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United States v. Nissen

United States District Court, D. New Mexico

January 9, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
MICHAEL JAMES NISSEN, Defendant.

          John C. Anderson United States Attorney Paul Mysliwiec Jack Burkhead Alexander Mamoru Max Uballez Assistant United States Attorneys Albuquerque, New Mexico Attorneys for the Plaintiff

          Jack Mkhitarian Hakop J. Mkhitarian Jack Mkhitarian Attorney at Law, LLC Albuquerque, New Mexico -- and -- Kenneth Gleria Kenneth A. Gleria Attorney at Law Albuquerque, New Mexico Attorneys for the Defendant

          MEMORANDUM OPINION AND ORDER

         THIS MATTER comes before the Court on: (i) Defendant Michael J. Nissen's Motion for Bill of Particulars, filed April 24, 2019 (Doc. 22)(“MBP”); (ii) Nissen's Motion to Dismiss for Lack of Jurisdiction, filed May 15, 2019 (Doc. 24)(“Jurisdictional MTD”); (iii) Nissen's Motion to Dismiss Indictment, filed May 15, 2019 (Doc. 25)(“MTD”); and (iv) Nissen's oral motion for a judgment of acquittal under rule 29 of the Federal Rules of Criminal Procedure. The Court held a hearing on July 26, 2019, and a jury convicted Nissen of two counts of transmitting a threat in interstate commerce. The primary issues are: (i) whether the Indictment, filed January 10, 2019 (Doc. 11), which tracks 18 U.S.C. § 875(c)'s statutory language, and provides no specific facts underlying the offenses, contains sufficient factual information to comport with rule 7(c) of the Federal Rule of Criminal Procedure; (ii) whether Plaintiff United States of America presented sufficient evidence showing that Defendant Michael Nissen communicated his threats via interstate commerce such that the Court has subject-matter jurisdiction; and (iii) whether the jury properly concluded that Nissen's statements amount to true threats such that his conviction is consistent with the First Amendment to the Constitution of the United States of America. The Court concludes that: (i) the Indictment is sufficiently detailed, because it apprises Nissen of the charges against him; (ii) the United States has met its burden to establish the Court's subject-matter jurisdiction; and (iii) the First Amendment does not protect Nissen's statements, and sufficient evidence supports the jury's conclusion that Nissen's statements are true threats. The Court therefore denies the MBP, the Jurisdictional MTD, the MTD, and Nissen's oral motion.

         FACTUAL BACKGROUND

         The Court takes its background facts from the Criminal Complaint, filed December 19, 2018 (Doc. 1);[1] from the Affidavit of Peter John Nystrom Ubbelohde (executed December 19, 2018), filed December 19, 2018 (Doc. 1-1)(“Ubbelohde Aff.”); and Nissen's MTD. The Court does not set forth these facts as findings or the truth, but the Court observes that the factual background reflects both the United States' and Nissen's version of events.

         This case deals with alleged threats Nissen communicated to New Mexico State Police (“NM State Police”) officers and dispatch employees on November 2 and 26, 2018. See Ubbelohde Aff. ¶¶ 6, 8, at 2-3; MTD at 1. On the evening of November 2, 2018, an NM State Police officer stopped Nissen on Interstate 40 in Torrance County, New Mexico, near mile marker 194 and issued several traffic citations. See MTD at 1. About a half-hour later, NM State Police dispatch received “multiple phone calls from telephone number (505) 819-1806 and caller ID listing Michael Nissen.” Ubbelohde Aff. ¶ 6, at 3. In the calls, a male caller said that an NM State Police officer had just given him several citations. See Ubbelohde Aff. ¶ 6, at 3. The caller then said:

You guys got some of the stupidest fucking pigs on the road. The next time someone violates me like that on the road, I'm gonna put a bullet in that fucking pig's head . . . . He violated my Fourth Amendment constitution, he violated my Second and my First Amendment and the next time he does it I'm gonna plea the Fifth, but next time I'm gonna take my revolver out and put that motherfucker drop dead.

MTD at 1. Later that month, NM State Police Internal Affairs personnel received an email from johnny2bravo1@gmail.com further complaining about the November 2, 2018, encounter on Interstate 40. See Ubbelohde Aff. ¶ 7, at 3; MTD at 2. On November 26, 2018, a NM State Police “District 5 administrative assistant received a call from phone number (505) 819-1806. During the call, the male caller became verbally combative and threatened to shoot the [NM State Police] employee in the head.” Ubbelohde Aff. ¶ 8, at 3.

