United States v. Turk, CRIMINAL ACTION NO. 18-223

UNITED STATES OF AMERICA v. JULIAN TERRELL TURK

CRIMINAL ACTION NO. 18-223

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

September 21, 2018

SURRICK, J.

MEMORANDUM

Presently before the Court is Defendant Julian Terrell Turk's Motion to Dismiss the Indictment (ECF No. 31). For the following reasons, Defendant's Motion will be denied.

I. BACKGROUND

On May 24, 2018, the Government filed a one-count Indictment alleging that Defendant Julian Terrell Turk made a threat in violation of 18 U.S.C. 875(c). The Indictment states:

1. On or about May 3, 2018, in Levittown, in the Eastern District of Pennsylvania, defendant JULIAN TERRELL TURK contacted Person #1, known to the grand jury, in Los Angeles, California, by a cellular telephone call using the internet telephone service WhatsApp, and told Person #1 that defendant TURK, intended to assault D.A. on sight so severely that D.A. would require hospitalization, and also intended to assault D.A.'s wife.

2. On or about May 3, 2018, in Levittown, in the Eastern District of Pennsylvania, and elsewhere, defendant JULIAN TERRELL TURK knowingly and willfully transmitted in interstate commerce a threatening communication to others, that is, an internet telephone call containing a threat to injure another person, by threatening to assault D.A., and D.A.'s wife.

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

(Indictment, ECF No. 14.)

On September 7, 2018, Turk filed a Motion to Dismiss the Indictment pursuant to Rule 12(b) of the Federal Rules of Criminal Procedure, arguing the Indictment "fails to set forth all the essential elements of the offense." (Mot. to Dismiss ¶ 7) The Government filed a Response to Defendant's Motion on September 14, 2018 (ECF No. 32) and the Court heard oral argument regarding the Motion and Response on September 19, 2018.

II. LEGAL STANDARD

The Federal Rules of Criminal Procedure require that an indictment "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 sufficient if it "(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." United States v. Huet, 665 F.3d 588, 595 (3d Cir. 2012) (citation omitted). In addition, "the Federal Rules 'were designed to eliminate technicalities in criminal pleadings and are to be construed to secure simplicity in procedure.'" United States v. Resendiz-Ponce, 549 U.S. 102, 110 (2007) (quoting United States v. Debrow, 346 U.S. 374, 376 (1953)).

Federal Rule of Criminal Procedure 12(b)(3) authorizes a court to dismiss an indictment prior to trial if the indictment fails to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). "[I]f an indictment fails to charge an essential element of the crime, it fails to state an offense." Huet, 665 F.3d at 595. "Although there are exceptions, the 'general rule' is that a guilty mind is 'a necessary element in the indictment and proof of every crime.'" Elonis v. United States, 135 S. Ct. 2001, 2003 (2015) (quoting United States v. Balint, 258 U.S. 250, 251 (1922)). A district court must accept as true the factual allegations set forth in the indictment when assessing a motion to dismiss under Rule 12. United States v. Sampson, 371 U.S. 75, 78-79 (1962); United States v. Besmajian, 910 F.2d 1153, 1154 (3d Cir. 1990).

III. DISCUSSION

A. Parties' Contentions

Defendant argues the Indictment fails to identify probable cause for every element of the offense and should be dismissed pursuant to Rule 12(b) for failure to state an offense. (Mot. to Dismiss ¶¶ 6-7.) Specifically, Defendant argues that the Indictment does not meet the mens rea requirement as set forth in Elonis. (Mot. to Dismiss ¶¶ 6-7.) In Elonis, the Court stated that an indictment under Section 875(c) must allege the defendant had the subjective intent to convey a threat to injure others. 135 S. Ct. at 2011. Defendant primarily relies on an Eleventh Circuit case, United States v. Martinez, 800 F.3d 1293 (11th Cir. 2015), in which the court dismissed an indictment similar to the one here for failing to include a mens rea allegation regarding intent to communicate a threat. (Mot. to Dismiss ¶¶ 4-6.)¹

The Government responds to Turk's Motion with several arguments. (Gov't Resp.) First, the Government contends that the sentence structure of the Indictment and normal rules of construction indicate that the mens rea terms "knowingly and willfully" apply to each of the elements of the offense, including the "threatening communication" that Defendant is alleged to have sent. (Id. at 9-10.) Second, the Government argues the indictment uses terms that are inherently indicative of a "bad purpose," such as "willfully" and the adjective "threatening." (Id. at 8-9.) Finally, the Government states that this Indictment, unlike the indictment in Martinez, provides facts and details regarding the nature of the threat from which Defendant's intent can beinferred, such as the specific victims, the way that Defendant intended to injure the victims, and how badly Defendant would injure them. (Id. at 10.)

