The opinion of the court was delivered by: Judge Nora Barry Fischer
In this case, Defendant Adrian Peter Stock is charged in a one count Indictment with a violation of 18 U.S.C. § 875(c) for allegedly making threats against a local police officer in statements he posted on a Craigslist.org ("Craigslist") message board on February 9, 2011. (Docket No. 1). Defendant has moved to dismiss the Indictment under Rule 12(b)(2) of the Federal Rules of Criminal Procedure, arguing that the statements in his message board posting do not amount to threats which are prohibited by the statute. (Docket No. 29). He further claims that his statements do not constitute "true threats" for which one can be held criminally liable without infringing on his right to free speech provided by the First Amendment. (Id.). Alternatively, Defendant contends that if the Indictment is not dismissed, the Court should strike the phrase "among others" from the text of the Indictment. (Docket No. 32). The Government opposes both motions. (Docket No. 40).
The motions have been fully briefed and the Court accepted evidence and heard argument from the parties at a motion hearing held on November 10, 2011. (See Docket Nos. 29, 32, 40, 43, 48). The transcript of said proceeding was provided to the Court on December 13, 2011 and has also been considered. (Docket No. 50). Subsequent to the motion hearing, the parties filed supplemental briefs in light of the United States Court of Appeals for the Third Circuit's recent decision in United States v. Melissa A. Huet, --- F.3d ----, 2012 WL 19378 (3d Cir. Jan. 5, 2012) and both indicated that the Court should restrict its analysis and consider only the allegations contained in the Indictment when evaluating Defendant's motion to dismiss. (See Docket No. 53 at 9 ("Huet now makes clear that the analysis is necessarily limited to consideration of the four corners of the indictment."); see also Docket No. 54 ("The Court should not consider the testimony . [because] it is not responsive to the actual arguments made in Mr. Stock's Motion to Dismiss.")). The Court agrees with the parties that Huet demands that the Court exclude the evidence presented by the parties, including the full Craigslist posting and the testimony presented at the motion hearing, and will thus focus its analysis on the allegations contained within the four corners of the Indictment, only.
For the following reasons, upon consideration of the parties' arguments and the allegations contained in the Indictment, Defendant's Motion to Dismiss the Indictment (Docket No. 29) and Motion to Strike Prejudicial and Irrelevant Surplusage With Citation of Authority (Docket No. 32) are denied.
a.Charge in the Indictment
On August 3, 2011, a grand jury returned a one count indictment against the Defendant, charging him with violating 18 U.S.C. § 875(c). (Docket No. 1). The indictment specifically alleges that:
On or about February 9, 2011, in the Western District of Pennsylvania, the defendant, ADRIAN PETER STOCK, did knowingly and willfully transmit in interstate commerce a communication containing a threat to injure the person of another, that is, the defendant, ADRIAN PETER STOCK, posted a notice on Craig's List, an Internet web site, that contained the following statements, among others,
I went home loaded in my truck and spend the past 3 hours looking for this douche with the expressed intent of crushing him in that little piece of shit under cover gray impala hooking up my tow chains and dragging his stupid ass down to creek hills and just drowning him in the falls. but alas I can't fine [sic] that bastard anywhere . . . I really wish he would die, just like the rest of these stupid fucking asshole cops. so J.K.P if you read this I hope you burn in hell. I only wish I could have been the one to send you there. (Docket No. 1). Section 875(c) provides that "[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both." 18 U.S.C. § 875(c). The penalties for violating 18 U.S.C. § 875(c) include any or all of the following: a term of imprisonment of not more than five years; a term of supervised release of not more than three years; a fine of not more than $250,000; and, a mandatory special assessment of $100. (Docket No. 2).
b.Relevant Procedural History
Defendant filed four pretrial motions on October 11 and 12, 2011,*fn1 including the pending motion to dismiss and motion to strike surplusage from the Indictment. (Docket Nos. 29, 30, 31, 32). The Government filed a motion for extension of time, requesting a brief extension to respond to the Defendant's motions. (Docket No. 33). The Court granted the Government's motion. (Docket No. 34). Defendant responded by filing a motion to reconsider the brief extension afforded to the Government. (Docket No. 35). The Court denied the motion to reconsider after hearing argument from counsel during a telephone status conference on October 26, 2011. (Docket Nos. 36, 37). The Court also scheduled a motion hearing on the pretrial motions for November 9, 2011. (Docket No. 38).
The Government timely filed its omnibus response to Defendant's pretrial motions on October 31, 2011. (Docket No. 40). In turn, Defendant filed his reply brief on November 7, 2011. (Docket No. 43). The Court held a motion hearing on November 9, 2011 during which it heard argument from the parties and the Government presented witness testimony.*fn2 (Docket No. 50). The parties were afforded the opportunity to submit supplemental briefing on the matter and Defendant filed a supplemental brief on November 10, 2011, while the Government declined to make any further submissions. (Docket Nos. 45, 48). The Court also ordered production of the transcript of the motion hearing, which was provided to the Court and the parties on December 13, 2011. (Docket No. 50). The parties then each filed additional supplemental briefs on January 12, 2012, addressing the import of the Huet decision, which led the Court to conclude that it will not consider the witness testimony and full Craigslist posting at this stage. (Docket Nos. 53, 54).
