PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, ´

Plaintiff-Appellee,

v. ¨ No. 10-5169

THOMAS CREIGHTON SHRADER,

Defendant-Appellant. ≠

Appeal from the United States District Court

for the Southern District of West Virginia, at Bluefield.

Irene C. Berger, District Judge.

(1:09-cr-00270-1)

Argued: December 9, 2011

Decided: April 4, 2012

Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion, in which Judge Motz and Judge Shedd joined.

COUNSEL

ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Charleston, West Virginia, for Appellant.

Thomas Charles Ryan, OFFICE OF THE UNITED

STATES ATTORNEY, Charleston, West Virginia, for Appellee.

ON BRIEF: Mary Lou Newberger, Federal Public

Defender, Christian M. Capece, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Charleston, West Virginia, for Appellant. R.

Booth Goodwin II, United States Attorney, Charleston, West

Virginia, for Appellee.

OPINION

WILKINSON, Circuit Judge:

Over the course of more than three decades, Thomas

Creighton Shrader harassed and intimidated D.S. and later her

husband R.S., causing them to fear for their safety and that of

their children. He stands convicted after trial of two counts of

stalking through the use of a facility of interstate commerce

and one count of being a felon in possession of a firearm.

Shrader raises multiple issues in this appeal, including the

vagueness of the stalking statute and the length of his sentence.

Accepting his contentions, however, would undermine

Congress’ efforts to protect people like D.S. and R.S. from

precisely the sort of terrifying conduct that took place in this

case. We therefore affirm.

I.

A.

Starting sometime around 1973, while still a high school

student in McDowell County, West Virginia, D.S. began a

relationship with Shrader. Over time he became increasingly

demanding and possessive, repeatedly appearing uninvited at

D.S.’s house. This led her to break off the relationship in 1975

after approximately two years. When she did so, the defendant

threatened to kill D.S.’s two nephews if she did not continue

seeing him. Around the same time, the defendant

physically assaulted D.S. at her workplace, choking her in an

elevator.

2 UNITED STATES v. SHRADER

On July 16, 1975, the defendant confronted D.S. while she

was at home with her mother, Geneva Miller, and a family

friend, Rusty Adams. D.S. refused to leave with the defendant.

Twenty minutes later, he returned to her home with a

high-powered rifle. Entering the house, he shot and killed

Rusty Adams in a side room. He next shot Geneva Miller,

who died ten days later of gangrene contracted in her wound.

D.S. ran out of the house, fleeing across the street to the home

of her neighbor, John Kowaleski. Shrader continued shooting

and wounded Kowaleski in the arm. The defendant was subdued

and arrested, and was charged in West Virginia state

court with two counts of first degree murder in violation of

W. Va. Code § 61-2-1 and one count of unlawful wounding

in violation of W. Va. Code § 61-2-9.

Shrader pled guilty to these charges on January 20, 1976,

and was sentenced to concurrent life sentences with a recommendation

of mercy on the murder charges as well as an additional

year of incarceration for the wounding offense.

Approximately a year later, Shrader escaped from prison. D.S.

and her younger sister were taken into protective custody by

the state police. Shrader was recaptured and sentenced to an

additional year of imprisonment for the escape.

During his incarceration, Shrader continued to contact D.S.

He sent approximately fifteen to twenty letters to her at the

bank where she worked, repeatedly referencing his murder of

D.S.’s friend and mother, and causing D.S. to feel severely

threatened. In 1978, the defendant filed a lawsuit against D.S.

in Mercer County, West Virginia, alleging that D.S. had

breached a promise to marry him and seeking $700,000 in

damages from her.

By this time, D.S. had married R.S. In 1979, they moved

to Texas, severing all ties with West Virginia, and took a variety

of additional precautions to ensure their safety and anonymity.

This did not deter Shrader, who wrote letters to D.S.’s

father, mother-in-law, and sister, asking whether D.S.’s fam-

UNITED STATES v. SHRADER 3

ily was involved in witchcraft, whether D.S. had ever had an

abortion, and requesting recent pictures of D.S. He alleged in

these letters that he pled guilty to the murders in 1975 to

cover up a conspiracy between himself and D.S., and threatened

that he would “convict [D.S.] of Rusties death.” In 1993,

Shrader was released from prison on parole, and was released

from parole in 1999.

Beginning on August 6, 2008, Shrader made a series of

phone calls to the unlisted number of D.S.’s Texas home.

Speaking with D.S., he identified himself and said, “I need to

talk to your kids before we die.” She denied having children,

but Shrader identified them by name. D.S. called 911, but the

local police were unable to help her, even though D.S. made

clear that she was living in terror. The defendant called back

at least four times that evening. He spoke with R.S. as well

as D.S., proclaiming to him that D.S. “is my God and I would

have done anything for my God,” and telling R.S. that he had

obtained their contact information in Texas through a Freedom

of Information Act request for letters mailed by the

parole board notifying D.S. of Shrader’s parole hearings.

