UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
United States
v. Civil No. 15-cr-123-JL Opinion No 2016 DNH 185P David Ackell
MEMORANDUM ORDER
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. 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
2 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.
3 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 superseding1 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
1 The government superseded its original indictment after Ackell moved to dismiss it. Ackell contends that the government failed to remedy the insufficiencies of the original indictment, see Reply (doc. no. 37) at 1-4, which the court interprets as a renewal of his motion to dismiss the indictment.
4 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. and another, that caused, attempted to cause, or would be reasonably expected to cause, substantial emotional distress to R.R.
This indictment “set[s] forth the words of the statute,” which
“is generally sufficient if those words set forth all the
5 elements of the offense without any uncertainty or ambiguity.”
United States v. Berk, 652 F.3d 132, 138 (1st Cir. 2011)
(quotations omitted).
None of the cases invoked by Ackell requires the opposite
result. In Russell v. United States, the Supreme Court found
lacking an indictment that charged the defendant with refusing
to answer questions that “were pertinent to the question then
under inquiry” by a congressional subcommittee. 369 U.S. 749,
752 (1962). Following Russell, the First Circuit Court of
Appeals likewise found insufficient an indictment accusing a
defendant of “making threats by an unstated means to an unnamed
person on a particular day in a city of moderate size.” United
States v. Tomasetta, 429 F.2d 978, 979-80 (1st Cir. 1970). In
both cases, the indictment prejudiced the defendant’s ability to
mount a defense because it lacked a crucial element of the
offense charged. In Russell, the indictment left the defendant
in the dark as to the very “nature of the accusation against
him” because he “was not told at the time what subject the
subcommittee was investigating.” 369 U.S. at 767-68. In
Tomasetta, “the location, time, and object of the communication
[were] specified only in the most general terms or not at all.”
429 F.2d at 980.
The indictment in this case is not so deficient. It
informs Ackell of the timeframe of his allegedly culpable
6 conduct, where the conduct took place, whom he contacted during
that course of conduct, and the means of that contact -- “text
messages, digital images, and other electronic communications.”2
This case thus more closely resembles United States v. Hallock,
941 F.2d 36 (1st Cir. 1991). The indictment in Hallock informed
the defendant “that he was accused of a conspiracy in 1988, in
Maine, to distribute cocaine,” and listed “the names of the four
principal coconspirators.” Id. at 40. It thus “gave Hallock
significant information as to the conduct out of which the
indictment arose —- namely, his alleged agreement and
relationship with these four men aimed at distributing cocaine.”
Id. As the indictment in this case provides Ackell with similar
information, “the absence of a statement of the precise dates”
and content of his actions “does not necessarily render the
indictment impermissibly vague.” Id. at 41.
Though Ackell’s indictment is not constitutionally
deficient, the court, exercising its discretion, ordered the
prosecution to file a bill of particulars “listing the text
messages, digital images, and other electronic communications
comprising the course of conduct referenced in the superseding
2 Ackell suggests that, because his alleged “course of conduct necessarily involves speech” and thus implicates the First Amendment, the indictment must allege specific statements. Reply (doc. no. 37) at 2. Ackell offers no authority in support of this proposition, however; nor is the court aware of any.
7 indictment.”3 Fed. R. Crim. P. 7(f); Hallock, 941 F.2d at 40. A
bill of particulars is appropriate when an ambiguous indictment
may render a defendant “disabled from preparing a defense,
caught by unfair surprise at trial, or hampered in seeking the
shelter of the Double Jeopardy Clause.” U.S. v. Sepulveda, 15
F.3d 1161, 1192–93 (1st Cir. 1993). Ackell correctly observes
that “it has long been settled law that an invalid indictment
cannot be cured by a Bill of Particulars.” United States v.
