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United States v. Dierks

United States District Court, N.D. Iowa, Eastern Division

October 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH HILTON DIERKS, Defendant.

          REPORT AND RECOMMENDATION TO DENY DEFENDANT'S MOTION TO DISMISS

          C.J. WILLIAMS, CHIEF UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         The matter now before the Court is defendant's motion to dismiss the indictment. (Doc. 13). The grand jury charged defendant in a three-count indictment with transmitting threatening communications in violation of Title 18, United States Code, Section 875(c). The charges involve so-called “tweets” that defendant allegedly sent to United States Senator Joni Ernst. Defendant argues that the tweets do not express a true threat and otherwise constitute protected speech under the First Amendment to the United States Constitution. The Honorable Linda R. Reade, United States District Court Judge, referred this motion to me for a Report and Recommendation. I did not hold an evidentiary hearing because neither party asked for one and because resolution of this motion turns on what appears within the four corners of the indictment. For the reasons that follow, I respectfully recommend the Court deny defendant's motion to dismiss.

         II. BACKGROUND

         On September 14, 2017, the grand jury returned a three-count indictment, charging defendant with sending three tweets to Senator Ernst, alleging that the tweets were sent for the purpose of issuing a threat to injury another person, and with knowledge that the communication would be viewed by another person as a threat, in violation of Title 18, United States Code, Section 875(c). (Doc. 2). Section 875(c) of Title 18 of the United States Code provides: “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.” The indictment alleges that “[o]n or about August 16, 2017, in the Northern District of Iowa, and elsewhere, defendant . . . did knowingly transmit in interstate commerce a communication, for the purpose of issuing a threat to injure another person, and with knowledge that the communication would be viewed by another person as a threat. Specifically, defendant sent from his Twitter account, @JosephDierks, the following threatening Twitter posts to Senator [Joni K.] Ernst at her Twitter accounts, @SenJoniErnst and @JoniErnst.” (Doc. 2 ¶ 6). The three tweets, all sent on August 16, 2017, were:

Count 1: u r sn army bitch and I'll @USMC u tf up:)(:
Count 2: I'll f u up seriously in my sleep
Count 3 I'll beat ur ass in front of ur widow I promise that

(Doc. 2).

         Defendant filed the instant Motion to Dismiss pursuant to Federal Rule of Criminal Procedure 12(b)(3), which provides that a party must raise by pretrial motion certain claims “if the basis for the motion is then reasonably available and the motion can be determined without a trial on the merits.” Fed. R. Crim. P. 12(b)(3). Subsection (B)(v) includes claims that the indictment was defective for “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v).

         III. STANDARD OF REVIEW

         “A motion is capable of pretrial determination ‘if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity' of the motion.” United States v. Turner, 842 F.3d 602, 604-05 (8th Cir. 2016) (quoting United States v. Covington, 395 U.S. 57, 60 (1969)). “The court must decide every pretrial motion before trial unless it finds good cause to defer a ruling.” Fed. R. Crim. P. 12(d). “Good cause exists and a decision should be deferred if disposing of the pretrial motion requires making factual determinations that ‘fall[ ] within the province of the ultimate finder of fact.'” Turner, 842 F.3d at 605 (quoting United States v. Wilson, 26 F.3d 142, 159 (D.C. Cir. 1994)). Courts may not make factual findings in ruling on a pretrial motion “when an issue is ‘inevitably bound up with evidence about the alleged offense itself.'” Id. (quoting United States v. Grimmett, 150 F.3d 958, 962 (8th Cir. 1998)).

         In considering a motion to dismiss an indictment under Federal Rule of Criminal Procedure 12(b), the court looks at whether the indictment itself “contains a facially sufficient allegation of materiality, ” and does not consider sufficiency of the evidence. United States v. Ferro, 252 F.3d 964, 968 (8th Cir. 2001); see also United States v. Nelson, 165 F.3d 1180, 1182 (8th Cir. 1999) (“It has long been settled that an indictment is not open to challenge on the ground that there was inadequate or insufficient evidence before the grand jury.”). As this Court has previously pointed out, Rule 12(b) is not akin to a motion for summary judgment in civil cases. United States v. Goodale, No. 12-CR-3011-LRR, 2012 WL 2159229, at *1 (N.D. Iowa June 13, 2012) (citing United States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995)). See also United States v. Agriprocessors, Inc., No. 08-CR-1324-LRR, 2009 WL 2255728, at *4 (N.D. Iowa July 27, 2009) (“the sufficiency of the indictment must be determined from the words of the indictment, and the Court is not free to consider evidence not appearing on the fact of the indictment.”). “The government is entitled to marshal and present its evidence at trial, ” and a court “cannot approve dismissal of an indictment on the basis of predictions as to what the trial evidence will be.” Ferro, 252 F.3d at 968 (quoting United States v. DeLaurentis, 230 F.3d 659, 661 (3d Cir. 2000)). Therefore, in reviewing the sufficiency of an indictment, the court must assume the Government's allegations to be true. United States v. Steffen, 687 F.3d 1104, 1107 n.2 (8th Cir. 2012).

         IV. ...


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