United States of America v. Erik Bowker

*The Honorable R ichard M ills, United States District Judge for the
Central District of Illinois, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0178P (6th Cir.)
File Name: 04a0178p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIK BOWKER,
Defendant-Appellant.
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No. 02-4086
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 01-00441—John M. Manos, District Judge.
Submitted: March 10, 2004
Decided and Filed: June 11, 2004
Before: MARTIN and CLAY, Circuit Judges; MILLS,
District Judge.*
_________________
COUNSEL
ON BRIEF: Jay Milano, MILANO & CO., Rocky River,
Ohio, for Appellant. Edward F. Feran, ASSISTANT
2 United States v. Bowker No. 02-4086
UNITED STATES ATTORNEY, Cleveland, Ohio, for
Appellee.
_________________
OPINION
_________________
CLAY, Circuit Judge. Defendant-Appellant Erik S.
Bowker appeals his convictions and sentence for one count of
interstate stalking, in violation of 18 U.S.C. § 2261A(1); one
count of cyberstalking, in violation of 18 U.S.C. § 2261A(2);
one count of theft of mail, in violation of 18 U.S.C. § 1708;
and one count of telephone harassment, in violation of 47
U.S.C. § 223(a)(1)(C). Bowker also appeals the district
court’s failure to rule on his motion to return seized property
and the district court’s enhancement of his sentence based on
extreme psychological harm to the victim. For the reasons
that follow, we AFFIRM Bowker’s convictions and sentence,
but REMAND to the district court for a ruling on Bowker’s
motion to return seized property.
I
Facts
A. Procedural History
On August 28, 2001, United States Magistrate Judge
George J. Limbert signed a criminal complaint charging Erik.
S. Bowker (“Bowker”) with one count of telephone
harassment in violation of 47 U.S.C. § 223(a)(1)(C). Bowker
was arrested on August 29, 2001. On September 7, 2001, the
magistrate judge held a preliminary examination and
detention hearing for Bowker. The magistrate judge
determined that probable cause for Bowker’s arrest had been
established, and he ordered Bowker detained.
On September 25, 2001, a federal grand jury returned a
four-count indictment against Bowker. Bowker was charged

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No. 02-4086 United States v. Bowker 3
with one count of interstate stalking, in violation of 18 U.S.C.
§ 2261A(1); one count of cyberstalking, in violation of
18 U.S.C. § 2261A(2); one count of theft of mail, in violation
of 18 U.S.C. § 1708; and one count of telephone harassment,
in violation of 47 U.S.C. § 223(a)(1)(C).
Bowker filed several pretrial motions which are the subject
of this appeal – a pro se motion to represent himself, a motion
to dismiss Counts 1, 2, and 4 of the indictment, a motion to
sever Count 3 from the indictment, a motion to suppress
evidence, and a pro se motion for return of seized property
and items, pursuant to Rule 41 of the Federal Rules of
Criminal Procedure. The district court denied all of the
foregoing motions, except for the motion to return seized
property, on which the district court never ruled. On March
26, 2002, after the denial of Bowker’s pro se motion to
represent himself, Bowker’s counsel moved to withdraw from
the case, and Bowker signed a separate statement asking the
court to grant the motion and assign him new counsel. The
district court granted the motion and assigned Bowker new
counsel.
Bowker’s jury trial commenced on June 3, 2002. On June
6, 2002, the jury returned verdicts of guilty against Bowker
on all counts. On September 5, 2002, the government moved
for an upward departure from the sentencing guidelines based
on the victim’s extreme psychological harm. On September
10, 2002, the district court sentenced Bowker to 96 months’
incarceration, three years of supervised release, and a $400
special assessment. In assessing the term of incarceration, the
district court granted the government’s motion for an upward
departure.
B. Substantive Facts
In March, 2000, Tina Knight began working as a part-time
general assignment reporter at WKBN Television in
Youngstown, Ohio. WKBN has a general email account for
most employees, and in June, 2000, WKBN received a
4 United States v. Bowker No. 02-4086
number of emails relating to Knight. The emails were sent
from several different email addresses and purported to be
from an individual variously identified as “User x,” Eric
Neubauer, Karen Walters, and “BB.” Several of the emails
attached photographs with verbal captions. One caption
referred to Knight being shot with a pellet gun, and another
email said, “Thanks for my daily Tina Knight fix. Thanks for
helping me get my nuts off,” and another said “More Tina
Knight, that is what I want and need.” After receiving
approximately nine of these types of email, WKBN’s news
director took them to the station’s general manager. They
then contacted Special Agent Deane Hassman of the FBI.
Soon thereafter, Knight was shown the emails, and she was
stunned and frightened.
FBI Agent Hassman began investigating the Tina Knight
emails in July, 2000. Hassman was concerned about
Knight’s personal safety based on the content of the emails.
One of the emails that concerned Hassman stated, “I’m not
the type of obsessed viewer that hides in the bushes near your
home to watch you come home from work, but we shall see.
That may actually be fun.” Another disturbing email stated,
in part, “Dear Ms. Knight. Now I’m really pissed that you
were looking even cuter than normally. You fucked up a little
bit and here I am watching on this black and white thrift store
TV. Cute, cute, cute. I bet you were a Ho at Ohio University
in Athens, doing chicks and everything. Wow.”
On July 25, 2000, Hassman sent emails to the various email
addresses on the correspondence pertaining to Knight.
Hassman asked the sender of the emails to contact him so that
he could determine the sender’s intent. Within 24 to 48
hours, Hassman received a telephone call from an individual
who identified himself as Erik Bowker. Hassman wanted to
set up a meeting with Bowker so Hassman could positively
identify the sender of the emails and also ask him to cease and
desist from contacting Knight. They arranged to meet at the
public library in Youngstown, but Bowker never showed.

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No. 02-4086 United States v. Bowker 5
A few weeks later, Knight began receiving hand-written
notes at WKBN, the majority of which were signed by “Doug
Wagner.” By September, the letters were arriving at the
station almost every couple of days. One of the letters
included the phrase, “All this week I will be playing the role
of Doug Wagner.” A letter dated August 9, 2000 was signed
“Chad Felton”; stated, “I think you are a super babe”; and
included a necklace. The return addresses on the letters were
one of two P.O. Boxes registered to Erik Bowker or his
mother.
Knight left her employment at WKBN in November, 2000
to take a position at WOWK CBS13 in Charleston, West
Virginia. WKBN did not inform the general public of
Knight’s new location.
In late December, 2000, Knight’s parents, who reside in
Medina, Ohio, received a card and a handwritten note at their
home. The card purported to be from “Kathryn Harris.” The
letter read, “Dear Tina Knight: I am Kathryn Harris today. I
didn’t want your parents asking you a lot of questions, nor did
I want to attract a lot of attention to you. My letters to you
are all online at yahoo.com in a standard mail account. It is
all explained there so please check in and read what I have
written.… The E-mail address is tinahatesme@yahoo.com.”
Agent Hassman visited the email address to check if any
letters had been sent to the email address mentioned in the
letter. Hassman discovered that an email had been sent
December 25, 2000. At the end of the email, the name “Doug
Wagner” was typed. The email read, in part, “I told you I
would not contact you by mail anymore but I am sorry, I am
in agony. I’m thinking about you all the time. You really are
my dream girl.… I am blinded with affection for you. I did
not ask for this. Nope, it’s all your fault.… Please don’t cat
dance on my emotions by failing to respond to me at all.”
In February, 2001, Bowker filed a lawsuit against Knight
in the Mahoning County Common Pleas Court. Knight’s
social security number was stated in the complaint, which was
6 United States v. Bowker No. 02-4086
served at Knight’s home address in West Virginia. Bowker’s
lawsuit accused Knight of stalking him. Agent Hassman
attended a status conference for the lawsuit on March 16,
2001, so that he could make face-to-face contact with
Bowker. After meeting Bowker at the hearing and
confirming that Bowker had been sending the unsolicited
correspondence to Knight, Hassman told Bowker that the
correspondence was unwelcome and might be a violation of
federal law. Hassman advised Bowker that if the conduct
continued, it might result in his arrest. Bowker responded
that he had a First Amendment right to engage in that type of
conduct. Nevertheless, during the meeting, Bowker wrote
and signed a note stating, “I understand that Tina M. Knight
wishes all further contact with her or any family member to
stop and I agree to do so, pursuant to conversation with Deane
Hassman, special agent, Federal Bureau of Investigation ….”
Bowker also agreed to voluntarily dismiss his lawsuit against
Knight.
Despite Bowker’s March, 16, 2001 agreement to cease and
desist from any further contact with Knight, on that very same
day, Bowker mailed a letter to Knight. Bowker also
continued to attempt telephone contact with Knight. Between
January 26 and August 29, 2001, Bowker made 146 telephone
calls from his cell phone to WOWK CBS 13, where Knight
worked. Bowker also made 16 calls to Knight’s personal
residential telephone in West Virginia between August 11 and
28, 2001. Knight’s number was unlisted and unpublished.
According to telephone records, each of the 16 calls placed to
Knight’s home were preceded by *67, which enables a caller
to block identification of his telephone number on the
recipient’s caller identification display. Bowker also called
Knight’s co-worker and a neighbor.
As the telephone calls to Knight’s television station
persisted through the summer of 2001, Agent Hassman
believed it was important to capture Bowker’s voice on tape,
so Hassman provided Knight with a recording device at the
television station. On June 12, 2001, Knight recorded a 45

