United States District Court, W.D. Virginia, Big Stone Gap Division
Brian
J. Beck, Assistant Federal Public Defender, Abingdon,
Virginia, for Defendant.
OPINION AND ORDER
James
P. Jones United States District Judge
The
defendant, Randall Keystone, is charged by the grand jury
with sending two threatening letters, in violation of 18
U.S.C. § 875(c). Keystone argues that the Indictment
fails to charge valid offenses because on their face, the
letters' statements as alleged in the Indictment are
protected First Amendment speech and not “true
threats.” Keystone also contends that even if the
Indictment charges true threats, the court should not permit
entry of judgment as to both letters, charged in separate
counts, because they concern a single threat and permit only
a single punishment. For the following reasons, I will deny
Keystone's motion.
I.
The
relevant allegations of the Indictment are as follows.
Count
One charges that on or about January 11, 2017, Keystone
knowingly transmitted in interstate commerce a communication
containing a threat to injure the person of another, in
violation of 18 U.S.C. § 875(c). Specifically, Count One
alleges that Keystone mailed a letter to Victim 1 in Raleigh,
North Carolina, stating in part, “How'd you like
someone to put a bullit [sic] in your head? How'd you
like me to be the one to do it?” Indictment ¶ 2.
Count
Two charges the same crime, but it alleges a second letter
Keystone mailed to Victim 1 on or about the same date,
containing the same statement, but with the addressee's
zip code different from that on the first letter.
II.
A.
To
warrant dismissal of an indictment, a defendant must
demonstrate that its allegations, even if true, would not
state an offense. United States v. Thomas, 367 F.3d
194, 197 (4th Cir. 2004). “Generally, an indictment is
sufficient if it alleges an offense in the words of the
statute, assuming those words fully, directly, and expressly,
without any uncertainty or ambiguity, set forth all the
elements necessary to constitute the offence.”
United States v. Wicks, 187 F.3d 426, 427 (4th Cir.
1999) (internal quotation marks and citations omitted). The
language of the statute may be used in the general
description of an offense, but it must be accompanied by a
statement of the facts sufficient to inform the accused of
the specific offense of which he or she is charged.
Hamling v. United States, 418 U.S. 87, 117-18
(1974). The basis of a defendant's motion to dismiss an
indictment for failure to state an offense must be one that
the court can resolve without a trial on the merits.
See Fed. R. Crim. P. 12(b).
To
state an offense under 18 U.S.C. § 875(c), the facts
must allege that (1) the defendant knowingly transmitted a
communication in interstate or foreign commerce, (2) the
defendant subjectively intended the communication as a
threat, and (3) the content of the communication contained a
“true threat” to kidnap or injure. United
States v. White, 810 F.3d 212, 220-21 (4th Cir. 2016).
To establish the third element, the facts must allege a
communication that an ordinary, reasonable recipient who is
familiar with the context in which it is made would interpret
as a serious expression of intent to do harm. Id. at
221. Generally, whether a communication is a true threat is a
question for a jury. United States v. Roberts, 915
F.2d 889, 891 (4th Cir. 1990).
I find
that the facts alleged in the Indictment, taken to be true,
state an offense under 18 U.S.C. § 875(c). The
Indictment alleges the offense in the words of the statute,
which set forth the elements necessary to constitute the
crime. In particular, the Indictment alleges that Keystone
knowingly transmitted in interstate commerce a communication
containing a threat to injure another, and it identifies his
January 11 letters as the specific communications alleged to
constitute the offense. Keystone's argument that his
letters do not contain true threats raises a question for the
jury. I cannot say, as a matter of law, that no reasonable
person would interpret his letters as a serious expression of
intent to do harm, and thus this argument is not an
appropriate basis for dismissing the Indictment.
B.
Relying
on Ball v. United States, 470 U.S. 856 (1985),
Keystone also argues that even if the court finds that the
Indictment charges valid crimes, it should not permit entry
of judgment on both counts because they concern a single
offense. In Ball, the Supreme Court held that while
the government may seek a multiple-count indictment against a
felon for both receiving and possessing a firearm when a
single act establishes both receipt and possession of the
firearm, the accused may not suffer two convictions or
sentences on the ...