As a result of these calls, D.S. became afraid for her children

to leave their home. R.S. began sleeping with a loaded

shotgun under the bed, prepared to defend his family. Shrader

persisted, obtaining a photograph of D.S.’s daughter from the

website MySpace, and attempting to call her as well. Shrader

also showed his friend Carol Miller aerial photographs of

D.S.’s home in Texas, commenting about where he could

covertly observe the home from across the street. He also formulated

a plan to send underwear to D.S.’s daughter with the

intent to anger D.S.

On October 30, 2009, R.S. received a UPS package

addressed to his wife at their Texas home. Inside was a thirtytwo

page letter from Shrader. In the letter, Shrader warned

D.S. that she had to read it “for [her] own good . . . or don’t

read and face the consequences blindly.” He reiterated his

4 UNITED STATES v. SHRADER

delusion that the murders of Rusty Adams and Geneva Miller

were part of a plot hatched by D.S.: “Your plan didn’t work

and it cost the life of your mother.” He claimed that D.S. had

aborted their child, wishing for “God to take one of your children’s

live’s in an accident to show me that you did have an

abortion.” Shrader described how he almost killed D.S. in

graphic detail:

You have failed to realize that the only reason (after

everything fell apart at your house that day), I did

not shoot you in the back that day as you ran down

the middle of the road for Kowalski’s house. Was

because I was so deeply in love with you and

believed you felt the same for me. Even though

while standing on the front porch of the house I had

the rifle raised and the cross hair’s of the scope were

dead center between your shoulder blades. Bye-bye

heart, bye-bye lungs, sternum and some ribs.

And he warned D.S. about possible physical violence against

her: “Be smart also! Realize I have never laid a finger on you

or hurt you physically. In fact I could have, like I told you

earlier in this latter, while you were running down the road.

Or on the morning that I escaped from the McDowell County

Jail.” Finally, he closed the letter with thinly-veiled threats

about the future, claiming that “It’s time to face the piper.” He

concluded that “From the date you receive this, I am allowing

two (2) weeks or 14 days to pass before I initiate my next

step.”

Understandably terrified, D.S. and R.S. contacted the FBI,

which secured a criminal complaint against Shrader and a

warrant for his arrest. On November 13, 2009, FBI agents

went to the home that Shrader shared with his aunt, Elizabeth

Jones, to execute the arrest warrant. Shrader was alone at the

house when the agents arrived. He informed Special Agent

Terry Schwartz that there were firearms in the home, but

refused to consent to a search of the premises to recover them.

UNITED STATES v. SHRADER 5

While several agents took the defendant into custody, Agent

Schwartz and other officers awaited Jones’s return. Two

hours later, she arrived, and consented to the search. In the

dining room of the home, officers found a cabinet containing

two shotguns and a rifle.

B.

Shrader was ultimately charged with two counts of stalking

via a facility of interstate commerce in violation of 18 U.S.C.

§ 2261A(2)-one alleged that he targeted D.S. and the other

that he targeted R.S.-and one count of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). The

counts were severed and two separate trials were held, first on

the firearms charge and subsequently on the two stalking

counts.

Prior to the firearms trial, Shrader moved to suppress the

firearms found in the house, arguing that the agents violated

the Supreme Court’s decision in Georgia v. Randolph, 547

U.S. 103 (2006), by soliciting consent from his aunt after he

had been arrested even though he already refused permission

for the search. The district court denied the motion, finding

that Randolph required the defendant to be present at the time

his aunt consented in order to object to the search, and that

there was “no evidence to suggest that [the agents’] intent was

to extraordinarily render Defendant away from the scene to

violate his Fourth Amendment rights.”

At the close of the firearms trial, Shrader requested that the

court instruct the jury that “[t]he mere proximity of the firearms

to Mr. Shrader goes only to the firearms’ accessibility

and not to the dominion or control which must be proven in

order to establish possession of the firearms.” The district

court instead instructed the jury that “[e]vidence of the mere

proximity of the firearms to Mr. Shrader may establish only

the firearms’ accessibility. However, the proximity of the firearms

to Mr. Shrader may also help to establish dominion and

6 UNITED STATES v. SHRADER

control depending on the inferences you draw from the evidence

presented in the case.” Shrader’s counsel again

objected, but was overruled, and Shrader was convicted on

July 14, 2010.

Shrader filed a wide variety of motions prior to his stalking

trial. First, he moved to dismiss the indictment on the grounds

that 18 U.S.C. § 2261A(2) was unconstitutionally vague. The

district court disagreed, finding that the plain terms of the

statute, which incorporate a specific intent requirement, were

enough to provide “a person of ordinary intelligence fair

notice of what is prohibited.” Second, Shrader filed a motion

to elect, seeking to compel the government to proceed on only

one of the stalking counts and arguing that the indictment was

multiplicitous because the stalking statute’s unit of prosecution

is the “course of conduct” that the defendant engaged in.

Again the district court disagreed, finding that the unambiguous

terms of the statute “define[ ] the unit of prosecution as

the ‘person,’” and that the same course of conduct could be

prosecuted twice if the government could show “two different

mens rea on the part of a defendant” to target two different

victims.