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No. 02-4086 United States v. Bowker 7
minute telephone call from Bowker who, at one point,
identified himself as “Mike.” During the conversation,
Bowker referred to Knight’s neighbors, her family members
and her social security number. He also indicated he might be
watching Knight with his binoculars. Knight provided the
tape to the FBI and never spoke to Bowker again on the
telephone.
On July 16, 2001, Knight received a letter at the television
station. In the letter, Bowker referred to Knight’s parents and
stated several times, “You do not hang up on me.” The letter
also crassly referred to Knight’s car, threatened to file a
mechanic’s lien on her car and her co-worker’s car, accused
Knight and her colleague of being “fuck-ups, assholes and
seriously emotional and mentally unbalanced,” and contained
numerous sexual references. The letter stated that Bowker
would be contacting Knight’s neighbors, pointed out that
Knight had not registered her car in West Virginia, and
concluded with the words, “So bye-by, fuck you, you are an
asshole and a sociopath and an embarrassment to mothers
everywhere sir.… Adios, Eric.… Smooch, Smooch.”
On August 10, 2001, Knight received a certified letter
mailed to her residence in West Virginia. Accompanying the
letter were numerous photographs of Bowker at various
locations in West Virginia, Knight’s home state. The letter
stated, in part, “Send me an E-Mail address. It keeps me long
distance, you know what I mean.” Knight forwarded the
letter and the photographs to the FBI. Bowker’s credit card
statement later revealed purchases from a Kmart and a Kroger
near Knight’s place of employment and residence in West
Virginia between June 12 and July 30, 2001.
In August 2001, Bowker left a series of messages on
Knight’s answering machine asking that Knight or Knight’s
friend call him back, which did not occur. Among other
things, Bowker stated:
8 United States v. Bowker No. 02-4086
I don’t even know why I’m nice to you ever at all, you
and your fucked-up friend should not even be working in
the media. You know you gotta mother-fucking realize
there’s like 50 percent men in this country and you better
mother-fucking learn that you’re going to have to deal
with us sometime.…
Well, it looks like nobody is going to answer me if
Tina Knight is okay, so I’m gonna take the 1:00 a.m. bus
out of Columbus, Ohio and come down there and see for
myself. Okay, I’ll be there about 6:00 a.m. Bye.
Knight testified that these messages made her afraid to leave
the house everyday, and she feared that Bowker might try to
rape her. She gave the answering machine recordings to the
FBI.
Bowker was arrested on August 29, 2001 at a self-storage
facility in Youngstown where he kept some of his
possessions. Among other things recovered from the storage
facility, Bowker’s car and other locations, were a police
scanner set to the frequency of the Youngstown Police
Department, a paper with scanner frequencies from the
Dunbar, West Virginia Police Department, letters bearing the
name “Chad Felton,” a credit report for Tina Knight, Knight’s
birth certificate, a map of Dunbar, West Virginia, Greyhound
bus schedules with West Virginia routes, and photos taken by
Bowker during a West Virignia trip on July 11, 2001, which
included pictures of Knight’s place of work, her car and CBS
news trucks. The FBI also discovered that Bowker had in his
possession a Discover Card credit card bill addressed to Tina
Knight in West Virginia. Knight never received that
statement in the mail.
II
Probable Cause for Bowker’s Arrest
Bowker argues that the magistrate judge erroneously found
that there was probable cause to issue a warrant for his arrest
premised on an alleged violation of 47 U.S.C.

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No. 02-4086 United States v. Bowker 9
§ 2223(a)(1)(C), which prohibits telephone harassment. He
further argues that trial court committed the same error when
it denied Bowker’s motion to suppress evidence obtained
through the arrest warrant. We reject Bowker’s arguments for
the reasons stated below.
A. Standard of Review
The Court considers the evidence that the warrant-issuing
magistrate judge had before him only to ensure that the
magistrate had a substantial basis for concluding that probable
cause existed. See United States v. Jones, 159 F.3d 969, 973
(6th Cir.1998) (citing Illinois v. Gates, 462 U.S. 213, 238-39
(1983)). The Court defers to findings of probable cause made
by a magistrate, and will not set aside such findings unless
they were arbitrarily made. United States v. Brown, 147 F.3d
477, 484 (6th Cir.1998). When reviewing a district court's
denial of a motion to suppress, the Court reviews the district
court's findings of fact for clear error and its conclusions of
law de novo. Id.
B. Analysis
At the preliminary hearing, the government brought a one-
count criminal complaint against Bowker for the crime of
telephone harassment, in violation of 47 U.S.C.
§ 223(a)(1)(C). That section provides for a fine,
imprisonment, or both for anyone, who in interstate or foreign
communications:
makes a telephone call or utilizes a telecommunications
device, whether or not conversation or communication
ensues, without disclosing his identity and with intent to
annoy, abuse, threaten, or harass any person at the called
number or who receives the communications.
47 U.S.C.A. § 223. Incorporated into the criminal complaint
was the affidavit of FBI Agent Deane Hassman, who alleged
that Bowker had made numerous telephone calls to Tina
10 United States v. Bowker No. 02-4086
Knight in which Bowker did not identify himself, including
a conversation with Knight on June 12, 2001, and messages
left on Knight’s answering machine on August 17-19 and 25-
26, 2001. Agent Hassman’s affidavit also provided extensive
background details on Bowker’s campaign of harassment
against Knight via emails, letters and telephone calls.
Bowker concedes that the magistrate judge could have
found probable cause on the elements of using the telephone
with the intent to annoy, abuse, threaten or harass. He argues,
however, that the magistrate had no basis to find the element
of failing to disclose identity during the telephone calls
because Knight, the recipient of those calls, allegedly
recognized his voice, making it unnecessary for him to state
his name. See J.A. 581 (testimony of Agent Hassman:
“There came a point in time where Tina [Knight] began to
recognize a certain voice on the phone, which she believed to
be Eric [sic] Bowker.”). Bowker points to the fact that during
the June 12, 2001 telephone conversation with Knight, she
referred to Bowker as “Eric” [sic].
Bowker’s argument is flawed in several respects. His
argument does not address the numerous occasions when
Bowker called Knight and no conversation ensued and no
messages were left or her answering machine. The evidence
before the magistrate showed that Bowker used a caller
identification blocking feature (*67) to place these calls,
thereby concealing his identity. Since the telephone
harassment law prohibits calls made with the intent to harass
or annoy “whether or not conversation or communication
ensues,” there was probable cause to find that Bowker had
concealed his identity in those instances. Knight’s alleged
ability to identify Bowker’s voice was irrelevant.
Bowker responds that his use of the *67 feature should be
legally irrelevant, since it penalizes him for placing telephone
calls to numbers with a caller identification service. He
contends that criminal liability should not hinge on what
telephone features a person pays for each month to the local

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No. 02-4086 United States v. Bowker 11
phone company. Bowker, however, is not being penalized
based on the telephone features to which his victim
subscribed, but for using the *67 feature in conjunction with
his intent to annoy or harass Knight. Had he lacked that
intent, no criminal liability would have attached.
Even assuming that Knight was able to identify Bowker’s
voice, the magistrate judge properly found probable cause to
believe that Bowker had not disclosed his identity during the
June 12, 2001 conversation in which he mis-identified
himself as “Mike” and in August, 2001, when he left
messages on Knight’s answering machine without providing
any name at all. On its face, the telephone harassment statute
makes it illegal to place a call, with the intent to annoy, abuse
threaten or harass, whenever the caller fails to identify
himself. Since Bowker concedes that the magistrate judge
could have found probable cause that he had the requisite
intent, it was Bowker’s provision of a false name and/or his
failure to identify himself – not an erroneous judicial
determination about the victim’s recognition of his voice –
that led to the issuance of his arrest warrant.
Bowker similarly argues that the district court, which
supervised the trial proceedings, erred in denying his motion
to suppress evidence derived from his arrest for telephone
harassment. In addition to his argument that the evidence did
not support a finding of probable cause to believe that
Bowker had failed to disclose his identity (discussed above),
Bowker argues that the district court erred in ruling that FBI
agent Hassman did not intentionally mislead or omit crucial
material facts in his affidavit supporting probable cause.
Bowker argues that he showed, by a preponderance of the
evidence, materially false representations and omissions by
Agent Hassman, and that absent those misrepresentations,
probable cause would not have been found.
To prevail on a motion to suppress based on allegations of
intentional misrepresentation by a law enforcement officer in
the course of obtaining an arrest warrant, Bowker must
12 United States v. Bowker No. 02-4086
establish (1) the allegation of perjury or reckless disregard
“by the defendant by a preponderance of the evidence” and
(2) “with the affidavit’s false material set to one side, the
affidavit’s remaining content is insufficient to establish
probable cause, [such that] the search warrant must be voided
and the fruits of the search’ suppressed.” United States v.
Graham, 275 F.3d 490, 505 (6th Cir .2001) (quoting Franks
v. Delaware, 438 U.S. 156, 155-56 (1978)). Bowker has not
established that Agent Hassman perjured himself in his
affidavit in support of the criminal complaint or at the
suppression hearing. At most, he quibbles with Hassman’s
characterization of Bowker’s letters and emails as sexual and
threatening. Hassman’s characterization, however, largely is
a matter of opinion, and the content of Bowker’s
communications speak for themselves. Thus, there is no
indication that the magistrate judge was misled in reaching its
probable cause finding. Accordingly, the district court did
not err in denying Bowker’s motion to suppress evidence.
III
Motion to Dismiss Counts 1, 2 and 4 of the Indictment
Bowker argues that the district court erred in failing to
dismiss Counts 1 (interstate stalking), 2 (cyberstalking) and
4 (telephone harassment) of the indictment on the ground that
the indictment inadequately alleged the elements of the
offenses charged, and on the ground that the statutes that the
indictment alleged he violated are unconstitutionally vague
and overbroad. We review the denial of a motion to dismiss
de novo. United States v. Maney, 226 F.3d 660, 663 (6th Cir.
2000). For the reasons that follow, we affirm the decision of
the district court.
A. Sufficiency of the Indictment
Under the Notice Clause of the Sixth Amendment, a
criminal defendant has the right “to be informed of the nature
and cause of the accusation” against him. U.S. CONST.
amend. VI. In addition, the Indictment Clause of the Fifth

