United States v. McNeil

228 F. Supp. 3d 809, 2017 U.S. Dist. LEXIS 4125, 2017 WL 106567
CourtDistrict Court, N.D. Ohio
DecidedJanuary 11, 2017
DocketCASE NO. 5:15-cr-00446-DAP-1
StatusPublished

This text of 228 F. Supp. 3d 809 (United States v. McNeil) is published on Counsel Stack Legal Research, covering District Court, N.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. McNeil, 228 F. Supp. 3d 809, 2017 U.S. Dist. LEXIS 4125, 2017 WL 106567 (N.D. Ohio 2017).

Opinion

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, II, 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.

[812]*812II. 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 pri-ma 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]ho-ever 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 tlmeat 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.

[813]*8131. 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 @_cy-ber_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 #RunRo-bertRun .... I am posting the address to brothers <& to A1 Qaeda in the U.S. as a number one target’”
• Count 13: “...

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Related

Hamling v. United States
418 U.S. 87 (Supreme Court, 1974)
United States v. White
610 F.3d 956 (Seventh Circuit, 2010)
United States v. James Gibson
513 F.2d 978 (Sixth Circuit, 1975)
United States v. Frank Joseph
781 F.2d 549 (Sixth Circuit, 1986)
United States v. William M. Landham
251 F.3d 1072 (Sixth Circuit, 2001)
United States v. David Devon Davis
306 F.3d 398 (Sixth Circuit, 2002)
United States v. Gibson
409 F.3d 325 (Sixth Circuit, 2005)
United States v. Don S. McAuliffe
490 F.3d 526 (Sixth Circuit, 2007)
Elonis v. United States
575 U.S. 723 (Supreme Court, 2015)
United States v. Clifford Houston
792 F.3d 663 (Sixth Circuit, 2015)
United States v. Daniel Dvorkin
799 F.3d 867 (Seventh Circuit, 2015)
United States v. Richard Olive
804 F.3d 747 (Sixth Circuit, 2015)

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Bluebook (online)
228 F. Supp. 3d 809, 2017 U.S. Dist. LEXIS 4125, 2017 WL 106567, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mcneil-ohnd-2017.