US v David Ackell

2017 DNH 133P

• Court: District Court, D. New Hampshire
• Decided: July 7, 2017
• Docket: 15-cr-123-01-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

United States of America

v. Civil No. 15-cr-123-01-JL Opinion No. 2017 DNH 133P David Ackell

MEMORANDUM ORDER

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.

Background1

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

1 The court “recite[s] the facts as the jury could have found them, viewing the evidence in the light most favorable to the jury verdict.” United States v. Rodríguez-Martinez, 778 F.3d 367, 369 (1st Cir. 2015). 2 Ackell and R.R. never met in person. They communicated through text messages and messaging applications such as Kik and Snapchat. R.R. testified that she sent photographs to Ackell through Snapchat because she believed that pictures sent through that application are not saved and disappear after a short period of time. The court uses the terms “spoke” and “conversation” to refer to these text-based communications, except where noted otherwise.

2 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.

3 Tr. Trans. Dec. 14 (doc. no. 84) at 16. 4 Id. at 17-18. 5 R.R. testified that some of these photographs depicted her without any clothing. E.g., id. at 29-30, 100, 190-91. Though she told the FBI that she had not sent Ackell any nude photographs, see Tr. Trans. Dec. 15 (doc. no. 83) at 144-45, a jury could conclude that she did in light of her testimony to that effect, her testimony that Ackell later sent some of those photographs to her then-boyfriend, Danny, id. at 37-38, 188, and Ackell’s own text messages to her, Tr. Ex. 2 at 149 (“your nude pics were well after your noted birthday . . . .”).

3 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

6 Tr. Trans. Dec. 14 (doc. no. 84) at 29-30, 188. 7 Id. at 24. 8 Id. at 25-26. See also Tr. Ex. 2 at 164. 9 Id. at 24-25. Instagram is a social media platform that allows users to post and share pictures and videos with anyone who

4 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

subscribes to that user’s Instagram “feed” -- i.e., their “followers.” 10R.R. testified that Trial Exhibit 2 portrays a series of screenshots that she took of this text-message conversation. Unless otherwise indicated, Ackell’s and R.R.’s textual communications are transcribed here as they appear in Exhibits 1 and 2.

5 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

11 Tr. Trans. Dec. 14 (doc. no. 84) at 124. 12 Tr. Ex. 2 at 190. 13 Id. 14As discussed infra Part II.A.1, Ackell argues that the prosecution failed to prove that the text messages in Exhibit 2 preceded the Kik conversation in Exhibit 1.

6 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

15 Tr. Ex. 1 at 92-97. 16 Id. at 93. 17 Tr. Trans. Dec. 14 (doc. no. 84) at 46-47. 18 Tr. Ex. 1 at 98.

7 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 caged19 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

19R.R. testified that she understood, when he said she was “caged,” that she was “stuck” in the relationship and could not escape. See Tr. Trans. Dec. 14 (doc. no. 84) at 23-25, 45. 20 Tr. Ex. 1 at 100, 102-104.

8 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

21 Id. at 108. 22 Id. at 110, 117. 23 Id. at 116.

9 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.

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:

10 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.

24Jury Instructions (doc. no. 72) at 22. The defendant objected to instructions generally because, although believing them to be “in conformance with the statute as enacted,” he contends that the “statute itself is constitutional under the First Amendment both facially and as applied to” the defendant. He did not, however, propose any alternative instruction to cure this alleged defect. He also levelled no specific objection to this instruction. 25 See id. at 23.

11 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)).

12 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

26Jury Instructions (doc. no. 72) at 25. The defendant offered no specific objection to this instruction. 27Defendant’s Consolidated Mem. (doc. no. 79-1) at 8. Ackell filed an identical, consolidated memorandum in support of both motions. See document nos. 79-1 and 80-1. For sake of convenience, the court cites to only one of them.

13 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:

28The court notes here, as a preliminary matter, that it is accepting the defendant’s argument on its own terms, that of a dominant/submissive fantasy relationship, and accepts, for purposes of this analysis, that a jury may conclude that Ackell and R.R. engaged in such a relationship for some period of time. But the jury need not have done so and rather could have accepted the text communications here at face value -- coercive, manipulative communications between a mature adult airline pilot and a teenage girl. 29 Tr. Trans. Dec. 14 (doc. no. 84) at 18-19. 30 Defendant’s Consolidated Mem. (doc. no. 79-1) at 8-9. 31E.g., Tr. Trans. Dec. 14 (doc. no. 84) at 94-96; see also Tr. Ex. 2 at 141-44.

14 “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

32 Tr. Ex. 2 at 119. 33 Id. 34 Id. at 120. 35 Id. at 121. 36 Id. at 122. 37 Id. at 124. 38 Id. at 132. 39 Id. at 139.

15 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.

40 Id. at 129. 41 Id. at 141. 42 Id. at 167. 43Id. See also Tr. Trans. Dec. 15 (doc. no. 83) at 92-93 (testifying that, through this text, R.R. told Ackell for the first time, that she “only liked being submissive about 25 percent of the time.”).