On August 20, 2010, the defendant was convicted of both

counts in the stalking trial. Prior to his sentencing, Shrader

objected to the Pre-Sentence Report’s recommendation that

he be sentenced under the Armed Career Criminal Act

("ACCA"), 18 U.S.C. § 924(e)(1), due to his prior convictions

for murder, wounding, and escape. The government conceded

that the escape did not qualify as a felony under the ACCA,

because it was not subject to a penalty of greater than one

year. As to his other crimes, Shrader conceded that they met

the statutory definition of violent felonies, but disputed that

they had been committed on different occasions, as the ACCA

requires. In response, the government offered evidence that

had been admitted at the stalking trial, including the testimony

of D.S. and the defendant’s letter. Shrader disputed the use of

this evidence, arguing that it was not approved under the

UNITED STATES v. SHRADER 7

Supreme Court’s decision in Shepard v. United States, 544

U.S. 13 (2005). The district court disagreed, finding that

because “the issue is not whether the crimes of conviction are

violent crimes . . . but whether or not they occurred on occasions

separate from one another,” Shepard was inapplicable.

Finding that the evidence showed that the two murders and

the wounding were indeed separate occasions, the district

court sentenced Shrader as an armed career criminal to 235

months in prison followed by five years of supervised release.

This appeal followed. We address each of the six issues that

Shrader raises in turn.

II.

Shrader first argues that the district court erred in denying

his motion to suppress the firearms recovered from the house

he shared with his aunt. He contends that her consent to a

search of their shared home was invalid because he had previously

refused to consent to the search. When examining the

denial of a motion to suppress, we review the district court’s

legal determinations de novo and its factual conclusions for

clear error. United States v. Branch, 537 F.3d 328, 337 (4th

Cir. 2008). Because the district court denied the defendant’s

motion, we construe the evidence in the light most favorable

to the government. Id.

It has long been established that “when the prosecution

seeks to justify a warrantless search by proof of voluntary

consent, it is not limited to proof that consent was given by

the defendant, but may show that permission to search was

obtained from a third party who possessed common authority

over . . . the premises.” United States v. Matlock, 415 U.S.

164, 171 (1974). Indeed, so long as the investigating officers

“reasonably (though erroneously) believe that the person who

has consented to their entry is a resident of the premises,” evidence

obtained in such a search will not be suppressed. Illinois

v. Rodriguez, 497 U.S. 177, 186 (1990).

8 UNITED STATES v. SHRADER

Shrader does not dispute that his aunt had authority to consent

to the search. He further acknowledges that her consent

was voluntarily given. Instead, he relies on the Supreme

Court’s holding in Georgia v. Randolph, 547 U.S. 103 (2006),

which held that “a physically present inhabitant’s express

refusal of consent to a police search is dispositive as to him,

regardless of the consent of a fellow occupant.” Id. at 122-23.

But Shrader has failed to satisfy a key requirement of Randolph:

he was not “physically present” to object to his aunt’s

consent. The Supreme Court made clear that to defeat a cotenant’s

consent, the defendant must be both “present and

objecting.” Id. at 114. The Court’s decision is replete with references

to the requirement that the defendant be “standing at

the door and expressly refusing consent” at the time the police

solicit entry from the cotenant. Id. at 119; see also id. at 120

(cotenant consent is invalid “over the express refusal of consent

by a physically present resident"); id. at 121 (search is

invalid “if a potential defendant with self-interest in objecting

is in fact at the door").

Of course, police may not seek to exploit this rule by “remov[

ing] the potentially objecting tenant from the entrance

for the sake of avoiding a possible objection.” Id. at 121. But

there is no evidence that the police did so in this case. They

went to the house for the express purpose of executing a valid

warrant for Shrader’s arrest, so his subsequent arrest and

removal from the premises cannot be considered a pretext for

later seeking consent from his aunt. Indeed, Shrader concedes

that “there was no evidence in this case that the officers who

took Shrader away after his arrest did so to defeat his Fourth

Amendment rights.” Appellant’s Br. at 41.

Shrader urges us, however, to expand the holding of Randolph

and conclude that his earlier refusal vitiates his aunt’s

later consent, even though he was absent from the premises.

Physical presence may not be dismissed as a mere function of

the facts of Randolph, however. That presence reflected the

UNITED STATES v. SHRADER 9

“widely shared social expectations” that informed the Court’s

ruling. Randolph, 547 U.S. at 111. The Court noted that “a

caller standing at the door of shared premises would have no

confidence that one occupant’s invitation was a sufficiently

good reason to enter when a fellow tenant stood there saying,

‘stay out.’” Id. at 113; see also id. at 114 ("[T]he co-tenant

wishing to open the door to a third party has no recognized

authority in law or social practice to prevail over a present

and objecting co-tenant.") The Court plainly gave careful

thought to the scope of the physical presence requirement that

it articulated:

[W]e are drawing a fine line; if a potential defendant

with self-interest in objecting is in fact at the door

and objects, the co-tenant’s permission does not suffice

for a reasonable search, whereas the potential

objector, nearby but not invited to take part in the

threshold colloquy, loses out. This is the line we

draw, and we think the formalism is justified. Id. at

121.

This case falls squarely on the permissible side of the line.

