Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 12 7 FDilaetde 1F0il/e2d5:/ 1180 / 2 P4/a2g0e1 81 o f 3E4ntry ID: 6208021 United States Court of Appeals For the First Circuit No. 17-1784 UNITED STATES OF AMERICA, Appellee, v. DAVID ACKELL, Defendant, Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph N. Laplante, U.S. District Judge] Before Torruella, Thompson, and Barron, Circuit Judges. William E. Christie, with whom Shaheen & Gordon, P.A was on brief, for appellant. Seth R. Aframe, Assistant United States Attorney, with whom Scott W. Murray, United States Attorney, was on brief, for appellee. Gilles R. Bissonnette, American Civil Liberties Union Foundation of New Hampshire, Matthew R. Segal, Ruth A. Bourquin, American Civil Liberties Union Foundation of Massachusetts, Inc., Jacob J. Hutt, Brian Hauss, Sandra S. Park, Ben Wizner, Lenora M. Lapidus, Cecillia D. Wang, American Civil Liberties Union Foundation, Carolyn A. Mannis and Law Office of Stephen J. Dennis, on brief as amici curiae in support of appellant. October 24, 2018 ____________________ Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 22 7 FDilaetde 1F0il/e2d5:/ 1180 / 2 P4/a2g0e1 82 o f 3E4ntry ID: 6208021 TORRUELLA, Circuit Judge. A jury convicted David Ackell of one count of stalking in violation of 18 U.S.C. § 2261A. He now brings a First Amendment challenge to that statute, in addition to challenging the district court's jury instructions and arguing that insufficient evidence supported his conviction. Ackell's constitutional challenge does not succeed. We discern no error in the district court's jury instructions. And lastly, we hold that sufficient evidence supported Ackell's conviction. We therefore affirm. I. A. We begin with an overview of the relevant facts. Because this appeal pertains in part to Ackell's motion for acquittal before the district court, "we recount the facts here 'in the light most favorable to the government.'" United States v. Fernández-Jorge, 894 F.3d 36, 41 (1st Cir. 2018) (quoting United States v. Acevedo, 882 F.3d 251, 257 (1st Cir. 2018)). Ackell and R.R. met online in 2012 during R.R.'s sophomore year of high school. To get around the requirements of the website on which they met -- the now-defunct MyYearbook.com - - R.R. held herself out as an eighteen-year-old, though she was actually only sixteen. Ackell's profile represented that he was twenty-one years old, but during his first conversation with R.R., -2- Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 32 7 FDilaetde 1F0il/e2d5:/ 1180 / 2 P4/a2g0e1 83 o f 3E4ntry ID: 6208021 he told her he was actually thirty-two. This was also false -- Ackell was actually over forty at the time. The two began to regularly converse online. Eventually, Ackell told R.R. that if she sent him photos of herself, he would send her money in return. R.R. sent Ackell photos of herself partially clothed. She testified, though, that despite providing Ackell with a P.O. Box address, he never sent her money. Around five months after R.R. and Ackell first began communicating online, Ackell proposed that they enter into a "dominant-submissive" relationship, in which R.R. would be "the submissive." R.R., who was now seventeen, did not know what this meant, so she did some research on the internet. R.R. testified that she came to understand that, under such an arrangement, Ackell would be "the boss," and that if he told her to "pose in a particular way . . . [she] would pose in that way." Ultimately, R.R. agreed to enter into a relationship of this sort with Ackell. R.R. testified that, though her research into dominant-submissive relationships indicated that "[t]ypically there's supposed to be a safe word," she and Ackell did not have a safe word. R.R. also testified that, after their dominant- submissive relationship commenced, Ackell began to treat her differently than before -- and in a way that departed from her expectations about what the relationship would entail. For -3- Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 42 7 FDilaetde 1F0il/e2d5:/ 1180 / 2 P4/a2g0e1 84 o f 3E4ntry ID: 6208021 example, Ackell would call her "slave," or "caged butterfly," and insist that she address him as "owner" and tell him that she loved him. He also frequently demanded that R.R. send him sexually explicit photos of herself. R.R. eventually told Ackell that she felt uncomfortable and wanted to end their dominant-submissive relationship. Ackell, however, informed R.R. that she could not opt out of the relationship because she was "caged." Ackell also warned R.R. that if she stopped