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Computer underground Digest Sun Jul 8, 1995 Volume 7 : Issue 57
ISSN 1004-042X
Editors: Jim Thomas and Gordon Meyer (TK0JUT2@MVS.CSO.NIU.EDU
Archivist: Brendan Kehoe
Shadow Master: Stanton McCandlish
Field Agent Extraordinaire: David Smith
Shadow-Archivists: Dan Carosone / Paul Southworth
Ralph Sims / Jyrki Kuoppala
Ian Dickinson
la Triviata: Which wine goes best with Unix?
CONTENTS, #7.57 (Sun, Jul 8, 1995)
File 1--Text of Jake Baker Decison
File 2--Cu Digest Header Info (unchanged since 19 Apr, 1995)
CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.
---------------------------------------------------------------------
Date: Sun, 9 Jul 1995 02:21:42 -0500
From: jthomas@SUN.SOCI.NIU.EDU(Jim Thomas)
Subject: File 1--Text of Jake Baker Decison
((From: http://ic.net/~sberaha/baker.html--Jake Baker is the
University of Michigan student who was indicted under federal law for
stories he wrote on alt.sex.stories. The case has been summarized in
previous CuD issues. The judge dismissed the case. Below is the
ruling)).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v. Criminal No. 95-80106
Honorable Avern Cohn
JAKE BAKER and ARTHUR GONDA,
Defendants.
___________________________________/
OPINION
"It is not the policy of the law to punish those unsuccessful
threats which it is not presumed would terrify ordinary persons
excessively; and there is so much opportunity for magnifying or
misunderstanding undefined menaces that probably as much mischief
would be caused by letting them be prosecuted as by refraining from
it."
The People v. B. F. Jones, 62 Mich. 304 (1886).
I. Introduction
This is a criminal prosecution under 18 U.S.C. $ 875(c). Defendant
Jake Baker (Baker) is charged in a superseding indictment with five
counts of transmitting threats to injure or kidnap another, in
electronic mail (e-mail) messages transmitted via the Internet.[1] Now
before the Court is Baker's motion to quash the superseding
indictment.[2] For the reasons that follow, the motion will be
granted.
II. Background
The e-mail messages that form the basis of the charges in this case
were exchanged in December, 1994 between Baker in Ann Arbor, Michigan,
and defendant Arthur Gonda (Gonda), who sent and received e-mail
through a computer in Ontario, Canada. Gonda's identity and
whereabouts are unknown. The messages excerpted in the superseding
indictment are drawn from a larger e-mail exchange between Gonda and
Baker began on November 29, 1994, and ended on January 25, 1995. The
specific language of the messages excerpted in the superseding
indictment will be discussed in detail below. They all express a
sexual interest in violence against women and girls.
Baker first appeared before a United States Magistrate Judge on a
criminal complaint alleging violation of 18 U.S.C. $ 875(c), on
February 9, 1995. The complaint was based on an FBI agent's affidavit
which cited language taken from a story Baker posted to an Internet
newsgroup entitled "alt.sex.stories," and from e-mail messages he sent
to Gonda. The story graphically described the torture, rape, and
murder of a woman who was given the name of a classmate of Baker's at
the University of Michigan. The "alt.sex.stories" newsgroup to which
Baker's story was posted is an electronic bulletin board, the contents
of which are publicly available via the Internet. Much of the
attention this case garnered centered on Baker's use of a real
student's name in the story.[3] The e-mail messages exchanged between
Gonda and Baker were private, and not available in any publicly
accessible portion of the Internet.[4]
Baker was arrested on the complaint and warrant on February 9, 1995,
and detained overnight. The complaint and warrant is dated the same
day. The following day, February 10, 1995, after holding a hearing a
Magistrate Judge ordered Baker detained as a danger to the community.
His detention was affirmed by a United States District Judge later
that day. On March 8, 1995, this Court held a hearing on Baker's
motion to be released on bond, and ordered that a psychological
evaluation of Baker be performed. The psychological evaluation was
received on March 10, 1995. The evaluation concluded that Baker did
not pose a threat, and the Court ordered him released that day.[5]
On February 14, 1995 the government charged Baker with violating 18
U.S.C. $ 875(c) in a one count indictment based on unspecified
communications transmitted in interstate and foreign commerce from
December 2, 1994 through January 9, 1995. Presumably included in the
communications was the story Baker posted. On March 15, 1995, the
government charged Baker and Gonda in a superseding indictment with
five counts of violating 18 U.S.C. $ 875(c). The story on which the
initial complaint was partially based is not mentioned in the
superseding indictment, which refers only to e-mail messages exchanged
between Gonda and Baker.[6] The government has filed a bill of
particulars identifying who it perceives to be the objects of the
allegedly threatening transmissions, as well as witness and exhibit
lists.
