others because “he was pissed and wanted to be

heard.” Matthew Coberly, global security director for Eaton, testified that he monitored Hagar’s

emails from Eaton’s headquarters in Beachwood, Ohio. He described the content of the emails as

escalating from “insulting to harassment to threatening.” Coberly also sent a cease and desist letter

to Hagar in April 2016. Michael Peterson, director of global investigations at Goodyear at its

headquarters in Akron, Ohio, testified that as a result of Hagar’s conduct, Goodyear “placed



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No. 19-3591, United States v. Hagar


security on the retail stores and . . . personal security on [J.R.].” Goodyear also “captured” any

emails sent to Goodyear from Hagar and “rerouted [them] to a box that was coming directly to

[Peterson’s] department.” Other government witnesses included C.B., R.D., M.M., J.R., and R.G.

       Hagar also testified. He admitted that he sent the threatening communications and that he

owned the evidence found in his trailer. He also acknowledged receipt of the May 9 temporary

protective order, and that he knew that he was prohibited from contacting R.G. and did so anyway.

Hagar claimed he never had any intention of causing physical harm to the recipients of his emails.

Regarding his threats to “shoot” people, Hagar explained that:

       Actually by that point in time I was completely frustrated and I felt that no one had
       wanted to listen to me whatsoever, and I just . . . wrote something out that . . . I
       almost felt like I had to shoot somebody for . . . people to listen to me.
       Hagar moved for judgment of acquittal, arguing that “the e-mails and correspondence all

occurred outside of the Northern District of Ohio. . . . So we would ask . . . this Honorable Court

to dismiss the charges based on this Court’s lack of jurisdiction to hear this case.” He added, “[a]t

most, this case should have been pursued in Oregon.” The district court denied the motion. The

jury convicted Hagar on all counts.

                                          E. Sentencing

       Hagar’s presentence sentencing report (PSR) started with a base offense level of

12 pursuant to USSG § 2A6.1. The PSR added six levels because “Hagar demonstrated an

intention to carry out the threats”; added two levels because he made two or more threats; added

two more levels for his threatening of R.G. following the issuance of the protective order; added

four levels because Hagar substantially disrupted Goodyear’s and Eaton’s operations; and added

six more levels for his threatening of Oregon law enforcement and county prosecutors. This gave

Hagar a total offense level of 32. Hagar received a criminal history category of I because he had



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No. 19-3591, United States v. Hagar


no prior convictions. The corresponding advisory Guidelines range was 121 to 151 months’

imprisonment.

       The PSR included victim impact statements from R.G, J.R., and Goodyear. Both R.G. and

J.R. worry that Hagar will continue to be a danger upon his release. R.G. stated that “Hagar

terrorized and tormented me, and others, for months with the sole purpose of taking any feeling of

security away. I continue to see the mental, physical, and emotional impact that he has had on me

. . . .” She also said that Hagar “changed my ‘normal’ life to one full of fear.” She stated that

although therapy and self-defense classes have helped with her anxiety,

       I fear when he is released, he will continue to be a danger to myself and others. His
       lack of remorse at the trial, and his inability to accept any guilt concerns me. I
       realize that I might not be able to hide from him and that fear haunts me. I also
       worry about my family. He made it very clear that he knows how to find them. I
       know that I will never fully heal from this but I hope that with more time and the
       comfort knowing that he is in custody, I may be able to find some peace.

Goodyear reported that Hagar caused it to spend over $406,000 in private security services.

       Hagar claimed that the six-level increase for “intention to carry out the threats” was

unwarranted because the evidence did not establish that he intended to carry out the threats. Hagar

objected to the two-level increase for committing the offense while subject to a protective order

on the ground that the order was “not issued lawfully.” The district court overruled his objections.

Hagar asked for a 41-month sentence, with credit for time served since his incarceration in June

2016. The government sought the 180-month statutory maximum.

       The district court ultimately found:

       [T]his offense goes beyond the pale . . . . There’s been no physical injury, but the
       mental stress and mental injury to the victims is more than I’ve seen in my lifetime.
       And if I have to reflect the seriousness of the offense in the sentence and deter
       criminal conduct, I think the maximum sentence is appropriate. And the public has
       to be protected from what you did, and I just heard here again, I heard your
       testimony. . . . And I don’t see any remorse. I don’t see any acceptance of
       responsibility for acting badly and committing crimes. Nothing. . . . And so I don’t


                                                -7-
No. 19-3591, United States v. Hagar


       see any assurance that if you were on the street, that the public would be protected
       at all. In fact, I see just the exact opposite.
The court sentenced Hagar to 60 months on each count, to be served consecutively, for a total of

180 months. It ordered Hagar to pay $155,654 to Eaton and $403,832.41 to Goodyear.

