United States District Court, D. New Mexico
C. Anderson United States Attorney Paul Mysliwiec Jack
Burkhead Alexander Mamoru Max Uballez Assistant United States
Attorneys Albuquerque, New Mexico Attorneys for the Plaintiff
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
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.
Court takes its background facts from the Criminal Complaint,
filed December 19, 2018 (Doc. 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.
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
email@example.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,
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.
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).
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.
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
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.
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)).
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
T-Mobile uses a cellular network on a GSM 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
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
First Amendment MTD.
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
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
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.
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.
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.
July 26, 2019, Hearing.
Court held a hearing on July 26, 2019. See
Transcript of Motions Hearing at 1:4-7 (taken July 26,
2017)(“Tr.”). 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
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).