United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. BAG AN UNITED DISTRICT JUDGE.
before the Court is Defendant's Motion for Release
Pending Appeal (Dkt. # 63). On November 11, 2016, a grand
jury returned an indictment charging defendant with ten
counts of interstate communications with intent to injure in
violation of 18 U.S.C. § 875(c). Dkt. # 16. Defendant
moved to dismiss the indictment against him, alleging that,
as applied, § 875(c) violated his First Amendment right
to free speech. Dkt. # 28, at 1. The indictment charged
defendant with sending ten threatening communications through
the Tulsa Police Department's (TPD) Internal Affairs
Investigations Division website in response to TPD Officer
Betty Shelby shooting and killing Terrance Crutcher, a black
man, in Tulsa, Oklahoma on September 16, 2016. Dkt. # 16, at
1. The communications were directed at Officer Shelby, the
prosecutor and judge in the Shelby case, the chief of TPD,
and all TPD officers. The messages threatened violence and
death if TPD did not reform. For example:
The psychotic pile of shit who MURDERED the unarmed civilian
who broke down is going to be executed, as are ALL psychotic
shitbags you and other PDs hire across this Nation who murder
unarmed civilians. They are all going to be killed.
Dkt. # 28-1, at 1.
the Prosecuter [sic] & the Judge deny bail, they too will
be executed. . . . Do the right thing or die. There are no
Tulsa PD Chief is going to be killed. . . . He must be, and
IS GOING TO BE killed.
The communications also contained threats against the family
members of TPD officers, judges, and prosecutors. For
The last words your child will hear are the same words that
will be burned into his or her corpse: “Your parent
decided a $100 kickback for fucking an innocent civilian was
worth more than you.” Id. at 4. The Court
denied defendant's motion to dismiss the indictment,
finding that it could not be said as a matter of law that
defendant's speech was protected by the First Amendment.
Dkt. # 32, at 4.
January 6, 2017, defendant pleaded guilty to counts one, two,
three, nine, and ten of the indictment pursuant to a plea
agreement with the government. Dkt. # 38. Under the plea
agreement, defendant reserved the right to appeal the
Court's order denying his motion to dismiss the
indictment. Id. at 3. On April 14, 2017, the Court
sentenced defendant to twelve months imprisonment for each of
the five counts with said terms to run concurrently, each
with the other. Dkt. # 53. The Court ordered that defendant
could remain on release subject to the conditions imposed on
pretrial release and that defendant must report to the Bureau
of Prisons no later than 2 p.m. on June 7, 2017. Defendant
has filed an appeal with the Tenth Circuit arguing the same
First Amendment issue raised in his motion to dismiss the
indictment. Dkt. # 56; Dkt. # 63, at 2. Defendant now asks
the Court to allow him to remain on release pending the
outcome of his appeal. Dkt. # 63, at 6.
admits that he was convicted of a crime of violence as that
term is defined in 18 U.S.C. § 3154(a)(4)(A) and that,
therefore, he may not be released pending appeal unless it is
found by clear and convincing evidence that (1) he is not
likely to flee or pose a danger to any other person or the
community, (2) the appeal is not for the purpose of delay,
(3) the appeal raises a substantial question of law or fact
likely to result in reversal, and (4) there are exceptional
reasons why detention would not be appropriate. 18 U.S.C.
§§ 3143(b), 3145(c); see also United States v.
Hosier, 617 F. App'x 910, 912 (10th Cir.
2015). Defendant's motion fails for two
reasons. First, defendant's appeal does not raise a
substantial question of law or fact likely to result in
reversal, and second, defendant has failed to show there are
exceptional reasons why detention would not be appropriate.
was convicted of issuing threats under § 875(c), which
applies only to threats outside the First Amendment's
protection, or “true threats.” United States
v. Wheeler, 776 F.3d 736, 742-43 (10th Cir. 2015). A
true threat is a statement “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.” Virginia v. Black, 538 U.S.
343, 359 (2003). When distinguishing between true threats and
protected speech, courts ask “whether those who hear or
read the threat reasonably consider that an actual threat has
been made.” Wheeler, 776 F.3d at 743 (quoting
United States v. Viefhaus, 168 F.3d 392, 396 (10th
Cir. 1999)). “The speaker need not actually intend to
carry out the threat. Rather, a prohibition on true threats
protects individuals from the fear of violence and the
disruption that fear engenders.” Black, 358
U.S. at 360-61; see also Viefhaus, 168 F.3d at
395-96. Defendant argues that the messages he sent were
protected political speech, not true threats. But although
the catalyst for defendant's messages was a incident that
garnered national attention as part of a larger political
issue, defendant's messages were focused on violence and
threats, not political discourse. Given that defendant
targeted specific individuals and repeatedly stated that they
would be violently murdered, a person who hears or reads
defendant's messages would reasonably consider that an
actual threat has been made. Thus, the Court does not find
that defendant's appeal raises a substantial question of
law or fact likely to result in reversal.
has also failed to show that there are exceptional reasons
why detention would not be appropriate. District courts have
broad discretion in determining whether circumstances are
truly exceptional. See Hosier, 617 F. App'x at
913.The key question for courts is “whether, due to any
truly unusual factors or combination of factors (bearing in
mind the congressional policy that offenders who have
committed crimes of violence should not, except in
exceptional cases, be released . . .) it would be
unreasonable to incarcerate the defendant.”
Id. (quoting United States v. Garcia, 340
F.3d 1013, 1019 (9th Cir. 2003)) (omission in original).
Defendant argues that the short length of his sentence and
that he did not take any steps to act upon his threats
constitute exceptional circumstances. Dkt. # 63, at 5.
Defendant was convicted of sending threatening
communications, which he admits is a crime of violence and
requires him to satisfy the exceptional reasons requirement
to be released pending appeal. That he did not commit an
additional crime by attempting to carry out his
violent threats is not an exceptional circumstance. And
although a short sentence is a relevant consideration in
determining whether exceptional circumstances exist, a
one-year sentence, on its own, does not rise to the level of
IS THEREFORE ORDERED that Defendant's Motion for
Release Pending ...