16 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

44 E.g., Tr. Ex. 2 at 130-132, 161, 171-173. 45Id. at 133; see also id. at 137 (Ackell: “If I initiate charges to [Danny], would that clear your mind for the month of feb?” R.R.: “See that is . . . black mail.. And no it wouldn’t clear my mind at all. It would make me . . . depressed again. So just stop... please. Why are you so insistent on keeping me around?”) 46 Id. at 189-90.

17 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

47 Tr. Trans. Dec. 15 (doc. no. 83) at 100-01. 48 Id. at 190. 49Tr. Trans. Dec. 14 (doc. no. 84) at 129-30; Tr. Trans. Dec. 15 (doc. no. 83) at 111-12.

18 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

50 Tr. Trans. Dec. 15 (doc. no. 83) at 139-40. 51 Tr. Ex. 1 at 93 (emphasis added). 52 Tr. Trans. Dec. 14 (doc. no. 84) at 46.

19 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

53 Tr. Ex. 1 at 111. 54 Id. at 100, 103.

20 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 screenshots57 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

55 Tr. Trans. Dec. 14 (doc. no. 84) at 43, 70-71, 130-131. 56 Tr. Ex. 1 at 99. 57 Id. at 92-94, 99-100. 58 Id. at 118.

21 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

jury’s verdict, see Santos-Soto, 799 F.3d at 56–57, a reasonable

factfinder could conclude that the prosecution has met this

burden.

As discussed supra, Part II.A.1, R.R. informed Ackell that

she wanted to end their relationship and for him to delete her

22 photographs at least as of January 27, 2014. After he declined,

R.R. testified, she “felt [her] only way out of this

relationship was to just kill [herself].”59 Her Kik messages to

Ackell corroborate this testimony. For example, she told

Ackell: “I’m not mad, I’m more just suicidal, and im mad at

myself. . . . Because even tho im not caged I still feel trapped

and most of all really scared, beyond scared im terrified.”60

Similarly, Ackell informed R.R. that she was “slowly being caged

again,” which prompted R.R. to respond that, if Ackell “caged”

her again, she would “be on suicide watch again.”61

R.R. further testified that, because she “thought [her]

only option” to escape the relationship “was suicide, [she] took

[the] opportunity to maybe try to save [herself]” by finding

Ackell “a new girl.”62 When Ackell proposed “caging” a young

girl, in a manner than “will destroy her,” R.R. responded, “I

don’t want to have to kill myself over this. And I want

everything deleted after[.] I cant deal with the stress and

59 Tr. Trans. Dec. 14 (doc. no. 84) at 51-52. 60 Tr. Ex. 1 at 102. 61 Id. at 103-04. 62 Tr. Trans. Dec. 14 (doc. no. 84) at 55.

23 anxiety from this and depression I want to find you a new

girl[.]”63

Ackell does not dispute R.R.’s characterization of her

emotional state in response to his threats. He argues, instead,

that other evidence undermines the conclusion that she actually

suffered as drastically as she testified that she did.64

Specifically, Ackell points out that: (1) R.R. never sought

counseling or medical help for her distress; (2) the prosecution

offered no forensic or expert evidence of her distress; (3) the

prosecution did not present corroborating evidence from two

people that R.R. testified she told about her relationship with

Ackell; (4) R.R.’s father noticed no differences in R.R.’s

personality during the relevant period; (5) R.R. told the

Hancock police that she never “felt in danger of being

physically harmed by Ackell,”65 whom she never did meet in person

and who never appeared at her home or anywhere in her vicinity;

and (6) R.R. never sought a restraining order against Ackell.66

63 Tr. Ex. 1 at 112. 64 Defendant’s Consolidated Mem. (doc. no. 79-1) at 10-11. 65 Tr. Trans. Dec. 15 (doc. no. 83) at 83. 66 Defendant’s Consolidated Mem. (doc. no. 79-1) at 10-11.

24 Ackell presented these omissions to the jury,67 which rejected

them.

Ackell offers no authority suggesting that a finding of

substantial emotional distress requires any of this absent

evidence. While the prosecution may have bolstered its case had

it introduced evidence as Ackell suggests, a reasonable jury may

have found, on the evidence presented, that Ackell’s course of

conduct caused substantial emotional distress to R.R. As the

court instructed the jury:

“Substantial emotional distress” means mental distress, mental suffering or mental anguish, and includes depression, dejection, shame, humiliation, mortification, shock, indignity, embarrassment, grief, anxiety, worry, fright, disappointment, nausea, and nervousness, as well as physical pain.68

R.R. need not have felt in fear of her physical safety to feel

depression, shame, humiliation, indignity, embarrassment,

anxiety, worry, or fright. She testified that she felt trapped

and depressed such that suicide was her only potential route of

escape from her relationship with Ackell after he continually

refused to delete her photographs and threatened to trade those

photographs to another person or disseminate them to her family

and friends. Her father testified that, when finally she spoke

67See Tr. Trans. Dec. 14 (doc. no. 84) at 199-200; Dec. 15 (doc. no. 83) at 82-84, 175-77. 68Jury Instructions (doc. no. 72) at 26. The defendant offered no specific objection to this instruction.