Murphy, 762 F.2d 1151, 1154 (1st Cir. 1985) (citing Russell, 369
U.S. at 770). As already stated, however, the superseding
indictment is not invalid. The court did not order the bill of
particulars in an attempt to cure the indictment; rather, it was
to assist Ackell in preparing his defense and to minimize the
risk of double jeopardy by clarifying which of his
communications with the victim during the relevant period are
subject to the indictment.4
3 Order of September 7, 2016 (doc. no. 40). 4 Though the U.S. Attorney filed a purported bill of particulars, see document no. 41, it failed to comply with this court’s September 7, 2016 order in that it did not list the communications comprising the indicted “course of conduct.” The court accordingly granted Ackell’s motion to compel compliance with that order. See Motion to Compel Compliance (doc. no. 42); Order of October 12, 2016.
8 B. Overbreadth challenge
Declining to dismiss the indictment on sufficiency grounds,
the court turns to Ackell’s challenges to the constitutionality
of the cyberstalking statute. Ackell first argues that
§ 2261A(2)(B) violates the First Amendment of the United States
Constitution because it is substantially overbroad.5
The First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech.” U.S. Const.,
amend. I. “‘[A]s a general matter, the First Amendment means
that government has no power to restrict expression because of
its message, its ideas, its subject matter, or its content.’”
Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573
(2002) (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60,
65 (1983)). “[T]he First Amendment has permitted restrictions
upon the content of speech in a few limited areas,” however,
“including obscenity, defamation, fraud, incitement, and speech
integral to criminal conduct . . . .” United States v. Stevens,
559 U.S. 460, 468-69 (2010) (internal citations omitted).
5 Ackell does not challenge the statute as applied to him, arguing that the deficiency of the indictment leaves him bereft of the information necessary to do so. See Mot. to Dismiss (doc. no. 23-1) at 11 n.2. The absence of such a challenge does not bar him from challenging the statute as facially overbroad. See Virginia v. Hicks, 539 U.S. 113, 118 (2003) (“The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.”).
9 Ackell argues that the statute criminalizes constitutionally-
protected speech that does not fall into those exceptions.
A “typical facial attack” to a statute’s constitutionality
requires the proponent to “establish that no set of
circumstances exists under which [the statute] would be valid,
or that the statute lacks any plainly legitimate sweep.” Id. at
472 (internal quotations and citations omitted). The Supreme
Court recognizes “a second type of facial challenge” in the
First Amendment context, however, “whereby a law may be
invalidated as overbroad if ‘a substantial number of its
applications are unconstitutional, judged in relation to the
statute’s plainly legitimate sweep.’” Id. at 473 (quoting Wash.
State Grange v. Wash. State Republican Party, 552 U.S. 442, 449,
n. 6 (2008)). Ackell fails to demonstrate such overbreadth “in
an absolute sense or relative to its legitimate applications,”
by the statute’s text or through hypothetical examples of
protected speech encompassed by the statute. Sayer, 748 F.3d at
436. The court concludes, therefore, that the cyberstalking
statute is not facially overbroad.
1. Scope of § 2261A(2)(B)
In order to determine whether the cyberstalking statute
offends the First Amendment, the court must first “construe the
challenged statute; it is impossible to determine whether a
10 statute reaches too far without first knowing what the statute
covers.” United States v. Williams, 553 U.S. 285, 293 (2008).
In doing so, the court begins by examining the language of the
statute itself. See United States v. Tobin, 480 F.3d 53, 56
(1st Cir. 2007).
Section 2261A(2)(B) has four elements. It requires that
the defendant, (1) having one of a defined set of intentions,
(2) engage in a course of conduct, (3) using one of a variety of
communication services or systems of interstate or foreign
commerce, (4) which course of conduct “causes, attempts to
cause, or would be reasonably expected to cause substantial
emotional distress” to one of a defined set of individuals. A
“course of conduct” is statutorily defined as “a pattern of
conduct composed of 2 or more acts, evidencing a continuity of
purpose.” 18 U.S.C. § 2266(2). Ackell takes no issue with the
“course of conduct” or the “communication services or systems”
elements here, focusing on the intent and harm elements.
