The opinion of the court was delivered by: Honorable Barry Ted MoskowitzUnited States District Judge
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS INDICTMENT FOR VIOLATION OF STATUTE OF LIMITATIONS AND DENYING FOR FAILURE TO ALLEGE MOTION TO DISMISS COUNT ONE OFFENSE
Defendant Eric Anthony Lopez has filed a motion to dismiss the Indictment for violation of the five-year statute of limitations as well as a motion to dismiss Count One (18 U.S.C. § 876(c)) for failure to allege all of the elements of the offense. For the reasons discussed below, Defendant's motion to dismiss the Indictment for violation of the statute of limitations is DENIED as to Count One and GRANTED as to Count Two (18 U.S.C. § 1038(a)(1)) . Defendant's motion to dismiss Count One for failure to allege all elements of the offense is DENIED.
Defendant is accused of mailing a threatening letter to the Hon. Irma Gonzalez, the Chief United States District Judge for the Southern District of California. The letter, which was dated December 23, 2005, was sent via U.S. mail and postmarked on December 27, 2005. The letter was addressed to Judge Gonzalez.
On December 29, 2005, Judge Gonzalez's administrative law clerk opened the letter. The letter read:
Well Madam I'm writing you once again in a very interesting manner this time around! Seems this disrespectful arrogance is a common practice among you judges, funny how ones little power trip will bring death to there being!! For the record I politely wrote and explained my dire need of professional advice on 12-16-05 and you neither have the respect to respond in any shape or form!!!
Now I must get your attention and correct your selfcentered ways. Trust in every word in this letter A promise I make to you and it is that you are in grave mortal danger Your well being is in my control and due to the inadequate security messures I will carry out this promise this great act upon you a federal Judge! Neither the US Marshal Service nor any agency be able to protect you from my primary goals to eliminate and make an example of you!
Let me introduce you to your grim reaper. "Old" Bacillis Anthracis.
AKA "Anthrax" A brief lesson on your final sentence; biological and chemical weapons, to make a weapon you need a "pathogen and "munition" and a "method of dispersal" I can and will carry the lesson out Have I? Will I? Could I? Shall I give you a taste? Have I in this envelope? Is it among you yet or soon Can you escape me? No!! is this a THREAT? No When? How? Is up to me!! Do you deserve this ask yourself?!? I will and have broken your security barrier I am upon you I will carry out my primary mission the federal judiciary is at risk Ask yourself is arrogance and disrespect worth it to late Happy breathing in is this powder our old friend??
The letter was signed "Eric Anthony Lopez," and the envelope listed the return address as: Eric Anthony Lopez, BK # 0010342174, West Valley Detention Center, Rancho Cucamonga, CA 91739.
Judge Gonzalez's chambers were evacuated by the U.S. Marshals for half a day. The letter did not contain any powder or anthrax. The FBI laboratory found one fingerprint of Lopez on the letter. Also, DNA extracted from the envelope flap matched Lopez's DNA sample maintained in CODIS.
On December 28, 2010, a grand jury in the Southern District of California returned a two-count indictment charging Defendant with (1) causing to be delivered to a federal judge a threatening communication in violation of 18 U.S.C. § 876(c) and (2) intentionally conveying false and misleading information where such information may reasonably have been believed and indicated that the use and dispersal of a biological weapon had already, was taking, and would take place, in violation of 18 U.S.C. § 1038(a)(1).
For some unexplained reason, the Government did not seek an indictment for five years. The question before the Court is whether the Indictment was returned with one day to spare or was returned one day too late. As discussed below, the Court finds that although Count One does not appear to be barred by the statute of ...