United States v. Stock

• Decision Date: 26 August 2013
• Parties: UNITED STATES OF AMERICA v. ADRIAN PETER STOCK, Appellant
• Court: U.S. Court of Appeals — Third Circuit

UNITED STATES OF AMERICA v. ADRIAN PETER STOCK, Appellant

No. 12-2914

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued May 14, 2013

Filed: August 26, 2013

PRECEDENTIAL

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C.No. 2-11-cr-00182-001)

District Judge: Honorable Nora B. Fischer

Before: SMITH, FISHER and CHAGARES, Circuit JudgesElisa A. Long, Esq.(ARGUED)

Office of the Federal Public Defender

Counsel for Appellant

Rebecca R. Haywood, Esq.

Laura S. Irwin, Esq.(ARGUED)

Office of the United States Attorney

Counsel for Appellee

OPINION OF THE COURT

FISHER, Circuit Judge.

Adrian Peter Stock appeals from the District Court's order denying his motion to dismiss his indictment under Federal Rule of Criminal Procedure 12(b)(3)(B) for failure to state the offense of transmitting a threat in interstate commerce under 18 U.S.C. § 875(c).Stock argues that the term "threat" means the expression of an intent to inflict injury in the present or future, and that the statement attributed to him does not meet that definition.For the reasons stated below, we will affirm.

I.¹

On August 3, 2011, Stock was charged in a one-count indictment that alleged:

"On or about February 9, 2011, in the Western District of Pennsylvania, the defendant, ADRIAN PETER STOCK, did knowingly and willfully transmit in interstate commerce a communication containing a threat to injure the person of another, that is, the defendant, ADRIAN PETER STOCK, posted a notice on Craig's List, an Internet web site, that contained the following statements, among others,

i went home loaded in my truck and spend the past 3 hours looking for this douche with the expressed intent of crushing him in that little piece of shit under cover gray impala hooking up my tow chains and dragging his stupid ass down to creek hills and just drowninghim in the falls. but alas i can't fine that bastard anywhere . . . i really wish he would die, just like the rest of these stupid fucking asshole cops. so J.K.P. if you read this i hope you burn in hell. i only wish i could have been the one to send you there.

In violation of Title 18, United States Code, Section 875(c)."

App.at 50.

Stock moved to dismiss his indictment under Rule 12(b)(3)(B)² for failure to state an offense, arguing that his alleged statement did not constitute a threat under § 875(c) as a matter of statutory interpretation, but disclaiming any FirstAmendment challenge.³After holding a hearing and ordering supplemental briefing, the District Court denied Stock's motion to dismiss.Although the District Court concluded that a threat must evince an intent to injure in the present orfuture, the court also determined that a reasonable jury could find that Stock's statement was a threat.

Stock then executed a plea agreement with the Government pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), in which he generally waived his appellate rights, but specifically preserved his right to seek review of the District Court's denial of his motion to dismiss.The District Court accepted Stock's guilty plea and imposed a term of imprisonment of one year and one day and a term of supervised release of two years.Stock timely appealed.

II.

The District Court had jurisdiction over Stock's case under 18 U.S.C. § 3231, and we have jurisdiction over his appeal under 28 U.S.C. § 1291.

We apply a mixed standard of review to a district court's decision on a motion to dismiss an indictment, exercising plenary review over legal conclusions and clear error review over factual findings.United States v. Huet, 665 F.3d 588, 594(3d Cir.2012).In this appeal, Stock attacks the sufficiency of his indictment, presenting a legal question over which we have plenary review.United States v. McGeehan, 584 F.3d 560, 565(3d Cir.2009), vacated on other grounds, 625 F.3d 159, 159(3d Cir.2010).In particular, Stock challenges the sufficiency of his indictment on the basis that the specific facts alleged therein fall outside the scope of the relevant criminal statute as a matter of statutory interpretation, and statutory interpretation is a legal question over which we have plenary review.United States v. Zavrel,384 F.3d 130, 132(3d Cir.2004).Therefore, we exercise plenary review over this appeal.

III.

In this appeal, both parties ascribe errors to the District Court's opinion.The Government argues that the indictment is facially sufficient and that the term "threat" in § 875(c) does not include a temporal element.Stock, in turn, asserts that the issue of whether his statement is a threat is a question of law and that his statement does not express an intent to injure in the present or future.We address these points below.

A.

