[PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 20-11037

____________________

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

BRANDON MICHAEL FLEURY, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:19-cr-60056-RAR-1

____________________

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Before WILSON, ROSENBAUM, and HULL, Circuit Judges.

WILSON, Circuit Judge:

Defendant-Appellant Brandon Fleury was convicted by a 

jury in the Southern District of Florida on one count of transmitting interstate threats, in violation of 18 U.S.C. § 875(c) (Count 1), 

and three counts of cyberstalking, in violation of 18 U.S.C. 

§ 2261A(2)(B) (Counts 2–4). Fleury’s convictions stem from posts 

he made and messages he sent on Instagram, posing as various 

mass murderers including notorious serial killer Ted Bundy and Nikolas Cruz, the perpetrator of the Marjory Stoneman Douglas High 

School shooting. Fleury directed these posts and messages to three 

individuals (Jesse Guttenberg, Alexis Sealy, and Max Schachter referred to in the indictment as Victims 1, 2, and 3, respectively) who 

lost loved ones in the shooting.

The district court sentenced Fleury to sixty months in prison 

for each of Counts 1–3, to run concurrently, and six months in 

prison as to Count 4, to be served consecutively to Counts 1–3. He 

was also sentenced to three years of supervised release for each 

count. On appeal, Fleury raises various challenges to the constitutionality of § 2261A(2)(B), the sufficiency of the indictment and evidence, the jury instructions, and the admission of expert testimony.

BACKGROUND

On February 14, 2018, Nikolas Cruz murdered seventeen

students and faculty members at Marjory Stoneman Douglas High 

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School in Parkland, Florida, using an AR-15 style semi-automatic 

rifle (MSD shooting). Between December 22, 2018, and January 11, 

2019, Brandon Fleury—bearing aliases like nikolas.killed.your.sister, the.douglas.shooter, and Teddykillspeople (referencing Ted 

Bundy)—sent victims’ family members and friends taunting and 

harassing Instagram messages that they allege put them in fear for 

their own lives. 

The following evidence was adduced at trial. The government’s case-in-chief centered on three victims: Max Schachter, 

Jesse Guttenberg, and Alexis Sealy.1 Max Schachter’s fourteen-yearold son, Alex, was killed in the MSD shooting. Following Alex’s 

murder, Schachter started a scholarship fund in his name and 

served as an advocate for school safety. In December 2018, 

Schachter began receiving “very scary messages” on his Instagram 

account. Examples of the messages he received include: “I killed 

Alex and it was fun” and “they had their whole lives ahead of them 

and I f**king stole it from them.” While all of these messages were 

abhorrent, Schachter testified that he was especially frightened by

two messages in particular: “I’m your abductor I’m kidnapping you 

fool” and “With the power of my AR-15, I take your loved ones 

away from you PERMANENTLY.”

1 Count 2 of the indictment encompasses messages directed towardsJesse Guttenberg, Count 3 towards Alexis Sealy, and Count 4 towards Max Schachter.

All three victims testified at trial. 

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Similar messages were sent to Jesse Guttenberg and Alexis 

Sealy. Jesse’s younger sister Jaime was also killed in the MSD shooting. On December 22, 2018, during his senior year of high school, 

Jesse woke to find a barrage of messages sent to his Instagram account. These messages included “I’m a murderer,” and “[t]hey had 

their whole lives ahead of them and I f**king stole it from them.”

As with Max Schachter, Jesse received a message that said, “I’m 

your abductor I’m kidnapping you fool.” And a later series of messages included, “With the power of my AR-15 I take your loved 

ones away from you”; “I’m the monster that killed your family”; 

and “With the power of my AR-15 you all die.” Jesse showed the 

messages to his parents, who contacted law enforcement. Police 

consequently maintained a presence outside the Guttenberg home 

during the 2018 winter break and continued to closely monitor 

Jesse’s movements upon his return to school, which began to “affect [his] personal life and take away from what [he] needed to be 

doing.”

In mid-December 2018, Alexis Sealy also began receiving 

harassing messages on Instagram. A lot of these messages taunted 

Alexis about the death of her best friend, Jaime Guttenberg. Like 

Max Schachter and Jesse Guttenberg, she received messages that 

said: “With the power of my AR-15 I erased their existence. Your 

grief is my joy”; “I’m your abductor I’m kidnapping you fool”; and 

“with the power of my AR-15 I take your loved ones away from 

you PERMANENTLY.”

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On December 22, 2018, having sent harassing messages to 

another MSD survivor, Cameron Kasky, Fleury admitted in a private message that he “took it way too far with [his] trolling.”

Law enforcement obtained the IP address associated with 

the usernames from which the messages were sent, and determined it was assigned to Fleury’s home address. In a post-Miranda 

statement, Fleury admitted to having sent the messages at issue 

and said that the usernames he used were inspired by his attraction 

to “aggressive people with violent tendencies,” such as Nikolas 

Cruz and Ted Bundy.

A grand jury returned a four-count indictment charging 

Fleury with interstate transmission of a threat to kidnap, in violation of 18 U.S.C. § 875(c) (Count 1)2, and interstate cyberstalking, 

in violation of 18 U.S.C. § 2261A(2)(B) (Counts 2–4). Fleury filed a 

pre-trial motion to dismiss the cyberstalking counts as facially overbroad under the First Amendment and unconstitutional as applied 

to his offense conduct, which the government opposed. The district court denied Fleury’s motion in a written order, finding the 

cyberstalking statute neither overbroad nor unconstitutional as applied.

2 The basis for Count 1 was the message Fleury sent from the username “Teddykillspeople” to all three victims that read: “I’m your abductor [smile emoji 

and applauding emoji]. I’m kidnapping you fool [lock emoji and blowing kiss 

emoji].”