25 to him about Ackell, he perceived that she was “extremely upset”

and “really afraid.”69 A reasonable factfinder could conclude,

from the consistent nature of this testimony and R.R.’s

contemporaneous Kik and text messages to that effect that

Ackell’s course of conduct toward her caused her substantial

emotional distress.

In addition to arguing that his actions did not cause

substantial emotional distress to R.R., he also argues that they

could not reasonably be expected to cause substantial emotional

distress to R.R. because, during the same time period, R.R. also

sent photographs of herself in various stages of dress to a

variety of other men.70 She also posted provocative photographs

to her various social media sites during this time period.71

Ackell argues that someone who voluntarily conveyed such

photographs to others, including those with which she had a

limited acquaintance, could not reasonably be expected to suffer

substantial emotional distress from threats of having her

photographs distributed by Ackell to her family, friends, and

social media networks.

69 See Tr. Trans. Dec. 15 (doc. no. 83) at 165. 70 See Tr. Exs. A, E, G, J, M, N, O, S, CC, FFF, GGG. 71 See Tr. Exs. FFF, GGG, OOO, PPP.

26 In determining whether Ackell’s course of conduct “would be

reasonably expected to cause substantial emotional distress” to

R.R., the jury was charged to “consider whether . . . a

reasonable person in the same or similar circumstances as R.R.

would suffer substantial emotional distress as a result” of

Ackell’s course of conduct.72 As discussed supra, the

prosecution presented evidence that R.R. was a teenage girl in

an online relationship with a man significantly older, to whom

she had sent photographs of herself in varying states of dress,

including nude photographs. The prosecution presented evidence

that Ackell threatened, among other things, to: (1) disseminate

those photographs to R.R.’s family and friends; (2) “trade”

them, and thus “trade” control over R.R., to another individual;

(3) delete the photographs only if R.R. would have sex with him

or, in the alternative, procure another girl who would do so;

and (4) pursue felony charges against R.R.’s then-boyfriend,

Hendrick. R.R. testified that Ackell followed through with at

least one of these threats, sending nude images of R.R. to

Hendrick.73 A jury may reasonably conclude that such threats

would cause a young woman in R.R.’s position to experience

72Jury Instructions (doc. no. 72) at 27. The defendant offered no specific objection to this instruction. 73 Tr. Trans. Dec. 14 (doc. no. 84) at 36-38.

27 “depression, dejection, shame, humiliation, mortification,

shock, indignity, embarrassment, grief, anxiety, worry, fright,

disappointment, nausea, [or] nervousness,”74 while at the same

time crediting R.R.’s testimony that she did not feel distressed

after sending photographs of herself to other men, who made no

such threats.

A reasonable jury could thus find that the prosecution met

its burden of demonstrating the intent and harm elements of the

crime by a preponderance of the evidence. The court therefore

denies Ackell’s motion for judgment of acquittal on these

grounds.

B. Constitutionality of the statute

Ackell also moves for judgment of acquittal on the grounds

that § 2261A(2)(B) is unconstitutional as applied to him and as

facially overbroad and unconstitutionally vague. The court

previously addressed -- and dismissed -- Ackell’s overbreadth

and vagueness challenges. See United States v. Ackell, 2016 DNH

185. Ackell’s as-applied challenge fails because his course of

conduct did not, as he argues, comprise pure speech integral to

a dominant/submissive relationship. His facial overbreadth

challenge likewise fails because he has not shown that the

statute, which criminalizes courses of conduct undertaken with

74 Jury Instructions (doc. no. 72) at 26.

28 specific intent, criminalizes a substantial amount of protected

expressive activity. Finally, Ackell has waived his undeveloped

vagueness challenge.

1. As-applied challenge under the First Amendment

The First Amendment provides that “Congress shall make no

law . . . abridging the freedom of speech.” U.S. Const., amend.

I. Though, “as 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)), the First Amendment “has permitted restrictions upon

the content of speech in a few limited areas . . . including

obscenity, defamation, fraud, incitement, and speech integral to

criminal conduct . . . .” United States v. Stevens, 559 U.S.

460, 468-69 (2010) (internal quotations and citations omitted).

As to the last of these, implicated here, “it has never been

deemed an abridgement of freedom of speech or press to make a

course of conduct illegal merely because the conduct was in part

initiated, evidenced, or carried out by means of language,

either spoken, written, or printed.” United States v. Sayer,

748 F.3d 425, 433 (1st Cir. 2014) (quoting Giboney v. Empire

Storage & Ice Co., 336 U.S. 490, 502 (1949)).