B. Applicable Law

Title 18 of the United States Code, Section 875(c), states, in relevant part, "[w]hoever transmits in interstate or foreign commerce any communication containing 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). The elements of the offense are that (1) a communication be transmitted and (2) the communication contain a threat. See Elonis, 135 S. Ct. at 2008. Although the statute does not explicitly require a particular state of mind with respect to the elements, the Government is nonetheless required to prove the defendant acted knowingly with respect to the first element; i.e., that the defendant intended to send the communication in interstate commerce. See id. at 2011. In addition, the Court in Elonis held the Government must prove the defendant acted with a culpable state of mind as to the second element, the threatening nature of the communication. See id. at 2011 (finding that "the crucial element separating legal innocence from wrongful conduct is the threatening nature of the communication," and therefore, "[t]he mental state requirement must . . . apply to the fact that the communication contains a threat." (internal quotations and citations omitted)). The court further clarified that "the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat," id. at 2012, but that "negligence is not sufficient to support a conviction under Section 875(c)."² Id. at 2013.

Accordingly, an indictment satisfies the mental state requirement regarding the threatening nature of the communication when it specifically alleges, or alleges facts from which the court can infer, that the defendant possessed the subjective intent to injure another. The court can infer such intent when the defendant's statements are so graphic and specific that the defendant must have had the purpose of issuing a threat or knowledge that the communication would be viewed as a threat. See United States v. Elonis (Elonis II), 841 F.3d 589, 600 (3d Cir. 2016) (holding defendant had requisite subjective intent to threaten when defendant's statements were "graphic and specific in ways that make it impossible to believe he was unaware it would be interpreted as a threat"). The court can also infer such intent when the defendant made direct and declaratory statements of intent to injure. See, e.g., United States v. White, 810 F.3d 212, 222 (4th Cir. 2016) (holding that defendant's statement "you are going to have the living shit beat out of you" was "direct and declarative" statement of intent sufficient to satisfy subjective intent requirement under Elonis). When an indictment does not include allegations that the defendant had the requisite subjective intent to injure, nor facts from which such intent can be inferred, the indictment must be dismissed. See United States v. Martinez, 800 F.3d 1293, 1295 (11th Cir. 2015) (dismissing indictment that "fail[ed] to allege Martinez's mens rea or facts from which her intent [could] be inferred").

C. Sufficiency of the Indictment

The only dispute here is whether the Indictment sufficiently alleges that Turk had the subjective intent to convey a threat to injure another. We are satisfied that the Indictment is sufficient.

Accepting the facts in the Indictment as true, Defendant's subjective intent can be inferred from the threatening statements alleged. First, the details alleged here are similar to thedetails in Elonis II, a case which represents the only opportunity that the Third Circuit has had to assess the evidence sufficient to support a finding that a defendant had the subjective intent to injure another. United States v. Elonis (Elonis II), 841 F.3d 589 (3d Cir. 2016). In Elonis II, the court found the requirement of subjective intent was satisfied when, inter alia, the defendant's statements were so graphic and specific that no reasonable jury could find the defendant acted for a purpose other than to issue a threat. See id. at 600. The defendant in Elonis II "specifically threaten[ed] elementary schools in a ten-mile radius, narrow[ed] his threat further to kindergarten classes within those elementary schools, and end[ed] his post with a haunting question that suggest[ed] he [would] carry out his threat imminently." Id. Defendant here was even more specific in identifying his victims than was the defendant in Elonis II. Here, Defendant specifically stated he would harm D.A. and D.A.'s wife. He also stated when h...