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United States v. Ackell

United States District Court, D. New Hampshire

July 7, 2017

United States
v.
David Ackell Opinion No. 2017 DNH 133P

          MEMORANDUM ORDER

          Joseph N. Laplante United States District Judge.

         After a four-day jury trial, defendant David Ackell was convicted of one count of stalking in violation of 18 U.S.C. § 2261A(2)(B). At the close of the prosecution's case, at the conclusion of his own, and after his conviction, Ackell moved for judgment of acquittal, see Fed. R. Crim. P. 29, arguing that that the evidence did not support his conviction and that the statute under which he was convicted is unconstitutional. He has also moved for a new trial, see id. Rule 33, asserting a violation of his Sixth Amendment right to a public trial.

         The court denies both motions. Section 2261A(2)(B) is not unconstitutional, either as applied to Ackell or as facially overbroad or vague. The evidence presented at trial would allow a reasonable factfinder to conclude that Ackell violated it by using facilities of interstate commerce to engage in a course of conduct, with the intent to harass or intimidate the victim in this case, R.R., and that course of conduct either caused or reasonably would have been expected to cause substantial emotional distress to R.R. Finally, the court denies Ackell's motion for a new trial, concluding that the evidence does not preponderate heavily against the jury's verdict and that Ackell's Sixth Amendment right to a public trial was not violated because the courtroom was not closed to the public during his trial.

         I. Background[1]

         R.R. “met” Ackell online during her sophomore year of high school, when she was 16 years old. Ackell claimed, during their first online conversations, to be 32 year old, though in fact he was over 40. They communicated routinely -- perhaps four to seven times per week -- during that year.[2]

         At that time, Ackell offered to send R.R. money in exchange for pictures of herself. She ultimately did send him photographs that year -- including photographs of her wearing only her underwear -- though he never sent her money in exchange. R.R. also sent such pictures to other individuals, including her boyfriend and others, often strangers, that she encountered online. She eventually ceased communication with Ackell for a short period of time because, she testified, she “was freaked out about the age difference” between them.[3]

         R.R. resumed communicating with him at some point late in 2013. Ackell asked her to join him in a dominant/submissive relationship, wherein he would be dominant and R.R. would be submissive. Not knowing what that meant, R.R. consulted the Internet. She learned that to be “submissive” meant that she “would have to do what he said, what he instructed, ” and that “he would be the boss.”[4] R.R. agreed to this arrangement. During its course, Ackell instructed R.R. to take and send him pictures of herself in certain poses and at certain times. Ackell also demanded photographs of R.R. in various states of dress, as well as sexually explicit photographs.[5] She complied.

         At the same time that R.R. was sending photographs to Ackell, she, again, also sent photographs of herself in varying stages of dress -- such as in yoga clothes, a bathing suit, or her bra and underwear -- to other people, including her then-boyfriend, Mike.[6] She testified that she did so voluntarily, not in response to any demand on their part. She further testified that she never sent nude photographs of herself to anyone except Ackell and Mike.

         Eventually, R.R. informed Ackell that she was no longer comfortable with their relationship and asked to end it. He responded that she was “caged” and “stuck.”[7] Though he had previously informed her on multiple occasions that he was not saving her photographs, Ackell disclosed that he had, in fact, done so, and that at least some of them were saved “on an encrypted server in Sweden, so if law enforcement came to search his house for anything, there would be no evidence.”[8] If R.R. stopped sending him photographs, Ackell threatened, he would send those he had saved to her family, friends from school, and all of her followers on Instagram.[9] R.R. testified that this frightened her because dissemination of the photographs he possessed would humiliate her.

         Toward the end of January 2014, R.R. told her new boyfriend, Danny Handrick, about Ackell's threats to disseminate her photographs. Hendrick called Ackell multiple times and threatened to assault and kill him.

