United States of America v. Dennis Sryniawski

United States Court of Appeals
For the Eighth Circuit
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No. 21-3487
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Dennis Sryniawski,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the District of Nebraska - Omaha
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Submitted: May 13, 2022
Filed: September 2, 2022
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Before SMITH, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Dennis Sryniawski was charged with federal offenses of cyberstalking and
extortion after he sent a series of e-mails to a candidate for the Nebraska legislature.
A jury acquitted Sryniawski of extortion but convicted him of cyberstalking, in
violation of 18 U.S.C. § 2261A(2)(B). Sryniawski appeals the conviction, arguing
that the e-mails constituted speech that is protected by the First Amendment, and that

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the evidence was insufficient to support a conviction. We conclude that the evidence
was insufficient under a proper interpretation of the cyberstalking statute, and
therefore reverse the conviction.
I.
Jeff Parris ran for the Nebraska legislature in 2018. At the time of the
campaign, Parris was married to Diane Parris and was the step-father of Diane’s adult
daughter from a previous marriage. Jeff and Diane married in 1992, divorced in
1994, and then remarried in 2007. Between the two marriages, Diane was married to
Dennis Sryniawski from 1994 to 1995.
In October 2018, during the legislative campaign, Sryniawski sent an e-mail
to Parris’s official campaign e-mail address from the name “Isaac Freely.” The
subject line of the e-mail was “Check your skeletons?” The e-mail called Parris’s
step-daughter a pedophile, and hyperlinked to two websites showing that she had
been charged with online solicitation of a minor and sexual assault of a minor in
Texas. The e-mail included a hyperlink to the step-daughter’s sexually explicit
weblog, and asserted that the step-daughter’s “‘Pansexuality’ does not recognize age
either.” Sryniawski also implied that he might report the step-daughter for
fraudulently crowdfunding tickets to see a concert. The message was signed “Until
next time, Exposing the Hypocrites!”
The e-mail message also referred to Diane Parris’s relationship with her father.
When Diane and Sryniawski were married, Diane told him that her father had
molested her, and that she took prescription medication to address her emotional
condition. Referring to Diane’s disclosures about her father’s conduct, the e-mail
said: “Which did he really? Or was the Multiple Personality Disorder all a hoax to
be a Pharm Addict?” The e-mail warned that “this is only just the beginning,” and
that there was “[m]ore to come,” especially because Jeff and Diane had a “dozen” ex-
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spouses between them who did not want to see Jeff in politics. The e-mail concluded
with a “suggestion” that Jeff should “bow out of the race.”
Two days later, over a period of eight hours, Sryniawski sent five more e-mails
to the Parris campaign address. The first of these, the second e-mail overall, bore the
subject line “Gone But Not Forgotten.” Sryniawski again sent this message from the
name “Isaac Freely,” and signed “Sincerely, Exposing the Hypocrisy” at the bottom.
The e-mail attached a screen shot of a comment that Sryniawski had posted on the
Parris campaign Facebook page under the name “Nicole Jacobs.” The comment
contained one of the same hyperlinks that Sryniawski sent in the first e-mail about the
step-daughter’s arrest for sexual assault and online solicitation of a minor. The body
of the e-mail said that “the Ghosts will continue to haunt you,” and included a
statement as follows: “All we are asking, is Quit the Race. Step down from running
for State Legislature, Never run for any Political Office again, & All will be Sweet,
especially for the ‘Good Life’.”
The third e-mail was from “Dennis Sryniawski” with the subject line, “Good
Day?” The entire text of the e-mail read, “I so see the resemblance in Mother and
Daughter!” The e-mail contained four broken-image thumbnails, but no images.
Sryniawski sent the fourth e-mail under the name “Joe Poluka.” Like the third
e-mail, it bore the subject line “Good Day?” and contained the text, “I so see the
resemblance in Mother and Daughter!” The fourth e-mail included four photographs
as attachments. The first showed Diane Parris campaigning, and the second showed
Parris’s step-daughter wearing a camisole. The third photo purportedly depicted the
step-daughter performing oral sex on a male, and the fourth photo depicted Diane
Parris performing oral sex on a male.
Sryniawski sent the fifth e-mail as a reply to the fourth e-mail using the
pseudonym “C Payne,” who is an ex-husband of Diane. The body of the e-mail said
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only, “Do We Have Your Attention Now?” Sryniawski sent the sixth and final e-mail
as a reply to the preceding two e-mails using the step-daughter’s name as the sender.
The text read: “Are we not entertained?”
Jeff Parris shared the e-mails with his family. Jeff testified that the e-mails hurt
him and his family “immensely,” and that the photographs were “devastating.” His
step-daughter described the e-mails as “jarring,” “unsettling,” and “messed up.”
When Diane saw the e-mails, she became “very emotional” and was “obviously
upset.” Diane was also “horrified” and “afraid,” because she inferred that Sryniawski
must be the sender. Sryniawski was one of only a few people to whom Diane had
disclosed the abuse that she suffered as a child, her diagnosis with a psychological
condition, and her use of medication for that condition. Diane testified that after
seeing the e-mails, she became frightened for her safety.
