United States v. Khan

937 F.3d 1042

UNITED STATES of America, Plaintiff-Appellee,

v.Mohammad Waqas KHAN, Defendant-Appellant.

No. 18-2612

United States Court of Appeals, Seventh Circuit.

Argued May 23, 2019

Decided September 3, 2019

Andrianna D. Kastanek, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Chicago, IL, for Plaintiff-Appellee.

Daniel R. Schwartz, Brian Borchard, Attorneys, KIRKLAND & ELLIS LLP, Chicago, IL, for Defendant-Appellant.

Before Bauer, Manion, and Brennan, Circuit Judges.

Brennan, Circuit Judge.

Digital platforms unleash instant and limitless capabilities; at the tap of a finger, one can touch the world. That power and freedom enables many noble pursuits. But, as this case shows, underneath the promise of modern connectivity can lurk a dark side.

Over a seven-week span, Mohammad Khan used Facebook and his job as an Uber driver to threaten and prepare for mass murder. He posted messages threatening to "kill," "shoot," "hunt," "murder," and "put bullets in" his "targets." Khan’s "targets" included "college student[s]," "vulnerable individuals," people "walking their dogs," "high net worth individual[s]," and "witnesses" that "get [in] the way." He aimed for "a real human tragedy" and "claim[ed] the loop area of Chicago to the Northern Lincoln Park area" as his "free kill zone." Worse, Khan planned to "purchase a [G]o[P]ro camera, strap it to [his] chest or forehead, record the killings, and upload them onto Facebook for everyone around the world to see the grisly footage of death."

Khan also drove for Uber. He posted messages about "dry run[s]" and carrying a loaded gun during shifts to prepare for "necessary murders"—in fact, several of his threatening posts occurred immediately before and after driving passengers. To add credence to his threats, Khan boasted his "mental fortitude to pull it off," posted photos of himself holding the guns he would use, and "sw[ore] to Allah and everything I hold dear that I will resort to murder in the next 30 days." That thirty-day deadline corresponded with the date Khan was to fly to Pakistan.

Khan used Facebook to draw the public into his world; instead he drew the attention of the FBI. His words and actions resulted in an indictment for making interstate threats to injure others, a violation of 18 U.S.C. § 875(c). At trial, Khan claimed his statements were not "true threats." A jury disagreed and convicted him.

Khan challenges his conviction, arguing that the government’s indictment and evidence against him were insufficient. He also challenges the jury instructions for the § 875(c) charge and the district court’s refusal to suppress all evidence leading to his arrest. Neither challenge is persuasive, so we affirm.

I

What prompted Khan’s graphic posts? Three sources stand out. First, a pedestrian sued Khan and Uber after a traffic accident. Khan construed the lawsuit and related insurance claims process as "senseless provocations." Second, he believed "noise pollution around [his] house" to be "organized persecution," for which he promised murder in retaliation. Third, for unstated reasons, he believed Chicago Mayor Rahm Emanuel "doomed Chicago to an early grave." For that, Khan called Emanuel a "rabid dog" who "shall be taught a lesson [he] will not forget."

The Facebook posts at issue began in late March 2015 and ended about two months later with Khan’s arrest. These included:

• April 5: "[I]f there are any more senseless provocations committed against me or my family, I will purchase a [G]o[P]ro camera, strap it to my chest or forehead, record the killings, and upload them onto Facebook for everyone around the world to see the grisly footage of death with their own eyes."

• April 9: "If these provocations do not cease right away I will head out to Chicago with my fourth generation Glock 19 and start hunting. I’m claiming the loop area of Chicago to the northern Lincoln Park area where the students be as free fire zones if push comes to shove. A free fire zone and a free kill zone as well, because as I’ve stated in earlier contexts I will be aiming for the posterior part of the cranium."

• April 14: "Keep pushing me and it won’t end well for a trucker on the road. I’ll pull out my glock and shoot him on the highway, causing a massive pileup with many potential fatalities. ... Be careful."

• April 17: "I’ve given plenty of warnings ... and this kind of stuff tends to happen suddenly. I’m already carrying my gun with me to work and let me be frank here I see a great deal of vulnerable individuals, for example walking their dogs and whatnot."

• May 2 (Post 1): "There will be blood running in the streets of Chicago as I had stated. In the next 30 days, I will undertake the necessary murders. ... I swear to Allah and everything I hold dear that I will resort to murder in the next 30 days."

• May 2 (Post 2): "It’s not easy to kill. It takes mental fortitude to pull it off. I take this as a personal challenge ... I’m gona try to empty out as much of the clip on the victim in a 5 second window as possible."