29 Ackell argues that § 2261A(2)(B) is unconstitutional as

applied to him. In his case, he contends, the statute

impermissibly criminalized a “course of conduct” composed purely

of protected speech -- specifically, speech integral to a

“consensual fantasy dominant/submissive relationship” in which

he and R.R. engaged “until she told him in her own voice that

she no longer wanted to communicate with him, around which time

the communications ended.”75 Ackell’s as-applied challenge fails

because his “course of conduct” was not comprised purely of

protected speech. Rather, his communications with R.R. were

“integral to criminal conduct,” which is “recognized as a ‘long-

established category of unprotected speech.’” Sayer, 748 F.3d

at 433-34 (quoting Stevens, 559 U.S. at 471).

The First Circuit Court of Appeals recognized that online

communications targeting a specific individual may amount to

“conduct” under the 2006 version of the statute. See Sayer, 748

F.3d at 433-34. In upholding the constitutionality of that

version of the statute, several other appellate courts further

observed that it “proscribe[d] harassing and intimidating

conduct” such that “the proscribed acts are tethered to the

underlying criminal conduct and not to speech.” United States

v. Osinger, 753 F.3d 939, 944 (9th Cir. 2014); see also United

75 Defendant’s Consolidated Mem. (doc. no. 79-1) at 12.

30 States v. Petrovic, 701 F.3d 849, 856 (8th Cir. 2012) (“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 Virginia v. Hicks, 539 U.S.

113, 124 (2003))).

Ackell maintains that his “course of conduct” was, by

comparison, a course comprised wholly of speech, without

reference to any attendant actions. On this basis, he

distinguishes several cases in which the 2006 version of the

statute was found constitutional as applied to defendants who

engaged in action in addition to speech.76 For example, in

Sayer, the defendant physically stalked the alleged victim,

induced third parties to call her and visit her home, and posted

explicit videos of her online without her permission. Sayer,

748 F.3d at 428-29. Similarly, in Petrovic, the defendant

accumulated embarrassing information about and photographs of

the alleged victim, sent those images to her family, friends,

and employer, posted them on a publicly accessible website, and

sent packages to her home. Petrovic, 701 F.3d at 852-53. In

Osinger, the defendant visited the alleged victim’s home and

place of employment and posted nude pictures of her online as

76Defendant’s Consolidated Mem. (doc. no. 79-1) at 12-13; Rule 29 Mot. (doc. no. 68) at 4-5.

31 well as emailing them to her co-workers. Osinger, 753 F.3d at

941-42. Finally, in Matusiewicz, the defendant posted

accusations about the alleged victim online, recruited friends

to physically monitor her home, and eventually travelled to her

home state and killed her. United States v. Matusiewicz, 84 F.

Supp. 3d 363, 365-66 (D. Del. 2015). Ackell contends that,

unlike these defendants, he did nothing more than speak to R.R.

While true that Ackell did not visit R.R.’s house, induce

others to do so, or post her photographs to a website, his

course of conduct is not, as he portrays it, “pure speech.”

Here, a reasonable factfinder could conclude from the evidence

presented that Ackell acted by storing R.R.’s compromising

photographs while representing to her that they had been, or

would be, deleted. When R.R. asked Ackell to delete those

photographs and cease communication with her, Ackell used the

threat of their continued existence -- including the explicit

threat that he would “trade” her to another man, who would hold

those photographs over her head, or that he would expose the

photographs to R.R.’s family and friends -- to induce R.R. to

send him more such photographs, despite her expressed discomfort

and disinclination to do so. R.R. testified that Ackell

actually acted on one of his threats when he sent nude

32 photographs to her boyfriend.77 As such, the court cannot

conclude, as Ackell would have it do, that Ackell “is being

prosecuted only because of his speech.”78 To the contrary, the

evidence demonstrates that Ackell engaged in a course of conduct

not solely limited to -- but rather effected through -- his

communications with R.R.

Even had Ackell’s conduct amounted to pure speech, that

speech was not protected. Ackell contends that all of his

communications with R.R. occurred in the context of a consensual

dominant/submissive relationship, and thus were protected.79 See

United States v. Baker, 890 F. Supp. 1375, 1385-88 & n.17 (E.D.

Mich. 1995) (sexually explicit communications between two

private individuals protected by the First Amendment). As

discussed supra Part II.A.1, however, a rational factfinder

could conclude that Ackell sent messages to R.R., with the

intent to harass or intimidate her into continuing to sending

him compromising photographs through the end of February, 2014,

after she clearly expressed her desire to exit any such

relationship at the end of January 2014. As such, “to the

extent that his course of conduct targeting [R.R.] involved

77 Tr. Trans. Dec. 14 (doc. no. 84) at 36-38. 78 Rule 29 Mot. (doc. no. 68) at 5. 79Defendant’s Consolidated Mem. (doc. no. 79-1) at 12-13; Rule 29 Mot. (doc. no. 68) at 6-7.

33 speech at all, his speech is not protected” insofar as “it

served only to implement [his] criminal purpose.” Sayer, 748

F.3d at 434.

Ackell’s continued reliance on United States v. Cassidy,

814 F. Supp. 2d 574 (D. Md. 2011), remains misplaced. The court

in Cassidy found the 2006 version of the statute

unconstitutional under the First Amendment as applied to a

defendant who posted threats and other potentially emotionally

distressing speech aimed at a public figure -- a religious

leader -- to Twitter and his blog. 814 F. Supp. 2d at 581-87.

