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