         On December 13, 2018, Nissen visited the Bernalillo County Sheriff's Office, and spoke with Sheriff's Deputies to complain about the NM State Police. See MTD at 2. Nissen said that he was stopped by mile marker 194 on Interstate 40, and that, after the stop, he called NM State Police dispatch “just to get it done and then it got a little crazy . . . I didn't make no threatening calls, but I kept calling them about the law.” MTD at 2. Nissen also told Bernalillo County Sheriff's Deputies that he “owned multiple firearms including rifles and a revolver.” Ubbelohde Aff. ¶ 9, at 3. The Ubbelohde Aff. states that Nissen told the Deputies he “carries his revolver on the streets and carrying his gun concealed is to protect himself from rouge [sic] cops.” Ubbelohde Aff. ¶ 9, at 3-4.

         PROCEDURAL BACKGROUND

         The United States indicted Nissen in early 2019. See Indictment at 1. The Indictment charges Nissen with two violations of 18 U.S.C. § 875(c). See Indictment at 1. The Indictment's Count 1 asserts that, “[o]n or about November 2, 2018, in Torrance County, in the District of New Mexico, the defendant, MICHAEL JAMES NISSEN, transmitted in interstate and foreign commerce communications containing a threat to injure the person of another [i]n violation of 18 U.S.C.§ 875(c).” Indictment at 1 (bold omitted). The Indictment's Count 2 asserts that, “[o]n or about November 26, 2018, in Bernalillo County, in the District of New Mexico, the defendant, MICHAEL JAMES NISSEN, transmitted in interstate and foreign commerce communications containing a threat to injure the person of another [i]n violation of 18 U.S.C. § 875(c).” Indictment at 1 (bold omitted).

         1.The MBP.

Nissen filed his MBP on April 24, 2019. See MBP at 1. Nissen asserts that
the purpose of a bill of particulars is to apprise the defendant of the nature of the charges, in such a way, so as to ensure that he 1.) can prepare a defense, 2.) avoid prejudicial surprise at trial, and 3.) be protected against a second prosecution for the same alleged offenses in both State and Federal Courts.

MBP at 1 (citing United States v. Levine, 983 F.2d 165 (10th Cir. 1992)). Nissen asserts that the Indictment “fails to allege any overt acts allegedly committed by Michael Nissen which constitute threats in interstate or foreign commerce.” MBP at 1.

         Nissen first argues that the Indictment fails to give him adequate notice of the crimes with which he is charged. See MBP at 2. Nissen asserts that his lack of discovery compounds the Indictment's vagueness, which only “describes figurative language by Michael without accompanying acts in furtherance of alleged threats.” MBP at 2. Accordingly, Nissen argues that the Indictment limits his “ability to prepare his defense, is thereby prejudicial . . ., and requires the Bill of Particulars as requested.” MBP at 2.

         Nissen then turns to a double jeopardy argument. See MBP at 3. Nissen asserts that the Sixth and Fourteenth Amendments to the Constitution of the United States of America “require that an indictment provides a defendant protection against double jeopardy, by enabling the defendant to plead an acquittal or conviction to bar future prosecution for the same offense.” MBP at 3 (citing Russell v. United States, 369 U.S. 749 763-64 (1962)). Nissen argues that the Indictment's vagueness renders it possible that he could prevail in this matter, only to be charged again by the State of New Mexico. See MBP at 3. Nissen asserts: “For example, Mr. Nissen is currently charged in the State of New Mexico, Bernalillo Metropolitan Court [sic], with Use of a Telephone to Terrify, Intimidate, Harass, Annoy or Offend, and Harassment regarding the same alleged threats charged in” the Indictment's Count 1. MBP at (citing State of New Mexico v. Nissen, No. T-4-DV-2018-003159). Nissen argues that the Indictment “in its current form does not guarantee protection against double jeopardy.” MBP at 3. Accordingly, Nissen requests that the Court require the United States to issue a bill of particulars. See MBP at 3.

         2.The Jurisdictional MTD.