The language of the intent requirement is clear. The
statute requires that the defendant act 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). Unless context dictates
otherwise -- and here it does not -- use of the a disjunctive
“or” indicates that the defendant need only act with one of
11 these intentions. See Reiter v. Sonotone Corp., 442 U.S. 330,
339 (1979). Courts interpreting this statute have noted that
the meanings of the terms “harass” and “intimidate” can “be
ascertained fairly by reference to judicial decisions, common
law, dictionaries, and the words themselves because they possess
a common and generally accepted meaning.” United States v.
Bowker, 372 F.3d 365, 381 (6th Cir. 2004), cert. granted,
judgment vacated on other grounds, 543 U.S. 1182 (2005). The
Court of Appeals for the First Circuit had interpreted a related
statute requiring “intent to harass” as requiring “an intent to
provoke adverse reactions” in the harassed party. Tobin, 480
F.3d at 58.
The element defining the prohibited course of conduct --
the defendant’s actions -- presents two facets: the harm done,
and the person harmed. Under the 2006 version of the statute,
the defendant’s course of conduct must have “cause[d]
substantial emotional distress” to the person he intended to
harm. Such a course of action, undertaken with the requisite
intent, still amounts to a violation under the current version
of the statute. The current version expands on both the harm
and the category of harmed persons, however. Under the amended
statute, the prosecution need not prove that the defendant’s
activity actually harmed the person in question, so long as it
“attempted” or “would reasonably be expected” to cause
12 substantial emotional distress.6 As to the object of the harm,
the defendant’s activity need not harm or be expected to harm
the targeted individual; it also violates the statute if it
“causes, attempts to cause, or would reasonably be expected to
cause” that harm to the target’s immediate family members,
spouse, or intimate partners.
2. Prohibited activity
In the second step of an overbreadth analysis, the court
must determine whether the statute, as construed, “criminalizes
a substantial amount of protected expressive activity,”
Williams, 553 U.S. at 297. A statute may fall to the sort of
facial overbreadth attack Ackell mounts if “a substantial number
of its applications are unconstitutional, judged in relation to
the statute’s plainly legitimate sweep.” Stevens, 559 U.S. at
473. Ackell “bears the burden of showing ‘from the text of [the
law] and from actual fact’ that substantial overbreadth exists.”
Sayer, 748 F.3d at 435 (alteration in original) (quoting Hicks,
539 U.S. at 122).
6 The court observes that a “course of action” is a noun, but not a person; it therefore lends itself to “causing” or “expecting to cause,” but not to “attempting to cause.” It seems to the court that the “attempt to cause” element merges to some degree with the intent requirement. As the defendant does not focus his argument on the “attempts to cause” element, contending rather that the “would reasonably be expected to cause” language is constitutionally problematic, the court need not resolve that linguistic inconsistency.
13 Several appellate courts upheld the constitutionality of
the 2006 version of the statute.7 In doing so, as Ackell
correctly points out, they invoke three aspects of that version
of the statute. First, the statute “proscribe[d] harassing and
intimidating conduct,” as a result of which, “the proscribed
acts are tethered to the underlying criminal conduct and not to
speech.” Osinger, 753 F.3d at 944; see also Petrovic, 701 F.3d
at 856 (“Section 2261A(2)(A) is directed toward ‘course[s] of
conduct,’ not speech, and the conduct it proscribes is not
‘necessarily associated with speech.’” (quoting Hicks, 539 U.S.
at 124)). Second, the statute required the defendant to act
with the proscribed malicious intent. See Sayer, 748 F.3d at
435 (in prohibiting “a course of conduct done with” the
requisite intent, the statute “clearly targets conduct performed
with serious criminal intent, not just speech that happens to
cause annoyance or insult.”); Petrovic, 701 F.3d at 856 (“the
statute requires both malicious intent on the part of the
defendant and substantial harm to the victim”); Osinger, 753
F.3d at 944 (concurring with Petrovic). Finally, the statute
required the government to prove that the defendant’s conduct
7 Invoking Sayer, the Northern District of Oklahoma recently upheld the current version of the statute against a facial overbreadth challenge similar to Ackell’s. United States v. Moreland, No. 16-CR-69, 2016 WL 4919956, at *2-4 (N.D. Okla., Sept. 14, 2016) (Dowdell, J.).
