United States v. Ackell

          William E. Christie, Esq.

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge.

         David 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.

         The 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.

         I. Background

         This 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.

         A grand 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 title.

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.

         II. Analysis

         Ackell 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).

         A. Challenge to the indictment

         Ackell first argues that the superseding^[1] 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.

         The 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 (1974)).

         The 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. ...