United States District Court, D. New Hampshire
William E. Christie, Esq.
N. Laplante United States District Judge.
Ackell stands indicted for cyberstalking. See 18 U.S.C.
§ 2261A(2)(B). He moves to dismiss that indictment as
insufficient for failure to recite facts identifying the
allegedly criminal “course of conduct” in which
he is accused of engaging. He also challenges the
cyberstalking statute as facially overbroad in violation of
the First Amendment of the United States Constitution and
unduly vague in violation of the First and Fifth Amendments.
indictment is neither statutorily nor constitutionally
deficient. Nor is the statute itself facially overbroad. And,
Ackell lacks standing to challenge it as unconstitutionally
vague on its face without challenging its application to him
in the same manner. Ackell's motion to dismiss the
indictment is, therefore, denied.
case arises out of a series of interactions between the
defendant and the victim, R.R., beginning when R.R. was 16
years old and continuing for several years. Ackell and R.R.
communicated through a variety of social media websites, as
well as by text messaging applications and by telephone. Over
time, Ackell requested revealing photographs of R.R., which
she sent, and which he threatened to distribute if R.R.
ceased communicating with him or failed to send him
additional photographs upon his request.
jury charged Ackell with cyberstalking in violation of 18
U.S.C. § 2261A(2), which provides:
Whoever[, ] with the intent to kill, injure, harass,
intimidate, or place under surveillance with intent to kill,
injure, harass, or intimidate another person, uses the mail,
any interactive computer service or electronic communication
service or electronic communication system of interstate
commerce, or any other facility of interstate or foreign
commerce to engage in a course of conduct that--
(A) places that person in reasonable fear of the death of or
serious bodily injury to a person described in clause (i),
(ii), or (iii) of paragraph (1)(A); or
(B) causes, attempts to cause, or would be reasonably
expected to cause substantial emotional distress to a person
described in clause (i), (ii), or (iii) of paragraph (1)(A),
shall be punished as provided in section 2261(b) of this
18 U.S.C. § 2261A(2). The First Circuit Court of
Appeals, among other courts, upheld the constitutionality of
the prior version of the statute against challenges similar
to Ackell's. See United States v. Sayer, 748
F.3d 425, 434-36 (1st Cir. 2014); United States v.
Osinger, 753 F.3d 939, 943-45 (9th Cir. 2014);
United States v. Petrovic, 701 F.3d 849, 856 (8th
Cir. 2012). Congress amended the cyberstalking statute in
2013 in two ways material to Ackell's constitutional
challenges. First, Congress amended the culpable mental state
required. The prior version of the statute required that the
defendant act “with the intent . . . to kill, injure,
harass, or place under surveillance with intent to kill,
injure, harass, or intimidate, or cause substantial emotional
distress to a person . . . .” 18 U.S.C. § 2261A(2)
(2006) (amended 2013). As amended in 2013, a defendant may
now violate it if he acts with the intent to
“intimidate” another person. At the same time,
Congress removed the intent to “cause substantial
emotional distress” from that paragraph. Second,
Congress changed the requirement that the defendant
“engage in a course of conduct that causes substantial
emotional distress” to the present requirement that the
defendant “engage in a course of conduct that . . .
causes, attempts to cause, or would be reasonably expected to
cause substantial emotional distress” to the victim.
moves to dismiss the indictment against him on three grounds.
First, he contends that the indictment itself is
constitutionally deficient for lack of specificity. Should
that challenge fail, he argues that the statute is
unconstitutionally overbroad or vague. The court first
addresses Ackell's statutory argument. Only upon
concluding that the indictment suffices does the court reach
the question of whether the statute is unconstitutional, and
concludes that it is not. See United States v.
Vilches-Navarrete, 523 F.3d 1, 9 & n.6 (1st Cir.
2008) (“the doctrine of constitutional avoidance
requires [the court] to refrain from ruling on the
constitutionality of [a] statute” unless the posture of
the case requires it).
Challenge to the indictment
first argues that the superseding indictment is
constitutionally deficient for failure to set forth what
conduct on Ackell's part constituted the allegedly
criminal “course of conduct.” The court concludes
that it is not.
Fifth Amendment provides in part that “[n]o person
shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand
Jury.” U.S. Const., amend. V. Under the Sixth
Amendment, “the accused shall enjoy the right . . . to
be informed of the nature and cause of the accusation.”
Id., amend. VI. The indictment must include a
“plain, concise, and definite written statement of the
essential facts constituting the offense charged . . .
.” Fed. R. Crim. P. 7(c)(1). “[A]n indictment is
sufficient if it, first, contains the elements of the offense
charged and fairly informs a defendant of the charge against
which he must defend, and, second, enables him to plead an
acquittal or conviction in bar of future prosecutions for the
same offense.” United States v.
Cianci, 378 F.3d 71, 81 (1st Cir. 2004)
(quoting Hamling v. United States, 418 U.S. 87, 117
grand jury charged Ackell with violating 18 U.S.C. §
2261A(2)(B), in that he:
[f]rom on or about October 2012 to on or about February 2014,
in the Districts of New Hampshire, and elsewhere . . . with
the intent to injure, harass, intimidate, and to place under
surveillance with the intent to injure, harass and intimidate
another person, namely, R.R., used facilities of interstate
and foreign commerce, including electronic cellular telephone
networks, to engage in a course of conduct, to wit, the
sending of text messages, digital images and other electronic
communications to R.R. ...