United States v. Baker

• Decision Date: 25 January 2021
• Docket Number: Case No. 4:21-mj-09-MAF
• Citation: 514 F.Supp.3d 1369
• Court: U.S. District Court — Northern District of Florida
• Parties: UNITED STATES of America v. Daniel Alan BAKER, Defendant.

514 F.Supp.3d 1369

UNITED STATES of America

v.Daniel Alan BAKER, Defendant.

Case No. 4:21-mj-09-MAF

United States District Court, N.D. Florida, Tallahassee Division.

Signed January 25, 2021

Lazaro Fields, US Attorney Northern District of Florida, Tallahassee, FL, for United States of America.

Elizabeth Linda Vallejo, Federal Public Defender Northern District of Florida, Tallahassee, FL, for Defendant.

ORDER REGARDING PROBABLE CAUSE

Michael J. Frank, United States Magistrate Judge

Pursuant to Rule 5.1(a) of the Federal Rules of Criminal Procedure this court conducted a preliminary hearing in this case. For the reasons set forth below, this court finds that there is probable cause to believe that the Defendant, Daniel Alan Baker, committed the offense of Interstate Communication of a Threat, in violation of 18 U.S.C. § 875(c).

I. BACKGROUND

On January 14, 2021, the government filed a criminal complaint and an affidavit in support of the criminal complaint, which charged the Defendant with Interstate Communication of a Threat, in violation of 18 U.S.C. § 875(c). Also, on January 14, based on the government's representations, Magistrate Judge Charles A. Stampelos issued a warrant for the Defendant's arrest. On January 15, 2021, the FBI executed the arrest warrant, and the Defendant had his initial appearance before Judge Stampelos. On January 21, 2021, Defendant appeared before the undersigned for a preliminary hearing. At that hearing, the government offered the testimony of an FBI agent, and the Defendant offered the testimony of his landlord, his roommate, and a friend. The parties also offered exhibits, which were admitted without objection.

II. DISCUSSION

Pursuant to Rule 5.1(e), a court must determine whether there is probable cause to believe that the defendant committed the charged offense. United States v. Smith , 928 F.3d 1215, 1243 n.21 (11th Cir. 2019) ("The purpose of a preliminary hearing is to ensure that the government has probable cause to proceed."). The purpose of the probable cause review is to ensure that the government does not subject individuals to "unfounded charges of crime" and that the government does not prosecute persons based on "whim or caprice."

Gerstein v. Pugh , 420 U.S. 103, 112, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975) (quoting Brinegar v. United States , 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ).

Probable cause, however, "is not a high bar." District of Columbia v. Wesby , 583 U.S. ––––, 138 S. Ct. 577, 586, 199 L.Ed.2d 453 (2018) (quoting Kaley v. United States , 571 U.S. 320, 338, 134 S.Ct. 1090, 188 L.Ed.2d 46 (2014) ); see United States v. $42,500 in U.S. Currency , 283 F.3d 977, 980 (9th Cir. 2002) ("[P]robable cause is not an exacting standard."). Rather, probable cause "is a relatively low threshold of proof ...." Valdez v. McPheters , 172 F.3d 1220, 1227 n.5 (10th Cir. 1999). "Probable cause does not require overwhelmingly convincing evidence ...." Ortega v. Christian , 85 F.3d 1521, 1525 (11th Cir. 1996). Probable cause exists when facts and reasonable inferences drawn from those facts, are sufficient to convince a person of ordinary prudence to believe the defendant committed the charged offense. Michigan v. DeFillippo , 443 U.S. 31, 37, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979) ; Gerstein , 420 U.S. at 111, 95 S.Ct. 854 ; Beck v. Ohio , 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964).

"Federal crimes are made up of factual elements, which are ordinarily listed in the statute that defines the crime." Richardson v. United States , 526 U.S. 813, 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999). " ‘Elements’ are the ‘constituent parts’ of a crime's legal definition—the things the ‘prosecution must prove to sustain a conviction.’ " Mathis v. United States , 579 U.S. ––––, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016) (quoting Elements , BLACK'S LAW DICTIONARY (10th ed. 2014)). A probable cause analysis, therefore, should center on the elements of the charged offense. Hall v. District of Columbia , 867 F.3d 138, 154 (D.C. Cir. 2017) ; Skop v. City of Atlanta, GA. , 485 F.3d 1130, 1137-38 (11th Cir. 2007) ; Crosby v. Monroe Cnty. , 394 F.3d 1328, 1333 (11th Cir. 2004). Probable cause, however, "does not require the same type of specific evidence of each element of the offense as would be needed to support a conviction." Adams v. Williams , 407 U.S. 143, 149, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (citing Draper v. United States , 358 U.S. 307, 311-12, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959) ).

