Computer underground Digest    Sun  Jul 8, 1995   Volume 7 : Issue 57
                          ISSN  1004-042X

      Editors: Jim Thomas and Gordon Meyer ([email protected]
      Archivist: Brendan Kehoe
      Shadow Master: Stanton McCandlish
      Field Agent Extraordinaire:   David Smith
      Shadow-Archivists: Dan Carosone / Paul Southworth
                         Ralph Sims / Jyrki Kuoppala
                         Ian Dickinson
      la Triviata:     Which wine goes best with Unix?

CONTENTS, #7.57 (Sun, Jul 8, 1995)

File 1--Text of Jake Baker Decison
File 2--Cu Digest Header Info (unchanged since 19 Apr, 1995)

CuD ADMINISTRATIVE, EDITORIAL, AND SUBSCRIPTION INFORMATION APPEARS IN
THE CONCLUDING FILE AT THE END OF EACH ISSUE.

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Date: Sun, 9 Jul 1995 02:21:42 -0500
From: [email protected](Jim Thomas)
Subject: File 1--Text of Jake Baker Decison

((From: http://ic.net/~sberaha/baker.html--Jake Baker is the
University of Michigan student who was indicted under federal law for
stories he wrote on alt.sex.stories. The case has been summarized in
previous CuD issues.  The judge dismissed the case. Below is the
ruling)).

  UNITED STATES DISTRICT COURT
  EASTERN DISTRICT OF MICHIGAN
  SOUTHERN DIVISION


UNITED STATES OF AMERICA,



                       Plaintiff,



v.                                              Criminal No. 95-80106

                                               Honorable Avern Cohn


JAKE BAKER and ARTHUR GONDA,





                       Defendants.





___________________________________/





  OPINION

    "It is not the policy of the law to punish those unsuccessful
    threats which it is not presumed would terrify ordinary persons
    excessively; and there is so much opportunity for magnifying or
    misunderstanding undefined menaces that probably as much mischief
    would be caused by letting them be prosecuted as by refraining from
    it."



  The People v. B. F. Jones, 62 Mich. 304 (1886).





  I. Introduction

  This is a criminal prosecution under 18 U.S.C. $ 875(c). Defendant
  Jake Baker (Baker) is charged in a superseding indictment with five
  counts of transmitting threats to injure or kidnap another, in
  electronic mail (e-mail) messages transmitted via the Internet.[1] Now
  before the Court is Baker's motion to quash the superseding
  indictment.[2] For the reasons that follow, the motion will be
  granted.

  II. Background

  The e-mail messages that form the basis of the charges in this case
  were exchanged in December, 1994 between Baker in Ann Arbor, Michigan,
  and defendant Arthur Gonda (Gonda), who sent and received e-mail
  through a computer in Ontario, Canada. Gonda's identity and
  whereabouts are unknown. The messages excerpted in the superseding
  indictment are drawn from a larger e-mail exchange between Gonda and
  Baker began on November 29, 1994, and ended on January 25, 1995. The
  specific language of the messages excerpted in the superseding
  indictment will be discussed in detail below. They all express a
  sexual interest in violence against women and girls.

  Baker first appeared before a United States Magistrate Judge on a
  criminal complaint alleging violation of 18 U.S.C. $ 875(c), on
  February 9, 1995. The complaint was based on an FBI agent's affidavit
  which cited language taken from a story Baker posted to an Internet
  newsgroup entitled "alt.sex.stories," and from e-mail messages he sent
  to Gonda. The story graphically described the torture, rape, and
  murder of a woman who was given the name of a classmate of Baker's at
  the University of Michigan. The "alt.sex.stories" newsgroup to which
  Baker's story was posted is an electronic bulletin board, the contents
  of which are publicly available via the Internet. Much of the
  attention this case garnered centered on Baker's use of a real
  student's name in the story.[3] The e-mail messages exchanged between
  Gonda and Baker were private, and not available in any publicly
  accessible portion of the Internet.[4]

  Baker was arrested on the complaint and warrant on February 9, 1995,
  and detained overnight. The complaint and warrant is dated the same
  day. The following day, February 10, 1995, after holding a hearing a
  Magistrate Judge ordered Baker detained as a danger to the community.
  His detention was affirmed by a United States District Judge later
  that day. On March 8, 1995, this Court held a hearing on Baker's
  motion to be released on bond, and ordered that a psychological
  evaluation of Baker be performed. The psychological evaluation was
  received on March 10, 1995. The evaluation concluded that Baker did
  not pose a threat, and the Court ordered him released that day.[5]

  On February 14, 1995 the government charged Baker with violating 18
  U.S.C. $ 875(c) in a one count indictment based on unspecified
  communications transmitted in interstate and foreign commerce from
  December 2, 1994 through January 9, 1995. Presumably included in the
  communications was the story Baker posted. On March 15, 1995, the
  government charged Baker and Gonda in a superseding indictment with
  five counts of violating 18 U.S.C. $ 875(c). The story on which the
  initial complaint was partially based is not mentioned in the
  superseding indictment, which refers only to e-mail messages exchanged
  between Gonda and Baker.[6] The government has filed a bill of
  particulars identifying who it perceives to be the objects of the
  allegedly threatening transmissions, as well as witness and exhibit
  lists.