       This appeal follows.

                                             II. Analysis

                                      A. Speedy Trial Claims

       Hagar argues that the district court erred when it failed to grant his motions to dismiss the

indictment for Speedy Trial Act violations. He argues that the first motion should have been

granted because he was arrested on July 7, 2016, but not indicted until August 24, 2016, in

violation of the 30-day window of 18 U.S.C. § 3161(b). In his second motion to dismiss, Hagar

claimed that seventy days passed from the date of his arraignment on the superseding indictment,

September 19, 2018, and his trial, in violation of § 3161(c).

       Speedy Trial Act claims “by their own terms must be raised pre-trial or be forever waived.”

United States v. Pickett, 941 F.2d 411, 416 (6th Cir. 1991); United States v. Stewart, 628 F.3d 246,

253 (6th Cir. 2010). This is not exactly Hagar’s problem, because he brought his motions pretrial;

the problem is that he failed to secure rulings on those motions from the district court. Similar

claims are generally treated as abandoned and therefore not reviewable on appeal. See, e.g., United

States v. Harris, 165 F.3d 1062, 1066 (6th Cir. 1999) (treating the appellant’s failure to request a

ruling on a discovery motion at trial or at the final pretrial conferences as abandonment of the

claim on appeal); see also United States v. Franklin, 197 F.3d 266, 270 (7th Cir. 1999) (stating

that a defendant faces waiver if he fails to renew a pretrial motion that the trial court has not ruled

on). And with good reason: “motions appealed in this fashion . . . [may] encourage parties to cache

unanswered motions and, by doing so, disrupt the efficient function of the judicial process.”


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No. 19-3591, United States v. Hagar


Franklin, 197 F.3d at 270. Thus, “[i]f a motion is not acted upon, a litigant had better renew it.

He may not lull the judge into thinking it has been abandoned and then, after he has lost, pull a

rabbit out of his pocket in the form of the forgotten motion.” Id. (quoting United States v. Taglia,

922 F.2d 413, 416 (7th Cir. 1991)).

        We agree with the government that “failing to request and obtain rulings on such [raised-

but-unruled-upon] claims is the functional equivalent of failing to bring the claims in the first

place,” and such claims are therefore waived.2 Moreover, plain error review is unavailable because

“a defendant whose trial does not begin on time is deemed to have waived the right to move for

dismissal.” United States v. Brown, 498 F.3d 523, 529–30 (6th Cir. 2007) (quoting Zedner v.

United States, 547 U.S. 489, 494 (2006)).

        Even if we ruled on Hagar’s claims he would still lose. Hagar’s first speedy trial claim is

premised on the misunderstanding (based on a scrivener’s error) that he was arrested by federal

authorities on July 7, 2016.3 But Hagar could not have been in federal custody on July 7. Hagar

was arrested by Oregon state authorities in June 2016. He remained in state custody until his initial

appearance in federal court on August 2, after the Marshals’ Service executed the federal writ on

August 1. On August 2, Hagar was merely in the temporary custody of the Northern District of

Ohio, pursuant to the writ of habeas corpus ad prosequendum. See United States v. Munro, 436

U.S. 340, 362 (1978); Stewart v. Bailey, 7 F.3d 384, 389 (4th Cir. 1993). The Speedy Trial clock

was still not triggered since “only federal arrest, as distinct from state arrest, triggers the

protections of the Speedy Trial Act.” United States v. Copley, 774 F.2d 728, 730 (6th Cir. 1985).




2
 In contrast, at the trial’s outset, Hagar requested a ruling on his motion in limine to preclude firearms evidence.
3
 Perhaps this occurred because Hagar’s initial appearance was originally scheduled for July 7, 2016. That did not
happen, however.

                                                        -9-
No. 19-3591, United States v. Hagar


In any event, Hagar was indicted 23 days later, on August 24, 2016, within 30 days. See 18 U.S.C.

§ 3161(b).

