US v David Ackell

                     UNITED STATES DISTRICT COURT
                      DISTRICT OF NEW HAMPSHIRE


United States

    v.                                Civil No. 15-cr-123-JL
                                      Opinion No 

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, 

 (1st Cir. 2014);

United States v. Osinger, 

 (9th Cir. 2014);

United States v. Petrovic, 

 (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, 

, 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.”    

 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, 

 (1st Cir. 2004) (quoting Hamling v.

United States, 

 (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, 

 (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.     

 (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, 

 (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.”     

.   In

Tomasetta, “the location, time, and object of the communication

[were] specified only in the most general terms or not at all.”

.

    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,

 (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.”     

.    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.”

   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.”       

.

      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, 

.     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, 

, 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, 

 (1st Cir. 1985) (citing Russell, 

).    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, 

(2002) (quoting Bolger v. Youngs Drug Prods. Corp., 

 (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,

 (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, 

 (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, 

 (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, 

.   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, 

 (2008).

In doing so, the court begins by examining the language of the

statute itself.    See United States v. Tobin, 

(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.”   

(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., 

 (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, 

 (6th Cir. 2004), cert. granted,

judgment vacated on other grounds, 

 (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, 

.

    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, 

.    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, 

.   Ackell “bears the burden of showing ‘from the text of [the

law] and from actual fact’ that substantial overbreadth exists.”

Sayer, 

 (alteration in original) (quoting Hicks,

).


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, 

; see also Petrovic, 

 (“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, 

)).   Second, the statute required the defendant to act

with the proscribed malicious intent.     See Sayer, 

 (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, 

 (“the

statute requires both malicious intent on the part of the

defendant and substantial harm to the victim”); Osinger, 

 (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, 

 (N.D. Okla.,
Sept. 14, 2016) (Dowdell, J.).



                                 14
caused harm to the victim.    See Petrovic, 

;

Osinger, 

.

       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, 

.    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, 

 (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.    

.   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-expansionstalking-law-poses-first-amendment-concerns. Binding First
Circuit authority rejected that proposition. Sayer, 

.
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,

 (quoting Members of City Council of L.A. v.

Taxpayers for Vincent, 

 (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, 

.




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., 

 (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, 

(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, 

 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.



                                    21