Cyberstalking and “Other Suspect” Evidence

After being convicted of stalking, cyberstalking and perjury, Andre Luis Franklin appealed his convictions to the Washington Court of Appeals. State v. Franklin, 2012 WL 745227 (2012). The stalking and cyberstalking charges were based on Franklin’s alleged conduct with regard to Nanette Fuerte, a woman with whom he had “an `on and off’” intimate relationship “from 2005 forward” and with whom he worked at the City of Seattle Department of Parks and Recreation. State v. Franklin, supra. During this same period, he was “living with his girlfriend, Rasheena Hibbler.” State v. Franklin, supra.

Before we get into the facts and legal issues, I need to clarify the charges a bit. First, Washington state criminalizes stalking and cyberstalking: Washington Revised Code § 9A.46.110 defines “stalking” as intentionally and “without lawful authority”, repeatedly harassing or following someone which places that person “in fear that the stalker intends to injure” them.

Washington Revised Code § 9.61.260 defines cyberstalking as making an electronic communication to someone with the intention of harassing, intimidating, tormenting or embarrassing them; the communication must use “lewd, lascivious, indecent or obscene words, images or language” or suggest the commission of “any lewd or lascivious act”, be anonymous or threaten to injure the person. We’re only concerned with the stalking and cyberstalking charges; the perjury charge arose from Franklin’s testimony at a hearing. State v. Franklin, supra.

A lot went on in this case, so I’m going to summarize the facts: In October of 2008, Fuerte borrowed $3,000 from Franklin and promised to pay him back by November 26, which she apparently failed to do. State v. Franklin, supra. On November 6, Fuerte was home when Franklin showed up angry; it was “several hours” before she could persuade him to leave. State v. Franklin, supra. The next day, Fuerte began receiving emails and

phone calls from accounts and phone numbers she did not recognize. She finally answered one of the calls and the caller told her he was responding to a posting on Craigslist offering oral sex. She then discovered that the calls and e-mails she had been receiving were all requests for her to perform sexual acts. Fuerte . . . received 75 to 100 calls responding to the Craigslist ads. She stayed in a hotel that night because she was scared and changed her phone number the next day.

The following evening, . . . Fuerte was at a restaurant with family and friends when Franklin . . . came to her table. He was angry at Fuerte because she had changed her phone number and he told her he was `going to let the superintendent and [her] manager know exactly what type of person’ she was. He also demanded that Fuerte pay him the money she owed, and Fuerte told him she would pay him on Monday.

State v. Franklin, supra.

On November 10, Fuerte began “receiving e-mails from Franklin, asking her to meet” and pay him. State v. Franklin, supra. They were sent from “`time4gamez@yahoo.com.’” State v. Franklin, supra. When she emailed to say she was meeting a friend at 1:00 p.m. to borrow the money, she got a reply that said, in part, “`u asked me 2 b patient I no longer have any patients. . . . u have till 1 pm then u know what will happen[.]’” State v. Franklin, supra. Fuerte brought the money to Franklin’s home after she got it from her friend’s bank; when she paid him, he “laughed at her and said, `[D]o you think this is the end of it? This is just the beginning.’” State v. Franklin, supra.

Later that day, Fuerte received another email from the time4gamez address. State v. Franklin, supra. The subject line was “`I love to suck dick for free!” and email said

`Call me at 206–386–1921 and ask for Nanette and tell me what u would do to me. If you get no answer, leave a long message telling me what u would like to do to me and what u want me to do to u.”

State v. Franklin, supra. The number listed was her work number; attached to the email were “two pictures of a sexual nature, one of Fuerte and one of Fuerte and Franklin.” State v. Franklin, supra. Fuerte received more emails, from the same address, over the following days until she called Franklin and asked him to stop, which he refused to do. State v. Franklin, supra. After she received emails responding to “yet another sexually explicit” Craigslist posting, she contacted the police, which resulted in the charged noted above. State v. Franklin, supra.

At trial, Franklin’s defense was (in whole or in part) that his girlfriend Rasheena Hibbler was the one who was responsible for the emails and Craigslist postings. The opinion says that prior to trial, the prosecution moved to bar evidence that she committed the crimes with which Franklin was charged because “there was insufficient foundation for this `other suspect’ evidence.” State v. Franklin, supra. The evidence seems to have consisted of Hibbler’s having admitted, in an interview with the prosecutor, that her

her laptop was the only home computer, that she confronted Fuerte in the past via e-mail about her relationship with Franklin, and she had access to Franklin's work and personal e-mail accounts. When asked if she knew anything about the Craigslist ads before or when they were posted, if she posted them herself, and if she knew where the sexually explicit photo attached to the Craigslist ads came from, Hibbler asserted the 5th Amendment privilege.

State v. Franklin, supra.

The trial judge barred Franklin from introducing evidence that Hibbler was responsible on the grounds that he had not established the “foundation to have Ms. Hibbler as another suspect in the case.” State v. Franklin, supra. (He also held that she had “a 5^th Amendment right not to testify”. State v. Franklin, supra.) Franklin testified at trial and denied sending the emails, posting the Craigslist ads, having any conversations with Fuerte about the loaned money and that she repaid him. State v. Franklin, supra. He was convicted on all counts and, as I noted above, appealed.