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At trial, the defense did not contest that Fleury sent the messages in question. Instead, the defense contended that Fleury, who 

is autistic, did not have the requisite intent to be convicted because 

he did not understand that his actions would cause substantial emotional distress to others. Fleury’s father, Patrick, testified that his 

son had been diagnosed with attention deficit disorder (ADD), attention deficit hyperactivity disorder (ADHD), autism spectrum 

disorder (ASD), and obsessive compulsive disorder (OCD), and 

that his son existed “in his own little fantasy world.” Dr. Lori Butts, 

the defense’s expert in forensic psychology, testified that she examined Fleury and diagnosed him as suffering from ASD Level 2 without intellectual impairment. She opined that he had difficulty understanding the emotions of others and that he did not understand 

the emotional impact of his behavior on his victims. Specifically, 

she testified that Fleury could understand sadness in others but not 

grief.

In response, the government called Dr. Park Dietz, an expert 

in forensic psychiatry who evaluated Fleury for eight hours over 

two days and diagnosed him with ASD Level 1. Dr. Dietz testified

that Fleury could appreciate the emotional impact of his messages 

on his victims and that he intended for the messagesto cause anger, 

grief, and fear. Disagreeing with Dr. Butts, he concluded Fleury 

“may not have had complete understanding the way most of us 

would, but . . . he understood enough to know how bad this was.” 

During Dr. Dietz’s evaluation, Fleury acknowledged that he was 

sexually attracted to serial killers and that this attraction “focused 

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on both the physical attractiveness of the person and also on what 

they had done.” Dr. Dietz testified that he questioned Fleury in 

some detail about what Fleury found alluring about the serial killers, and Dr. Dietz’s understanding of Fleury’s response was that 

“he found it arousing that they were so domineering and had done 

so much harm to others.” Dr. Dietz posited a connection between 

Fleury’s sexual proclivities to taunting and the charged conduct: 

“he was aroused by the people but also by their bad acts, including 

victim taunting. And . . . he wanted to be like them, and that’s why 

he chose the persona of Nikolas Cruz or Ted Bundy to present himself to the world in these anonymous communications.”

After a five-day trial, the jury convicted Fleury of all four 

counts. The district court sentenced Fleury to 66 months’ imprisonment, to be followed by three years of supervised release. Fleury 

timely appealed, raising challenges to the constitutionality of 18 

U.S.C. § 2261A(2)(B), the jury instructions, the sufficiency of the 

evidence for intent, the admissibility of Dr. Dietz’s expert testimony, and the sufficiency of the indictment. We address each issue 

in turn.

DISCUSSION 

I. Constitutional Challenges to 18 U.S.C. § 2261A(2)(B) 

Prior to trial, Fleury moved the district court to dismiss 

Counts 2–4 of the indictment, contending the cyberstalking statute, 

18 U.S.C. § 2261A(2)(B), was facially unconstitutional for being 

overbroad because it applied to a substantial amount of protected 

speech and unconstitutional as applied to his conduct under the 

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First Amendment. The district court denied Fleury’s motion, first 

rejecting his facial overbreadth argument by concluding “the plain 

language of section 2261A(2)(B) is directed towards conduct, not 

speech, and the statute does not punish a substantial amount of 

protected free speech in relation to its plainly legitimate sweep.” 

Regarding Fleury’s as-applied challenge, the court found the messages qualified as true threats and thus did not merit protection under the First Amendment. The court noted that Fleury “made numerous comments indicating a serious expression of an intent to 

commit an act of unlawful violence towards the victims,” and that 

his use of monikers based on notorious mass murderers “communicated to [the victims] that he had an intent to kidnap, kill, or otherwise harm them.” The court ultimately concluded that the messages “implied an ongoing intent to commit future acts of violence.” 

At the close of the government’s case-in-chief, Fleury moved 

for a judgment of acquittal under Federal Rule of Criminal Procedure 29, arguing the messages he sent were not true threats and 

thus were subject to First Amendment protection. In response, the 

government noted that it had presented evidence showing that 

Fleury sent the threatening and harassing messages anonymously, 

adopted usernames referencing known serial killers, and drafted a 

number of the threatening messages in the present tense, which 

indicated an ongoing threat to the victims. The district court denied Fleury’s motion and later denied Fleury’s renewed motion at 

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the close of evidence, concluding that the government had presented sufficient evidence to send all four counts to the jury.

During the charge conference, the district court reiterated 

that, because the course of conduct underlying Fleury’s 

§ 2261A(2)(B) charges was speech, the jury would have to find that 

his course of conduct included true threats. Accordingly, the court 

included an instruction for those counts stating: “You may only 

find the Defendant guilty if his course of conduct included the communication of a true threat.”3

On appeal, Fleury reasserts his facial overbreadth and as-applied challenges to the constitutionality of 18 U.S.C. § 2261A(2)(B). 

He contends that the statute is unconstitutionally overbroad because it has a wide-ranging sweep that encompasses protected 

speech—including a substantial amount of speech on matters of 

public concern—simply for causing an emotional reaction. Fleury 

argues that the statute is also unconstitutional as applied to his conduct because it amounts to a content-based restriction, limiting 

speech on the basis of whether that speech is emotionally distressing. The speech at issue, according to Fleury, was also on a matter 

of public concern and thus was entitled to special protection.

The government responds that Fleury glosses over critical 

statutory elements, including criminal intent, in his effort to portray § 2261A(2)(B) as facially unconstitutional. Section 2261A(2)(B) 

3 We will discuss the definition of “true threat” given to the jury and the parties’ attendant arguments in detail below.

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is also not unconstitutional as applied to Fleury’s conduct, the government argues, because true threats—like the messages Fleury 

sent to the victims—are entitled to no First Amendment protection 

and the messages did not address a matter of public concern.

