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17-P-1109                                             Appeals Court

                       A.S.R.   vs.   A.K.A.


                         No. 17-P-1109.

    Middlesex.     November 15, 2016. - September 22 , 2017.

            Present:   Trainor, Meade, & Hanlon, JJ.


Civil Harassment. Harassment Prevention.       Intent.   Evidence,
     Intent. Criminal Harassment.



     Complaint for protection from harassment filed in the
Cambridge Division of the District Court Department on May 27,
2015.

     A hearing to extend the harassment prevention order was had
before James H. Wexler, J.


     Ruth O'Meara-Costello for the defendant.
     Martin F. Kane, II, & Joan E. Kolligian, for the plaintiff,
submitted a brief.


    HANLON, J.   After a hearing, a judge of the District Court

extended a harassment prevention order, pursuant to G. L.
                                                                     2


c. 258E, against the defendant, A.K.A.1    She appeals, arguing,

among other things, that the judge failed to identify three acts

as the basis for the order, failed to make findings supporting

A.K.A.'s intent in contacting the plaintiff, A.S.R., and, based

on A.S.R.'s testimony that he was not placed in fear of physical

harm or property damage as a result of the contact, there was

insufficient evidence to extend the order.     Finally, she argues

that, even if issuing the order was warranted under the statute,

the order was unconstitutional because it penalized

constitutionally protected speech.     We affirm.

     Background.   At the beginning of the extension hearing, the

judge carefully reviewed A.S.R.'s initial affidavit and copies

of various voice mail, text, and electronic mail (e-mail)

messages admitted as an exhibit packet by agreement of the

parties.2   He then heard testimony from A.S.R. and A.K.A.; both

were represented by counsel.

     The parties were in a dating relationship for a little more

than one year until September, 2013.    They continued to have


     1
       Although the order at issue has now expired, the issue is
not moot and is properly before us. See Seney v. Morhy, 467
Mass. 58, 62 (2014).
     2
       The exhibit packet consists of a transcript of a message
left by A.K.A. on A.S.R.'s voice mail, and copies of text and e-
mail messages, some including photographic images, sent by
A.K.A. to A.S.R.; all are included in the record appendix.
A.K.A. admitted during cross-examination that she authored all
of the e-mails contained in the exhibit packet.
                                                                   3


contact until January, 2014, because A.S.R. "tried to help

[A.K.A.] for a while," but then A.S.R. cut off contact and "made

it very clear that [he] didn't want any contact from her."

Afterwards, A.K.A. began sending A.S.R. "lots of e-mails, phone

calls, [and] appearing in person in an attempt to get [him] to

resume contact in a way that made [him] feel very afraid and

hurt and abused."   Although in March, 2014, A.S.R. threatened to

obtain a restraining order, he resumed contact with A.K.A. for a

short time in June, 2014, "in an attempt to make things right,"

because she had sent him images of her having cut herself "and a

lot of desperate pleas."3   Eventually, however, A.S.R. cut off

communications again.   At the time of the hearing, on June 5,

2015, A.S.R. had not responded to any of A.K.A.'s written

communications since June, 2014.

     A.S.R. was aware that in July, 2014, A.K.A. had left the

country; he learned that she was back in Boston in January,

2015, when she attended a programming event where he was

working.   However, even while A.K.A. was living out of the

country, A.S.R. was receiving "a pretty steady stream" of e-

mails from her, despite the fact that he had blocked her e-mail

accounts and telephone numbers.    He testified that "she would




     3
       The images contained in A.K.A.'s e-mails showed scars on
her arms, neck, and chest area.
                                                                    4


