The opinion of the court was delivered by: Henry S. Perkin United States Magistrate Judge
The Defendant, Leo Denis, was charged in a criminal complaint and warrant with the violation of Title 18, United States Code, Section 115(a)(1)(B). According to the Complainant's Statement of Facts Constituting the Offense or Violation: "On or about November 6, 2007, Leo Denis did threaten to assault an official whose killing would be a crime under Title 18, United States Code, Section 1114, with the intent to impede, intimidate, and interfere with such official while engaged in the performance of official duties and with intent to retaliate against such official on account to the performance of official duties."
II. Procedural Background
On October 30, 2008, the Defendant appeared before me for to a preliminary examination regarding probable cause for his arrest as well as a hearing on the United States motion to detain*fn1 the Defendant.
The United States proceeded with the hearing on probable cause by presenting the testimony of Special Agent Jesse A. Kunkle.*fn2 Agent Kunkle testified that the information set forth in his affidavit attached to the complaint was true and correct. Counsel for the Government then rested. Following his cross-examination of Agent Kunkle, counsel for Defendant orally moved to dismiss the complaint and warrant. Counsel asserted that the Government had not produced evidence that the victim, Chantelle San Juan, was an "official" as referred to in 18 U.S.C. §115(a)(1)(B). I continued the matter until October 31, 2008 to permit the Defendant to file a written motion to dismiss the complaint and warrant and for the parties to submit memoranda in support of their respective positions. The parties have done so and this matter is now before me for a decision.
III. Question Before the Court
Whether the evidence as presented, through the testimony of Agent Jesse A. Kunkle and his affidavit, demonstrate that the victim, Chantelle San Juan, was an "official" for purposes of 18 U.S.C. §115(a)(1)(B).
A. Standard for Probable Cause
An affidavit of probable cause must state facts showing the "fair probability" that the proposed target of arrest engaged in criminal activity. Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000); see Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed. 2d 527 (1983). The contents of the affidavit should enable the Magistrate Judge to make a practical, common-sense decision whether, considering the totality of the circumstances, probable cause exists to arrest the person accused. Gates, 462 U.S. at 232, 238 (probable cause "is a fluid concept -- turning on the assessment of probabilities in particular factual contexts -- not readily, or even usefully, reduced to a neat set of legal rules."); see United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed. 2d 684 (1965); Aguilar v. Texas, 378 U.S. 108, 113, 84 S.Ct. 1509, 12 L.Ed. 2d 723 (1964) abrogated on other grounds by Gates, 462 U.S. at 228. The facts may be derived from the personal observations of the affiant or from hearsay evidence, Ventresca, 380 U.S. at 108, but the affidavit must disclose which information is based on the affiant's own personal observations and which information is hearsay, Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 565, 91 S.Ct. 1031, 28 L.Ed. 2d 306 (1971). The requirement that an affidavit state facts rather than conclusions preserves the Fourth Amendment's requirement that "the inferences from the facts which lead to the complaint '(must) be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.'" Aguilar, 378 U.S. at 112-13 (quoting Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)); accord Gates, 462 U.S. at 239. A Magistrate Judge "should not accept without question the complainant's mere conclusion." Aguilar, 378 U.S. at 113; accord Gates, 462 U.S. at 239.
The Defendant is charged under 18 U.S.C. §115(a)(1)(B), which provides that it is a criminal offense to threaten "a United States official, a United States judge, a Federal law enforcement officer, or an official whose killing would be a crime under [18 U.S.C. §1114].*fn3
Defendant contends that Ms. San Juan is not an "official" as referred to in 18 U.S.C. §115(a)(1)(B), but is, instead, just a government employee. In support of his argument, Defendant relies primarily on United States v. Fenton, 10 F. Supp. 2d 501 (W.D. Pa. 1998), which held that legislative ...