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United States v. Conlan

United States Court of Appeals, Fifth Circuit

May 14, 2015

JOSHUA CONLAN, Also Known as Joco, Defendant-Appellant

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Western District of Texas.

For United States of America, Plaintiff - Appellee: Scott A. C. Meisler, Esq., U.S. Department of Justice, Washington, DC; Joseph H. Gay Jr., Assistant U.S. Attorney, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.

For Joshua Adam Conlan, also known as: Joco, Defendant - Appellant: Seth Kretzer, Law Offices of Seth Kretzer, Houston, TX.

Before SMITH, PRADO, and OWEN, Circuit Judges.


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JERRY E. SMITH, Circuit Judge:

A jury found Joshua Conlan guilty of stalking a television news reporter (" JMP" ) and her husband (" JP" ) in violation of 18 U.S.C. § 2261A. He raises ten issues on appeal, involving sufficiency of the evidence; unconstitutional vagueness; double jeopardy; suppression of evidence; withdrawal and substitution of counsel; denial of self-representation; juror misconduct; speedy trial violations; and sentencing. We affirm.

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Conlan and JMP dated as teenagers but had no further contact until JMP appeared on national news networks several years later. Conlan sent her a flirtatious Facebook message; she responded politely but made it plain that she was not interested in him romantically. He then sent a large bouquet of flowers to her workplace with a note reading, " The next time our paths cross, I will not know hesitation." Worried about her safety, JMP sought help from local police and, at an officer's suggestion, sent Conlan an email explaining that she did not want any communication from him.

Conlan then began an escalating, year-long campaign of email, text-message, social-media, telephonic, and face-to-face contact with JMP, her family, work colleagues, and church members. Many of the messages were hateful, threatening, and graphically sexual. JMP repeatedly asked Conlan's brothers to intervene. That effort was unsuccessful, and Conlan accused JMP and JP of violating his privacy, " not something [he would] take lightly," and if she did not " straighten out this s--t in person," he would " be forced to return the favor." He told her that " things would get worse" and asked her to " send [him] a pretty picture once a week, that would keep [him] under control . . . ." He sent a package to her workplace containing a cellphone that had lip marks on the screen. He also sent her a single-line email reciting her home address and repeatedly told her to kill herself.

The messages did not stop after Detective Michael King told Conlan that his communications were unwelcome and that he would be arrested if he came to Austin, Texas, where JMP and JP resided. Instead, Conlan sent JMP a message that read, " You know what? I can come to you. Can Austin's finest brave that?"

Conlan also sent messages to JP, a professional musician. He commented, on a blog post about JMP's work, that he could not " wait for chicken head hunting in Texas" and that he was " [g]oing to be in every little bitch music shop every weekend every night until I find the right chicken head." He sent JP a Facebook message asking, " Are you scared, princess?" and messages to JMP stating, " I was thinking about beating the s--t out of princess" and, " Doesn't princess want a face-to-face confrontation?" Conlan disparaged JMP in emails to the leadership of her church and went to her parents' house asking to see her.

Shortly thereafter, Conlan drove from Missouri to JMP and JP's house. As JP was driving from their residence, he saw a white vehicle with Missouri plates moving slowly and recognized Conlan as the driver. Conlan went around the block and passed JP a second time. Fearing that that he would be attacked, JP called the police and went to a police substation. Conlan was arrested at a nearby motel pursuant to a warrant; in his motel room, police found cellphones that had been used to call JMP's workplace and obtain directions to her house, and a laptop that contained Internet searches for her name. A loaded handgun and riot stick were found in Conlan's vehicle.


Conlan was indicted on three counts of interstate stalking in violation of 18 U.S.C. § 2261A. The district court found him incompetent to stand trial and ordered him committed to the custody of the Attorney General.[1] The court later found him competent,

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and a grand jury returned a superseding indictment with the same three counts: violations of § 2261A(2) as to JMP (Count One) and JP (Count Three), and § 2261A(1) (Count Two). A jury found Conlan guilty of all charges, and he was sentenced to ninety-six months of imprisonment and three years of supervised release.


Conlan challenges the sufficiency of evidence from which a jury could conclude that he acted " with the intent to kill, injure, harass, intimidate, or place under surveillance with the intent to kill, injure, harass, or intimidate" JMP, as required by § 2261A. We " review[] the record to determine whether, considering the evidence and all reasonable inferences 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." [2]

Intent is often established by inference from circumstantial evidence. See United States v. Pruett, 681 F.3d 232, 239 (5th Cir. 2012) (per curiam). The increasingly ominous tone and content of his messages reveal Conlan's desire to subject JMP to unwanted sexual acts, for her to die, and for a violent confrontation with JP and police. Instead of desisting when told to do so by JMP, his family, and the police, Conlan escalated his behavior by contacting JMP's colleagues, church leaders, and father, culminating in an interstate trip to her house armed with a handgun and ...

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