The opinion of the court was delivered by: Stengel, J.
Anthony Elonis was convicted by a jury of four counts of violating 18 U.S.C. § 875(c) by posting threatening comments to the social networking website, Facebook. The jury acquitted on one count. The Defendant filed post-convictions motions, which I will deny.
Elonis asserts that the indictment, charging violations of § 875(c), was insufficient to state an offense because it did not include the specific threatening language posted on Facebook. The Government argues that filing a motion to dismiss the indictment well after the close of trial and verdict by the jury is grossly unfair to the prosecution because it allows the defense to "sandbag" the Government by withholding its motion to dismiss until after jeopardy attaches.*fn1 The Government notes, correctly, the language in the indictment tracked the language of the statute, included the date and location of each violation, and stated the general content and identity of the target of the threat. Despite the patent untimeliness of the post-trial motions, I will consider it on the merits.*fn2
Rule 12(b)(3)(B) of the Federal Rules of Criminal Procedure states that "at any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense."
An indictment is sufficient if 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. Rankin, 870 F.2d 109, 112 (3d Cir. 1989). 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." Id. at 112. "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, 665 F.3d 588, 2012 U.S. App. LEXIS 133, 2012 WL 19378, at *3 (citing United States v. Urban, 404 F.3d 754, 771 (3d Cir. 2005)).
The content required for an indictment is set forth in Rule 7 of the Federal Rules of Criminal Procedure. Rule 7(c)(1) says 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." The purpose of Rule 7 was to abolish detailed pleading requirements and the technicalities previously required in criminal pleading. See Huet, 665 F.3d 588, 2012 U.S. App. LEXIS 133, 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, 665 F.3d 588, 2012 U.S. App. LEXIS 133, 2012 WL 19378, at *3 (quoting Resendiz-Ponce, 549 U.S. at 110).
Defendant is charged with violating 18 U.S.C. § 875(c), which criminalizes the "transmi[ssion] in interstate or foreign commerce [of] any communication containing any threat to kidnap any person or any threat to injure the person of another." "To prove a violation under this statute, the Government must prove that the defendant 'acted knowingly and willfully' in making the threatening communication and that the communication was 'reasonably perceived as threatening bodily injury.'" United States v. Voneida, 337 Fed.App'x 246, 247 (3d Cir. 2009) (quoting United States v. Himelwright, 42 F.3d 777, 782 (3d Cir. 1994)).
In United States v. Kistler, 558 F. Supp. 2d 655, 657 (W.D. Va. 2008), the court determined that the indictment was sufficient in almost identical circumstances. Specifically, in that case the defendant, Kistler, was charged with nine counts of transmitting in interstate commerce a communication containing a threat to injure the person of another, in violation of 18 U.S.C. § 875(c). The indictment returned against the defendant stated in its entirety: "The Grand Jury charges that: 1. On or about the following dates, in the Western District of Virginia and elsewhere, Christopher Jason Kistler transmitted in interstate commerce a communication containing a threat to injure the person of another, namely victims 'A' and 'B'." Id. at 656. The indictment went on to state each of the dates, which correlated with the victim and the charge.*fn3 Id. The defendant moved to dismiss the indictment on the ground that it failed to allege the elements of the crime charged. He argued that the indictment did not contain the specific words of the threats alleged and without those words, it contained an insufficient statement of the elements of the crime, since to be proscribed, the communication must contain a "true threat." Id.
The court denied the motion, stating "the indictment is sufficient, if barely. Whatever the rule at common law, the modern rule is that all of the words of a threat need not be set forth in the indictment." Id. (citing Keys v. United States, 126 F.2d 181, 184 (8th Cir. 1942) (holding that indictment charging attempt to extort money by threat to injure property or reputation was not defective because of its failure to set forth the alleged threatening letter, or its date or author). The court went on to state that "[w]hile the indictment in the present case is bare bones, it narrowly passes constitutional muster, with its recitation of the dates of the communications and indication, at least by letter of alphabet, of the two victims." Id. See also United States v. Ahmad, 329 F. Supp. 292, 294-97 (M.D. Pa. 1971) (holding that while it is not necessary to set forth in the indictment the threatening letters charged, it is not surplusage to do so); Wilson v. United States, 275 F. 307 (2d Cir. N.Y. 1921) (finding that the content of the letters in a conspiracy to defraud case were not required in the indictment and holding that even if the content of the letter should have been described or set forth in the indictments, defendants raised the question too late and the defect was cured by the verdict).
Similarly, in United States v. Musgrove, 2011 U.S. Dist. LEXIS 107775 (E.D. Wis. Apr. 20, 2011), the court found that, despite defendant's objections to the contrary, the indictment returned by the grand jury was constitutional.*fn4 In challenging the sufficiency of the indictment, the defendant stated that it failed to include the alleged threat at issue and the alleged victim. Id. at 5. The court found that the language "appropriately tracks the language of the statute which states 'whoever 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.'" Id. at 4-5 (quoting 18 U.S.C § 875(c)). The court held that Seventh Circuit does not require that an indictment charging the defendant with criminal use of threatening language allege a "true threat" nor has it reversed a conviction for failure to include language defining what constitutes a "true threat" in an indictment. Id. at 11-12.
The indictment in this case alleges more than enough facts and certainly more than the cases discussed above. See Kistler, 558 F. Supp. 2d at 657. It states the nature of the threat, such as "to injure and kill" as well as the target of the threat and the date the threat was made. Therefore, the indictment tracks the statutory language of 18 U.S.C. § 875(c) as required and includes sufficient information to place the ...