This situation is far removed from that unconstitutional

application. R.R. is not a public figure, as the victim was in

Cassidy. Id. at 583. Nor could his communications with her be

characterized as speech that “touches on matters of political,

religious or public concern.” Id. at 582. Finally, Ackell’s

communications with R.R. were private, like a telephone

conversation, not public, like Twitter or blog postings, which

could more readily be avoided.80 Id. at 576-77.

80Private messages are less like the public sign to which the Cassidy court compared that defendant’s public communications, id. at 577-78, and more akin to communications over the telephone -- that is, communications directed at a single individual, from which one cannot so simply avert one’s eyes. Ackell’s suggestion that R.R. revise her privacy settings, block Ackell from her social media accounts, and ignore his text messages, see Rule 29 Mot. (doc. no. 68) at 8-9, is nearer to suggesting that a stalking victim could avoid her assailant by staying indoors, locking her front door, and only opening it to

34 Ackell’s communications with R.R. were integral to a course

of criminal conduct and, therefore, unprotected insofar as they

were part and parcel of his “extortionate threats to harass and

intimidate [R.R] if she terminated their . . . relationship.”

Sayer, 748 F.3d at 434. Because § 2261A(2)(B) has thus been

constitutionally applied to Ackell, the court need not -- and

therefore does not -- engage the analysis of whether the statute

amounts to a permissible restriction on protected speech.

2. Facial overbreadth challenge

In addition to arguing that § 2261A(2)(B) is

unconstitutional as applied to him, Ackell also challenges it as

overbroad on its face.81 “The first step in overbreadth analysis

is to construe the challenged statute,” and the second is to

determine “whether the statute, as [the court has] construed it,

criminalizes a substantial amount of protected expressive

activity.” United States v. Williams, 553 U.S. 285, 293, 297

(2008). Engaging this two-step analysis, the court rejected

people she knew, than to the court’s billboard analogy in Cassidy. 81Ackell may bring such a challenge to the facial validity of the statute despite its constitutional application to him because of its First Amendment implications. See Hicks, 539 U.S. at 118 (“The First Amendment doctrine of overbreadth is an exception to our normal rule regarding the standards for facial challenges.”).

35 Ackell’s prior facial challenge in its order denying his motion

to dismiss the indictment. See Ackell, 2016 DNH 185, 9-20.

As the court there observed, the First Circuit Court of

Appeals upheld the constitutionality of the 2006 version of the

statute against a similar facial challenge. Id. at 2-3 (citing

Sayer, 748 F.3d at 434-36). Congress amended the statute in

2013 in two ways material to Ackell’s arguments: it added the

intent to “intimidate” to the intent requirement and 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.

See id. The court concluded that these additions did not

unconstitutionally expand the scope of the statute because

Ackell had not demonstrated that “a substantial number” of the

applications of the statute, as amended, were “unconstitutional,

judged in relation to the statute’s plainly legitimate sweep.”82

82Citing McCullen v. Coakley, 134 S. Ct. 2518, 2537-40 (2014), Ackell now asserts that “the burden in justifying the law’s facial constitutionality under the First Amendment falls on the United States, not the Defendant.” Rule 29 Mem. (doc. no. 68) at 15. This is true in the context of challenges to content- neutral restrictions on speech in traditional public fora, such as those levelled in McCullen, 134 S. Ct. 2537-40 (2014) and Cutting v. City of Portland, 802 F.3d 79, 91 (1st Cir. 2015). In those cases, the government must “meet the requirement of narrow tailoring” by demonstrating “that alternative measures

36 Id. at 13 (quoting Stevens, 559 U.S. at 473). Specifically, as

the First Circuit Court of Appeals did in Sayer, this court

concluded that Ackell’s reliance on Cassidy and his “smattering

of hypotheticals” failed to “satisfy the standard for

invalidating a statute as facially overbroad.” Ackell, 2016 DNH

185, 19; see also Sayer, 748 F.3d at 435-36 (rejecting

defendant’s facial challenge that relied on Cassidy and

hypothetically overbroad applications).

Ackell takes no issue with the court’s construction of the

statute. Nor does he dispute the court’s approach to its

review. Instead, seeking only to remedy the deficiency noted

above, Ackell offers a new series of examples of protected

speech or activity that, he argues, the statute

unconstitutionally criminalizes. Very few of those examples,

however, fall into the intersection of constitutionally-

protected speech that also amounts to a course of conduct

criminalized by § 2261A(2)(B).

that burden substantially less speech would fail to achieve the government’s interests . . .” McCullen, 134 S. Ct. at 2540 (emphasis added).

But in this context, where a defendant challenges the facial overbreadth of a criminal statute, he “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 (quoting Hicks, 539 U.S. at 122). Here, Ackell challenges the statute as overbroad; he thus bears the burden of demonstrating it is so.

