UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, ´
v. ¨ No. 10-5169
THOMAS CREIGHTON SHRADER,
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
Irene C. Berger, District Judge.
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.
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.
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.
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
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
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
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.
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
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
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.
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
[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
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.
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
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.
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.
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
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
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.
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
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
*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
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
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.
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.
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
24 UNITED STATES v. SHRADER
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