         On January 27, 2014, R.R. and Ackell spoke for four hours via text message.[10] R.R. repeatedly asked Ackell to delete her photographs and end the relationship. She expressed particular concern about her future and damage to her reputation, which may prevent her from gaining admission to a nursing program, if Ackell disseminated the photographs as threatened. Ackell, an airline pilot, falsely claimed to be a Federal Air Marshal and threatened to bring felony charges against Hendrick unless R.R. continued their relationship, including sending photographs upon Ackell's demand, until February 28. That text-message conversation ended around 3:00 a.m. the next morning, after R.R. finally agreed to Ackell's demands: she would remain in the relationship until the end of February, and in exchange, Ackell would not bring charges against Hendrick.

         The next evening, R.R. resumed the text-message conversation, telling Ackell that her mother had viewed their text messages and was upset. She testified that this was false -- that, though her mother had never seen those messages, R.R. told him this hoping to scare him and because she “wanted a few days of not needing to take pictures . . . of me for him or not letting him know where I am, what time I get up, what time I'm going to bed.”[11] Ackell concluded their text-message conversation, asking R.R. to “[p]lease delete this number.”[12]

         Two weeks later, on February 9, 2014, Ackell texted R.R., telling her to “[c]heck ur Kik please.”[13] R.R. testified that the screenshots in Trial Exhibit 1 portrayed messages exchanged between herself and Ackell through the Kik application, and that the Kik conversation occurred after that February 9, 2014 text message.[14]

         During the Kik conversation, Ackell again demanded that R.R. send him photographs. He demanded, for example, that she send him pictures of herself exposed and touching herself, despite reluctant responses from her, such as, “I just dont feel well, ” “Im already all dressed tho, ” and “I feel uncomfortable.”[15] When she informed him that she would no longer take photographs she felt uncomfortable about, texting, “And you know im not.gonna take any pictures like I did before, weve talked about it, ” he responded, “I'll trade you. Want that??? You are MINE. You will do as told.”[16] Ackell several times threatened to “trade” R.R. to someone else if she did not comply with his demands, which she understood to mean that he would trade her photographs and information “to somebody else who would do what he was doing to [her]” through one of several online forums or websites where such “trades” occur.[17] He also repeatedly assured her that he was not saving the photographs. Despite these assurances, after the photographs were sent, Ackell asked R.R. to call him “to negotiate delet[ion]” of the photographs.[18]

         After the telephone call, Ackell confirmed that he would not “trade” R.R. The following exchange ensued:

Ackell: I haven't traded you, have I?
R.R.: No you have not and I thank you fot it
Ackell: You did good tonight. I know your mad.
R.R. I'm not mad, I'm more just suicidal, and im mad at myself.
Ackell: I understand. Why are you so suicidal? It doesn't release my desire for you. So why?
R.R. Because even tho im not caged[19] I still feel trapped and most of all really scared, beyond scared im terrified
Ackell: But you know if your well behaved, I protect you. Right?
R.R.: I do and I'm trying but sometimes my anger can get the better of me and I think you know that
Ackell: I do know that. I'm working with you on that. You are slowly being caged again. I'm sorry. You know this.
R.R.: Tonight im very determined to find you a new girl[.] If you cared and loved me you wouldn't, you have me why would you cage me[.] The nicer you are the more inclined I am to keep you as a friend, if I get caged I will be on suicide watch again I know me and I know I will
Ackell: I understand. I love you. I don't have to be nice. I can just trade you to find a nice girl. Understand??[20]

         Following this exchange, Ackell sent R.R. pictures of other girls he might “cage.” She again sought assurances that, if he did so, he would delete her photographs. Ackell would not agree to delete her photographs, however, unless she either had sex with him or procured another girl who would do so while R.R. was on the phone, so that R.R. would “know what [she] did to another girl.”[21]

         Ackell then suggested that he might “cage” a 14-year-old girl who was “very innocent.”[22] He detailed several acts he would have her perform, including having sex with Ackell while R.R. was on the phone and having sex with her dog, and explained that R.R. would be responsible for these things happening to the girl. Ackell told R.R. that he would delete R.R.'s photographs after that girl had sex with him. If she refused, Ackell said, “Your not deleted[.] And it goes on. If I have my choice, I have you forever and ever.”[23]

         After this exchange, and upon learning that Ackell might do to a 14-year-old girl what he had done and had threatened to do to her, R.R. finally spoke with her father about Ackell. With her father's assistance, R.R. went to the police. Before she did so, however, and at her father's suggestion, R.R. took screenshots of some of her communications with Ackell and then deleted all of the messages she had exchanged with Ackell.