* * *

We review both of Fleury’s constitutional challenges de 

novo. United States v. Jordan, 635 F.3d 1181, 1185 (11th Cir. 2011).

A. Overbreadth Challenge.

Section 2261A(2)(B) applies to whomever “with the intent 

to kill, injure, harass, intimidate . . . uses . . . any interactive computer service or electronic communication system of interstate 

commerce . . . to engage in a course of conduct that” “causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress.” 18 U.S.C. § 2261A(2)(B). The term “course 

of conduct” is defined as “a pattern of conduct composed of 2 or 

more acts, evidencing a continuity of purpose.” 18 U.S.C. § 2266(2).

A conviction under § 2261A(2)(B) thus requires proof that 

“(1) the defendant had the requisite intent; (2) the defendant engaged in a course of conduct; (3) the defendant used a facility of 

interstate commerce; and (4) the defendant’s course of conduct 

caused, attempted to cause, or would be reasonably expected to 

cause substantial emotional distress.” United States v. Ackell, 907 

F.3d 67, 72 (1st Cir. 2018) (alterations adopted and internal quotation marks omitted).

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A statute is impermissibly overbroad under the First Amendment—and facially unconstitutional—if it prohibits “a substantial 

amount of protected speech.” United States v. Williams, 553 U.S. 

285, 292 (2008). The Supreme Court has long recognized that “the 

overbreadth doctrine is ‘strong medicine’ and ha[s] employed it 

with hesitation, and then ‘only as a last resort.’” New York v. Ferber, 458 U.S. 747, 769 (1982). The burden of establishing overbreadth rests on the party challenging the statute. Virginia v. Hicks, 

539 U.S. 113, 122 (2003).

Fleury has not met his burden of demonstrating that 

§ 2261A(2)(B) is unconstitutionally overbroad. His facial challenge 

fails because it ignores key statutory elements that narrow the conduct it applies to—including, for example, proof that the defendant 

acted with “intent to kill, injure, harass, [or] intimidate” and evidence that the defendant “engage[d] in a course of conduct” consisting of two or more acts evidencing a continuity of purpose. 18 

U.S.C. § 2261A(2)(B). Further, “[t]he mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Williams, 553 U.S. at 303 (internal quotation mark omitted). The Supreme Court has “vigorously enforced the requirement that a statute’s overbreadth be substantial, not only in an absolute sense, but 

also relative to the statute’s plainly legitimate sweep.” Id. at 292–

93.

Because § 2261A(2)(B) is not “substantial[ly]” overbroad, we 

uphold the constitutionality of the statute. See id. In doing so we 

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join every circuit court of appeals that has addressed a facial attack 

to § 2261A(2)(B). See United States v. Ackell, 907 F.3d 67, 73 (1st 

Cir. 2018) (concluding that § 2261A(2)(B) does not target speech, 

and therefore is not unconstitutionally overbroad, because even 

though the statute “could reach highly expressive conduct, it is 

plain from the statute’s text that it covers countless amounts of unprotected conduct”); United States v. Petrovic, 701 F.3d 849, 856 

(8th Cir. 2012) (concluding, under the prior version of the statute, 

that “[m]ost, if not all, of the statute’s legal applications are to conduct that is not protected by the First Amendment” (alteration 

adopted)); United States v. Osinger, 753 F.3d 939, 944 (9th Cir. 

2014) (rejecting an overbreadth challenge to the prior version of 

§ 2261A(2)(B) and concluding that because the statute “proscribes 

harassing and intimidating conduct, the statute is not facially invalid”).

We find the analysis the First Circuit employed in Ackell particularly persuasive. In that case, the defendant was charged and 

convicted with one count of cyberstalking under Section 

2261A(2)(B) in a sextortion case involving a teenager. Defendant 

Ackell had threatened to send explicit photos of a teenage girl to 

her family and friends if she did not do what he wanted. Ackell 

challenged the statute as facially overbroad on appeal. The First 

Circuit upheld the conviction and dismissed Ackell’s overbreadth 

argument, concluding that the statute does not target speech; rather, it “targets conduct, specifically ‘conduct performed with serious criminal intent.’” 907 F.3d at 74. “[W]hile § 2261A(2)(B) could 

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reach highly expressive conduct,” the court explained, “it is plain 

from the statute’s text that it covers countless amounts of unprotected conduct.” Id. at 73. To demonstrate this point, the court provided examples of unprotected conduct covered under the statute:

a defendant could send envelopes of unknown white 

powder to the victim in the mail; he could send the 

victim nude photographs of herself; he could repeatedly infect the victim’s computers with viruses; he 

could open unwanted on-line dating profiles under 

the victim’s identity; he could take out unwanted 

loans in the victim’s name; or he could arrange every 

day for deliveries to be made at the victim’s home at 

all hours of the night.

Id. Thus, the First Circuit declined to employ the “strong medicine” of overbreadth and strike down Section 2261A(2)(B). So too 

do we.

B. As-Applied Challenge.

Fleury’s as-applied challenge fares no better than his facial 

challenge. While it’s feasible to think of limited instances in which 

§ 2261A(2)(B) could apply to constitutionally-protected speech, 

Fleury’s case is not one of them. He argues that the statute is unconstitutional as applied to his conduct because (1) his speech concerned a matter of public concern, and (2) the statute impermissibly restricts the content of his speech. Neither argument has merit. 

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a. Matter of Public Concern.

“Speech on matters of public concern is at the heart of the 

First Amendment’s protection.” Snyder v. Phelps, 562 U.S. 443, 

451–52 (2011) (cleaned up). Speech is considered to deal with a matter of public concern “when it can be fairly considered as relating 

to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a 

subject of general interest and of value and concern to the public[.]” 