Baker, who is named in all five of the superseding indictment's
counts, has filed a motion seeking dismissal of all the counts of the
superseding indictment. He contends that application of 18 U.S.C. $
875(c) to the e-mail transmissions pushes the boundaries of the
statute beyond the limits of the First Amendment. The government
responds that the motion must be denied because the First Amendment
does not protect "true threats," and because whether a specific
communication constitutes a true threat is a question for the jury.
III. The Law
Eighteen U.S.C. $ 875(c) reads:
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 government must allege and prove three elements to support a
conviction under $ 875(c): "(1) a transmission in interstate [or
foreign] commerce; (2) a communication containing a threat; and (3)
the threat must be a threat to injure [or kidnap] the person of
another." United States v. DeAndino, 958 F.2d 146, 148 (6th Cir.),
cert. denied, 112 S. Ct. 2997 (1992). The Court of Appeals for the
Sixth Circuit, like most others, has held that $ 875(c) requires only
general intent. Id. at 149. But see, United States v. Twine, 853 F.2d
676 (9th Cir. 1988) (finding a specific intent requirement in $
875(c)).[7] Because $ 875(c) is a general intent crime, intent must be
proved by "objectively looking at the defendant's behavior in the
totality of the circumstances," rather than by "probing the
defendant's subjective state of mind." DeAndino, 958 F.2d at 149. The
Sixth Circuit has also held that "a specific individual as a target of
the threat need not be identified." United States v. Cox, 957 F.2d
264, 266 (6th Cir. 1992). Even so, the threat must be aimed as some
discrete, identifiable group. See id. (involving threat to "hurt
people" at a specific bank); United States v. Lincoln, 589 F.2d 379
(8th Cir. 1979) (involving letters threatening to kill judges of the
Eighth Circuit, under 18 U.S.C. $ 876). The threat need not be
communicated to the person or group identified as its target. See
United States v. Schroeder, 902 F.2d 1469, 1470-71 (10th Cir.), cert.
denied,, 498 U.S. 867 (1990) (affirming $ 875(c) conviction for a
threat against people at a post office made to an Assistant United
States Attorney); United States v. Kosma, 951 F.2d 549, 555 (3rd Cir.
1991) (listing cases in which threats against the President were made
to third persons, under 18 U.S.C. $ 871).
Because prosecution under 18 U.S.C. $ 875(c) involves punishment of
pure speech,[8] it necessarily implicates and is limited by the First
Amendment. Although the Supreme Court has not addressed the
constitutionally permissible scope of $ 875(c), it has considered a
similar statute concerning threats against the President, 18 U.S.C. $
871(a),[9] in Watts v. United States, 394 U.S. 705. In Watts, the
Supreme Court recognized that:
a statute such as this one, which makes criminal a form of pure
speech, must be interpreted with the commands of the First Amendment
clearly in mind. What is a threat must be distinguished from what is
constitutionally protected speech.
Id. at 707. Under Watts, to pass constitutional muster the government
must initially prove "a true 'threat.'" Id. Factors mentioned in Watts
as bearing on whether a specific statement can be taken as a true
threat include the context of the statement, including whether the
statement has a political dimension; whether the statement was
conditional; and the reaction of the listeners. Id.[10] Watts also
makes clear that the question of whether a statement constitutes a
true threat in light of the First Amendment is distinct from the
question of the defendant's intent: "whatever the 'willfulness'
requirement implies, the statute initially requires the Government to
prove a true 'threat.'" Id.[11]
The distinction between the two questions of whether a statement is a
"true threat" for the purposes of First Amendment limitation, and the
intention of the statement's maker, is important but unfortunately
often confused. The confusion results from too loose a use of the
phrase "true threat."
The only extended discussion of the constitutional dimension of the
"true threat" requirement with regard to $ 875(c) is found in United
States v. Kelner, 534 F.2d 1020 (2d Cir.), cert. denied, 429 U.S. 1022
(1976). In Kelner, the Second Circuit drew on Watts to illuminate the
constitutional limits of a prosecution under $ 875(c):
The purpose and effect of the Watts constitutionally-limited
definition of the term "threat" is to insure that only unequivocal,
unconditional and specific expressions of intention immediately to
inflict injury may be punished--only such threats, in short, as are
of the same nature as those threats which are . . . "properly
punished every day under statutes prohibiting extortion, blackmail
and assault without consideration of First Amendment issues." Watts,
402 F.2d at 690.
* * *
So long as the threat on its face and in the circumstances in which
it is made is so unequivocal, unconditional, immediate and specific
as to the person threatened, as to convey a gravity of purpose and
imminent prospect of execution, the statute may properly be applied.
This clarification of the scope of 18 U.S.C. $ 875(c) is, we trust,
consistent with a rational approach to First Amendment construction
which provides for governmental authority in instances of inchoate
conduct, where a communication has become "so interlocked with
violent conduct as to constitute for all practical purposes part of
the [proscribed] action itself."
Kelner, 534 F.2d at 1027 (quoting T. Emerson, The System of Freedom of
Expression, 329 (1970)). Cf. Brandenburg v. Ohio, 395 U.S. 444, 447
(1969) ("the constitutional guarantees of free speech and free press
do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite
or produce such action.")