14 caused harm to the victim. See Petrovic, 701 F.3d at 856;
Osinger, 753 F.3d at 944.
The first two facets of the statute remain in place after
the 2013 amendment -- that is, the statute continues to prohibit
a defined “course of conduct” enacted with the requisite
malicious intent. Ackell targets the third facet.8 After the
2013 amendment, a person may violate the statute by causing
substantial emotional distress to his or her intended victim, or
by engaging in conduct that “attempts to cause, or would be
reasonably expected to cause substantial emotional distress,” 18
U.S.C. § 2261A(2)(B), even if that conduct does not actually
cause such harm. Decoupling conduct from the harm it causes,
Ackell argues, sweeps obviously constitutional speech into the
statute’s orbit.9
The court is not convinced that the 2013 amendment expanded
the scope of § 2261A(2) to an extent that renders the statute
unconstitutionally overbroad. It continues to target a “course
of conduct” and the element that our Court of Appeals seized on
-- the underlying intent “to kill, injure, harass, intimidate,
8 Though the current version of the statute includes the intent to “intimidate” among those intentions, Ackell does not develop an argument that this change, alone, would render the statute constitutionally overbroad. 9 See Mot. to Dismiss (doc. no. 23-1) at 16-17.
15 or place under surveillance with intent to kill, injure, harass,
or intimidate another person.” 18 U.S.C. § 2261A(2)(B). By
requiring proof of that intent, the statute “clearly targets
conduct performed with serious criminal intent, not just speech
that happens to cause annoyance or insult.” Sayer, 748 F.3d at
435. Nor does the harm element necessarily expand the range of
culpable speech as broadly as Ackell suggests. The statute
still requires that the conduct have harmed the victim or his or
her loved ones, or must be “reasonably be expected to” do the
same.10 This objective standard, coupled with the intent
requirement, renders the statute unlikely to encompass
significantly more constitutionally protected speech than its
2006 counterpart.
Ackell raises several examples of the statute’s potential
for overbreadth. Only one of these -- that described in United
States v. Cassidy, 814 F. Supp. 2d 574 (D. Md. 2011) -- is
grounded in fact. There, a defendant engaged in online activity
critical of -- and at times threatening to -- the public leader
of a religious sect. Id. at 578-80. The court found § 2261A
unconstitutional as applied to Cassidy, whose indicted speech,
“although in bad taste,” amounted to “anonymous, uncomfortable
10As discussed supra Part III.B.1, the court remains skeptical as to whether a course of conduct can “attempt to” cause emotional distress.
16 Internet speech addressing religious matters” in that it
challenged the “character and qualifications” of a “well-known
religious figure” as a “religious leader.” Id. at 583. Where
the indictment was not “limited to categories of speech that
fall outside of First Amendment protection,” the court
concluded, application of the statute amounted to a content-
based restriction on protected speech. Id. at 583. It then
failed to survive strict scrutiny “[b]ecause the Government’s
interest in criminalizing speech that inflicts emotional
distress is not a compelling one.” Id. at 585. The court
declined, however, to address Cassidy’s facial overbreadth
challenge, in light of finding § 2261A unconstitutional as
applied to him. Id. at 587. Ackell, as noted supra, has not
raised an as-applied challenge here, and invocation of a single
unconstitutional application does not suffice to facially
invalidate the statute.