Because Shrader was absent from the premises, and there was

no evidence that he was arrested for the purpose of nullifying

his refusal to consent to the search, his aunt’s consent provided

adequate permission for the police to search the house,

notwithstanding his earlier objection.

In so holding, we join the Seventh and Eighth Circuits in

adhering to the clearly drawn rule of Randolph and giving

effect to the Supreme Court’s explicit requirement that the

defendant be physically present to dispute his cotenant’s consent.

See United States v. Henderson, 536 F.3d 776 (7th Cir.

2008); United States v. Hudspeth, 518 F.3d 954 (8th Cir.

2008) (en banc). We decline to adopt the more expansive

view of the Ninth Circuit which permits a defendant’s refusal

to operate indefinitely, “barring some objective manifestation

that he has changed his position and no longer objects.”

10 UNITED STATES v. SHRADER

United States v. Murphy, 516 F.3d 1117, 1125 (9th Cir. 2008).

This latter approach raises practical problems. How broadly is

constructive knowledge of a suspect’s prior refusal to consent

to be imputed to other officers? Must a suspect expressly indicate

that he has changed his mind in the future, or may that

be assessed from the totality of the circumstances? Is there

some point at which the passage of time renders a prior objection

inoperative? The Murphy interpretation of Randolph

would involve courts in such questions, diverting attention

from the basic social expectations that underlie not only the

opinion in Randolph, but the larger corpus of Fourth Amendment

jurisprudence. Careful observance of the requirement

that an objecting cotenant be physically present thus not only

shows fealty to the Supreme Court’s precedent, but also

focuses police and courts on the customary norms that form

the basis for this area of law.

III.

At the close of the firearms trial, Shrader challenged the

district court’s refusal to give his proposed instruction to the

jury with respect to his constructive possession of a firearm.

The evidence at trial demonstrated that the firearms were

located in a cabinet with a glass front in a dining room

directly adjacent to the defendant’s bedroom. Photographs

showed that the gun cabinet was but a few feet from the

entrance to Shrader’s bedroom, visible through the open doorway.

Moreover, the testimony of Shrader’s cotenant, his aunt

Elizabeth Jones, indicated that the firearms were under

Shrader’s control. Jones lived in the house only part-time. She

testified that she was “scared to death” of guns-she was even

reluctant to look at them during her cross-examination, and

that she was unaware of whether the cabinet had a lock “because

[she] didn’t mess with it.” She explicitly stated that she

never handled the guns and had even attempted to obscure the

front of the gun cabinet with a cardboard box so she did not

UNITED STATES v. SHRADER 11

have to see the guns. She testified that she believed it was

Shrader who had obtained the weapons and brought them into

the house and that it “was just his hobby.”

Shrader’s counsel had requested that the court charge the

jury that “mere proximity of the firearms to Mr. Shrader goes

only to the firearms’ accessibility and not the dominion or

control which must be proven in order to establish possession

of the firearms.” The court instead instructed the jury that

“[e]vidence of the mere proximity of the firearms to Mr.

Shrader may establish only the firearms’ accessibility. However,

the proximity of the firearms to Mr. Shrader may also

help to establish dominion or control depending on the inferences

you draw from the evidence in the case.”

We review the district court’s refusal to give a proffered

instruction for an abuse of discretion. United States v. Lighty,

616 F.3d 321, 366 (4th Cir. 2010). In order to conclude that

the district court erred in refusing to give the requested

charge, the defendant’s proposed instruction must be (1) correct;

(2) not substantially covered by the court’s charge; and

(3) dealing with some point in the trial so important, that failure

to give the requested instruction seriously impaired the

defendant’s ability to conduct his defense. United States v.

Passaro, 577 F.3d 207, 221 (4th Cir. 2009). In assessing these

factors, we may not minutely parse the district court’s words;

rather we consider “whether taken as a whole and in the context

of the entire charge, the instructions accurately and fairly

state the controlling law.” United States v. Rahman, 83 F.3d

89, 92 (4th Cir. 1996).

Shrader contends his proposed instruction draws from

United States v. Blue, 957 F.2d 106 (4th Cir. 1992), in which

we held that “this court requires more evidence of dominion

and control than” mere proximity of the defendant to a firearm.

Id. at 108. But while we have held that proximity alone

is not conclusive on the question of dominion and control, we

have never held it to be irrelevant. On the contrary, we have

12 UNITED STATES v. SHRADER

repeatedly affirmed the right of juries to consider proximity

as a part of their analysis of a defendant’s constructive possession.

See, e.g., United States v. Kimbrough, 477 F.3d 144, 147

n.5 (4th Cir. 2007) ("[A] fact-finder could infer Appellee’s

possession of the gun from its presence in the basement where

he lived."); United States v. Shorter, 328 F.3d 167, 172 (4th

Cir. 2003) ("[T]he fact that the firearms and marijuana were

found in Shorter’s home permits an inference of constructive

possession.").

Here, the district court’s instruction accurately stated the

law, indeed more so than Shrader’s proposed instruction. It

would not fairly characterize our cases to inform the jury as

Shrader requested that “mere proximity of the firearms to Mr.