The government argues that the standard announced in Kelner is "far
more stringent" than the governing standard in the Sixth Circuit. For
the Sixth Circuit "true threat" standard, the government refers the
Court to United States v. Lincoln, 462 F.2d 1368, cert. denied, 409
U.S. 952 (1972). In citing Lincoln for the "true threat" standard, the
government confuses the constitutional "true threat" requirement with
the statutory intent requirement. In relevant part, Lincoln reads:
This Court therefore construes the willfulness requirement of the
statute to require only that the defendant intentionally make a
statement, written or oral, in a context or under such circumstances
wherein a reasonable person would foresee that the statement would
be interpreted by those to whom the maker communicates the statement
as a serious expression of an intention to inflict bodily harm upon
or take the life of the President, and that the statement not be the
result of mistake, duress, or coercion. The statute does not require
that the defendant actually intend to carry out the threat.
Lincoln, 462 F.2d at 1368 (quoting and adopting standard from Roy v.
United States, 416 F.2d 874, 877-78 (9th Cir. 1969)) (emphasis added).
Lincoln addresses the statute's intent requirement, and adopts the
Ninth Circuit's formulation of the intent required.[12] It does not
speak to the constitutional "true threat" requirement imposed by the
First Amendment and elucidated in Watts and Kelner. United States v.
Glover, 846 F.2d 339, 343-44 (6th Cir.), cert. denied, 488 U.S. 982
(1988) and United States v. Vincent, 681 F.2d 462, 464 (6th Cir.
1982), also cited by the government, quote the same language from Roy
and also address the statutory intent requirement rather than the
constitutional limits of the statute. None of these cases indicate
that a different constitutional standard for prosecution under $
875(c) applies in the Sixth Circuit than in the Second Circuit.[13]
The confusion between the two requirements is understandable, because
the phrase "true threat" has been used in the context of both
requirements. Both the Ninth and Seventh Circuits have stated that the
government must meet the Roy general intent standard in order to make
out a "true threat." Melugin v. Hames, 38 F.3d 1478, 1484 (9th Cir.
1994) (under Alaska statute AS 11.56.510(a)(1)); United States v.
Khorrami, 895 F.2d 1186, 1193 (7th Cir.), cert. denied, 498 U.S. 986
(1990). That the phrase "true threat" has been used to describe both
the statutory intent requirement and the constitutional
"unconditional, unequivocal, immediate and specific" requirement does
not imply that the two requirements are identical, or that any
statement which meets the intent requirement may be prosecuted under $
875(c) without running afoul of the First Amendment. Typically, in the
cases focussing on the intent requirement, there is no dispute that
the statement satisfies the constitutional standard, and the defendant
seeks dismissal or reversal of his conviction on the ground that he or
she lacked the requisite intent. See, e.g., United States v. Lincoln,
462 F.2d at 1369 ("[a]pellant contends that the statute is violated
only when a threat is uttered with a willful intent to carry it
out."); United States v. Hoffman, 806 F.2d 703, 712 (7th Cir. 1986)
(concluding that "it was reasonable for the jury to conclude that
Hoffman intended the letter as a serious expression of his intent to
harm the President.") (quoted in Khorrami, 895 F.2d 1186).[14]
Kelner's standard for a prosecution under 18 U.S.C. $ 875(c) is not
only constitutionally required, but also is consistent with the
statute's legislative history. The law which was eventually codified
as 18 U.S.C. $ 875(c) was first passed in 1932, Pub. L. No. 72-274
(1932), and criminalized use of the mail to transmit a threat to
injure or kidnap any person (or to injure a person's property or
reputation), or to accuse a person of a crime or demand ransom for a
kidnapped person. Id. The communication had to be sent "with intent to
extort . . . money or any thing of value" to fall under the act. Id. A
motivating factor for passage of the 1932 act was the kidnapping of
Charles Lindbergh's son, and the concomitant use of the mail to convey
the kidnappers' threats and demands. H.R. Rep. No. 602, 72d Congress,
1st Sess. (1932).
The act was addressed to the constitutionally unproblematic case, like
the Lindbergh case, identified in Kelner: "where a communication has
become 'so interlocked with violent conduct as to constitute for all
practical purposes part of the [proscribed] action itself.'" Kelner,
534 F.2d at 1027. The act was modified in 1934, Pub. L. No. 73-231
(1934), as increasingly sophisticated criminals had taken to using
means other than the mail, such as the telephone and telegraph, to
transmit their threats. S. Rep. No. 1456, 73d Congress, 2d Sess.
(1934). As modified, it applied to threats transmitted "by any means
whatsoever," but still required extortionate intent. Pub. L. No.