  Baker, who is named in all five of the superseding indictment's
  counts, has filed a motion seeking dismissal of all the counts of the
  superseding indictment. He contends that application of 18 U.S.C. $
  875(c) to the e-mail transmissions pushes the boundaries of the
  statute beyond the limits of the First Amendment. The government
  responds that the motion must be denied because the First Amendment
  does not protect "true threats," and because whether a specific
  communication constitutes a true threat is a question for the jury.

  III. The Law

  Eighteen U.S.C. $ 875(c) reads:

    Whoever transmits in interstate or foreign commerce any
    communication containing any threat to kidnap any person or any
    threat to injure the person of another, shall be fined under this
    title or imprisoned not more than five years, or both.

  The government must allege and prove three elements to support a
  conviction under $ 875(c): "(1) a transmission in interstate [or
  foreign] commerce; (2) a communication containing a threat; and (3)
  the threat must be a threat to injure [or kidnap] the person of
  another." United States v. DeAndino, 958 F.2d 146, 148 (6th Cir.),
  cert. denied, 112 S. Ct. 2997 (1992). The Court of Appeals for the
  Sixth Circuit, like most others, has held that $ 875(c) requires only
  general intent. Id. at 149. But see, United States v. Twine, 853 F.2d
  676 (9th Cir. 1988) (finding a specific intent requirement in $
  875(c)).[7] Because $ 875(c) is a general intent crime, intent must be
  proved by "objectively looking at the defendant's behavior in the
  totality of the circumstances," rather than by "probing the
  defendant's subjective state of mind." DeAndino, 958 F.2d at 149. The
  Sixth Circuit has also held that "a specific individual as a target of
  the threat need not be identified." United States v. Cox, 957 F.2d
  264, 266 (6th Cir. 1992). Even so, the threat must be aimed as some
  discrete, identifiable group. See id. (involving threat to "hurt
  people" at a specific bank); United States v. Lincoln, 589 F.2d 379
  (8th Cir. 1979) (involving letters threatening to kill judges of the
  Eighth Circuit, under 18 U.S.C. $ 876). The threat need not be
  communicated to the person or group identified as its target. See
  United States v. Schroeder, 902 F.2d 1469, 1470-71 (10th Cir.), cert.
  denied,, 498 U.S. 867 (1990) (affirming $ 875(c) conviction for a
  threat against people at a post office made to an Assistant United
  States Attorney); United States v. Kosma, 951 F.2d 549, 555 (3rd Cir.
  1991) (listing cases in which threats against the President were made
  to third persons, under 18 U.S.C. $ 871).

  Because prosecution under 18 U.S.C. $ 875(c) involves punishment of
  pure speech,[8] it necessarily implicates and is limited by the First
  Amendment. Although the Supreme Court has not addressed the
  constitutionally permissible scope of $ 875(c), it has considered a
  similar statute concerning threats against the President, 18 U.S.C. $
  871(a),[9] in Watts v. United States, 394 U.S. 705. In Watts, the
  Supreme Court recognized that:

    a statute such as this one, which makes criminal a form of pure
    speech, must be interpreted with the commands of the First Amendment
    clearly in mind. What is a threat must be distinguished from what is
    constitutionally protected speech.

  Id. at 707. Under Watts, to pass constitutional muster the government
  must initially prove "a true 'threat.'" Id. Factors mentioned in Watts
  as bearing on whether a specific statement can be taken as a true
  threat include the context of the statement, including whether the
  statement has a political dimension; whether the statement was
  conditional; and the reaction of the listeners. Id.[10] Watts also
  makes clear that the question of whether a statement constitutes a
  true threat in light of the First Amendment is distinct from the
  question of the defendant's intent: "whatever the 'willfulness'
  requirement implies, the statute initially requires the Government to
  prove a true 'threat.'" Id.[11]

  The distinction between the two questions of whether a statement is a
  "true threat" for the purposes of First Amendment limitation, and the
  intention of the statement's maker, is important but unfortunately
  often confused. The confusion results from too loose a use of the
  phrase "true threat."

  The only extended discussion of the constitutional dimension of the
  "true threat" requirement with regard to $ 875(c) is found in United
  States v. Kelner, 534 F.2d 1020 (2d Cir.), cert. denied, 429 U.S. 1022
  (1976). In Kelner, the Second Circuit drew on Watts to illuminate the
  constitutional limits of a prosecution under $ 875(c):

    The purpose and effect of the Watts constitutionally-limited
    definition of the term "threat" is to insure that only unequivocal,
    unconditional and specific expressions of intention immediately to
    inflict injury may be punished--only such threats, in short, as are
    of the same nature as those threats which are . . . "properly
    punished every day under statutes prohibiting extortion, blackmail
    and assault without consideration of First Amendment issues." Watts,
    402 F.2d at 690.



  * * *

    So long as the threat on its face and in the circumstances in which
    it is made is so unequivocal, unconditional, immediate and specific
    as to the person threatened, as to convey a gravity of purpose and
    imminent prospect of execution, the statute may properly be applied.
    This clarification of the scope of 18 U.S.C. $ 875(c) is, we trust,
    consistent with a rational approach to First Amendment construction
    which provides for governmental authority in instances of inchoate
    conduct, where a communication has become "so interlocked with
    violent conduct as to constitute for all practical purposes part of
    the [proscribed] action itself."

