United States v. Miah
| Decision Date | 01 July 2021 |
| Docket Number | Criminal No. 21-110 |
| Citation | 546 F.Supp.3d 407 |
| Parties | UNITED STATES of America v. Khaled MIAH, Defendant. |
| Court | U.S. District Court — Western District of Pennsylvania |
Jessica Lieber Smolar, US Govt Atty, United States Attorney's Office, Pittsburgh, PA, for United States of America.
Adrian N. Roe, Roe & Simon LLC, Pittsburgh, PA, Charles Davidson Swift, Pro Hac Vice, Clcma, Richardson, TX, for Defendant.
W. Scott Hardy, United States District Judge
Defendant Khaled Miah is charged in an eight-count Indictment with five counts of making threatening interstate communications in violation of 18 U.S.C. § 875(c), two counts of threatening to assault FBI agents in violation of 18 U.S.C. § 115(a)(1)(B), and one count of obstruction of justice in violation of 18 U.S.C. § 1519. Presently before the Court is Defendant's Motion to Dismiss All Counts of the Indictment For Failure to State an Offense (Docket Nos. 45, 47, 57), which is opposed by the Government. (Docket Nos. 53, 62). After careful consideration of the parties’ respective positions, the Court concludes that the Indictment is sufficiently pled and dismissal is not warranted on any basis advanced by Defendant. Accordingly, Defendant's Motion is denied.1
On January 6, 2021, Defendant was charged in a criminal complaint with violating 18 U.S.C. §§ 875(c), 115(a)(1)(B) and 1519. (Docket No. 4). Defendant made an initial appearance on that same date, and a preliminary hearing and a detention hearing were held on January 8, 2021, at which time he was ordered to be detained. (Docket Nos. 14, 18, 19, 20).
As stated, on March 16, 2021, Defendant was charged in an eight-count Indictment with the following: five counts of making interstate threats, in violation of 18 U.S.C. § 875(c), for conduct occurring on or about December 27, 2020, December 28, 2020, December 29, 2020, December 30, 2020 and December 31, 2020 (Counts One through Five, respectively); two counts of influencing and/or retaliating against a federal officer by threat, in violation of 18 U.S.C. § 115(a)(1)(B), for conduct occurring on or about December 30, 2020 and December 31, 2020 (Counts Six and Seven, respectively); and one count of destruction, alteration or falsification of records in a federal investigation, in violation of 18 U.S.C. § 1519, for conduct occurring from on or about October 5, 2020 to and including January 1, 2021 (Count Eight). (Docket No. 33). Defendant was arraigned and pled not guilty to these charges on March 24, 2021. (Docket Nos. 39, 40).
Defendant now moves to dismiss all counts of the Indictment for failure to state an offense under Fed. R. Crim. P. 12(b)(3)(B)(v), arguing that his communications charged in Counts One through Seven of the Indictment, which were made on the Twitter Internet communication platform, do not constitute "threats to injure" within the meaning of 18 U.S.C. §§ 875(c) and 115(a)(1)(B). (Docket Nos. 45, ¶ 4; 47 at 7-8). Even if the tweets2 in Counts One through Seven can be interpreted as threatening, Defendant maintains that they were not "true threats," thus they are protected by the First Amendment. (Docket Nos. 45, ¶ 4, 47 at 9-13). Moreover, Defendant contends that the Indictment should be dismissed because the threat and obstruction statutes he is charged with violating are void for vagueness as applied to his speech and activity on Twitter. (Docket Nos. 45, ¶¶ 4-5; 47 at 14-18, 22-23). Finally, Defendant asserts that Count Eight should be dismissed because his Twitter activity is outside the scope or intent of 18 U.S.C. § 1519. (Docket Nos. 45, ¶ 5, 47 at 18-21).
The Government responds that the Indictment is valid on its face because it contains a plain, concise and definite statement of the essential facts constituting the offenses charged as required by Fed. R. Crim. P. 7. (Docket No. 53 at 7). The Government submits that Defendant's Motion should be denied as premature because the merits of the Motion depend, in part, on the full context of his actions, the reaction of those he allegedly targeted and other factual considerations that the parties will dispute at trial. (Id. at 5-7). Additionally, the Government advocates that dismissal of the Indictment is not warranted because Defendant's tweets were true threats that are not protected by the First Amendment, his void for vagueness as applied challenge mirrors his First Amendment challenge and should fail for the same reasons, and his challenge to Count Eight is both premature, because it seeks to address on a pretrial motion the sufficiency of the evidence against him, and legally unsupported. (Id. at 7-21).