Id. at 453 (internal quotation marks and citations omitted). Such 

speech is afforded greater First Amendment protection than speech 

on purely private matters because restricting the latter presents “no 

threat to the free and robust debate of public issues . . . [or] potential interference with a meaningful dialogue of ideas.” Id. at 452. 

Whether speech addresses a matter of public or private concern 

turns on “the content, form, and context” of the speech. Id. at 453.

The district court correctly concluded—after considering 

their content, form, and context—that Fleury’s messages address 

purely private matters. Of course, the MSD shooting itself is a matter of public concern that kick-started a debate on multiple political 

and social issues, including mental health, gun control, and school 

safety. However, Fleury’s messages did not address any of these 

topics, attempt to engage in a dialogue concerning these issues, or 

provide any other relevant information. Instead, as the district 

court noted, the messages threatened and intimidated the victims 

by gloating over the death of their loved ones and “focused only on 

exacerbating the victims’ grief—a purely private matter.” The 

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government is correct in stating that “[t]he fact that Fleury’s threatening and intimidating messages arose in the wake of a public tragedy does not transform their ‘overarching purpose’ into constitutionally protected commentary on a matter of public concern.” Put 

simply, restricting the speech at issue presents “no threat to the free 

and robust debate of public issues [nor] potential interference with 

a meaningful dialogue of ideas.” Phelps, 562 U.S. at 452.

b. Content-Based Regulation.

We now turn to Fleury’s argument that § 2261A(2)(B) unconstitutionally restricts the content of his speech.

Regulations are content based—and subject to strict scrutiny—if they, “by their terms[,] distinguish favored speech from disfavored speech on the basis of the ideas or views expressed.” 

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 643 (1994). On the 

other hand, “laws that confer benefits or impose burdens on speech 

without reference to the ideas or views expressed are in most instances content neutral.” Id.

As an initial matter, we agree with Fleury that the application of § 2261A(2)(B) to his speech amounts to a content-based restriction. It is precisely because of the content of his speech—which 

included threats to kidnap the three victims and to kill them and 

their other loved ones—that Fleury was investigated, indicted, and, 

ultimately, convicted. This conclusion does not, however, end our 

analysis. The district court found that § 2261A(2)(B)—as applied to 

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Fleury—did not violate the First Amendment because his messages 

were true threats. We agree with the district court. 

The Supreme Court has long recognized certain “well-defined and narrowly limited classes of speech, the prevention and 

punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 

571–72 (1942). Among these categories are incitement, obscenity, 

defamation, speech integral to criminal conduct, fighting words, 

child pornography, fraud, speech presenting a grave and imminent 

threat, and true threats. See United States v. Alvarez, 567 U.S. 709, 

717 (2012). Content-based restrictions are permitted when they are 

confined to these categories of speech. Id. In fact, the Supreme 

Court has recognized that the protection of our tradition of free 

speech and thought “can still thrive, and even be furthered, by adherence to [these] categories” and restrictions. Id. at 718. 

The relevant category of speech here is that of true threats. 

“‘True threats’ encompass those statements where the speaker 

means to communicate a serious expression of an intent to commit 

an act of unlawful violence to a particular individual or group of 

individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). The 

speaker does not have to actually intend to carry out the threat for 

the statement to constitute a true threat. Id. at 359–60. “Rather, a 

prohibition on true threats protects individuals from the fear of violence and from the disruption that fear engenders, in addition to 

protecting people from the possibility that the threatened violence 

will occur.” Id. at 360 (cleaned up).

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Fleury made numerous comments that indicated a serious 

expression of an intent to commit an act of unlawful violence toward each victim. For example, Fleury assumed the alias of one of 

the nation’s most notorious serial killers, Ted Bundy, when he sent 

messages to all three victims from the username “Teddykillspeople” that he had the intent to kidnap or otherwise harm them. In 

other messages sent over the course of several days, Fleury characterized himself as Nikolas Cruz, declared himself a “murderer” and 

threatened that “[w]ith the power of my AR-15, you all die.”

The district court correctly noted that “[t]hese messages did 

more than celebrate the death of the victims’ loved ones. Instead, 

they implied an ongoing intent to commit future acts of violence.” 

Take, for instance, the message that Fleury sent all three victims: 

“I’m your abductor. I’m kidnapping you fool.” This message is 

worded in the present tense and evidences an intent to intimidate 

and place the recipient of the message in fear of bodily harm or 

death. See Black, 538 U.S. at 360. In fact, Alexis Sealy testified that 

receiving this message affected her “because this was the first message [she] had received that enforced some kind of action.” Further, 

messages stating “you all die” and expressing an intent to “take 

your loved ones away” clearly show an intent to harm or kill individuals that are still alive, rather than merely taunting the victims 

over the lives that had already been lost. Moreover, at least one of 

the victims, Jesse Guttenberg, was in such fear for his life that his 

parents requested law enforcement maintain a presence outside 

the Guttenberg home and monitor Jesse’s movements at school.

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And law enforcement apparently agreed with the assessment, as

they went ahead and provided the protection.

When viewing Fleury’s messages within the context of his 

entire course of conduct—including the sheer number and frequency of the messages4—they create the visual of an anonymous, 

persistent tormenter who desires to harm the victims. This is precisely the type of fear that the “true threats” doctrine is intended to 

prevent. See Black, 538 U.S. at 360 (noting that a prohibition on 

true threats serves to protect individuals from the fear of violence).

Because we agree with the district court that the messages 

Fleury sent amount to true threats, they are not afforded protection under the First Amendment. Accordingly, § 2261A(2)(B) is 

constitutional as applied to Fleury’s conduct. 

II. Sufficiency of the Indictment for § 2261A(2)(B) 

Having determined that § 2261A(2)(B) is constitutional both 

facially and as applied to Fleury’s conduct, we turn to Fleury’s challenge to the sufficiency of the indictment.

