Requirement of True Threats in Federal Cyberstalking Prosecutions Under 18 U.S.C. §2261A(2)(B)

Introduction

United States v. Dennis, 23-6194 (2d Cir. Mar. 21, 2025) is a Second Circuit decision clarifying the interplay between federal cyberstalking law (18 U.S.C. § 2261A(2)(B)) and the First Amendment. Willie Dennis, a former law‐firm partner, sent thousands of harassing emails and texts to three ex-colleagues after his ouster from K&L Gates LLP. He was convicted on three counts of cyberstalking. On appeal, Dennis argued that his messages were protected speech unless they amounted to “true threats,” and that jury instructions and evidentiary rulings violated his rights. The Court of Appeals affirmed two convictions (Counts One and Four) for communications amounting to true threats, reversed one conviction (Count Two) for insufficient threat content, and rejected Dennis’s ancillary arguments.

Summary of the Judgment

Counts One and Four (targeting John Bicks and Calvina Bostick): Evidence was sufficient to show Dennis’s thousands of messages conveyed and intended “true threats” of bodily harm, thus falling outside First Amendment protection. Convictions affirmed.
Count Two (targeting Eric Cottle): The 23 messages sent in one night lacked an objectively threatening context of physical harm. Conviction reversed for insufficiency.
Jury Instructions: Dennis did not timely object to the omission of a true-threat charge. Even if plain error, the overwhelming evidence of true threats for Counts One and Four forecloses relief.
Evidentiary Rulings: Exclusion of questions about state prosecutors’ inaction and police visits to Dennis’s home was within the court’s discretion and did not violate confrontation rights.
Court Remarks: Judge’s on-the-record explanation of Dennis’s pro se status did not prejudice the jury or undermine trial fairness.

Analysis

Precedents Cited

Jackson v. Virginia (1979): Establishes de novo review of sufficiency—whether any rational jury could convict viewing evidence in the government’s favor.
Virginia v. Black (2003): Defines “true threats” as serious expressions of intent to commit unlawful violence, unprotected by the First Amendment.
Elonis v. United States (2015): Affirms objective “would‐any‐reasonable‐recipient” test for true threats, but requires subjective mens rea.
Counterman v. Colorado (2023): Holds First Amendment tolerates only true threats with at least reckless awareness of threatening nature.
United States v. Turner (2d Cir. 2013) & United States v. Malik (2d Cir. 1994): Recognize implied threats (scriptural allusions, implicit menace) can be true threats.
United States v. Yung (3d Cir. 2022), Sryniawski (8th Cir. 2022), Fleury (11th Cir. 2021), Wills (4th Cir. 2003): Construe § 2261A narrowly to require proof of true threats or other unprotected speech categories.
Fed. R. Evid. 402 & confrontation-clause cases (e.g., Alvarez v. Ercole): Govern relevance and cross-examination limits.

Legal Reasoning

The court held that § 2261A(2)(B)—criminalizing electronic courses of conduct intended to “harass, intimidate, or cause substantial emotional distress”—must be read consistently with the First Amendment. Because “harass” and “intimidate” can embrace innocuous or merely annoying speech, the statute requires proof that the defendant intended to convey “true threats” of physical harm. True threats fall outside constitutional protection when an ordinary reasonable recipient would interpret them as a serious expression of intent to injure and the defendant subjectively understood the threatening character (at least recklessly).

On Counts One and Four, Dennis’s messages to Mr. Bicks and Ms. Bostick invoked deadly scriptural retribution, death, mass shootings, explicit warnings to “sleep with one eye open” and “toast,” and threats against family members and children, causing both victims severe emotional distress. A reasonable jury could—and must—find these to be true threats.

On Count Two, the June 6–7, 2019 messages to Mr. Cottle were professionally charged and emotionally annoying but lacked any reference to bodily harm or death. Suggesting “I will find you” in the context of breakfast invitations did not objectively convey a threat of violence. The conviction was reversed for insufficient evidence of true threats.

Dennis’s challenges to jury instructions, evidentiary rulings, and the judge’s remarks were considered under plain-error and abuse-of-discretion standards. None warranted reversal given the compelling evidence of true threats on Counts One and Four and the trial record as a whole.

Potential Impact on Future Cases

True-Threat Element Confirmation: Federal cyberstalking prosecutions under § 2261A(2)(B) must allege and prove true threats when speech is implicated.
Model Jury Instructions: Courts will need to add clear definitions of “true threat” to intent (“harass”/“intimidate”) and to causation (“substantial emotional distress”) elements.
First Amendment Safeguards: Speech that causes worry or distress but does not threaten violence remains protected.
Appellate Review: Unpreserved instructional errors will be subject to plain-error review; sufficiency of true-threat evidence will often prove dispositive.

Complex Concepts Simplified

True Threat: A statement that a reasonable person would interpret as a serious promise or intent to commit violence, coupled with the speaker’s awareness of that effect.

Course of Conduct: Two or more electronic communications (emails, texts) sent with a single intent (here, to threaten) over a period of time.

Sufficiency Review (Jackson Standard): On appeal, we ask whether any rational jury could have convicted viewing the evidence most favorably to the government.

Plain-Error Review: If a defendant fails to object at trial, we will reverse only for (1) an obvious error, (2) under current law, (3) affecting substantial rights (likely a different outcome), and (4) undermining fairness or reputation of judicial proceedings.

Conclusion

United States v. Dennis establishes that federal cyberstalking prosecutions under 18 U.S.C. § 2261A(2)(B) must prove “true threats” when the defendant’s course of electronic conduct implicates speech. The decision reaffirms First Amendment protections for nonviolent harassment and clarifies that only threats of bodily harm, actual or implied, fall outside those protections. Future trials will require precise jury instructions on true threats, and appellate courts will focus on whether the evidence compels the finding of a true threat. This ruling ensures robust protection of free speech while preserving the government’s power to punish genuine threats delivered through digital media.