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U.S. v. VELIZ

United States District Court, S.D. New York


May 3, 2004.

UNITED STATES OF AMERICA, -v.- MARCOS VELIZ, Defendant

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge

OPINION AND ORDER

On December 15, 2003, a grand jury indicted defendant Marcos Veliz for transmitting in interstate commerce a threat to injure another. 18 U.S.C. § 875(c). Veliz moves to dismiss the indictment pursuant to Fed.R.Crim.P. 12(b)(2) for lack of federal jurisdiction and as facially defective, arguing that the communication at issue did not contain a genuine threat. The motion will be denied.

  BACKGROUND

  The quite conclusory indictment charges that in or about September 2003, the defendant "unlawfully, willfully, and knowingly, did transmit in interstate . . . commerce a communication containing a threat to injure the person of another," in that he "made telephone calls in which he threatened an individual with physical harm," in violation of 18 U.S.C. § 875(c). In response to the motion, the Government proffers additional information including the complaint, an affidavit of a police officer, and a summary of a telephone conversation intercepted pursuant to a court-authorized wiretap. According to this proffer, the Government will introduce into evidence the recording of a telephone conversation that occurred on September 13, 2003, in which "Marco," allegedly the defendant, told one Max Arreaga, among other things, that Marco. intended to hunt down and find him, that the "Dominican" would tear him apart, and that "they'll get [him] and cut [him] up." Marco. also cautioned Arreaga not to be "blabbing because blabbers get killed." (Mot. Resp., Ex. C.)*fn1 The Government also indicates that it will present evidence that the approximate locations from which cellphone calls are made and received can be identified from information retained by cellular telephone-service companies. Such evidence, according to the Government's proffer, will demonstrate that the defendant made one of the calls in question from New York to a cellphone belonging to Arreaga, which was then located in the Palm Beach, Florida, area, as a call from Arreaga's phone made one hour earlier had been identified as originating in that area. (Id. Ex A.)

  DISCUSSION

 I. Standard for Sufficiency of the Indictment

  To be sufficient under Fed.R.Crim.P. 7(c)(1), an indictment need do little more than track the language of a criminal statute and state the approximate time and place of the crime. United States v. LaSpina, 299 F.3d 165, 177 (2d Cir. 2002). The indictment adequately fulfills its functions if it contains the elements of the charged offense, fairly advises the defendant of the charges against him, and enables the defendant to plead double jeopardy in the event of a future prosecution for the same offense. Hamling v. United States, 418 U.S. 87, 117 (1974).

  The indictment in this case, albeit brief and conclusory, plainly meets these standards. It tracks the language of 18 U.S.C. § 875(c) and states the approximate place (the Southern District of New York) and time (September 2003) of the crime. It gives the defendant adequate notice of the crime with which he is charged and will enable him to plead double jeopardy in the event of future prosecutions for the same offense. Moreover, the Government's supplemental proffer identifies at least one of the specific conversations on which the Government intends to rely and identifies the alleged victim of the threat. These facts alone suffice to sustain the indictment and compel denial of Veliz's motion.

  Veliz's challenge to the facial validity of the indictment thus lacks merit. His real claim is that the Government will be unable to prove its allegations. His motion thus is properly addressed, not to the indictment, but to the sufficiency of the Government's evidence. But in any event, if the Government offers admissible evidence to support its proffered facts, that evidence will more than suffice to permit a reasonable jury to return a guilty verdict, II. Jurisdiction