Fleury argues that the indictment was insufficient for his cyberstalking counts under 18 U.S.C. § 2261A(2)(B) because it was 

4 When asked about the number of messages she received, Alexis Sealy testified that “[i]t would be about tens, maybe even a hundred messages a night 

over the span of a few weeks.” More specifically, documents in evidence show 

that, from December 22, 2018, to January 11, 2019, Fleury used thirteen different Instagram accounts to send a total of 168 messages to Jesse Guttenberg, 75 

messages to Alexis Sealy, and 58 messages to Max Schachter.

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based on the emotional distress his messages caused the victims, 

not because they were “true threats.” The relevant portion of the 

indictment reads:

BRANDON MICHAEL FLEURY, did, with the intent 

to harass and intimidate, use an interactive computer 

service and electronic communication service and 

any other facility of interstate and foreign commerce 

to engage in a course of conduct that caused, attempted to cause, and would be reasonably expected 

to cause substantial emotional distress . . . .

Fleury did not challenge the sufficiency of the indictment in 

the district court. “When the adequacy of an indictment is challenged for the first time on appeal, this Court must find the indictment sufficient unless it is so defective that it does not, by any reasonable construction, charge an offense for which the defendant is 

convicted.” United States v. Gray, 260 F.3d 1267, 1282 (11th Cir. 

2001) (internal quotation mark omitted).

Fleury’s unpreserved challenge to his indictment provides 

no basis for us to vacate his cyberstalking convictions. The indictment tracked the language of the statute, provided Fleury with adequate notice of his charges, and sufficiently charged the offense 

for which he was convicted. See id. An indictment is not insufficient 

simply because it “might have been drafted with more clarity.” 

United States v. Poirier, 321 F.3d 1024, 1029 (11th Cir. 2003). Accordingly, we affirm the district court.

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III. Sufficiency of the Evidence for Subjective Intent 

Having found the indictment sufficient, we now turn to 

Fleury’s challenge to the sufficiency of the evidence for his subjective intent to threaten.

At trial, Fleury moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Fleury argues that the district 

court erred in denying both his motion and his renewed motion 

under Rule 29 because the government presented no evidence 

whatsoever that Fleury—who the government acknowledged did 

not have the same understanding of emotion as the average person—intended to threaten anyone. There was thus insufficient evidence, he contends, of his subjective intent to transmit interstate 

threats and cyberstalk, and his convictions should be reversed.

“We review de novo a district court’s denial of judgment of 

acquittal on sufficiency of evidence grounds.” United States v. 

Browne, 505 F.3d 1229, 1253 (11th Cir. 2007). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in 

the light most favorable to the prosecution and draw “all reasonable inferences and credibility choices” in its favor. Id. “This inquiry 

does not require that the evidence be inconsistent with ‘every reasonable hypothesis except guilt.’” Id. Accordingly, we will uphold 

the denial of judgment of acquittal—and affirm the guilty verdict—

if “any rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 

U.S. 307, 319 (1979). 

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Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence of Fleury’s subjective intent

to threaten. The jury heard from both a defense expert witness, Dr. 

Butts, and a government expert witness, Dr. Dietz, and they gave 

conflicting accounts of Fleury’s culpability and the effect his ASD 

had on his ability to comprehend emotions. Specifically, Dr. Dietz 

concluded that Fleury intended to cause his victims anger, grief, 

and fear. And, in response to a questionnaire Fleury completed during Dr. Butts’s evaluation, Fleury described himself as “a sympathetic person” and maintained that he “can put [himself] in other 

people’s shoes.”

After hearing the testimony, the jury was free to determine 

both experts’ credibility as it saw fit. See Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 255 (1986) (explaining that “[c]redibility 

determinations, the weighing of the evidence, and the drawing of 

legitimate inferences from the facts are jury functions”). We decline to invade the province of the jury by reevaluating the experts’ 

credibility and reweighing the evidence on appeal. In fact, it is precisely because “we recognize that ‘the jury is free to choose between or among the reasonable conclusions to be drawn from the 

evidence presented at trial,’ [that] our sufficiency review requires 

only that a guilty verdict be reasonable, not inevitable, based on 

the evidence presented at trial.” Browne, 505 F.3d at 1253.

Because it is possible that a “rational trier of fact could have 

found the essential elements of the crime beyond a reasonable 

doubt,” Jackson, 443 U.S. at 319, we find sufficient evidence 

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22 Opinion of the Court 20-11037

supported the jury’s findings that Fleury had the requisite intent to 

be convicted of 18 U.S.C. §§ 875(c) and 2261A(2)(B).

IV. Admission of Expert Testimony 

We next turn to Fleury’s contention that the district court 

erred in allowing the testimony of government expert Dr. Dietz. 

Because this argument is raised for the first time on appeal, we review only for plain error. United States v. Clotaire, 963 F.3d 1288,

1292 (11th Cir. 2020). “To find plain error, there must be: (1) error, 

(2) that is plain, and (3) that has affected the defendant’s substantial 

rights.” United States v. Hesser, 800 F.3d 1310, 1324 (11th Cir. 2015) 

(per curiam). “[W]e may exercise our discretion to recognize a forfeited error . . . only if the error ‘seriously affect[s] the fairness, integrity[,] or public reputation of judicial proceedings.’” Id. 

Fleury argues that Dr. Dietz’s testimony should not have 

been permitted because it was irrelevant and unfairly prejudicial. 