         II. Motion for judgment of acquittal

         “After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.” Fed. R. Crim. P. 29(1). Ackell moves for judgment of acquittal, arguing that the prosecution failed to carry its burden at trial and that the statute is unconstitutional. Concluding that the evidence presented at trial may sustain a conviction under 18 U.S.C. § 2261A(2)(B), that the statute is not overbroad on its face nor unconstitutionally applied to Ackell, and that Ackell has waived his undeveloped vagueness argument, the court denies his Rule 29 motion.

         A. Sufficiency of the evidence

         Ackell first argues that the evidence at trial was insufficient to prove two elements of the crime with which he was charged. As the court instructed the jury:

In order to sustain its burden of proof for the crime of stalking as charged in the indictment, the government must prove all of the following elements beyond a reasonable doubt:
First, that the defendant used facilities of interstate and foreign commerce, including electronic cellular telephone networks.
Second, that the defendant used the electronic communication service or other facility of interstate or foreign commerce to engage in a course of conduct consisting of the sending of text messages, digital images, and other electronic communications to R.R. and D. Hendrick.
Third, that the defendant, while engaged in that course of conduct, acted with the intent to injure, or harass, or intimidate R.R.
Fourth, that the course of conduct engaged in with the aforementioned intent caused substantial emotional distress to R.R., attempted to cause substantial emotional distress to R.R., or would be reasonably expected to cause substantial emotional distress to R.R.[24]

         The parties stipulated to the first element.[25] Ackell now argues that the evidence presented by the prosecution at trial was insufficient to prove the third and fourth elements -- intent and causation of harm -- beyond a reasonable doubt. The court finds, to the contrary, that the evidence was sufficient to convict.

         In addressing such a motion, the court “examine[s] the evidence, both direct and circumstantial, in the light most favorable to the jury's verdict.” United States v. Troy, 583 F.3d 20, 24 (1st Cir. 2009). It focuses not “on each piece of evidence separately, ” but rather “evaluate[s] the sum of all the evidence and inferences drawn therefrom, and determine[s] whether that sum is enough for any reasonable jury to find all the elements of the crime proven beyond a reasonable doubt, even if the individual pieces of evidence are not enough when viewed in isolation.” United States v. Santos-Soto, 799 F.3d 49, 57 (1st Cir. 2015). The court must “reject those evidentiary interpretations and illations that are unreasonable, insupportable, or overly speculative.” Rodríguez-Martinez, 778 F.3d at 371 (quoting United States v. Spinney, 65 F.3d 231, 234 (1st Cir. 1995)). It may not, however, “assess the credibility of a witness in determining the sufficiency of the government's evidence.” United States v. Rothrock, 806 F.2d 318, 320 (1st Cir. 1986) (citing Burks v. United States, 437 U.S. 1, 16 (1978)). After this analysis, “[t]he verdict must stand unless the evidence is so scant that a rational factfinder could not conclude that the government proved all the essential elements of the charged crime beyond a reasonable doubt.” Santos-Soto, 799 F.3d at 57 (quoting United States v. Rodríguez-Vélez, 597 F.3d 32, 39 (1st Cir. 2010)).

         1. Intent to harass or intimidate

         The prosecution bears the burden of proving, beyond a reasonable doubt, that Ackell acted “with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person . . . .” 18 U.S.C. § 2261A(2). As the court instructed the jury:

To act with “intent” means to act voluntarily and intelligently, not by ignorance, accident, or mistake, and with the specific intent or purpose of causing a desired result in a particular individual. It is not enough merely to foresee that such a result is a likely consequence of repeated communications. Moreover, a bad motive of some other kind, standing alone, is not enough.[26]

         Ackell argues that the prosecution failed to satisfy its burden as to this element. He argues that the evidence demonstrated, to the contrary, that Ackell understood himself to be in a consensual, “dominant/submissive online relationship” with R.R., which he ended immediately upon her request, and that such an understanding precluded intent to injure, harass, or intimidate.[27]

