United States v. Sabagh

• Docket Number: CRIMINAL ACTION 21-261
• Decision Date: 15 December 2021
• Parties: UNITED STATES OF AMERICA v. BEHZAD SABAGH
• Court: U.S. District Court — Eastern District of Pennsylvania

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UNITED STATES OF AMERICA v. BEHZAD SABAGH

CRIMINAL ACTION No. 21-261

United States District Court, E.D. Pennsylvania

December 15, 2021

MEMORANDUM OPINION

WENDY BEETLESTONE, J.

In 2019, Defendant Behzad Sabagh and others were charged with crimes related to the payment of bribes to the Philadelphia Sheriff's Office. One of the defendants (hereinafter “the Cooperating Witness”) pled guilty and cooperated with the Government against other individuals including Defendant. Defendant was convicted and sentenced to one month in prison and three years of supervised release. Meanwhile, as alleged in the indictment, the Cooperating Witness's sentencing hearing was scheduled for December 18, 2019, but postponed twice, first to February 20, 2020 and then to March 6, 2020. After Sabagh's release, around the time of each scheduled sentencing hearing of the Cooperating Witness, Sabagh sent the Cooperating Witness a provocative text message.

These texts form the basis of a new indictment against Defendant. The indictment charges nine counts of retaliation against a witness, in violation of 18 U.S.C. § 1513(b)(2). Each retaliation count in the indictment sets forth the text of a message the Defendant sent to the Cooperating Witness and alleges that the Defendant knowingly engaged in conduct which threatened to cause bodily injury to the Cooperating Witness 1 and his family, with the intent to retaliate against to the Cooperating Witness for information he provided to law enforcement relating to Sabagh's federal crimes. In Count Ten, the Defendant is charged with tampering with a witness based on the same text as in Count Nine, in violation of 18 U.S.C. § 1512(b)(2)(D).

Defendant now moves to dismiss the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) for failure to state an offense on the grounds that the context of the text messages do not contain a “threat” to do “bodily injury” within the meaning of the statutory provisions pursuant to which he was charged. For the reasons that follow, Defendant's Motion to Dismiss Counts One Through Ten of the Indictment will be granted as to Count Ten and denied as to Counts One through Nine.

B. LEGAL STANDARDS

A defendant may bring a motion to dismiss an indictment for failure to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). A court's review of such a motion is “a narrow limited analysis geared only towards ensuring that legally deficient charges do not go to a jury.” United States v. Bergrin, 650 F.3d 257, 268 (3d Cir. 2011). The factual allegations set forth in the indictment must be accepted as true. Id. “A ruling on a motion to dismiss is not . . . ‘a permissible vehicle for addressing the sufficiency of the government's evidence.'” Id. at 265 (quoting United States v. DeLaurentis, 230 F.3d 659, 660-61 (3d Cir. 2000)). “Evidentiary questions-such as credibility determinations and the weighing of proof-should not be determined at this stage.” Id. (internal quotations and alterations omitted). Any challenge to the sufficiency of the indictment must “be decided based on the facts alleged within the four corners of the indictment not the evidence outside of it.” United States v Vitillo, 490 F.3d 314, 321 (3d Cir. 2007). “Thus, a district court's review of the facts set forth in the indictment is limited to determining whether, assuming all of those [allegations] as true, a jury could find that the defendant committed the offense for which he was charged.” United States v. Huet, 665 F.3d 588, 595-96 (3d Cir. 2012), cert denied, 568 U.S. 941 (2012), abrogation on other grounds recognized by United States v. Boyd, 999 F.3d 171 (3d Cir. 2021). An indictment “fails to state an offense if the specific facts [it] allege[s] fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.'” Bergrin, 650 F.3d at 264-65 (quoting United States v. Panarella, 277 F.3d 678, 685 (3d Cir. 2002)). “To avoid violating the First Amendment, threat statutes must be read to criminalize only ‘true threats.'” United States v. C.S., 968 F.3d 237, 244 n.7 (3d Cir. 2020).

Defendant argues that the indictment fails to state an offense because the alleged communications do not constitute “true threats” within the meaning of 18 U.S.C. § 1513(b)(2) or 18 U.S.C. § 1512(b)(2)(D).^[1] Thus, in this case, the indictment may properly be dismissed “as a matter of law if [the Court] concludes that no reasonable jury could find that the alleged communication constitutes . . . a true threat.” United States v. Stock, 728 F.3d 287, 298 (3d Cir. 2013) (citing Huet, 665 F.3d at 596).

