United States District Court, E.D. Pennsylvania
is charged in an Indictment with one count of threatening a
federal law enforcement officer with the intent to impede,
intimidate, and interfere with the officer while he was
engaged in the performance of his official duties, and with
the intent to retaliate against the officer on account of the
performance of his official duties, in violation of 18 U.S.C.
§ 115(a)(1)(B) (Count One), and one count of making a
false, fictitious, and fraudulent statement and
representation in violation of 18 U.S.C. § 1001 (Count
before the Court is defendant‘s Motion to Dismiss Count
One of the Indictment on the ground that the Deputy United
States Marshals involved in the case are not federal law
enforcement officers under 18 U.S.C. § 115. On December
27, 2017, the Court conducted a Final Pretrial Conference, at
which it heard oral argument on the Motion. For the reasons
stated on the record at that conference, and amplified in
this Memorandum, the Court denies defendant‘s Motion to
Dismiss Count One of the Indictment.
facts of this case are set forth in the Court‘s
December 6, 2017, Memorandum denying Defendant‘s Motion
to Suppress Statements and the Court‘s December 15,
2017, Memorandum denying in part and granting in part
Defendant‘s Motion for Pretrial Release/Bail. In the
interest of brevity, the Court includes in this Memorandum
only a brief recitation of the facts.
States District Judge Cynthia M. Rufe issued a civil arrest
warrant for defendant on August 28, 2017. Comp. ¶ 5.
Carrying out the warrant, three Deputy United States Marshals
went to the Advanced Urgent Care ("AUC") facility
at 5058 City Avenue, Philadelphia, Pennsylvania, on August
29, 2017, to arrest defendant. Comp. ¶ 5. The threat and
the false statement at issue in the case allegedly were made
in the course of the arrest.
November 29, 2017, defendant filed the Motion to Dismiss
Count One of the Indictment, arguing that the Marshals are
not federal law enforcement officers covered by the criminal
statute on which that count is based. The Government filed a
Response to Defendant‘s Motion to Dismiss Count One on
December 6, 2017. Pursuant to the Order, dated December 7,
2017, directing the parties to file supplemental briefing on
the Motion, defendant filed Defendant‘s Memorandum of
Law in Support of Motion to Dismiss Count I and the
Government filed a Supplemental Response to Defendant‘s
Motion to Dismiss Count One. The Court held oral argument on
the Motion in conjunction with a Final Pretrial Conference on
December 27, 2017. The Motion is thus ripe for review.
considering a defense motion to dismiss an indictment, the
district court accepts as true the factual allegations set
forth in the indictment." United States v.
Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990). "A
ruling on a motion to dismiss is not, however, ‗a
permissible vehicle for addressing the sufficiency of the
government's evidence.‘" United States v.
Bergrin, 650 F.3d 257, 265 (3d Cir. 2011) (quoting
United States v. DeLaurentis, 230 F.3d 659, 660-61
(3d Cir. 2000)). "‗Evidentiary
questions‘-such as credibility determinations and the
weighing of proof-‗should not be determined at th[is]
stage.‘" Id. (quoting United States
v. Gallagher, 602 F.2d 1139, 1142 (3d Cir. 1979).
18 U.S.C. § 115 criminalizes threats against federal law
enforcement officers authorized to engage in or supervise the
prevention, detection, investigation, or prosecution of any
violation of Federal criminal law provided they are engaged
in official duties - acting within the scope of employment -
at the time of the charged offense.
case raises the issue of interpreting two provisions of 18
U.S.C. § 115. The Court begins with the text of the
statute. § 115(a)(1)(B), the subsection under which
defendant is charged, states:
[Whoever] threatens to assault, kidnap, or murder, a United
States official, a United States judge, a Federal law
enforcement officer, or an official whose killing would be a
crime under such section, with intent to impede, intimidate,
or interfere with such official, judge, or law enforcement
officer while engaged in the performance of official duties,
or with intent to retaliate against such official, judge, or
law enforcement ...