According to Fleury, Dr. Dietz was not qualified to opine on how 

Fleury’s ASD affected his mental state because Dr. Dietz is an expert on serial killers, not ASD. Not only was Dr. Dietz’s testimony 

not relevant, Fleury argues, but it was also unfairly prejudicial—

Dr. Dietz testified that he was previously involved in the cases of 

mass murderers like Jeffrey Dahmer and Ted Kaczynski, and in 

Fleury’s view, his testimony forced the jury to equate Fleury with 

these individuals and any other mass murderer in recent history. 

Fleury also complains that the government elicited testimony 

about Fleury’s sexual attraction to serial killers and other mass 

murderers. Fleury argues that the admission of this testimony was 

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20-11037 Opinion of the Court 23

plain error because it resulted in the jury convicting him based on 

fear of a crime he did not commit.

“Evidence is relevant if: (a) it has any tendency to make a 

fact more or less probable than it would be without the evidence; 

and (b) the fact is of consequence in determining the action.” Fed. 

R. Evid. 401. Only relevant evidence is admissible. Fed. R. Evid. 

402. Relevant evidence may be excluded, however, “if its probative 

value is substantially outweighed by a danger of . . . unfair prejudice[.]” Fed. R. Evid. 403. 

A witness who is qualified as an expert . . . may testify 

in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized 

knowledge will help the trier of fact to understand the 

evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.

Fed. R. Evid. 702.

The admission of Dr. Dietz’s testimony was not plain error. 

Having undertaken an extensive eight-hour evaluation of Fleury 

over two days, Dr. Dietz explained that Fleury’s attraction to the 

domineering and taunting characteristics of serial killers motivated 

him to send the intimidating messages and opined that Fleury 

could appreciate the impact that his messages had on the recipients.

This testimony was thus clearly relevant under Rule 401, and 

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24 Opinion of the Court 20-11037

Fleury does not explain how the government failed to meet its burden under Rule 702. While it is true that Dr. Dietz is not an expert 

on ASD, he is an expert on forensic psychiatry—not solely an expert on mass murderers as Fleury argues on appeal.

Nor did the district court plainly err when it did not sua 

sponte preclude the government from introducing evidence relating to Fleury’s attraction to serial killers. Such evidence helped the 

jury understand the motive for Fleury’s actions, and the court’s instructions ensured that the jury could convict Fleury only of the 

crimes he was charged with. Finding no plain error, we affirm the 

district court.

V. Jury Instructions 

Finally, we address Fleury’s challenges to the jury instructions.

During the charge conference, the government acknowledged that the speech necessary to convict Fleury of cyberstalking 

under § 2261A(2)(B) (Counts 2–4) must amount to true threats.

Fleury insisted that the district court should require the jury to find 

that he had the subjective intent to communicate a true threat to 

convict him on these counts. Pointing out that “the scienter that 

Congress has defined is intent to harass and intent to intimidate,” 

however, the government argued that proof of Fleury’s subjective 

intent was unnecessary as to these counts. The district court declined to require proof of Fleury’s subjective intent to communicate a true threat, concluding that § 2261A(2)(B) already includes 

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20-11037 Opinion of the Court 25

“a scienter element on its very face” and that “adding a subjective 

true threat to the scienter [would be] a statutory rewrite.”

The district court also rejected the use of Fleury’s proposed 

definition of “true threat,” and instead chose to track the definition 

contained in the pattern jury instruction for interstate threats under 

18 U.S.C. § 875(c) 5: “A ‘true threat’ is a serious threat—not idle talk, 

a careless remark or something said jokingly—that is made under 

circumstances that would place a reasonable person in fear of being 

kidnapped, killed or physically injured.”

On appeal, Fleury reasserts his challenges to the cyberstalking and theory of defense instructions. We address each instruction 

in turn.6

A. Cyberstalking Jury Instruction. 

“We review jury instructions challenged in the district court 

de novo to determine whether the instructions misstated the law 

or misled the jury to the prejudice of the objecting party.” United 

States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013) (internal quotation mark omitted). “We will not reverse a defendant’s conviction based on a challenge to the jury charge unless we are left with 

5 18 U.S.C. § 875(c) provides: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any 

threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”

6 Fleury does not appeal the jury instruction provided for Count 1, transmitting interstate threats in violation of 18 U.S.C. § 875(c).

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26 Opinion of the Court 20-11037

a substantial and ineradicable doubt as to whether the jury was 

properly guided in its deliberations.” Id. (internal quotation mark 

omitted).

As outlined above, to convict Fleury of cyberstalking the 

government was required to prove that (1) he had the requisite intent to harass or intimidate; (2) he engaged in a pattern of conduct 

composed of two or more acts, evidencing a continuity of purpose; 

(3) he used an electronic communication system of interstate commerce; and (4) his pattern of conduct caused, attempted to cause, 

or would be reasonably expected to cause substantial emotional 

distress. See Ackell, 907 F.3d at 72; see also 18 U.S.C. 

§§ 2261A(2)(B), 2266(2).

The jury instruction the trial judge gave as to § 2261A(2)(B)

reads in full as follows:

It’s a Federal crime to knowingly use, with the 

intent to harass or intimidate, an interactive computer service, electronic communications service, or 

other facility of interstate or foreign commerce to engage in a course of conduct that causes, attempts to 

cause, or would be reasonably expected to cause substantial emotional distress.

The Defendant can be found guilty of this 

crime only if the following facts are proved beyond a 

reasonable doubt:

(1) the Defendant used an interactive computer 

service, electronic communication service, or 

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20-11037 Opinion of the Court 27

any other facility of interstate and foreign commerce to engage in a course of conduct;

(2) that the Defendant, while engaged in the 

course of conduct, acted with the intent to harass or intimidate Victims 1, 2, or 3;

(3) that the Defendant’s course of conduct caused, 

attempted to cause, or would be reasonably expected to cause substantial emotional distress 

to Victims 1, 2, or 3.

