United States v. Nissen

• Decision Date: 09 January 2020
• Docket Number: No. CR 19-0077 JB,CR 19-0077 JB
• Citation: 432 F.Supp.3d 1298
• Parties: UNITED STATES of America, Plaintiff, v. Michael James NISSEN, Defendant.
• Court: U.S. District Court — District of New Mexico

432 F.Supp.3d 1298

UNITED STATES of America, Plaintiff,

v.Michael James NISSEN, Defendant.

No. CR 19-0077 JB

United States District Court, D. New Mexico.

Filed January 9, 2020

John C. Anderson, United States Attorney, Paul Mysliwiec, Jack Burkhead, Alexander Mamoru Max Uballez, Assistant United States Attorneys, Albuquerque, New Mexico, Attorneys for the Plaintiff.

Jack Mkhitarian, Hakop J. Mkhitarian, Jack Mkhitarian Attorney at Law, LLC, Albuquerque, New Mexico -- and -- Kenneth Gleria, Kenneth A. Gleria Attorney at Law, Albuquerque, New Mexico, Attorneys for the Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on: (i) Defendant Michael J. Nissen's Motion for Bill of Particulars, filed April 24, 2019 (Doc. 22)("MBP"); (ii) Nissen's Motion to Dismiss for Lack of Jurisdiction, filed May 15, 2019 (Doc. 24)("Jurisdictional MTD"); (iii) Nissen's Motion to Dismiss Indictment, filed May 15, 2019 (Doc. 25)("MTD"); and (iv) Nissen's oral motion for a judgment of acquittal under rule 29 of the Federal Rules of Criminal Procedure. The Court held a hearing on July 26, 2019, and a jury convicted Nissen of two counts of transmitting a threat in interstate commerce. The primary issues are: (i) whether the Indictment, filed January 10, 2019 (Doc. 11), which tracks 18 U.S.C. § 875(c)'s statutory language, and provides no specific facts underlying the offenses, contains sufficient factual information to comport with rule 7(c) of the Federal Rule of Criminal Procedure ; (ii) whether Plaintiff United States of America presented sufficient evidence showing that Defendant Michael Nissen communicated his threats via interstate commerce such that the Court has subject-matter jurisdiction; and (iii) whether the jury properly concluded that Nissen's statements amount to true threats such that his conviction is consistent with the First Amendment to the Constitution of the United States of America. The Court concludes that: (i) the Indictment is sufficiently detailed, because it apprises Nissen of the charges against him; (ii) the United States has met its burden to establish the Court's subject-matter jurisdiction; and (iii) the First Amendment does not protect Nissen's statements, and sufficient evidence supports the jury's conclusion that Nissen's statements are true threats. The Court therefore denies the MBP, the Jurisdictional MTD, the MTD, and Nissen's oral motion.

FACTUAL BACKGROUND

The Court takes its background facts from the Criminal Complaint, filed December 19, 2018 (Doc. 1);¹ from the Affidavit of Peter John Nystrom Ubbelohde (executed December 19, 2018), filed December 19, 2018 (Doc. 1-1)("Ubbelohde Aff."); and Nissen's MTD. The Court does not set forth these facts as findings or the truth, but the Court observes that the factual background reflects both the United States' and Nissen's version of events.

This case deals with alleged threats Nissen communicated to New Mexico State Police ("NM State Police") officers and dispatch employees on November 2 and 26, 2018. See Ubbelohde Aff. ¶¶ 6, 8, at 2-3; MTD at 1. On the evening of November 2, 2018, an NM State Police officer stopped Nissen on Interstate 40 in Torrance County, New Mexico, near mile marker 194 and issued several traffic citations. See MTD at 1. About a half-hour later, NM State Police dispatch received "multiple phone calls from telephone number (505) 819-1806 and caller ID listing Michael Nissen." Ubbelohde Aff. ¶ 6, at 3. In the calls, a male caller said that an NM State Police officer had just given him several citations. See Ubbelohde Aff. ¶ 6, at 3. The caller then said:

You guys got some of the stupidest fucking pigs on the road. The next time someone violates me like that on the road, I'm gonna put a bullet in that fucking pig's head.... He violated my Fourth Amendment constitution, he violated my Second and my First Amendment and the next time he does it I'm gonna plea the Fifth, but next time I'm gonna take my revolver out and put that motherfucker drop dead.

MTD at 1. Later that month, NM State Police Internal Affairs personnel received an email from johnny2bravo1@gmail.com further complaining about the November 2, 2018, encounter on Interstate 40. See Ubbelohde Aff. ¶ 7, at 3; MTD at 2. On November 26, 2018, a NM State Police "District 5 administrative assistant received a call from phone number (505) 819-1806. During the call, the male caller became verbally combative and threatened to shoot the [NM State Police] employee in the head." Ubbelohde Aff. ¶ 8, at 3.

