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UNITED STATES v. FRANCIS

August 15, 1997

UNITED STATES OF AMERICA, against MICHAEL FRANCIS, Defendant.


The opinion of the court was delivered by: SWEET

 Sweet, D.J.

 In this criminal action, the defendant Michael Francis ("Francis") has moved, pursuant to Fed. R. Crim. P. 12(b), to dismiss the indictment for lack of federal jurisdiction or as facially defective, or to transfer the case to the Northern District of California pursuant to Fed. R. Crim. P. 21. For the reasons below, the indictment will be dismissed as facially defective.

 Prior Proceedings

 Indictment 97 Cr. 0008 (RWS) was handed up on January 7, 1997. It contains one count, which charges that Francis, a California resident, "unlawfully, wilfully, and knowingly did transmit in interstate commerce communications containing threats to injure the person of another," in violation of 18 U.S.C. § 875(c). On April 24, 1997, Francis was arraigned and entered a plea of not guilty. Francis filed the instant motion on May 28, 1997. Oral arguments were heard and the motion was fully submitted on June 18, 1997.

 Facts

 The Government charges that Francis placed six telephone calls on February 22, 1996 from his residence in Santa Cruz, California to a telephone number in San Francisco, California where the Complainant had once resided. The Complainant received six calls, in the form of voice mail messages, in New York, where he was located at the time. The Complainant recognized the caller on each of the six calls to be Francis.

 The Complainant received the six telephone calls in New York via a call-forwarding service that automatically forwarded the Complainant's telephone calls from his California telephone number to his New York telephone number. The call-forwarding service activated a "switch" function that automatically routed the Complainant's telephone calls coming into his California telephone number to his New York telephone number. No manual actions were involved in transferring the calls.

 The Complainant also subscribed to a voice-mail message service through NYNEX, his New York telephone carrier. The message service operated like an answering machine. If the telephone was not answered after a designated number of rings, the caller heard a message recorded by the Complainant and was offered an opportunity to leave a recorded message. The Complainant could retrieve messages by dialing into his voice-mail system. The Government has a tape of the six telephone calls the Defendant made to the Complainant on February 22, 1996. Among other things, the Defendant threatened to "blow [the complainant's] fucking head off," "cut [the complainant] up into a thousand goddamn fucking tiny pieces," " slit [the complainant's] fucking throat," and kill the complainant.

 Discussion

 I. Federal Jurisdiction Exists

 Francis moves to dismiss the indictment for lack of federal jurisdiction pursuant to Fed. R. Crim. P. 12(b). The Defendant is charged under 18 U.S.C. § 875 (c), which provides that it is unlawful to transmit "in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another." Francis contends that federal jurisdiction is lacking because he did not know his calls were being forwarded across state lines.

 However, criminal statutes founded on the government's commerce-clause power generally do not require that an offender have knowledge of the interstate nexus of his actions. United States v. Darby, 37 F.3d 1059, 1067 (4th Cir. 1994), cert. denied, 514 U.S. 1097, 131 L. Ed. 2d 747, 115 S. Ct. 1826 (1995); see also United States v. Blackmon, 839 F.2d 900, 907 (2d Cir. 1988)(in a wire fraud prosecution it is not necessary to show that the defendant knew interstate communications were involved). The element of interstate commerce is a device through which to obtain federal jurisdiction, and does not require a mens rea element. Darby, 37 F.3d at 1067; See United States v. Blassingame, 427 F.2d 329, 330-31 (2d Cir. 1970) (statute prohibiting use of interstate wires to execute fraudulent scheme does not condition guilt upon knowledge that interstate communication is used), cert. denied, 402 U.S. 945, 29 L. Ed. 2d 114, 91 S. Ct. 1629 (1971). Thus, although the Government must allege that the telephone calls at issue crossed state lines, it need not allege that Francis was aware of the interstate nexus. See Darby, 37 F.3d at 1067. Whether Francis' knew that his communications traveled in interstate commerce is irrelevant to jurisdiction.

 Francis also asserts that Section 875(c)'s jurisdictional predicate is not satisfied, because he did not "cause" the transmission of the calls over state lines. Francis contends that the action of the call-forwarding service, as an intervening cause of the ...


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