The day after receiving the sixth e-mail, Jeff Parris reported the messages to
the La Vista Police Department. A local investigator and an FBI agent contacted
Sryniawski at his workplace the same day. Sryniawski initially denied sending the
e-mails, but soon admitted that he sent all of them.
A grand jury charged Sryniawski with cyberstalking, in violation of 18 U.S.C.
§ 2261A(2)(B), and extortion, in violation of 18 U.S.C. § 875(d). The case proceeded
to trial. At the close of the government’s case and at the close of all evidence,
Sryniawski moved for judgment of acquittal. He argued that the evidence was
insufficient to support a conviction, and that the cyberstalking and extortion statutes
violated the First Amendment as applied to him. The district court denied the
motions. The jury was instructed that speech is not protected by the First Amendment
“if it is intended to harass or intimidate and would be reasonably expected to cause
emotional distress,” but the terms “harass” and “intimidate” were not further defined.
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The jury convicted Sryniawski of cyberstalking but acquitted him of extortion.
The district court imposed a sentence of one year and one day in prison, followed by
three years of supervised release, and a $10,000 fine. Sryniawski appeals the
conviction.
II.
Sryniawski contends that the cyberstalking statute, as applied to him, violates
his right to freedom of speech under the First Amendment. He also contends that
evidence was insufficient to sustain a conviction under the statute. In this case,
Sryniawski’s challenges merge into a single question: whether the evidence was
sufficient to convict Sryniawski of cyberstalking under § 2261A(2)(B) when the
statute is interpreted in a way that is consonant with the First Amendment.
A defendant is guilty of cyberstalking if he (1) “with the intent to . . . harass
[or] intimidate,” (2) uses “any . . . electronic communication system of interstate
commerce . . . to engage in a course of conduct,” that (3) “causes, attempts to cause,
or would be reasonably expected to cause substantial emotional distress to” the victim
or his immediate family. 18 U.S.C. § 2261A(2)(B).
The mens rea element, as charged in this case, requires that a defendant act
with the intent to “harass” or “intimidate.” Id. § 2261A(2). If these terms are
construed in their broadest sense, however, they would infringe on rights protected
by the First Amendment. Broadly defined, “harass” can mean simply “to vex, trouble,
or annoy continually or chronically.” Webster’s Third New International Dictionary
of the English Language Unabridged 1031 (1993). “Intimidate” can mean “to make
timid or fearful.” Webster’s Third New International Dictionary of the English
Language Unabridged 1184 (2002).
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Even where emotional distress is reasonably expected to result, the First
Amendment prohibits Congress from punishing political speech intended to harass
or intimidate in the broad senses of those words. The Free Speech Clause protects a
variety of speech that is intended to trouble or annoy, or to make another timid or
fearful. In Snyder v. Phelps, 562 U.S. 443 (2011), for example, the Supreme Court
held that protestors at a serviceman’s funeral had the right to display signs that read,
“Thank God for Dead Soldiers,” “God Hates Fags,” and “You’re Going to Hell.” Id.
at 448, 461. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the Court declared
unconstitutional a criminal ordinance that prohibited the display of burning crosses,
Nazi swastikas, and other symbols that the perpetrator had reasonable grounds to
know would arouse “anger, alarm or resentment in others on the basis of race, color,
creed, religion or gender.” Id. at 380, 391. Hustler Magazine, Inc. v. Falwell, 485
U.S. 46 (1988), held that the First Amendment protected a parody that depicted a
prominent minister having drunken sex with his mother. Id. at 47-48, 50; see also
Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 204 (3d Cir. 2001) (Alito, J.)
(“There is no categorical ‘harassment exception’ to the First Amendment’s free
speech clause.”). For this reason, the cyberstalking statute cannot be applied
constitutionally to a defendant who directs speech on a matter of public concern to
a political candidate with intent merely to trouble or annoy the candidate. United
States v. Yung, 37 F.4th 70, 78-79 (3d Cir. 2022); United States v. Ackell, 907 F.3d
67, 76 (1st Cir. 2018).
To sustain the conviction in this case, therefore, the government must identify
sufficient evidence for a jury to find that Sryniawski acted with intent to “harass” or
“intimidate” in a sense that is not protected under the First Amendment. For example,
“criminal harassment” is unprotected where it “constitutes true threats or speech that
is integral to proscribable criminal conduct.” Ackell, 907 F.3d at 76; see United
States v. Stevens, 559 U.S. 460, 468 (2010). “Intimidation in the constitutionally
proscribable sense of the word is a type of true threat,” where the speaker intends to
place the victim “in fear of bodily harm or death.” Virginia v. Black, 538 U.S. 343,
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360 (2003). The government does not maintain that Sryniawski’s e-mails contained
a true threat against Parris or his family, but suggests three categories of harassing
speech that are unprotected: speech integral to criminal conduct, defamatory speech,
and obscenity.