On December 13, 2018, Nissen visited the Bernalillo County Sheriff's Office, and spoke with Sheriff's Deputies to complain about the NM State Police. See MTD at 2. Nissen said that he was stopped by mile marker 194 on Interstate 40, and that, after the stop, he called NM State Police dispatch "just to get it done and then it got a little crazy ... I didn't make no threatening calls, but I kept calling them about the law." MTD at 2. Nissen also told Bernalillo County Sheriff's Deputies that he "owned multiple firearms including rifles and a revolver." Ubbelohde Aff. ¶ 9, at 3. The Ubbelohde Aff. states that Nissen told the Deputies he "carries his revolver on the streets and carrying his gun concealed is to protect himself from rouge [sic] cops." Ubbelohde Aff. ¶ 9, at 3-4.

PROCEDURAL BACKGROUND

The United States indicted Nissen in early 2019. See Indictment at 1. The Indictment charges Nissen with two violations of 18 U.S.C. § 875(c). See Indictment at 1. The Indictment's Count 1 asserts that, "[o]n or about November 2, 2018, in Torrance County, in the District of New Mexico, the defendant, MICHAEL JAMES NISSEN, transmitted in interstate and foreign commerce communications containing a threat to injure the person of another [i]n violation of 18 U.S.C.§ 875(c)." Indictment at 1 (bold omitted). The Indictment's Count 2 asserts that, "[o]n or about November 26, 2018, in Bernalillo County, in the District of New Mexico, the defendant, MICHAEL JAMES NISSEN, transmitted in interstate and foreign commerce communications containing a threat to injure the person of another [i]n violation of 18 U.S.C. § 875(c)." Indictment at 1 (bold omitted).

1. The MBP .

Nissen filed his MBP on April 24, 2019. See MBP at 1. Nissen asserts that

the purpose of a bill of particulars is to apprise the defendant of the nature of the charges, in such a way, so as to ensure that he 1.) can prepare a defense, 2.) avoid prejudicial surprise at trial, and 3.) be protected against a second prosecution for the same alleged offenses in both State and Federal Courts.

MBP at 1 (citing United States v. Levine, 983 F.2d 165 (10th Cir. 1992) ). Nissen asserts that the Indictment "fails to allege any overt acts allegedly committed by Michael Nissen which constitute threats in interstate or foreign commerce." MBP at 1.

Nissen first argues that the Indictment fails to give him adequate notice of the crimes with which he is charged. See MBP at 2. Nissen asserts that his lack of discovery compounds the Indictment's vagueness, which only "describes figurative language by Michael without accompanying acts in furtherance of alleged threats." MBP at 2. Accordingly, Nissen argues that the Indictment limits his "ability to prepare his defense, is thereby prejudicial ..., and requires the Bill of Particulars as requested." MBP at 2.

Nissen then turns to a double jeopardy argument. See MBP at 3. Nissen asserts that the Sixth and Fourteenth Amendments to the Constitution of the United States of America "require that an indictment provides a defendant protection against double jeopardy, by enabling the defendant to plead an acquittal or conviction to bar future prosecution for the same offense." MBP at 3 (citing Russell v. United States, 369 U.S. 749 763-64, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) ). Nissen argues that the Indictment's vagueness renders it possible that he could prevail in this matter, only to be charged again by the State of New Mexico. See MBP at 3. Nissen asserts: "For example, Mr. Nissen is currently charged in the State of New Mexico, Bernalillo Metropolitan Court [sic], with Use of a Telephone to Terrify, Intimidate, Harass, Annoy or Offend, and Harassment regarding the same alleged threats charged in" the Indictment's Count 1. MBP at (citing State of New Mexico v. Nissen, No. T-4-DV-2018-003159). Nissen argues that the Indictment "in its current form does not guarantee protection against double jeopardy." MBP at 3. Accordingly, Nissen requests that the Court require the United States to issue a bill of particulars. See MBP at 3.

2. The Jurisdictional MTD.

In the Jurisdictional MTD, Nissen argues that the United States has established no facts showing that his "communications traveled through interstate commerce" as 18 U.S.C. § 875(c) requires. Jurisdictional MTD at 1. Nissen asserts that the United States must prove that the Court has jurisdiction by a preponderance of the evidence. See Jurisdictional MTD at 1 (citing United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994) ). Nissen argues that the United States must also prove the facts that create jurisdiction beyond a reasonable doubt. See Jurisdictional MTD at 2 (citing United States v. Roberts, 185 F.3d 1125, 1139 (10th Cir. 1999) ).

Nissen quotes the Criminal Complaint, filed December 19, 2018 (Doc. 1), which he asserts is "[t]he only reference to communications possible traveling in through [sic] interstate commerce[.]" Jurisdictional MTD at 3. The Complaint states:

T-Mobile uses a cellular network on a GSM² carrier with equipment physically located throughout the county. T-Mobile is headquartered in Bellevue, Washington. Based on my training and experience, even when individual's [sic] are physically located in the same state, it is common for their cellular phone communications to cross state lines based on the cellular provider's communication infrastructure and network efficiency.

Jurisdictional MTD ...