find ways around it."4   A.K.A. was able to skirt A.S.R.'s e-mail

filters by sending messages from new e-mail addresses, and she

would also call from unlisted telephone numbers so that her

calls would not be blocked.   A.S.R. testified that, after he

broke off contact with A.K.A., he received "hundreds" of e-

mails, text messages, and voice messages from her.   Some of the

messages purported to be from an imaginary friend; many were

rambling and only barely coherent.5   Sometimes, there would be a

series of e-mails with the message only in the title or subject

line, thus defeating any effort by A.S.R. to avoid them by not

opening the e-mail.6


     4
       A.S.R. testified that he was unclear about why A.K.A. was
asking to resume contact, "whether it was resuming a romantic
relationship or whether it was just wanting to have [his]
presence around for emotional support, [he was] not entirely
sure."
     5
       One e-mail sent from A.K.A.'s cellular telephone (cell
phone) said, "More than anything, I'm so, so sorry. I hope I
haven't destroyed everything. Any damage I do to myself is
temporary -- I know that because I know that I have endless
reserves of resilience, and will reinvent myself as soon as I
find a new home. My fear was that there were no more new homes
to be found, that I had been sent away from the last one and,
alone and unbound as Frankenstein's monster, had no choice but
to rage and destroy."
     6
       For example, on March 22, 2014, A.K.A. sent the following
series of e-mails with these "Subject[s]": at 6:28 P.M.,
"Please, please, please, talk to me. I beg you"; at 6:29 P.M.,
"This is more important to me than anything else in the world";
also at 6:29 P.M., "It's very near the only thing keeping me
alive"; at 6:30 P.M., "I cut my neck today. I can't keep doing
this"; and, at 8:17 P.M., "Please forgive me. I would do
anything you ask."
                                                                      5


    In March, 2015, A.K.A. appeared at a choral ensemble

concert where A.S.R. was singing; a few days later, she was at a

Cambridge restaurant where A.S.R. was meeting his new girl

friend and her parents for the first time.    A.K.A. was seated at

a table by the window so he saw her immediately when he

approached the restaurant; she came outside and they had "a

short confrontation."    A.S.R. "implored her to stop trying to

contact [him] and she implored [him] to resume contact with

her."    The messages continued.   A.K.A. also appeared at a Quaker

meeting she knew that A.S.R. sometimes attended.

    A.S.R. testified that A.K.A.'s continuous contact made him

"extremely afraid a lot of times" to open his e-mails and text

messages, or to listen to his voice mail messages and, also,

afraid that A.K.A. was going to appear at places where he was

going to be.   The constant contact caused him, and his family

when he talked to them about it, emotional distress, fear, and

anger.   In many of her messages, A.K.A. spoke of killing herself

or said that she was "going to die" (e.g., an e-mail from

"throwaway account," "Subject:     I want nothing more than to

stick a knife in the back of my neck").     The last communication

A.S.R. received from A.K.A. prior to the hearing was on May 12,

2015, an e-mail invitation to A.K.A.'s birthday party sent to a

group of people including him.
                                                                    6


    A.K.A. also testified.     She stated that, in early 2014, she

was severely depressed; she agreed that she sent each of the e-

mails contained in the exhibit packet, including the images of

her having cut herself.   She sent those e-mails and images to

A.S.R. because she "wanted his empathy and his help"; she stated

that she never threatened A.S.R. with physical harm or

threatened to damage his property.   She never threatened to hurt

anyone other than herself.   A.K.A. testified that, at the time

of the hearing, she was "doing much better" and was no longer

depressed; her continued attempts at contact with A.S.R. were

"much calmer and conciliatory," and her intention in sending

those communications was that they could "reach a resolution

between [them] that feels satisfactory."   She stated that

between January and June, 2014, she did not actively seek out

physical contact with A.S.R.

    During her testimony, A.K.A. further stated that she had

appeared at the Quaker meeting, the choral concert, and the

programming event for reasons that had nothing to do with A.S.R.

She did not know that A.S.R. was going to be at the Cambridge

restaurant where she saw him; she had made plans with a friend

to meet for lunch, and the friend had suggested that restaurant.

    A.K.A. testified that, as to the phrase appearing in the

April 24, 2015, transcript of an audio file she sent to A.S.R.,

which read, "I've been thinking a lot about whether I can find
                                                                     7


it in my heart to forgive you, or just thinking about an

alternative to violence that feels true," she was "referring to

the Quaker tradition of resolving conflicts through means other

than physical or spiritual violence"; it did not refer to

physical violence.     She stated that the phrase, "I want it to be

something other than violence that you've done to me," referred

to "the fact that [A.S.R.] cut [her] off and tried to force

[her] into silence."    She testified that the "violence" that she

was guilty of was her continued contact attempts with A.S.R.

after he specifically had asked her to stop.    A.K.A. stated that

no matter the outcome of the hearing, she did not intend to

contact A.S.R. again.

