In the
United States Court of Appeals For the Seventh Circuit ____________________ No. 18‐2612 UNITED STATES OF AMERICA, Plaintiff‐Appellee, v.
MOHAMMAD WAQAS KHAN, Defendant‐Appellant. ____________________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15‐cr‐286‐1 — John Robert Blakey, Judge. ____________________
ARGUED MAY 23, 2019 — DECIDED SEPTEMBER 3, 2019 ____________________
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 Face‐ book and his job as an Uber driver to threaten and prepare for 2 No. 18‐2612
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 forti‐ tude 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; in‐ stead he drew the attention of the FBI. His words and actions resulted in an indictment for making interstate threats to in‐ jure others, a violation of 18 U.S.C. § 875(c). At trial, Khan claimed his statements were not “true threats.” A jury disa‐ greed and convicted him. Khan challenges his conviction, arguing that the govern‐ ment’s indictment and evidence against him were insuffi‐ cient. He also challenges the jury instructions for the § 875(c) charge and the district court’s refusal to suppress all evidence No. 18‐2612 3
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 traf‐ fic accident. Khan construed the lawsuit and related insur‐ ance claims process as “senseless provocations.” Second, he believed “noise pollution around [his] house” to be “orga‐ nized persecution,” for which he promised murder in retalia‐ tion. 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 in‐ cluded: April 5: “[I]f there are any more senseless provoca‐ tions 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 4 No. 18‐2612
zone as well, because as I’ve stated in earlier con‐ texts 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 care‐ ful.”
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 individ‐ uals, 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 chal‐ lenge … I’m gona try to empty out as much of the clip on the victim in a 5 second window as possi‐ ble.”
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 [millime‐ ter].” No. 18‐2612 5
May 7 (Post 1): “Tonight is promising to be a mur‐ derous night!”
May 7 (Post 2): “Alrighttt … I’m goin hunting tonite baby!”
May 7 (Post 3): “If I see a high value target Ima ex‐ ploit 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 ex‐ cellent targets. The key is right approach and tim‐ ing. 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.”
1 “Inshallah” is an Arabic expression meaning “if Allah wills” or “God
willing.” Merriam‐Webster’s Online Dictionary, https://www.merriam‐ webster.com/dictionary/inshallah (last visited September 3, 2019). 6 No. 18‐2612
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. Af‐ ter 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 ac‐ cess 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 in‐ vestigation. 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 No. 18‐2612 7
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 ar‐ rest, 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 de‐ picted in Khan’s Facebook photos—a .40 caliber semi‐auto‐ matic 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 com‐ merce “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. 8 No. 18‐2612
II Khan challenges his conviction. He disputes his indict‐ ment, the jury instructions, the evidentiary rulings at trial, and the sufficiency of the evidence. We address each argu‐ ment in turn. A We review the sufficiency of an indictment de novo. United States v. Miller, 883 F.3d 998, 1002 (7th Cir. 2018). An indictment must: (1) state the elements of the offense charged; (2) fairly inform the defendant of the nature of the charge so that he may prepare a defense; and (3) enable the defendant to plead an acquittal or conviction as a bar against future pros‐ ecutions for the same offense. Id. (citations and internal quo‐ tations omitted). The key question is whether the indictment sufficiently apprised Khan of the charges against him in order to enable adequate trial preparation. See United States v. Vaughn, 722 F.3d 918, 927 (7th Cir. 2013). Here, the indictment mirrored the terms of § 875(c), alleg‐ ing Khan “transmit[ted] in interstate commerce a communi‐ cation containing a threat to injure the person of another, namely, the [May 14, 2015] communication … [i]n violation of Title 18, United States Code, Section 875(c).” So far, so good; Khan does not dispute that the indictment apprised him of the governing statute. Instead, he argues the indictment failed to allege he intended to make threats when he made the Face‐ book posts. Khan moved the district court to dismiss the in‐ dictment on the same grounds. The court denied his motion and characterized his objections as “a defense relating to the strength of the government’s evidence [which] ordinarily must wait for trial.” No. 18‐2612 9