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No. 02-4086 United States v. Bowker 13
Amendment requires that a defendant be charged with only
those charges brought before the grand jury. U.S. CONST.
amend. V. An indictment satisfies these constitutional
requirements “if it, first, contains the elements of the offense
charged and fairly informs a defendant of the charge against
which he must defend, and, second, enables him to plead an
acquittal or conviction in bar of future prosecutions for the
same offense.” Maney, 226 F.3d at 663 (citing Hamling v.
United States, 418 U.S. 87, 117 (1974); Russell v. United
States, 369 U.S. 749, 763-64 (1962); United States v.
Sturman, 951 F.2d 1466, 1478-79 (6th Cir.1991)). “To be
legally sufficient, the indictment must assert facts which in
law constitute an offense; and which, if proved, would
establish prima facie the defendant’s commission of that
crime.” Id. (quoting United States v. Superior Growers
Supply, Inc., 982 F.2d 173, 177 (6th Cir.1992)).
“An indictment is usually sufficient if it states the offense
using the words of the statute itself, as long as the statute fully
and unambiguously states all the elements of the offense.”
United States v. Landham, 251 F.3d 1072, 1079 (6th Cir.
2001) (citing Hamling, 418 U.S. at 117; United States v.
Monus, 128 F.3d 376, 388 (1997)). The Supreme Court has
cautioned, however, that while “the language of the statute
may be used in the general description of the offense, …it
must be accompanied with such a statement of the facts and
circumstances as will inform the accused of the specific
offense, coming under the general description, with which he
is charged.” Hamling, 418 U.S. at 117-18 (internal quotation
marks and citation omitted). “‘Courts utilize a common sense
construction in determining whether an indictment
sufficiently informs a defendant of an offense.’” Maney, 226
F.3d at 663 (quoting Allen v. United States, 867 F.2d 969, 971
(6th Cir.1989)).
14 United States v. Bowker No. 02-4086
1Count 1 of the indictment charges Bowker with interstate stalking,
in violation of 18 U.S.C. § 226 1A(1). That section penalizes whoever:
travels in interstate or foreign commerce or within the special
maritime and territorial jurisdiction of the United States, or
enters or leaves Indian country, with the intent to kill, injure,
harass, or intimidate another person, and in the course of, or as
a result of, such travel places that person in reasonable fear of
the death of, or serious bodily injury to, that person, a member
of the imme diate family (as defined in section 115) of that
person, or the spouse or intimate partner of that person.
2Count 2 of the indictment charges Bo wker w ith cyberstalking, in
violation of 18 U.S.C. § 22 61A(2). T hat section penalizes whoever:
with the intent--
(A) to kill or injure a person in another State or tribal
jurisdiction or within the special maritime and
territorial jurisdiction of the United States; or
(B) to plac e a person in another State or tribal
jurisdiction, or within the special maritime and
territorial jurisdiction of the United States, in
reaso nable fear of the death of, or serious bodily injury
to--
(i) that person;
(ii) a member of the immediate family (as
defined in section 115) of that person; or
(iii) a spouse or intimate partner of that
person,
uses the mail or any facility of interstate or foreign comm erce to
engage in a course of cond uct that places that person in
reasonable fear of the death of, or serious bodily injury to, any
of the persons described in clauses (i) through (iii).
3Count 4 of the indictment charges Bowker with telephone
harassment, in violation of 47 U.S.C. § 223 (a)(1)(C). That section
penalizes whoever:
(1) in interstate or foreign communications–
(C) makes a telephone call or utilizes a telecommunications
Count1 (interstate stalking)1, Count 2 (cyberstalking)2 and
Count 4 (telephone harassment)3 track the language of the

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No. 02-4086 United States v. Bowker 15
device, whether or not conversation or com munication ensues,
without disclosing his identity and with intent to annoy, abuse,
threaten, or harass any person at the called number or who
receives the communications.
relevant statutes. Count 1 alleges that, between July 10 and
July 30, 2001, Bowker knowingly and intentionally traveled
across the Ohio state line with the intent to injure, harass, and
intimidate Tina Knight, and as a result of such travel placed
Knight in reasonable fear of death or serious bodily injury, in
violation of 18 U.S.C. § 2261A(1). Count 2 alleges that
between December 25, 2000 and August 18, 2001 Bowker,
located in Ohio, knowingly and repeatedly used the internet
to engage in a course of conduct that intentionally placed
Knight, then located in West Virginia, in reasonable fear of
death or serious bodily injury, in violation of 18 U.S.C.
§ 2261A(2). Count 4 alleges that between June 12, 2001, and
August 27, 2001, Bowker, located in Ohio, knowingly made
telephone calls, whether or not conversation or
communication ensued, without disclosing his identity and
with the intent to annoy, abuse, threaten and harass Knight, in
violation of 47 U.S.C. § 223(a)(1)(C). Because the
indictment stated all of the statutory elements of the offenses,
and because the relevant statutes state the elements
unambiguously, the district court properly denied Bowker’s
motion to dismiss Counts 1, 2 and 4 of the indictment. The
indictment’s reference to the specific dates and locations of
the offenses, as well as the means used to carry them out
(travel, internet, telephone), provided Bowker fair notice of
the conduct with which he was being charged.
Relying on the Landham case, supra, Bowker argues that
the indictment was defective because it does not charge him
with making direct threats against Knight and therefore
should have contained a statement of facts and circumstances
surrounding the alleged indirect threats he made against her,
such as an explanation of the parties’ relationship. See
Landham, 251 F.3d at 1080 (holding “because the alleged
16 United States v. Bowker No. 02-4086
threatening statement must be viewed from the objective
perspective of the recipient, which frequently involves the
context of the parties’ relationship…, it is incumbent on the
Government to make that context clear in such an indictment,
unless the alleged threat is direct”).
Landham is distinguishable, however. There, the Court
held that the indictment failed to sufficiently allege a
kidnaping threat because the indictment was missing several
elements of the offense, specifically, a communication
containing a threat and a threat to kidnap. Id. at 1082. The
indictment failed to acknowledge that the defendant had been
in a custody battle with his ex-wife over their daughter and,
therefore, the defendant’s obscure statements like “I’m going
to get her” were either unreasonably perceived to be
kidnaping threats and, even if the alleged threat had been
carried out, it would not have constituted a crime as a matter
of substantive law. Id. at 1081-83. The Court further held
that the indictment failed to sufficiently allege a threat of
bodily harm, because the statement charged in the indictment
referred to past conduct of the defendant, not present or future
conduct, and, in any event, did not mention a threat to inflict
bodily harm. Id. at 1082-83. Bowker’s indictment, by
contrast, did not contain similar deficiencies. All of the
statutory elements of the prohibited conduct were properly
alleged, including the intent to cause a reasonable fear of
death or serious bodily harm. And unlike the parties involved
in Landham, whose custody battle was highly relevant to the
charged conduct, Bowker’s relationship with Knight had no
relevant bearing on the alleged illegality of his conduct. We
therefore reject Bowker’s challenge to the sufficiency of the
indictment.
B. Overbreadth Challenge
According to the Supreme Court, imprecise laws can be
attacked on their face under two different doctrines –
overbreadth and vagueness. City of Chicago v. Morales, 527
U.S. 41, 529 (1999). The “overbreadth doctrine is a limited