37 Some of the speech that Ackell invokes falls outside the

ambit of the First Amendment. For example, threats against

Ackell’s life and safety made by R.R.’s boyfriend, Hendrick, if

made with the requisite intent, may well amount to a course of

conduct prohibited by § 2261A(2)(B); but not even Ackell argues

that threats against his life are constitutionally protected.83

See United States v. Walker, 665 F.3d 212, 227 (1st Cir. 2011)

(“The law is crystal clear that threats are not constitutionally

protected speech.”). Death threats or threats of violence sent

to electors following the 2016 presidential election or against

a professor of atmospheric science fall into the same category.84

Other examples of speech invoked by Ackell, though

protected, do not likely amount to a course of conduct

prohibited by § 2261A(2)(B). The intent and “course of conduct”

requirements aim the statute toward “conduct performed with

serious criminal intent, not just speech that happens to cause

annoyance or insult.” Sayer, 748 F.3d at 435. Speech calling a

female bodybuilder “gross” or a “fat cow,” asking electors to

change their votes (albeit in some volume), and questioning

climate scientists85 may fall into the latter category, but is

83 Defendant’s Consolidated Mem. (doc. no. 79-1) at 14. 84 Defendant’s Consolidated Mem. (doc. no. 79-1) at 15-17. 85 Defendant’s Consolidated Mem. (doc. no. 79-1) at 15-17.

38 unlikely to fall into the former. Indeed, if any intent

criminalized by the statute attaches to such statements, it

would be the intent to harass; but the Court of Appeals upheld

the 2006 version of the statute, which included “the intent to .

. . harass,” Sayer, 748 F.3d at 435-36, against such a facial

challenge as this. This court, therefore, cannot conclude that

the statute’s potential to encompass speech made with intent to

harass renders the statute unconstitutional.

Finally, the defendant invokes the effect of statements

made via Twitter in December 2016 by the then-President-Elect

criticizing private individuals.86 These statements, which the

defendant suggests may have been made with the intent to harass

or intimidate, and may reasonably be expected to cause emotional

distress in the victim, amount to protected political speech

criminalized by the statute.87 The defendant does not suggest,

however, that the emotional distress stems from the President-

Elect’s statements; rather, he suggests that any emotional

distress was caused by harassing and threatening telephone

calls, emails, and other communications from other individuals

inspired by those Twitter statements.88 As such, the statements

86 Rule 29 Mot. (doc. no. 68) at 15-18. 87 Id. 88Id. at 16 (“Mr. Trump’s Tweets caused a number of his followers to threaten Mr. Jones and engage in harassing phone

39 themselves are unlikely to fall within the statute’s ambit.

Even if they did, two examples “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.’” Ackell, 2016 DNH 185, 19 (quoting Sayer, 748 F.3d

at 435-46).

3. Vagueness challenge

Finally, Ackell renews his challenge to the

constitutionality of § 2261A(2)(B) as unduly vague. The court

rejected his prior argument that § 2261A(2)(B) is

unconstitutionally vague on its face because he had not, at the

time, also contended that § 2261A(2)(B) was unconstitutionally

vague as applied to his conduct. Ackell, 2016 DNH 185, 20-21

(“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

calls to him at his home and to two secretaries answering phones at the local union headquarters. And while Mr. Jones appears to be uncowed by Mr. Trump’s Tweets, the article says nothing of the secretaries . . . .”); id. at 17 (“Mr. Trump fired off two Tweets targeting the young woman that caused his followers to begin contacting her by phone, Facebook, and email to leave threatening messages, often sexual in nature, which, in turn, caused the young woman to flee to her home and hide.”).

40 vagueness challenge.”) (citing Holder v. Humanitarian Law

Project, 561 U.S. 1, 19 (2010)).

Ackell’s renewed motion to dismiss the case on vagueness

grounds suffers from the same malady.89 Absent anything more

than a bald assertion that the statute is vague, with citation

to his recitation of the trial evidence and prior motions in

which he advanced no as-applied vagueness argument, the court

has no basis to evaluate the merits of his as-applied vagueness

challenge. Accordingly, “[t]his claim is waived” because Ackell

“merely repeats his overbreadth argument and does not develop a

separate and distinct argument under the vagueness doctrine.”

Sayer, 748 F.3d at 436 (citing United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990); Holder, 561 U.S. at 20).

Motion for new trial

“Upon the defendant’s motion, the court may vacate any

judgment and grant a new trial if the interest of justice so

requires.” Fed. R. Crim. P. 33(a). Ackell contends that the

interest of justice requires that he be afforded a new trial,

first, because he was denied the public trial to which the Sixth

Amendment entitles him and, second, because the weight of the

evidence preponderates heavily against the jury’s guilty

89 Defendant’s Consolidated Mem. (doc. no. 79-1) at 18-19.

41 verdict. Unpersuaded on either point, the court denies Ackell’s

motion for a new trial.

A. Public trial

“In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of the

State and district wherein the crime shall have been committed .

