US v. Baker, Crim. No. 95-80106.

• Decision Date: 21 June 1995
• Docket Number: Crim. No. 95-80106.
• Citation: 890 F. Supp. 1375
• Parties: UNITED STATES of America, Plaintiff, v. Jake BAKER and Arthur Gonda, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

890 F. Supp. 1375

UNITED STATES of America, Plaintiff, v. Jake BAKER and Arthur Gonda, Defendants.

Crim. No. 95-80106.

United States District Court, E.D. Michigan, Southern Division.

June 21, 1995.

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Kenneth R. Chadwell, Asst. U.S. Atty., Christopher P. Yates, Asst. U.S. Atty., Detroit, MI, for plaintiff.

Douglas R. Mullkoff, Ann Arbor, MI, for defendant.

Edward M. Wise, American Civ. Liberties Union Fund of Mich., Detroit, MI, amicus curiae urging dismissal.

OPINION

COHN, District Judge.

"It is not the policy of the law to punish those unsuccessful threats which it is not presumed would terrify ordinary persons excessively; and there is so much opportunity for magnifying or misunderstanding undefined menaces that probably as much mischief would be caused by letting them be prosecuted as by refraining from it."

The People v. B.F. Jones, 62 Mich. 304, 28 N.W. 839 (1886).

I. Introduction

This is a criminal prosecution under 18 U.S.C. § 875(c). Defendant Jake Baker (Baker) is charged in a superseding indictment with five counts of transmitting threats to injure or kidnap another, in electronic mail (e-mail) messages transmitted via the Internet.¹ Now before the Court is Baker's motion to quash the superseding indictment.² For the reasons that follow, the motion will be granted.

II. Background

The e-mail messages that form the basis of the charges in this case were exchanged in December, 1994 between Baker in Ann Arbor, Michigan, and defendant Arthur Gonda (Gonda), who sent and received e-mail through a computer in Ontario, Canada. Gonda's identity and whereabouts are unknown. The messages excerpted in the superseding indictment are drawn from a larger e-mail exchange between Gonda and Baker began on November 29, 1994, and ended on January 25, 1995. The specific language of the messages excerpted in the superseding indictment will be discussed in detail below. They all express a sexual interest in violence against women and girls.

Baker first appeared before a United States Magistrate Judge on a criminal complaint alleging violation of 18 U.S.C. § 875(c), on February 9, 1995. The complaint was based on an FBI agent's affidavit which cited language taken from a story Baker posted to an Internet newsgroup entitled "alt.sex.stories," and from e-mail messages he sent to Gonda. The story graphically described the torture, rape, and murder of a woman who was given the name of a classmate of Baker's at the University of Michigan. The "alt.sex.stories" newsgroup to which Baker's story was posted is an electronic bulletin board, the contents of which are publicly available via the Internet. Much of the attention this case garnered centered on Baker's use of a real student's name in the story.³ The e-mail messages exchanged between Gonda and Baker were private, and not available in any publicly accessible portion of the Internet.⁴

Baker was arrested on the complaint and warrant on February 9, 1995, and detained overnight. The complaint and warrant is dated the same day. The following day, February 10, 1995, after holding a hearing a Magistrate Judge ordered Baker detained as a danger to the community. His detention was affirmed by a United States District Judge later that day. On March 8, 1995, this Court held a hearing on Baker's motion to be released on bond, and ordered that a psychological evaluation of Baker be performed. The psychological evaluation was received on March 10, 1995. The evaluation concluded that Baker did not pose a threat, and the Court ordered him released that day.⁵

On February 14, 1995 the government charged Baker with violating 18 U.S.C. § 875(c) in a one count indictment based on unspecified communications transmitted in interstate and foreign commerce from December 2, 1994 through January 9, 1995. Presumably included in the communications was the story Baker posted. On March 15, 1995, the government charged Baker and Gonda in a superseding indictment with five counts of violating 18 U.S.C. § 875(c). The story on which the initial complaint was partially based is not mentioned in the superseding indictment, which refers only to e-mail messages exchanged between Gonda and Baker.⁶ The government has filed a bill of particulars identifying who it perceives to be the objects of the allegedly threatening transmissions, as well as witness and exhibit lists.

