United States Court of Appeals

For the Eighth Circuit

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No. 16-3778

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United States of America,

lllllllllllllllllllll Plaintiff - Appellee,

v.

James Daniel Hobgood,

lllllllllllllllllllll Defendant - Appellant.

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Appeal from United States District Court 

for the Western District of Arkansas - Fayetteville

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 Submitted: April 7, 2017

 Filed: August 22, 2017

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Before COLLOTON and BENTON, CircuitJudges, and GERRARD, DistrictJudge. 1

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The Honorable John M. Gerrard, United States District Judge for the District 1

of Nebraska, sitting by designation.
COLLOTON, Circuit Judge.

James Daniel Hobgood conditionally pleaded guilty to interstate stalking, in

violation of 18 U.S.C. § 2261A(2). Hobgood appeals an order of the district court

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denying his motion to dismiss the indictment. He argues that the statute cannot be

applied to his conduct without violating the First Amendment. He also disputes the

amount of restitution ordered at sentencing. We reject the contentions and affirm the

judgment of the district court.

I.

Hobgood and the government stipulated to the following facts. In September

2014, KB met Hobgood and had a brief romantic relationship with him in Richmond,

Virginia. KB began rebuffing Hobgood’s advances, and in January 2015, she moved

to Arkansas. KB alleges that Hobgood, still living in Richmond, began contacting

her via e-mail, Facebook messages, and third-party text messages to demand that she

apologize to him in person for her treatment of him. KB did not do so.

KB alleges that Hobgood then created publicly accessible social media

accounts in which he portrayed KB as an exotic dancer and prostitute. Hobgood also

sent lettersto KB’s employer through the mail and over the Internet claiming that KB

was an exotic dancer and prostitute. Hobgood contacted KB and KB’s family by email, stating that unless she apologized to him, he would continue to make these

representations. According to KB, Hobgood’s actions caused her substantial

emotional distress and contributed to her need for short-term hospitalization.

The Honorable Timothy L. Brooks, United States District Judge for the

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Western District of Arkansas.

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Law enforcement investigators eventually contacted Hobgood about his

conduct. Hobgood admitted sending KB, her family, and her employer

communications by e-mail, telephone, and mail, in which he stated that KB was an

exotic dancer. Hobgood told investigators that he would not stop contacting KB until

he caused her to lose her job, or caused her to “repent” for the unspecified wrong that

she committed against him. Investigators also were able to corroborate that Hobgood

was responsible for the publicly accessible social media accounts that portrayed KB

as an exotic dancer and prostitute.

In October 2015, a grand jury charged Hobgood with interstate stalking, in

violation of 18 U.S.C. § 2261A(2). Before trial, Hobgood moved to dismiss the

indictment. He argued that § 2261A(2), as applied to him, violated the First

Amendment. The district court denied the motion. The court concluded that because

Hobgood’s communications also violated the extortion statute, 18 U.S.C. § 875(d),

they constituted “speech . . . integral to criminal conduct” that could be restricted

without violating the First Amendment. See Giboney v. Empire Storage & Ice Co.,

336 U.S. 490, 498 (1949); United States v. Petrovic, 701 F.3d 849, 855-56 (8th Cir.

2012). 

Hobgood conditionally pleaded guilty to interstate stalking, reserving the right

to appeal the district court’s denial of the motion to dismiss. The court sentenced him

to a term of imprisonment of 12 months and 1 day. The court also ordered Hobgood

to pay KB $2,387.91 in restitution.

II.

Hobgood first challenges the denial of his motion to dismiss. He renews the

argument that his communications to KB and others were protected speech under the

First Amendment. He contends, therefore, that his conviction under 18 U.S.C.

§ 2261A(2) based on that speech infringes on his constitutional rights. Hobgood

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reasons that the conviction constitutes an impermissible content-based restriction of

speech.

Generally speaking, the First Amendment forbids the government from

restricting speech because of its content. United States v. Stevens, 559 U.S. 460, 468

(2010). But content-based restrictions are permitted “in a few limited areas.” Id. at

468 (quotation omitted). One such area or category is “speech integral to criminal

conduct.” Id. (citing Giboney, 336 U.S. at 498). The district court concluded that

Hobgood’s communications to KB and to others were unprotected speech integral to

criminal conduct, because the communications were integral to the crime of extortion

under 18 U.S.C. § 875(d). Therefore, the court determined that the interstate stalking

statute was constitutional as applied to Hobgood on the stipulated facts of this case.