  Veliz first argues that the Court lacks federal jurisdiction because the Government has not established a genuine nexus to interstate or foreign commerce, and purely intrastate calls do not give rise to federal jurisdiction under § 875(c) and similar statutes. (Mot. 10-12.) United States v. Paredes, 950 F. Supp. 584, 587 n.3 (S.D.N.Y. 1996). But federal jurisdiction under § 875(c) requires only that the threat be transmitted in interstate commerce; even a communication that originates and ends in the same state will support federal jurisdiction if the communicated threat makes its way to the recipient by means of interstate electronic transmissions. See United States v. Kammersell, 196 F.3d 1137, 1139 (10th Cir. 1999) (bomb threat communicated through the Internet from a Utah resident to a Utah resident sufficient to sustain federal jurisdiction under § 875(c) because the instant message sent by defendant was automatically routed to a Virginia server before being rerouted to the recipient's computer in Utah) (citing and discussing United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976)); see also United States v. Francis, 975 F. Supp. 288, 291 (S.D.N.Y. 1997) (irrelevant that a call-forwarding service, rather than the defendant himself, caused the transmission of threat across state lines), rev'd in part on other grounds, 164 F.3d 120 (2d Cir. 1999).

  Based on the information presented in the proffer, a reasonable fact-finder could conclude that Veliz made the telephone call containing the alleged threat from New York, and that Arreaga received that call in Florida — or at least outside of New York State.*fn2 A federal violation could therefore be established.

 II. Intent to Communicate a Threat

  Veliz also argues that the call does not constitute a "true threat." To prove a violation of § 875(c), the Government need only establish that (1) the defendant "intentionally transmitted a communication in interstate commerce"; and (2) under the circumstances, "an ordinary, reasonable recipient familiar with the context of the communication would interpret it as a true threat of injury," whether or not the defendant subjectively intended the communication to convey a true threat. United States v. Francis, 164 F.3d 120, 123 (2d Cir. 1999); see also United States v. Sovie, 122 F.3d 122, 125 (2d Cir. 1997). Whether the threat meets this standard is a question of fact for the jury. Francis, 164 F.3d at 123 n.4; see also United States v. Malik, 16 F.3d 45, 51 (2d Cir. 1994). Although the Government's summary contains some language from which it could be argued that the recipient might not have understood the threat to be genuine or serious (e.g., "I don't want to kill you or cut you up because you haven't fucked with me"), a reasonable jury could easily find that other language in the summary communicated overt, serious threats of physical harm, which, in context, the recipient would have understood as genuine. Ultimately, after hearing the entirety of the recorded conversation and whatever information the parties offer about its context, it will be for the jury to determine whether the Government has proved beyond a reasonable doubt that Veliz communicated a "true threat." See Francis, 164 F.3d at 123 n.4.

  Veliz bases his challenge on a narrow category of cases in which the court must initially decide, as a matter of law, whether the communication at issue constitutes a true threat, because certain communications, even if in a certain sense "threats," constitute protected speech within the ambit of the First Amendment. In Watts v. United States, 394 U.S. 705 (1969), an antiwar protester (though evidently not a pacifist) stated during a public rally that "[i]f they ever make me carry a rifle the first man I want to get in my sights is LBJ." Id. at 706. The Court held that under the circumstances, including the conditional wording, the public stage, and the audience's response of laughter, the defendant had engaged only in constitutionally-protected "political hyperbole"; he had not genuinely communicated, and no reasonable person would have understand his statement to be, a true threat. See Id. at 707-08. The Second Circuit engaged in similar analysis, though reaching a different conclusion, with respect to a threat to kill Yasser Arafat made during a televised press conference. United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976).

  But these cases are the exception, not the rule. Veliz does not and cannot plausibly claim that the alleged threatening communication at issue here constitutes political speech protected by the First Amendment. He made the communication in private, not in public; it concerned no matter of public concern or consequence; and it cannot remotely be construed as "political hyperbole." Under the circumstances, the only question is whether a reasonable person would have perceived the communication as a genuine threat. This case therefore appears to be, as are "[m]ost cases" involving alleged threats (even those that arguably implicate the First Amendment), "within the broad expanse of varying fact patterns which may not be resolved as a matter of law, but should be left to a jury." United States v. Carrier, 672 F.2d 300, 306 (2d Cir. 1982).

  CONCLUSION

  Accordingly, Veliz's motion to dismiss the indictment is denied.

  SO ORDERED.


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