U.S.
v.
Torchio

United States District Court, D. KansasSep 14, 2004
Case No. 04-M-8080-01-DJW. (D. Kan. Sep. 14, 2004)

Case No. 04-M-8080-01-DJW.

September 14, 2004


ORDER


Defendant was charged by criminal complaint in the United States District Court for the District of Mississippi with a violation of 18 U.S.C. § 875(c), which 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.

A preliminary hearing and detention hearing was held on September 14, 2004. After carefully considering the evidence presented and the arguments of counsel, the Court finds the criminal complaint must be dismissed for lack of probable cause that a crime was committed.

Brief Statement of Relevant Facts

Defendant is employed by a prison facility in Mississippi operated by the United States Bureau of Prisons. In April 2004, Defendant experienced a "mental breakdown" and sought counseling from a co-worker employed as the resident psychologist at the prison facility. As a result of his mental condition, Defendant took a temporary leave of absence from his employment. During this leave of absence, Defendant left Mississippi and went home to Kansas to be with his wife and children.

The affidavit attached to the criminal complaint in this matter asserts that in September 2004, Defendant communicated to the prison psychologist via telephone call that he had dreamed while sleeping and thought about while awake, a scenario in which he killed the associate warden at the prison facility where he was employed. Construing Defendant's communication to the psychologist as a threat, the United States charged Defendant in the pending criminal complaint with a violation of 18 U.S.C. § 875(c).

Preliminary Hearing Standard

It is Rule 5.1 of the Federal Rules of Criminal Procedure that provides for a preliminary hearing, the purpose of which is to determine whether there is probable cause to believe that a crime has been committed and, if so, probable cause to believe that Defendant committed the crime. If the magistrate judge finds probable cause to believe an offense has been committed and Defendant committed it, the magistrate judge must promptly require Defendant to appear for further proceedings. Conversely, if the magistrate judge finds no probable cause to believe an offense has been committed or Defendant committed it, the magistrate judge must dismiss the complaint and discharge Defendant.

Discussion

In the Fifth Circuit, where the criminal complaint at issue is pending, a communication is a threat under section 875(c) if "in its context [it] would have a reasonable tendency to create apprehension that its originator will act according to its tenor." Prosecution under section 875(c), however, also "requires proof that the threat was made knowingly and intentionally." "An act is performed `knowingly' when it is done voluntarily and intentionally, and not because of mistake or accident." "A threat is knowingly made if the maker of it comprehends the meaning of the words uttered by him, and a threat is willfully made if in addition to comprehending his words, the maker voluntarily and intelligently utters the words as a declaration of an apparent determination to carry out the threat. "

United States v. Morales, 272 F.3d 284 (5th Cir. 2001) (citations omitted).

Id.

Id.

Id. (citing United States v. Pilkington, 583 F.2d 746, 747 (5th Cir. 1978).

Significantly, there are no allegations in the affidavit or the criminal complaint here alleging Defendant relayed the content of his dreams and thoughts "as a declaration of an apparent determination to carry out the [alleged] threat." Because a charge alleging that the purported threat was made knowingly and intentionally by Defendant is a required element of the crime, the failure to include such an allegation within the charging document means that even if the facts alleged are proved, the alleged conduct would not constitute a violation of 18 U.S.C. § 875(c). In addition there was no evidence presented at the preliminary hearing that the Defendant had done any more than relate the dreams and thoughts he had about possible harm to a supervisor. There was no evidence presented as to any "declaration of an apparent determination to carry out" his dreams and thoughts. For these reasons, the Court finds no probable cause to believe an offense has been committed; thus, the complaint is dismissed and Defendant shall be discharged from custody.

IT IS SO ORDERED.