A “course of conduct” is a pattern of conduct 

composed of two or more acts, evidencing a continuity of purpose. You may consider each communication between the defendant and the victims as a separate act.

Intent to “harass” means to act with the specific intent or purpose of causing an adverse emotional reaction in a specific person, not merely speech 

that happens to cause annoyance or insult.

Intent to “intimidate” means to act with the 

specific intent or purpose of putting a person in fear 

or apprehension of injury inflicted by a particular person.

You may only find the Defendant guilty if his 

course of conduct included the communication of a 

true threat. A “true threat” is a serious threat—not 

idle talk, a careless remark, or something said jokingly—that is made under circumstances that would 

place a reasonable person in fear of being kidnapped, 

killed, or physically injured.

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28 Opinion of the Court 20-11037

“Substantial emotional distress” means significant mental distress, mental suffering or anguish, as 

well as physical pain. It therefore requires a serious 

invasion of mental tranquility.

The Supreme Court analyzed the constitutionality of a jury 

instruction that included a definition of “true threat” in the context 

of 18 U.S.C. § 875(c) in Elonis v. United States, 575 U.S. 723 (2015). 

Under § 875(c), it is a federal crime to transmit in interstate commerce “any communication containing any threat to kidnap any 

person or . . . injure the person of another.” 18 U.S.C. § 875(c). In 

Elonis, the Court reversed a conviction under § 875(c) when the 

jury was instructed that:

A statement is a true threat when a defendant intentionally makes a statement in a context or under such 

circumstances wherein a reasonable person would 

foresee that the statement would be interpreted by 

those to whom the maker communicates the statement as a serious expression of an intention to inflict 

bodily injury or take the life of an individual.

Elonis, 575 U.S. at 731. Because neither the statutory text of § 875(c) 

nor the jury instruction provided contained a scienter requirement, 

the Court acknowledged that Elonis’s conviction “was premised 

solely on how his posts would be understood by a reasonable person.” Id. at 737.

“Such a ‘reasonable person’ standard,” the Court noted, “is 

inconsistent with ‘the conventional requirement for criminal conduct—awareness of some wrongdoing.’” Id. at 737–38. The Court 

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20-11037 Opinion of the Court 29

found that “Elonis’s conviction cannot stand” because “[t]he jury 

was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and 

that was error.” Id. at 740 (“Federal criminal liability generally does 

not turn solely on the results of an act without considering the defendant’s mental state.”). The Court ultimately held that “the mental state requirement in Section 875(c) is satisfied if the defendant 

transmits a communication for the purpose of issuing a threat, or 

with knowledge that the communication will be viewed as a 

threat.” Id. Criminal negligence is not enough to convict under 

§ 875(c). Id.

Because Elonis decided the requirements for liability under 

§ 875(c) as a matter of statutory interpretation, it did not reach the 

defendant’s First Amendment challenge to the jury instructions.

* * *

Fleury asserts on appeal that the cyberstalking—or “interstate stalking”—jury instruction presents an Elonis issue. He contends that, after Elonis, we should hold that a defendant can be 

constitutionally convicted of making a true threat only if the defendant intended the recipient to feel threatened. The given jury 

instruction, Fleury argues, does exactly what the Supreme Court 

held was impermissible in Elonis—defines “true threat,” and hinges 

criminal liability, on how a “reasonable person” would view the 

messages rather than on the subjective intent of the sender of those 

messages: the defendant.

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30 Opinion of the Court 20-11037

We find no error in the instruction provided to the jury. The 

district court properly declined to instruct the jury that the government had to prove Fleury’s subjective intent to communicate a 

true threat to convict him of cyberstalking under 18 U.S.C. 

§ 2261A(2)(B). Fleury relies in vain on Elonis, where the Supreme 

Court read a mens rea requirement into a statute that lacked any

scienter element—the transmission of interstate threats under 18 

U.S.C. § 875(c). No similar problem exists here because the cyberstalking statute required proof that the defendant acted with the 

intent to harass or intimidate. See 18 U.S.C. § 2261A(2).7

Because the plain language of § 2261A(2) establishes a mens 

rea requirement sufficient “to separate wrongful conduct from 

‘otherwise innocent conduct,’” Elonis, 575 U.S. at 736, it was not 

reversible error for the district court to decline to impose an additional, subjective-intent requirement for the jury to convict Fleury 

of cyberstalking. The jury was instructed on the mens rea element—subjective intent to harass or intimidate—that Fleury must 

have had while communicating true threats.8 The jury found the 

7 This was Fleury’s proposed jury instruction on mens rea for his 18 U.S.C. 

§ 2261A(2)(B) charges:

 “Intent to harass or intimidate” requires an intent to communicate a true threat. A “true threat” is a statement where 

the speaker means to communicate a serious expression of an 

intent to commit an act of unlawful violence to a particular 

individual or group of individuals.

8 Notably, the court’s jury charge defining the subjective intent to harass or 

intimidate required the specific intent or purpose of causing an adverse 

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20-11037 Opinion of the Court 31

government proved the requisite mental state beyond a reasonable 

doubt. Fleury cites no case law for his position that, even when a 

statute contains an express mental state requirement, the district 

court should read an additional mens rea requirement into the text, 

nor does such a position make sense. See United States v. Bell, 303 

F.3d 1187, 1191 (9th Cir. 2002) (declining to include a specific intent 

instruction when the instruction already included “the intent to 

harass,” and concluding that “[t]he instructions given were 

properly tailored to the charged offense and the district court was 

not obligated to do more”). Accordingly, we affirm the district 

court as to this issue.