Ackell then invoked a series of examples of hypothetically
unconstitutional applications of § 2261A(2). These examples,
drawn from a variety of commentaries on the statute,11 focus in
11Many of these critiques of the current version of the statute begin with the proposition that the 2006 version was unconstitutionally overbroad because it criminalized speech made with the intent to harass or cause emotional distress to another. See, e.g., Hanni Fakhoury, With VAWA, A Major Step Froward in Combating Violence, But Constitutional Concerns Remain, Electronic Frontier Foundation (Mar. 14, 2013), https://www.eff.org/deeplinks/2013/03/vawa-well-intentioned-
17 on the potential for abuse in the particular situation wherein a
person speaks with the intent to harass or intimidate another,
and whose speech would be reasonably expected to cause
substantial emotional distress, but which -- because the victim
did not see it -- does not actually cause such harm. These
commentators suggest that such speech include communications in
an online platform designed to reach a large audience, such as
“online criticism of politicians and other high profile people,”
“Tweets critical of a large corporation accused of wrongdoing,”
or “Facebook messages and posts or blog posts recounting in
graphic detail the infidelity, physical, and verbal abuse of an
ex-lover who the speaker actively wants to harass, upset, and
cause substantial emotional distress for the way he or she had
treated the speaker.”12 Alternatively, Ackell suggests, the
statute could criminalize speech in circumstances in which one
speaker aims to intimidate another into a course of action, such
still-unconstitutional; Gabe Rottman, New Expansion of Stalking Law Poses First Amendment Concerns, American Civil Liberties Union (Mar. 12, 2013), https://www.aclu.org/blog/new-expansion- stalking-law-poses-first-amendment-concerns. Binding First Circuit authority rejected that proposition. Sayer, 748 F.3d at 434-36. 12Mot. to Dismiss (doc. no. 23-1) at 19-21 (internal quotations omitted).
18 as “vigorous business negotiations” or “emails between and among
politicians vigorously debating controversial policies.”13
The court is skeptical that the statements these
commentators fear most -- those that remain entirely outside of
the victim’s consciousness -- would fall even under the broader
umbrella of statements that would “reasonably be expected” to
cause emotional distress to the requisite parties. Even if they
did, however, Ackell’s smattering of hypotheticals does not
satisfy the standard for invalidating a statute as facially
overbroad. “The ‘mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to
render it susceptible to an overbreadth challenge.’” Williams,
553 U.S. at 303 (quoting Members of City Council of L.A. v.
Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). As a result,
“hypotheticals that purport to exemplify the statute’s
overbreadth,” such as these, are insufficient to demonstrate
that § 2261A(2) “is substantially overbroad, either in an
absolute sense or relative to its legitimate applications, so as
to warrant the ‘strong medicine’ of invalidating the entire
provision.” Sayer, 748 F.3d at 435-46.
13 Id. at 19-20 (internal quotations omitted).
19 C. Vagueness challenge
Having disposed of Ackell’s overbreadth challenge, the
court turns to his contention that the statute is
unconstitutionally vague. See Vill. of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982) (a
court should examine facial overbreadth challenge before
vagueness challenge). As noted supra Part III.B, Ackell’s
facial overbreadth challenge can proceed despite the absence of
an as-applied challenge because of its relation to the First
Amendment. The law recognizes no such exception for a vagueness
challenge. Holder v. Humanitarian Law Project, 561 U.S. 1, 19
(2010) (“[T]he rule that ‘a plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the
vagueness of the law as applied to the conduct of others’ . . .
makes no exception for conduct in the form of speech.”). A
defendant “lacks standing to assert that [the statute] is
impermissibly vague as applied to hypothetical facts not before”
the court. Sayer, 748 F.3d at 436 n.10. Ackell does not
challenge the statute as unconstitutionally vague as applied to
him14 -- to the contrary, at oral argument, he conceded that he
14As with his overbreadth challenge, Ackell argues that the indictment’s lack of specificity prevents him from challenging the statute as applied to him. See Reply (doc. no. 37) at 14- 15. While the court is sympathetic to the difficulty Ackell faces in challenging the statute’s application in light of the relatively general indictment, and has ordered a bill of
20 has not raised an as-applied challenge -- and, accordingly,
lacks standing to assert that the statute is vague as applied to
the hypothetical situations he raises.
Conclusion
For the reasons discussed above, the court DENIES the
defendant’s motion to dismiss the indictment.15
SO ORDERED.
Joseph N. Laplante United States District Judge
Dated: October 28, 2016
cc: Helen W. Fitzgibbon, AUSDA William E. Christie, Esq.
particulars as discussed supra Part III.A, Sayer obligates the court not to address a vagueness argument based on hypothetical facts alone. 15 Document no. 23.