Although § 875(c) omits any mention of criminal intent, the statute still “include[s] broadly applicable scienter re‐ quirements.” Elonis v. United States, 135 S. Ct. 2001, 2009 (2015) (“The fact that the statute does not specify any required men‐ tal state … does not mean that none exists.”). “[T]he 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. This indictment did not explicitly accuse Khan of intend‐ ing to send a threat, or allege that he knew the posts would be viewed as threats. But an indictment need not “spell out each element” as long as “each element [is] present in context.” United States v. Smith, 223 F.3d 554, 571 (7th Cir. 2000). An im‐ plicit allegation of an element of a crime is enough; the indict‐ ment “need not specifically allege” every “component part of the offense.” United States v. Resendiz‐Ponce, 549 U.S. 102, 107‐08, 108 n.4 (2007). On its face, the indictment charged Khan with transmit‐ ting threats to “get my revenge,” “hunt aggressively,” “ex‐ ploit,” and “kill” “ideal victims.” Those words denote purpose, knowledge, and intent. See Smith, 223 F.3d at 572 (re‐ jecting challenge to language of indictment and holding “pur‐ pose, knowledge, and intent are inherent” in the words “induce” and “entice”). The indictment, reasonably inter‐ preted and given the full context of its allegations, alleged Khan’s intent. Next, Khan argues the indictment failed to set forth who he threatened, as well as where, when, why, and how threat‐ ened violence would occur. The omission of these facts, he claims, rendered the indictment impermissibly “vague and 10 No. 18‐2612
nonspecific.” Khan asks too much of the indictment. We re‐ view indictments “on a practical basis and in their entirety,” not in a “hypertechnical manner.” Miller, 883 F.3d at 1002. “Although the indictment must provide some means of pin‐ ning down the specific conduct at issue[,] … the presence or absence of any particular fact need not be dispositive.” United States v. Sandoval, 347 F.3d 627, 633 (7th Cir. 2003). Regardless, this indictment provides the facts Khan claims are missing. It cites three specific threats, gives the itinerary of Khan’s flight to Pakistan, and states that the operative facts were based on his Facebook “messages and photographs” ac‐ cessible to “all Facebook users.” That was enough to signal: what (threats of mass murder); who (at least six specified “tar‐ gets”); where (the Chicago loop to the Northern Lincoln Park area); how (a nine‐millimeter handgun, a .40 caliber semi‐au‐ tomatic handgun, and a 12‐gauge semi‐automatic shotgun); why (Khan felt “provoked” by a lawsuit and noise pollution); and when (before he jumped on a plane to Karachi). The indictment satisfied all necessary criteria and amply apprised Khan of the charges against him. The district court did not err in refusing to dismiss it. B Khan next argues the district court failed to instruct the jury on all elements of a § 875(c) offense. We review this challenge in two steps. First, we review de novo “whether [the] jury instructions accurately summarize the law, but give the district court substantial discretion to formulate the instructions provided that the instructions rep‐ resent a complete and correct statement of the law.” United States v. Bonin, No. 18‐1479, 2019 WL 3369562, at *8 (7th Cir. No. 18‐2612 11
July 26, 2019). “If the instructions are legally accurate, then we review the district court’s phrasing of the instructions for abuse of discretion.” Id. Here, the instruction read: The indictment charges the defendant with transmitting, in interstate commerce, a threat to injure another person. In order for you to find the defendant guilty of this charge, the govern‐ ment must prove each of the three following el‐ ements beyond a reasonable doubt: 1. The defendant knowingly transmitted in interstate commerce the communication charged in the indictment, on or about May 14, 2015; and 2. This communication contained a true threat to injure the person of another; and 3. The defendant intended it to communi‐ cate a true threat or knew that the com‐ munication would be viewed as a true threat. The jury instructions also said “[a] person acts knowingly if he realizes what he is doing and is aware of the nature of his conduct, and does not act through ignorance, mistake, or accident.” As for a “true threat,” the district court instructed the jury: A true threat is a serious expression of intent to commit unlawful physical violence against an‐ other person or a group of people. The commu‐ nication must be one that a reasonable observer, considering the context and circumstances of 12 No. 18‐2612