. . .”90 U.S. Const. amend. VI. The guarantee of a public trial

benefits the defendant; a trial is more likely to be fair when

the public may be present. See United States v. Candelario-

Santana, 834 F.3d 8, 22 (1st Cir. 2016) cert. denied, 137 S. Ct.

1112 (2017). Accordingly, trial closures are to be “rare and

only for cause shown that outweighs the value of openness,” and

must be justified by “an overriding interest based on findings

that closure is essential to preserve higher values and is

narrowly tailored to serve that interest.” Press-Enterprise Co.

v. Superior Court, 464 U.S. 501, 509-10 (1984) (internal

quotations omitted). Where, as here, the defendant objects to

the closure “at trial . . . the defendant generally is entitled

90Ackell invokes his right to a public trial under both the First and Sixth Amendments. See Defendant’s Mem. (doc. no. 79- 1) at 21. “The Sixth Amendment right . . . is the right of the accused,” whereas the First Amendment protects the right of the public to be present at criminal trials. Presley v. Georgia, 558 U.S. 209, 212 (2010). Because the accused asserts the public trial right in this case, the court performs its analysis under the Sixth Amendment.

42 to” a new trial “regardless of the error’s actual ‘effect on the

outcome’” of the trial. Weaver v. Massachusetts, No. 16-240,

2017 WL 2674153, at *10 (U.S. June 22, 2017) (internal

quotations omitted). Here, there has been no violation of

Ackell’s right to a public trial, and thus he is not entitled to

a new one, because he has not demonstrated that the court was,

in fact, closed.

The victim in this case, R.R., was slated to continue her

testimony on the morning of the third day of trial. Before

court convened that morning, a teacher from Concord High School

brought her class into the courtroom’s gallery. At the

prosecution’s request, the court held a chambers conference with

all counsel and the teacher present. During that conference,

the court explained the subject matter of the victim’s

anticipated testimony -- and, in particular, the graphic nature

thereof -- to the teacher, who responded that she and her

students would nevertheless attend the trial. The court

rejected the prosecution’s request that the United States

Attorney’s Victim Witness Advocate address the students on

proper courtroom behavior, and informed counsel that it would

address the students itself.

After the teacher left chambers, the court conducted a

conference on jury instructions with counsel. After that

conference, the teacher informed the court that, upon

43 reflection, her class would observe a suppression hearing taking

place in another courtroom instead of attending the trial. She

then removed her students from the courtroom.

Ackell contends that the teacher removed the students from

the courtroom because of inappropriate interference on the part

of the Victim Witness Advocate who, defense counsel represented

to the court, spoke with the teacher outside of the courtroom.91

The court then held a second conference with counsel and the

teacher present. At that second conference, the court informed

the teacher as follows:

What I wanted to make sure everyone understood . . . is that you and your class are welcome in this courtroom. You have every right to be here and the defendant has a right under the Sixth Amendment of the United States Constitution to a public trial, and that includes attendance by your class should you wish to be here and should you wish – that’s your decision, I think, ultimately. They’re here under your supervision. But the fact is, it’s very important to the Court that you understand that neither the Court nor any part of the government has any desire or wish that you or your students be excluded from the courtroom. They’re welcome here. You are welcome here. There are no barriers whatsoever to your attendance at this proceeding as far as the Court’s concerned. . . . .

[T]he bottom line is the courtroom doors are open. You don’t have to advise the Court of any decision you make. What you are free to do is enter and be seated and participate as spectators. What the Court had envisioned doing, by the way, when it addressed the students was to explain to them only that, I think it was at the suggestion of counsel, I think it’s a good

91 Defendant’s Mem. (doc. no. 79-1) at 23-24.

44 approach, that this is a federal criminal trial, it’s serious business, and they should conduct themselves with respect for the proceeding and any witnesses on the stand. The witness on the stand this morning was going to be the victim, the alleged victim in the case, but what the Court was going to address them about was the nature of the proceeding, the sensitivity of some of the subject matter and the way they should comport themselves while sitting in the gallery of the trial. That’s as far as the Court was going to go and I think that’s what we discussed.92

The court then confirmed that the teacher understood that she

and her class had a right to be present at the trial:

THE COURT: [W]hat the Court does want to make sure . . . is that you understand that not only from the Court’s perspective that the defense has a Sixth Amendment right to a public trial, but that you and your class have a right to be present at the trial. You understand?

[TEACHER]: Yes.

THE COURT: All right. And as far as -- so your understanding, are there any barriers to you and your [class] entering this courtroom today if you want to watch the trial?

[TEACHER]: None.93

Counsel then returned to the courtroom, the jury was assembled

in the courtroom, and court convened. The teacher and her class

did not return to the courtroom.

In determining whether a defendant has been denied a right

to a public trial, the court “must first determine whether . . .

92 Tr. Trans. Dec. 15 (doc. no. 83) at 5-6 (emphasis added). 93 Id. at 8.

45 there was, in fact, a courtroom closure.” United States v.

Negrón-Sostre, 790 F.3d 295, 301 (1st Cir. 2015). The essential

element of that inquiry is whether “the public was barred.” Id.

at 304.