  Kelner, 534 F.2d at 1027 (quoting T. Emerson, The System of Freedom of
  Expression, 329 (1970)). Cf. Brandenburg v. Ohio, 395 U.S. 444, 447
  (1969) ("the constitutional guarantees of free speech and free press
  do not permit a State to forbid or proscribe advocacy of the use of
  force or of law violation except where such advocacy is directed to
  inciting or producing imminent lawless action and is likely to incite
  or produce such action.")

  The government argues that the standard announced in Kelner is "far
  more stringent" than the governing standard in the Sixth Circuit. For
  the Sixth Circuit "true threat" standard, the government refers the
  Court to United States v. Lincoln, 462 F.2d 1368, cert. denied, 409
  U.S. 952 (1972). In citing Lincoln for the "true threat" standard, the
  government confuses the constitutional "true threat" requirement with
  the statutory intent requirement. In relevant part, Lincoln reads:

    This Court therefore construes the willfulness requirement of the
    statute to require only that the defendant intentionally make a
    statement, written or oral, in a context or under such circumstances
    wherein a reasonable person would foresee that the statement would
    be interpreted by those to whom the maker communicates the statement
    as a serious expression of an intention to inflict bodily harm upon
    or take the life of the President, and that the statement not be the
    result of mistake, duress, or coercion. The statute does not require
    that the defendant actually intend to carry out the threat.

  Lincoln, 462 F.2d at 1368 (quoting and adopting standard from Roy v.
  United States, 416 F.2d 874, 877-78 (9th Cir. 1969)) (emphasis added).
  Lincoln addresses the statute's intent requirement, and adopts the
  Ninth Circuit's formulation of the intent required.[12] It does not
  speak to the constitutional "true threat" requirement imposed by the
  First Amendment and elucidated in Watts and Kelner. United States v.
  Glover, 846 F.2d 339, 343-44 (6th Cir.), cert. denied, 488 U.S. 982
  (1988) and United States v. Vincent, 681 F.2d 462, 464 (6th Cir.
  1982), also cited by the government, quote the same language from Roy
  and also address the statutory intent requirement rather than the
  constitutional limits of the statute. None of these cases indicate
  that a different constitutional standard for prosecution under $
  875(c) applies in the Sixth Circuit than in the Second Circuit.[13]

  The confusion between the two requirements is understandable, because
  the phrase "true threat" has been used in the context of both
  requirements. Both the Ninth and Seventh Circuits have stated that the
  government must meet the Roy general intent standard in order to make
  out a "true threat." Melugin v. Hames, 38 F.3d 1478, 1484 (9th Cir.
  1994) (under Alaska statute AS 11.56.510(a)(1)); United States v.
  Khorrami, 895 F.2d 1186, 1193 (7th Cir.), cert. denied, 498 U.S. 986
  (1990). That the phrase "true threat" has been used to describe both
  the statutory intent requirement and the constitutional
  "unconditional, unequivocal, immediate and specific" requirement does
  not imply that the two requirements are identical, or that any
  statement which meets the intent requirement may be prosecuted under $
  875(c) without running afoul of the First Amendment. Typically, in the
  cases focussing on the intent requirement, there is no dispute that
  the statement satisfies the constitutional standard, and the defendant
  seeks dismissal or reversal of his conviction on the ground that he or
  she lacked the requisite intent. See, e.g., United States v. Lincoln,
  462 F.2d at 1369 ("[a]pellant contends that the statute is violated
  only when a threat is uttered with a willful intent to carry it
  out."); United States v. Hoffman, 806 F.2d 703, 712 (7th Cir. 1986)
  (concluding that "it was reasonable for the jury to conclude that
  Hoffman intended the letter as a serious expression of his intent to
  harm the President.") (quoted in Khorrami, 895 F.2d 1186).[14]

  Kelner's standard for a prosecution under 18 U.S.C. $ 875(c) is not
  only constitutionally required, but also is consistent with the
  statute's legislative history. The law which was eventually codified
  as 18 U.S.C. $ 875(c) was first passed in 1932, Pub. L. No. 72-274
  (1932), and criminalized use of the mail to transmit a threat to
  injure or kidnap any person (or to injure a person's property or
  reputation), or to accuse a person of a crime or demand ransom for a
  kidnapped person. Id. The communication had to be sent "with intent to
  extort . . . money or any thing of value" to fall under the act. Id. A
  motivating factor for passage of the 1932 act was the kidnapping of
  Charles Lindbergh's son, and the concomitant use of the mail to convey
  the kidnappers' threats and demands. H.R. Rep. No. 602, 72d Congress,
  1st Sess. (1932).

