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United States v. Gottesfeld

United States District Court, D. Massachusetts

June 19, 2018



          Nathaniel M. Gorton United States District Judge

         This 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.

         Pending 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.

         I. Factual Background

         The 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 forfeiture allegation).

         The 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 months.

         DDOS 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.

         In 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.

         In 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.

         On 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 efforts.

         Also 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.

         On 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.

         II. Government's Motion in Limine to Preclude Defendant's “Torture Defense” Based on Necessity and Defense of Another (Docket No. 116)

         The 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.

         Defendant 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.

         Defendant 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.

         Gottesfeld 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.

         To 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.

         While a 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 affirmative defense.

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).

         To 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.

         As to 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.

         The 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.

         With 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)).

         Defendant 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).

         Gottesfeld 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).

         Defendant 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 alternative”).

         In his 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 reasonable”).

         At oral argument, counsel for defendant repeatedly suggested that he “would be willing to find” additional admissible evidence in support of the proposed affirmative ...

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