         A jury may have found that Ackell held such a belief before January 27, 2014.[28] R.R. testified that, at least for some period of time, she had agreed to engage in such a relationship with Ackell, though they may have had differing conceptions of what such a relationship entailed. Specifically, R.R. understood that she had agreed to an arrangement wherein Ackell “would be the boss, ” and “would tell [her] to pose in a particular way and [she] would pose in that way, ” to take pictures for him.[29]

         Ackell concedes, however, that this state of affairs changed on January 27, 2014.[30] During that text-message conversation, R.R. informed Ackell that she was no longer interested in continuing their relationship.[31] Several examples of messages R.R. sent to him that night highlight her desire to leave whatever arrangement that may have existed:

“Dont . . . talk to me.”[32]
“Its over. Get over it. Move on and [t]alk to someone else. It'll make everything easier. Delete everything about me.”[33]
“I just don't want this to continue on anymore that it has.”[34]
“I can't be like I used to. I don't want to. I don't want to talk to you. Can we please just drop everything and just go our separate ways?”[35]
“I want it all to stop. I dont want you to be texting him or calling him or anything take down the felony charges. And then as for me I have my whole life ahead of me so im asking please delete the pictures.”[36]
“I really dont want to drag this on longer then it has. I dint understand why you can't just drop everything and move on, seriously we have.”[37]
“I'm not gonna be your slave again, I domt even want to talk to you.”[38]
“I dont want anything to do with you anymore, ever again.”[39]

         R.R. also told Ackell that she deleted his contact information from her Kik account because she “[needed] everything to stop.”[40]Even were this conversation the very first time that R.R. sought to leave the relationship, or the first time that Ackell understood that R.R. sought to leave, Ackell recognized these pleas as amounting to such a request during that text-message conversation: “You clearly stated today you didn't want me. First time. That's ok.”[41]

         During that conversation, R.R. also informed Ackell that she was not as interested in being “submissive” as she may have previously led him to believe. Ackell asked R.R. if her being a “[s]ubmissive [was] a lie as well?”[42] R.R. responded that she told him she liked being a submissive because she had “a tendency to tell people what they want to hear. You wanted to hear I like to be submissive, which is onky 25% true. Im being honest because I feel bad.”[43]

         A reasonable factfinder could infer, at this point -- after Ackell acknowledged that R.R. “didn't want” him and after R.R. admitted to leading Ackell on about her submissiveness -- that Ackell was on notice that any consensual dominant/submissive relationship between the two no longer existed. Despite those clear statements, Ackell continued to send text messages threatening to bring felony charges against R.R.'s boyfriend, Hendrick, and to retain R.R.'s photographs with the threat of possible dissemination unless she continued in their relationship through the end of February.[44] R.R. identified this offer as “black mail, ” and reiterated: “Forcing me to do something I don't want to do is a pretty shitty thing. I'm not going to your little slave again, im over that.”[45]

         As Ackell points out, the penultimate text messages in Exhibit 2 amount to a farewell from Ackell on the evening of January 28, 2014:

Take care. Good bye [R.R]. Please delete this number. You said it's over and your mom is upset. You wont let me speak with her to explain you were just trying to make their life better. Don't worry. You won't hear from me. I wanted till the end of feb. You have once again made that impossible. Good bye [R.R.]. Best of luck to you.[46]

         Ackell argues that, given the confluence of R.R.'s request to end the relationship and Ackell's farewell, a reasonable factfinder must infer that Ackell ended the relationship at R.R.'s request through this text message. Building on this conclusion, Ackell argues that the undated Kik messages in Exhibit 1 must necessarily precede the text-message conversation and R.R.'s first request to end the relationship. As such, he concludes, the prosecution has not proven that he acted with the intent to harass or intimidate R.R. when he sent any of the Kik messages.