An improper courtroom closure can be total or partial. A

“total closure” occurs “where all members of the public are

excluded during some portion of the trial.” United States v.

Laureano-Pérez, 797 F.3d 45, 77 (1st Cir. 2015), cert. denied

sub nom. Cummings-Ávila v. United States, 136 S. Ct. 915 (2016).

The defendant does not argue that a “total closure” occurred

here. Nor could such an argument prevail; the doors to the

courtroom remained open to members of the public throughout the

proceedings.

Ackell contends, instead, that the Victim Witness

Advocate’s communication with the teacher, and the teacher’s

subsequent removal of her class from the courtroom, amounts to

“at least a partial closure,”94 which occurs when “courtroom

access is restricted but some members of the public are

permitted to attend.” Laureano-Pérez, 797 F.3d at 77. A

partial closures occurs, for example, when the defendant’s

family are “removed from the courtroom and forbidden from

returning on that day” because “the courtroom was closed to them

94 Defendant’s Mem. (doc. no. 79-1) at 24.

46 . . . .” Id. at 77 n.28. A partial closure also occurs when

the court “screen[s] and record[s] the identification of all

would-be trial spectators,” because that procedure “(1) barred

only those would-be spectators who opted not to submit written

identification, and (2) presumably may have ‘chilled’ attendance

by some potential spectators who opted not to present themselves

at the courthouse.” United States v. DeLuca, 137 F.3d 24, 30,

33-34 (1st Cir. 1998).

No partial closure occurred here. Even assuming that the

Victim Witness Advocate asked the teacher to remove her students

from the courtroom, the court rectified any potential for

exclusion by confirming, on the record, the teacher’s

understanding that she and her students had “a right to be

present at the trial” and that there were not “any barriers” to

her and her students entering the courtroom if they wanted to

watch the trial.95 To the contrary, the court indicated -- and

the teacher understood -- that the class was not only permitted,

but welcome to return to the courtroom. The court confirmed

this understanding before any public court proceedings began on

that day of trial -- that is, court did not convene at any time

between the Victim Witness Advocate’s alleged contact with the

teacher and the court’s confirmation of the latter’s

95 Tr. Trans. Dec. 15 (doc no. 83) at 8.

47 understanding that the proceedings were open to her and her

students. Thus, even if the Victim Witness Advocate’s alleged

contact with the teacher acted to close the courtroom, the court

reopened it after the defendant objected and before any

proceedings occurred. See Weaver, 2017 WL 2674153, at *12

(“[W]hen a defendant objects to a courtroom closure, the trial

court can either order the courtroom opened or explain the

reasons for keeping it closed.”).

Accordingly, because no member of the public was excluded

from the proceedings, the court was not closed -- either

completely or partially -- at any time during Ackell’s trial,

and his right to a public trial was not violated. The court

therefore denies his motion for a new trial on this basis.

B. Weight of the evidence

In addition to invoking the Sixth Amendment, Ackell seeks a

new trial on the grounds that the weight of the evidence was

against the jury’s guilty verdict.96 Such motions are “directed

to the broad discretion of the trial judge, who may weigh the

evidence and evaluate the credibility of witnesses in

considering such a motion.” United States v. Wilkerson, 251

F.3d 273, 278 (1st Cir. 2001) (quoting United States v.

Indelicato, 611 F.2d 376, 387 (1st Cir. 1979)). This remedy is

96 Defendant’s Consolidated Mem. (doc. no. 79-1) at 19-20.

48 to be “sparingly used, and then only where there would be a

‘miscarriage of justice . . . and where the evidence

preponderates heavily against the verdict.’” Wilkerson, 251

F.3d at 278 (quoting United States v. Leach, 427 F.2d 1107, 1111

(1st Cir. 1970)). “Because the district court must generally

defer to a jury’s credibility assessments, ‘[i]t is only where

exceptional circumstances can be demonstrated that the trial

judge may intrude upon the jury function of credibility

assessment.’” United States v. Merlino, 592 F.3d 22, 32–33 (1st

Cir. 2010) (internal quotations and citations omitted).

This case does not present such exceptional circumstances.

As discussed supra Part II.A, the evidence supports the jury’s

verdict. That is, a reasonable factfinder could conclude from

the evidence that Ackell engaged in a course of conduct with the

intent to harass or intimidate R.R., and that R.R. suffered

substantial emotional distress, or would reasonably be expected

to suffer substantial emotional distress, as a result of

Ackell’s actions. Because the evidence does not preponderate

heavily against the jury’s verdict, the court denies Ackell’s

motion for a new trial on these grounds.

49 Conclusion

For the reasons discussed above, the court DENIES the

defendant’s motions for judgment of acquittal97 and a new trial.98

SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: July 7, 2017

cc: William E. Christie, Esq. Suzanne Amy Spencer, Esq. Helen W. Fitzgibbon, AUSA Robert M. Kinsella, AUSA Donald A. Feith, AUSA

97 Document nos. 68, 79. 98 Document no. 80.