73-231 (1934). In 1939 the act, Pub. L. No. 76-76 (1939), was expanded
to apply to threats to kidnap or injure that were not made with
extortionate intent. Id. The act's expansion was prompted by the
recognition that many threats "of a very serious and socially harmful
nature" were not covered by the existing law because "the sender of
the threat did not intend to extort money or other thing of value for
himself." H.R. Rep. No. 102, 76th Congress, 1st Sess. (1939). An
example of such a threat mentioned in the in the Report was one
directed to a governor, threatening to blow up the governor's home if
certain defendants in a criminal case were not released. As modified,
while an "extortionate" intent was no longer required, the act was
still intended to address threats aimed at accomplishing some coercive
purpose, such as the release of the defendants in the given example.
The modified statute still targets threats which, like the example,
are unlikely to offend the constitutional standard articulated in
Kelner.
Threats aimed at achieving some coercive end remain the typical
subject of more contemporary cases. In Cox, for instance, the
defendant's truck was repossessed while it contained items of his
personal property. The defendant telephoned the bank that had had the
truck repossessed and stated "I tell you what, you all better have my
personal items to me by five o'clock today or it[']s going to be a lot
of hurt people there." Cox, 957 F.2d at 265. The threat was designed
to effect the return of the defendant's property, it targeted the
people at the bank, and it was found not to be conditional (in part
because his property could not have been returned by the five o'clock
deadline). It falls within Kelner's requirement of a threat that is
"so unequivocal, unconditional, immediate and specific as to the
person threatened, as to convey a gravity of purpose and imminent
prospect of execution." 534 F.2d at 1027.
Similarly, in Schroeder, the defendant had sued the government for
denial of employment preference under a veterans benefit program. 902
F.2d at 1470. After losing his civil suits, the defendant called an
Assistant United States Attorney and threatened to shoot people at a
post office if he did not obtain satisfaction from the government; he
stated that "the government either gives [him] money or people would
get hurt." Id. Schroeder involves an explicitly extortionate threat
aimed at people in post offices. Although the case appears to strain
the constitutional standard, particularly with regard to the
requirement of immediacy, the defendant did not raise a constitutional
challenge on appeal.
While coercive or extortionate threats are paradigmatic subjects of a
prosecution under 18 U.S.C. $ 875(c), a threat which is neither
coercive nor extortionate may still satisfy the constitutional test
from Kelner; indeed, Kelner itself involved a non-coercive threat to
assassinate the PLO leader Yasser Arafat. Kelner, 534 F.2d at 1025.
See also, DeAndino, 958 F.2d at 146 (regarding threat that defendant
was going to "blow [the victim's] brains out," and the victim was
"going to die.") Nevertheless, a coercive or extortionate threat is
particularly likely to be a constitutionally prosecutable "true
threat" because it is particularly likely to be intimately bound up
with proscribed activity.
Another important factor in analyzing a threat under 18 U.S.C. $
875(c) is the recipient of the communication in question. As the Sixth
Circuit stated in Lincoln (in the context of $ 871(a)), the statutory
general intent element requires that "a reasonable person would
foresee that the statement would be interpreted by those to whom the
maker communicates the statement as a serious expression of an intent
to inflict bodily harm" or kidnap a person. 462 F.2d at 1368. Thus in
Cox, the Sixth Circuit looked to the reaction of the recipient of the
defendant's telephone call, as well as that of the person to whom the
defendant asked to speak.[15] Cox, 957 F.2d at 266. In Schroeder, the
appropriate focus in considering the defendant's statements is how
they would be interpreted by the Assistant United States Attorney who
heard them, and by those to whom we could foreseeably relay them. A
statement which would not be interpreted by any foreseeable recipient
as expressing a serious intention to injure or kidnap simply is not a
threat under the statute. While it is not necessary that the statement
prosecuted under 18 U.S.C. $ 875(c) be communicated to the would-be
target of the alleged threat, the statement must be evaluated in light
of foreseeable recipients of the communication.
Evaluating a statement charged under 18 U.S.C. $ 875(c) in light of
its foreseeable recipients is consistent with the aims of the statute
and the First Amendment. In the case of a coercive or extortionate
threat, the maker of the statement obviously cannot achieve his or her
end if the recipient of the statement does not take it as expressing a
serious intention to carry out the threatened acts. If the coercive or
extortionate threat is likely to be taken seriously by its recipient,
then the threat is "so interlocked with violent conduct as to
constitute for all practical purposes part of the [proscribed] action
itself." Kelner, 534 F.2d at 1027. A communication containing an
alleged non-coercive threat may be regulated consonant with the First
Amendment, under the analysis in R.A.V. v. City of St. Paul, ___ U.S.
___, ___, 120 L.Ed.2d 305, 321 (1992), in order to "protect[]
individuals from the fear of violence, from the disruption that fear
engenders, and from the possibility that the threatened violence will
occur." If the alleged threat would not be interpreted by its
foreseeable recipients as a serious expression of an intention to do
the "threatened" acts, it does not implicate fear of violence or the
disruption that fear engenders, and does not suggest a real
possibility that the "threatened" violence will occur. The statement
thus would not be a "true threat" for the purposes of the First
Amendment.