In reviewing Stock's motion to dismiss, the District Court considered whether the word "threat" in § 875(c) contains a temporal component.The Government argues that this analysis was unnecessary because Stock's indictment is facially sufficient.We disagree.

Under Federal Rule of Criminal Procedure 7(c)(1), an indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged."It is true that "[a]n indictment returned by a legally constituted and unbiased grand jury, . . . if valid on its face, is enough to call for trial of the charge on the merits."Huet, 665 F.3d at 594-95(emphasis omitted)(quotation omitted).A facially sufficient indictment "(1) contains the elements of the offense intended to be charged, (2) sufficiently apprises the defendant of what he must be prepared to meet, and(3) allows the defendant to show with accuracy to what extent he may plead a former acquittal or conviction in the event of a subsequent prosecution."Id. at 595(quotation omitted).Usually, a recitation of the statutory language satisfies the first requirement, "so long as there is sufficient factual orientation to permit a defendant to prepare his defense and invoke double jeopardy."Id.(quotation omitted).And typically, a factual orientation that includes a specification of the time period of the alleged offense is sufficient for the second and third requirements.Id.In short, "detailed allegations" are unnecessary.Id. at 594.

Under Rule 12(b)(3)(B), a defendant may contest the sufficiency of an indictment on the basis that it "fails . . . to state an offense" in at least two ways.First, a defendant may contend that an indictment is insufficient on the basis that it does not satisfy the first requirement in that it "fails to charge an essential element of the crime."Huet, 665 F.3d at 595(citation omitted).Second, because an indictment that merely "recites in general terms the essential elements of the offense" does not satisfy the second and third requirements, a defendant may also claim that an indictment fails to state an offense on the basis that "the specific facts alleged . . . fall beyond the scope of the relevant criminal statute, as a matterof statutory interpretation."⁴United States v. Panarella, 277 F.3d 678, 685(3d Cir.2002).

The Government asks us to ignore the statutory interpretation issue because, according to the Government, the indictment is facially sufficient.The Government relies on Huet, in which we were asked to decide whether a district court may find facts in ruling on a motion to dismiss an indictment for failure to state an offense under Rule 12(b)(3)(B).Responding in the negative, we reversed the district court's dismissal of the indictment, which we concluded was facially sufficient.

However, Huetis distinguishable because the "only potential question of statutory interpretation" in that case was "not at issue on appeal."665 F.3d at 597 n.7.For that reason, we had no need to address "whether the facts alleged in the indictment f[e]ll beyond the scope of the relevant criminal statute as a matter of statutory interpretation."Id. at 597(citing, inter alia, Panarella, 277 F.3d at 685).Nonetheless, we reaffirmed that a defendant may attack the sufficiency of an indictment on that basis.Id. at 595.

Here, Stock is making the unmade challenge in Huet- namely, that "as a matter of law, the indictment fails to state an offense,"Opening Br.at 13, because "the statements alleged in the indictment are not 'threats' and thus fall beyond the scope of 18 U.S.C. § 875(c),"id. at 12.Our precedent has recognized such attacks as an appropriate, alternative way in which to challenge the sufficiency of an indictment.SeeMcGeehan, 584 F.3d at 565("The sufficiency of an indictment may be challenged not only on the basis that it fails to charge the essential elements of the statutory offense, but also on the ground that 'the specific facts alleged . . . fall beyond the scope of the relevant criminal statute, as a matter of statutory interpretation.'"(emphasis added)(quotingPanarella, 277 F.3d at 685)).Thus, the District Court did not err in considering whether the term "threat" in § 875(c) includes a temporal element, a question to which we now turn.

B.

The District Court concluded that the word "threat" in § 875(c) means an '"express[ion of] an intention to inflict injury at once or in the future.'"App.at 10(quotingZavrel,384 F.3d at 136).⁵The Government counters that, under controlling precedent, the term "threat" in § 875(c) is "astatement made by a speaker who 'means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group.'"Response Br.at 28(quotingVirginia v. Black, 538 U.S. 343, 359(2003)).We hold that the word "threat" in § 875(c) encompasses only communications expressing an intent to inflict injury in the present or future.

The Government's proffered definition of the word "threat" is pulled from precedent concerning whether certain communications constitute "true threats" unprotected by the First Amendment.The Supreme Court's true threat jurisprudence originated in Watts v. United States, 394 U.S....