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The U.S. Court of Appeals for the 1st Circuit has rejected the appeal of a criminal defendant in a case that raised three issues of first impression involving interstate stalking, cyberstalking and threats by mail. On Nov. 23, a unanimous panel in U.S. v Walker rejected Jeffrey Martin Walker’s appeal of his August 2009 conviction on counts of stalking — and mailing a threatening letter targeting — his wife. He was sentenced to 11 years and five months in prison in December 2009. The 1st Circuit rejected Walker’s argument that the interstate stalking statute applies only to injuring or harassing acts that occur during or after interstate travel. The court also held that the charge for mailing a threatening letter can apply even when the letter threatens someone other than the addressee. Finally, the court held that a defendant’s failure to challenge a perceived indictment error before the trial is a waiver according to the Federal Rules of Criminal Procedure. Walker and his wife, Amy, moved from Michigan to Puerto Rico with their preteen son in 2006 so that Amy Walker could accept a new job. After they split up, the son lived with Jeffrey Walker. In December 2007, Amy Walker obtained an order from Puerto Rico family court preventing them from returning to Michigan. Jeffrey Walker ignored the court order, and the court issued a warrant for his arrest. He also obtained a temporary custody order from a Michigan court. As described in the 1st Circuit opinion, Amy Walker began receiving threatening e-mails replete with curse words from the son’s e-mail account. The son later testified that his father had written the e-mails, a conclusion with which Amy Walker agreed, based on the presence of her husband’s habitual misspellings and turns of phrase. Jeffrey Walker’s brother also heard him threaten to blow his own son’s head off with a shotgun. Amy Walker then flew to Michigan, obtained a custody order, and then returned to Puerto Rico. Amy Walker knew Jeffrey Walker’s e-mail password and began to monitor his account. During this time, she was alarmed by several of his communications. First, he contacted a militaristic Web site for tips on using a knife in close combat. Second, he asked the author of a religious book about whether a man could be saved after committing premeditated murder. Third, in the spring of 2008 he corresponded with a private investigator in Puerto Rico but ultimately didn’t hire the person. In April 2008, Jeffrey Walker called Amy Walker’s sister and described how he would murder Amy and his son if he lost the custody battle. Amy Walker’s sister told her about the call. That summer, during a long online chat with a counselor at a Christian counseling center, Jeffrey Walker stated that he could have Amy Walker killed for “a few hundred dollars.” The day before his statements to the Christian center counselor, Jeffrey Walker bought a one-way airline ticket to Puerto Rico. Amy Walker contacted authorities when she saw Jeffrey Walker’s trip information in his e-mail. In August 2008, FBI agents arrested Jeffrey Walker at the Luis Muñoz Marín International Airport and initially charged him with criminal contempt for his earlier defiance of the Puerto Rico family court orders. While he was in prison, Jeffrey Walker wrote a letter to Amy urging her to pray in case God harmed her or their son. He also sent a letter to a friend that stated that a fellow inmate offered to kill Amy for him and Jeffrey did not “know if [he] said yes to [the fellow inmate] or not.” Jeffrey Walker also wrote that “[i]f a man or woman would have done what my wife and brother did to me, I would have killed them.” The friend viewed these comments as a threat on Amy’s life and told her about them. After a 12-day trial in the District of Puerto Rico, a jury convicted Jeffrey Walker of one interstate stalking count, four cyberstalking counts and one “threatening letter” count. Senior Judge Bruce Selya wrote the 1st Circuit opinion, joined by Judges Michael Boudin and Kermit Lipez. Selya first rejected Jeffrey Walker’s claim that the case should have been transferred because Amy Walker is a court reporter in the district: “In idiosyncratic situations like this one, it is the trial judge’s informed discretion, not the view from a more remote appellate perch, that must control.” Selya also noted that Walker never requested cautionary instructions to the jury and that Puerto Rico was a reasonably convenient forum because the victims and several key witnesses live there. On the interstate stalking statute, Selya, wrote: “The appellant theorizes that the statute applies only when some injuring or harassing act takes place during or after the interstate travel. If this is so, he cannot be guilty of the charged crime because he was detained as soon as he landed in Puerto Rico and the government offered no proof that he did anything amiss during the course of his travel.” But, Selya observed, when a defendant has repeatedly threatened harm to victims and then crosses state lines with the intention to inflict harm, “it would strain credulity to think that Congress meant to hold the defendant harmless until he took some further step to carry out his threat. Giving the statute its plain meaning, we hold that one way a defendant can engage in interstate stalking is by traveling across state lines with the intent to harm or harass another and, as a result of that travel, placing the target of his malevolence in reasonable fear of harm.” On the threatening letter count, Selya noted that “the jury found the appellant guilty of this crime with respect to the letter that he sent to [his friend from prison]. In the appellant’s view, this