United States v. Ackell
907 F.3d 67
1st Cir.2018Background
- Victim R.R., met Ackell online as a minor; Ackell misrepresented his age and pressured her to send sexually explicit images and enter a dominant/submissive relationship.
- R.R. twice tried to end the relationship; Ackell threatened to disseminate her images and to "trade" her to others if she stopped cooperating.
- After R.R.'s father instructed her to screenshot conversations and contact police, federal prosecutors indicted Ackell under 18 U.S.C. § 2261A(2)(B) (cyberstalking causing or reasonably expected to cause substantial emotional distress).
- Ackell moved to dismiss on First Amendment grounds and later challenged jury instructions and sufficiency of the evidence after conviction; district court denied relief and sentenced him to 33 months.
- On appeal Ackell raised (1) facial overbreadth and content-based First Amendment challenges to § 2261A(2)(B), (2) errors in jury instructions (unanimity and language "attempt to cause"), and (3) insufficiency of evidence as to intent and emotional distress.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial overbreadth under the First Amendment | § 2261A(2)(B) criminalizes a substantial amount of protected speech (e.g., vituperative public speech) and chills speech because it applies to communications via mail/internet | Statute targets conduct (a "course of conduct" with criminal intent) not pure speech; hypotheticals do not show substantial unconstitutional applications | Statute is not facially overbroad; targets conduct and plaintiff failed to show substantial number of protected applications |
| Content-based restriction | Language and listed communication methods make the law content- or viewpoint-based and thus subject to strict scrutiny | The statute does not target speech or regulate on the basis of communicative content; it regulates conduct with criminal intent | Not a content-based regulation of speech because it targets conduct rather than pure expressive activity |
| Jury unanimity as to which acts formed the "course of conduct" | Jurors must unanimously agree on the specific two or more acts that constitute the course of conduct | The element is existence of a course of conduct, not the identity of each specific act; specific acts are "brute facts" not elements requiring unanimity | No unanimity error; jury need not unanimously identify the exact acts forming the course of conduct |
| Instruction phrasing: allowing conviction if conduct "attempts to cause" substantial emotional distress | The phrase is linguistically odd and could mislead jury; proposed instruction would omit "attempt to cause" | Court should track statutory text; instruction reflected the statute | No reversible error; trial court did not abuse discretion in following statutory language |
| Sufficiency of the evidence (intent and distress) | Argues he reasonably believed relationship was consensual until Jan 27–28 and government lacked proof of intent and of substantial emotional distress | Government introduced screenshots and testimony showing post-January coercion, threats to disseminate images, explicit sexual orders, threats involving minors, and victim's suicidal ideation | Evidence sufficient on intent and that conduct caused or would be reasonably expected to cause substantial emotional distress; Rule 29 denial affirmed |
Key Cases Cited
- United States v. Sayer, 748 F.3d 425 (1st Cir. 2014) (reading prior § 2261A as targeting conduct and rejecting overbreadth challenge)
- Virginia v. Hicks, 539 U.S. 113 (2003) (overbreadth doctrine narrow where law targets conduct)
- Williams v. United States, 553 U.S. 285 (2008) (first step in overbreadth analysis is statutory construction)
- Texas v. Johnson, 491 U.S. 397 (1989) (conduct may be protected if imbued with communicative elements)
- March v. Mills, 867 F.3d 46 (1st Cir. 2017) (statute restricting noise in public fora implicated First Amendment differently)
- McCullen v. Coakley, 134 S. Ct. 2518 (2014) (access restrictions to traditional public fora trigger First Amendment scrutiny)
- Snyder v. Phelps, 562 U.S. 443 (2011) (speech on matters of public concern entitled to special protection)
- Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) (intent to inflict emotional distress in public-figure debate may be protected)
- Richardson v. United States, 526 U.S. 813 (1999) (unanimity and whether constituent acts are elements of offense)
- Elonis v. United States, 135 S. Ct. 2001 (2015) (subjective intent standard for threatening speech is unsettled)