Baker, who is named in all five of the superseding indictment's counts, has filed a motion seeking dismissal of all the counts of the superseding indictment. He contends that application of 18 U.S.C. § 875(c) to the e-mail transmissions pushes the boundaries of the statute beyond the limits of the First Amendment. The government responds that the motion must be denied because the First Amendment does not protect "true threats," and because whether a specific communication constitutes a true threat is a question for the jury.

III. The Law

Eighteen U.S.C. § 875(c) reads:

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.

The government must allege and prove three elements to support a conviction under § 875(c): "(1) a transmission in interstate or foreign commerce; (2) a communication containing a threat; and (3) the threat must be a threat to injure or kidnap the person of another." United States v. DeAndino, 958 F.2d 146, 148 (6th Cir.), cert. denied, 505 U.S. 1206, 112 S.Ct. 2997, 120 L.Ed.2d 874 (1992). The Court of Appeals for the Sixth Circuit, like most others, has held that § 875(c) requires only general intent. Id. at 149. But see, United States v. Twine, 853 F.2d 676 (9th Cir.1988) (finding a specific intent requirement in § 875(c)).⁷ Because § 875(c) is a general intent crime, intent must be proved by "objectively looking at the defendant's behavior in the totality of the circumstances," rather than by "probing the defendant's subjective state of mind." DeAndino, 958 F.2d at 149. The Sixth Circuit has also held that "a specific individual as a target of the threat need not be identified." United States v. Cox, 957 F.2d 264, 266 (6th Cir.1992). Even so, the threat must be aimed as some discrete, identifiable group. See id. (involving threat to "hurt people" at a specific bank); United States v. Lincoln, 589 F.2d 379 (8th Cir.1979) (involving letters threatening to kill judges of the Eighth Circuit, under 18 U.S.C. § 876). The threat need not be communicated to the person or group identified as its target. See United States v. Schroeder, 902 F.2d 1469, 1470-71 (10th Cir.), cert. denied, 498 U.S. 867, 111 S.Ct. 181, 112 L.Ed.2d 145 (1990) (affirming § 875(c) conviction for a threat against people at a post office made to an Assistant United States Attorney); United States v. Kosma, 951 F.2d 549, 555 (3rd Cir.1991) (listing cases in which threats against the President were made to third persons, under 18 U.S.C. § 871).

Because prosecution under 18 U.S.C. § 875(c) involves punishment of pure speech,⁸ it necessarily implicates and is limited by the First Amendment. Although the Supreme Court has not addressed the constitutionally permissible scope of § 875(c), it has considered a similar statute concerning threats against the President, 18 U.S.C. § 871(a),⁹ in Watts v. United States, 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664. In Watts, the Supreme Court recognized that:

a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.

Id. at 707, 89 S.Ct. at 1401. Under Watts, to pass constitutional muster the government must initially prove "a true `threat.'" Id. Factors mentioned in Watts as bearing on whether a specific statement can be taken as a true threat include the context of the statement, including whether the statement has a political dimension; whether the statement was conditional; and the reaction of the listeners. Id.<sup>10</sup> Watts also makes clear that the question of whether a statement constitutes a true threat in light of the First Amendment is distinct from the question of the defendant's intent: "whatever the `willfulness' requirement implies, the statute initially requires the Government to prove a true `threat.'" Id.¹¹

The distinction between the two questions of whether a statement is a "true threat" for the purposes of First Amendment limitation, and the intention of the statement's maker, is important but unfortunately often confused. The confusion results from too loose a use of the phrase "true threat."

The only extended discussion of the constitutional dimension of the "true threat" requirement with regard to § 875(c) is found in United States v. Kelner, 534 F.2d 1020 (2d Cir.), cert. denied, 429 U.S. 1022, 97 S.Ct. 639, 50 L.Ed.2d 623 (1976). In Kelner, the Second Circuit drew on Watts to illuminate the constitutional limits of a prosecution under § 875(c):

The purpose and effect of the Watts constitutionally-limited definition of the term "threat" is to insure that only unequivocal, unconditional and specific expressions of intention immediately to inflict injury may be punished — only such threats, in short, as are of the same nature as those threats which are ... "properly punished every day under statutes prohibiting extortion, blackmail and assault without consideration of First Amendment issues." Watts, 402 F.2d at 690.

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So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution, the statute may properly be applied. This clarification of the scope of 18 U.S.C. § 875(c) is, we trust, consistent with

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