    During cross-examination, A.K.A. did not agree that she

continued to contact A.S.R. in an attempt to have him return to

a relationship with her; she stated that her intent was to work

out a "peaceful resolution" with him.    She said that she was not

trying to make A.S.R. uncomfortable; she acknowledged that she

understood that, since June, 2014, A.S.R. did not want to have

any contact with her.    However, after seeing A.S.R. at the

Cambridge restaurant, she sent an e-mail to his new girl friend;

she (A.K.A.) had obtained his girl friend's e-mail address by

checking A.S.R.'s OKCupid Internet dating account.    She also

admitted that, at the time of the hearing, she was still

monitoring A.S.R.'s account.
                                                                   8


     At the conclusion of the hearing, the judge stated in oral

findings that he did not find A.K.A.'s testimony to be credible,

and that, although he found it a close question whether the e-

mails fell within A.K.A.'s rights under the First Amendment to

the United States Constitution, in his view the communications

were "very violent"; he extended the harassment prevention order

that had been issued ex parte.7

     Discussion.    In reviewing a civil harassment order under

G. L. c. 258E, we consider whether the judge could find, by a

preponderance of the evidence, together with all permissible

inferences, that the defendant committed acts that constituted

     7
         The judge stated:

     "Counsel for the defendant, there's language in the
     communications that I find very violent. 'Restorative
     justice has worked in places where people actually killed.
     There's no reason it shouldn't work for us when our
     injuries are so much more abstract. It's been long enough
     --' and then you merge that with the letter that she wrote,
     the April 24 letter -- 'I'm trying to think about an
     alternative to violence that feels true.' The term
     violence is used. What am I to take from that?"

     The judge continued:

     "The United States Supreme Court just ruled on this issue
     in a case involving language over the Internet, and it is a
     complex issue and there are First Amendment issues that
     have been raised; however, I do not find the defendant
     credible in her testimony, and I think it is done with the
     -- it does meet the standard that it set out in the case
     that has been given to me -- in the O'Brien case [O'Brien
     v. Borowski, 461 Mass. 415 (2012)]. It's a close question,
     and there are freedom of speech issues, but the
     communication is a very violent communication, and I'm
     going to extend the order for one year."
                                                                      9


one of the enumerated forms of harassment.    See O'Brien v.

Borowski, 461 Mass. 415, 420 (2012); Seney v. Morhy, 467 Mass.

58, 60 (2014).

     "Harassment" is defined in G. L. c. 258E, § 1, in several

ways, and a plaintiff who proves any one of the various forms of

harassment qualifies for an order prohibiting the harassment.8

The first definition is "(i) [three] or more acts of willful and

malicious conduct aimed at a specific person committed with the

intent to cause fear, intimidation, abuse or damage to property

and that does in fact cause fear, intimidation, abuse or damage

to property."    G. L. c. 258E, § 1 (definition of "harassment,"

subsection [i]) (hereinafter, the first definition).    This is

the form of harassment most discussed in recent case law.      See,

e.g., O'Brien v. Borowski, 461 Mass. at 425-428; Seney v. Morhy,

467 Mass. at 63-64; Smith v. Mastalerz, 467 Mass. 1001, 1001-

1002 (2014); A.T. v. C.R., 88 Mass. App. Ct. 532, 535-536

(2015); Gassman v. Reason, 90 Mass. App. Ct. 1, 7-8 (2016); V.J.


     8
       Specifically, in G. L. c. 258E, § 1, inserted by St. 2010,
c. 23, the statute's definition of harassment provides:

     "'Harassment', (i) [three] or more acts of willful and
     malicious conduct aimed at a specific person committed with
     the intent to cause fear, intimidation, abuse or damage to
     property and that does in fact cause fear, intimidation,
     abuse or damage to property; or (ii) an act that: (A) by
     force, threat or duress causes another to involuntarily
     engage in sexual relations; or (B) constitutes a violation
     of section 13B, 13F, 13H, 22, 22A, 23, 24, 24B, 26C, 43 or
     43A of chapter 265 or section 3 of chapter 272."
                                                                     10


v. N.J., 91 Mass. App. Ct. 22, 25-27 (2017); C.E.R. v. P.C., 91

Mass. App. Ct. 124, 125-129 (2017).

