United States v. Saul

• Decision Date: 06 May 2020
• Docket Number: 8:19CR311
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. BRET SAUL, Defendant.
• Court: U.S. District Court — District of Nebraska

UNITED STATES OF AMERICA, Plaintiff, v. BRET SAUL, Defendant.

8:19CR311

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEBRASKA

May 6, 2020

MEMORANDUM AND ORDER

This matter is before the Court on the Findings and Recommendation (Filing No. 37) of the magistrate judge¹ recommending the Court deny defendant Bret Saul's ("Saul") Motion to Dismiss (Filing No. 19). See Fed. R. Crim. P. 12(b)(3)(B). Saul objects (Filing No. 40) to the Findings and Recommendation. For the reasons stated below, Saul's objections are overruled and the Motion to Dismiss is denied.

I. BACKGROUND

On September 18, 2019, a grand jury charged Saul in a one-count indictment (Filing No. 1) with transmitting a threat in interstate or foreign commerce, in violation of 18 U.S.C. § 875(c). The Indictment states:

On or about the 23rd day of August, 2019, in the District of Nebraska, [Saul], knowingly and willfully did transmit in interstate or foreign commerce a communication, to wit: a status post on Facebook, and the communication contained a threat to kidnap or injure, specifically, a threat to commit a mass shooting on the Santee Sioux Indian Reservation.

On November 21, 2019, Saul moved to dismiss the Indictment for failing to allege (1) the essential elements of § 875(c), (2) sufficient allegations of materiality, and(3) language that is a "true threat" and not protected by the First Amendment of the United States Constitution. The government resisted (Filing No. 25) Saul's motion.

On December 10, 2019, the grand jury charged Saul in a two-count superseding indictment (Filing No. 26) with (1) transmitting a threat in interstate or foreign commerce under § 875(c) and (2) making terrorist threats, in violation of 18 U.S.C. §§ 1153 and 13 and Nebraska Revised Statutes §§ 28-311.01(1), (2) and 28-105(1). Count I of the Superseding Indictment states

On or about the 23rd day of August, 2019, in the District of Nebraska, [Saul], knowingly and willfully did transmit in interstate or foreign commerce a communication, to wit: a status post on Facebook, and the communication contained a threat to kidnap and injure others, specifically, "Some1 borrow me a gun and a couple hundred rounds of ammo. Wanna get in on this whole mass shooting craze before it dies down. Everybody getting shot at least once. Myself included."

Count II asserts that, on the same date,

[W]ithin the boundaries of the Santee Sioux Indian Reservation in the District of Nebraska in Indian country, [Saul], an Indian male, did threaten to commit a crime of violence, to wit: a mass shooting, with intent to terrorize others, with the intent of causing the evacuation of a building, place of assembly, or facility of public transportation, and in reckless disregard of the risk of causing such terror or evacuation.

On January 3, 2020, the magistrate judge held a hearing on the Motion to Dismiss. At that hearing, Saul made orally moved to amend his Motion to Dismiss to include the Superseding Indictment, which the magistrate judge granted. Saul contended his arguments for dismissal went to both Counts I and II of the Superseding Indictment.

After the hearing, the magistrate judge issued the Findings and Recommendation as to the Superseding Indictment only. The magistrate judge found Count I of the Superseding Indictment properly charged the essential elements of § 875(c) and determined the trier offact had to decide whether the Facebook post constituted a "true threat" for First Amendment purposes. The magistrate judge further found Count II of the Superseding Indictment "mirrors the statute and fairly informs [Saul] of the charges against which he must defend." In short, the magistrate judge concluded "[t]he Superseding Indictment fairly informs [Saul] of the charges against him and provides sufficient information to allow him to plead a conviction or acquittal as a bar to a subsequent prosecution." The magistrate judge did not address the Indictment.

After the Court granted Saul an extension of time to respond to the Findings and Recommendation, on March 19, 2020, Saul filed his objections. Saul stated the magistrate judge erred in finding (1) the Superseding Indictment "substantially states the mens rea element" and (2) "to the finding that the [Facebook post] fails to constitute a threat as a matter of law."² Saul did not object to the magistrate judge's findings on the First Amendment or that Count II tracks the statutory language.

