One of the newest, and most interesting, crimes in the U.S. Code is Cyberstalking under 18 U.S.C. 2261a. In the recent case of Captain Thomas E. Essenfeld, USN, a naval officer was charged in the U.S. District Court for the Southern District of California in San Diego. The case is important for several reasons. First, although CAPT Essenfeld was a member of the U.S. military subject to the Uniform Code of Military Justice, he was charged in federal court and tried as a civilian. In addition, the charge itself is something that should be examined. We will look at each of these issues in turn.

Prosecution in Federal Court rather than under the UCMJ

Since the founding of the Republic, military officers and enlisted personnel have been charged, prosecuted and convicted by military courts-martial, with some accused even being sentenced to death. However, the military is not the only jurisdiction that can prosecute a crime, and service members are also prosecuted in both state and federal courts and by foreign governments at times. In fact, a person accused of a crime can be prosecuted in both a state court and a military court-martial. As different prosecution authorities investigate a case, the person under investigation needs to understand what is happening and where the case can potentially be prosecuted and, if possible, negotiate the forum where they will be charged.

The Double Jeopardy clause of the Fifth Amendment to the U.S. Constitution provides that no person can be tried twice for the same offense. The Supreme Court has held, however, that when someone is being tried by two different sovereigns (for example, a state and the federal government), the double jeopardy clause does not apply. Thus, a person can be charged and convicted of the same offense in two different trials, as long as one is a state trial and the other is a federal trial. In fact, a defendant can be found not guilty in one court and then tried again in another court before a different sovereign.

Military members often have greater rights than civilians, but not when it comes to double jeopardy. Article 44 of the UCMJ prevents a member of the military from being tried twice, but only before the same “sovereign”. Military courts-martial and federal criminal trials are both brought by the same sovereign, and a military member cannot be tried both in federal court and before a military court-martial. They can, however, be tried before a state court and in a military court-martial for the same offense.

Finally, some people seem to believe that trial in a civilian court is better than trial before a general court-martial. Each court system—military, federal, and state—has its own advantages and disadvantages. Defending a case in U.S. District Court, however, is almost always harsher than trial before a general court-martial. Discovery rights are greater under Rule for Court-Martial 701 than they are under Federal Rule of Criminal Procedure 16. In a court-martial, accused are entitled to detailed defense counsel regardless of the accused’s financial circumstances. In federal court, only indigent defendants are entitled to court-appointed counsel. After having spent more than three decades trying cases in federal court and in military courts-martial, my experience has always been that courts-martial are fairer.

Cyberstalking

The facts underlying the prosecution of CAPT Essenfeld, at least as described by the government, are severe. Apparently, Essenfeld had some issues with a former girlfriend and responded by creating “imposter accounts” on Facebook, LinkedIn, email, and cellular phone accounts using his ex-girlfriend’s name. He then posted personal information about her without her knowledge or consent. Some of this information included erotic and sexually explicit material on the girlfriend’s Facebook account. Then, going even further, he joined Facebook dating groups using the imposter account and participated in Facebook group discussions in these groups using the victim’s name.

The government also states that CAPT Essenfeld was more active on social media, using the imposter account, and was able to find social media friends and connections by “liking” posts. This unauthorized conduct extended to the victim’s employer as well as co-workers, people she knew from attending university, the U.S. Navy, and fitness studios she had previously attended. The victim reported the imposter account to Facebook over 400 times.       

Eventually, Essenfeld was investigated by the Naval Criminal Investigative Service (NCIS) and indicted in the U.S. District Court for the Southern District of California for Cyberstalking and Identity Theft, 18 U.S.C. 1028a. After a four-day trial, he was convicted on June 14th of both charges. Sentencing is currently scheduled for September 2024.

Unfortunately, cyberstalking is a common offense, with some sources reporting that up to 7.5 million Americans are victims of cyberstalking every year. There is a plethora of related conduct—cyberbullying, doxing, sexting, etc.—that are closely related, but the fact is, these cases rarely result in criminal charges. In fact, between 2010 and 2020, only 412 criminal cases were filed for cyberstalking. The highest number of cases brought in a single year, 2019, was 80. If there were 7.5 million victims in 2019 but only 80 prosecutions, that means that far less than one of every thousand perpetrators were prosecuted.

There are many reasons for the lack of progress in stopping cyberstalking and other cybercrimes. For one thing, particularly when the stalker is not known to the victim, law enforcement tools are very limited. Even when law enforcement is interested, the process of gathering information can be tedious and often unfruitful. The perpetrators are often beyond the jurisdiction of state and local law enforcement. Often the crime is viewed as more of a nuance. It is different from the foreign fraudster who steals the lifesavings from elderly individuals (and even here, prosecutions are rare).  In the Essenfeld case, if the government is to be believed, the victim and the perpetrator knew each other; they lived in the same town; and, Essenfeld was the obvious perpetrator. These facts are rare.

We defend people charged with cybercrimes in state, federal, and military courts. We also, on occasion, represent victims of cyberstalking or other federal crimes when we know who the perpetrator is and can develop facts to pursue that defendant. These are always difficult cases, but we do our best to represent our clients. If you have been the victim of cyberstalking, or if you or someone you know is under investigation for cyberstalking or some other cybercrime, please contact us.

 

Dennis Boyle
Founder / Partner

Mr. Dennis Boyle is an accomplished white-collar criminal defense and complex civil litigation attorney who practices throughout the United States and internationally.

Contact US Go To Blog Home