U.S. v. Syring

• Decision Date: 19 November 2007
• Docket Number: Criminal Action No. 07-204 (CKK).
• Parties: UNITED STATES of America, v. Patrick SYRING, Defendant.
• Court: U.S. District Court — District of Columbia

Page 125

522 F.Supp.2d 125

UNITED STATES of America, v. Patrick SYRING, Defendant.

Criminal Action No. 07-204 (CKK).

United States District Court, District of Columbia.

November 19, 2007.

Julieanne Himelstein, U.S. Attorney's Office, Washington, DC, for United States of America.

David Schertler, Schertler & Onorato, L.L.P., Washington, DC, for Defendant.

MEMORANDUM OPINION

COLLEEN KOLLAR-KOTELLY, District Judge.

On October 12, 2007 Defendant, Patrick Syring, filed a Motion to Dismiss the two-count Indictment in this case based upon the First, Fifth and Fourteenth Amendments to the Constitution of the United States, as well as Federal Rule of Criminal Procedure 12(b)(2). Defendant argues that the Indictment violates his rights under the First Amendment to the Constitution of the United States by attempting to criminalize protected speech, and also violates his due process rights under the Fifth and Fourteenth Amendments. For the same reasons, Defendant argues that the statutes under which he has been charged, 18 U.S.C. §§ 245(b)(2)(C) and 375(c), are unconstitutional as applied to his conduct. The Government filed an Amended Response to Defendant's Motion to Dismiss on October 30, 2007,¹ and Defendant filed his Reply Memorandum on November 9, 2007.² Upon a searching review of the filings currently before the Court, as well as the relevant statutes and case law, the Court shall DENY Defendant's Motion to Dismiss the Indictment.

I: BACKGROUND

Defendant Syring was indicted on August 15, 2007 on two charges, both related to alleged threats. The Indictment alleges that between July 17 and July 29, 2006, Defendant Syring sent three voice mail messages and four e-mail messages to employees of the Arab American Institute ("AAI"), a non-profit organization that represents the interests of Arab Americans in the United States. Indict. ¶¶ 1-2. At all times relevant to the Indictment, AAI was located in Washington, D.C. and Defendant Syring lived in Arlington, Virginia. Id. ¶¶ 1, 3. The Indictment specifically describes the following alleged communications:

• A voice mail recorded on AAI's main telephone line at 11:17 p.m. on July 17, 2006, which stated: "This is Patrick Syring. I just read James Zogby's statements on line on the MSNBC website, and I condemn him for his anti-Semitism and anti-American statements. The only good Lebanese is a dead Lebanese. The only good Arab is a dead Arab. Long live the IDF. Death to Lebanon and death to the Arabs." Id. ¶ 4.

• An e-mail sent to the addresses of Dr. James Zogby and Natasha Tynes at the AAI office at 11:21 p.m. on July 17, 2006, which stated: "Zogby's anti-Semitic, anti-American statements (and those of the AAI in general) are abhorrent, repulsive and disgusting. The only good Lebanese is a dead Lebanese (as the IDF knows and is carrying out in its security operations, God bless them.) Fuck the Arabs and Fuck James Zogby and his wicked Hizbollah brothers.³ They will burn in hellfire on this earth and in the hereafter." Id. ¶ 5.

• A voice mail recorded on the telephone extension of Valerie Smith at the AAI office on July 18 or July 19, 2006, which stated: "Hello Valerie, you fucking Arab American shit. James Zogby and you are all Hezballah supporters. The only good Arab is a dead Arab ... You God [inaudible], bitch." Id. ¶ 6.

• An e-mail sent to the e-mail address of Valerie Smith at the AAI office at 12:32 a.m. on July 19, 2006, which stated: "You are a fucking anti-Semitic Arab-American stooge who sympathizes with Hezballah terror. You and your Arab American Institute fuckers should burn in the fires of hell for eternity. The IDF is bombing Lebanon back into the stone age where it belongs. Arabs are dogs. Long live the State of Israel. Death to Arab American terrorists. The only good Lebanese is a dead Lebanese." Id. ¶ 7.

• An e-mail sent to the e-mail address of Rebecca Abou-Chedid at the AAI office at 12:35 a.m. on July 19, 2006, which stated: "You are a fucking Arab American terrorist, a Hezbollah sympathizer pig. James Zogby is a vile evil anti-Semitic pig terrorist member of Hezbollah who is attempting to destroy the State of Israel. God Bless America. God Bless the State of Israel. The only good Lebanese is a dead Lebanese [a smiley face graphic]." Id. ¶ 8.