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No. 02-4086 United States v. Bowker 17
exception to the traditional standing rule that a person to
whom a statute may constitutionally be applied may not
challenge that statute on the basis that it may conceivably be
applied in an unconstitutional manner to others not before the
court.” Staley v. Jones, 239 F.3d 769, 784 (6th Cir. 2001)
(citations omitted). However, “overbreadth scrutiny
diminishes as the behavior regulated by the statute moves
from pure speech toward harmful, unprotected conduct.” Id.
at 785. “‘[P]articularly where conduct and not merely speech
is involved, we believe that the overbreadth of a statute must
not only be real, but substantial as well, judged in relation to
the statute's plainly legitimate sweep.’” Id. (quoting
Broadrick v. Oklahoma, 413 U.S. 601, 615-161 (1973)).
Bowker has provided absolutely no argument as to how
18 U.S.C. § 2261A, which prohibits interstate stalking and
cyberstalking, is facially overbroad, merely asserting that the
statute “reaches large amounts of protected speech and
conduct” and “potentially targets political or religious
speech.” We fail to see how a law that prohibits interstate
travel with the intent to kill, injure, harass or intimidate has a
substantial sweep of constitutionally protected conduct.
18 U.S.C. § 2261A(1). The same is true with respect to the
prohibition of intentionally using the internet in a course of
conduct that places a person in reasonable fear of death or
seriously bodily injury. 18 U.S.C. § 2261A(2). It is difficult
to imagine what constitutionally-protected political or
religious speech would fall under these statutory prohibitions.
Most, if not all, of these laws’ legal applications are to
conduct that is not protected by the First Amendment. Thus,
Bowker has failed to demonstrate how 18 U.S.C. § 2261A is
substantially overbroad.
We also reject Bowker’s argument as to the purported
overbreadth of the telephone harassment statute, 47 U.S.C.
§ 223(a)(1)(C). Bowker relies on the Supreme Court’s
decision in Coates v. City of Cincinnati, 402 U.S. 611 (1971),
which involved a city ordinance that made it a criminal
offense for three or more persons to assemble on a sidewalk
18 United States v. Bowker No. 02-4086
and to be “annoying” to passersby. Id. at 611. The Court
struck down the ordinance, reasoning that it was
“unconstitutionally broad because it authorizes the
punishment of constitutionally protected conduct.” Id. at 614.
Coates is distinguishable. First, the focus of the telephone
harassment statute is not simply annoying telephonic
communications. It also prohibits abusive, threatening or
harassing communications. Thus, the thrust of the statute is
to prohibit communications intended to instill fear in the
victim, not to provoke a discussion about political issues of
the day. See United States v. Lampley, 573 F.2d 783, 787 (3d
Cir. 1978) (holding that in enacting the telephone harassment
statute, “Congress had a compelling interest in the protection
of innocent individuals from fear, abuse or annoyance at the
hands of persons who employ the telephone, not to
communicate, but for other unjustifiable motives”) (citations
omitted). Second, the telephone harassment statute operates
in a distinctly different realm of communication than the
ordinance in Coates, which governed the manner in which
individuals could assemble and communicate in the open on
public property. Persons who find sidewalk speech annoying
usually are not being singled out by the speaker and, in any
event, have the option of ignoring that speech by walking
away or taking a different route. Because the sidewalk
speaker is operating in the open, annoyed listeners have little
reason to fear for their safety and can readily identify and
confront the speaker if they so choose. Not so with
individuals receiving unwelcome, anonymous telephone calls.
Call recipients have to deal with much more inconvenience to
avoid the speech (e.g., changing telephone numbers or using
a call-screening service); these calls usually are targeted
toward a particular victim and are received outside of a public
forum (e.g., the home or the workplace); and, because the
caller does not identify himself, the speech is more likely to
instill fear in the listener and, at a minimum, makes it more
difficult for the listener to confront the caller. Accordingly,
the domain of prohibited speech is far more circumscribed,
and the government’s interest in protecting recipients of the

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No. 02-4086 United States v. Bowker 19
speech is far more compelling, under the telephone
harassment statute compared to the city ordinance at issue in
Coates.
We acknowledge that the telephone harassment statute, if
interpreted to its semantic limits, may have unconstitutional
applications. For example, if Bowker had been charged with
placing anonymous telephone calls to a public official with
the intent to annoy him or her about a political issue, the
telephone harassment statute might have been
unconstitutional as applied to him. See United States v. Popa,
187 F.3d 672, 677-78 (D.C. Cir. 1999) (holding that
telephone harassment statute was unconstitutional as applied
to defendant who had placed seven calls to a U.S. Attorney to
complain about his treatment by the police and the
prosecutor’s conduct of a case against him). But Bowker was
not so charged. His calls were predominately, if not
exclusively, for the purpose of invading his victim’s privacy
and communicating express and implied threats of bodily
harm. This type of speech is not constitutionally protected.
Landham, 251 F.3d at 1080. But the fact that application of
the telephone harassment statute may be unconstitutional in
certain instances does not warrant facial invalidation. See
Parker v. Levy, 417 U.S. 733, 760 (1974) (facial invalidation
not appropriate when the remainder of the statute “covers a
whole range of easily identifiable and constitutionally
proscribable conduct”); Staley, 239 F.3d at 786-87 (holding
that “several examples of speech or expressive conduct that
could conceivably be restricted under the statute” did not
render anti-stalking statute unconstitutional). Whatever
overbreadth exists in the statute “can be cured on a case-by-
case basis.” Staley, 239 F.3d at 787 (citing Broadrick, 413
U.S. at 615-16). No cure is necessary in this case.
C. Vagueness Challenge
“[E]ven if an enactment does not reach a substantial amount
of constitutionally protected conduct, it may be impermissibly
vague because it fails to establish standards for the police and
20 United States v. Bowker No. 02-4086
public that are sufficient to guard against the arbitrary
deprivation of liberty interests.” Morales, 527 U.S. at 52
(citing Kolender v. Lawson, 461 U.S. 352, 358 (1983)).
Vagueness may invalidate a criminal statute if it either
(1) fails “to provide the kind of notice that will enable
ordinary people to understand what conduct it prohibits” or
(2) authorizes or encourages “arbitrary and discriminatory
enforcement.” Id. at 56 (citing Kolender, 461 U.S. at 357).
“It is established that a law fails to meet the requirements of
the Due Process Clause if it is so vague and standardless that
it leaves the public uncertain as to the conduct it prohibits....”
Giaccio v. Pennsylvania, 382 U.S. 399, 402-03 (1966).
The stalking and telephone harassment statutes charged in
Bowker’s indictment provide sufficient notice of their
respective prohibitions because citizens need not guess what
terms such as “harass” and “intimidate” mean. This Court’s
decision in Staley v. Jones, supra, is instructive. That case
involved a habeas corpus review of a conviction for stalking
under a Michigan law that defines stalking as “a willful
course of conduct involving repeated or continuing
harassment of another individual that would cause a
reasonable person to feel terrorized, frightened, intimidated,
threatened, harassed, or molested and that actually causes the
victim to feel terrorized, frightened, intimidated, threatened,
harassed, or molested.” Mich. Comp. Laws Ann.
§ 750.411i(e). Michigan law defines “harassment” as
“conduct directed toward a victim that includes, but is not
limited to, repeated or continuing unconsented contact that
would cause a reasonable individual to suffer emotional
distress and that actually causes the victim to suffer emotional
distress.” Id. § 750.411i(d). Expressly excluded from the
definition of “harassment” is “constitutionally protected
activity or conduct that serves a legitimate purpose.” Id. This
Court rejected the petitioner’s vagueness challenge to the
Michigan statute, reasoning as follows:
A person of reasonable intelligence would not need to
guess at the meaning of the stalking statutes, nor would

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No. 02-4086 United States v. Bowker 21
his interpretation of the statutory language differ with
regard to the statutes’ application, in part because the
definitions of crucial words and phrases that are provided
in the statutes are clear and would be understandable to
a reasonable person reading the statute.… Also, the
meaning of the words used to describe the conduct can be
ascertained fairly by reference to judicial decisions,
common law, dictionaries, and the words themselves
because they possess a common and generally accepted
meaning. We therefore conclude that the statutes are not
void for vagueness on the basis of inadequate notice.
Staley, 239 F.3d at 791 -92.
The Michigan prohibition against willful harassment that
causes a reasonable person to feel fear is almost
indistinguishable from the federal anti-stalking statute,
18 U.S.C. § 2261A(1), which prohibits intentional harassment
that causes a reasonable fear of death or serious bodily injury.
In fact, the federal statute arguably is less vague because it
circumscribes the type of fear a victim must feel, namely a
fear of death or serious bodily injury, whereas the Michigan
law does not.
Bowker attempts to distinguish the Michigan statute by
pointing to the fact that Michigan law defines the word
“harassment,” whereas federal law does not. The harassment
definition under Michigan law, however, contains nothing not
already reflected in the federal statute’s general prohibition.
The Michigan definition of harassment requires conduct
directed toward a victim, but this requirement is implicitly
reflected in the federal statute’s requirement that a perpetrator
intend to harass a victim. Michigan’s harassment definition
also requires that the conduct cause a reasonable individual to
suffer emotional distress, but the federal statute requires
conduct that causes a fear of death or serious bodily injury.
There simply is no principled basis to distinguish the
language of the federal statute from the Michigan statute
which this Court upheld in Staley.
22 United States v. Bowker No. 02-4086
We also reject Bowker’s argument that the stalking and
telephone harassment statutes’ failure to define words like
“harass” and “intimidate” render them void for vagueness.
As noted by the Court in Staley, the meaning of these words
“can be ascertained fairly by reference to judicial decisions,
common law, dictionaries, and the words themselves because
they possess a common and generally accepted meaning.”
Staley, 239 F.3d at 791-92. Indeed, the Michigan anti-
stalking statute, which the Staley Court upheld, does not
appear to define the word “intimidate,” a word that Bowker
claims is too vague in the federal law. For this reason as well,
we reject Bowker’s vagueness challenge to the federal law.
Bowker’s reliance on Church of the Am. Knights of the Ku
Klux Klan v. City of Erie, 99 F. Supp. 2d 583 (W.D. Pa.
2000), also is misplaced. There, the court held that a city
ordinance that restricted the wearing of a mask “with the
intent to intimidate, threaten, abuse or harass any other
person” was unconstitutionally vague. Id. at 591 (quotation
marks and statutory citation omitted). The court found that
each of these terms, given their ordinary meaning, could
encompass forms of expression that are constitutionally
protected. Id. Not only might it prohibit certain types of
advocacy, such as advocating the return to segregation, but it
also might prohibit the simple act of wearing a mask. Id. The
court also found that the ordinance did not provide the public
with adequate notice of what type of conduct was prohibited.
The ordinance, however, is not comparable to the federal anti-
stalking statute. The federal anti-stalking statute, which
prohibits harassment or intimidation that causes a reasonable
fear of death or serious bodily harm, imposes a far more
concrete harm requirement than the ordinance at issue in Ku
Klux Klan, which did not require that the harassment or
intimidation result in any particular type of reaction in the
audience. See id. at 592 (holding that ordinance was
unconstitutionally vague: “To some extent, the speaker's
liability is potentially defined by the reaction or sensibilities
of the listener; what is ‘intimidating or threatening’ to one
person may not be to another. And, although the provision

