United States v. Dierks, (N.D. Iowa), 17-CR-2065-LRR (October 27, 2017).
Defendant Dierks is said to have sent three “Tweets” — electronic messages of no more than 140 characters — to United States Senator Joni Ernst in August, 2017. Those three same-day Tweets became the subject of an indictment charging him with transmitting threats in interstate commerce, 18 U.S.C. § 875(c).
Dierks’ motion to dismiss the indictment was denied. A Criminal Rule of Federal Procedure 12(b) motion looks to the sufficiency of the indictment, not to extraneous evidence.
Elonis v. United States, 135 S. Ct. 2001, 2012 (2015) recognized that the federal offense of transmitting threats in interstate commerce implicitly includes a mental state element, requiring transmission for the purpose of issuing a threat or with knowledge that a threat would be perceived.
It is not necessary that an indictment be absolutely precise in presentation of the elements of the offense where the indictment as a whole is sufficient to apprise a defendant of the crime being charged.
Whether the Tweets were true threats are factual assessments for a jury to make. Such factual determinations cannot be resolved by motion to dismiss the indictment.
The same is true of the argument that the indictment unconstitutionally restrains free speech. A jury will decide whether defendant’s statements were true threats, which are not protected by the First Amendment.