United States District Court, D. Massachusetts
MEMORANDUM & ORDER
Nathaniel M. Gorton United States District Judge
case arises from alleged cyber-attacks against Wayside Youth
and Family Support Network (“Wayside”) and Boston
Children's Hospital (“BCH”). The Grand Jury
returned a two count indictment of Martin Gottesfeld
(“defendant” or “Gottesfeld”) for his
alleged involvement in these attacks.
before the Court are (1) defendant's motion to suppress
and its supplements (Docket Nos. 78, 128 and 166) and (2) the
government's motion in limine to preclude
defendant's so-called “torture defense”
(Docket No. 116). For the following reasons, the motion to
suppress and their supplements will be denied and the motion
in limine will be allowed. By order of the Court
entered on June 14, 2018 (Docket No. 205), the
defendant's motions to dismiss (Docket No. 164) and for
release from custody (Docket Nos. 147 and 177) were denied,
with the notation that an explanatory memorandum would
follow. This memorandum includes that explanation.
indictment charges (1) conspiracy under 18 U.S.C. § 371
(Count I) and (2) intentionally causing damage to a protected
computer in violation of 18 U.S.C. § 1030(a)(5)(A)
(Count II). The indictment also includes forfeiture
allegations pursuant to (1) 18 U.S.C. § 981(a)(C)(1) and
18 U.S.C. § 2461 (conspiracy forfeiture allegation) and
(2) 18 U.S.C. § 982(a)(2)(B) and 18 U.S.C. §
1030(i) (intentional damage to a protected computer
government submits that beginning no later than 2013,
Gottesfeld became concerned with what he called “the
troubled teen industry” and used websites and social
media tools to bring attention to his cause. That year, he
advocated for the shutdown of an adolescent treatment center
in Utah (“the Utah Treatment Center”) through
various social media accounts. In November 2013, the Utah
Treatment Center was the target of intermittent distributed
denial of service (“DDOS”) attacks for several
attacks flood computer servers with traffic in an attempt to
overload the capacity of the server system. This generally
involves directing traffic from remotely hijacked,
web-enabled devices or access to high capacity internet
connections through which thousands of traffic sources are
simulated. The cyber attacks are difficult to defend against
because they come from so many sources. In addition to
exceeding the capacities of the servers, attacks often force
victims to shut down important parts of their websites or to
refuse otherwise legitimate and productive traffic.
March 2014, the company that managed patient records for the
Utah Treatment Center (“the Record Management
Company”) was also targeted with DDOS attacks.
Gottesfeld allegedly used his Twitter account while the
attacks were occurring to send a message to the Record
Management Company: “Website troubles? Drop [the Utah
Treatment Center] or we NEVER stop”. For more than one
month, the attacks disrupted the ability of the Records
Management Company to communicate with clients and cost the
company approximately $24, 000.
early 2014, the media began reporting on a teenager, Justina
Pelletier (“Ms. Pelletier”) who had been placed
in the custody of the Massachusetts Department of Children
and Families (“DCF”) because of concerns that her
parents were interfering with her treatment for a
psycho-somatic disorder by instead insisting on treatment for
mitochondrial disease. Ms. Pelletier was reportedly treated
at BCH before being transferred to Wayside.
March 23, 2014, Gottesfeld purportedly sent Twitter messages
to an unindicted co-conspirator suggesting targeting Wayside
with cyber-attacks. Two days later, Gottesfeld allegedly
issued a series of public Twitter messages calling for
attacks on the Wayside network. The attacks lasted more than
a week, crippled Wayside's website and caused Wayside to
spend in excess of $18, 000 on response and mitigation
March 23, 2014, Gottesfeld allegedly posted a YouTube video
in the name of the hacking organization Anonymous calling for
action against BCH. The video stated Anonymous' intent to
punish BCH until Ms. Pelletier was released and demanded the
termination of a physician involved in Ms. Pelletier's
case “or [BCH] too shall feel the full unbridled wrath
of Anonymous”. The video directed viewers to a website
that contained information necessary to initiate a DDOS
attack against BCH's computer server.
April 19, 2014, Gottesfeld and the alleged conspirators
purportedly initiated a DDOS attack against BCH's
Massachusetts server for at least seven days, taking
BCH's website out of service. The attacks disrupted the
entire BCH community by impeding the ability of physicians to
communicate and access patient records. The cyber attack also
occurred during a period of important fundraising which was
severely impacted. Responding to and mitigating the damage
from the attack purportedly cost BCH more than $300, 000 in
addition to lost fundraising estimated at $300, 000.
