United States v. Gottesfeld

• Decision Date: 19 June 2018
• Docket Number: Criminal Action No. 16–10305–NMG
• Parties: UNITED STATES of America, v. Martin GOTTESFELD, Defendant.
• Court: U.S. District Court — District of Massachusetts

319 F.Supp.3d 548

UNITED STATES of America,

v.Martin GOTTESFELD, Defendant.

Criminal Action No. 16–10305–NMG

United States District Court, D. Massachusetts.

Signed June 19, 2018

Adam J. Bookbinder, David J. D'Addio, United States Attorney's Office, Boston, MA, for United States of America.

Frederic B. Jennings, Pro Hac Vice, Tor Ekeland, Pro Hac Vice, Tor Ekeland, P.C., Brooklyn, NY, James E. Haynes, Jessica Diane Hedges, Hedges & Tumposky, LLP, Boston, MA, for Defendant.

MEMORANDUM & ORDER

GORTON, J.

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, 68 S.Ct. 499, 92 L.Ed. 682 (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, 100 S.Ct. 624, 62 L.Ed.2d 575 (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"....