        This court, in F.A.P. v. J.E.S., 87 Mass. App. Ct. 595,

598-599 (2015), discussed subsection (ii) of the definition of

harassment under G. L. c. 258E, § 1 (hereinafter, the second

definition).     "Under this definition [of harassment], a

plaintiff can establish the need for a harassment prevention

order in either of two ways that largely overlap.     First, a

plaintiff can show that a defendant 'by force, threat or duress

cause[d the plaintiff] to involuntarily engage in sexual

relations.'     Second, a plaintiff can prove that a defendant

committed any of [ten] specifically enumerated sex crimes,

including -- as relevant [there] -- rape of a child, G. L.

c. 265, § 22A."     (Footnote omitted.)   F.A.P. v. J.E.S., supra at

599.9

        The present case addresses yet another definition of

harassment.     Two of the enumerated crimes in subpart (B) of the

second definition of civil harassment are G. L. c. 265, §§ 43

(stalking) and 43A (criminal harassment).     The definition of

civil harassment relevant here under this subpart is "an act


        9
       However, the second paragraph of one of the ten enumerated
crimes, G. L. c. 265, § 13F, as amended by St. 2010, c. 239,
§§ 71 & 72, also provides that "[w]hoever commits an assault and
battery on a person with an intellectual disability knowing such
person to have an intellectual disability shall . . . be
punished."
                                                                 11


that . . . (B) constitutes a violation of section . . . 43A of

chapter 265 [criminal harassment]."

    In Commonwealth v. Bigelow, 475 Mass. 554, 558-559 (2016),

the Supreme Judicial Court stated:

    "The criminal harassment statute punishes 'whoever
    willfully and maliciously engages in a knowing pattern of
    conduct or series of acts over a period of time directed at
    a specific person, which seriously alarms that person and
    would cause a reasonable person to suffer substantial
    emotional distress.' G. L. c. 265, § 43A (a). The statute
    specifies that conduct or acts qualifying as criminal
    harassment under its terms 'shall include, but not be
    limited to, conduct or acts conducted by mail.' Id."
    [Footnote omitted.]10

The court also stated:

    "A conviction under [G. L. c. 265,] § 43[,] requires proof
    that '(1) the defendant engaged in a knowing pattern of
    conduct or speech, or series of acts, on at least three
    separate occasions; (2) the defendant intended to target
    the victim with the harassing conduct or speech, or series
    of acts, on each occasion; (3) the conduct or speech, or
    series of acts, were of such a nature that they seriously
    alarmed the victim; (4) the conduct or speech, or series of
    acts, were of such a nature that they would cause a
    reasonable person to suffer substantial emotional distress;

    10
         The text of the statute continues:

    "The conduct or acts described in this paragraph shall
    include, but not be limited to, conduct or acts conducted
    by mail or by use of a telephonic or telecommunication
    device or electronic communication device including, but
    not limited to, any device that transfers signs, signals,
    writing, images, sounds, data or intelligence of any nature
    transmitted in whole or in part by a wire, radio,
    electromagnetic, photo-electronic or photo-optical system,
    including, but not limited to, electronic mail, internet
    communications, instant messages or facsimile
    communications."

G. L. c. 265, § 43A, as appearing in St. 2010, c. 92, § 10.
                                                                  12


    and (5) the defendant committed the conduct or speech, or
    series of acts, willfully and maliciously.' [Commonwealth
    v.] Johnson, 470 Mass. [300,] 307 [2014], quoting
    Commonwealth v. McDonald, 462 Mass. 236, 240 (2012)."

Commonwealth v. Bigelow, supra at 561.

    Judging by the test set out in Bigelow, A.K.A.'s actions

reasonably can be described as criminal harassment.     It is clear

that she targeted the plaintiff with a knowing pattern of

conduct and speech; she intended to target him with the

harassing conduct or speech on each occasion; her conduct and

her speech, taken as a whole, seriously alarmed him; her actions

were such that they would cause a reasonable person to suffer

substantial emotional distress; and she committed the acts and

speech wilfully and maliciously.

    A.K.A. argues that the judge did not specify three specific

acts of harassment.   She is correct that three acts are

required.   See id. at 559 n.9.    However, in this civil

proceeding where the judge was the fact finder and there clearly

was evidence supporting a conclusion that there were many more

than three harassing acts, the judge was not required to make

written findings specifying the three acts.