         A jury reasonably could have found, however, that the undated Kik conversation of Exhibit 1 followed, rather than preceded, the January 27-28 text-message conversation of Exhibit 2, as R.R. testified that it did.[47] First, the final text message from Ackell in Exhibit 2 is not the farewell reproduced above, but rather a February 9, 2014, message encouraging R.R. to check her Kik messages.[48] This is consistent with R.R.'s testimony that, when she followed this instruction and checked the Kik application on her phone, she found messages from Ackell, including the reproduced Kik conversation.[49] It is also consistent with her testimony that the Kik conversation took place during her February vacation from school in 2014.[50]

         Second, elements of the Kik conversation may be understood to refer back to the January 27 text-message conversation, supporting the inference that the former followed the latter. For example, through much of the January 27 text-message conversation, R.R. asked Ackell to delete photographs of her and expressed her discomfort with taking more. When Ackell began the Kik conversation by demanding photographs R.R. responded, “And you know im not.gonna take any pictures like I did before, weve talked about it.”[51] R.R. testified that, by this message, she meant that if she “was going to still be, as he said, trapped until a certain date, [she] wanted to take [photographs] that [she] was comfortable with, ” not respond to his demands to take photographs that she was uncomfortable with.[52] During the Kik conversation, R.R. then continually requested assurance that Ackell would delete the photographs she was in the process of sending him. A reasonable factfinder could conclude that her reference to a prior conversation included one in which she expressed discomfort with taking pictures like those she had before, such as the January 27 text-message conversation.

         As another example, both Ackell and R.R. sent messages during the Kik conversation that can be read to suggest it occurred after Ackell ostensibly “released” R.R. and concluded their communications at the end of their text-message conversation. Specifically, Ackell sent R.R. a Snapchat message containing a song called “Let her go.” When asked what he meant, he explained: “I let you go... Mistake[.] I should of kept you forever . . . .”[53] Similarly, R.R. expressed concern that, though she was no longer “caged, ” she still felt “trapped, ” to which Ackell eventually responded, “You are slowly being caged again. I'm sorry. You know this.”[54] A reasonable jury could conclude that both Ackell's and R.R.'s references to her having been let go, or being no longer “caged, ” referred to Ackell's ostensible farewell to R.R. at the end of the text-message conversation.

         Third, evidence concerning when R.R. took the screenshots of the Kik conversation also supports this inference. She testified that she took the screenshots of her Kik conversations on the advice of her father, only after she told him about those conversations and in advance of going to the police in February 2014.[55] Between Ackell's demand that R.R. call him and his confirmation that he would not trade her (at least, at that time), the screenshot reads: “Today @ 8:20PM.”[56] A reasonable factfinder could infer from that timestamp that the Kik conversation took place on the day that R.R. took a screenshot of it. The heading “Dave is typing . . .” which appears at the top of several of the screenshots[57] likewise suggests that R.R. took screenshots of the Kik conversation during that conversation. In the final captured Kik message, R.R. told Ackell: “I told my dad everything, including every detail, ”[58]from which the jury could conclude that the Kik conversation occurred in the same relative timeframe as R.R. telling her father and, on his advice, taking the screenshots.

         A reasonable factfinder could thus conclude that Ackell, having been informed by R.R. that she wished to conclude any relationship they had, ostensibly concluded their relationship on January 28 via text message, but continued to send R.R. text and/or Kik messages designed to injure, harass, or intimidate her into remaining in their relationship -- including sending photographs of herself taken to his specification and upon his demand -- in February 2014. The jury could similarly conclude that Ackell did this “voluntarily and intelligently, not by ignorance, accident, or mistake, and with the specific intent or purpose of causing a desired result in [R.R.]” because he continued to send such messages even after she informed him that she wished to conclude any consensual relationship they may have had.

         2. Causation of substantial emotional distress

         Ackell faces, but likewise does not succeed in, a similar uphill battle on the causation element. In addition to proving intent, the prosecution was required to prove, also beyond a reasonable doubt, that Ackell's course of conduct “cause[d], attempt[ed] to cause, or would be reasonably expected to cause substantial emotional distress” to R.R. 18 U.S.C. § 2261A(2)(B). Ackell argues that the prosecution failed to do so. Viewing the evidence in the light most favorable to the ...


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