epistle could not have triggered the statute because it did not contain threatening language and, in all events, was not mailed to the person allegedly threatened (namely, Amy).” But, Selya, observed, “the test…is not whether a communication contains a threat to the addressee. Rather, the statute criminalizes the mailing of a letter that contains a threat either to ‘the person of the addressee or of another.’” Selya next addressed whether Walker’s failure to challenge an indictment error before the trial was a waiver. Walker’s appeal claimed the interstate stalking count is duplicitous because it listed both Amy Walker and his son as intended victims. He also claimed that cyberstalking should have been a single “course-of-conduct” offense and that separating it into various counts went against the rule against multiplicity. Selya began by noting that waiver usually involves the intentional relinquishment of a known right whereas “forfeiture” describes an unexplained failure to assert a right in a timely fashion. The difference is that waived objections, unlike forfeited objections, are not reviewable for plain error on appeal, Selya observed. He noted that it’s an open question in the 1st Circuit whether the words “waiver” and “waives” in the relevant Federal Rule of Criminal Procedure should be taken literally. Selya observed that the 3d, 6th, 7th, 9th and 10th circuits have ruled that a party’s failure to challenge the indictment before trial bars appellate review of the defaulted challenge. But the 4th, 5th and D.C. circuits have found that such defaults are forfeitures that require plain error review. Selya wrote that the 1st Circuit sided with the majority of circuits because it believes the rule “says what it means and means what it says.” He noted that the circuit gave great weight to the rule’s plain language, particularly because Congress amended it in 2002 after the U.S. Supreme Court clarified the distinction between waiver and forfeiture. “It strikes us as manifestly unfair for a defendant to sit silently by, take his chances with the jury, and then be allowed to ambush the prosecution through a post-trial attack.” Selya further rejected Walker’s argument that the lower court should not have admitted testimony about his prior threats to family members or violent behavior. He wrote that “evidence of prior bad acts may be admissible if it has special relevance — that is, if it tends to prove a material fact apart from a mere propensity to behave in a certain way — as long as its probative value is not substantially outweighed by any unfairly prejudicial effect.” Selya similarly rejected Walker’s arguments about testimony from several parties that he considered inadmissible lay opinion, including the private investigator or online counselor’s views about his behavior or statements. Because Walker’s didn’t object to testimony from those two at the time, the standard of review of is plain error and the testimony survives, Selya noted. Selya also dismissed Jeffrey Walker’s claim that the court should not have allowed Amy Walker’s testimony. “While the victim’s subjective view is not controlling, it is assuredly relevant,” Selya wrote. “Thus, the district court did not abuse its discretion in permitting Amy to explain why certain of the appellant’s words and deeds frightened her.” Selya also determined that an FBI agent’s opinion that a bag found in Jeffrey Walker’s house that contained a knife, rubber gloves, and duct tape, was a “murder kit” was not a lay opinion. The court did hand the defendant one victory, but Selya noted that it is a situation where he “wins the battle but loses the war.” Selya found that the Walkers’ son’s testimony that police officers and a social worker in Michigan told him they were taking him from his father because of his father’s comment about blowing his son’s head off was inadmissible hearsay. “Although the trial court erred in admitting this piece of evidence, its error is not of constitutional magnitude.” In addition, the 1st Circuit found that the sentencing court’s enhancements and departures were not in error and met the test for “substantive reasonableness.” Selya also wrote that the 1st Circuit would not entertain Jeffrey Walker’s ineffective assistance of counsel argument. Assistant U.S. Attorney Marshal David Morgan of the District of Puerto Rico, who argued for the government, said he hopes the ruling will get the message out that federal law can protect victims of domestic abuse, including when there’s stalking that involves an interstate nexus. “It’s an important decision,” Morgan said. “I hope it has a positive effect on victims of domestic abuse.” Walker’s lawyer, Jonathan Shapiro, a partner at Boston’s Stern Shapiro Weissberg & Garin, said that the 1st Circuit’s construction of the interstate stalking statute “is contrary to that of every other court, including the 4th and 6th circuits, that have considered the issue, and it would lead to the absurd result that a person who traveled interstate but then abandoned his intent to harm the victim would nevertheless be guilty of an offense if the victim became afraid when she learned of the travel.” Shapiro also said that although the court recognized that serious errors were made in the case below, it chose not to deal with them by deciding that some issues were waived and that others did not satisfy the high standard of plain error review because Jeffrey Walker did not object to them. He said, “The court refuses to even consider the reason that the issues were waived and not objected to, [which is] ineffective assistance of trial counsel.” Sheri Qualters can be contacted at [email protected].

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