    Similarly, A.K.A. argues that the judge did not state

explicitly that her conduct was malicious and intentional;

however, the judge is not required to do so, and his decision to

extend the order is supported by the evidence.     Contrary to
                                                                  13


A.K.A.'s argument, the decision in Smith v. Mastalerz, 467 Mass.

at 1001, is easily distinguished.   There, the defendant drove

past his former roommate "while she unpacked her vehicle at the

front of her home, stopped a few houses away on that street,

turned around, drove past her again, and a few seconds later

drove by the home again."   Ibid.   As the court explained,

    "[W]here there was no evidence refuting the defendant's
    claim that he lived down the street from the plaintiff, we
    conclude that driving by the plaintiff's home within a very
    short period of time was one continuous act. Moreover, the
    judge made no explicit findings, and the record does not
    permit us to infer, that the defendant's driving by the
    plaintiff's home was wilful and malicious, directed at the
    plaintiff, and intended to cause, and in fact did cause,
    fear, intimidation, abuse, or damage to property."

Id. at 1001-1002.

    The present case is very different, with hundreds of

communications sent over many months, despite A.S.R.'s pleas

that A.K.A. stop.   The fact that A.K.A. used a number of

different names and addresses to trick A.S.R. into receiving the

communications despite his efforts to avoid them is clear proof

of the maliciousness and wilfulness of her behavior.    In

addition, as noted, the judge explicitly disbelieved the

defendant's testimony that she appeared entirely by coincidence

at various locations where the plaintiff was working or

socializing.

    A.K.A. also contends that, read in context, her actions do

not support a finding that the communications were harassing.
                                                                  14


However, as the court in Commonwealth v. Bigelow noted, "In the

usual case, whether a communication constitutes a threat or a

true threat is a matter to be decided by the trier of fact."

475 Mass. at 567, quoting from United States v. Stock, 728 F.3d

287, 298 (3d Cir. 2013).

    It is true that A.S.R.'s testimony about his fear of

physical harm was somewhat equivocal.    In response to the

question, "When you say fear, it's not a physical fear of harm

to you, is it?" he said, "Not that much of one.     A little

bit . . . ."   Counsel then asked, "Has she ever been physical

with you?" and A.S.R. responded, "She told me once that she

fantasized about killing me, but that's it.    She's never been --

she's never physically -- I don't think she would physically

harm me.   I don't think that would happen."11,12   However, in

O'Brien v. Borowski, 461 Mass. at 420, the court explained that,

for criminal harassment, the elements are different from those

required for the definition of civil harassment contained in the

first definition of harassment under G. L. c. 258E, § 1.

    "Both [the first definition of] civil [harassment] and
    criminal harassment require proof of three or more acts of
    wilful and malicious conduct aimed at a specific person.
    See Commonwealth v. Welch, 444 Mass. 80, 89 (2005) . . .

    11
       A.S.R. did testify that A.K.A. had threatened many times
to hurt herself "[a]nd that continue[d]" at least until the time
of the hearing.
    12
       The parties agree that there was no threat of damage to
A.S.R.'s property.
                                                                     15


     ('phrase "pattern of conduct or series of acts" [in G. L.
     c. 265, § 43A,] requires the Commonwealth to prove three or
     more incidents of harassment'). But the definitions of
     [the first definition of] civil and criminal harassment
     differ in three respects. First, there are two layers of
     intent required to prove [the first definition of] civil
     harassment under c. 258E: the acts of harassment must be
     wilful and '[m]alicious,' the latter defined as
     'characterized by cruelty, hostility or revenge,' and they
     must be committed with 'the intent to cause fear,
     intimidation, abuse or damage to property.' G. L. c. 258E,
     § 1. Only the first layer of intent is required for
     criminal harassment under c. 265, § 43A. Second, the
     multiple acts of [the first definition of] civil harassment
     must 'in fact cause fear, intimidation, abuse or damage to
     property,' while the multiple acts of criminal harassment
     must 'seriously alarm[]' the targeted victim. Third,
     criminal harassment requires proof that the pattern of
     harassment 'would cause a reasonable person to suffer
     substantial emotional distress,' but [the first definition
     of] civil harassment has no comparable reasonable person
     element."

