United States v. McNeil

228 F.Supp.3d 809

UNITED STATES of America, Plaintiff,

v.Terrence Joseph MCNEIL, Defendant.

CASE NO. 5:15–cr–00446–DAP–1

United States District Court, N.D. Ohio, Eastern Division.

Signed January 11, 2017

Christos N. Georgalis, Matthew W. Shepherd, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff.

Nathan A. Ray, Burdon & Merlitti, Akron, OH, for Defendant.

OPINION AND ORDER

DAN AARON POLSTER, UNITED STATES DISTRICT JUDGE

I. Relevant Case History

On October 13, 2016, the Government filed a Superseding Indictment alleging fifteen total counts of threatening, soliciting a crime of violence, and publishing the personal information of U.S. military personnel, in violation of 18 U.S.C. §§ 875(c) and 2 (i.e., counts 1, 4, 7, 10, and 13), 18 U.S.C. §§ 373(a) and 2 (i.e., counts 2, 5, 8, 11, and 14), and 18 U.S.C. §§ 119 and 2 (i.e., counts 3, 6, 9, 12, and 15).¹ Doc. #: 30.

On October 18, 2016, at a Hearing before the Court, McNeil waived a reading of the Superseding Indictment and entered a plea of not guilty to all fifteen counts. Minutes of Proceeding, Doc #: 31; Hearing Tr., Doc #: 34. At that time, a trial was scheduled for February 6, 2017. Am. Criminal Trial Order, Doc #: 32, 35. On January 6, McNeil filed a Motion to Continue Trial, Doc #: 55, which the Court granted, rescheduling the Trial for May 10, 2017.

On December 6, 2016, McNeil filed the instant Motion to Dismiss, arguing the Superseding Indictment fails to set forth the elements of the offenses charged and fails to assert facts which establish the offenses charged. Mot. to Dismiss 2, Doc #: 37. The Government filed its Response on Dec. 22, 2016. Doc #: 50. At a January 6, 2017, teleconference to discuss Defendant's Motion to Continue Trial, defense counsel indicated no reply would be filed.

This Opinion and Order follows.

II. Legal Standard

"The indictment or information must be a plain, concise, and definite written statement of the essential facts constituting the offense charged ...." Fed R. Crim. P. 7(c). "In general, an indictment is constitutionally adequate if it ‘contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’ " United States v. Landham , 251 F.3d 1072, 1079 (6th Cir. 2001) (citations omitted) (quoting Hamling v. United States , 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) ). "[T]o be legally sufficient, the indictment must assert facts which in law constitute an offense; and which, if proved, would establish prima facie the defendant's commission of that crime." Id. (quoting United States v. Superior Growers Supply, Inc. , 982 F.2d 173, 177 (6th Cir.1992) ).²

III. Discussion

A. Section 875(c) Counts

Counts 1, 4, 7, 10, and 13 allege violations of 18 U.S.C. § 875(c).

Section 875(c) provides, "[w]hoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both." 18 U.S.C. § 875(c). In short, conviction requires proof that "(1) the defendant transmitted something, (2) the thing transmitted was a threat to injure the person of another, and (3) the transmission was in interstate or foreign commerce." Elonis v. United States , ––– U.S. ––––, 135 S.Ct. 2001, 2014, 192 L.Ed.2d 1 (2015) (Alito, J., concurring in part and dissenting in part). Negligent threat is insufficient; transmission of "a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat," is sufficient.³ Elonis at 2012.

1. In Interstate or Foreign Commerce and Transmission

As McNeil does not appear to contend that either the transmission or the interstate commerce elements are not sufficiently alleged, the Court will address these elements very briefly.

Count 1 alleges, in part, "On or about September 24, 2015,... Defendant TERRENCE JOSEPH McNEIL, knowingly and willfully did transmit in interstate and foreign commerce from Akron, Ohio, to the State of New York, and to other states and countries, a communication ... to the followers, and any viewers, of Defendant's Tumblr account ...." Superceding Indicment ¶ 12. Counts 4, 7, 10, and 13 include similar language each alleging McNeil sent, on or about a specific date, a communication from Akron, Ohio to either California or New York implicating McNeil's Internet accounts, specifically either Tumblr or Twitter.

It is clear that counts 1, 4, 7, 10, and 13 each sufficiently allege that McNeil transmitted something,⁴ and it is similarly clear that counts 1, 4, 7, 10, and 13 each sufficiently allege an interstate commerce nexus for that transmission.

