United States District Court, N.D. California, San Jose Division
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.
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