Government's Motion in Limine to Preclude
Defendant's “Torture Defense” Based on
Necessity and Defense of Another (Docket No. 116)
government moves to preclude evidence on the affirmative
defenses of necessity and defense of another that is not
otherwise admissible for an appropriate purpose. The
government contends that defendant cannot produce competent
evidence to show that he acted in defense of Ms. Pelletier
because (1) defendant was never in Ms. Pelletier's
presence, (2) he cannot show that he acted to prevent
imminent harm and (3) there is no evidence of unlawful force
by BCH or Wayside. With respect to defendant's purported
necessity defense, the government maintains that the
defendant has proffered no competent evidence showing that
(1) defendant's actions were in reasonable anticipation
of averting the alleged harm or (2) defendant lacked legal
alternatives to violating the law.
first renews his objection to the motion in limine
procedure to exclude an affirmative defense. He maintains
that requiring a proffer of evidence at this juncture shifts
the burden of proof to him and compels self-incrimination by
defendant. In support of the imminence-of-harm requirement,
defendant proffers his statement to the Huffington Post
describing the harm Ms. Pelletier faced in the care of BCH
and Wayside. Defendant relies on interviews of Ms.
Pelletier's father on television news programs describing
Ms. Pelletier's condition. Defendant contends that he has
demonstrated the imminent harm element by tendering evidence
of Ms. Pelletier's ongoing medical suffering.
rejects the government's suggestion that the
“force” used by BCH and Wayside was not unlawful
because it was exerted pursuant to an order by the DCF. He
objects to the premise that legally-sanctioned force cannot
be unlawful because a state court order with respect to
custody can later be overturned. Defendant relies again on
news articles, suggesting that the court proceedings
themselves may have been compromised.
argues that it was reasonable to anticipate a direct, causal
relationship between his action and the harm to be averted,
proffering evidence that the cyber attack largely achieved
the intended effect of raising awareness of Ms.
Pelletier's story. He submits that after the attack, the
state court judge dismissed the case and returned custody of
Ms. Pelletier to her parents. Defendant contends that a juror
could find that the non-traditional attack was necessary.
demonstrate that defendant had no legal alternatives to the
alleged cyber attack, he proffers evidence that Ms.
Pelletier's parents had already notified the FBI and
other law enforcement agencies. He contends that he had no
standing to seek other legal relief on behalf of Ms.
Pelletier and that writing Congress, engaging in public
protest or sending private messages to those affected would
not have been effective in redressing the ongoing harm.
defendant has a “wide-ranging” right to present a
defense, that right is not absolute and does not include the
right to present irrelevant evidence. United States v.
Maxwell, 254 F.3d 21, 26 (1st Cir. 2001) (citing In
re Oliver, 333 U.S. 257, 273-74 n.31 (1948)). Before
submitting an affirmative defense to the jury,
it is essential that the testimony given or proffered meet a
minimum standard as to each element of the defense so that,
if a jury finds it to be true, it would support an
United States v. Bailey, 444 U.S. 394, 415 (1980). A
district court can assess the sufficiency of a
defendant's affirmative defense before it is presented to
a jury as part of its gate-keeping responsibilities. See
United States v. Portillo-Vega, 478 F.3d 1194, 1197
(10th Cir. 2007). It can review the sufficiency of
defendant's proffered evidence before trial, during trial
or after the close of evidence before an instruction on the
defense is given to the jury. See, e.g., United
States v. Graham, 663 Fed. App'x 622, 625-26 (10th
Cir. 2016) (citing Portillo-Vega, 478 F.3d at 1202)
(precluding duress defense after pretrial hearing));
United States v. Lebreault-Feliz, 807 F.3d 1, 5 (1st
Cir. 2015) (affirming district court's decision to
exclude duress and necessity defenses during trial).
establish the affirmative defense of another a defendant must
show that he reasonably believed that the use of force was
necessary “for the defense of oneself or another
against the immediate use of unlawful force”.
United States v. Bello, 194 F.3d 18, 26 (1st Cir.
1999) (citing First Circuit Pattern Jury Instr. § 5.04
(2017)). The affirmative defense of necessity requires proof
that the defendant
(1) was faced with a choice of evils and chose the lesser
evil, (2) acted to prevent imminent harm, (3) reasonably
anticipated a direct causal relationship between his acts and
the harm to be averted, and (4) had no legal alternative but
to violate the law.
Lebreault-Feliz, 807 F.3d at 4.
the defendant's proposed affirmative defense based upon
defense of another, his proffer of evidence does not
demonstrate that Ms. Pelletier was threatened by the
immediate use of unlawful force. The alleged force being used
against Ms. Pelletier was exerted pursuant to an order of a
Massachusetts Juvenile Court judge to the DCF. Defendant
contends that a state court order concerning child custody
could, at some later point, be determined to be unlawful.
de minimis possibility that a court order, at some
uncertain future point, could be reversed by an appellate
court, does not mean that someone acting in accordance with
that court order while it is in effect is somehow acting
unlawfully. See, e.g., United States v.
