3 1/2 years for a guy who got his jollies cyberstalking and blackmailing women online is a fair sentence, appeals court rules

A federal appeals court has upheld a Georgia man's 42-month prison sentence - longer than even prosecutors recommended - for spending more than a year making life hell for at least two women, one of whom lives in the Boston area.

Gary Leach pleaded guilty in 2022 to cyberstalking and making interstate threats for a total of nearly two years of online blackmailing he conducted against two women, including a Massachusetts resident whose parents' contact info he learned after she posed for him nude one time for a fee, although he also went after other women, according to an affidavit by an FBI agent on the case

The Leach Accounts also contain messages between Leach and at least 20 other Instagram users indicating that Leach contacted the Instagram users, pretending to know them, and initiated video calls for the purpose of exposing himself masturbating. When a number of these Instagram users did not answer video calls from Leach, Leach sent them unsolicited photographs and/or videos of himself masturbating.

Leach at the time was pursuing a master's in public administration at the University of Georgia and blackmailed the Boston-area woman into continuing to pose nude for him online, at one point telling her he enjoyed making her do what he demanded, at least until the woman finally had enough and went to the FBI. He was arrested in 2021.

Prosecutors had urged US District Court Judge Angel Kelley to sentence Leach to 36 months in prison, but Kelley instead sentenced him to 42 months - and three years of probation, during which he would have to submit all of his online logins to the probation department, have monitoring software placed on any of his Internet-accessible devices, take frequent drug tests - up to 104 a year - and polygraph exams and not take any jobs or volunteer positions that would place him in contact with children.

Leach appealed the "upwardly variant" sentence, saying he should have been given notice Kelley was considering that so his lawyer could assemble an argument against that, as well as the prohibition against contact with children.

But in a ruling released last month, the US Court of Appeals for the First Circuit in Boston said Kelley, after hearing the evidence against Leach, had every right to order Leach to spend more time in prison than prosecutors had asked for and to keep away from minors. The court began its decision:

Defendant-appellant Gary E. Leach had a warped view of what it meant to have “fun.” That warped view culminated in the appellant's convictions for cyberstalking and extortion.

In more legal terms, the court said that while advance notice of a more severe sentence can be given, there's no requirement judges do so. And in this case, it was "readily apparent from the existing record that the ingredients for an upward variance were present." And yet, with the evidence right in her face - including the documents laying out the government's case, a sentencing recommendation from the probation department and a victim impact statement - Leach's attorney failed to ask for a continuance in which to marshal arguments against a longer prison stay, the court said:

The factors on which the district court relied were plainly apparent from the record and - absent willful blindness - the appellant's counsel surely should have realized, no later than the first day of the disposition hearing, that an upward variance was within the realm of possibility. And if counsel thought that more time was needed to marshal arguments against an upward variance, she should have sought that time from the district court by moving for a continuance. The failure to make such a motion throws considerable shade on counsel's claim of unfair surprise. We reject this claim.

The three-justice panel also said Kelley made good arguments in her ruling on why Leach deserved a longer than recommended sentence:

First, it highlighted the fact that the appellant caused his victims “[s]exually-based trauma,” which it described as “among the most intimate and personal types of harm that one person can inflict upon another.” Relatedly, the court noted that “[p]ost-traumatic stress disorder resulting from being sexually violated can affect every aspect of a victim's life.” With these considerations in mind, the court gave special attention to Jane Doe A's statement about the trauma she suffered from the appellant's actions.

Second, the court pointed to the “length of time over which [the appellant] traumatized his victims,” which included “a continuing 18-month campaign of harassment, intimidation, and extortion.”

•Third, the court spoke of the “power dynamics present in this case,” explaining that the appellant's behavior was “outrageous,” in part because he “took gratification in wielding” power over his victims and “revel[ed]” in their anguish.

Fourth, the court considered “the special role that the Internet played in [the] case,” remarking the appellant's use of "multiple anonymous social media accounts” and “the difficulty of identifying and prosecuting Internet-based sex criminals."

The court also rejected Leach's argument about the ban on contact with children, based on a prosecution allegation that he sent messages - of a non-sexual nature - to somebody who claimed to be a 15-year-old girl.

In this instance, the record makes manifest that the appellant, using one of the same anonymous accounts that he used to harass his victims and seek sexually explicit content, exchanged messages with a social media user who had represented herself as a fifteen-year-old girl. Even though this exchange was not overtly sexual in content, we cannot envision a scenario in which an adult with good judgment about how to interact with children would find it appropriate to reach out to a minor in this context. Relying on this evidence, the district court supportably could have believed that the appellant - if unrestrained - might pose a threat to children and that restricting his interactions with minors in certain settings was reasonably related to the goal of protecting the public from future crimes at the appellant's hands.