United States v. Nissen
| Decision Date | 21 April 2020 |
| Docket Number | No. CR 19-0077 JB,CR 19-0077 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. MICHAEL JAMES NISSEN, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on: (i) the Motion for Discovery of Grand Jury Minutes, filed December 30, 2019 (Doc. 98)("Grand Jury Motion"); (ii) the Motion for Leave to Amend by Addendum, filed January 15, 2020 (Doc. 106)("Motion to Amend"); (iii) the Motion to Dismiss Information on Two Counts of Convictions for Lack of Jurisdiction, filed January 24, 2020 (Doc. 109)("MTD"); (iv) the Motion for Judgment of Acquittal After Guilty Verdict, or, In the Alternative, For a New Trial, filed January 24, 2020 (Doc. 110)("Acquittal Motion"); (v) the Motion for Acquittal, or to Dismiss Information on Two Counts for Prosecutorial Misconduct, filed January 27, 2020 (Doc. 111)("Second Acquittal Motion"); (vi) the Notice of Motion for Acquittal, Overturn Guilty Verdict, or Dismiss Information of Conviction of Counts I and II, filed February 6, 2020 (Doc. 112)("Third Acquittal Motion"); and (vii) the Motion to Dismiss Information of Illegal Convictions on Counts I and II for Federal Abuse of Arbitrary Power and Judicial Misconduct, filed February 19, 2020 (Doc. 113)("Second MTD"). The Court held a hearing on March 23, 2020. The primary issues are: (i) whether the Court has subject-matter jurisdiction over this case and personal jurisdiction over Defendant Michael J. Nissen; (ii) whether Nissen is entitled to a transcript of the Grand Jury proceedings that resulted in his indictment; (iii) whether Nissen may amend the Motion to Dismiss for Lack of Jurisdiction, filed May 15, 2019 (Doc. 24)("Jurisdictional MTD"), despite the fact that the Court has already ruled on the Jurisdictional MTD; (iv) whether Nissen's motions to dismiss and for acquittal are timely; (v) whether Counts I and II of the Indictment, filed January 10, 2019 (Doc. 11), charge the same offense such that Nissen's conviction under both Counts at a jury trial violate Nissen's rights under the Double Jeopardy Clause of the Fifth Amendment to the Constitution of the United States of America; (vi) whether Nissen had a right to appear before a Grand Jury before his indictment; (vii) whether Nissen's conviction for violating 18 U.S.C. § 875(c) is invalid, because § 875(c) violates the Commerce Clause of the Constitution of the United States of America; (viii) whether § 875(c) unconstitutionally criminalizes thought; (ix) whether the evidence introduced at trial supports Nissen's two-count conviction; (x) whether the Court properly denied Nissen's oral motion for an acquittal at trial; (xi) whether the Court erred in its Memorandum Opinion and Order, ___ F. Supp. 3d ___, 2020 WL 108488, filed January 9, 2020 (Doc. 101)("MOO"), in which the Court held that sufficient evidence supported Nissen's conviction, Nissen is not entitled to a bill of particulars, the Court has subject-matter jurisdiction, and Nissen's conviction does not violate his First Amendment rights; (xii) whether § 875(c) is an ex post facto law, because Nissen alleges that it prohibits conduct committed before its enactment; and (xii) whether the Assistant United States Attorneys ("AUSAs") prosecuting this case violated Nissen's rights under the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, Eleventh, and Fourteenth Amendments to the Constitution. The Court concludes that: (i) the Court has subject-matter jurisdiction, because the evidence introduced at trial demonstrates that Nissen transmitted threats in interstate commerce while in New Mexico; (ii) Nissen is not entitled to a transcript of the Grand Jury proceedings, because Nissen has not shown a particularized need for the transcript, and because Nissen has not shown that grounds mayexist to dismiss the Indictment because of a matter that occurred before the Grand Jury; (iii) Nissen may not amend the Jurisdictional MTD, because the Court has denied that motion; (iv) Nissen's Acquittal Motion, Second Acquittal Motion, and Third Acquittal Motion are untimely under rule 29 of the Federal Rules of Criminal Procedure, because several months have passed since Nissen's conviction and Nissen has not shown good cause for delay; (v) the Indictment charges separate offenses in Counts I and II, and so does not violate Nissen's rights against double jeopardy; (vi) Nissen did not have a right to appear before the Grand Jury; (vii) section 875(c) is a valid exercise of Congress' powers under the Commerce Clause; (viii) section 875(c) does not criminalize thought, but rather true threats; (ix) the United States introduced sufficient evidence to support Nissen's conviction; (x) the Court properly denied Nissen's oral motion for acquittal, because the evidence supports Nissen's conviction; (xi) the Court did not err in the MOO; and (xii) the AUSAs prosecuting this case have not violated any of Nissen's rights. Accordingly, the Court denies Nissen's motions.
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."); Nissen's MTD, and the evidence introduced at trial. The Court must, in deciding most of Nissen's post-trial motions, construe the trial evidence in the light most favorable to the United States. The Court therefore will be stating largely the United States' version of events, as supported by the trial evidence.
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 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 near mile marker 194 on Interstate 40, and that, after the stop, he called NM State Police dispatch 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 Bernalillo County Sheriff's Deputies that 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.
A federal Grand Jury 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).
The Court held a jury trial on August 6 and 7, 2019. See Transcript of Jury Trail Volume 1 at 4:6-9 (taken August 6, 2019)(Court), filed December 5, 2019 (Doc. 94)("Aug. 6 Tr."); Transcript of Jury Trial Volume 2 at 79:1-6 (taken August 7, 2019)(Court), filed December 5, 2019 (Doc. 95)("Aug. 7 Tr."). At the close of the United States' case in chief, Nissen moved for a directed verdict. See Aug. 7 Tr. at 5:15-17 (Mkhitarian). Nissen first asserted an argument under the First Amendment to the Constitution of the United States, averring that the NM State Policeofficers "agreed that Nissen was making political arguments with regard to their jurisdiction over him." Aug. 7 Tr. at 5:18-20 (Mkhitarian). Nissen argued that he made his statements "in regard to future violations, not unlike threats that are made every day, [for example] 'if you break into my house you know I will kill you,' things like [these] are made every day and are protected by free speech." Aug 7. Tr. at 6:4-10 (Mkhitarian). On this point, Nissen also observed that "no...
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