B. Theory of Defense Jury Instruction. 

Fleury argues next that the district court erred in modifying 

his proposed theory of defense jury instruction. We review a refusal to give a requested theory of defense instruction for an abuse 

of discretion. United States v. Rutgerson, 822 F.3d 1223, 1236 (11th

Cir. 2016). A refusal to give a requested instruction “will be reversed only if (1) the requested instruction was substantively correct, (2) the court’s charge to the jury did not cover the gist of the 

instruction, and (3) the failure to give the instruction substantially 

reaction in a specific person or of putting a person in fear or apprehension of 

injury inflicted by a particular person. Thus, in addition to the requirement 

that the content of the message had to be a true threat, the court charged that 

Fleury must have had the specific intent to cause an adverse emotional reaction or to cause fear.

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32 Opinion of the Court 20-11037

impaired the defendant’s ability to present an effective defense.” Id. 

(internal quotation mark omitted). 

As relevant to the resolution of this issue, Fleury proposed 

the following instruction:

The First Amendment permits restrictions 

upon the content of speech in only a few well-defined 

and narrow classes of speech. The only exception relevant here is for “true threats.” “True threats” are 

statements where the speakers means to communicate a serious expression of intent to commit an act of 

unlawful violence to a particular individual or group 

of individuals. 

Mr. Fleury contends that his statements were 

not “true threats” because they were not serious expressions of intent to commit an act of unlawful violence. If you have a reasonable doubt as to whether 

the Instagram messages were “true threats,” you 

must find Mr. Fleury not guilty. 

Over Fleury’s objection the district court instead gave the 

following instruction:

The First Amendment of the United States 

Constitution permits restrictions upon the content of

speech in only a few well-defined and narrow classes 

of speech. The only exception relevant here is for 

“true threats.” A “true threat” is a serious threat—not 

idle talk, a careless remark, or something said jokingly—that is made under circumstances that would 

place a reasonable person in fear of being kidnapped, 

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20-11037 Opinion of the Court 33

killed, or physically injured. Mr. Fleury contends that 

his statements were not “true threats.” If you have a 

reasonable doubt as to whether the Instagram messages were “true threats,” you must find Mr. Fleury 

not guilty as to all counts.

Fleury argues that the district court erroneously modified 

his theory of defense instruction because (1) it was a correct statement of law, as the proposed definition of “true threat” was taken 

verbatim from Virgina v. Black, (2) it was not adequately covered 

in the jury charge since the district court refused to instruct the jury 

as to his subjective intent, and (3) the refusal to give the instruction 

substantially impaired his ability to put forth a defense. 

While Fleury is correct that his proposed definition is a correct statement of law, we afford district courts “wide discretion to 

decide on the style and wording of [an] instruction” so long as it 

“accurately reflect[s] the law.” United States v. Singer, 963 F.3d 

1144, 1162 (11th Cir. 2020). Accordingly, “[w]e examine the jury 

charge as a whole, determining whether the entire charge sufficiently instructed the jury about the issues.” Id. 1162–63 (alterations adopted and internal quotation mark omitted). 

Here, the district court acted within its discretion in giving a 

modified version of Fleury’s proposed theory of defense jury instruction. The district court was not required to adopt the precise 

wording of Fleury’s proposed instruction. The district court covered the substance of Fleury’s proposed instruction in the theory of 

defense instruction it gave, and in the jury charge as a whole.

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34 Opinion of the Court 20-11037

Fleury’s proposed definition of “true threats” is a correct definition, 

but it is not the only correct definition. In fact, the Supreme Court 

recognized as much in Virginia v. Black. The full sentence in Black, 

from which Fleury omitted key words, reads: “‘True threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful 

violence to a particular individual or group of individuals.” 538 U.S. 

at 359 (emphasis added). As such, the Court never stated that the 

category of true threats is limited to such statements, only that the 

category “encompass[es]” them. See id. And Fleury has not shown 

that the definition given was an incorrect statement of the law. Further, Fleury isolates parts of the charge and fails to take into account other parts of the charge or the charge as a whole, as discussed below.

Indeed, the substance of the proposed instruction was adequately covered in the charge the district court gave to the jury. 

Both substantive offense instructions required that the jury consider Fleury’s subjective intent. The instruction for 18 U.S.C. 

§ 875(c) required the jury to find that Fleury “sent the message with 

the intent to communicate a true threat or with the knowledge that 

it would be viewed as a true threat,” and the instruction for 18 

U.S.C. § 2261A(2)(B) required the jury to find that Fleury “acted 

with the intent to harass or intimidate.” The § 2261A(2)(B) instruction further defined “intent to harass” as “to act with the specific 

intent or purpose of causing an adverse emotional reaction in a specific person, not merely speech that happens to cause annoyance 

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20-11037 Opinion of the Court 35

or insult” and “intent to intimidate” as “to act with the specific intent or purpose of putting a person in fear or apprehension of injury 

inflicted by a particular person.” In Black, the Supreme Court 

found that “[i]ntimidation in the constitutionally proscribable sense 

of the word is a type of true threat, where a speaker directs a threat 

to a person or group of persons with the intent of placing the victim 

in fear of bodily harm or death.” 538 U.S. at 360. Thus, there was 

no substantial impairment to Fleury’s ability to present his theory 

of defense because the other instructions adequately covered it.

Because the theory of defense instruction the district court 

gave, coupled with its charge as a whole, adequately “cover[ed] the

gist” of Fleury’s proposed instruction, and because the failure to 

give the instruction did not substantially impair Fleury’s ability to 

present an effective defense, the district court did not abuse its discretion and we affirm. See Rutgerson, 822 F.3d at 1236.

CONCLUSION 

In conclusion, we hold that 18 U.S.C. § 2261A(2)(B) is both 

facially constitutional and constitutional as applied to Fleury’s conduct. Having found no reversible error on any of the issues Fleury 

presents on appeal, we affirm the district court’s rulings and 

Fleury’s convictions.

AFFIRMED. 

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