  The act was addressed to the constitutionally unproblematic case, like
  the Lindbergh case, identified in Kelner: "where a communication has
  become 'so interlocked with violent conduct as to constitute for all
  practical purposes part of the [proscribed] action itself.'" Kelner,
  534 F.2d at 1027. The act was modified in 1934, Pub. L. No. 73-231
  (1934), as increasingly sophisticated criminals had taken to using
  means other than the mail, such as the telephone and telegraph, to
  transmit their threats. S. Rep. No. 1456, 73d Congress, 2d Sess.
  (1934). As modified, it applied to threats transmitted "by any means
  whatsoever," but still required extortionate intent. Pub. L. No.
  73-231 (1934). In 1939 the act, Pub. L. No. 76-76 (1939), was expanded
  to apply to threats to kidnap or injure that were not made with
  extortionate intent. Id. The act's expansion was prompted by the
  recognition that many threats "of a very serious and socially harmful
  nature" were not covered by the existing law because "the sender of
  the threat did not intend to extort money or other thing of value for
  himself." H.R. Rep. No. 102, 76th Congress, 1st Sess. (1939). An
  example of such a threat mentioned in the in the Report was one
  directed to a governor, threatening to blow up the governor's home if
  certain defendants in a criminal case were not released. As modified,
  while an "extortionate" intent was no longer required, the act was
  still intended to address threats aimed at accomplishing some coercive
  purpose, such as the release of the defendants in the given example.
  The modified statute still targets threats which, like the example,
  are unlikely to offend the constitutional standard articulated in
  Kelner.

  Threats aimed at achieving some coercive end remain the typical
  subject of more contemporary cases. In Cox, for instance, the
  defendant's truck was repossessed while it contained items of his
  personal property. The defendant telephoned the bank that had had the
  truck repossessed and stated "I tell you what, you all better have my
  personal items to me by five o'clock today or it[']s going to be a lot
  of hurt people there." Cox, 957 F.2d at 265. The threat was designed
  to effect the return of the defendant's property, it targeted the
  people at the bank, and it was found not to be conditional (in part
  because his property could not have been returned by the five o'clock
  deadline). It falls within Kelner's requirement of a threat that is
  "so unequivocal, unconditional, immediate and specific as to the
  person threatened, as to convey a gravity of purpose and imminent
  prospect of execution." 534 F.2d at 1027.

  Similarly, in Schroeder, the defendant had sued the government for
  denial of employment preference under a veterans benefit program. 902
  F.2d at 1470. After losing his civil suits, the defendant called an
  Assistant United States Attorney and threatened to shoot people at a
  post office if he did not obtain satisfaction from the government; he
  stated that "the government either gives [him] money or people would
  get hurt." Id. Schroeder involves an explicitly extortionate threat
  aimed at people in post offices. Although the case appears to strain
  the constitutional standard, particularly with regard to the
  requirement of immediacy, the defendant did not raise a constitutional
  challenge on appeal.

  While coercive or extortionate threats are paradigmatic subjects of a
  prosecution under 18 U.S.C. $ 875(c), a threat which is neither
  coercive nor extortionate may still satisfy the constitutional test
  from Kelner; indeed, Kelner itself involved a non-coercive threat to
  assassinate the PLO leader Yasser Arafat. Kelner, 534 F.2d at 1025.
  See also, DeAndino, 958 F.2d at 146 (regarding threat that defendant
  was going to "blow [the victim's] brains out," and the victim was
  "going to die.") Nevertheless, a coercive or extortionate threat is
  particularly likely to be a constitutionally prosecutable "true
  threat" because it is particularly likely to be intimately bound up
  with proscribed activity.

  Another important factor in analyzing a threat under 18 U.S.C. $
  875(c) is the recipient of the communication in question. As the Sixth
  Circuit stated in Lincoln (in the context of $ 871(a)), the statutory
  general intent element requires that "a reasonable person would
  foresee that the statement would be interpreted by those to whom the
  maker communicates the statement as a serious expression of an intent
  to inflict bodily harm" or kidnap a person. 462 F.2d at 1368. Thus in
  Cox, the Sixth Circuit looked to the reaction of the recipient of the
  defendant's telephone call, as well as that of the person to whom the
  defendant asked to speak.[15] Cox, 957 F.2d at 266. In Schroeder, the
  appropriate focus in considering the defendant's statements is how
  they would be interpreted by the Assistant United States Attorney who
  heard them, and by those to whom we could foreseeably relay them. A
  statement which would not be interpreted by any foreseeable recipient
  as expressing a serious intention to injure or kidnap simply is not a
  threat under the statute. While it is not necessary that the statement
  prosecuted under 18 U.S.C. $ 875(c) be communicated to the would-be
  target of the alleged threat, the statement must be evaluated in light
  of foreseeable recipients of the communication.

  Evaluating a statement charged under 18 U.S.C. $ 875(c) in light of
  its foreseeable recipients is consistent with the aims of the statute
  and the First Amendment. In the case of a coercive or extortionate
  threat, the maker of the statement obviously cannot achieve his or her
  end if the recipient of the statement does not take it as expressing a
  serious intention to carry out the threatened acts. If the coercive or
  extortionate threat is likely to be taken seriously by its recipient,
  then the threat is "so interlocked with violent conduct as to
  constitute for all practical purposes part of the [proscribed] action
  itself." Kelner, 534 F.2d at 1027. A communication containing an
  alleged non-coercive threat may be regulated consonant with the First
  Amendment, under the analysis in R.A.V. v. City of St. Paul, ___ U.S.
  ___, ___, 120 L.Ed.2d 305, 321 (1992), in order to "protect[]
  individuals from the fear of violence, from the disruption that fear
  engenders, and from the possibility that the threatened violence will
  occur." If the alleged threat would not be interpreted by its
  foreseeable recipients as a serious expression of an intention to do
  the "threatened" acts, it does not implicate fear of violence or the
  disruption that fear engenders, and does not suggest a real
  possibility that the "threatened" violence will occur. The statement
  thus would not be a "true threat" for the purposes of the First
  Amendment.

