United States District Court, D. Delaware
C. Weiss, Acting U.S. Attorney, Shawn Weede, Assistant U.S.
Attorney, and Elizabeth L. Van Pelt, Assistant U.S. Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Wilmington, DE
Attorneys for Plaintiff.
A. Bostic, Federal Public Defender, and Eleni Kousoulis,
Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Wilmington, DE Attorneys for Defendant.
U.S. District Judge
Ho Ka Terence Yung ("Yung" or
"Defendant") is charged with one count of
cyberstalking, in violation of 18 U.S.C. § 2261A(2)(B).
(See D.I. 3) Yung moves to dismiss the indictment,
contending § 2261A(2)(B) violates the First Amendment of
the United States Constitution. (See D.I. 37) The
motion is fully briefed (see D.I. 38, 40, 43) and
the Court heard argument on January 22, 2018. For the reasons
discussed below, the Court will deny Yung's motion.
to Federal Rule of Criminal Procedure 12(b)(3)(B), a
defendant may move to dismiss an indictment for failure to
state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v).
Accordingly, Rule 12(b)(3)(B) "allows a district court
to review the sufficiency of the government's pleadings
to ... ensur[e] that legally deficient charges do not go to a
jury." United States v. Huet, 665 F.3d 588, 595
(3d Cir. 2012) (alteration in original; internal quotation
marks omitted). "An indictment is defective if it
alleges [a] violation of an unconstitutional statute."
United States v. Dean, 670 F.Supp.2d 457, 458 (E.D.
Va. 2009); see also United States v. Boffa, 513
F.Supp. 444, 459-64 (D. Del. 1980) (resolving motion to
dismiss indictment where defendant alleged statute was
unconstitutionally vague, overbroad, and unconstitutional as
seeks dismissal of the indictment based on his contention
that § 2261A(2)(B) is facially invalid under the First
Amendment. (See D.I. 38, 43) The First Amendment
provides, "Congress shall make no law ... abridging the
freedom of speech." U.S. Const, amend. I. "There
are two quite different ways in which a statute or ordinance
may be considered invalid 'on its face' [under the
First Amendment] - either because it is unconstitutional in
every conceivable application, or because it seeks to
prohibit such a broad range of protected conduct that it is
unconstitutionally 'overbroad.'" Members of
City Council of City of L.A. v. Taxpayers for Vincent,
466 U.S. 789, 796 (1984). Here, Yung raises only the
"second type of facial challenge, " arguing that
§ 2261A(2)(B) is facially overbroad. (See D.I.
38 at 1; see also United States v. Stevens, 559 U.S.
460, 473 (2010) (internal quotation marks
overbreadth doctrine prohibits the Government from banning
unprotected speech if a substantial amount of protected
speech is prohibited or chilled in the process."
Ashcroft v. Free Speech Coal, 535 U.S. 234, 255
(2002). Under the "First Amendment overbreadth doctrine,
a statute is facially invalid if it prohibits a substantial
amount of protected speech." United States v.
Williams, 553 U.S. 285, 292 (2008). When overbreadth is
alleged, "[t]he overbreadth claimant bears the burden of
demonstrating, from the text of [the law] and from actual
fact, that substantial overbreadth exists." Virginia
v. Hicks, 539 U.S. 113, 122 (2003) (second alteration in
original; internal quotation marks omitted).
overbreadth doctrine accords standing to an individual, like
Yung, to challenge the constitutionality of a statute's
application to individuals other than himself. However, as an
exception to the traditional rules of standing, "the
First Amendment overbreadth doctrine, like most exceptions to
established principles, must be carefully tied to the
circumstances in which facial invalidation of a statute is
truly warranted." New York v. Ferber, 458 U.S.
747, 769 (1982). The Supreme Court has stressed that such a
consequence will be justified only when a statute's
overbreadth is "substantial,
not only in an absolute sense, but also relative to the
statute's plainly legitimate sweep."
Williams, 553 U.S. at 292 (emphasis in original).
Moreover, "overbreadth claims, if entertained at all,
have been curtailed when invoked against ordinary criminal
laws that are sought to be applied to protected
conduct." Broadrick v. Oklahoma, 413 U.S. 601,
613 (1973). Accordingly, the "strong medicine" of
invalidation for overbreadth must be used "sparingly and
only as a last resort." Id.
first step in overbreadth analysis is to construe the
challenged statute; it is impossible to determine whether a
statute reaches too far without first knowing what the
statute covers." Williams, 553 U.S. at 293. The
second step is for the Court to then determine "whether
the statute, as we have construed it, criminalizes a
substantial amount of protected expressive activity."
Id. at 297.
the statute being challenged as unconstitutionally overbroad
is § 2261A(2)(B), which prohibits ...