         Hagar’s second speedy trial act claim also falls flat. First, it is different from and

contradictory to the argument he made before the district court. There, Hagar argued that his

speedy trial waivers were based on his mistaken belief that the government had evidence of certain

emails that created jurisdiction for the district court. On appeal, Hagar claims that the district court

should have dismissed the superseding indictment under the Speedy Trial Act because he did not

execute a speedy trial waiver when the superseding indictment was filed and more than 70 days

elapsed between September 19, 2018 and February 26, 2019. We can therefore refuse to consider

Hagar’s argument. See New Hampshire v. Maine, 532 U.S. 742, 749–51 (2001). Second, Hagar

forgets that he himself requested a continuance after the government filed the superseding

indictment on September 11.

         Even if we found a Speedy Trial Act violation, we would not dismiss the indictment with

prejudice. Hagar’s offenses were extremely serious. Hagar himself contributed to much of the

delay in this case by filing numerous continuance motions and a request for new counsel. Hagar

also has not shown actual prejudice from the delay such as loss of evidence, and there is not a

whiff of prosecutorial bad faith. See Sylvester v. United States, 868 F.3d 503, 512 (6th Cir. 2017)

(identifying the three factors this court considers when deciding to dismiss an action with or

without prejudice). Thus, even assuming a Speedy Trial Act error, the government could re-indict

Hagar.

                                          B. Venue Claim

         On appeal Hagar contends that the Northern District of Ohio was an improper venue and

that the district court “did not have jurisdiction to impose a criminal judgment against him”



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No. 19-3591, United States v. Hagar


because he did not send the emails to Ohio and did not know that they would be forwarded by

individuals or automatically re-routed to the Eaton headquarters in Beachwood, Ohio, or the

Goodyear Headquarters in Akron, Ohio. Hagar asserts that he should have been prosecuted in

Oregon.

         Hagar has a right to be tried in the state and district where he committed his crimes. See

U.S. Const, art. III, § 2, cl. 3; U.S. Const, amend. VI; Fed. R. Crim. P. 18. But criminal offenses

“begun in one district and completed in another,” may be “inquired of and prosecuted in any

district in which such offense was begun, continued, or completed.” 18 U.S.C. § 3237(a); see also

United States v. Brika, 416 F.3d 514, 527 (6th Cir. 2005) (applying a “substantial contacts” venue

test).

         Defects in venue generally must be asserted before trial. United States v. Grenoble,

413 F.3d 569, 573 (6th Cir. 2005). A court may not consider an untimely venue claim unless a

defendant shows “good cause” for his untimeliness. Fed. R. Crim. P. 12(c)(3). However, if a

venue defect is not apparent on the face of the indictment, a defendant may bring that challenge in

a motion for acquittal at the close of the government’s case. See United States v. Ramer, 883 F.3d

659, 682 (6th Cir. 2018); United States v. Lozoya, 920 F.3d 1231, 1238 (9th Cir. 2019). If the

venue challenge is properly preserved in the Rule 29 motion, we review the trial court’s denial of

that motion “in the light most favorable to the prosecution.” Grenoble, 413 F.3d at 572.

         Hagar did not bring a pre-trial change of venue motion, and he did not try to show “good

cause” for that failure. He merely mentioned venue in his second speedy trial motion. He has

therefore failed to preserve any facial challenge to venue. Grenoble, 413 F.3d at 573; Fed. R.

Crim. P. 12(b)(3)(A)(i) and 12(c)(3).




                                                -11-
No. 19-3591, United States v. Hagar


        In his Rule 29 motion for judgment of acquittal, Hagar argued that the district court did not

have jurisdiction over this case because the emails and correspondence occurred outside of the

Northern District of Ohio and suggested that the case could only be tried in Oregon. He did not

argue for a judgment of acquittal on venue grounds. The two concepts are distinct. See, e.g.,

United States v. Obak, 884 F.3d 934, 936–37 (9th Cir. 2018). He therefore forfeited the venue

argument. See United States v. Dandy, 998 F.2d 1344, 1356–57 (6th Cir. 1993) (holding that when

a defendant raises specific arguments in a Rule 29 motion, he forfeits arguments not made).