As all of the submissions from the parties have been received and considered by the Court, the present motions are ripe for disposition.
The Court first turns to Defendant's Motion to Dismiss, wherein he has moved to dismiss the sole count in the Indictment against him under Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure. (Docket No. 29). In short, Defendant argues that the statements attributed to him which are quoted in the Indictment do not constitute threats under 18 U.S.C. § 875(c) and thus, maintains that his statements are protected by the First Amendment. (Id.). The Government opposes the motion and contends that the Indictment is sufficient to charge Defendant with making threats under section 875(c) and that any factual issues regarding whether the statements are threats should be resolved by a jury at trial. (Docket No. 40). For the following reasons, the Court agrees with the Government's position.
Motions to dismiss are governed by Rule 12 of the Federal Rules of Civil Procedure. Fed. R. Crim. P. 12. Specifically, Rule 12(b)(3)(B) provides that "at any time while the case is pending, the court may hear a claim that the indictment or information fails to . . . state an offense." Fed. R. Crim. P. 12(b)(3)(B). The requirements of the contents of an indictment are set forth in Rule 7 of the Federal Rules of Criminal Procedure. Fed. R. Crim. P. 7. Pursuant to Rule 7(c)(1), an indictment must "be a plain, concise, and definite written statement of the essential facts constituting the offense charged" and "must give the official or customary citation of the statute, rule, regulation, or other provision of law that the defendant is alleged to have violated." Fed. R. Crim. P. 7(c)(1). The purpose of the promulgation of Rule 7 was to abolish detailed pleading requirements and the technicalities previously required in criminal pleading. See Huet, 2012 WL 19378, at *3 (citing United States v. Resendiz-Ponce, 549 U.S. 102, 110 (2007)); see also United States v. Bergrin, 650 F.3d 257, 264 (3d Cir. 2011) (same citation). "Although detailed allegations may have been required under a common law pleading regime, they 'surely are not contemplated by [the Federal Rules].'" Huet, 2012 WL 19378, at *3 (quoting Resendiz-Ponce, 549 U.S. at 110).
As to the sufficiency of an indictment, the United States Court of Appeals for the Third Circuit has held that:
[A]n indictment [is] sufficient so long as it '(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and (3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution.' United States v. Vitillo, 490 F.3d 314 (3d Cir. 2007) (internal quotation marks omitted). Moreover, 'no greater specificity than the statutory language is required so long as there is sufficient factual orientation to permit the defendant to prepare his defense and to invoke double jeopardy in the event of a subsequent prosecution.' United States v. Rankin, 870 F.2d 109, 112 (3d Cir.1989).
Bergrin, 650 F.3d at 264 (quoting United States v. Kemp, 500 F.3d 257, 280 (3d Cir. 2007)). "Generally, an indictment will satisfy these requirements where it informs the defendant of the statute he is charged with violating, lists the elements of a violation under the statute, and specifies the time period during which the violations occurred." Huet, 2012 WL 19378, at *3 (citing United States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005)).
In determining whether an indictment validly states the elements of the offense, we need not blindly accept a recitation in general terms of the elements of the offense. United States v. Panarella, 277 F.3d 678, 685 (3d Cir.2002). "Federal Rule of Criminal Procedure 12(b)(3)(B) allows a district court to review the sufficiency of the government's pleadings to ... ensur[e] that legally deficient charges do not go to a jury." United States v. Bergrin, 650 F.3d 257, 268 (3d Cir.2011). Although the Government is not required to set forth its entire case in the indictment, "if the specific facts" that are alleged "fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation," the indictment fails to state an offense. Panarella, 277 F.3d at 685; see United States v. Schiff, 602 F.3d 152, 162--66 (3d Cir.2010) (finding that indictment alleging "failure to rectify misstatements of others" did not, as a matter of statutory interpretation, state an offense under 18 U.S.C. § 78j(b) and SEC Rule 10b--5). However, the scope of a district court's review at the Rule 12 stage is limited. "[A] pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's evidence." United States v. DeLaurentis, 230 F.3d 659, 660 (3d Cir.2000) (citations omitted). "The government is entitled to marshal and present its evidence at trial, and have its sufficiency tested by a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29." Id. at 661. There is no criminal corollary to the civil summary judgment mechanism. Id. In evaluating a Rule 12 motion to dismiss, a district court must accept as true the factual allegations set forth in the indictment. United States v. Sampson, 371 U.S. 75, 78--79, 83 S.Ct. 173, 9 L.Ed.2d 136 (1962); United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir.1990). ...