United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON CARDOZO'S MOTION TO
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.
Byron Cardozo (“Cardozo”) moves to dismiss the
indictment against him on the grounds that 18 U.S.C. §
2261A(2)(B) and § 875(c), as applied to him, violate the
Free Speech Clause of the First Amendment. [ECF No. 48].
August 7, 2018, a grand jury returned a two-count indictment
(the “Indictment”) against Cardozo charging him
with cyberstalking in violation of 18 U.S.C. §
2261A(2)(B) and interstate threats in violation of 18 U.S.C.
§ 875(c). [ECF No. 1 ¶¶ 23-24].
One alleges that from in or about February 2017 to in or
about August 2018, Cardozo “with intent to harass and
intimidate, used an interactive computer service . . . to
engage in a course of conduct that caused, attempted to
cause, and would be reasonably expected to cause substantial
emotional distress to Jane Doe 1 . . . in violation of 18
U.S.C. § 2261A(2)(B).” Id. ¶ 23.
Count Two alleges that on or about May 21, 2018, Cardozo
“knowingly and willfully transmitted in interstate . .
. commerce a communication containing a threat to injure the
person of another, for the purpose of issuing the threat,
knowing that it would be interpreted as a threat, and
recklessly disregarding the risk that his communication would
be interpreted as a threat . . . in violation of 18 U.S.C.
§ 875(c).” Id. ¶ 24.
Doe 1 is a photographer and writer who operated her own
website. Id. ¶¶ 2-5. In late 2016, Jane
Doe 1 published an essay which appeared in Online Magazine A.
Id. ¶ 8. In the essay, Jane Doe 1 described a
one-time sexual encounter between Cardozo, then age
seventeen, and herself, then age thirteen, which Jane Doe 1
found to be coercive and traumatic. Id. ¶¶
Indictment alleges that for approximately eighteen months
following the publication of the essay, Cardozo used various
platforms including Facebook, Twitter and the
“comment” sections of Online Magazine A and the
website of Jane Doe 1 to engage in a cyberstalking and
interstate threats campaign targeting Jane Doe 1.
Id. ¶ 6. The Indictment further alleges that in
April of 2017, Jane Doe 1 obtained an injunction against
Cardozo forbidding him from communicating with her.
Id. ¶ 7.
Indictment contains many examples of comments which Cardozo
allegedly posted to the website of Online Magazine A and the
website belonging to Jane Doe 1. Id. ¶¶
12-22. The following sample gives some sense of the basis for
the criminal charges brought in this case:
• On or about March 3, 2018, Cardozo posted a comment on
Online Magazine A that stated, in part: “[I] WILL HAUNT
YOU FOR THE REST OF YOUR PATHETIC LIFE . . . . WE ARE
WAITING.” Id. ¶ 13.
• On or about April 17, 2018, Cardozo posted a comment
on Online Magazine A that stated, in part: “we will
show you exactly what happens when you cry wolf . . . HOW
FUCKING DARE YOU YOU [sic] HAVE JUST WOKE THE DRAGON EVEN
WORSE BABY GIRL AHAHAHAHA.” Id. ¶ 20.
• On or about May 21, 2018, after a representative of
Jane Doe 1 notified legal authorities of Cardozo's
continued communications, Cardozo posted a comment on the
website of Jane Doe 1 that stated, in part: “You
fucking bitch keep it up and you will know what it means to
be assaulted.” “You are fucking done I dare you
to keep pulling this shit I FUCKING DARE YOU BITCH YOU WILL
KNOW FEAR TRUST ME BY THE TIME THIS SHIT IS OVER YOULL [sic]
BE WISHING YOU JUST IGNORED IT.” “You will
fucking find out what happens when you cry wolf bitch.”
Id. ¶ 21.
STANDARD OF REVIEW
Rule of Criminal Procedure 12(b)(3) allows a defendant to
make a pretrial motion challenging an indictment as defective
for failure to state an offense. “An indictment is
legally sufficient if it first, contains the elements of the
offense charged and fairly informs a defendant of the charge
against which he must defend, and, second, enables him to
plead an acquittal or conviction in bar of future
prosecutions for the same offense.” United States
v. Laureano-Pérez, 797 F.3d 45, 60 (1st Cir.
2015) (citations and quotation marks omitted); see
also Fed. R. Crim. P. 7(c). Although an indictment must
contain a “plain, concise and definite written
statement of the essential facts constituting the offense
charged, ” and “should be specific enough to
notify the defendant of the nature of the accusation against
him and to apprise the court of the facts alleged, ”
United States v. Berk, 652 F.3d 132, 137-38 (1st
Cir. 2011) (citations and quotation marks omitted), the
government “need not put forth specific evidence to
survive a motion to dismiss, ” United States v.
Ngige, 780 F.3d 497, 502 (1st Cir. 2015) (citing
United States v. Stewart, 744 F.3d 17, 21 (1st Cir.
2014)). “When a defendant seeks dismissal of an
indictment, courts take the facts alleged in the indictment
as true, mindful that ‘the question is not whether the
government has presented enough evidence to support the
charge, but solely whether the allegations in the indictment
are sufficient to apprise the defendant of the charged
offense.'” Id. (quoting United States
v. Savarese, 686 F.3d 1, 7 (1st Cir. 2012)).