Whether or not a prosecution under $ 875(c) encroaches on
constitutionally protected speech is a question appropriately decided
by the Court as a threshold matter. In the context of the Smith Act,
18 U.S.C. $ 2381 et seq., which makes it a crime knowingly or
willfully to advocate the overthrow or destruction of the United
States government by force or violence, the Supreme Court has held
that "[w]hen facts are found that establish the violation of a
statute, the protection against conviction afforded by the First
Amendment is a matter of law" requiring a judicial determination.
Dennis v. United States, 341 U.S. 494, 513 (1951) (construing Act as
codified at 18 U.S.C. (1946 ed.) $ 11, 54 Stat. 671). In the context
of $ 875(c), the Second Circuit has recognized that "[m]ost cases are
within a broad expanse of varying fact patterns which may not be
resolved as a matter of law, but should be left to a jury," but has
said that where the factual proof of a "'true' threat" is
"insufficient as a matter of law," the indictment is properly
dismissed before reaching the jury. United States v. Carrier, 672 F.2d
300, 306 (2d Cir.), cert. denied, 457 U.S. 1139 (1982). Although the
government argues that "whether a statement is a true threat is to be
decided by the trier of fact," it recognizes that where "the language
set forth . . . is so facially insufficient that it cannot possibly
amount to a true threat," the Court may properly dismiss the
indictment. Id.; accord Kosma, 951 F.2d at 555; United States v.
Gilbert, 884 F.2d 454, 458 (9th Cir. 1989), cert. denied, 493 U.S.
1082 (1990); United States v. Howell, 719 F.2d 1258, 1260 (5th Cir.
1983), cert. denied, 467 U.S. 1228 (1984); Lincoln, 589 F.2d at 382.
Whether the language set forth in the superseding indictment could
possibly constitute a "true threat" must be determined in accord with
Kelner's articulation of the constitutional requirement of a
threat which on its face and in the circumstances in which it is
made is so unequivocal, unconditional, immediate and specific as to
the person threatened, as to convey a gravity of purpose and
imminent prospect of execution.
Kelner, 534 F.2d at 1027. Whether or not Baker actually intended to
carry out the actions described in the communications is irrelevant to
the constitutional inquiry.
IV. The Communications
The government characterizes the e-mail dialogue between Gonda and
Baker in December, 1994 as reflecting "the evolution of their activity
from shared fantasies to a firm plan of action." The government's
characterization of the ongoing dialogue suggests that at least some
of the counts in the superseding indictment should be dismissed;
messages constituting "shared fantasies" fall short of the Kelner
standard of an unequivocal, unconditional, immediate and specific
threat conveying an imminent prospect of execution and therefore are
not "true threats" unprotected by the First Amendment.
As the Court construes the law as discussed above, the constitutional
standard enunciated in Kelner requires, at the very least, that a
statement charged under $ 875(c) contain some language construable as
a serious expression of an intent imminently to carry out some
injurious act. The language of the statement must be considered as it
would be interpreted by the foreseeable recipients of the
communication containing it. Statements expressing musings,
considerations of what it would be like to kidnap or injure someone,
or desires to kidnap or injure someone, however unsavory, are not
constitutionally actionable under $ 875(c) absent some expression of
an intent to commit the injury or kidnapping.[16] In addition, while
the statement need not identify a specific individual as its target,
it must be sufficiently specific as to its potential target or targets
to render the statement more than hypothetical.
Before addressing the specific language quoted in the indictment,
several observations pertain to all of the government's charges.
First, all of the language for which Baker is charged was contained in
private e-mail messages he sent to Gonda. The messages were not
available in any publicly accessible part of the Internet, and there
is no allegation that they were ever distributed in any format,
electronic or hardcopy, to anyone other than Gonda. Nothing in these
private messages suggests that they would be further distributed. It
is only as a result of this prosecution and the ensuing publicity that
the content of the messages has been publicly aired.
The focus of the inquiry here, therefore, is how a reasonable person
would expect Gonda to interpret the e-mail messages. Gonda's identity
is entirely unknown; "he" could be a ten year old girl, an eighty year
old man, or a committee in a retirement community playing the role of
Gonda gathered around a computer.[17] All that is known about Gonda is
that he used a computer account based in Ontario, Canada, and that he
apparently enjoyed exchanging with Baker what he referred to in an
e-mail message dated January 3, 1995, as "REAL sex talk" concerning
violence against women and girls. The language referred to by the
government clearly does not constitute threats of a coercive or
extortionate nature. It would be patently unreasonable after reading
his messages to think that Baker's communications caused their only
foreseeable recipient, Gonda, to fear violence, or caused him any
disruption due to fear of violence. Of the grounds for prosecution of
threats identified in R.A.V., the only one that could apply here is
protection from the possibility that threatened violence will occur.