        And, even if he had not forfeited his venue claim,4 it would fail because one of the victims,

C.B., worked in Beachwood, Ohio at Eaton’s headquarters. Hagar sent threatening emails to

C.B.’s Eaton email address. She received and reviewed them at her office in Beachwood, Ohio.5

Thus, venue was proper because the emails were sent from Oregon to C.B. in the Northern District

of Ohio. See United States v. Jeffries, 692 F.3d 473, 483 (6th Cir. 2012), abrogated on other

grounds by Elonis v. United States, 135 S. Ct. 2001 (2015) (holding that venue was proper in the

Eastern District of Tennessee, where victims received threatening YouTube video via the internet

sent from the Western District of Tennessee); see also United States v. Singer, 782 F.3d 270, 278

(6th Cir. 2015), abrogated on other grounds by Musacchio v. United States, 136 S. Ct. 709 (2016)

(holding that in a mail fraud case venue is proper where the mail was sent or received).

        Further, our “substantial contacts” test is also satisfied. See Brika, 416 F.3d at 527. “That

test takes into account a number of factors—the site of the defendant’s act, the elements and nature

of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for

accurate fact finding.” Id. (cleaned up). Eaton and Goodyear are both headquartered in the



4
 The government acknowledges that it is possible to view Hagar’s “jurisdictional” challenge as raising venue.
5
  Additionally, Count 1 of the superseding indictment referenced those messages because R.G., the cyberstalking
victim, was related to C.G.

                                                     -12-
No. 19-3591, United States v. Hagar


Northern District of Ohio and dealt with the effect of Hagar’s actions from their respective Ohio

headquarters. Thus, the “locus of the effect” of Hagar’s conduct was felt in both Oregon and the

Northern District of Ohio. See id. Several of the witnesses and much of the evidence was also

located in Ohio.

       That Hagar did not know his messages were “re-routed” or forwarded to the Northern

District of Ohio is irrelevant. See United States v. Houston, 683 F. App’x 434, 438 (6th Cir. 2017)

(observing, in a case involving interstate threats, that the “route” the defendant’s threats took after

he pronounced them were relevant to determining where “he would be subject to prosecution,”

regardless of the defendant’s knowledge that the communications would be routed across state

lines). That C.B. did not see all of the messages because Eaton’s security office shielded her from

them also does not matter. Cf. Jeffries, 692 F.3d at 483 (holding that the interstate threats statute

“prohibits a communication containing any threat regardless of whether the threat reaches the

target”) (cleaned up). In short, the government’s evidence easily satisfied the preponderance of

evidence standard that venue was proper in the Northern District of Ohio. See Grenoble, 413 F.3d

at 572 (a district court’s decision to deny a properly preserved venue motion is reviewed de novo,

and the government must show by a preponderance of evidence that venue was proper).

                             C. Firearms and Ammunition Evidence

       During the hearing on Hagar’s motion in limine concerning the firearm evidence obtained

from his residence, the government explained that the evidence

       basically . . . goes to one of the intent elements of the stalking statute which requires
       the intent to kill, injure, harm, intimidate. It goes directly to that in preparation for
       the plan to carry that out to have that intent . . . . It also goes to establishing whether
       or not these are true threats under [18 U.S.C.§.] 875 and whether they were enacted
       with a purpose . . . to threaten or injure . . . .

In two of the government’s exhibits, Exhibits 128 and 129, Hagar specifically threatened to shoot

people. The court overruled Hagar’s motion.
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No. 19-3591, United States v. Hagar


       A district court’s evidentiary rulings are reviewed for abuse of discretion. See United

States v. Ashraf, 628 F.3d 813, 826 (6th Cir. 2011). Admission of the firearms and ammunition

found in Hagar’s residence was not an abuse of discretion because the evidence was directly

relevant to the elements of the cyberstalking charge and the interstate threats charges. As to the

interstate charges, Hagar sent emails to the victims stating that he intended to shoot them.

Possession of firearms and ammunition was direct evidence that his threats to shoot his victims

were “true threats” to injure and not “merely idle or careless talk.” See 18 U.S.C. § 875(c); United

States v. Howard, 947 F.3d 936, 943 (6th Cir. 2020). Hagar’s ability to carry out his threats to

shoot people was certainly a fact “of consequence in determining” whether his communications

were true threats. See Fed. R. Evid. 401. Violent threats go hand-in-hand with firearms and

ammunition. See, e.g., United States v. Newell, 309 F.3d 396, 401 (6th Cir. 2002) (holding that

the defendant’s possession of firearms made his threats to carry out his violent threats “more than

mere puffery”) (cleaned up).