2. Threat to Injure

There is dispute about whether each of counts 1, 4, 7, 10, and 13 alleges a threat. In relevant part, count 1 alleges that McNeil

[K]nowingly and willfully did transmit ... a communication providing the names, home addresses, photographs, and branches of the military of approximately one-hundred United States servicemen and women ... and the communication contained threats to injure the approximately one-hundred United States servicemen and women, including, among others, to "[k]ill them in their own lands, behead them in their own homes, stab them to death as they walk their streets thinking that they are safe ... and kill them wherever you find them."

Superseding Indictment ¶ 12 (internal quotation alterations in original). Counts 4, 7, 10, and 13, are similar, differing primarily in the specific language of the alleged threats:

• Count 4: "... and the communication contained a threat to injure A.B. and W.T., including ‘RT @_cyber_caliphat: [Arabic writing] Wanted to kill New Name....’ "

• Count 7: "... and the communication contained a threat to injure N.S., including ‘RT@_cyber_caliphat: [Arabic writing] Wanted to kill New Name....’ ".

• Count 10: "... and the communication contained a threat to injure R.O., including, among others, ‘Released–Address of the US Navy Seal [R.O.] who killed Sheikh Osama Bin Laden R.A.—#GoForth #RunRobertRun .... I am posting the address to brothers & to Al Qaeda in the U.S. as a number one target’ "

• Count 13: "... and the communication contained a threat to injure R.O., including, among others, ‘Released—Address of the US Navy Seal [R.O.] who killed Sheikh Osama Bin Laden R.A.—#GoForth #RunRobertRun.... I am posting the address to brothers & to Al Qaeda in the U.S. as a number one target,’ and ‘don't let this kafir sleep peacefully.’ "

Id. ¶¶ 18, 24, 30, 36 (alterations in internal quotations in original).

Additionally, the Superseding Indictment includes—under a "General Allegations" heading—several statements which McNeil is alleged to have posted to his online Facebook, Twitter, and Tumblr accounts, including

• "On or about May 12, 2014, Defendant posted, ‘I would gladly take part in an attack on this murderous regime and the poeple [sic].’ "

• "On or about May 12, 2014, Defendant posted, ‘'I'll be proud when I sled [sic] american blood.’ "

• "On or about May 14, 2014, Defendant posted, ‘Somebody should park a car bomb in front of a church, school, or mall.’ "

• "On or about April 21, 2015, Defendant posted, ‘No American citizen is safe, fisabilillah they are all valid target [sic]. Until our brothers and sisters are free from imprisonment, harassment, torture, bombs, and bullets American will bleed inshallah.’ "

• "On or about July 7, 2015, Defendant posted, ‘Too many homicidal thoughts.’ "

Id. ¶¶ 4, 5 (alterations in original).

Read together, the general and count-specific language in the Superseding Indictment is sufficient that a jury may conclude the alleged statements are of a threatening nature communicated by McNeil either for the purpose of issuing a threat or with the knowledge that these communications would be viewed as a threat.

Thus, Counts 1, 4, 7, 10, and 13 each fairly inform McNeil of the charge against which he must defend, i.e., communication of a threat in violation of 18 U.S.C. § 875(c) ; contain the elements of 18 U.S.C. § 875(c) and assert facts which, if proved, would establish a prima facie case for that charge; and enable him to plead either an acquittal or a conviction against repeated prosecutions. Accordingly, Counts 1, 4, 7, 10, and 13 of the Superseding Indictment will not be dismissed.

B. Section § 119 Counts

Counts 3, 6, 9, 12, and 15 allege violations of 18 U.S.C. § 119.

Section 119 criminalizes,

Whoever knowingly makes restricted personal information about a covered person, or a member of the immediate family of that covered person, publicly available—

(1) with the intent to threaten, intimidate, or incite the commission of a crime of violence against that covered person, or a member of the immediate family of that covered person; or

(2) with the intent and knowledge that the restricted personal information will be used to threaten, intimidate, or facilitate the commission of a crime of violence against that covered person, or a member of the immediate family of that covered person, ....

18 U.S.C. § 119(a). " ‘[R]estricted personal information’ means, with respect to an individual, the Social Security number, the home address, home phone number, mobile phone number, personal email, or home fax number of, and identifiable to, that individual." 18 U.S.C. § 119(b)(1). "Covered person" includes, in relevant part, officers and employees of the United States government "including any member of the uniformed services." 18 U.S.C. § 1114 ; see 18 U.S.C. § 119(b)(2)(A).

As to Count 3, the Superseding Indictment alleges,

On or about September 24, 2015, in the Northern District of Ohio, Eastern Division, and elsewhere, Defendant TERRENCE JOSEPH McNEIL, knowingly made restricted personal information about certain members of the United States uniformed services, individuals designated in Title 18, United States Code, Section

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