United States v. Weiss, Case No. 20-cr-00013-CRB-1
| Court | United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California |
| Writing for the Court | CHARLES R. BREYER, United States District Judge |
| Citation | 475 F.Supp.3d 1015 |
| Parties | UNITED STATES of America, Plaintiff, v. Howard WEISS, Defendant. |
| Docket Number | Case No. 20-cr-00013-CRB-1 |
| Decision Date | 28 July 2020 |
475 F.Supp.3d 1015
UNITED STATES of America, Plaintiff,
v.
Howard WEISS, Defendant.
Case No. 20-cr-00013-CRB-1
United States District Court, N.D. California.
Signed July 28, 2020
Christina T. Liu, United States Attorney's Office, San Francisco, CA, for Plaintiff.
Angela Chuang, Office of the Federal Public Defender, San Francisco, CA, for Defendant.
ORDER GRANTING MOTION TO DISMISS INDICTMENT
CHARLES R. BREYER, United States District Judge
Over the course of a year, Defendant Howard Weiss anonymously sent eight vitriolic messages to Senate Majority Leader Mitch McConnell through the Senator's official website contact form. Weiss is charged with harassing use of a telecommunications device, a violation of 47 U.S.C. § 223(a)(1)(C). See Indictment (dkt. 1). He now brings a motion to dismiss the indictment, arguing that Section 223(a)(1)(C) is unconstitutional both on its face and as applied to him. Mot. (dkt. 15). Weiss's messages were hateful, violent, and racist, but they were also protected speech. The statute is unconstitutional as applied to him. Accordingly, the Court grants the motion and dismisses the indictment.
I. BACKGROUND
Senator McConnell's official website invites the public to contact him electronically through a fillable form. Chuang Decl. Ex. A (Senate Form) (dkt. 16-1). The website states, "I welcome your thoughts and concerns and would like to encourage you to share them with me." Id. It adds, "I look forward to hearing from you!" Id. Between October 2018 and October 2019, Weiss, using fictitious aliases, wrote eight messages through the online contact form. See Chuang Decl. Ex. B (Indicted Messages) (dkt. 16-2). To put it mildly, the messages expressed Weiss's intense displeasure with Senator McConnell's politics and the ill well he feels toward Senator McConnell. Id.
A. October 2, 2018 Email
On October 2, 2018, Weiss, who lives in the Northern District of California, used his cell phone to send an email to Senator McConnell through the Senator's online form. Opp'n Ex. A1 (dkt. 19-2); Opp'n Ex. A11. He later explained that he used Kentucky aliases to ensure that the Senator would receive the emails. Opp'n Ex. A11 at 1:13–1:25. The October 2, 2018 email states:
Ms. Sylvia Buccatini
76623 Sylvan Ave
Louisville, Kentucky 40025
5027773443 (H)
turtletheresistancewillbtherefritokillu@hotmail.com
10/2/18
73.162.224.166
turtle,
If you push this for Friday, the resistance is coming to DC to slash your throat. You will die in thestreet by DC resistance motherfucker!!!!!
You will not live to regret it!!!!!!
Opp'n Ex. A1. In a November 2019 interview with law enforcement, Weiss admitted to sending the email and stated that his intent was to harass Senator McConnell. Ex. A11 at 5:19–30, 3:11–3:20, 3:27–4:44.
B. October 22, 2018 Email
On October 22, 2018, Weiss used his cell phone to send an email to Senator McConnell through the form using another alias:
Airman Mitchell Valenti
1234 Repubmotherfucker Ave
Resistance, Kentucky 00637
7778880022 (H)
criminalturtleisdone@deadrepublican.net
< IP>73.162.224.166< /IP>
turtle cum drinker, The yelling resistance should have put a bullet in your head and then kill all the people you love!
Opp'n Ex. A2 (dkt. 19-3); Opp'n Ex. A11 at 4:50–5:17, 6:40–6:45 (Weiss admitting he sent emails via cell phone). Weiss stated that his intent in sending the email was to harass Senator McConnell. Opp'n Ex. A11 at 3:11–3:20, 3:27–4:44. In November of 2018, Weiss spoke with a law enforcement officer about his October 22, 2018 email. Opp'n Ex. A9 (dkt. 19-10). The officer suggested that Weiss be "mindful" because people could interpret his email as a threat. Id. at 6:15–6:45.
C. January 3, 2019 Email
On January 3, 2019, Weiss used his cell phone to send an email to Senator McConnell through the form, using an alias, without revealing his identity, and intending to harass the Senator:
Brigadier General Salvatore Giovanni
11306 Bodley Drive
Louisville, Kentucky 40223-1339 KY03
5026379945 (H)
gofuckurself@hotmail.com
Date: 1/3/2019 8:59:54 PM
Subject: Your intelligence is zero
< IP>73.162.224.166< /IP>
< ISSUE>INTELLIGENCE< /ISSUE>
< MSG>You motherfucking scumbag crook turtle
Go fuck yourself. I have been furloughed and you heartless bastard could give a shit. You fucking criminal. Someone needs to kill you!