Shrader goes only to the firearms’ accessibility and not the

dominion or control” (emphasis added). That might leave

jurors with the impression that once they had determined that

the defendant had access to a firearm, they were to disregard

its proximity in assessing his control over it. While proximity

by itself is not enough, the nature of the proximity can be

quite pertinent to what type and amount of additional evidence

is required. Thus, the district court accurately informed

the jury that proximity alone goes only to accessibility, but

when viewed in light of the remaining evidence in the case,

can form part of the tableau that justifies a conviction based

on constructive possession.

In addition, this court recently considered in United States

v. Herder, 594 F.3d 352 (4th Cir. 2010), whether a defendant

in a constructive possession case was entitled as of right to a

“mere proximity” instruction. In that case, the defendant, like

Shrader, relied on Blue to request an instruction that “mere

proximity of contraband to an occupant is insufficient to

establish constructive possession.” Id. at 360. The district

court refused, and we affirmed, holding that so long as “the

instructions actually given to the jury plainly required proof

of knowledge and control,” the jury could not have erroneously

convicted the defendant on the basis of proximity alone.

UNITED STATES v. SHRADER 13

Id. at 361 (citing United States v. Hendricks, 319 F.3d 993,

1006 (7th Cir. 2003); United States v. Vasquez, 82 F.3d 574,

577 (2d Cir. 1996); United States v. Rojas, 537 F.2d 216,

219-20 (5th Cir. 1976)).

The district court here repeatedly emphasized the need for

the jury to find knowing possession beyond a reasonable

doubt in order to convict. First, it accurately stated the law

and defined knowing possession: “[T]he United States must

prove beyond a reasonable doubt that the defendant knowingly

possessed a firearm. ‘Knowingly’ means voluntarily and

intentionally and not because of mistake or accident or other

innocent reason.” Second, it applied that definition to the

requirement of dominion or control: “A person who, although

not in actual possession, knowingly has both the power and

the intention at a given time to exercise dominion or control

over a thing . . . is then in constructive possession of it.”

Finally, the district court emphasized the need to prove

dominion or control: “[T]he United States must produce either

direct or circumstantial evidence showing . . . beyond a reasonable

doubt the defendant’s ownership, dominion, or control

over the firearms.” In short, as in Herder, there was no

risk that the jury drew such impermissible inferences that it

convicted Shrader on the basis of proximity alone. The district

court thus did not abuse its discretion in refusing to give

Shrader’s proposed instruction.

IV.

As to his stalking convictions, Shrader argues that 18

U.S.C. § 2261A(2) is unconstitutionally vague. The statute

contains three important elements. First, the defendant must

possess either the intent “to kill, injure, harass, or place under

surveillance with intent to kill, injure, harass, or intimidate, or

cause substantial emotional distress to a person in another

State,” 18 U.S.C. § 2261A(2)(A), or the intent to place that

person “in reasonable fear of the death of, or serious bodily

injury to that person, a member of the immediate family . . .

14 UNITED STATES v. SHRADER

of that person, or a spouse or intimate partner of that person,”

id. § 2261A(2)(B). Second, the defendant must pursue that

intention through a “course of conduct,” defined as “a pattern

of conduct composed of 2 or more acts, evidencing a continuity

of purpose,” id. § 2266(2), that makes use of a facility of

interstate commerce, id. § 2261A(2). Finally, the defendant’s

conduct must in fact “cause[ ] substantial emotional distress

to [the intended victim] or place[ ] that person in reasonable

fear of the death of, or serious bodily injury to any of the persons

described” above. Id.

Shrader contends that the first element of the statute is

vague because the operative terms “harass[ ] or intimidate”

are not explicitly defined. He similarly argues that the second

element is vague because the statute fails to specify whether

all acts in the required “course of conduct” must be committed

with the specific intent of instilling fear.

A.

We review the constitutionality of a statute de novo. United

States v. Sun, 278 F.3d 302, 308 (4th Cir. 2002). A statute is

impermissibly vague if it either (1) “fails to provide people of

ordinary intelligence a reasonable opportunity to understand

what conduct it prohibits” or (2) “authorizes or even encourages

arbitrary and discriminatory enforcement.” Hill v. Colorado,

530 U.S. 703, 732 (2000). In assessing these standards,

“perfect clarity and precise guidance have never been

required.” Ward v. Rock Against Racism, 491 U.S. 781, 794

(1989). Instead, we consider whether a statute’s prohibitions

“are set out in terms that the ordinary person exercising ordinary

common sense can sufficiently understand and comply

with.” U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers,

413 U.S. 548, 579 (1973).

As a result, we cannot adopt the approach Shrader urges,

throwing up our hands and declaring a statute vague simply

because it does not include the most elaborate or the most

UNITED STATES v. SHRADER 15

specific definitions possible. The test for vagueness “is necessarily

a practical rather than hypertechnical one,” United

States v. Biocic, 928 F.2d 112, 114 (4th Cir. 1991), and when

a statute fails to provide an explicit definition, we may resort

to ordinary meaning and common sense, considering whether

the statute “conveys sufficiently definite warning as to the

proscribed conduct when measured by common understanding

and practices.” United States v. Petrillo, 332 U.S. 1, 8

(1947).