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No. 02-4086 United States v. Bowker 23
has a scienter requirement, it is reasonable to expect that the
requisite intent could be inferred from circumstantial factors,
which may include the effect that particular speech has on the
speaker’s audience.”).
We further reject Bowker’s argument that the federal
stalking and telephone harassment statutes authorize or
encourage arbitrary or discriminatory enforcement. Although
the statutes provide no guidelines on terms like harass and
intimidate, the meanings of these terms “can be ascertained
fairly by reference to judicial decisions, common law,
dictionaries, and the words themselves because they possess
a common and generally accepted meaning.” Staley, 239
F.3d at 791-92. Thus, Bowker has not demonstrated that
these statutes fail to provide “sufficiently specific limits on
the enforcement discretion of the police to meet constitutional
standards for definiteness and clarity.” Morales, 527 U.S. at
64 (internal quotation marks and citation omitted).
Only Bowker’s vagueness challenge to part of the
telephone harassment statute, 47 U.S.C. § 223(a)(1)(C),
merits further discussion. As noted above, that statute
prohibits using a telephone, without disclosing identity, with
the intent to annoy, abuse, threaten, or harass any person at
the number called. Bowker argues that the term “annoy” is
unconstitutionally vague, relying on the Supreme Court’s
decision in Coates, supra. In rejecting the city ordinance
which made it a criminal offense for three or more persons to
assemble on a sidewalk and to be “annoying” to passersby,
the Court reasoned:
In our opinion this ordinance is unconstitutionally vague
because it subjects the exercise of the right of assembly
to an unascertainable standard, and unconstitutionally
broad because it authorizes the punishment of
constitutionally protected conduct. Conduct that annoys
some people does not annoy others. Thus, the ordinance
is vague, not in the sense that it requires a person to
conform his conduct to an imprecise but comprehensible
24 United States v. Bowker No. 02-4086
normative standard, but rather in the sense that no
standard of conduct is specified at all.
Id. at 614. The Court further held that the ordinance violated
the First Amendment right to freedom of assembly because
the “First and Fourteenth Amendments do not permit a State
to make criminal the exercise of the right of assembly simply
because its exercise may be ‘annoying’ to some people.” Id.
at 615.
We agree that the word “annoy,” standing alone and devoid
of context and definition, may pose vagueness concerns. But
that is not the case with the telephone harassment statute. The
statute reads “annoy, abuse, threaten, or harass.” 47 U.S.C.
§ 223(a)(1)(C). The Supreme Court has observed that
“[c]anons of construction ordinarily suggest that terms
connected by a disjunctive be given separate meanings, unless
the context dictates otherwise.” Reiter v. Sonotone Corp.,
442 U.S. 330, 339 (1979) (emphasis added). Here, the
statutory language must be read in the context of
Congressional intent to protect innocent individuals from fear,
abuse or annoyance at the hands of persons who employ the
telephone, not to communicate, but for other unjustifiable
motives. Lampley, 573 F.2d at 787. This context suggests
that the words annoy, abuse, threaten or harass should be read
together to be given similar meanings. Any vagueness
associated with the word “annoy” is mitigated by the fact that
the meanings of “threaten” and “harass” can easily be
ascertained and have generally accepted meanings. Staley,
239 F.3d at 791-92,
Even assuming, arguendo, that Bowker’s vagueness
argument theoretically has merit, he cannot rely on it to
invalidate the indictment or his conviction for telephone
harassment, because the statute clearly applies to the conduct
he allegedly committed. The Supreme Court held in Parker
v. Levy supra, 417 U.S. at 756:

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No. 02-4086 United States v. Bowker 25
…[O]ne who has received fair warning of the criminality
of his own conduct from the statute in question is [not]
entitled to attack it because the language would not give
similar fair warning with respect to other conduct which
might be within its broad and literal ambit. One to whose
conduct a statute clearly applies may not successfully
challenge it for vagueness.
Here, Bowker engaged in an anonymous campaign of
threatening and harassing conduct directed toward Knight
through use of the telephone (as well as the mails and the
computer) that clearly fell within the statute’s prohibition.
This type of conduct lies at the core of what the telephone
harassment statute was designed to prohibit. Lampley, 573
F.2d at 787. FBI Agent Hassman specifically warned Bowker
that he might be arrested if he persisted in his course of
telephone harassment, but Bowker ignored that warning.
Moreover, the fact that Bowker engaged in this campaign
with an intent to threaten or harass mitigates any concern that
he may have been punished for merely having a
communication over the telephone. As the Third Circuit held
in rejecting a vagueness challenge to the very same statutory
language:
The section’s specific intent requirement renders
unconvincing appellant's second claim that [the
predecessor to § 223(a)(1)(C) is] unconstitutionally
vague. It has long been true that (t)he Court, indeed, has
recognized that the requirement of a specific intent to do
a prohibited act may avoid those consequences to the
accused which may otherwise render a vague or
indefinite statute invalid. . . . (W)here the punishment
imposed is only for an act knowingly done with the
purpose of doing that which the statute prohibits, the
accused cannot be said to suffer from lack of warning or
knowledge that the act which he does is a violation of
law. Screws v. United States, 325 U.S. 91, 101-02, 65
S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). The appellant
cannot claim confusion about the conduct proscribed
26 United States v. Bowker No. 02-4086
where, as here, the statute precisely specifies that the
actor must intend to perform acts of harassment in order
to be culpable.
Lampley, 573 F.2d at 787. Thus, Bowker vagueness
challenge fails. The district court did not err in denying his
motion to dismiss Counts 1, 2 and 4 of the indictment.
IV
Motion to Sever Count 3 from the Indictment
The district court denied Bowker’s motion to sever Count 3
of the indictment (mail theft) from Counts 1 (interstate
stalking), 2 (interstate stalking), and 4 (telephone
harassment). Bowker had argued that joinder of these counts
would prejudice his rights under the Fifth Amendment and
Rules 8 and 14 of the Federal Rules of Criminal Procedure.
Specifically, he argued that the mail theft count should not be
admissible to support the other three counts for stalking and
telephone harassment on the ground that the crimes did not
possess the same or similar characteristics and that there was
no nexus between the mail theft count and the other alleged
crimes. He further argued that he wished to testify
concerning the stalking and telephone harassment counts,
which require the government to prove intent, but not the mail
theft count, and that joinder precluded him from exercising
his Fifth Amendment right to testify only as to the stalking
and telephone harassment counts. Last, he argued that the
jury’s exposure to evidence pertaining to the stalking and
telephone harassment counts would prejudice them in
deciding the mail theft count. Bowker renews these
arguments on appeal.
A motion for relief from the prejudicial joinder of counts
must be renewed at the close of the evidence. United States
v. Hudson, 53 F.3d 744, 747 (6th Cir. 1995). When the
defendant fails to renew the motion, this Court can reverse a
conviction only upon a showing of plain error. United States
v. Anderson, 89 F.3d 1306, 1312 (6th Cir. 1996). Bowker