sending him photos, he would disseminate photos of her that he had saved among her friends, classmates, and family. R.R. testified that twice, she called Ackell "begging and pleading with him to . . . delete all of [her] stuff and let [her] go." But, Ackell told her that he would not, because she was "trapped" and a "caged butterfly." In January of 2014, R.R. temporarily succeeded in terminating her relationship with Ackell after leading him to believe that her mother had discovered their relationship and was upset. Ackell resumed contacting her, though, and soon afterwards, R.R. told her father about her relationship with Ackell. R.R.'s father instructed her to take screenshots of her past conversations with Ackell and then delete those messages. Her father then contacted law enforcement. -4- Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 52 7 FDilaetde 1F0il/e2d5:/ 1180 / 2 P4/a2g0e1 85 o f 3E4ntry ID: 6208021 B. On July 29, 2015, a grand jury returned an indictment charging Ackell with one count of stalking. See 18 U.S.C. § 2261A(2)(B). Ackell moved to dismiss the indictment as insufficient, and on the grounds that § 2261A(2)(B) violates the First Amendment. On July 27, 2016, a grand jury returned a superseding indictment specifying that Ackell had committed the one count charged through "the sending of text messages, digital images and other electronic communications." Ackell renewed his original motion to dismiss as to the superseding indictment. The district court ordered the government to file a bill of particulars. See Fed. R. Crim. P. 7(f). But, it denied Ackell's motion to dismiss, finding the indictment "neither statutorily nor constitutionally deficient," and also rejecting his First Amendment challenge. Ackell proceeded to trial. The jury found him guilty, and he then moved for a judgment of acquittal. See Fed. R. Crim. P. 29. The district court denied his motion, finding that sufficient evidence supported his conviction. The district court then sentenced him to thirty-three months of imprisonment. Ackell now appeals: (1) the district court's denial of his First Amendment challenge to the anti-stalking statute; (2) the district court's -5- Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 62 7 FDilaetde 1F0il/e2d5:/ 1180 / 2 P4/a2g0e1 86 o f 3E4ntry ID: 6208021 jury instructions; and (3) the district court's denial of his motion for acquittal. II. A. As to Ackell's First Amendment challenge to the federal anti-stalking statute, he presses that § 2261A(2)(B) is both facially overbroad and a content-based restriction on speech that does not survive strict scrutiny. We consider these arguments sequentially, reviewing the district court's holding de novo because it involves only questions of law. See United States v. Floyd, 740 F.3d 22, 38 (1st Cir. 2014). 1. Ackell does not claim that the conduct underlying his conviction was protected by the First Amendment. Rather, Ackell asserts that § 2261A(2)(B) cannot be applied to anyone because it is overbroad under the First Amendment, even though it has been constitutionally applied to him. "The traditional rule is that a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." United States v. Sayer, 748 F.3d 425, 434-35 (1st Cir. 2014) (quoting New York v. Ferber, 458 U.S. 747, 767 (1982)). The Supreme Court, however, has "altered its traditional rules of -6- Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 72 7 FDilaetde 1F0il/e2d5:/ 1180 / 2 P4/a2g0e1 87 o f 3E4ntry ID: 6208021 standing" in a small number of contexts, "but only because of the most 'weighty countervailing policies.'" Broadrick v. Oklahoma, 413 U.S. 601, 611-12 (1973) (quoting United States v. Raines, 362 U.S. 17, 22-23 (1960)). This is the case with the First Amendment overbreadth doctrine. In this context, the Court has seen fit to slacken its standing requirements in response to the "concern that the threat of enforcement of an overbroad law may deter or 'chill' constitutionally protected speech -- especially when the overbroad statute imposes criminal sanctions." Virginia v. Hicks, 539 U.S. 113, 119 (2003). Thus, even when a law may be applied to a particular individual in a constitutionally unobjectionable way, if that individual can show that the law is facially overbroad -- that is, that it "punishes a 'substantial' amount of protected free speech, 'judged in relation to the statute's plainly legitimate sweep,'" -- the proper remedy is to "invalidate all enforcement of that law." Id. at 118-119 (quoting Broadrick, 413 U.S. at 615)). The Supreme Court has cautioned that "[r]arely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating)." Hicks, 539 U.S. at 124. Thus, we begin our analysis by ascertaining § 2261A(2)(B)'s aim, as well as its -7- Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 82 7 FDilaetde 1F0il/e2d5:/ 1180 / 2 P4/a2g0e1 88 o f 3E4ntry ID: 6208021 potential for punishing protected speech. See United States v. Williams, 553 U.S. 285, 293 (2008) ("The first step in overbreadth analysis is to construe the challenged statute; it is impossible to determine whether a statute reaches too far without first knowing what the statute covers."). As is relevant here, § 2261A(2)(B) penalizes whoever: with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that . . . causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to [that] person [or an immediate family member, spouse, or intimate partner of that person.]1 Hence, to properly secure a conviction under § 2261A(2)(B), the prosecution must prove that: (1) the defendant had the requisite intent; (2) the defendant "engage[d] in a course of conduct"; (3) the defendant used a facility of interstate 1 The concept of a "course of conduct . . . attempt[ing] to cause . . . substantial emotional distress" is, of course, somewhat peculiar. The district court observed this as well, remarking that "[i]t seems to the court that the 'attempt to cause' element merges to some degree with the intent requirement." But, because Ackell argued only "that the 'would reasonably be expected to cause' language is constitutionally problematic," the district court, in ruling on his First Amendment challenge, explained that it did not need to "resolve that linguistic inconsistency." Ackell does object to this language in the context of his challenge to the district court's jury instructions. See infra § II.B.2. -8- Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 92 7 FDilaetde 1F0il/e2d5:/ 1180 / 2 P4/a2g0e1 89 o f 3E4ntry ID: 6208021 commerce; and (4) the defendant's "course of conduct" "cause[d], attempt[ed] to cause, or would be reasonably expected to cause substantial emotional distress." A "course of conduct" is "a pattern of conduct composed of 2 or more acts, evidencing a continuity of purpose." 18 U.S.C. § 2266(2). Ackell's First Amendment challenge pertains to all but the "facility of interstate commerce" element. By its own terms, § 2261A(2)(B) regulates not speech, but conduct -- or, to be precise, "course[s] of conduct." "Conduct," of course, may also enjoy First Amendment protection if it is "sufficiently imbued with elements of communication." Texas v. Johnson, 491 U.S. 397, 404 (1989) (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)). Yet, "the overbreadth doctrine's concern with 'chilling' protected speech 'attenuates as the otherwise unprotected behavior that it forbids [legislatures] to sanction moves from "pure speech" toward conduct.'" Hicks, 539 U.S. at 124 (quoting Broadrick, 413 U.S. at 615). Before continuing, it is important to note that we rejected an overbreadth challenge to a since-amended version of § 2261A in United States v. Sayer, 748 F.3d 425, 436 (1st Cir. 2014). As part of the Violence Against Women Reauthorization Act of 2013,2 Congress amended § 2261A so that it now differs in two 2 To be clear, this legislation reauthorized the Violence Against -9- Case: 17-1784 C aDsoec u1m:1e5n-ct:r -00001112733-J5L6 5 2D1o c u mPaegnet :1 1207 F iDleadt e1 0F/i2le5d/1: 81 0 /P24a/g2e0 1180 o f 3E4ntry ID: 6208021 ways from the version we considered in Sayer. See Pub. L. No. 113-4, § 107(b) (2013) (codified at 18 U.S.C. § 2261A). First, the intent to "intimidate" is now listed among the offense's various possible mental states. Id. Second, the statute now proscribes engaging, with the requisite intent, in a course of conduct that "causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress." Id. (emphasis added). While Sayer did not expressly state that it was treating § 2261A(2)(B)'s precursor as a statute regulating conduct rather than speech, its analysis suggests that it did. See 748 F.3d at 434-36 (applying Hicks, placing the burden on Sayer rather than on the government to show substantial overbreadth, and referring to the statute as one that "clearly targets conduct..."). Hence, this court's reading of § 2261A(2)(B)'s predecessor in Sayer supports our conclusion here that § 2261A(2)(B) targets conduct rather than speech. At oral argument, Ackell insisted that § 2261A(2)(B) does target speech because it requires that a defendant have used "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 Women Act of 1994. -10-