Here, we think that a common sense reading of the statute

adequately defines the prohibited conduct. “Harass” and “intimidate”

are not obscure words. Most people would readily

understand the former to mean “to disturb persistently; torment,

as with troubles or cares; bother continually; pester;

persecute,” Random House Dictionary of the English Language

870 (2d ed. 1987); and the latter to mean “to make

timid; fill with fear,” id. at 1000. In United States v. Bowker,

372 F.3d 365, 380-82 (6th Cir. 2004), rev’d on other grounds,

543 U.S. 1182 (2005), the Sixth Circuit upheld this same statute

against an identical vagueness challenge. That court too

found that “harass[ ] or intimidate” could be adequately

defined “by reference to judicial decisions, common law, dictionaries,

and the words themselves because they possess a

common and generally accepted meaning.” Id. at 382 (quoting

Staley v. Jones, 239 F.3d 769, 791-92 (6th Cir. 2001)).

In addition, Shrader’s claim that the intent element of the

statute is inadequately defined is in tension with the Supreme

Court’s instruction that, rather than being a source of fatal

vagueness, “a scienter requirement may mitigate a law’s

vagueness, especially with respect to the adequacy of notice

to the complainant that his conduct is proscribed.” Village of

Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.

489, 499 (1982); see also Colautti v. Franklin, 439 U.S. 379,

395 (1979) ("[T]he constitutionality of a vague statutory standard

is closely related to whether that standard incorporates a

requirement of mens rea."). In contrast to previously disap-

16 UNITED STATES v. SHRADER

proved statutes that merely set out the subjective effects of

conduct and imposed penalties for causing that injury, see,

e.g., Coates v. City of Cincinnati, 402 U.S. 611, 614 (1971)

(finding ordinance prohibiting conduct “annoying to persons

passing by” unconstitutionally vague), this statute required the

government to prove that Shrader both intended to cause his

victims serious harm and did in fact do so. See Bowker, 372

F.3d at 381-82 (relying on the connection between the “requirement

that a perpetrator intend to harass a victim” and the

“concrete harm requirement” to conclude that § 2261(A) was

not vague).

By focusing on the words “harass[ ] or intimidate,” Shrader

ignores that the statute permits a variety of intentions to suffice:

“to kill, injure, harass, or intimidate, or cause substantial

emotional distress to a person.” 18 U.S.C. § 2261A(2)(a).

“Congress often uses multiple words with overlapping meaning

to capture a broad swath of conduct.” United States v.

Laureys, 653 F.3d 27, 41 (D.C. Cir. 2011). Shrader cannot

plausibly claim this string of verbs left him clueless. He cannot

contend that the law failed “to distinguish between innocent

conduct and conduct threatening harm,” City of Chicago

v. Morales, 527 U.S. 41, 57 (1999). It is an element of the

crime that he have intended harm to a particular victim. And

it is similarly an element that the intended target have suffered

substantial emotional distress as a result. Given that the government

must prove both intent and effect, we need not worry

that the statute sets an unclear trap for the unwary.

B.

Shrader also argues that the statute is unconstitutionally

vague because it does not define whether all acts included in

the prohibited “course of conduct” must be done with the specific

intent to cause harm required by the statute.

The statute defines the required “course of conduct” as “a

pattern of conduct composed of 2 or more acts, evidencing a

UNITED STATES v. SHRADER 17

continuity of purpose.” 18 U.S.C. § 2266(2). This latter part

of the definition is significant. While the statute does not

impose a requirement that the government prove that each act

was intended in isolation to cause serious distress or fear of

bodily injury to the victim, the government is required to

show that the totality of the defendant’s conduct “evidenc[ed]

a continuity of purpose” to achieve the criminal end. The specific

intent requirement thus modifies the cumulative course

of conduct as a whole.

This statutory scheme reflects a clear understanding on the

part of Congress that while severe emotional distress can of

course be the result of discrete traumatic acts, the persistent

efforts of a disturbed harasser over a period of time-in this

case, virtually D.S.’s entire adult life-can be equally or even

more injurious. The cumulative effect of a course of stalking

conduct may be greater than the sum of its individual parts.

To read in a requirement that each act have its own specific

intent element would undo the law’s protection for victims

whose anguish is the result of persistent or repetitive conduct

on the part of a harasser. Moreover, the statute avoids sweeping

up innocent acts by requiring that the course of conduct

“evidenc[e] a continuity of purpose” to cause the proscribed

harm. It of course remains open to a defendant to argue that

the charged acts were innocent or mistaken, and therefore do

not meet the clear textual requirement that the course of conduct

“evidenc[e] a continuity of purpose,” but that is an argument

that sounds in sufficiency of the evidence, not

vagueness.

C.

Further, the statute clearly proscribed Shrader’s particular

conduct in this case. There can be little doubt that Shrader’s

conduct was harassing and intimidating to D.S. and R.S.

Shrader murdered D.S.’s mother and close friend. His subsequent

words carried the most serious import, uttered as they

were by someone with such a bloody past. Shrader warned

18 UNITED STATES v. SHRADER

D.S. over the phone that he “needed to talk to [her] kids

before we die.” He continually alleged that she was complicit

in the murders to which he pleaded guilty, pressing his delusion

that she had hatched the plot to kill Rusty Adams and

that she was responsible for her mother’s death as a result.