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No. 02-4086 United States v. Bowker 27
failed to renew his motion to sever Count 3 of the indictment
from Counts 1, 2 and 4 at the close of the evidence.
Accordingly, he must demonstrate plain error by the district
court.
Federal Rule of Criminal Procedure 8 provides, in relevant
part:
(a) Joinder of Offenses. The indictment or information
may charge a defendant in separate counts with 2 or more
offenses if the offenses charged—whether felonies or
misdemeanors or both—are of the same or similar
character, or are based on the same act or transaction, or
are connected with or constitute parts of a common
scheme or plan.
Fed. R. Crim. P. 8(a). Rule 14 provides, in relevant part:
(a) Relief. If the joinder of offenses or defendants in an
indictment, an information, or a consolidation for trial
appears to prejudice a defendant or the government, the
court may order separate trials of counts, sever the
defendants’ trials, or provide any other relief that justice
requires.
Fed. R. Crim. P. 14(a). The record clearly shows that all of
the counts in Bowker’s indictment were of the same or similar
character and that the allegations thereunder were an integral
part of Bowker’s common scheme to harass and threaten
Knight. This scheme involved a 14-month campaign of
sending emails and regular mail and placing telephone calls
to her workplace in Youngstown; sending mail to her parent’s
home; placing telephone calls to Knight’s unpublished home
number in West Virginia; placing telephone calls to Knight’s
West Virginia workplace; sending mail to Knight’s West
Virginia home; and stealing Knight’s mail from her West
Virginia home. Thus, all of the counts properly were joined
pursuant to Rule 8, and the district court did not plainly err
under Rule 14 by refusing to sever the mail theft count.
28 United States v. Bowker No. 02-4086
Bowker also has not demonstrated that the district court
committed plain error when it rejected his argument that
severance was required in order to permit him to testify as to
the mail theft count, but to avoid testimony as to the stalking
and telephone harassment counts. The Tenth Circuit
confronted a similar argument in United States v. Martin, 18
F.3d 1515, 1518-19 (10th Cir. 1994), stating:
Martin contends that the denial of his severance motion
“forced [him] to testify at trial and convict himself as to
the drug count in an attempt to win an acquittal of the
gun count.”…Martin further contends that inasmuch as
he “had both important testimony to give concerning one
count and a strong need to refrain from testifying on the
other,” …the district court’s refusal to sever the counts
deprived him of a fair trial.…[N]o need for a severance
exists until the defendant makes a convincing showing
that he has both important testimony to give concerning
one count and a strong need to refrain from testifying on
the other. Applying these standards to our case, we hold
that Martin failed to demonstrate a convincing need for
a severance.
Several other circuits have applied the same or similar
standards. E.g., United States. v. Alosa, 14 F.3d 693, 695 (1st
Cir. 1994) (holding that defendant did not deserve severance
because he failed to make a convincing showing that he had
both important testimony to give concerning one count and a
strong need to refrain from testifying on the other); United
States v. Gorecki, 813 F.2d 40, 43 (3d Cir. 1987) (holding that
defendant’s bare allegation that the joinder of counts
prevented his testimony on one count, without a specific
showing as to what that testimony may have been, failed to
meet the stringent requirements for severance under Rule 14);
United States v. Ballis, 28 F.3d 1399, 1408 (5th Cir. 1994)
(affirming denial of severance because defendant did not
point out this alleged dilemma in testifying about some counts
but not others with sufficient specificity for the trial court to
have abused its discretion in denying the motion); United

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No. 02-4086 United States v. Bowker 29
States v. Alexander, 135 F.3d 470, 477 (7th Cir. 1998) (noting
that there may be cases in which a defendant can
convincingly show that he has important testimony to give on
one count but a strong need to remain silent on another, and
in that circumstance, severance may be required; affirming
denial of severance because defendant failed to provide
specific examples of the exculpatory testimony that he would
testify about).
It is clear that Bowker failed to make a “convincing
showing” that he had important testimony concerning the
interstate stalking and telephone harassment counts, as well
as a “strong need” to refrain from testifying on the mail theft
count. Indeed, his motion to sever provided absolutely no
indication as to what his testimony would be on the stalking
and harassment counts, stating only that his testimony was
“anticipated to be crucial” because these crimes have a
specific intent requirement. In addition, Bowker showed
absolutely no need to avoid testifying on the mail theft count,
merely arguing that his testimony on this count was “not
needed” because mail theft lacks a specific intent
requirement. Such non-specific assertions of prejudice are
insufficient to warrant severance under Rule 14. For these
reasons, the district court did not commit plain error in
refusing to sever the counts of the indictment.
V
Right to Self-Representation
Bowker argues that he is entitled to a new trial because the
district court denied his constitutional right to represent
himself. We review such a denial for an abuse of discretion.
Robards v. Rees, 789 F.2d 379, 384 (6th Cir. 1986).
On January 22, 2002, Bowker, then represented by counsel,
filed on his own initiative a hand-written motion “for release
of appointed attorney.” In that motion, Bowker stated, “Now
Comes Defendant, being first advised of his rights to an
attorney, and does now knowingly, willingly, and
30 United States v. Bowker No. 02-4086
intelligently waive his rights, to court-appointed counsel.”
The district court purported to deny that motion via a hand-
written minute order on January 28, 2002, stating that
“Defendant’s pro se motion for new counsel is denied.” The
court did not refer to the fact that Bowker’s motion did not
seek new counsel, but to waive his right to counsel. Bowker,
however, soon had a change of heart about representing
himself because on March 26, 2002, Bowker’s attorney
moved to withdraw as counsel due to “the fractured lawyer-
client relationship.” In an attached statement signed by
Bowker, Bowker requested that his appointed lawyer
withdraw from the case “and that a new lawyer be appointed
to represent” him. The court granted the motion on April 10,
2002 and appointed a new federal public defender for Bowker
on April 22, 2002.
The sixth and fourteenth amendments guarantee state
criminal defendants the right of self-representation at trial.
See Faretta v. California, 422 U.S. 806 (1975). Since it is
more likely than not that a defendant would fare better with
the assistance of counsel, id. at 835, he will be permitted to
represent himself only when he “knowingly and intelligently”
relinquishes his right to counsel. Id. Such a knowing waiver
must be made by a “clear and unequivocal” assertion of the
right to self-representation. Id. “Once there is a clear
assertion of that right, the court must conduct a hearing to
ensure that the defendant is fully aware of the dangers and
disadvantages of proceeding without counsel.” Raulerson v.
Wainwright, 732 F.2d 803, 808 (11th Cir. 1984) (citation
omitted).
We hold that the district court erred in denying Bowker’s
January 22, 2002 motion to represent himself which was
accompanied by a clear and unequivocal assertion of the right
to self-representation. At a minimum, the court should have
conducted some inquiry into the bases for Bowker’s motion.
It is not apparent from the record that the district court did
anything other than misconstrue the motion as a motion for
appointment of new counsel and then deny the motion.

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No. 02-4086 United States v. Bowker 31
Nevertheless, the district court’s error was rendered harmless
by Bowker’s change of heart about self-representation over
two months prior to trial. As noted above, after being denied
the right to represent himself, Bowker explicitly joined his
then-attorney’s motion to withdraw from the case and to have
new counsel appointed for him. Thus, Bowker’s last
indication to the district court on the matter was that he did
not wish to represent himself. Cf. id. at 809 (“Even if
Raulerson's letter of July 18, 1980 constituted a clear and
unequivocal demand to represent himself, his agreement to
proceed with the assistance of an attorney waived that original
request….”). Accordingly, the district court’s erroneous
disposition of the January 22, 2002 motion for self-
representation was rendered harmless error by Bowker’s
subsequent waiver of his right to self-representation. Bowker,
therefore, is not entitled to a new trial.
VI
Motion to Return Seized Property
On February 5, 2002, Bowker filed a pro se motion for
return of seized property and items, pursuant to Rule 41 of the
Federal Rules of Criminal Procedure. He sought an order
from the court directing the government to return all items
and tangible objects which were not going to be used as
evidence in his case. As of May 29, 2002, the district court
had not yet ruled on the motion, so Bowker filed a “request
for ruling on motion for return of property.” On June 4, 2002,
the district court denied Bowker’s request for a ruling on the
motion for return of property. No reasons were provided by
the court for the denial, and the district court never held a
hearing on, nor has it ever ruled on, the underlying motion for
return of property.
Rule 41 provides, in relevant part:
(g) Motion to Return Property. A person aggrieved by
an unlawful search and seizure of property or by the
deprivation of property may move for the property’s
32 United States v. Bowker No. 02-4086
return. The motion must be filed in the district where the
property was seized. The court must receive evidence on
any factual issue necessary to decide the motion. If it
grants the motion, the court must return the property to
the movant, but may impose reasonable conditions to
protect access to the property and its use in later
proceedings.
Fed. R. Crim. P. 41(g). In United States v. Hess, 982 F.2d
181 (6th Cir. 1992), this Court observed that “‘[a] district
court has both the jurisdiction and the duty to return the
contested property once the government’s need for it has
ended.’” Id. at 187 (internal quotation marks omitted;
quoting United States v. Martinson, 809 F.2d 1364, 1370 (9th
Cir.1987) (citing United States v. Wilson, 540 F.2d 1100,
1103-04 (D.C. Cir.1976)). There, the district court had failed
to address the legal or factual issues raised in a party’s motion
for return of seized records. The Court found it significant
that no hearing was held regarding who was entitled to
possession of the documents, and the district court had failed
to consider the merits of the moving party’s arguments. The
Court also was troubled because there were no findings of
fact or conclusions of law regarding which party was entitled
to retain the records. Accordingly, the Court held that the
district court did not discharge its duty under Rule 41(g) to
hear and decide the issues, reasoning that Rule 41(g) “clearly
contemplates a hearing ‘on any issue of fact necessary to the
decision of the motion.’” Id. at 186.
Hess is directly on point. The district court below simply
ignored Bowker’s motion to return records, and when Bowker
filed a motion to have the court rule on that motion, the court
denied the motion, without ever reaching the merits of the
underlying motion. The court held no hearing, took no
evidence, and gave no indication that it ever has considered
the merits of Bowker’s motion. Accordingly, on remand, the
district court shall hold a hearing on Bowker’s motion for
return of records, take evidence on any factual issues