Hobgood disputes the district court’s conclusion on two grounds. First, he

complains that he was not charged with or convicted of extortion, so it was improper

for the district court to deem his speech integral to that crime. But the dispute is

whether the interstate stalking statute may be applied constitutionally to Hobgood’s

conduct, so it is proper to consider the nature of that conduct. If we assume for the

sake of analysis that some applications of the stalking statute might impinge on

protected speech, then it is necessary to examine whether the particular speech at

issue was unprotected. Insofar as the interstate stalking statute overlaps with the

extortion statute, the court may consider that circumstance in determining whether the

speech is protected. Indeed, the Supreme Court’s leading decision on “speech

integral to criminal conduct” was not even a criminal case, but the Court allowed a

restriction on speech that enjoined the commission of a felony. Giboney, 336 U.S.

at 497-98, 501-02. By the same token, if Hobgood’s speech constituted both stalking

and extortion, then the court was permitted to consider whether extortionate speech

is protected.

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Second, Hobgood contendsthat he did not commit extortion. A person violates

§ 875(d) if he transmits a communication containing any threat to injure the

reputation of a person with intent to extort a “thing of value” from that person. 

Hobgood repeatedly contacted KB by e-mail, threatening that he would injure her

reputation by broadcasting that she was an exotic dancer and prostitute, unless KB

apologized to him. Hobgood assertsthat an apology cannot be “thing of value” under

§ 875(d). But a “thing of value” includes intangible things—such as a “sexual

relationship,” for example—and “the focus of the . . . termisto be placed on the value

which the defendant subjectively attaches” to what he seeks. Petrovic, 701 F.3d at

858 (quotation omitted). The stipulated facts concerning Hobgood’s effortsto secure

a mea culpa from KB constituted sufficient evidence to support a finding that an

apology from KB was a thing of value to Hobgood. 

Hobgood also asserts that his conduct did not meet a “wrongfulness”

requirement of § 875(d), because he believed that he had a legitimate claim to an

apology fromKB. Assuming that the statute includesthis element, Hobgood’s threats

were “wrongful” in the sense that they had no causal nexus to a claim of right. See

United States v. Jackson, 180 F.3d 55, 70-71 (2d Cir. 1999). His threats to

disseminate information that KB was an exotic dancer and prostitute were not related

to why he thought she owed him an apology. Hobgood’s speech is a far cry from a

consumer complaint aimed at receiving a refund or a club manager’s public

identification of members who are delinquent on paying their dues. In those cases,

the speaker has a plausible claim of right to the thing of value, and the threat is

related to that right. Not so here.

For these reasons, Hobgood’s violation of the interstate stalking statute also

constituted extortion. This court held in Petrovic that extortionate communications

that threatened another’s reputation, and communications carrying out the threat,

were not protected by the First Amendment. Petrovic, 701 F.3d at 855. Hobgood

concedesthat extortionate speech is not constitutionally protected. See United States

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v. Hutson, 843 F.2d 1232, 1235 (9th Cir. 1988); United States v. Quinn, 514 F.2d

1250, 1268 (5th Cir. 1975). The district court therefore properly denied Hobgood’s

motion to dismiss the indictment.

III.

Hobgood also challenges his sentence. He argues that the district court erred

in awarding restitution to KB for the cost of moving from one apartment to another

in the same apartment complex. To justify restitution, the government was required

to prove by a preponderance of the evidence that Hobgood’s offense proximately

caused the moving expenses. 18 U.S.C. §§ 2264(b)(3)(F), 3664(e). In her written

victim impact statement, KB stated that she was frightened because Hobgood sent

correspondence to her apartment, and she implied thatshe changed addresses to avoid

stalking by Hobgood. Based on this evidence, the district court did not clearly err in

concluding that Hobgood’s offense proximately caused KB’s change in residence and

the expense that it entailed.

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The judgment of the district court is affirmed.

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