In reply, Defendant reiterates his arguments that the tweets in Counts Two, Three and Five do not contain threats to injure another, and the tweet in Count Seven does not contain a threat to assault a federal law enforcement officer. (Docket No. 57 at 5-8). Next, Defendant repeats his argument that the language and purpose of 18 U.S.C. § 1519 do not apply to the Twitter activity which forms the basis of the charge against him in Count Eight, and he additionally argues for the first time that § 1519 is inapplicable because his Twitter account was public.3 (Id. at 2-5). Defendant also contends for the first time that Count Eight must be dismissed because it is unclear "for which conduct the grand jury indicted" him, thus the Government should be required to seek an Indictment based on "specific and distinct" conduct.4 (Id. at 1, 5) (emphasis in original). Further, Defendant raises a new multiplicity argument, asserting that the Indictment as charged could result in multiple convictions for the same course of conduct. (Id. at 8-10).
The Government counters in its sur-reply that the allegations are more than sufficient to charge a violation of 18 U.S.C. § 1519 in Count Eight for Defendant's continuing course of conduct to obstruct the federal investigation during the period from October 5, 2020 to January 1, 2021, thus there is no need to break out specific acts of obstruction. (Docket No. 62 at 2-3). Further, it is irrelevant whether an altered or destroyed Twitter account controlled by Defendant was private or public-facing for purposes of the obstruction statute. (Id. at 3-4). In addition, the Government argues that Defendant's multiplicity argument should be rejected because the allowable unit of prosecution in threat cases is the transmission of a qualifying communication. (Id. at 5-8). Finally, the Government reiterates that the Indictment is valid on its face, and submits that Defendant has failed to overcome the fundamental problem that his Motion is premature. (Id. at 8-9).
The Indictment begins with a section entitled "General Allegations," which includes 18 paragraphs applicable "[a]t all times material to the Indictment." (Docket No. 33 at 1). The Indictment alleges that on or about September 28 and 29, 2020, FBI Special Agent A and other agents (the "Agents") attempted to interview Defendant about reports received by law enforcement concerning an online threat made by Defendant. (Id. , ¶ 3). Defendant allegedly was uncooperative, erratic, and provocative in his interactions with the Agents. (Id. ).
On or about October 5, 2020, a review of several of Defendant's known Twitter accounts revealed material changes and deletions such as changes to profile pictures, display names, and the location of his account. (Docket No. 33, ¶ 4). Numerous tweets associated with Defendant's known Twitter accounts allegedly had been deleted and one known account had been deleted in full. (Id. ).
On or about October 8, 2020, Defendant altered the outward facing profile photograph on one of his known Twitter accounts to depict a photograph of Special Agent A's wife ("Victim A") and changed the display name from "@Lugenpresse_" to "@[Victim A's first name]presse." (Docket No. 33, ¶ 5). The account was able to be viewed by the public. (Id. ). The biographical information on Defendant's account also was altered to include Victim A's actual place of work, her educational background, and her age, hair color, religion, and original hometown in the United States, as well as crude and sexual comments related to Special Agent A and Victim A. (Id. ).
On or about October 9, 2020, a federal search warrant authorized the search of Defendant's residence and seizure of his electronic devices. (Docket No. 33, ¶ 6). When interviewed by FBI Agents, Defendant admitted that he had researched Special Agent A and Victim A online, and that he had used Victim A's photograph and information to alter his Twitter account. (Id. ). The Indictment alleges that the FBI's examination of Defendant's electronic devices and online accounts revealed his interest in weapons, fascination with violence and strong animosity toward law enforcement. (Id. ). The Indictment further alleges that FBI surveillance revealed that Defendant conducted reconnaissance of Special Agent A's residence and the FBI Pittsburgh Field Office on multiple occasions subsequent to the FBI's attempted interview of Defendant in September 2020. (Id. ¶ 8). Additionally, on or about September 30, 2020, Defendant sent four photographs of Special Agent A and Victim A to an associate via the Internet platform WhatsApp, with the following message: (Id. , ¶ 7).
Following the seizure of Defendant's electronic devices on or about October 9, 2020, he created and controlled two new Twitter accounts in or around November 2020. (Docket No. 33, ¶ 9). Defendant used both Twitter accounts to tweet messages over the Internet about an FBI Supervisory Special Agent and Special Agent A by name and indicated that ...
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