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No. 02-4086 United States v. Bowker 33
necessary to resolve that motion, and promptly rule on that
motion.
VII
Motion for a Judgment of Acquittal as to Counts 1, 2
and 4
Bowker challenges the district court’s failure to grant his
motion for a judgment of acquittal on Counts 1, 2 and 4 of the
indictment, pursuant to Rule 29 of the Federal Rules of
Criminal Procedure. For the reasons that follow, we affirm
the judgment of the district court.
A. Standard of Review
“In reviewing a district court’s denial of a motion for
judgment of acquittal on a claim of insufficient evidence, ‘the
relevant question is whether after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.’” United States v. Lloyd, 10 F.3d
1197, 1210 (6th Cir. 1993) (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)). “If the evidence, however, is such that
a rational fact finder must conclude that a reasonable doubt is
raised, this court is obligated to reverse a denial of an
acquittal motion.” Id. (quoting United States v. Collon, 426
F.2d 939, 942 (6th Cir.1970)). The district court’s findings of
fact are reviewed for clear error, and circumstantial evidence
alone is sufficient to sustain a conviction. Nationwide Mut.
Ins. Co. v. Home Ins. Co., 278 F.3d 621, 625 (6th Cir. 2002);
United States v. Peters, 15 F.3d 540, 544 (6th Cir. 1994).
B. Interstate Stalking Count
Count 1 of the indictment charges Bowker with interstate
stalking, in violation of 18 U.S.C. § 2261A(1). The
government was required to prove:
34 United States v. Bowker No. 02-4086
(1) that the defendant traveled in interstate or foreign
commerce;
(2) with the intent to kill, injure, harass, or intimidate
another person; and
(3) in the course of, or as a result of, such travel places
that person in reasonable fear of the death of, or serious
bodily injury to, that person, a member of the immediate
family of that person, or the spouse or intimate partner of
that person.
Bowker argues that the government did not prove, pursuant
to the interstate stalking count, that the “result of” Bowker’s
travel from Ohio to West Virginia in July, 2001, was to put
Knight in reasonable fear of her life or bodily injury, because
Knight did not learn of Bowker’s travels until August 2001,
after he had completed his travel. This argument is specious.
Knight learned of Bowker’s travel to West Virginia because
he sent her numerous photographs informing her that he had
been in the state the preceding month. Accompanying the
photographs was the statement, “Take the photos out to read
the backs of them. Send me an E-mail address. It keeps me
long distance, you know what I mean.” The clear implication
of this statement was that Bowker would continue to
communicate with Knight, unless she provided him with her
email address. The jury was entitled to infer that this
statement, combined with the photographs of Bowker at
various locations in West Virginia, was intended to intimidate
Knight by showing her that Bowker had traveled to her state
and would do so in the future. The statute did not require the
government to show that Bowker actually intended to harass
or intimidate Knight during his travels, only that the result of
the travel was a reasonable apprehension of fear in the victim.
Since Knight testified that she was afraid that Bowker might
rape her, and her fear seemed reasonable, the government
proved all of the elements of the interstate stalking count.

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No. 02-4086 United States v. Bowker 35
C. Cyberstalking Count
Count 2 of the indictment charges Bowker with
cyberstalking, in violation of 18 U.S.C. § 2261A(2). The
government was required to prove:
(1) Bowker intentionally used the mail or any facility of
interstate or foreign commerce;
(2) Bowker engaged in a course of conduct with the
intent to place Knight in reasonable fear of death of, or
serious bodily injury to, herself, her spouse or intimate
partner, or a member of her immediate family; and
(3) Bowker’s course of conduct actually placed Knight in
reasonable fear of death of, or serious bodily injury to,
herself.
The evidence shows that Bowker’s intended to instill in
Knight a fear of death or serious bodily harm through use of
the mails and other facilities of interstate commerce, required
elements of the cyberstalking count. During a June 12, 2001
telephone conversation with Knight, Bowker told her:
You don’t know where I’m at. I might be in your house
in Dunbar[, West Virginia]; you don’t know that.… I
know all of your neighbors.… And I have access to all
that information, just like anybody else does who knows
where to find it. I have an enormous amount of things
about you that I’m not going to disclose unless I have to.
I’m not going to tell anybody about it except if you lie to
me. I might not say anything to you at the time, but that
might come back, you know.… I know the names of all
your relatives and where they live.… I know your
brothers’ wives[’] names, their ages, their Social Security
numbers and their birth dates … and their property
values.… Maybe I live on 20th street in Dunbar.…
Maybe I watch you with binoculars all the time and
maybe I don’t.
36 United States v. Bowker No. 02-4086
(J.A. 985-88, 1000.) A July 16, 2001 letter that Bowker sent
to Knight at the television station had both sexual and
threatening connotations. It read, in part:
No. 1. You do not hang up on me.
No. 2. You do not hang up on me, ever.
No. 3. If and when I call CBS 13 asking about a news
story that you reported on, you do not hang up on me.
You must at least do the bare minimum and answer my
news related questions.
I know what you value most in life, your bullshit fake
ass 1997 Pontiac Grand Am, which is about top on your
list as well as two other things. As far as the Grand Am
is concerned, say good-bye to it. I am going to file a
mechanics lien on it immediately and later seek civil
forfeiture.
All that you . . . would have to do is be polite, be nice,
and answer my news-related questions, just like the rest
of the reporters, except your buddy April Kaull. I’m
going to file a lien on her vehicle too. You are both fuck-
ups, assholes and seriously emotionally and mentally
unbalanced.…
Also, WOWK will hire just about anyone. Or at least
a pretty girl reporter, as long as she does her hair and
makeup well.…
That vehicle is exemplary of you, pretty on the outside
and very worthless inside. You have female genitals and
that is about it. You are a very slander to the word
woman. Oh, yeah, you dress like one but so do
transvestites. I think I would rather spend the evening
with a pretty transvestite than with you.…
Anyhow, I also think that it is time for your neighbors
to get to know you better and I will be making attempts
to inform them about how the prima donna from Ohio
things [sic] she can eat from the top and throw her
garbage on the sidewalk of West Virginia and Dunbar.…
I also noticed that you already had the job and
residence in West Virginia when you had your Ohio
License plates renewed, for one year anyhow.…

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No. 02-4086 United States v. Bowker 37
So bye-bye, fuck you, you are an asshole and a
sociopath and an embarrassment to mothers everywhere,
sir. In parenthesis: (I wasn’t bringing up the mental case
thing again since it is genetic.)
Yes, sir. Adios, Eric [sic]. Smooch. Smooch.
(J.A. 1011-15.) In August 2001, Bowker left a series of
messages on Knight’s answering machine asking that Knight
or Knight’s friend call him back, which did not occur. These
messages contained statements that Knight reasonably could
perceive to be threats to her personal safety. Excerpts include
the following statements:
I don’t even know why I’m nice to you ever at all, you
and your fucked-up friend should not even be working in
the media. You know you gotta mother-fucking realize
there’s like 50 percent men in this country and you better
mother-fucking learn that you’re going to have to deal
with us sometime.…
Well, it looks like nobody is going to answer me if
Tina Knight is okay, so I’m gonna take the 1:00 a.m. bus
out of Columbus, Ohio and come down there and see for
myself. Okay, I’ll be there about 6:00 a.m. Bye.
(J.A. 1226-27.) Since Knight testified that these intentionally
intimidating, threatening and harassing interstate
communications made her afraid to leave the house everyday
and that Bowker might try to rape her, the government proved
all of the elements of the cyberstalking count.
D. Telephone Harassment Count
Count 4 of the indictment charged Bowker with telephone
harassment, in violation of 47 U.S.C. § 223(a)(1)(C). The
government had to prove that:
(1) Bowker made interstate telephone calls to Knight;
(2) Bowker did not disclose his identity in the telephone
calls; and
38 United States v. Bowker No. 02-4086
(3) in the telephone calls, whether or not conversation or
communication ensued, Bowker intended to annoy,
abuse, threaten, or harass Knight or any person at the
called number.
Bowker’s primary argument against his conviction for
telephone harassment is that Knight allegedly was aware of
Bowker’s identity when she received his calls. The statute,
however, does not preclude criminal responsibility merely
because the recipient may suspect, or have a very good idea
of, the caller’s identity. Rather, assuming that Bowker called
Knight with the requisite intent to annoy, abuse, threaten, or
harass, the only issue is whether Bowker disclosed his
identity in those calls. It is clear that in all of the at-issue
telephone calls, Bowker never affirmatively identified himself
as Erik Bowker. In fact, he denied being Bowker during a
conversation with Knight on June 12, 2001, and instead stated
that his name was Mike. Thus, a straightforward application
of the telephone harassment statute shows that the jury
reasonably found the non-disclosure element to be satisfied.
VIII
Motion for a New Trial on Counts 1, 2 and 4
The denial of a defendant’s motion for a new trial under
Federal Rule of Criminal Procedure 33 is reviewed for abuse
of discretion. United States v. Ashworth, 836 F.2d 260, 266
(6th Cir. 1988). The Court is “limited to examining the
evidence produced at trial to determine whether the district
court’s determination that the evidence does not
‘preponderate heavily against the verdict’ is a clear and
manifest abuse of discretion.” Id. (citation omitted). As
discussed in the preceding section, there was ample evidence
to support Bowker’s convictions on Counts 1, 2 and 4 of the
indictment. Thus, it was not an abuse of discretion to find
that the evidence did not preponderate heavily against the
verdict.

