United States District Court, S.D. New York
OPINION & ORDER
NELSON S. ROMAN, District Judge.
Defendant Kris Sergentakis is charged in a two-count indictment with witness retaliation, in violation of 18 U.S.C. § 1513(e), and cyberstalking, in violation of 18 U.S.C. § 2261A(2). The defendant now moves to dismiss the indictment, asserting that this prosecution violates his First Amendment right to speak on matters of public concern. For the following reasons, the motion is DENIED.
The following facts, unless otherwise noted, are taken from the December 16, 2014 complaint filed in this prosecution (the "Complaint") and the parties' memoranda of law submitted in connection with the instant motion to dismiss the indictment The facts are not substantially in dispute.
The defendant was employed from approximately April 2001 through April 2004 as a purchasing manager in the graphics department of The Leukemia and Lymphoma Society ("LLS"), a charitable non-profit organization that funds blood cancer research. In 2006, the defendant pied guilty to charges of commercial bribery, mail fraud, and conspiracy related to his participation in a kickback scheme involving the allocation of LLS's printing contracts. The defendant was sentenced to five years of imprisonment, and ordered to pay $1, 000, 000 in restitution to LLS and to forfeit $171, 392. John Walter, then LLS's Chief Financial Officer and later its Chief Executive Officer, provided information to law enforcement officers concerning the defendant's conduct related to the kickback scheme. The defendant knew that Walter had provided information to the Government.
While incarcerated in 2007, the defendant mailed numerous letters to Walter and other LLS executives containing the following statements, among others:
to Walter: "Remember when you told me you molested your six year old daughter and you had been arrested for it?" and "I am publishing... your mug shot and arrest report. 4 million flyers to be distributed in NYC Westchester." (Compl. at ¶ 5(a));
to an LLS executive: "I discovered [Walter] was arrested for molesting his daughter"... and "[I] received 5 yrs in prison because [Walter] bought influence with a federal [j]udge." (Compl. at ¶ 5(b)); and
to Walter: "[e]very person on the planet will know that you are a dangerous child molester, " and "I'll be everywhere warning people... when I am released I will be outside where you live, work, eat, whatever... I will never give up... [a]s long as I live this will never end." The letter concluded, "This hasn't even started yet." (Compl. at ¶ 5(c)) (emphasis in original).
The U.S. Postal Inspection Service spoke with Walter, and reviewed law enforcement records and databases, and confirmed that Walter has never been arrested for child molestation or for any other state or federal offense.
Following his release from prison in 2010 and continuing through the present, the defendant created and maintained a series of websites containing similar statements to those previously sent to Walter and LLS executives. The defendant noted in a number of these websites that the content contained therein did not consist of "allegations... only facts." See e.g., Gov't Mot. at Ex. 4 ("There are no allegations on this website only facts."), Ex. 5 (same), Ex. 7 ("Everything on this website is a known fact."), Ex. 12 ("Everything on this website is fact... not a claim or allegation and is backed up by hard evidence."); Ex. 17 ("Everything put forth on this site is the absolute truth."). In addition to repeating his accusations that Walter was arrested for child molestation, the defendant's websites included the following:
statements that the defendant "was railroaded into federal prison for 55 months by [Walter]... for speaking out about [Walter's] crimes" and that Walter "manufactured a phony case against [the defendant] and sent [him] to prison." (Compl. at ¶¶ 8(a), 17);
a statement that Walter "enjoys beating helpless animals... [and] would beat [his] dog to a pulp...." (Compl. at ¶ 8(c));
an image of a guillotine with the title "THE CURE FOR PEDOPHILLIA." Immediately below the image, the website stated: "We all have a responsibility to keep children safe from pedophiles like [Walter]." (Compl. at ¶ 13(a));
pictures of Walter and members of his family on vacation and at a concert, which were obtained from postings on the Facebook account of a member of ...