You are going to lose next election and we will get rid of your satanic evil ass you loser fuckhead< /MSG>
Opp'n Ex. A3 (dkt. 19-4) (excerpted); Ex. A11 at 3:11–3:20, 3:27–4:44, 4:50–5:17, 6:40–6:45.
D. April 9, 2019 Email
On April 9, 2019, Weiss used his cell phone to send an email to Senator McConnell through the form, using an alias from Kentucky and with the intent to harass the Senator:
Date: Tue, 9 Apr 2019 14:11:31-0400 (EDT)
From: no-reply@mcconnell.senate.gov
To: webmail@mcconnell-iq.senate.gov
Message-ID: 357306803.8297.1554833491900@localhost
Subject: You are a criminal Russian asset
< IP>73.162.224.166< /IP>
< APP>SCCMAIL
< PREFIX>Dr.< /PREFIX>
< FIRST>Jehova< /FIRST>
< LAST>Stark< /LAST>
< ADDR1>733 N. Barbee Way< /ADDR1>
< ADDR2>< /ADDR2>
< CITY>Louisville< /CITY>
< STATE>KY< /STATE>
< ZIP>40025< /ZIP>
< PHONE>5024597761< /PHONE>
< EMAIL>TheResistancewillexecuterepubs@fahrenheit.com< /EMAIL>
< ISSUE>CRIME< /ISSUE>
< MSG>Turtle,
You motherfucking chinc lover, russian paid scumbag. With your fucking chinc father-in-law bank rolling you. You fucking animal better get ready for the biggest loss of your shitty heartless evil toxic life.
We know you will believe this is just unimportant bullshit, however you better not.
< /MSG>
< /APP>
Opp'n Ex. A4 (dkt. 19-5) (excerpted); Ex. A11 at 3:11–3:20, 3:27–4:44, 4:50–5:17, 6:40–6:45. In May 2019, Weiss met with law enforcement to discuss the April 9, 2019 email. Opp'n Ex. A10 (dkt. 19-11). He explained that his email was about the "elections coming up" and the "D.C. Resistance," and how the Resistance is against the President, the cabinet, and the Republican Congress. Id. at 2:05–2:11, 3:04–3:12. The officer told him to "be mindful." Id. at 4:05–4:25.
E. June 5, 2019 Email
On June 5, 2019, Weiss used his cell phone and a fictitious alias to send the following email to Senator McConnell:
6/5/2019 10:30:31 PM
73.162.224.166
Brigadier General John Favreau
1801 Sulgrave Road
Louisville, Kentucky 40205-1645 KY03
5023547790 (H)
fuckyouturtlescum@fairfield.net
Subject: Losers will die turtle,
Go fuck yourself you fucking criminal motherfucker.
In 2020, You are fucking a closed case. You are a fucking dog who will be put down!!!
The Kentucky Resistance is going to hang you by your pussy lips and punish you for what you think you got away this. Your consequential decision will afford you the most torture you will ever endure. scalia was the biggest asshole in the judicial system ever.
Opp'n Ex. A5 (dkt. 19-6); Opp'n Ex. A11 at 4:50–5:17, 6:40–6:45. He later admitted (when asked whether it was a threat or harassment) that his intent was harassment. Opp'n Ex. A11 at 3:11–3:20. He explained that he was not motivated by what Senator McConnell had done to him but by what the Senator was doing to "the world, and our politics and our government and he's a piece of shit." Id. at 3:30–3:43.
F. June 19, 2019 Email
On June 19, 2019, Weiss used his cell phone to send Senator McConnell the following message:
Chief Master Sergeant Jedediah MacNamara
1801 Sulgrave Road
Louisville, Kentucky 40205-1645 KY03
502.875.9343 (H)
youfuckingchinklover@sinclair.com
Date: 6/19/2019 11:59:35 PM
Subject: The 2020 election
< IP>73.162.224.166< /IP>
< ISSUE>OTHER< /ISSUE>
< MSG>You racist fucking criminal chinc loving motherfucker.
You are going down in2020 and then you will suffer the consequences and they will burn your life down!< /MSG>
Opp'n Ex. A6 (dkt. 19-7); Opp'n Ex. A11 at 4:50–5:17, 6:40–6:45. He did so with the intent to harass Senator McConnell. Opp'n Ex. A11 at 3:11–3:20, 3:27–4:44.
G. July 19, 2019 Email
On July 19, 2019, Weiss used his cell phone and a fictitious alias to send the following email to Senator McConnell with harassing intent:
Colonel Alfonso Fujimori
1801 Sulgrave Road
Louisville, Kentucky 40205-1645 KY03
502-577-9033 (H)
mcconnellufuckinggookfucker@hotmail.com
Subject: We need your chink whore to go back
"To where the fucking gook came from. You motherfucking racist scum. The Kentucky Resistance says they are going to cut your throat from ear to ear and then your gook wife's."
Opp'n Ex. A7 (dkt. 19-8); Opp'n Ex. A11 at 3:11–3:20, 3:27–4:44, 4:50–5:17, 6:40–6:45.
H. October 16, 2019 Email
On October 16, 2019, Weiss used his cell phone to send the following email to Senator McConnell:
Ms....
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