       This is equally true for the cyberstalking count. That count required the government to

prove that Hagar “engaged in a course of conduct with the intent to kill, injure, harass, or

intimidate” R.G. or members of her family. Hagar threatened to hurt R.G. and others. He also

made handwritten notes about R.G.’s family. The possession of instruments to carry out such

threats is certainly relevant to the question of intent. See United States v. Walker, 665 F.3d 212,

230 (1st Cir. 2011) (“murder kit” containing a knife, rubber gloves and duct tape was “unarguably

relevant” to show intent in interstate stalking case).

       Any prejudicial effect to Hagar did not outweigh its probative value. See Fed. R. Evid.

403.   Hagar barraged his victims with extremely threatening communications, which they

perceived as real, as reflected by the security measures they took. The firearms and ammunition



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No. 19-3591, United States v. Hagar


provided direct evidence that the victims’ perception that Hagar meant what he said was not

unfounded.

                                                D. Stalking Order

         Hagar’s cyberstalking charge included a specification that he committed that offense while

“in violation of a protection order as that term is defined by” 18 U.S.C. § 2266(5). Section 2266(5)

defines a protection order to include “any injunction, restraining order . . . issued by a civil or

criminal court for the purpose of preventing contact or communication with or physical proximity

to, another person, including any temporary or final order . . . .” 18 U.S.C. § 2266(5) (emphasis

added). Hagar contends that the district court should have granted his motion for judgment of

acquittal because the temporary stalking order was not valid under Oregon law. He claims that

the temporary stalking order was not valid because he did not receive a copy of the petition when

he was served with the temporary order, as required by ORS § 30.866(2). See ORS § 30.866(2)

(stating that “[t]he petition and the temporary order shall be served upon the respondent with an

order requiring the respondent to personally appear before the court to show cause why the

temporary order should not be continued for an indefinite period”).

          Notwithstanding, the face of the temporary order, which Hagar admits he received,

informed him that it “remained in effect” as of May 5, 2016, pending adjudication of its

“indefinite” status. M.M., the Oregon prosecutor Hagar threatened, testified that temporary

protective orders “will always stay in place” in the meantime.6 Moreover, the plain language of

§ 2266(5) includes “any temporary . . . order issued by a civil or criminal court.” L.E.A. v. Taylor

does not support Hagar’s argument. It holds simply that a defendant must receive the temporary



6
  M.M. explained that had Hagar failed to receive the petition along with the temporary protective order, “[h]is remedy
would have been to show up in court at the date and time listed on the order, and ask the Court for the petition and tell
the court . . . [that] service was deficient” and seek an extension.

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No. 19-3591, United States v. Hagar


order and underlying petition before a court may issue a final protective order. 377 P.3d 692, 693

(Or. App. 2016).

          Hagar does not otherwise argue sufficiency of the evidence, nor should he. The record

established that (1) R.G. obtained a temporary stalking protective order on May 5, 2016; (2) the

police served him with it on May 9; (3) the order directed Hagar to “stop any contact” and to not

“attempt to make contact” with R.G.; (4) Hagar was ordered to appear on June 3 for a show cause

hearing; and (5) the temporary order clearly stated that it “remained in effect” from May 5, 2016,

pending the hearing on June 3, 2016. Hagar contacted R.G. many times after being served with

the temporary protective order, including the June 2 SHOOT email. Because Hagar threatened

R.G. after being served with the temporary protective order, his Rule 29 motion was properly

denied.

                                        E. Sentencing Issues

          We review criminal sentences for procedural and substantive reasonableness. Gall v.

United States, 552 U.S. 38, 51 (2007).

                                   1. Procedural Reasonableness

          Hagar claims that the district court erred in applying a six-level enhancement pursuant to

U.S.S.G. § 2A6.1(b)(1) because he never intended to carry out any of the threats. In support he

points to his trial testimony stating that he never intended to act on his threats and sent the messages

simply to scare his victims because “[he] was frustrated by that time.” Hagar also argues that he

should not have received a two-level enhancement under USSG § 2A6.1(b)(3) because he did not

commit an offense in violation of a lawful court protection order. These are both procedural-

reasonableness challenges. See United States v. Rayyan, 885 F.3d 436, 440–41 (6th Cir. 2018) (a

claim that the district court improperly applied a sentencing enhancement is a claim that the court



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No. 19-3591, United States v. Hagar


incorrectly calculated the applicable advisory Guidelines range, which is a claim of procedural

error).