the statement, including surrounding commu‐ nications, would interpret as a true threat. The government does not have to prove that the defendant actually intended to carry out the threat, or even that the defendant had the capac‐ ity to do so. A threat does not need to be com‐ municated directly to its intended victim, or specify a particular victim, or specify when it will be carried out. A communication is not a true threat if it is merely idle or careless talk, exaggeration, or something said in a joking manner. The instructions the district court gave the jury accurately and thoroughly summarized applicable law. According to Elonis, the Supreme Court’s most recent decision on true threats, a conviction under § 875(c) requires: (1) the knowing transmission in interstate commerce of a communication; (2) the communication contained a threat; and (3) the communi‐ cation was transmitted for the purpose of issuing a threat, or with knowledge that the communication would be viewed as a threat. Elonis, 135 S. Ct. at 2008–12. A “true threat” is “a se‐ rious expression of an intent to commit an act of unlawful vi‐ olence to a particular individual or group of individuals.” United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008) (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)). And “[a]true threat does not require that the speaker intend to carry it out, or even that she have the capacity to do so.” United States v. Dutcher, 851 F.3d 757, 761 (7th Cir. 2017) (citations omitted). These holdings are reflected almost verbatim in the instructions Khan challenges. Khan fails to show an abuse of discretion. No. 18‐2612 13
Khan also argues the holdings of Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), and Black, 538 U.S. at 359–60, require the district court to instruct the jury on three more elements: that Khan intended to communicate a threat; that the intended vic‐ tim received it; and that it caused the victim to feel threatened. Khan’s request here is incorrect for three reasons. One, a true threat does not need to be communicated directly to the intended victim. Parr, 545 F.3d at 497. Two, Khan seeks a re‐ dundant instruction about his intent, as the elements instruc‐ tion already included a scienter component when it required proof that Khan “knowingly transmitted” his posts. In es‐ sence, Khan demands an instruction requiring the govern‐ ment to prove that he intended to do what he knowingly did do: send Facebook posts accessible to all Facebook users around the world. At trial, Khan testified he considered his Facebook account a private diary, so he lacked intent to con‐ vey a threat or knowledge that his posts would be viewed as threats. Because he had only one “Facebook friend,” he said he believed no one would see his messages. Using a social me‐ dia platform to publish one’s thoughts publicly on the Inter‐ net is an odd way to keep a “private” diary. Yet however flimsy this argument appears, it was the jury’s province to weigh Khan’s credibility and decide whether those posts qualified as true threats. See id. It did so and found Khan guilty. Last, neither Brandenburg nor Black require proof that a vic‐ tim felt threatened, as Khan insists. Brandenburg says that speech “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action” falls out‐ side the protection of the First Amendment. 395 U.S. at 447. Black held “a threat to a person or group of persons with the 14 No. 18‐2612