  Whether or not a prosecution under $ 875(c) encroaches on
  constitutionally protected speech is a question appropriately decided
  by the Court as a threshold matter. In the context of the Smith Act,
  18 U.S.C. $ 2381 et seq., which makes it a crime knowingly or
  willfully to advocate the overthrow or destruction of the United
  States government by force or violence, the Supreme Court has held
  that "[w]hen facts are found that establish the violation of a
  statute, the protection against conviction afforded by the First
  Amendment is a matter of law" requiring a judicial determination.
  Dennis v. United States, 341 U.S. 494, 513 (1951) (construing Act as
  codified at 18 U.S.C. (1946 ed.) $ 11, 54 Stat. 671). In the context
  of $ 875(c), the Second Circuit has recognized that "[m]ost cases are
  within a broad expanse of varying fact patterns which may not be
  resolved as a matter of law, but should be left to a jury," but has
  said that where the factual proof of a "'true' threat" is
  "insufficient as a matter of law," the indictment is properly
  dismissed before reaching the jury. United States v. Carrier, 672 F.2d
  300, 306 (2d Cir.), cert. denied, 457 U.S. 1139 (1982). Although the
  government argues that "whether a statement is a true threat is to be
  decided by the trier of fact," it recognizes that where "the language
  set forth . . . is so facially insufficient that it cannot possibly
  amount to a true threat," the Court may properly dismiss the
  indictment. Id.; accord Kosma, 951 F.2d at 555; United States v.
  Gilbert, 884 F.2d 454, 458 (9th Cir. 1989), cert. denied, 493 U.S.
  1082 (1990); United States v. Howell, 719 F.2d 1258, 1260 (5th Cir.
  1983), cert. denied, 467 U.S. 1228 (1984); Lincoln, 589 F.2d at 382.
  Whether the language set forth in the superseding indictment could
  possibly constitute a "true threat" must be determined in accord with
  Kelner's articulation of the constitutional requirement of a

    threat which on its face and in the circumstances in which it is
    made is so unequivocal, unconditional, immediate and specific as to
    the person threatened, as to convey a gravity of purpose and
    imminent prospect of execution.

  Kelner, 534 F.2d at 1027. Whether or not Baker actually intended to
  carry out the actions described in the communications is irrelevant to
  the constitutional inquiry.

  IV. The Communications

  The government characterizes the e-mail dialogue between Gonda and
  Baker in December, 1994 as reflecting "the evolution of their activity
  from shared fantasies to a firm plan of action." The government's
  characterization of the ongoing dialogue suggests that at least some
  of the counts in the superseding indictment should be dismissed;
  messages constituting "shared fantasies" fall short of the Kelner
  standard of an unequivocal, unconditional, immediate and specific
  threat conveying an imminent prospect of execution and therefore are
  not "true threats" unprotected by the First Amendment.

  As the Court construes the law as discussed above, the constitutional
  standard enunciated in Kelner requires, at the very least, that a
  statement charged under $ 875(c) contain some language construable as
  a serious expression of an intent imminently to carry out some
  injurious act. The language of the statement must be considered as it
  would be interpreted by the foreseeable recipients of the
  communication containing it. Statements expressing musings,
  considerations of what it would be like to kidnap or injure someone,
  or desires to kidnap or injure someone, however unsavory, are not
  constitutionally actionable under $ 875(c) absent some expression of
  an intent to commit the injury or kidnapping.[16] In addition, while
  the statement need not identify a specific individual as its target,
  it must be sufficiently specific as to its potential target or targets
  to render the statement more than hypothetical.

  Before addressing the specific language quoted in the indictment,
  several observations pertain to all of the government's charges.
  First, all of the language for which Baker is charged was contained in
  private e-mail messages he sent to Gonda. The messages were not
  available in any publicly accessible part of the Internet, and there
  is no allegation that they were ever distributed in any format,
  electronic or hardcopy, to anyone other than Gonda. Nothing in these
  private messages suggests that they would be further distributed. It
  is only as a result of this prosecution and the ensuing publicity that
  the content of the messages has been publicly aired.

  The focus of the inquiry here, therefore, is how a reasonable person
  would expect Gonda to interpret the e-mail messages. Gonda's identity
  is entirely unknown; "he" could be a ten year old girl, an eighty year
  old man, or a committee in a retirement community playing the role of
  Gonda gathered around a computer.[17] All that is known about Gonda is
  that he used a computer account based in Ontario, Canada, and that he
  apparently enjoyed exchanging with Baker what he referred to in an
  e-mail message dated January 3, 1995, as "REAL sex talk" concerning
  violence against women and girls. The language referred to by the
  government clearly does not constitute threats of a coercive or
  extortionate nature. It would be patently unreasonable after reading
  his messages to think that Baker's communications caused their only
  foreseeable recipient, Gonda, to fear violence, or caused him any
  disruption due to fear of violence. Of the grounds for prosecution of
  threats identified in R.A.V., the only one that could apply here is
  protection from the possibility that threatened violence will occur.
  ___ U.S. at ___, 120 L.Ed.2d at 321.