          Section 2A6.1(b)(1) provides that the base level be increased by six “if the offense involved

any conduct evidencing intent to carry out [the charged] threat.” USSG § 2A6.2(b)(1). Section

2A6.1(b)(3) provides for a two-level increase “if the [threats] offense involved the violation of a

court protection order.” USSG § 2A6.1(b)(3). The § 2A6.1(b)(1) enhancement can only be

applied if the defendant engaged “in some overt conduct in addition to making the threats.”

Newell, 309 F.3d at 404.7

          Regarding the § 2A6.1(b)(1) enhancement, the district court found that “from listening to

all the testimony here . . . not only numerous e-mails and other threats, but the fact of his actions

and activities of driving to places where he knew he was not to be, and all under Section 2A seems

to me to fit right into this enhancement.” The court added that “just by the fact that he was

apprehended before any of these things could be acted out is probably not dispositive . . . but . . .

there’s plenty of evidence to show that this enhancement applies.”

          Ample evidence supports the district court’s finding that Hagar had the intent to carry out

his threats. As discussed above, Hagar equipped himself with the means to carry out the threats

contained in his rapid-fire invectives. More disturbing, Hagar conducted reconnaissance on his



7
 As Hagar correctly notes, in Newell, the defendant purchased the handgun the same day that he made the threat.
Newell, 309 F.3d at 401. That factor is not dispositive, as reflected by the analysis in Newell itself, which relied on a
Seventh Circuit decision, a case much like our own:
          In United States v. Carter, 111 F.3d 509 (7th Cir.1997), the Seventh Circuit held that the defendant's
          sentence was properly enhanced based upon his intent to carry out his threats where the defendant
          had in his possession a Colt .45 semi-automatic pistol and three loaded, matching magazines at the
          time of his arrest. Id. at 513. The court concluded that the “fact that [the defendant] actually owned
          and carried firearms shows an easy ability to carry out his threatened violence, making his threats
          more than mere puffery.” Id. at 514 (citations omitted). In addition, the court found the enhancement
          to be supported by the fact that, even though the defendant lived in a different city, he knew where
          the victim lived and how to find her. Id.
Id.

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No. 19-3591, United States v. Hagar


targets, making unwelcome visits to his former workplaces, and, even more bone-chilling,

collecting location information on his targets. The six-level increase was warranted. The two-

level increase under USSG § 2A6.1(b)(3) was equally justified because, as discussed above, Hagar

committed the offense of cyberstalking while subject to a valid temporary protective order.

                                2. Substantive Reasonableness

       Hagar also claims that the 180-month sentence imposed, which was 19 percent above the

top of the advisory Guidelines range, is “too long.” Such substantive reasonableness challenges

are reviewed for abuse of discretion. See Rayyan, 885 F.3d at 442.

       The district court made its reason for the above-Guidelines sentence clear: a 180-month

sentence was necessary to protect the public from Hagar. The court’s concern for the public’s

safety is self-evident. The district judge, along with the jury, heard voluminous evidence of

Hagar’s enmity towards former coworkers, the supplies he possessed to carry out his bitter

intentions, and his efforts to find several of his targets. And, as the district court found after

listening to Hagar’s testimony, Hagar displayed no remorse. Given that we live “in a day and time

when . . . workplace shootings appear to be commonplace” and all Americans live in “a culture of

fear,” the district court’s decision to vary upwards from the Guidelines range to 180 months was

prudent to say the least.

       The court also considered the effect on Hagar’s victims; the emotional trauma, past,

present, and future, as well as the financial cost to Eaton and Goodyear. See United States v.

Bowker, 372 F.3d 365, 390–91 (6th Cir 2004), vacated on other grounds, 125 S. Ct. 1420 (2005)

(holding that an above-Guidelines sentence under USSG § 5K2.3 for “extreme psychological

injury” to victim in stalking case was substantively reasonable). The district court expressed a




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No. 19-3591, United States v. Hagar


particular concern for R.G., noting that she was “sentenced to a lifetime of psychological trauma

and damage.”

       In short, this “reasoned judgment” by the district court to sentence Hagar to 180 months’

imprisonment, far from the public and his victims, is entitled to deference. See United States v.

Johnson, 934 F.3d 498, 502 (6th Cir. 2019).

                                              III.

       Hagar’s conviction and sentence are AFFIRMED.




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