• A voice mail recorded on the AAI's main telephone line at 11:32 p.m. on July 19, 2006, which stated: "Hello, I'm Patrick I'm in Arlington, VA, and I think James Zogby is worse than Osama bin Laden. Since he supports Hezballah, he's an anti-Semitic motherfucker, and the only good Arab is a dead Arab." Id. ¶ 9.

• An e-mail to sent to the e-mail addresses of James Zogby, Helen Samhan, Nidal Ibrahim, Valerie Smith, and Rebecca Abou-Chedid at the AAI office at 12:13 a.m. on July 29, 2006 with the subject line "AAI murders in Seattle on July 28." The e-mail stated: "I condemn James Zogby and the AAI for perpetrating the murder and shootings at the Jewish Federation in Seattle on Friday July 28 (as well as the killings in Israel). You wicked evil Hezbollah-supporting Arabs should burn in the fires of hell for eternity and beyond. The United States would be safer without you. God Bless the State of Israel. God Bless America. Sincerely, Patrick in Arlington, VA." Id. ¶ 10.

The Indictment contains two counts. Count One alleges that Defendant transmitted "e-mail and telephone communication to the offices of the [AAI] ... and, by threat of force ... attempt[ed] to and did willfully intimidate and interfere with [AAI] employees because of their race and national origin, that is because they were Arab and Lebanese Americans, and because they were and had been enjoying employment, and the perquisites thereof, by a private employer, [AAI]," in violation of 18 § 245(b)(2)(C). Id. ¶ 11. Count Two alleges that Defendant "willfully and knowingly did transmit in interstate commerce ... telephone and e-mail communication to [AAI] employees, in which [he] threatened to injure [AAI] employees," in violation of 18 U.S.C. § 875(c). Id. ¶ 12.

II: DISCUSSION

Federal Rule of Civil Procedure 12(b)(2) provides that a "party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue," Fed.R.Crim.P 12(b)(2), which has been defined as "evidence relevant to the question of guilt or innocence," United States v. Yakou, 428 F.3d 241, 246 (D.C.Cir.2005). In considering a motion to dismiss under Rule 12, the Court is bound to accept the facts stated in the indictment as true. United States v. Lattimore, 215 F.2d 847 (D.C.Cir.1954). Significantly, Defendant has not moved to dismiss the Indictment based on an alleged defect. Instead, Defendant asserts that his communications constitute speech on social and political issues that is protected by the First Amendment, rather than "true threats" that may give rise to criminal charges. Defendant argues that whether his communications constitute "true threats" is a question of law, which must be decided by the Court, and is properly decided on a pretrial motion to dismiss. The Court notes that the D.C. Circuit has upheld district court pretrial dismissals of counts in indictments based on questions of law. Yakou, 428 F.3d at 247 (citing United States v. Espy, 145 F.3d 1369, 1370 (D.C.Cir.1998); United States v. Oakar, 111 F.3d 146, 147-50 (D.C.Cir. 1997)).

A. The Statutes Under Which Defendant is Charged Must Be Interpreted Consistent With the First Amendment

[1-3] The First Amendment to the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech." "The hallmark of the protection of free speech is to allow `free trade in ideas'-even ideas that the overwhelming majority of people might find distasteful or discomforting." Virginia v. Black, 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (quoting Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919)). Nevertheless, the First Amendment's protections are not absolute, and the Supreme Court has "long recognized that the government may regulate certain categories of expression consistent with the Constitution." Id. The First Amendment permits "restrictions upon the content of speech in a few limited areas, which are `of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'" R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)). The parties agree that the only such exception relevant to the instant case is that the First Amendment permits the imposition of criminal sanctions on the expression of "true threats." See Def.'s Mot. to Dismiss at 2; Gov't Resp. to MTD at 9.⁴

The Indictment charges Defendant with violating two criminal laws by sending the communications described above. In particular, Count One charges Defendant with a violation of 18 U.S.C. § 245(b)(2)(C), which provides:

Whoever ... by force or threat of force willfully injures, intimidate or interferes with, or attempts to injure, intimidate or interfere with ... any person because of his race, color, religion or national origin and because he is or has been ... applying for or enjoying employment, or any perquisite thereof, by any private employer ... shall be fined under this title, or imprisoned for not more than one year, or both.

Count Two is brought pursuant to 18 U.S.C. § 875(c), which provides "Whoever transmits in interstate or foreign commerce any communication containing ... any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both." The Indictment thus charges Defendant with criminal action based on his speech.

The Supreme Court has cautioned that where a statute "makes criminal a form of pure speech, [it] must be interpreted...