United States v. Toltzis

          ORDER DENYING MOTION TO DISMISS COUNTS TWO AND THREE OF THE INDICTMENT RE: DKT. NO. 28

          Ronald M. Whyte United States District Judge.

         Before the court is defendant Robert Gary Toltzis's Motion to Dismiss Counts Two and Three of the Indictment filed on September 2, 2015. Dkt. No. 28. Defendant contends that the indictment fails to sufficiently allege all of the required elements of 18 U.S.C. § 876(c) for counts two and three. The government filed an opposition, and defendant filed a reply. Dkt Nos. 41, 43. For the reasons set forth below, the court DENIES the motion to dismiss.

         I. BACKGROUND

         On November 12, 2014, the grand jury issued a four-count indictment charging defendant with violating 18 U.S.C. § 876(c).^[1] Dkt. No. 1. The indictment alleges that over the span of several years, defendant sent threatening correspondences to numerous individuals based on their sexual orientation, national origin, and ethnic background using his e-mail address, the services of anonymous remailers, his printer, and the United States mail. Counts two and three pertain to victim FB and FB's former wife, stating:

COUNT TWO: 18 U.S.C. § 876(c) (Mailing Threatening Communications)

On or about May 2, 2013, in the Northern District of California and elsewhere, the defendant, ROBERT GARY TOLTZIS, knowingly and willfully caused to be delivered by mail according to the directions thereon, a written communication addressed to FB that contained a threat to injure FB, in violation of Title 18, United States Code, Section 876(c).

COUNT THREE: 18 U.S.C. § 876(c) (Mailing Threatening Communications)

On or about May 2, 2013, in the Northern District of California and elsewhere, the defendant, ROBERT GARY TOLTZIS, knowingly and willfully caused to be delivered by mail according to the directions thereon, a written communication addressed to FB's family that contained a threat to injure FB, in violation of Title 18, United States Code, Section 876(c).

         Dkt. No. 1 ¶¶ 21, 23. The facts alleged in the indictment pertaining to counts two and three state:

16. On or about May 2, 2013, FB received a threatening letter in the mail at his home located in the District. The letter was addressed to FB, postmarked in San Jose, and listed the sender as DM. The letter was three pages long and included claims that FB was a drug addict, bad husband, and a homosexual. The letter urged FB to kill himself and included a picture of FB. The letter also included a graphic depiction of a sex act as well as racial slurs. This envelope and its contents were printed on TOLTZIS' Dell printer.

17. FB's former mother-in-law also received a copy of this same letter at her home in Santa Clara County. The letter, postmarked on May 2, 2013, in San Jose, was addressed to FB's former wife, and again listed DM as the sender. The contents of the letter were virtually identical to the aforementioned death threat letter . . . including the call for "death to Iranians, " and the assertion that FB should kill himself. This envelope and its contents were printed on TOLTZIS' Dell printer.

Dkt. No. 1 ¶¶ 16-17.

         Defendant moves to dismiss counts two and three of the indictment on the grounds that the indictment fails to allege all of the required elements of 18 U.S.C. § 876(c). Specifically, defendant argues that the indictment fails to allege any "threat to injure the person of the addressee or of another." 18 U.S.C. § 876(c). Defendant's position rests on two arguments, namely that: (1) the communications at issue do not constitute "true threats" and (2) the communications at issue do not contain threats directed at a natural person.

         II. ...