Ibid.    This analysis of criminal harassment, therefore, also

applies to civil harassment, when the civil harassment alleged

consists of    acts that constitute a violation of G. L. c. 265,

§ 43A.    G. L. c. 258E, § 1, second definition of harassment,

subpart (B).

     This record is clear that A.S.R. was seriously alarmed by

A.K.A.'s behavior.    He testified that "[i]t's made me extremely

afraid a lot of times.     I don't know if she's going to show up

at places.     You know, afraid to check my e-mail or anything like

that.    It's caused me a lot of emotional distress.   It's caused

my family, you know, who hear about it, a lot of distress, fear,

anger.    It's been very painful."   When asked, "[I]n those
                                                                   16


hundreds of e-mails that you say you received -- texts, e-mails,

voice messages -- how many times did she threaten to kill

herself if you don't come back to her?" A.S.R. responded, "I

don't know the exact number.   You know, I don't know if it's

always phrased in exactly those terms, but it -- a lot of

times."   Counsel asked, "Freezing to death, cutting herself?"

and A.S.R. responded, "Yeah.   Things like that.   'I'm going to

die.'   You know, just a lot of things like that."

     On this evidence, the judge was also warranted in finding

that A.K.A.'s actions, given the volume and the nature of the

messages, combined with her unexpected appearances in person,

would cause a reasonable person to suffer substantial emotional

distress.   Indeed, on these facts a reasonable person would have

been warranted in fearing for his physical safety.   As noted,

the judge found the behavior to be harassing, disbelieving

A.K.A.'s testimony that she intended no threat.    There certainly

was enough evidence to support that conclusion -- particularly

under the civil standard of proof by a preponderance of the

evidence.

     Finally, we reject the argument that the defendant's

actions constitute protected speech under the First Amendment

and under art. 16 of the Massachusetts Declaration of Rights.

Her communications were not directed at an elected official or

even a public figure, but at a private individual.   Contrast
                                                                     17


Commonwealth v. Bigelow, 475 Mass. at 562-563.    Nor do they

express political speech directed to the public at large.       In

Bigelow, supra at 568 n.21, the court noted that "because the

letters were anonymous, [the victim] would have been unable to

halt their arrival at her home, such as requesting a block at

the post office or, perhaps, seeking a civil restraining order

pursuant to G. L. c. 258E."    Here, A.K.A. repeatedly evaded

A.S.R's efforts to stop communications from her by using other

names, telephone numbers, and e-mail addresses and, as noted, by

putting the content of her e-mail message into the subject line

of the unwanted e-mail, making it impossible not to see it.

    In addition, we are satisfied that the evidence was

sufficient for the judge to find that A.K.A.'s behavior

constituted a true threat.    As the court in Commonwealth v.

Bigelow explained, reiterating language from O'Brien v.

Borowski,

    "[a] true threat does not require an explicit
    statement of an intention to harm the victim as long
    as circumstances support the victim's fearful or
    apprehensive response. . . . Nor does a true threat
    threaten imminent harm; sexually explicit or
    aggressive language directed at and received by an
    identified victim may be threatening, notwithstanding
    the lack of evidence that the threat will be
    immediately followed by actual violence or the use of
    physical force. . . .

    "[T]he 'true threat' doctrine applies not only to
    direct threats of imminent physical harm, but to words
    or actions that —- taking into account the context in
    which they arise —- cause the victim to fear such harm
                                                                    18


      now or in the future and evince an intent on the part
      of the speaker or actor to cause such fear."

Commonwealth v. Bigelow, supra at 566-567, quoting from O'Brien

v. Borowski, 461 Mass. at 424-425.    A.K.A.'s harassment was

relentless, carried on over a period of months, and frequently

contained explicit references to violence, and it therefore

satisfies that definition.

      Undoubtedly there are many instances of unwelcome contact

from a romantic partner (or would-be romantic partner) that

would not support the issuance of a harassment prevention order

pursuant to G. L. c. 258E.   However, in this case, given the

extraordinary number of communications, and the defendant's

persistent manipulations over months to have them reach the

plaintiff, combined with their frequently violent content, we

cannot say that the judge erred in finding the defendant's

conduct to be harassing and in extending the order that she stop

it.

                                     Order dated June 15, 2015,13
                                      affirmed.




      13
       We note that, although the extension order is dated June
15, 2015, the docket sheet and the transcript reflect that the
order was extended on June 5, 2015.