Branch, 91 F.3d 699, 714 (5th Cir. 1996) (holding that
district court was not obligated to give proposed
self-defense instruction and making clear that general
availability of affirmative defenses “must accommodate
a citizen's duty to accede to lawful government
power”); cf. United States v. Dorrell, 758
F.2d 427, 434 (9th Cir. 1985) (“[I]t does not follow
that the law should excuse criminal activity intended to
express the protestor's disagreement with positions
reached by the lawmaking branches of the government.”);
United States v. Kopp, 562 F.3d 141 (2d Cir. 2009)
(affirming district court's exclusion of affirmative
defense proposing justification based on contention that
defendant was acting to save lives of “innocent third
party children by preventing [legal] abortions”).
Defendant's subjective opinion that the force was
unlawful does not make it so.
respect to the necessity defense, defendant has not offered
competent evidence that it was objectively reasonable to
anticipate a causal relationship between the alleged cyber
attack and the purported harm to be averted. Defendant has
offered no competent evidence to demonstrate that he
reasonably expected a DDOS interruption to lead to the
release of Ms. Pelletier. In his opposition memorandum, he
asserts that the disruption would “certainly get the
attention of the alleged abusers”, thereby improving
Ms. Pelletier's chances for release. Gottesfeld
acknowledges that he did not expect the attack would
cause the desired effect, as is required, but rather
that the attack would lead to publicity which could
potentially improve the chances that Ms. Pelletier would get
relief at some uncertain time in the future. See,
e.g., Dorrell, 758 F.2d at 434 (holding that
defendant could not establish as a matter of law that his
spray-painting of government property could be reasonably
anticipated to lead to the termination of a missile program
and the aversion of nuclear war and world starvation). That
causal connection is too attenuated to meet the requirement
of a necessity defense. See Maxwell, 254 F.3d at 28
(“He cannot will a causal relationship into being
simply by the fervor of his convictions (no matter how
sincerely held).”) (citing United States v.
Montgomery, 772 F.2d 733, 736 (11th Cir. 1985)).
also fails to elucidate that there were no legal alternatives
to the alleged cyber attack. The necessity defense requires
that the defendant show that the emergent crisis precluded
all options but the one taken. Maxwell, 254 F.3d at
28. The fact that a defendant is “unlikely to effect
the changes he desires through legal alternatives does not
mean, ipso facto, that those alternatives are
nonexistent”. Id. at 29 (citing
Dorrell, 758 F.2d at 432). When considering whether
there were viable legal alternatives, a court must assess a
defendant's proffered evidence about the availability of
those alternatives objectively. See United States v.
Schoon, 971 F.2d 193, 198 (9th Cir. 1991).
does not, and presumably cannot, demonstrate that there were
no legal alternatives to the alleged cyber attack under the
circumstances. In his opposition memorandum, he acknowledges
some of those alternatives but complains of their
ineffectiveness. For example, he maintains that Ms.
Pelletier's parents had already called law enforcement
and that public protest and writing a member of Congress
“cannot always be counted on to address a serious,
ongoing harm”. Although such actions may not always be
effective, defendant apparently concedes that legal
alternatives did, in fact, exist. The ineffectiveness of
available alternatives does not negate their existence.
Maxwell, 254 F.3d at 29; see also United States
v. Posada-Rios, 158 F.3d 832, 874 (5th Cir. 1998)
(“As long as defendant's crises permitted a
selection from among several solutions, some of which did not
involve criminal acts, . . . the necessity defense must
fail.” (internal citation omitted).
maintains that other parties had pursued legal alternatives
and had failed. Even if the ineffectiveness of such
alternatives was sufficient to justify the illegal action,
which it was not, Gottesfeld has not proffered evidence that
he pursued any legal alternative or communicated with any
person who had explored those alternatives. See
e.g., United States v. Dicks, 338 F.3d 1256,
1258 (11th Cir. 2003) (affirming district court's
exclusion of necessity defense where appellant had not
“avail[ed] himself of [a] viable legal
opposition memorandum and throughout oral argument, defendant
suggested that his proffered evidence was admissible and
sufficient to maintain the proposed affirmative defenses
because it would demonstrate defendant's state of mind at
the time of the alleged cyber attacks. Defendant's
proffered evidence does not, however, show that it was
objectively reasonable to believe that (1) Ms. Pelletier had
been subjected to unlawful force, (2) there were no viable
legal alternatives or (3) that defendant's actions would
cause the desired outcome. See, e.g., United
States v. Perdomo-Espana, 522 F.3d 983, 987 (9th Cir.
2008) (assessing defendant's proffered necessity defense
through an objective framework); United States v.
Acosta-Sierra, 690 F.3d 1111, 1126-27 (9th Cir. 2012)
(affirming exclusion of mental health evidence that would
have explained defendant's subjective belief that self
defense was necessary, but “would not have supported
the proposition that his actions were objectively
argument, counsel for defendant repeatedly suggested that he
“would be willing to find” additional admissible
evidence in support of the proposed affirmative ...