___ U.S. at ___, 120 L.Ed.2d at 321.
The government characterizes the communications between Gonda and
Baker as evolving into "a firm plan of action." Section 875(c),
though, does not address planning crimes, per se, but transmitting
threats to injure or kidnap. At oral argument, the government agreed
the exchange between Gonda and Baker could be characterized as an
exchange between coconspirators. In order to prove the existence of a
conspiracy, generally, the government must prove an agreement between
two or more people to act together in committing an offense, and also
an overt act in furtherance of the conspiracy. E.g., United States v.
Reifsteck, 841 F.2d 701, 704 (6th Cir. 1988); 18 U.S.C. $ 371; Sixth
Circuit Pattern Criminal Jury Instructions 3.01A, 3.04. The charges
here could not support a conspiracy prosecution because no overt act
is alleged. The only actions involved in this prosecution are
speech--"the outward expression of what a person thinks in his mind."
Vance v. Judas Priest, et al., 1990 WL 130920, *28 (Nev. Dist. Ct.
1990). In an e-mail exchange not quoted in the superseding
indictment,[18] Baker and Gonda discuss sharing their thoughts, a
classically protected activity. Baker had said to Gonda, in part: "I'd
love to meet with you. There's no one else I can share my thoughts
with." On November 29, 1994, Gonda responded in part: "I would really
love to meet with you. I find that I am going insane trying to keep
all these thoughts to myself. . . maybe we could even try to pick up
some chicks and share our thoughts with them. . . what do you think?"
Even if Gonda and Baker were conspiring, it does not follow that they
are guilty of transmitting a threat to injure or kidnap under 18
U.S.C. $ 875(c). Section 875(c) is not simply a conspiracy statute
minus the overt act requirement. In order to be constitutionally
sanctionable, the statements Baker made must meet Kelner's
"unequivocal, unconditional, immediate, and specific" standard. As
Justice Brandeis wrote:
Fear of serious injury cannot alone justify suppression of free
speech. . . To justify suppression of free speech there must be
reasonable ground to fear that serious evil will result if free
speech is practiced. There must be reasonable ground to believe that
the danger apprehended is imminent.
Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J.,
concurring).[19]
A.
Count I charges Baker and Gonda with transmitting a threat to injure,
and quotes from three e-mail messages. In the first message quoted,
dated December 1, 1994, Baker responds to a message he had received
from Gonda:
I highly agree with the type of woman you like to hurt. You seem to
have the same tastes I have. When you come down, this'll be fun!
Also, I've been thinking. I want to do it to a really young girl
first. !3 or 14.[20] There innocence makes them so much more fun ---
and they'll be easier to control. What do you think? I haven't read
your entire mail yet. I've saved it to read later, in private. I'll
try to write another short phantasy and send it. If not tomorrow,
maybe by Monday. No promises.
On December 2, Gonda responded:
I would love to do a 13 or 14 year old. I think you are right...not
only their innocence but their young bodies would really be fun to
hurt. As far as being easier to control...you may be right, however
you can control any bitch with rope and a gag...once tey are tieed
up and struggling we could do anything we want to them...to any
girl. The trick is to be very careful in planning. I will keep my
eye out for young girls, and relish the fantasy...BTW[21] how about
your neighbour at home, youm may get a chance to see her...?...?
The same day, Baker responded:
True. But young girls still turn me on more. Likely to be nice and
tight. Oh.they'd scream nicely too!
Yeah. I didn't see her last time I was home. She might have moved.
But she'd be a great catch. She's real pretty. with nice long legs.
and a great girly face ... I'd love to make her cry ...
The bill of particulars identifies the targets of these statements as:
13 and 14-year old girls who reside in Defendant Jake Baker's
neighborhood in Ann Arbor, Michigan, and teen-age girls who reside
in Defendant Jake Baker's neighborhood in Boardman, Ohio.
This Count falls short of the constitutional "true threat"
requirement. As an initial matter, it does not refer to a sufficiently
specific class of targets. The more limited class identified in the
bill of particulars is not apparent from the face of the
communications. Nothing in the exchange quoted in Count I implicitly
or explicitly refers to 13 or 14 year old girls in Ann Arbor, nothing
in the exchange identifies Boardman, Ohio (Baker's actual home) as the
"home" referred to, and nothing in the exchange allows one to
determine that the neighbor discussed is a teen-age girl. In reality,
the only class of people to whom the messages can be taken to refer is
13 or 14 year old girls, anywhere. This class is too indeterminate to
satisfy Kelner's requirement of specificity as to the person
threatened, even under the liberal interpretation given the
requirement by some courts. Cf. Schroeder, 902 F.2d at 1470 (targeting
people at an unidentified post office).
As to the content of the messages, Baker's discussing his "tastes" in
the first paragraph of his December 1 message does not involve any
identifiable threatened action. In the second paragraph of the
December 1 message, he expresses a desire "to do it to" a 13 or 14
year old girl. Even assuming that more context would clarify the
phrase "to do it to," the second paragraph also fails to mention an
intention to do anything. Rather, it seeks Gonda's reaction to Baker's
desire, asking: "What do you think?" Discussion of desires, alone, is
not tantamount to threatening to act on those desires. Absent such a
threat to act, a statement is protected by the First Amendment.