intent of placing the victim in fear of bodily harm or death,” is likewise unprotected. 538 U.S. at 359–60 (defining “[i]ntim‐ idation” as a type of “constitutionally proscribable” speech). Khan posted increasingly aggressive promises to “murder” at least six specified “target” groups in a defined area of Chicago “well before” his dwindling deadline. These threats evince the type of intimidation and criminal action proscribed in Brandenburg and Black. And even if no one feared imminent action, nothing in Brandenburg, Black, or Elonis excludes the possibility of an unreported true threat. See Dutcher, 851 F.3d at 762 (rejecting contention that unreported Facebook post threatening to assassinate the president was not taken seri‐ ously). At any rate, an anonymous person viewed Khan’s posts and took them seriously enough to pass them on to the Illinois State Police. We find no error in the district court’s jury instructions. C Up next are Khan’s evidentiary challenges: the admissibil‐ ity of the gun found in Khan’s car, and the anonymous tip forwarded to the FBI. Khan argues the district court should have suppressed this evidence. When reviewing the denial of a motion to suppress, we review the district court’s factual findings for clear error and issues of law de novo. United States v. Key, 889 F.3d 910, 912 (7th Cir. 2018). 1 We begin with the gun. Before trial, Khan moved to sup‐ press the firearm seized from his car under two theories: the stop was not supported by reasonable suspicion, and he was entitled to Miranda warnings before being asked about a gun in the car. The district court denied Khan’s motion, finding No. 18‐2612 15
reasonable suspicion for the stop. The court also found that, when asked about guns, Khan was not in custody for Miranda purposes. Khan reprises his arguments on appeal. A traffic stop is lawful under the Fourth Amendment when a law enforcement officer has a particularized and objective basis for suspecting the person stopped of criminal activity. United States v. Yancey, 928 F.3d 627, 630 (7th Cir. 2019) (citations and internal quotation marks omitted). “When more than one police officer is involved in the reason‐ able‐suspicion analysis, courts consider their collective knowledge.” United States v. Street, 917 F.3d 586, 596 (7th Cir. 2019). The collective knowledge doctrine permits a stop at the direction of, or based on information relayed from, another law enforcement agency. See United States v. Hensley, 469 U.S. 221, 232–33 (1985); see also Street, 917 F.3d at 596. The doctrine applies even if the officer performing the stop does not have firsthand knowledge of information creating the justification for a stop. Street, 917 F.3d at 596. Nor does it matter that the communication is by dispatch or a “wanted” bulletin, rather than face‐to‐face. Hensley, 469 U.S. at 232; Torry v. City of Chicago, No. 18‐1935, 2019 WL 3521146, at *5 (7th Cir. Aug. 2, 2019). But this doctrine is not an end around Terry v. Ohio— the officer or agency relaying the information must have rea‐ sonable suspicion to justify the stop. See Hensley, 469 U.S. 232‐33. Reasonable suspicion exists when an officer can point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” United States v. Richmond, 924 F.3d 404, 411 (7th Cir. 2019) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)). We apply a three‐pronged test to decide if collective knowledge exists: (1) “the officer taking the action must act in 16 No. 18‐2612
objective reliance on the information received”; (2) “the of‐ ficer providing the information—or the agency for which he works—must have facts supporting the level of suspicion re‐ quired”; and (3) “the stop must be no more intrusive than would have been permissible for the officer requesting it.” Street, 917 F.3d at 596–97 (citations and internal quotation marks omitted). In evaluating these elements, we consider all information known to officers at the time of the stop and give due weight to the trial court’s assessment of the officers’ cred‐ ibility and the reasonableness of their inferences. Richmond, 924 F.3d at 410, 413. All three elements were met here. At the suppression hear‐ ing, the district court heard testimony from O’Neil and the FBI agents who monitored Khan’s Facebook page, surveilled his residence, and relayed his threats to state police. O’Neil testified he relied on the FBI agents’ direction when he stopped Khan. The FBI agents gave specific reasons to stop Khan. They explained how Khan’s Facebook posts crescen‐ doed in hostility, flaunted “dry runs” during work, repeated an impending deadline, and climaxed in his final threat to kill. The agents also relied on several days of surveillance and in‐ terviews of individuals with personal knowledge of Khan. They gleaned even more information from public and law en‐ forcement databases that corroborated aspects of his posts, in‐ cluding his job with Uber, his ownership of guns, and his plans to leave the country. These circumstances taken to‐ gether gave the FBI reasonable suspicion to suspect Khan in‐ tended to commit a violent crime while driving. Finally, the stop was no more intrusive than the one the FBI could have conducted themselves. The district court appropriately im‐ puted the FBI’s knowledge and reasonable suspicion to O’Neil. Objectively, the stop was justified. No. 18‐2612 17
