U.S. v. Kammersell, 2:97-CR-84C.

Citation7 F.Supp.2d 1196
Decision Date03 June 1998
Docket NumberNo. 2:97-CR-84C.,2:97-CR-84C.
PartiesUNITED STATES of America, Plaintiff, v. Matthew Joseph KAMMERSELL, Defendant.
CourtUnited States District Courts. 10th Circuit. United States District Court of Utah

Richard N. Lambert, Salt Lake City, Utah, for plaintiff.

Deirdre A. Gorman, Ogden, Utah, for defendant.

ORDER

CAMPBELL, District Judge.

This matter is before the court on the defendant's motion to dismiss the indictment. The basis for the defendant's motion is that the transmission of a threat from one Utah resident to another by means of email does not create federal jurisdiction over interstate crimes, even if, as here, the transmission was actually routed from Utah to Virginia and then back again. United States Magistrate Judge Ronald Boyce issued a Report and Recommendation in which he concluded that the defendant's motion should be denied. The defendant has objected to the Report and Recommendation.

Defendant's argument is a matter of first impression in this circuit and the court acknowledges that similar arguments have created a split of authority in other jurisdictions. Compare United States v. Paredes, 950 F.Supp. 584, 590 (S.D.N.Y.1996) (defendant's use of his paging system, which transmitted signals to a tower across state lines, did not satisfy interstate nexus requirement because the sender and the recipient were both located in the same state) with United States v. Stevens, 842 F.Supp. 96, 97 (S.D.N.Y.1994) (use of paging system which transmits interstate signals satisfies interstate nexus for federal jurisdiction, even though paged party was ultimately reached in the same state as the paging party). Nevertheless, after reviewing the Report, the case file, and the applicable law, the court believes that Judge Boyce's conclusion is entirely correct. Accordingly, the Report and Recommendation is adopted as the order of this court.

SO ORDERED.

REPORT & RECOMMENDATION

BOYCE, United States Magistrate Judge.

The defendant Matthew Joseph Kammersell was indicted on one count of making a threatening communication in violation of 18 U.S.C. § 875(c). The indictment charges that on January 16, 1997, Kammersell did "knowingly transmit in interstate commerce to America Online, Ogden, Utah, a communication to injure the person of another by means of a bomb ..." (File Entry # 11).

Thereafter, the defendant made a motion to dismiss the indictment contending the United States "does not have jurisdiction to prosecute the matter". (File Entry # 28). The defendant contends the offense was not committed by way of interstate or foreign commerce but was committed in the State of Utah. (File Entry # 28). The defendant submitted a memorandum in support of the motion to dismiss. (File Entry # 29). In the motion, the defendant put forth some facts which are not disputed.

The defendant asserts the government's position is that defendant transmitted the message to America on Line. The claim is that the communication was electronically transmitted from Riverdale, Utah, to Ogden, Utah, but that the message was routed outside the State of Utah before the recipient of the threat received it in Ogden, Utah. It is the defendant's position that the interstate jurisdiction is not established even if the message traveled from Riverdale, Utah, outside of Utah and then back to Ogden, Utah. (File Entry # 29, p. 2).

The United States filed a response to the motion to dismiss (File Entry # 33) contending that the transmissions from defendant's computer through Virginia and then back to recipient's computer in Utah was a transmission in interstate commerce under 18 U.S.C. § 857(c).

The defendant has also suggested United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), is a limitation on the application this court can give to the term "interstate commerce" under 18 U.S.C. § 857(c). (File Entry # 29). The defendant suggests the application of federal interstate commerce jurisdiction to the facts of this case would violate the Lopez standards. (Tr. p. 8).

Discussion

The grand jury's indictment in this case established probable cause for the conclusion that the defendant's transmission of the threat to the victim passed in interstate commerce. The United States conceded at hearing on the motion to dismiss that its evidence on this issue is that the defendant logged on to the Internet through America Online in Utah and sent an electronic message from Utah by the server (American Online), through the server's facility in Virginia and back to Ogden, Utah, where it was received by the victim. (Tr. pp. 6-7). The message was a threat. It was also conceded a different server may have a different transmission system not involving interstate transmission. (Tr. p. 7). Every message from America Online in Utah goes through Virginia to the recipient. (Tr. p. 7). The defendant, for the purposes of this motion, conceded the facts that the transmission by defendant placed through America Online in Utah went to Virginia and was routed back to Utah to the victim. (Tr. pp. 7-8). The transmission was an "insta-message" and the recipient had to have access to the same server as the sender. (Tr. pp. 11-12).