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No. 02-4086 United States v. Bowker 39
IX
Upward Departure for Extreme Psychological Harm to
the Victim
After Bowker’s convictions, he was sentenced pursuant to
the 2000 edition of the United States Sentencing Commission
Guidelines Manual (“Guidelines”). Based upon a final
offense level of 19, and a criminal history corresponding to
Category V, Bowker’s Guidelines’ range was between 57 and
71 months. The government moved for a three level upward
departure in his sentence based on extreme psychological
injury to the victim, Tina Knight. The basis for the motion
was, in part, Guidelines § 5K2.3. The district court granted
the motion for upward departure. Because Bowker argues
that the sentence imposed by the district court was outside the
applicable guideline range and was based on a factor that is
not justified by the facts of the case, this Court reviews the
district court’s determination under a de novo standard.
18 U.S.C. § 3742(e).
Section 5K2.3 of the Guidelines provides:
§5K2.3. EXTREME PSYCHOLOGICAL INJURY
(POLICY STATEMENT)
If a victim or victims suffered psychological injury much
more serious than that normally resulting from
commission of the offense, the court may increase the
sentence above the authorized guideline range. The
extent of the increase ordinarily should depend on the
severity of the psychological injury and the extent to
which the injury was intended or knowingly risked.
Normally, psychological injury would be sufficiently
severe to warrant application of this adjustment only
when there is a substantial impairment of the intellectual,
psychological, emotional, or behavioral functioning of a
victim, when the impairment is likely to be of an
extended or continuous duration, and when the
40 United States v. Bowker No. 02-4086
impairment manifests itself by physical or psychological
symptoms or by changes in behavior patterns. The court
should consider the extent to which such harm was
likely, given the nature of the defendant's conduct.
Guidelines §5K2.3 (Nov. 1, 2000). With regard to the crime
of stalking, Guidelines § 2A6.2 instructs that “an upward
departure may be warranted if the defendant stalked the
victim on many occasions over a prolonged period of time.”
Guidelines § 2A6.2, Application Note 5.
The record shows that Bowker stalked Knight on many
occasions and over a prolonged period of time. See
Guidelines § 2A6.2, Application Note 5. FBI Special Agent
James McNamara, an expert on stalking crimes, testified at
the sentencing hearing as to the extreme nature of Bowker’s
conduct. McNamara pointed to the facts that the harassment
occurred over a period of years and in two different states;
involved numerous, multi-media contacts (letters, telephone
calls, email and interstate travel); and involved contacts with
Knight’s friends and family members. Further, Bowker’s
campaign of harassment substantially impaired Knight’s
“behavioral functioning” as manifested by “changes in [her]
behavior patterns.” Guidelines § 5K2.3. Knight was so
distressed that she was left with profound feelings of paranoia
and felt compelled to change banks and unlist her phone
number, and have her bills sent to a different address. She
also purchased a gun, routinely uses a security escort, and,
most unfortunately, decided to forgo her on-air news career.
Knight’s Victim Impact Statement movingly captures the
extreme psychological distress that Bowker’s stalking
activities inflicted on her:
The two years that I was stalked changed my family and
me. First of all since the stalking began because of my
job as a television news reporter it has turned me off to
a future in that career.…I don’t want to be anyone’s
favorite newscaster because I fear it will turn into another

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No. 02-4086 United States v. Bowker 41
4Bowker made Knight’s Victim Impact Statement part of the public
record in the district court when he attached it as an exhibit to his
response to the United States’ motion for an upward departure.
situation like the one I had.…I am also concerned about
major purchases in the future, like a home, and how he
may be able to track me down….Even writing this I am
careful not to mention anything about my personal life
for fear he will read this and it will give him another
means by which to contact me.…I am concerned about
the rest of my life….I am not confident this will stop.
That is my biggest fear. When he gets out of jail this
could start all over again so I truly can never relax. It’s
just putting off my ultimate fear that someday, no matter
what I do, he will show up at my front door with intent
to harm me. By now I’ve given him reason to really hate
me in his mind. I testified against him in court and
helped put him in jail. I hope he isn’t out for revenge.4
We hold that the above-described facts amply justified the
district court’s upward departure determination. Cf. United
States v. Otto, 64 F.3d 367, 371 (8th Cir. 1995) (affirming
upward departure where stalking victim lived in constant fear
for herself and for her children and was always on the lookout
for the defendant; could not eat or sleep; lost weight; required
counseling; and feared the defendant’s ultimate release);
United States v. Miller, 993 F.2d 16, 21 (2d Cir. 1993)
(affirming upward departure after the defendant had engaged
in a three year campaign of harassment; noting that the victim
had been afraid to answer the telephone or open her mail for
three years; was afraid to remain in the New York area; and
believed that the years of harassment had hastened her
husband’s demise).
42 United States v. Bowker No. 02-4086
X
Expert Testimony on Stalking
As noted in the preceding section, the government called an
expert on stalking crimes, FBI Special Agent James
McNamara, to testify at Bowker’s sentencing hearing.
Bowker argues that the district court’s decision to hear the
testimony of Agent McNamara was erroneous and that the
court’s decision should be reviewed for an abuse of discretion
under Federal Rule of Evidence 702. The Federal Rules of
Evidence, however, are by their own terms expressly
inapplicable to sentencing hearings. Fed. R. Evid. 1101(d)(3).
According to the federal statute that governs the use of
information in sentencing, “[n]o limitation shall be placed on
the information concerning the background, character, and
conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose of
imposing an appropriate sentence.” 18 U.S.C. § 3661. The
Supreme Court has explained that this statute “codifies the
longstanding principle that sentencing courts have broad
discretion to consider various kinds of information.” United
States v. Watts, 519 U.S. 148, 151 (1997). Accordingly, this
Court reviews the district court’s admission of Agent
McNamara’s testimony for an abuse of discretion in
determining that the testimony had “sufficient indicia of
reliability to support its probable accuracy.” Guidelines
§ 6A1.3(a).
Agent McNamara has been with the FBI for 15 years and
is assigned to the FBI as a behavioral analyst. His duties
include looking at the behavior of criminals, conducting
research with convicted offenders and disseminating the
results of that research, and working on active criminal cases
as a law enforcement consultant. McNamara has been trained
in a variety of disciplines, including criminal justice,
psychology, forensic science, anthropology and psychology.
Based on his review of transcripts and other materials
pertaining to Bowker’s case, McNamara testified that Bowker
had engaged in multimedia attempts to contact Knight,

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No. 02-4086 United States v. Bowker 43
including letters, email, telephonic contacts, and the sending
of gifts. McNamara opined that the sending of gifts in a
stalking case is “significantly important in the areas of
increased dangerousness.” He further testified that Bowker
escalated his activity, from contacts through the mail, to
telephonic and electronic mail contact, to traveling interstate
to pursue Knight. McNamara also indicated that Bowker’s
past history of violence, including domestic abuse, was a
predictor of future dangerousness or violence. As a
consequence of these findings, McNamara concluded that
Bowker was a more dangerous type of stalker.
We hold that the district court did not abuse its discretion
in admitting Agent McNamara’s testimony at the sentencing
hearing. His testimony was relevant to the court’s application
of Guidelines § 2A6.2, which determines how the base
offense level is to be calculated for the crime of stalking.
Guideline § 2A6.2 provides for a two-level increase in the
base offense level for a pattern of activity involving stalking,
threatening, harassing, or assaulting the same victim.
McNamara’s testimony directly addressed this issue. Agent
McNamara’s testimony also was relevant to determining
whether an upward departure was warranted for extreme
psychological injury to the victim. See Guidelines § 2A6.2,
Application Note 5 (instructing that the severity of the
stalking may warrant an upward departure). Therefore, the
district court did not err in entertaining Agent McNamara’s
expert testimony at sentencing.
XI
Bowker’s Right of Allocution
Federal Rule of Evidence 32(i)(4)(c)(ii) provides that,
before imposing a sentence, the court must “address the
defendant personally in order to permit the defendant to speak
or present any information to mitigate the sentence.” Bowker
argues that the district court denied him this right of
allocution. We apply a de novo standard of review. United
States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995).
44 United States v. Bowker No. 02-4086
After Bowker’s attorney cross-examined Agent McNamara,
the FBI expert on stalking, the district court asked Bowker
directly, “Is there anything that you have to say to this Court
before it imposes sentence?” Bowker responded that he
would like to read a lengthy statement, and the court told
Bowker to proceed. Bowker began by challenging his prior
criminal history. The court then went through each crime that
formed the foundation for the assignment of a Criminal
History Category V. Bowker then asked to address some
things that occurred during his trial, and the court told him to
proceed. Bowker gave a lengthy justification for his conduct
underlying his convictions, complained about not being able
to testify as to his intent, and pointed out that he has severe
physical disabilities and mental problems. Bowker next
complained about the performance of his attorney. Bowker
then asked the court to have his mother testify, which the
court permitted. The only request the district court appeared
to deny Bowker was his desire to read a 15-page statement
into the record. Based on the totality of the circumstances, we
see no merit to Bowker’s argument that he was denied the
right of allocution. Cf. United States v. Kellogg, 955 F.2d
1244, 1250 (9th Cir. 1992) (“Although the defendant has a
right of allocution at sentencing, that right is not unlimited.”).
XII
Conclusion
For all the foregoing reasons, we AFFIRM Defendant
Bowker’s convictions and sentence. This case shall be
REMANDED for the district court to conduct a hearing and
to rule on Bowker’s motion to return seized property.

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