  The government characterizes the communications between Gonda and
  Baker as evolving into "a firm plan of action." Section 875(c),
  though, does not address planning crimes, per se, but transmitting
  threats to injure or kidnap. At oral argument, the government agreed
  the exchange between Gonda and Baker could be characterized as an
  exchange between coconspirators. In order to prove the existence of a
  conspiracy, generally, the government must prove an agreement between
  two or more people to act together in committing an offense, and also
  an overt act in furtherance of the conspiracy. E.g., United States v.
  Reifsteck, 841 F.2d 701, 704 (6th Cir. 1988); 18 U.S.C. $ 371; Sixth
  Circuit Pattern Criminal Jury Instructions 3.01A, 3.04. The charges
  here could not support a conspiracy prosecution because no overt act
  is alleged. The only actions involved in this prosecution are
  speech--"the outward expression of what a person thinks in his mind."
  Vance v. Judas Priest, et al., 1990 WL 130920, *28 (Nev. Dist. Ct.
  1990). In an e-mail exchange not quoted in the superseding
  indictment,[18] Baker and Gonda discuss sharing their thoughts, a
  classically protected activity. Baker had said to Gonda, in part: "I'd
  love to meet with you. There's no one else I can share my thoughts
  with." On November 29, 1994, Gonda responded in part: "I would really
  love to meet with you. I find that I am going insane trying to keep
  all these thoughts to myself. . . maybe we could even try to pick up
  some chicks and share our thoughts with them. . . what do you think?"

  Even if Gonda and Baker were conspiring, it does not follow that they
  are guilty of transmitting a threat to injure or kidnap under 18
  U.S.C. $ 875(c). Section 875(c) is not simply a conspiracy statute
  minus the overt act requirement. In order to be constitutionally
  sanctionable, the statements Baker made must meet Kelner's
  "unequivocal, unconditional, immediate, and specific" standard. As
  Justice Brandeis wrote:

    Fear of serious injury cannot alone justify suppression of free
    speech. . . To justify suppression of free speech there must be
    reasonable ground to fear that serious evil will result if free
    speech is practiced. There must be reasonable ground to believe that
    the danger apprehended is imminent.

  Whitney v. California, 274 U.S. 357, 376 (1927) (Brandeis, J.,
  concurring).[19]

  A.

  Count I charges Baker and Gonda with transmitting a threat to injure,
  and quotes from three e-mail messages. In the first message quoted,
  dated December 1, 1994, Baker responds to a message he had received
  from Gonda:

    I highly agree with the type of woman you like to hurt. You seem to
    have the same tastes I have. When you come down, this'll be fun!

    Also, I've been thinking. I want to do it to a really young girl
    first. !3 or 14.[20] There innocence makes them so much more fun ---
    and they'll be easier to control. What do you think? I haven't read
    your entire mail yet. I've saved it to read later, in private. I'll
    try to write another short phantasy and send it. If not tomorrow,
    maybe by Monday. No promises.



  On December 2, Gonda responded:

    I would love to do a 13 or 14 year old. I think you are right...not
    only their innocence but their young bodies would really be fun to
    hurt. As far as being easier to control...you may be right, however
    you can control any bitch with rope and a gag...once tey are tieed
    up and struggling we could do anything we want to them...to any
    girl. The trick is to be very careful in planning. I will keep my
    eye out for young girls, and relish the fantasy...BTW[21] how about
    your neighbour at home, youm may get a chance to see her...?...?

  The same day, Baker responded:

    True. But young girls still turn me on more. Likely to be nice and
    tight. Oh.they'd scream nicely too!

    Yeah. I didn't see her last time I was home. She might have moved.
    But she'd be a great catch. She's real pretty. with nice long legs.
    and a great girly face ... I'd love to make her cry ...

  The bill of particulars identifies the targets of these statements as:

    13 and 14-year old girls who reside in Defendant Jake Baker's
    neighborhood in Ann Arbor, Michigan, and teen-age girls who reside
    in Defendant Jake Baker's neighborhood in Boardman, Ohio.

   This Count falls short of the constitutional "true threat"
  requirement. As an initial matter, it does not refer to a sufficiently
  specific class of targets. The more limited class identified in the
  bill of particulars is not apparent from the face of the
  communications. Nothing in the exchange quoted in Count I implicitly
  or explicitly refers to 13 or 14 year old girls in Ann Arbor, nothing
  in the exchange identifies Boardman, Ohio (Baker's actual home) as the
  "home" referred to, and nothing in the exchange allows one to
  determine that the neighbor discussed is a teen-age girl. In reality,
  the only class of people to whom the messages can be taken to refer is
  13 or 14 year old girls, anywhere. This class is too indeterminate to
  satisfy Kelner's requirement of specificity as to the person
  threatened, even under the liberal interpretation given the
  requirement by some courts. Cf. Schroeder, 902 F.2d at 1470 (targeting
  people at an unidentified post office).