Shrader persisted in calling D.S.’s home after R.S. warned

him that such contact was to say the least unwelcome. He formulated

a plan to send D.S.’s daughter underwear for the

express purpose of harassing D.S.

The most obvious vehicle of Shrader’s harassment and

intimidation was his manifesto. In it, he wished for “God to

take one of [D.S. and R.S.’s] children’s lives in an accident.”

He described his murderous rampage and reminded D.S. that

she too could have suffered the same fate. He threatened to

spread his allegation of her involvement in her own mother’s

murder, making her “famous” because he was “sure that [he]

could get a lot of publicity.” And he closed with a warning

that he would take further action if D.S. did not comply with

his wishes. The letter was only the beginning, two weeks later

he would “initiate [his] next step.”

Whatever other definitions one might hypothesize for the

meaning of “harass[ ] or intimidate,” there can be little doubt

that Shrader’s stalking falls within the conduct the statute is

intended to proscribe. Shrader’s own words evince his intent

to “cause substantial emotional distress,” 18 U.S.C.

§ 2261A(2)(A), to D.S. and R.S. and to place them “in reasonable

fear of the death of, or serious bodily injury to” themselves

and “member[s] of the[ir] immediate family,” id.

§ 2261A(2)(B)(i-ii). In short, we reject Shrader’s contention

that his stalking convictions must be overturned on vagueness

grounds.*

*Shrader also raises a sufficiency of the evidence claim. We have

reviewed the evidence in detail and described it herein. We reject

Shrader’s contention on this matter as an insubstantial one.

UNITED STATES v. SHRADER 19

V.

Shrader next claims that the district court erred in concluding

that Counts One and Two of the Second Superseding

Indictment were not multiplicitous, arguing that 18 U.S.C.

§ 2261A(2) permits only one punishment for a “course of

conduct,” regardless of the number of victims of that conduct.

Whether an indictment charges “one or more counts that are

actually a single offense charged multiple times” is a question

of law that we review de novo. United States v. Goodine, 400

F.3d 202, 207 n.7 (4th Cir. 2005).

The rule against multiplicity is rooted in the Double Jeopardy

Clause of the Fifth Amendment, which serves both the

familiar function of prohibiting “successive prosecutions for

the same offense” as well as “the imposition of cumulative

punishments for the same offense in a single criminal trial.”

United States v. Ragins, 840 F.2d 1184, 1187 (4th Cir. 1988).

When a defendant is charged with multiple violations of the

same statute arising from the same course of conduct, the

court must consider “[w]hat Congress has made the allowable

unit of prosecution,” Bell v. United States, 349 U.S. 81, 81

(1955) (quoting United States v. Universal C.I.T. Credit

Corp., 344 U.S. 218, 221 (1952)). “To do so, we must look

to the language of the statute, being mindful that any ambiguity

must be resolved in favor of the defendant under the rule

of lenity.” United States v. Bennafield, 287 F.3d 320, 323 (4th

Cir. 2002).

We agree with the district court that 18 U.S.C. § 2261A(2)

unambiguously makes the victim, rather than the course of

conduct, the unit of prosecution. We need look no further than

the plain words of the statute to reach this conclusion.

First, to violate the provision, a defendant must act “with

the [specific] intent” either to injure or to cause distress to a

particular individual. See id. §§ 2261A(2)(A-B). Not just any

person will suffice; it must be “a person in another State or

20 UNITED STATES v. SHRADER

tribal jurisdiction or within the special maritime and territorial

jurisdiction of the United States.” Id. A defendant may violate

the statute by acting with the specific intent to cause a person

to fear for the life and limb of another, but those categories

are narrowly circumscribed to “that person,” id.

§ 2261A(2)(B)(i); “a member of the immediate family . . . of

that person,” id. § 2261A(2)(B)(ii); or “a spouse or intimate

partner of that person;” id. § 2261A(2)(B)(ii). In short, this

statute does not punish fungible acts, such as possession of

cocaine in two different receptacles, see, e.g., Bennafield, 287

F.3d at 323; but rather defines the defendant’s crime-and

therefore the unit of prosecution-in terms of his intent to

strike fear in a particular individual.

Second, not only must the defendant possess the requisite

intent towards a specific victim, but the statute also requires

that his intimidating conduct actually induce fear in “that person.”

18 U.S.C. § 2261A(2). This is more than just an element

of the crime-the effect on a particular victim is also how

Congress has chosen to allocate punishment for the offense.

In 18 U.S.C. § 2261(b), Congress provided a scale of punishments

depending on the gravity of harm done by the defendant,

including “life or any term of years, if death of the

victim results,” id. § 2261(b)(1); “not more than 20 years if

permanent disfigurement or life threatening bodily injury to

the victim results,” id. § 2261(b)(2); and “not more than 10

years, if serious bodily injury to the victim results,” id.

§ 2261(b)(3). Thus, the statute’s terms unambiguously contemplate

that the unit of prosecution is the targeted individual,

requiring that the defendant act with intent towards a particular

“person,” that his actions produce the requisite effect in

“that person,” and defining punishment in terms of the effect

on “the victim.”

