FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Joseph N. Laplante, U.S. District Judge]
William E. Christie, with whom Shaheen & Gordon, P.A was
on brief, for appellant.
R. Aframe, Assistant United States Attorney, with whom Scott
W. Murray, United States Attorney, was on brief, for
R. Bissonnette, American Civil Liberties Union Foundation of
New Hampshire, Matthew R. Segal, Ruth A. Bourquin, American
Civil Liberties Union Foundation of Massachusetts, Inc.,
Jacob J. Hutt, Brian Hauss, Sandra S. Park, Ben Wizner,
Lenora M. Lapidus, Cecillia D. Wang, American Civil Liberties
Union Foundation, Carolyn A. Mannis and Law Office of Stephen
J. Dennis, on brief as amici curiae in support of appellant.
Torruella, Thompson, and Barron, Circuit Judges.
TORRUELLA, CIRCUIT JUDGE
convicted David Ackell of one count of stalking in violation
of 18 U.S.C. § 2261A. He now brings a First Amendment
challenge to that statute, in addition to challenging the
district court's jury instructions and arguing that
insufficient evidence supported his conviction. Ackell's
constitutional challenge does not succeed. We discern no
error in the district court's jury instructions. And
lastly, we hold that sufficient evidence supported
Ackell's conviction. We therefore affirm.
begin with an overview of the relevant facts. Because this
appeal pertains in part to Ackell's motion for acquittal
before the district court, "we recount the facts here
'in the light most favorable to the
government.'" United States v.
Fernández-Jorge, 894 F.3d 36, 41 (1st Cir. 2018)
(quoting United States v. Acevedo, 882 F.3d 251, 257
(1st Cir. 2018)).
and R.R. met online in 2012 during R.R.'s sophomore year
of high school. To get around the requirements of the website
on which they met -- the now-defunct MyYearbook.com -- R.R.
held herself out as an eighteen-year-old, though she was
actually only sixteen. Ackell's profile represented that
he was twenty-one years old, but during his first
conversation with R.R., he told her he was actually
thirty-two. This was also false --Ackell was actually over
forty at the time. The two began to regularly converse
online. Eventually, Ackell told R.R. that if she sent him
photos of herself, he would send her money in return. R.R.
sent Ackell photos of herself partially clothed. She
testified, though, that despite providing Ackell with a P.O.
Box address, he never sent her money.
five months after R.R. and Ackell first began communicating
online, Ackell proposed that they enter into a
"dominant-submissive" relationship, in which R.R.
would be "the submissive." R.R., who was now
seventeen, did not know what this meant, so she did some
research on the internet. R.R. testified that she came to
understand that, under such an arrangement, Ackell would be
"the boss," and that if he told her to "pose
in a particular way . . . [she] would pose in that way."
Ultimately, R.R. agreed to enter into a relationship of this
sort with Ackell. R.R. testified that, though her research
into dominant-submissive relationships indicated that
"[t]ypically there's supposed to be a safe
word," she and Ackell did not have a safe word.
also testified that, after their dominant-submissive
relationship commenced, Ackell began to treat her differently
than before -- and in a way that departed from her
expectations about what the relationship would entail. For
example, Ackell would call her "slave," or
"caged butterfly," and insist that she address him
as "owner" and tell him that she loved him. He also
frequently demanded that R.R. send him sexually explicit
photos of herself.
eventually told Ackell that she felt uncomfortable and wanted
to end their dominant-submissive relationship. Ackell,
however, informed R.R. that she could not opt out of the
relationship because she was "caged." Ackell also
warned R.R. that if she stopped sending him photos, he would
disseminate photos of her that he had saved among her
friends, classmates, and family. R.R. testified that twice,
she called Ackell "begging and pleading with him to . .
. delete all of [her] stuff and let [her] go." But,
Ackell told her that he would not, because she was
"trapped" and a "caged butterfly." In
January of 2014, R.R. temporarily succeeded in terminating
her relationship with Ackell after leading him to believe
that her mother had discovered their relationship and was
upset. Ackell resumed contacting her, though, and soon
afterwards, R.R. told her father about her relationship with
Ackell. R.R.'s father instructed her to take screenshots
of her past conversations with Ackell and then delete those
messages. Her father then contacted law enforcement.