As to Baker's message of December 2, the first paragraph again
discusses a predilection toward "young girls," and what it would be
like, presumably, "to do it to" "young girls." It does not mention any
intention to act in accordance with the expressed predilection. The
second paragraph responds to Gonda's question about a neighbor "at
home." It says "she'd be a great catch," but expresses no intention to
"catch" her, and indicates a desire to "make her cry," but, again,
expresses no intention to take any action in accordance with that
desire. It is not constitutionally permissible under Kelner to infer
an intention to act on a desire from a simple expression of the
desire. The intention (whether or not actually held) must itself be
expressed in the statement. Count I fails to meet this standard, and
must be dismissed.
B.
Counts II and III are based on the same statement made by Baker in an
e-mail message dated December 9, 1994, and charge Baker with making a
threat to kidnap and a threat to injure, respectively. The statement
for which Baker is charged in the two counts reads:
I just picked up Bllod Lust and have started to read it. I'll look
for "Final Truth" tomorrow (payday). One of the things I've started
doing is going back and re-reading earlier messages of yours. Each
time I do. they turn me on more and more. I can't wait to see you in
person. I've been trying to think of secluded spots. but my
knowledge of Ann Arbor is mostly limited to the campus. I don't want
any blood in my room, though I have come upon an excellent method to
abduct a bitch ---
As I said before, my room is right across from the girl's bathroom.
Wiat until late at night. grab her when she goes to unlock the dorr.
Knock her unconscious. and put her into one of those portable
lockers (forget the word for it). or even a duffle bag. Then hurry
her out to the car and take her away ... What do you think?
The bill of particulars identifies the target of the statement as:
"Female college students who lived in Defendant Jake Baker's dormitory
at the University of Michigan in Ann Arbor, Michigan." Apart from
concerns about equating Baker's online persona with his real person,
the class of would-be targets here is identified with sufficient
specificity.
Presumably, the government offers this statement as a threat to carry
out the "method to abduct" it describes. Under Kelner, discussion of a
method of kidnapping or injuring a person is not punishable unless the
statement includes an unequivocal and specific expression of intention
immediately to carry out the actions discussed. Baker's e-mail message
cannot reasonably be read as satisfying this standard. As in Count I,
the language with which Baker is charged here lacks any expression of
an intention to act, and concludes with a request for Gonda's
reaction: "What do you think?" Discussing the commission of a crime is
not tantamount to declaring an intention to commit the crime. To find
an expression of unequivocal intention in this language would require
the drawing of an inference not grounded in any specific language of
the statement and would exceed the bounds of the First Amendment.
Counts II and III must be dismissed.
C.
Count IV charges Baker and Gonda with transmitting a threat to injure.
The Count is based on a message from Gonda to Baker, and Baker's
response. Both e-mail messages are dated December 10, 1994. Gonda
wrote:
Hi Jake. I have been out tonight and I can tell you that I am
thinking more and more about 'doing' a girl. I can picture it so
well...and I can think of no better use for their flesh. I HAVE to
make a bitch suffer!
As far as the Teale-homolka killings, well I can think of no tastier
crimes...BTW have you seen any pictures of the girls? You have to
see these cunts! They must have been so much fun...please let me
know any details that I cannot get here. I would love to see what
you think about it....
As far as the asian bitch story, there is only one possible
ending....
Baker responded:
Are tastes are so similar. it scares me :-) When I lay down at
night. all I think of before I sleep is how I'd torture a bitch I
get my hands on. I have some pretty vivid near dreams too. I wish I
could remember them when I get up.
The bill of particulars identifies the target of these statements as:
Women who were the subject of Defendant Jake Baker's E-mail
transmissions and Internet postings, including -- but not limited to
-- Jane Doe, whose true name is known to Defendant Jake Baker and
this Honorable Court.
This Count presents the weakest of all the government's charges
against Baker. While the government identifies the class of targets
here as women Baker discussed on the Internet, there is nothing in the
language quoted here to so limit the class. In addition, since Baker's
e-mail often refers simply to "a girl," a class composed of women
Baker discussed in his e-mail and stories essentially is a class
composed of any woman or girl about whom Baker has ever thought. Such
a class is obviously not sufficiently specific.
With regard to the content of Baker's communication, Baker's statement
here consists only of an expression of his thoughts before sleeping
and of "near dreams" he cannot remember upon waking. To infer an
intention to act upon the thoughts and dreams from this language would
stray far beyond the bounds of the First Amendment, and would amount
to punishing Baker for his thoughts and desires. Count IV must be
dismissed.
D.
Count V charges Baker and Gonda with transmitting a threat to injure.