Because the magistrate judge did not address the Indictment in the Findings and Recommendation, on May 1, 2020, the Court referred this matter back to the magistrate judge to deal with that issue (Filing No. 43). See United States v. Yielding, 657 F.3d 688, 703 (8th Cir. 2011) (explaining an original indictment is still viable even after a superseding indictment is filed unless the original indictment is dismissed). That same day, the government filed a Motion to Dismiss (Filing No. 44) without prejudice the Indictment, see Fed. R. Crim. P. 48(a), rendering moot the Court's directive to the magistrate judge. The Court finds the government's Motion to Dismiss the Indictment without prejudice should be granted, and the Court will now address the findings and recommendation on the Superseding Indictment.

II. DISCUSSION

A. Standard of Review

Under 28 U.S.C. § 636(b)(1)(B), the Court may designate a magistrate judge to submit "proposed findings of fact and recommendations for the disposition" of motions to dismiss. If a party timely objects, Court must "make a de novo determination of those portions of the . . . specified proposed findings or recommendations to which objection is made." Id. § 636(b)(1); see also Fed. R. Crim. P. 59; NECrimR 59.2(a) ("The party must specify (1) the parts of the . . . findings and recommendations to which [they] object and (2) the legal basis of the objections. . . . A party's failure to state a legal argument supporting objections . . . may be considered an abandonment of the party's objection."). The Court may then "accept, reject, modify, in whole or in part, the findings or recommendations by the magistrate judge." 28 U.S.C. § 636(b)(1).

B. The Sufficiency of the Superseding Indictment

An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged." Fed. R. Crim. P. 7(c)(1). "An indictment is legally sufficient on its face if it contains all of the essential elements of the offense charged, fairly informs the defendant of the charges against which [he] must defend, and alleges sufficient information to allow a defendant to plead a conviction or acquittal as a bar to subsequent prosecution." United States v. Flute, 929 F.3d 584, 587 (8th Cir. 2019) (quoting United States v. Fleming, 8 F.3d 1264, 1265 (8th Cir. 1993)).

The Court must view an indictment practically, "as a whole, and not hypertechnically." United States v. Goodman, 4:18-CV-3092, 2019 WL 1533298, *1 (D. Neb. April 9, 2019). The Court tests the indictment "solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Good, 386 F. Supp. 3d 1073, 1083 (D. Neb. 2019) (quoting United States v. Hall, 20 F.3d 1084, 1087 (10th Cir. 1994)). In other words, the Court does not consider evidence outside of the four corners of an indictment itself. See id.

An indictment need not use "a particular word or phrase," so long as it alleges a valid offense and substantially states the elements. United States v. White, 241 F.3d 1015, 1021 (8th Cir. 2001). An indictment is usually sufficient unless it is "so defective that it cannot be said, by any reasonable construction, to charge the offense." United States v. Palmer, 917 F.3d 1035, 1039 (8th Cir. 2019) (quoting United States v. Mann, 701 F.3d 274, 288 (8th Cir. 2012)).

Although an indictment need not state the specific words of the statute, an indictment that tracks the statutory language is normally sufficient. See United States v. Jawher, 950 F.3d 576, 579 n.2 (8th Cir. 2020); see also United States v. Buchanan, 574 F.3d 554, 565 (8th Cir. 2009) ("An indictment need not use the precise language in the statute as long as the Indictment, 'by fair implication,' alleges an offense recognized by the law." (quoting United States v. Mallen, 843 F.2d 1096, 1102 (8th Cir. 1988))).

1. Count I

Count I of the Superseding Indictment charges Saul with violating § 875(c) which prohibits "transmit[ting] in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another." In Elonis v. United States, 575 U.S. 723, ___, 135 S. Ct. 2001, 2012-13 (2015), the Supreme Court held § 875(c) requires proof of a defendant's mental state to separate wrongful conduct from innocent conduct. Section 875(c) is satisfied with "proof that the defendant made the communication with the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat."³ United States v. Harper, 869 F.3d 624, 626 (8th Cir. 2017).

Accordingly, the essential elements for an offense under § 875(c) are

(1) transmission of a communication in interstate commerce; (2) the existence therein of a threat to [kidnap or] injure the person of another; and (3) the defendant's possession of either the purpose to issue a threat or the knowledge that the communication would be viewed as a threat.

United States v. Dierks, No. 17-CR-2065-LRR, 2017 WL 4873067, *2 (N.D. Iowa Oct. 27, 2017).

Here, Saul concedes Count I sufficiently alleges the first element, which his Facebook post "obviously satisfie[s]." But Saul contends Count I falls short on the second and third elements.

The way Saul sees it, "[t]he question here is whether the language used by Mr. Saul in his Facebook post constitutes a crime." He "asserts that [Count I of] the Superseding Indictment does not allege [he] made a 'threat' [under the second element] or that he had the specific mens rea intent" under the third...