The government charged the Defendant with violating 18 U.S.C. § 875(c), which states:

(c) 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.

18 U.S.C. § 875(c).

This crime, therefore, entails the following four elements:

(1) the defendant knowingly transmitted in interstate or foreign commerce a communication;

(2) the communication contained a "true" threat, that is, a reasonable person would perceive the communication to constitute a threat;

(3) the communication threatened to kidnap any person or to injure the person of another; and

(4) the defendant intended that the communication serve as a threat or knew that the communication would be viewed as a threat.

Elonis v. United States , 575 U.S. 723, 739, 135 S. Ct. 2001, 2012, 192 L.Ed.2d 1 (2015) ; United States v. Dierks , 978 F.3d 585, 591-92 (8th Cir. 2020) ; United States v. Howard , 947 F.3d 936, 946 (6th Cir. 2020) ; United States v. Khan , 937 F.3d 1042, 1051 (7th Cir. 2019) ; United States v. Stevens , 881 F.3d 1249, 1253 (10th Cir. 2018).

A. First Element: Transmission of a Communication

The first element requires the government to establish that the Defendant knowingly transmitted a communication in interstate or foreign commerce. The government alleged, and offered evidence indicating, that the Defendant transmitted two communications in interstate commerce.

First, the evidence indicated—and the Defendant's attorney did not contest—that on January 12, 2021, the Defendant created an "event" on Facebook titled "Defend Tallahassee." In the details section, the Defendant allegedly wrote:

Armed racist mobs have planted the Confederate flag in the nations Capitol while announcing their plans to storm every American state Capitol on or around Inauguration day. We will fight back. We will circle the state Capitol and let them fight the cops and take the building. Then we will encircle them and trap them inside. We will drive them out of Tallahassee with every caliber available.... We must encircle them so they cannot escape down Apalachee Parkway. Militant friends will ... coral the trump terrorists into the Capitol building. The enemy will have high power rifles and explosives.

(Doc. 2 at 19).

Similarly, on January 14, 2021, in a comment to an article posted on the internet—specifically on the website of a Tallahassee television station—the Defendant posted a "CALL TO ARMS JANUARY 20TH!" (Doc. 2 at 22). At the top of the posting was an image of what appears to be a Kalashnikov-style rifle, commonly referred to as an "AK-47."¹ The rest of the Defendant's message states:

Armed racists have planted the confederate flag in America's Capitol as they openly declared that they WILL CONTINUE to wage an ARMED COUP at every American Capitol, including Tallahassee, on Inauguration Day.

We need ALL FLORIDA RESIDENTS to RISE UP! Here in Florida we must encircle terrorists who attack the Capitol! Let them take the capitol and fight with cops, SURROUND THEM AND TRAP THEM INSIDE!

Tally residents have answered the call to arms, including combat veterans. Join us! Help protect your community from terrorists. We WILL protect capitol RESIDENTS and CIVILIANS from armed racist mobs WITH EVERY CALIBER AVAILABLE.

This is an armed COUP and can only be stopped by an armed community!

If you're afraid to die fighting the enemy, stay in bed and live.

(Doc. 2 at 22).

Insofar as the Defendant's messages convey information in an intelligible format, they obviously constitute communications. Placing a communication on the internet in a virtual "location" that can be accessed by any member of the public—from anywhere in the United States or the world—satisfies the requirement that the communication be transmitted in interstate or foreign commerce. See United States v. MacEwan , 445 F.3d 237, 245 (3d Cir. 2006) (noting that "the Internet is an instrumentality and channel of interstate commerce"); United States v. Hornaday , 392 F.3d 1306, 1311 (11th Cir. 2004) (same); United States v. Kammersell , 196 F.3d 1137, 1139 (10th Cir. 1999) (holding that a threat that was transmitted over interstate telephone lines by utilizing internet service falls within the scope of 18 U.S.C. § 875(c) ). The fact that the Defendant did not direct his message to a particular person makes no difference with respect to this element. "The language of § 875(c) does not require that the threat be made directly to the intended target; it simply prohibits ‘any threat to injure the person of another’ made in interstate commerce." United States v. Morales , 272 F.3d 284, 288 (5th Cir. 2001).

As to the knowledge requirement, there is no indication that the Defendant accidently or mistakenly posted these communications. Rather, the fact that the Defendant conveyed similar messages on two separate occasions is sufficient evidence that he acted "knowingly" and not because of a mistake on his part. See United States v. Woodruff , 296 F.3d 1041, 1047 (11th Cir. 2002). Furthermore, an FBI special agent testified that the Defendant stated that he posted materials online to scare people. This further indicates that the Defendant created these communications and did so knowingly.

Thus, there is probable cause to believe that the Defendant knowingly transmitted in interstate or foreign commerce the two communications quoted above.

B. ...