It is based on an exchange between Gonda and Baker on December 11-12,
1994. On December 11, Gonda wrote to Baker:
It's always a pleasure hearing back from you...I had a great orgasm
today thinking of how you and I would torture this very very petite
and cute south american girl in one of my classes...BTW speaking of
torture, I have got this great full length picture of the Mahaffy
girl Paul Bernardo killed, she is wearing this short skirt!
The same day, Baker responded:
Just thinking about it anymore doesn't do the trick ... I need TO DO
IT.
The next day, Gonda wrote:
My feelings exactly! We have to get together...I will give you more
details as soon as I find out my situation...
Baker responded:
Alrighty then. If not next week. or in January. then definatly
sometime in the Summer. Pickings are better then too. Although it's
more crowded.
The bill of particulars identifies the target of these statements, as
in Count IV, as:
Women who were the subject of Defendant Jake Baker's E-mail
transmissions and Internet postings, including -- but not limited to
-- Jane Doe, whose true name is known to Defendant Jake Baker and
this Honorable Court.
This Count, too, fails to meet Kelner's constitutional "true threat"
standard. The class of potential targets, as discussed with regard to
Count IV, is far too vague. As to the content of the communications,
Baker indicates his "need TO DO IT." Like his earlier statements, this
language indicates a desire to do something. While use of the word
"need" indicates a strong desire, it still falls short "unequivocal,
unconditional and specific expression of intention immediately to
inflict injury," Kelner, 534 F.2d at 1027; "needs" go unmet everyday.
Baker next indicates, at most, an intention to meet Gonda at some
indefinite point in the future--in the next week, month, or several
months later. This statement does not express an unequivocal intention
immediately to do anything. Also, nothing in the language on which the
Count is based indicates any intention to commit specific acts if
Baker and Gonda ever were to meet. Like the preceding four Counts,
Count V fails to state a charge under $ 875(c) that can survive a
First Amendment challenge, and must be dismissed. This prosecution
presents the rare case in which, in the government's words, "the
language set forth . . . is so facially insufficient that it cannot
possibly amount to a true threat."
V. Coda
This case in its initial stage generated a good deal of public
interest.[22] Now that the case will be concluded by an order rather
than by a jury verdict, it is important to assure the public that such
a conclusion is not by fiat. In United States v. Carrier, 672 F.2d
300, 306 (2d Cir.), cert. denied, 457 U.S. 1139 (1982), while the
Second Circuit said "that whether words used are a true threat is
generally best left to the triers of fact," it went on to say "[o]nly
where the factual proof is insufficient as a matter of law should the
indictment be dismissed." This is such a case. The communications
which form the basis of the superseding indictment, the many preceding
and subsequent communications, the names of the witnesses and the
general nature of their testimony, and the exhibits are all in the
record. All of this evidence, viewed in the light most favorable to
the prosecution, leads to one inevitable conclusion: based on the
applicable rules of law there is no case for a jury because the
factual proof is insufficient as a matter of law. The government's
enthusiastic beginning petered out to a salvage effort once it
recognized that the communication which so much alarmed the University
of Michigan officials was only a rather savage and tasteless piece of
fiction. Why the government became involved in the matter is not
really explained in the record.[23]
Baker is being prosecuted under 18 U.S.C. $ 875(c) for his use of
words, implicating fundamental First Amendment concerns. Baker's words
were transmitted by means of the Internet, a relatively new
communications medium that is itself currently the subject of much
media attention. The Internet makes it possible with unprecedented
ease to achieve world-wide distribution of material, like Baker's
story, posted to its public areas. When used in such a fashion, the
Internet may be likened to a newspaper with unlimited distribution and
no locatable printing press--and with no supervising editorial
control. But Baker's e-mail messages, on which the superseding
indictment is based, were not publicly published but privately sent to
Gonda. While new technology such as the Internet may complicate
analysis and may sometimes require new or modified laws,[24] it does
not in this instance qualitatively change the analysis under the
statute or under the First Amendment. Whatever Baker's faults, and he
is to be faulted, he did not violate 18 U.S.C. $ 875(c). The case
would have been better handled as a disciplinary matter, as the
University of Victoria proceeded in a similar situation,[25] despite
whatever difficulties inhere in such a course.[26] What the Court said
at the conclusion of oral argument bears repeating: "[T]he Court is
very skeptical, and about the best thing the government's got going
for it at this moment is the sincerity of purpose exhibited by [the
Assistant United States Attorneys prosecuting the case]. I am not sure
that sincerity of purpose is either synonymous with a good case under
the law, or even the exercise of good judgment."
_______________________________
AVERN COHN
UNITED STATES DISTRICT JUDGE
DATED: June 21, 1995
Detroit, Michigan
_________________________________________________________________
Baker Opinion / Stuart Beraha / sberaha@ic.net
------------------------------
Date: Sun, 19 Apr 1995 22:51:01 CDT
From: CuD Moderators <cudigest@sun.soci.niu.edu>
Subject: File 2--Cu Digest Header Info (unchanged since 19 Apr, 1995)
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