But Khan contends the stop, even if justified, amounted to a custodial arrest, requiring Miranda warnings before any question about weapons. See, e.g., United States v. Higgins‐ Vogt, 911 F.3d 814, 820 (7th Cir. 2018) (“Miranda warnings must be provided at the outset of any custodial interrogation by law enforcement.”). Setting to the side the legality of O’Neil’s question to Khan about guns, we consider whether Khan was in police custody or under arrest when asked. “[T]he temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop does not constitute Mi‐ randa custody.” Maryland v. Shatzer, 559 U.S. 98, 113 (2010) (ci‐ tations omitted). Still, like any Terry stop, a traffic stop must be reasonably related in scope to the circumstances which jus‐ tified the stop in the first place. Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 185 (2004). It also “cannot continue for an excessive period of time or resemble a traditional arrest.” Id. at 185–86 (citation omitted). Khan highlights two parts of O’Neil’s testimony: that O’Neil did not know how long the stop would last, or where the questioning of Khan would occur. This uncertainty and potential for an indefinite detention, Khan claims, converted the stop into a custodial arrest. Khan’s argument misses the mark. We do not evaluate the abstract chance of an excessive detention. What matters is “whether law enforcement has detained the person longer than needed to carry out the investigation that was justified by the reasonable suspicion.” United States v. Lopez, 907 F.3d 472, 486 (7th Cir. 2018) (emphasis added). Khan ignores this question altogether and submits no evidence showing that he was sub‐ jected to a stop more excessive in duration, scope, or degree of intrusion than that needed to carry out the reason for the 18 No. 18‐2612
stop—an investigation triggered by his online threats to shoot people from his car. Finding no evidence of an excessive stop in the record ourselves, we see no error in the district court’s conclusion that Khan was not in custody or under arrest when O’Neil asked him about guns. With that issue resolved, we turn to O’Neil’s question. The public safety exception to Miranda allows police offic‐ ers to question a suspect without first giving Miranda warn‐ ings if they reasonably believe the questions are “necessary to secure their own safety or the safety of the public.” New York v. Quarles, 467 U.S. 649, 655–57, 659 (1984); see also United States v. Hernandez, 751 F.3d 538, 540 (7th Cir. 2014) (holding same). O’Neil’s question fits within this exception. At the sup‐ pression hearing, O’Neil testified he asked Khan about a gun in his car for “officer safety” and to dispel his suspicion that Khan had other guns with him. [R. 145, p. 227, 335.] O’Neil had reason to be concerned: he saw a gun in Khan’s driver’s side door. O’Neil was not required to ignore the gun, Quarles, 467 U.S. at 657 (holding a gun left unattended was a public safety concern); grab the gun, Hernandez, 751 F.3d at 542 (rec‐ ognizing the risk of grabbing and setting off a loaded gun); or allow Khan to bolt for the gun, Richmond, 924 F.3d at 417 (rec‐ ognizing the risk of a gun within a few steps from a suspect). Accordingly, O’Neil’s question if Khan was armed fell within the public safety exception to Miranda. Khan’s responses to that question, which included giving O’Neil permission to get the gun, pose no admissibility problems. The district court properly denied Khan’s motion to sup‐ press the gun evidence. No. 18‐2612 19
2 Khan also sought to suppress all evidence against him be‐ cause the government could not produce a copy of the anon‐ ymous tip sent to Illinois State Police. The district court denied this request, finding the tip immaterial to the govern‐ ment’s investigation and no bad faith by the government. At trial, Michael Forsythe, an administrative assistant for the state police, testified he received the tip via the state police website. After reviewing the tip, Forsythe sent an email to the FBI with a link to Khan’s Facebook profile. Critically, state po‐ lice cannot trace the tip’s source, nor do they retain a copy of the tip (consistent with their email retention policies). They did, however, preserve evidence of Forsythe’s email to the FBI in an “Internet Activity Report.” Khan received a copy of this report in preparation for trial. On