  As to the content of the messages, Baker's discussing his "tastes" in
  the first paragraph of his December 1 message does not involve any
  identifiable threatened action. In the second paragraph of the
  December 1 message, he expresses a desire "to do it to" a 13 or 14
  year old girl. Even assuming that more context would clarify the
  phrase "to do it to," the second paragraph also fails to mention an
  intention to do anything. Rather, it seeks Gonda's reaction to Baker's
  desire, asking: "What do you think?" Discussion of desires, alone, is
  not tantamount to threatening to act on those desires. Absent such a
  threat to act, a statement is protected by the First Amendment.

  As to Baker's message of December 2, the first paragraph again
  discusses a predilection toward "young girls," and what it would be
  like, presumably, "to do it to" "young girls." It does not mention any
  intention to act in accordance with the expressed predilection. The
  second paragraph responds to Gonda's question about a neighbor "at
  home." It says "she'd be a great catch," but expresses no intention to
  "catch" her, and indicates a desire to "make her cry," but, again,
  expresses no intention to take any action in accordance with that
  desire. It is not constitutionally permissible under Kelner to infer
  an intention to act on a desire from a simple expression of the
  desire. The intention (whether or not actually held) must itself be
  expressed in the statement. Count I fails to meet this standard, and
  must be dismissed.

  B.

  Counts II and III are based on the same statement made by Baker in an
  e-mail message dated December 9, 1994, and charge Baker with making a
  threat to kidnap and a threat to injure, respectively. The statement
  for which Baker is charged in the two counts reads:

    I just picked up Bllod Lust and have started to read it. I'll look
    for "Final Truth" tomorrow (payday). One of the things I've started
    doing is going back and re-reading earlier messages of yours. Each
    time I do. they turn me on more and more. I can't wait to see you in
    person. I've been trying to think of secluded spots. but my
    knowledge of Ann Arbor is mostly limited to the campus. I don't want
    any blood in my room, though I have come upon an excellent method to
    abduct a bitch ---

    As I said before, my room is right across from the girl's bathroom.
    Wiat until late at night. grab her when she goes to unlock the dorr.
    Knock her unconscious. and put her into one of those portable
    lockers (forget the word for it). or even a duffle bag. Then hurry
    her out to the car and take her away ... What do you think?

  The bill of particulars identifies the target of the statement as:
  "Female college students who lived in Defendant Jake Baker's dormitory
  at the University of Michigan in Ann Arbor, Michigan." Apart from
  concerns about equating Baker's online persona with his real person,
  the class of would-be targets here is identified with sufficient
  specificity.

  Presumably, the government offers this statement as a threat to carry
  out the "method to abduct" it describes. Under Kelner, discussion of a
  method of kidnapping or injuring a person is not punishable unless the
  statement includes an unequivocal and specific expression of intention
  immediately to carry out the actions discussed. Baker's e-mail message
  cannot reasonably be read as satisfying this standard. As in Count I,
  the language with which Baker is charged here lacks any expression of
  an intention to act, and concludes with a request for Gonda's
  reaction: "What do you think?" Discussing the commission of a crime is
  not tantamount to declaring an intention to commit the crime. To find
  an expression of unequivocal intention in this language would require
  the drawing of an inference not grounded in any specific language of
  the statement and would exceed the bounds of the First Amendment.
  Counts II and III must be dismissed.

  C.

  Count IV charges Baker and Gonda with transmitting a threat to injure.
  The Count is based on a message from Gonda to Baker, and Baker's
  response. Both e-mail messages are dated December 10, 1994. Gonda
  wrote:

    Hi Jake. I have been out tonight and I can tell you that I am
    thinking more and more about 'doing' a girl. I can picture it so
    well...and I can think of no better use for their flesh. I HAVE to
    make a bitch suffer!

    As far as the Teale-homolka killings, well I can think of no tastier
    crimes...BTW have you seen any pictures of the girls? You have to
    see these cunts! They must have been so much fun...please let me
    know any details that I cannot get here. I would love to see what
    you think about it....

    As far as the asian bitch story, there is only one possible
    ending....



  Baker responded:

    Are tastes are so similar. it scares me :-) When I lay down at
    night. all I think of before I sleep is how I'd torture a bitch I
    get my hands on. I have some pretty vivid near dreams too. I wish I
    could remember them when I get up.

  The bill of particulars identifies the target of these statements as:

    Women who were the subject of Defendant Jake Baker's E-mail
    transmissions and Internet postings, including -- but not limited to
    -- Jane Doe, whose true name is known to Defendant Jake Baker and
    this Honorable Court.

   This Count presents the weakest of all the government's charges
  against Baker. While the government identifies the class of targets
  here as women Baker discussed on the Internet, there is nothing in the
  language quoted here to so limit the class. In addition, since Baker's
  e-mail often refers simply to "a girl," a class composed of women
  Baker discussed in his e-mail and stories essentially is a class
  composed of any woman or girl about whom Baker has ever thought. Such
  a class is obviously not sufficiently specific.

  With regard to the content of Baker's communication, Baker's statement
  here consists only of an expression of his thoughts before sleeping
  and of "near dreams" he cannot remember upon waking. To infer an
  intention to act upon the thoughts and dreams from this language would
  stray far beyond the bounds of the First Amendment, and would amount
  to punishing Baker for his thoughts and desires. Count IV must be
  dismissed.

  D.

