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United States v. Carrillo

United States District Court, D. New Mexico

January 15, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO CARRILLO, Defendant.

          MEMORANDUM OPINION AND ORDER

          Kea W. Riggs United States District Judge.

         THIS MATTER comes before the Court upon Defendant's Motion to Dismiss Indictment, filed December 13, 2019 (Doc. 45). Having reviewed the parties' pleadings and exhibits, the Court finds that Defendant's motion is not well-taken and, therefore, is DENIED.

         BACKGROUND

         On July 9, 2019, the Grand Jury returned an indictment charging Defendant with one count of transmitting in interstate or foreign commerce a communication containing any threat to kidnap any person or any threat to injure the person of another, in violation of 18 U.S.C. § 875(c).

         The indictment provides:

On or about June 19, 2019, in Valencia County, in the District of New Mexico, the defendant, ANTONIO CARRILLO, knowingly and willfully did transmit in interstate commerce via Facebook, and interstate social media company, a communication, specifically a social media post, to the American Civil Liberties Union, and the communication contained a threat to injure American Civil Liberties Union Personnel.

Doc. 10. The alleged threat was posted as a comment on a Facebook threat, and reads as follows:

“You Bitches Want a Physical Civil War.. I'm Game..I'll bring My Farm Implements and They will Never find your Bodies..AND for Fun I'll BURN Every ACLU Office in the State.. GO TRUMP GO.!”

Doc. 3 at 6 (complaint). Defendant also allegedly made the following post on Twitter publicly directed to @realDonaldTrump:

“@realDonaldTrump, YOU Say YOU are going to DEPORT Thousands.. People are Saying, ; I'LL believe it when I see it..Personally When Civil War Starts.. I'm Going to Burn Down EVERY ACLU Office in New Mexico.”

Doc. 3 at 6. The indictment charges Defendant for the Facebook post, but not the Twitter post.

         DISCUSSION

         I. Indictment is Sufficient to Apprise Defendant of the Essential Elements.

         Defendant argues that the indictment is insufficient, because it omits an element of the crime charged. Pursuant to Federal Rule of Criminal Procedure 12(b)(3), a motion may raise “a defect in the indictment or information, including ...


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