appeal, Khan contends the district court abused its discretion when it allowed testimony about “destroyed” evidence. To be sure, the government has an affirmative duty to pre‐ serve and disclose material evidence favorable to a defendant. Arizona v. Youngblood, 488 U.S. 51, 55, 57–58 (1988). The gov‐ ernment violates that obligation if, acting in bad faith, it fails to preserve potentially exculpatory evidence that a defendant would be unable to obtain by other means. Id.; see also United States v. Bell, 819 F.3d 310, 317–18 (7th Cir. 2016) (bad faith is “an official animus or a conscious effort to suppress exculpa‐ tory evidence,” which “turns on an official’s subjective knowledge that the evidence in question had exculpatory value at the time it was lost or destroyed”). But according to Forsythe’s testimony, the anonymous tip was neither excul‐ patory nor substantively material. Indeed, the government 20 No. 18‐2612
took on a credibility risk by discussing evidence it never pro‐ duced. Over the government’s objection, the district court al‐ lowed Khan to argue to the jury that the tip was intentionally destroyed. Khan also had all relevant information about the tip: the date, time, how it was sent, who received and re‐ viewed it, and its substantive content. And Khan cross‐exam‐ ined the government’s witnesses on all this information. The district court did not abuse its discretion when it found the government’s failure to produce a copy of the tip was imma‐ terial. D Finally, we address Khan’s assertion he was convicted on insufficient evidence. His challenges face a high hurdle: we afford “great deference” to a jury verdict of conviction, view the evidence in the light most favorable to the government, and draw all reasonable inferences in the government’s favor. United States v. Moreno, 922 F.3d 787, 793 (7th Cir. 2019). We will reverse a conviction only where the record is devoid of evidence from which a reasonable jury could find guilt be‐ yond a reasonable doubt. United States v. Heon Seok Lee, No. 18‐1687, 2019 WL 3940951, at *6 (7th Cir. Aug. 21, 2019). Khan first asserts the government failed to prove “the tar‐ get of the alleged threat[s].” Not so: Khan in fact called his potential victims “targets,” which included college students, people walking their dogs, truckers, and anyone else who happened to be in the wrong place (Khan’s defined “free kill zone”) at the wrong time (before his June 8, 2015 flight to Pakistan). The recipients of Khan’s threats are quite clear. Khan also claims the government failed to prove his Face‐ book posts were true threats or that he intended to convey No. 18‐2612 21
those threats to anyone else. Before the Supreme Court’s de‐ cision in Black, 538 U.S. at 358–59, we used an objective rea‐ sonable person standard to determine whether speech constituted a true threat. See Maier v. Smith, 912 F.3d 1064, 1072 (7th Cir. 2019) (citing Parr, 545 F.3d at 499). After Black, “we and other courts have wondered whether speech only qualifies as a true threat if the speaker subjectively intended his words to be threatening.” Id. (citing Parr, 545 F.3d at 499‐500). “[T]he Supreme Court has not definitively answered the question.” Id. But we need not press this issue here. Khan’s posts were so violent, explicit, and resolute that they consti‐ tuted threats under either an objective or subjective standard. Among other macabre warnings, Khan repeatedly and cate‐ gorically threatened to murder defined targets in a defined area of Chicago and livestream “the grisly footage of death.” He also tied his threats to “revenge” for “provocations” and “persecutions” against him, connected the date of any at‐ tempted murder to his flight out of the country, and bragged about his “mental fortitude to pull it off.” These personal ref‐ erents undercut Khan’s defense that his words were artistic expressions. This is enough to reasonably infer Khan’s intent to commit an act of unlawful violence towards a particular group of individuals. Last, Khan contends the government offered no evidence that his threats would be seen. This also is not true: Khan’s posts were seen by at least one observer, who passed them on to police. After that, the FBI continued to monitor Khan’s pub‐ lic threats in a forum accessible to over one billion Facebook users. The evidence amply supports Khan’s conviction. 22 No. 18‐2612
III Boundless connection to the world can betray. Such was the case for Khan. We find no error in the district court’s rul‐ ings, and AFFIRM Khan’s conviction.