  Count V charges Baker and Gonda with transmitting a threat to injure.
  It is based on an exchange between Gonda and Baker on December 11-12,
  1994. On December 11, Gonda wrote to Baker:

    It's always a pleasure hearing back from you...I had a great orgasm
    today thinking of how you and I would torture this very very petite
    and cute south american girl in one of my classes...BTW speaking of
    torture, I have got this great full length picture of the Mahaffy
    girl Paul Bernardo killed, she is wearing this short skirt!



  The same day, Baker responded:

    Just thinking about it anymore doesn't do the trick ... I need TO DO
    IT.



  The next day, Gonda wrote:

    My feelings exactly! We have to get together...I will give you more
    details as soon as I find out my situation...



  Baker responded:

    Alrighty then. If not next week. or in January. then definatly
    sometime in the Summer. Pickings are better then too. Although it's
    more crowded.

  The bill of particulars identifies the target of these statements, as
  in Count IV, as:

    Women who were the subject of Defendant Jake Baker's E-mail
    transmissions and Internet postings, including -- but not limited to
    -- Jane Doe, whose true name is known to Defendant Jake Baker and
    this Honorable Court.

   This Count, too, fails to meet Kelner's constitutional "true threat"
  standard. The class of potential targets, as discussed with regard to
  Count IV, is far too vague. As to the content of the communications,
  Baker indicates his "need TO DO IT." Like his earlier statements, this
  language indicates a desire to do something. While use of the word
  "need" indicates a strong desire, it still falls short "unequivocal,
  unconditional and specific expression of intention immediately to
  inflict injury," Kelner, 534 F.2d at 1027; "needs" go unmet everyday.
  Baker next indicates, at most, an intention to meet Gonda at some
  indefinite point in the future--in the next week, month, or several
  months later. This statement does not express an unequivocal intention
  immediately to do anything. Also, nothing in the language on which the
  Count is based indicates any intention to commit specific acts if
  Baker and Gonda ever were to meet. Like the preceding four Counts,
  Count V fails to state a charge under $ 875(c) that can survive a
  First Amendment challenge, and must be dismissed. This prosecution
  presents the rare case in which, in the government's words, "the
  language set forth . . . is so facially insufficient that it cannot
  possibly amount to a true threat."

  V. Coda

  This case in its initial stage generated a good deal of public
  interest.[22] Now that the case will be concluded by an order rather
  than by a jury verdict, it is important to assure the public that such
  a conclusion is not by fiat. In United States v. Carrier, 672 F.2d
  300, 306 (2d Cir.), cert. denied, 457 U.S. 1139 (1982), while the
  Second Circuit said "that whether words used are a true threat is
  generally best left to the triers of fact," it went on to say "[o]nly
  where the factual proof is insufficient as a matter of law should the
  indictment be dismissed." This is such a case. The communications
  which form the basis of the superseding indictment, the many preceding
  and subsequent communications, the names of the witnesses and the
  general nature of their testimony, and the exhibits are all in the
  record. All of this evidence, viewed in the light most favorable to
  the prosecution, leads to one inevitable conclusion: based on the
  applicable rules of law there is no case for a jury because the
  factual proof is insufficient as a matter of law. The government's
  enthusiastic beginning petered out to a salvage effort once it
  recognized that the communication which so much alarmed the University
  of Michigan officials was only a rather savage and tasteless piece of
  fiction. Why the government became involved in the matter is not
  really explained in the record.[23]

  Baker is being prosecuted under 18 U.S.C. $ 875(c) for his use of
  words, implicating fundamental First Amendment concerns. Baker's words
  were transmitted by means of the Internet, a relatively new
  communications medium that is itself currently the subject of much
  media attention. The Internet makes it possible with unprecedented
  ease to achieve world-wide distribution of material, like Baker's
  story, posted to its public areas. When used in such a fashion, the
  Internet may be likened to a newspaper with unlimited distribution and
  no locatable printing press--and with no supervising editorial
  control. But Baker's e-mail messages, on which the superseding
  indictment is based, were not publicly published but privately sent to
  Gonda. While new technology such as the Internet may complicate
  analysis and may sometimes require new or modified laws,[24] it does
  not in this instance qualitatively change the analysis under the
  statute or under the First Amendment. Whatever Baker's faults, and he
  is to be faulted, he did not violate 18 U.S.C. $ 875(c). The case
  would have been better handled as a disciplinary matter, as the
  University of Victoria proceeded in a similar situation,[25] despite
  whatever difficulties inhere in such a course.[26] What the Court said
  at the conclusion of oral argument bears repeating: "[T]he Court is
  very skeptical, and about the best thing the government's got going
  for it at this moment is the sincerity of purpose exhibited by [the
  Assistant United States Attorneys prosecuting the case]. I am not sure
  that sincerity of purpose is either synonymous with a good case under
  the law, or even the exercise of good judgment."











                               _______________________________

                                       AVERN COHN

                               UNITED STATES DISTRICT JUDGE








DATED:  June 21, 1995


       Detroit, Michigan





    _________________________________________________________________



   Baker Opinion / Stuart Beraha / [email protected]

------------------------------

Date: Sun, 19 Apr 1995 22:51:01 CDT
From: CuD Moderators <[email protected]>
Subject: File 2--Cu Digest Header Info (unchanged since 19 Apr, 1995)

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