         In the Jurisdictional MTD, Nissen argues that the United States has established no facts showing that his “communications traveled through interstate commerce” as 18 U.S.C. § 875(c) requires. Jurisdictional MTD at 1. Nissen asserts that the United States must prove that the Court has jurisdiction by a preponderance of the evidence. See Jurisdictional MTD at 1 (citing United States v. Bustillos, 31 F.3d 931, 933 (10th Cir. 1994)). Nissen argues that the United States must also prove the facts that create jurisdiction beyond a reasonable doubt. See Jurisdictional MTD at 2 (citing United States v. Roberts, 185 F.3d 1125, 1139 (10th Cir. 1999)).

         Nissen quotes the Criminal Complaint, filed December 19, 2018 (Doc. 1), which he asserts is “[t]he only reference to communications possible traveling in through [sic] interstate commerce[.]” Jurisdictional MTD at 3. The Complaint states:

T-Mobile uses a cellular network on a GSM[2] carrier with equipment physically located throughout the county. T-Mobile is headquartered in Bellevue, Washington. Based on my training and experience, even when individual's [sic] are physically located in the same state, it is common for their cellular phone communications to cross state lines based on the cellular provider's communication infrastructure and network efficiency.

         Jurisdictional MTD at 3 (quoting Complaint at 4). Nissen avers that this description is insufficient to establish the Court's jurisdiction. See Jurisdictional MTD at 3. Nissen asserts that the “allegation only weakly assumes that such communications commonly cross state lines without proffering any evidence in the complaint or through the discovery process that” his communications crossed state lines. Jurisdictional MTD at 3. Accordingly, Nissen requests the Court dismiss the Indictment for lack of subject-matter jurisdiction. See Jurisdictional MTD at 3.

         3.The First Amendment MTD.

         Nissen also filed a Motion to Dismiss on First Amendment Grounds. See MTD at 1. Nissen begins by asserting that the “First Amendment denies government ‘the power to prohibit dissemination of social, economic, and political doctrine which a vast majority of its citizens believe to be false and fraught with evil consequence.'” MTD at 2 (quoting Whitney v. California, 274 U.S. 357, 374 (1927)(Sanford, J.)). Nissen concedes, however, that the protections which the First Amendment affords “are not absolute” and that the “government may lawfully regulate certain categories of speech[.]” MTD at 2. One of these categories, Nissen notes, is speech containing true threats. See MTD at 2. Nissen describes that true threats “‘encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.'” MTD at 2 (quoting Virginia v. Black, 538 U.S. 343, 359 (2003)).

         Nissen frames the inquiry as “whether [his] communications are political speech, exaggeration, or something said in a joking manner that is protected by the First Amendment or whether they fall within the definition of a true threat that may be lawfully regulated under 18 U.S.C. § 875(c).” MTD at 3. Nissen characterizes his communications as “conditional threats” which “may not be the kind of statement[s] that [are] proscribed by 18 U.S.C. § 875(c).” MTD at 3. Nissen analogizes his comments to those at issue in Watts v. United States, 394 U.S. 705 (1969)(per curiam), in which the defendant stated, at a political rally, that, “‘if they ever make me carry a rifle, the first man I want to get in my sights is L.B.J., '” then-president of the United States. MTD at 3 (quoting Watts v. United States, 394 U.S. at 706). Nissen describes that the Supreme Court of the United States of America held that the comments were “not a prosecutable threat, ” given the threat's “conditional nature . . ., the fact that it was made during a political discussion, and the fact that the response of the audience was laughter. In context, the statement is political hyperbole, albeit extreme.” MTD at 3. Nissen analogizes those comments to his own. See MTD at 3. He argues that he

contacted a police dispatcher to complain about rights violated, and the police dispatcher could not be a victim if the complaint or threat were carried out. Furthermore, Mr. Nissen's threat to kill pigs was figurative and conditioned on his constitutional rights being violated and him defending himself in that event.

MTD at 3-4. Nissen further argues that “a threat is not to be construed as conditional if it had a reasonable tendency to create apprehension that its originator will act in accordance with its tenor.” MTD at 4 (citing United States v. Bozeman, 495 F.2d 508, 510 (5th Cir. 1974)). Nissen describes his alleged threats as “figurative language, ” which no reasonable jury could conclude amount to true threats, “particularly in light of the fact that [the] dispatcher was warned by hyperbole that pigs would be shot on the condition that Nissen's rights were violated.” MTD at 4. Accordingly, Nissen requests that the Court conclude that the Indictment “violates Mr. Nissen's right to free speech” and dismiss the Indictment. MTD at 1.