29, 2015, a grand jury returned an indictment charging Ackell
with one count of stalking. See 18 U.S.C. §
2261A(2)(B). Ackell moved to dismiss the indictment as
insufficient, and on the grounds that § 2261A(2)(B)
violates the First Amendment. On July 27, 2016, a grand jury
returned a superseding indictment specifying that Ackell had
committed the one count charged through "the sending of
text messages, digital images and other electronic
communications." Ackell renewed his original motion to
dismiss as to the superseding indictment. The district court
ordered the government to file a bill of particulars.
See Fed. R. Crim. P. 7(f). But, it denied
Ackell's motion to dismiss, finding the indictment
"neither statutorily nor constitutionally
deficient," and also rejecting his First Amendment
proceeded to trial. The jury found him guilty, and he then
moved for a judgment of acquittal. See Fed. R. Crim.
P. 29. The district court denied his motion, finding that
sufficient evidence supported his conviction. The district
court then sentenced him to thirty-three months of
imprisonment. Ackell now appeals: (1) the district
court's denial of his First Amendment challenge to the
anti-stalking statute; (2) the district court's jury
instructions; and (3) the district court's denial of his
motion for acquittal.
Ackell's First Amendment challenge to the federal
anti-stalking statute, he presses that § 2261A(2)(B) is
both facially overbroad and a content-based restriction on
speech that does not survive strict scrutiny. We consider
these arguments sequentially, reviewing the district
court's holding de novo because it involves only
questions of law. See United States v. Floyd, 740
F.3d 22, 38 (1st Cir. 2014).
does not claim that the conduct underlying his conviction was
protected by the First Amendment. Rather, Ackell asserts that
§ 2261A(2)(B) cannot be applied to anyone because it is
overbroad under the First Amendment, even though it has been
constitutionally applied to him. "The traditional rule
is that a person to whom a statute may constitutionally be
applied may not challenge that statute on the ground that it
may conceivably be applied unconstitutionally to others in
situations not before the Court." United States v.
Sayer, 748 F.3d 425, 434-35 (1st Cir. 2014) (quoting
New York v. Ferber, 458 U.S. 747, 767 (1982)). The
Supreme Court, however, has "altered its traditional
rules of standing" in a small number of contexts,
"but only because of the most 'weighty
countervailing policies.'" Broadrick v.
Oklahoma, 413 U.S. 601, 611-12 (1973) (quoting
United States v. Raines, 362 U.S. 17, 22-23 (1960)).
This is the case with the First Amendment overbreadth
doctrine. In this context, the Court has seen fit to slacken
its standing requirements in response to the "concern
that the threat of enforcement of an overbroad law may deter
or 'chill' constitutionally protected speech --
especially when the overbroad statute imposes criminal
sanctions." Virginia v. Hicks, 539 U.S. 113,
119 (2003). Thus, even when a law may be applied to a
particular individual in a constitutionally unobjectionable
way, if that individual can show that the law is facially
overbroad --that is, that it "punishes a
'substantial' amount of protected free speech,
'judged in relation to the statute's plainly
legitimate sweep, '" -- the proper remedy is to
"invalidate all enforcement of that law."
Id. at 118-119 (quoting Broadrick, 413 U.S.
Supreme Court has cautioned that "[r]arely, if ever,
will an overbreadth challenge succeed against a law or
regulation that is not specifically addressed to speech or to
conduct necessarily associated with speech (such as picketing
or demonstrating)." Hicks, 539 U.S. at 124.
Thus, we begin our analysis by ascertaining §
2261A(2)(B)'s aim, as well as its potential for punishing
protected speech. See United States v. Williams, 553
U.S. 285, 293 (2008) ("The first step in overbreadth
analysis is to construe the challenged statute; it is
impossible to determine whether a statute reaches too far
without first knowing what the statute covers."). As is
relevant here, § 2261A(2)(B) penalizes 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 . . . causes, attempts to
cause, or would be reasonably expected to cause substantial
emotional distress to [that] person [or an immediate family
member, spouse, or intimate partner of that
to properly secure a conviction under § 2261A(2)(B), the
prosecution must prove that: (1) the defendant had the
requisite intent; (2) the defendant "engage[d] in a
course of conduct"; (3) the defendant used a facility of
interstate commerce; and (4) the defendant's "course
of conduct" "cause[d], attempt[ed] to cause, or
would be reasonably expected to cause substantial emotional
distress." A "course of conduct" is "a
pattern of conduct composed of 2 or more acts, evidencing a
continuity of purpose." 18 U.S.C. § 2266(2).