True threats are those which “communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). The “prohibition on true threats ‘protect[s] individuals from the fear of violence' and ‘from the disruption that fear engenders,' in addition to protecting people ‘from the possibility that the threatened violence will occur.'” Id. at 360 (alteration in original). Thus, while a statement that refers only to past conduct or intent is not a true threat, Stock, 728 F.3d at 300, using past incidents to instill fear in future targets can be a true threat. Fullmer, 584 F.3d at 156 (after animal rights activists assaulted the executive of a research corporation that tested products on animals, displaying photos of his injuries on protest placards constituted a true threat that “rightly instilled fear in the listeners”). Even conditional statements can constitute true threats. See Kosma, 951 F.2d at 554 n.8 (letters inviting President Reagan to Philadelphia on a certain date for a “21 Gun-Salute” that would “put bullets thru [his] heart & brains” constituted true threats, even if “truly conditional” on his acceptance of the “invitation”); United States v. Elonis, 730 F.3d 321, 334 (3d Cir. 2013) (reasonable jury could find that statement threatening to use explosives on police if they sought to enforce protective order constituted true threat), overruled on other grounds by 575 U.S. 723 (2015); Stock, 728 F.3d at 300 (jury could reasonably find that statement implying that the speaker would kill his intended victim if only he could find him was a true threat). Hyperbole, by contrast, will typically not amount to a true threat. Thus, when a Vietnam war protestor declared, “[i]f they ever make me carry a rifle the first man I want to get in my sights is [President Johnson], ” he was engaging in political hyperbole, not issuing a true threat against the President's life. Watts v. United States, 394 U.S. 705, 707-08 (1969) (considering the context (a political rally), the “expressly conditional nature of the statement” (the speaker vowed he would not report for the draft) and the listeners' reaction (laughter)); Cf. United States v. Kosma, 951 F.2d 549 (3d Cir. 1991) (menacing letters sent directly to President constituted true threats).^[2]

“In deciding whether speech constitutes a ‘true threat,' a court should consider the totality of the circumstances and not just the words in isolation, whether the threat is ‘conditional,' and the reaction of the listeners.” Fullmer, 584 F.3d at 154. While the question of whether a communication constitutes a “true threat” is generally a matter for the jury, a “few cases may be so clear . . . that they can be resolved as a matter of law.” Stock, 728 F.3d at 298 (quoting Kosma, 951 F.2d 549, 555 (3d Cir. 1991)).

C. DISCUSSION

(1) Counts One to Nine

The first nine counts of the indictment charge Defendant with retaliating against a witness by “knowingly engag[ing] in conduct which threatened to cause bodily injury” to the Cooperating Witness and, in some instances, to his family, “with the intent to retaliate against [the Cooperating Witness] for information given by [the Cooperating Witness] to a law enforcement officer relating to defendant SABAGH's commission of a Federal offense” under 18 U.S.C. § 1513(b)(2). In its opposition brief, the Government alleges that Sabagh “used phone numbers that he obtained through apps to send the threatening text messages anonymously.” The indictment, however, does not make this allegation and it therefore cannot be assumed as true. Nevertheless, in cases where it is apparent from the face of the exchange that the Cooperating Witness did not know the identity of the sender, that circumstance will be taken into account.

The elements of a Section 1513(b)(2) charge here are:^[3] (1) that Sabagh knowingly engaged in conduct; (2) that such conduct caused or threatened to cause bodily injury to the Cooperating Witness and/or his family; and, (3) that Sabagh acted with specific intent to retaliate against the Cooperating Witness for providing information to law enforcement relating to the commission or possible commission of a Federal offense. See Mod. Crim. Jury Instr. 3rd Cir. 6.18.1513B (2021). In their briefs, the parties do not carefully parse out the applications of each of these elements to the allegations of the indictment.

Count One of the indictment charges Defendant with threatening bodily injury by sending to the Cooperating Witness 1 a picture of a man inside a jail cell followed by the words “Wash your ass.” This text was sent on December 17, 2019, the day before the Cooperating Witness's first-scheduled sentencing hearing. Defendant concedes that these words were a “reference to the fact that [the Cooperating Witness] may be sexually violated if incarcerated, ” but avers that the communication does not constitute a threat because the Cooperating Witness's incarceration was speculative and out of Defendant's control. This argument fails, however, because “[t]here is no rule that conditional...