IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
November 26, 2008
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Henry S. Perkin United States Magistrate Judge
MEMORANDUM AND ORDER
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.
B. Complaint and Warrant
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 aides are not "officials" within the meaning of 18 U.S.C. §115(a)(1)(B).*fn4
The United States asserts that Fenton is not binding authority and has never been followed by any other court. In support of its position, the United States cites United States v. Bankoff, 2008 WL 75081 (E.D. Pa. March 21, 2008), a case which was decided by United States District Judge Michael Baylson. The United States argues that, in that case, Judge Baylson denied a similar motion to dismiss wherein the defendant argued that the alleged victims were not "federal officials". The Government's response, however, fails to acknowledge that a further Memorandum in the Bankoff case was issued on August 22, 2008, wherein Judge Baylson later acquitted the same defendant after determining, inter alia, that the testimony at trial was insufficient to conclude that one of the victims was a federal official. See United States v. Bankoff, 2008 WL 4058699 (E.D. Pa. August 22, 2008).
In Bankoff,*fn5 the defendant was found guilty on two counts of the indictment, which charged him with threatening public officials*fn6 in violation of 18 U.S.C. §115(a)(1)(B). Following a Renewed Motion for Judgment of Acquittal under Rule 29(c) of the Federal Rules of Criminal Procedure, however, Judge Baylson acquitted the defendant of one of these counts after determining that the evidence was not sufficient for a reasonable jury to conclude that one of the victims was a federal official.*fn7 The court found that this particular victim, a service representative with the Social Security Administration, performed routine and subordinate functions. More specifically, Judge Baylson noted the following with respect to the victim's job duties:
[t]he evidence indicates that she answered the telephone, responded to the questions she could answer, and forwarded the questions she could not answer. The [government] did not present evidence suggesting that [the victim] made decisions on behalf of the federal government or exercised governmental functions.
Bankoff, 2008 WL 4058699, at *3.
In the present case, Agent Kunkle was asked on cross examination whether he knew the functions and duties of the victim, Ms. San Juan. He testified that although Ms. San Juan was a contact representative, he was not specifically aware of her job responsibilities or functions. In fact, he was unable to state whether she took an oath of office or whether she had any supervisory or decision making authority. Agent Kunkle merely testified that Ms. San Juan received initial contact and screened phone calls most of the time. He further assumed that she would be responsible for reporting something up the chain of command if she was unsure how to handle it. Based on this testimony, I conclude that the United States presented no evidence which would allow me to determine that Ms. San Juan is a federal official who should be protected under 18 U.S.C. §115(a)(1)(B). To the contrary, it appears that Ms. San Juan's position is actually very similar to the position of the victim in the Bankoff case discussed above. See Bankoff, 2008 WL 4058699, at *3. In this case, as in Bankoff, the government failed to present any evidence suggesting that Ms. San Juan "made decisions on behalf of the federal government or exercised governmental functions." Id.
As such, I find that the government has not put forth sufficient evidence to support a finding of probable cause for the complaint and warrant in this case. The Defendant's Motion to Dismiss the Complaint and Warrant is granted. An appropriate Order follows.
ORDER AND NOW, this 26th day of November, 2008, upon consideration of Defendant's Motion to Dismiss the Complaint and Warrant (Document No. 14), which motion was filed October 30, 2008; and upon consideration of the Government's Response to the Defendant's Motion to Dismiss the Complaint (Document No. 15), which response was filed October 31, 2008,
IT IS ORDERED that defendant's motion is GRANTED.
HENRY S. PERKIN United States Magistrate Judge