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United States v. Cardozo

United States District Court, D. Massachusetts

June 25, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
BYRON CARDOZO, Defendant.

          MEMORANDUM AND ORDER ON CARDOZO'S MOTION TO DISMISS INDICTMENT

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE.

         Defendant 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].

         I. BACKGROUND

         On 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].

         Count 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.

         Jane 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. ¶¶ 8-10.

         The 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.

         The 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.

         II. STANDARD OF REVIEW

         Federal 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)).

         III. ...


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