The defendant contends, and it appears undisputed, that no one saw the message in Virginia, although there is no requirement under 18 U.S.C. § 875(c) that the threat actually be received or seen by someone. The threat was seen, in this case, at the victim's computer. The message was sent to the recipient a distance of thousands of miles but it was about four miles from the initial transmission to the recipient if measured by a straight line.

18 U.S.C. § 875(c)

The statute at issue in this case is 18 U.S.C. § 875(c). It provides:

"Whoever transmits in interstate or foreign commerce any communication containing any demand or request for a ransom or reward for the release of any kidnaped person, shall be fined under this title or imprisoned not more than twenty years, or both." (Emphasis added).

The actus reus of the offense is the transmission of the threat in interstate commerce. The threat need not be received by the intended recipient. The crime is complete upon the transmission in interstate commerce with the requisite general intent to transmit the threat. No mens rea is specifically mentioned in the statute. In United States v. Bozeman, 495 F.2d 508 (5th Cir.1974), the court said the mens rea was a knowing and intentional state of mind. See United States v. Myers, 104 F.3d 76 (5th Cir.1997) (The court said the offense was a general intent crime). The Ninth Circuit has referred to a general intent, United States v. Levison, 418 F.2d 624 (9th Cir.1969), but thereafter a specific intent standard was adopted in United States v. Twine, 853 F.2d 676 (9th Cir.1988). It is sufficient to establish the knowing transmission and it is not necessary to prove a specific intent to injure or present ability to carry out the threat. United States v. Holder, 302 F.Supp. 296 (D.Mont.1969) aff'd. 427 F.2d 715 (9th Cir.).

The Eleventh Circuit has stated the threat to kidnap or injure requires only that defendant acted willfully and knowingly. United States v. Himelwright, 42 F.3d 777 (3rd Cir. 1994). It is not necessary to show that defendant knew his transmission crossed a state line. United States v. Darby, 37 F.3d 1059 (4th Cir.1994) (Court acknowledged split in the circuits. Id. p. 1063). See also United States v. DeAndino, 958 F.2d 146 (6th Cir.1992) (Only a general intent rather than a specific intent is required);1 United States v. Whiffen, 121 F.3d 18 (1st Cir.1997) (Only a general intent is required); United States v. Alkhabaz, 104 F.3d 1492, 1494 (6th Cir.1997).

The mens rea for the offense is not disputed for the purposes of this motion, only whether the actus reus element of interstate commerce is satisfied. The conflict in the circuits on mens rea need not be resolved in this case.

The statute was enacted May 18, 1934, (Ch. 300, 48 Stat. 781), 18 U.S.C. § 408(w). United States v. Heller, 579 F.2d 990 (6th Cir.1978) (Full discussion of legislative history). The provisions of 18 U.S.C. § 875(c), non extortionate threats was added on 1939, 53 Stat. 743 (then 18 U.S.C. § 408(a)). Transmission in interstate commerce is required. United States v. Oxendine, 531 F.2d 957 (9th Cir.1976). It is apparent that when the statute was enacted, Congress intended to encompass "any" threat to injure that is transmitted in interstate commerce regardless of the method used. Heller, infra.2 The statute is broad and from the language used by Congress the purpose was to make a federal crime of the transmission or a threat in interstate commerce without limitation as to the means employed.

Statutory Construction

Criminal statutes should be construed to effect the intent of Congress. Negonsott v. Samuels, 507 U.S. 99, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993) ("Our task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive"). Id. p. 104, 113 S.Ct. 1119. (Construing jurisdiction to prosecute offenses on a Kansas Indian reservation). In Norfolk Western v. Am. Train Dispatchers, 499 U.S. 117, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991), the court said, "As always, we begin with the language of the statute and ask whether Congress has spoken... If the intent of Congress is clear, that is the end of the matter; for the court must give effect to the unambiguously expressed intent of Congress." Id. p. 128, 111 S.Ct. 1156.

The plain meaning of the language of the statute should be conclusive of its construction except in rare instances. In United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989), the court said, quoting from Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571, 102 S.Ct. 3245, 73 L.Ed.2d 973 (1982), "The plain meaning of legislation should be conclusive, except in rare cases [in which] the literal...

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