• May 3: "The ... deadline I have set is not written in stone. If I see vulnerabilities, any at all, I will exploit them immediately. Murder is in the air on the streets of Chicago. I can’t control my 9 [millimeter]."

• May 7 (Post 1): "Tonight is promising to be a murderous night!"

• May 7 (Post 2): "Alrighttt ... I’m goin hunting tonite baby!"

• May 7 (Post 3): "If I see a high value target Ima exploit it. I’m not killin sum bum on the street. I want a high net worth individual to shoot. I want this to be a real human tragedy. Much mourned. I have a month. Ima hunt aggressively tonight. Keep an eye out for ideal victims. If I don’t catch nobody tonite then another nite."

• May 8: "Good dry run tonight. Saw a couple of excellent targets. The key is right approach and timing. There were many potential witnesses because it was a college student night. Inshallah¹ the deed will be done well before the deadline I have set. ... When I have said something, it means I will do it. The rest is opportune timing."

• May 14: "The gun is cocked and ready to go. ... Now I’m gona get my revenge, and that involves putting bullets in someone’s body, so get out of the way or I’ll literally shoot at them as well and we’ll end up with a much bigger scenario on our hands. I’m not leaving America without getting revenge even if it costs me my life. And that’s that."

Khan sent the third May 7 post about hunting for "ideal victims" one minute before he picked up an Uber passenger. The May 8 post about a "dry run" was sent three minutes after he dropped off another Uber passenger. Khan’s Facebook page also included several photos of guns and ammunition he threatened to use, as well as photos of him holding those weapons.

Law enforcement first learned of Khan’s Facebook posts about a week after they began. The Illinois State Police run a website that allows users to send anonymous complaints. After police received an anonymous tip containing a link to Khan’s Facebook page, they immediately notified the FBI but did not forward or save the original tip itself. Because Khan set his Facebook privacy settings to "public," anyone with access to Facebook (including the FBI) could view his comments and photos.

Khan sent the May 14 post, about getting revenge before leaving America, from his home. When he left his house later that day, surveilling FBI agents notified the DuPage County Sheriff’s Department that Khan drove off after threatening to kill people in his car and that he may be armed.

At the FBI’s request, Sheriff’s Detective Patrick O’Neil found Khan about one block from his home, pulled him over, and asked him to step out of the car. When Khan opened the door, O’Neil saw the handle of a gun in the driver’s side door. On O’Neil’s order Khan walked to the rear of his car, where O’Neil told him that he was being "detained" for an FBI investigation. O’Neil then asked Khan if he was armed. Khan told O’Neil that a loaded gun was in the car and admitted he did not have a concealed carry license. O’Neil next asked for Khan’s permission to get the gun. Khan agreed. Once backup arrived, O’Neil recovered a nine-millimeter handgun—the same gun referenced and pictured in Khan’s Facebook posts.

Sheriffs arrested Khan at the scene, and he was charged with violating Illinois’s concealed carry laws. After Khan’s arrest, sheriffs performed a routine inventory search of his car where they found a loaded magazine under the passenger-side front seat. That same day FBI agents obtained a warrant and searched Khan’s home. There, agents found two guns depicted in Khan’s Facebook photos—a .40 caliber semi-automatic handgun and a 12-gauge semi-automatic shotgun—and a box for the nine-millimeter handgun, which contained three loaded magazines.

A grand jury indicted Khan for violating 18 U.S.C. § 875(c), which makes it a crime to transmit in interstate commerce "any communication containing ... any threat to injure the person of another." The indictment charged Khan with maintaining "an account at Facebook in his own name" and that he "used the account to post messages and photographs that could be viewed on the internet by all Facebook users." It also quoted the May 7 (Post 3), May 8, and May 14 posts, and described Khan’s purchase of a plane ticket to Karachi, Pakistan for travel on June 8, 2015.

At trial, Khan denied his posts were threats. Instead, he said they were "[f]acetious," "artistic," "hyperbole," and emulations of rap songs "protected by the First Amendment." He also said he used Facebook like a "free notebook" that he believed no one would read. The jury rejected these defenses and found Khan guilty. The district court sentenced him to 41 months’ imprisonment.

II

Khan challenges his conviction. He disputes his indictment, the jury instructions, the evidentiary rulings at trial, and the sufficiency of the evidence. We address each argument in turn.

A

We review the sufficiency of an indictment de novo. United States v. Miller , 883 F.3d 998,...