That Shrader’s conduct constitutes two separate offenses

under the plain text of the statute can be confirmed by resort

to an analogous test for violations of the Double Jeopardy

Clause: “whether each [offense] requires proof of a fact which

UNITED STATES v. SHRADER 21

the other does not.” Blockburger v. United States, 284 U.S.

299, 304 (1932). While this test is traditionally used to determine

whether a single course of conduct violates different

statutory provisions, see Goodine, 400 F.3d at 207, courts

have noted its utility in assessing whether multiple counts of

the same statutory offense are multiplicitous, see, e.g., United

States v. Swaim, 757 F.2d 1530, 1536-37 (5th Cir. 1985).

Here, the government was required to prove different intents

to harm two victims to convict the defendant on the two separate

counts. Count One required evidence that the defendant

acted “to place DS in reasonable fear,” Sec. Sup. Ind. at 3; and

Count Two required distinct proof that Shrader acted “to place

RS in reasonable fear,” id. at 4. Thus not only does the statute

unambiguously provide that the unit of prosecution is the

individual victim, but the charging document also requires

proof of different facts as to the two separate counts, further

confirming that the two charges were not multiplicitous.

This statutory scheme stands in sharp contrast to those

cases Shrader cites in which courts have found indictments to

be multiplicitous. As an initial matter, Bell v. United States,

349 U.S. 81 (1955), and Ladner v. United States, 358 U.S.

169 (1958), analyzed statutes that the Supreme Court considered

ambiguous as to the unit of prosecution, and so the conclusion

that multiple counts were impermissible was driven

by the canon that “the ambiguity should be resolved in favor

of lenity” to the defendant. Bell, 349 U.S. at 83. We need not

resort to that tiebreaking device in this case, having concluded

above that Congress has “fix[ed] the punishment for a federal

offense clearly and without ambiguity.” Id. at 84.

We therefore affirm the district court’s determination that

Counts One and Two of the Second Superseding Indictment

were not multiplicitous.

VI.

The district court in this case conducted a lengthy and

detailed sentencing hearing, following equally substantial

22 UNITED STATES v. SHRADER

written submissions from the parties. The district court heard

testimony, considered extensive legal arguments, and discussed

with care both the relevant law and the particular facts

that led to Shrader’s conviction and warranted a serious sentence

of imprisonment. The parties argue on appeal over the

propriety of Shrader’s 235 month sentence.

It is plain that the district court found this sentence appropriate,

explaining at great length its conclusion that this was

"a just sentence . . . and is not more than is necessary.” Tr. of

Sentencing Hearing, J.A. 1063-64. The district court noted the

defendant’s “long history which we’ve all talked about today

of harassment, threats, and violence towards [D.S.] and her

family, specifically beginning with the harassment prior to the

murder of Mr. Adams and [D.S.’s] mother . . . and also the

murders themselves.” Id. at 1063. The district court found that

Shrader engaged in a disturbing “pattern of conduct,” where

Shrader repeatedly “acted on [his] obsession [with D.S.],”

beginning before the murders and including “when [he]

escaped during [his] time in jail” and “efforts while . . . incarcerated

and afterwards to contact [D.S.’s] family.” Id. at

1064-65. The court also discussed the defendant’s attitude

about his crimes, noting that not only had Shrader “not taken

responsibility for [his] actions,” id. at 1064, but had instead

“give[n] up [his] life in order to cause the type of difficulty

for [D.S.’s family] that [he] caused,” id. at 1063. Finally, the

district court emphasized the need for a long sentence to deter

Shrader from future harassing or violent conduct, noting that

he was “incarcerated for 18 years and that provided no deterrence

whatsoever.” Id. at 1065. The district court summarized

the need for the sentence according to the factors outlined in

18 U.S.C. § 3553(a), expressing the “hope that this sentence

will promote respect for the law, that it will protect the public,

and it is my hope that it will provide deterrence.” Id.

The 235 month sentence the district court imposed is also

within the 240 month statutory maximum authorized for

Shrader’s three counts of conviction (a five year maximum

UNITED STATES v. SHRADER 23

for each of two counts of violating 18 U.S.C. § 2261A(2) and

a ten year maximum for one count of violating 18 U.S.C.

§ 922(g)(1), yielding a cumulative maximum sentence of

twenty years of imprisonment). We therefore need not address

the propriety of the ACCA enhancement, because an upward

variance or departure in this case would produce exactly the

same result and because the transcript makes clear that the

sentence herein, irrespective of any ACCA enhancement,

plainly effectuated the trial court’s sentencing intent. See

United States v. Savillon-Matute, 636 F.3d 119, 123-24 (4th

Cir. 2011) (remand unnecessary where district court discussed

§ 3553(a) factors and where same sentencing result would

obtain). For the foregoing reasons, the judgment is affirmed.

VII.

We conclude by commending the trial court for its careful

and professional conduct of proceedings. Perhaps after so

many decades the criminal justice system will have restored

to this beleaguered family some measure of peace.

The judgment is

AFFIRMED.

24 UNITED STATES v. SHRADER