First, the government argues that Sryniawski’s e-mails were integral to the
criminal conduct of cyberstalking itself. That argument is circular and unpersuasive.
Congress may not define speech as a crime, and then render the speech unprotected
by the First Amendment merely because it is integral to speech that Congress has
criminalized. To qualify as speech integral to criminal conduct, the speech must be
integral to conduct that constitutes another offense that does not involve protected
speech, such as antitrust conspiracy, Giboney v. Empire Storage & Ice Co., 336 U.S.
490, 498 (1949), extortion, United States v. Petrovic, 701 F.3d 849, 855 (8th Cir.
2012), or in-person harassment, United States v. Osinger, 753 F.3d 939, 941, 947 (9th
Cir. 2014). The government points out that we upheld a cyberstalking conviction
where the evidence was sufficient to support a finding that the defendant’s speech
was integral to an extortion that was not charged as a separate offense. United States
v. Hobgood, 868 F.3d 744, 747-48 (8th Cir. 2017). In this case, however, the jury
acquitted Sryniawski of extortion, and there is no other identified criminal conduct
to which the jury could have found that Sryniawski’s e-mail communications were
integral.
Second, the government contends that Sryniawski’s first e-mail contained three
defamatory statements that are not protected by the First Amendment. The
government asserts that Sryniawaski communicated “false accusations” that Parris’s
wife had falsely reported childhood molestation and a psychological condition, that
Parris’s wife was addicted to prescription medication, and that Parris’s step-daughter
was a pedophile. The government did not advance this theory at trial, and there is no
jury finding on defamation. The government’s argument on appeal is limited to one
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paragraph. But considering the defamation theory on the assumption that we may
affirm on any ground supported by the record, we believe the evidence is insufficient.
Under prevailing law, where an alleged victim of defamation is a public figure,
a speaker’s assertions are unprotected speech only if the speaker acted with “actual
malice”—that is, with knowledge that his statements were false or with reckless
disregard of their falsity. See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80
(1964). Diane Parris was actively involved in Jeff’s campaign, and served as
campaign manager for a time. Spouses of candidates for public office who are
actively involved in the campaign have been considered public figures. E.g., Krueger
v. Austad, 545 N.W.2d 205, 212 (S.D. 1996); Burns v. Times Argus Ass’n, 430 A.2d
773, 775 (Vt. 1981); see also Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974).
The government does not dispute that Diane was a public figure or argue that
Sryniawski acted with actual malice. Without a showing of actual malice, an
allegedly false assertion alone is insufficient to make Sryniawski’s comments about
Diane defamatory.
The government argues briefly that Sryniawski defamed Parris’s step-daughter,
a non-public figure, by negligently asserting that she was a pedophile—i.e., a person
“sexually attracted to children.” The New Oxford American Dictionary 1261 (2001).
But the case was not tried on a defamation theory, and the record does not establish
that Sryniawski’s alleged statement was false. It was a matter of public record that
the step-daughter had been charged in a criminal case with sexual assault and online
solicitation of a minor. The step-daughter referred to those charges as “false
allegations,” and testified that they were “dismissed for lack of evidence.” But the
government did not present evidence that Sryniawski knew that the charges had been
dismissed. Nor did the prosecution ask the step-daughter to deny that she is sexually
attracted to minors, independent of whether she was guilty of making an online
solicitation. On this record, therefore, the evidence is insufficient to support a finding
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that Sryniawski harassed Parris and his family with defamatory speech. Cf. United
States v. Gonzalez, 905 F.3d 165, 178 (3d Cir. 2018).
Third, the government contends that a reasonable jury could have found that
Sryniawski intended to harass the victims by causing them distress through the
transmission of obscene materials. The government also did not advance this theory
at trial, and the jury was not asked to determine whether the attachments to
Sryniawski’s fourth e-mail were legally obscene under the standard of Miller v.
California, 413 U.S. 15 (1973). But even considering obscenity on the assumption
that this unspoken theory could support the verdict, the transmission of explicit
photographs attached to one e-mail is not sufficient to sustain the conviction. The
cyberstalking statute as charged here requires proof that a defendant engaged in a
“course of conduct” that consists of “2 or more acts, evidencing a continuity of
purpose.” 18 U.S.C. §§ 2261A(2), 2266(2). The transmission of one e-mail with
obscene attachments is not a course of conduct. Lawful acts like logging onto a
computer, opening an internet browser, and sending other e-mails cannot be
aggregated with criminal conduct to establish a “course of conduct.” Each “act” must
be taken with the requisite criminal intent and reasonable expectation of causing
substantial emotional distress. Id. § 2261A(2)(B). The government did not charge
Sryniawski with the separate offense of transmitting of obscene materials via the
internet, see id. § 1462, and its belated obscenity theory is insufficient to sustain the
cyberstalking conviction.
For these reasons, we conclude that the evidence is insufficient to support the
conviction, and the judgment of the district court is reversed.
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