         4.The Response.

         The United States filed a Response to Defense Motions to Dismiss Indictment on May 28, 2019 (Doc. 28)(“Response”). The United States first argues against Nissen's jurisdictional argument. See Response at 1. The United States asserts that 18 U.S.C. § 875(c)'s jurisdictional element “can be met solely on the route of transmission, where sender and recipient were both in the same state.” Response at (citing United States v. Kammersell, 196 F.3d 1137 (10th Cir. 1999)). The United States asserts that § 875(c) does not require that the threat's recipient be in another state, just that the threat itself crosses state lines on its way to the intrastate recipient. See Response at 1. The United States then avers that it “is willing and able to demonstrate that [Nissen's calls] were routed by T-Mobile through switch TTAS005, and that TTAS005 is located in Plano, Texas.” Response at 2. On this point, the United States also asserts that the Indictment's allegations are sufficient, as it tracks § 875(c)'s language, which is “‘ordinarily sufficient in itself to defeat an attack on the sufficiency of the indictment.'” Response at 2 (quoting United States v. Moore, 556 F.2d 479, 482 (10th Cir. 1977)). Accordingly, the United States requests that the Court deny Nissen's MBP and Jurisdictional MTD. See Response at 2.

         The United States then turns to Nissen's First Amendment argument. See Response at 2. The United States characterizes Nissen's argument as asserting that he “has a free-speech right to threaten in interstate commerce to shoot people in the head.” Response at 2. The United States asserts that whether a statement amounts to a true threat is a jury issue, and that the United States “will prove beyond any reasonable doubt that [Nissen] made true threats in interstate commerce to injury the person of another[.]” Response at 3. Accordingly, the United States requests the Court deny Nissen's MTD. See Response at 3.

         5.The July 26, 2019, Hearing.

         The Court held a hearing on July 26, 2019. See Transcript of Motions Hearing at 1:4-7 (taken July 26, 2017)(“Tr.”).[3] At the hearing, Nissen noted that, since he filed the Jurisdictional MTD, “the Government has provided some discovery regarding the particular element that the communication crossed interstate lines.” Tr. at 3:8-10 (Mkhitarian). Nissen accordingly asked to “defer the motion to the time of trial, ” effectively converting the Jurisdictional MTD to one for a directed verdict. Tr. at 3:10-16 (Court, Mkhitarian). The United States opposed Nissen's request, arguing that jurisdictional elements “only have to be shown to the Court whenever they're challenged” and asserted that it had done so with Nissen's telephone records. Tr. at 4:1-10 (Mysliwiec). The United States argued that Nissen was now trying to convert his MBP into a motion for directed verdict in an effort to require the United States to prove jurisdiction at trial. See Tr. at 4:10-13 (Mysliwiec). The United States conceded, however, that the United States Court of Appeals for Tenth Circuit's pattern jury instructions for § 875(c) require the United States to prove that communications were transmitted through interstate commerce. See Tr. at 4:15-22 (Court, Mysliwiec). Accordingly, Nissen stipulated to the Court's jurisdiction for the purpose of holding the July 26, 2019, motions hearing. See Tr. at 6:19-7:4 (Mkhitarian, Court).

         Nissen then turned to his MTD. See Tr. at 9:12-16 (Court, Mkhitarian). The Court indicated its view that Nissen's First Amendment argument seems more fact-specific than constitutional or categorical. See Tr. at 9:17-10:4 (Court). The Court noted that whether a statement is a true threat is largely context-specific, as few statements can categorically be labeled true threats. See Tr. at 10:8-22 (Court). The Court identified, and Nissen agreed, that the “crux” of his argument is whether his statements were reasonably understood as true threats. Tr. at 14:5-9 (Court, Mkhitarian). Nissen responded, however, that in “today's political climate, ” Nissen intended, and a reasonable listener would conclude, that his statements were “political speech with regard to whether or not someone's rights could be violated and what happens if their rights are violated.” Tr. at 14:12-23 (Mkhitarian). Nissen agreed, however, that his First Amendment argument would more properly be couched as a directed verdict, and so reserved his motion for trial. See Tr. at 16:6-8 (Mkhitarian). Accordingly, the Court denied the MTD without prejudice so Nissen could renew that argument as a motion for a directed verdict. See Tr. at 18:20-25 (Court).

         6.The ...


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