United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION, AND ORDER
R. Zwart United States Magistrate Judge
has moved to dismiss the indictment, arguing the evidence in
this case-Defendant's alleged statement to employees of
the Social Security Administration-cannot be construed as a
“threat of force” in violation of 42 U.S.C.A.
§ 1320a-8b. (Filing No. 18). As stated in
Defendant's brief, Defendant allegedly stated to a Social
Security employee, “If you fuck with my family, I'm
going to fuck with you.” (Filing No. 20, at CM/ECF
p. 1). Defendant claims the government cannot prosecute
Defendant for making this statement unless it shows the
statement constituted a “true threat.”
(Filing No. 20, at CM/ECF p. 2). Defendant argues:
Mr. Schweitzer's statements are conditional,
hypothetical, and no imminent prospect of execution could be
perceived by a reasonable person. The statement if the Social
Security Administration “fucked with me”
then “I will fuck with you, ” is
contingent and hypothetical. Only if someone at Social
Security did something to Mr. Schweitzer, then he would act.
No reasonable person would take the language to mean a true
threat, as required for restriction upon the language. The
statement was mere hyperbole. While crude and perhaps
inappropriate, no reasonable person could interpret such a
statement to imply imminent bodily harm.
(Filing No. 20, at CM/ECF p. 3) (emphasis in
government is not permitted to punish speech merely because
the speech is forceful or aggressive. The First Amendment
“requires a court (or a jury)” to differentiate
between true threats and protected speech. United States
v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996). The
court must consider the entire factual context of the
statement and decide whether the recipient of the alleged
threat could reasonably conclude that it expresses “a
determination or intent to injure presently or in the
future.” Id. (quoting Martin v. United
States, 691 F.2d 1235, 1240 (8th Cir.1982), cert.
denied, 459 U.S. 1211, 103 S.Ct. 1207, 75 L.Ed.2d 447
factors are considered when determining whether statements
are threats of force, including the reaction of the recipient
of the threat and of other listeners; whether the threat was
conditional; whether the threat was communicated directly to
its victim; whether the maker of the threat had made similar
statements to the victim in the past; and whether the victim
had reason to believe that the maker of the threat had a
propensity to engage in violence. Dinwiddie, 76 F.3d at
925. “This list is not exhaustive, and the
presence or absence of any one of its elements need not be
dispositive.” Id. For example, a “threat
may be considered a ‘true threat' even if it is
premised on a contingency.” United States v.
Bellrichard, 994 F.2d 1318, 1322 (8th Cir. 1993).
defendant faces criminal charges for allegedly threatening a
government official, a jury decides whether the
Defendant's conduct and statements constituted a true
threat, or merely a complaint about official conduct.
United States v. Lincoln, 589 F.2d 379, 381 (8th Cir.
1979); see also, United States v. Mabie,
663 F.3d 322, 330 (8th Cir. 2011). “Where a
communication contains language which is equally susceptible
of two interpretations, one threatening, and the other
nonthreatening, the government carries the burden of
presenting evidence serving to remove that ambiguity.”
United States v. Barcley, 452 F.2d 930, 933 (8th Cir.
1971). If the government fails to present such evidence
at trial, the court must direct a verdict of acquittal.
Id. But if supported by the evidence, including the
context of the statement itself, a jury may find a statement
was a legally impermissible threat.
case, Defendant has filed a pretrial motion to dismiss the
misdemeanor charge. However, the court finds that depending
on the context, the statement “If you fuck with my
family, I'm going to fuck with you” could
reasonably be construed an a true threat. “[T]he jury
must decide whether a reasonable recipient, familiar with the
context of the communication, would interpret
[Defendant's statement] as a threat.” United
States v. Cvijanovich, 556 F.3d 857, 863 (8th Cir.
2009); see also, United States v. Floyd,
458 F.3d 844, 848 (8th Cir. 2006).
IT THEREFORE HEREBY IS RECOMMENDED to the Honorable John M.
Gerrard, United States District Judge, pursuant to 28
U.S.C. § 636(b), that the motion to dismiss filed
by the defendant (Filing No. 18) be denied in its
defendant is notified that failing to file an objection to
this recommendation as provided in the local rules of this
court may be held to be a waiver of any right to appeal the
court's adoption of the recommendation.
ORDERED that the jury trial of this case is set to commence
before John M. Gerrard, United States District Judge, in
Courtroom 1, United States Courthouse, Lincoln, Nebraska, at
9:00 a.m. on January 2, 2018, or as
soon thereafter as the case may be called, for a duration of