In considering Franklin’s argument that the trial judge erred in “excluding `other suspect’ evidence showing that Hibbler actually committed the crime”, the Court of Appeals explained that the federal and state constitutes guarantee a criminal defendant the

right to present a defense, which includes the right to offer testimony of witnesses and to compel witness attendance, if necessary. But the right to present a defense is not absolute and does not extend to irrelevant or inadmissible evidence.

A criminal defendant seeking to admit evidence suggesting that another person committed the charged offense bears the burden of establishing its admissibility and must lay a sufficient foundation for such evidence. That foundation requires proof of the alleged other suspect's connection with the crime and the defendant must establish a train of facts or circumstances that tend to clearly point to someone other than the defendant as the guilty party.

A foundational showing that it was possible for a third party to have committed the crime is insufficient. Thus, mere motive, ability, and opportunity to commit the crime alone do not establish sufficient foundation. `Not only must there be a showing that the third party had the ability to place him- or herself at the scene of the crime, there also must be some step taken by the third party that indicates an intention to act on that ability.’

State v. Franklin, supra (quoting State v. Rehak, , 834 P.2d 651 (1992) (emphasis in original).

The court then explained why Franklin had not made the necessary “foundational showing” for the introduction of Hibbler’s testimony as “other suspect” evidence:

[T]here was no evidence indicating Hibbler's intent to act on her alleged motive. The proffered `other suspect’ evidence pointing to Hibbler consisted of her statements that she had access to Franklin's work and personal 10 e-mail accounts, used his `squareone’ personal account to send e-mails to unnamed `others,’ had harassed Fuerte by e-mail from her own account in the past, was aware of the money dispute between Franklin and Fuerte, and had seen the sexually explicit photographs of Fuerte that were attached to the Craiglist ads.

At most, this shows she had access to some of Franklin's e-mail accounts and the computer from which the e-mails were sent, and was aware of some of the content of the harassing e-mails (the loan dispute and sexually explicit photographs). While this establishes that she had motive and possibly the ability to commit the crime, it does not establish the `direct connection’ required -- that she in fact took some step indicating an intention to act on that ability.

The evidence does not establish that Hibbler used Franklin's e-mail accounts to contact Fuerte, sent Fuerte e-mails pretending to be Franklin, used or was even aware of the `time4gamez’ account involved in the crime, or posted the Craigslist ads and sexually explicit photographs.

State v. Franklin, supra.

The Court of Appeals noted, though, that “whether Hibbler's testimony amounts to admissible `other suspect’ evidence is a close call”. State v. Franklin, supra. But it found (i) that it could not say the trial judge abused his discretion by excluding it and (ii) even if he had, it would have been harmless error, i.e., would not have required reversing the convictions. State v. Franklin, supra.

The reason the error, if indeed one was made, would have been harmless was that the evidence “would have been subject to the 5^th Amendment privilege and inadmissible on that basis.” State v. Franklin, supra. As the Court of Appeals put it, “if such testimony was in fact admissible as `other suspect’ evidence, it would furnish a link in the chain of evidence needed to prosecute Hibbler and would therefore be protected by the 5th Amendment privilege.” State v. Franklin, supra.

As I’ve noted in earlier posts, to be able to claim the 5^th Amendment privilege you must be (i) compelled to (ii) give testimony that (iii) incriminates you, i.e., implicates you in a crime. Franklin had apparently subpoenaed Hibbler to testify; a subpoena constitutes “compulsion” because if the witness does not comply, the judge will hold her in civil contempt and order her incarcerated until she complies. Since she would be required to speak – to “testify – that requirement is also met. The only issue that might be problematic is whether her testimony would incriminate her, i.e., implicate her in the cyberstalking/stalking of Fuerte.

In a rather roundabout way, the Court of Appeals decided it would not:

Because it did not amount to `other suspect’ evidence as the trial court concluded, it was not subject to the 5th Amendment privilege and the trial court's ruling to the contrary was in error. Nonetheless it was still inadmissible as irrelevant, precisely because it does not amount to other suspect evidence.

Indeed, it was unnecessary for the trial court to even determine applicability of the 5th Amendment once it had already determined that such evidence was irrelevant and not admissible as `other suspect’ evidence. Thus, at most, the trial court's ruling amounts to harmless error because Hibbler's testimony was already inadmissible under the `other suspect’ analysis.

State v. Franklin, supra.

“Unauthorized Access” and Termination of Employment

As I’ve noted in earlier posts, 18 U.S. Code § 1030 (aka the Computer Fraud and Abuse Act) is the general federal computer crime statute.

That doesn’t mean all the federal computer crimes are defined by this statute; other statutes also define offences that are or can be committed by computer. But § 1030 is the general provision that criminalizes the basic crimes, e.g., accessing a computer without authorization, using a computer to commit fraud or extortion, using a computer to disseminate malware and/or launch a denial of service attack.

As I’ve also noted, 18 U.S. Code § 1030 also creates a civil cause of action that lets those who have been the victims of one or more of the crimes it establishes bring a civil suit seeking damages for the harm caused by those offenses. The civil cause of action is defined by 18 U.S. Code § 1030(g). This post examines an opinion a federal district court judge recently issued in such a suit: SBM Site Services, LLC v. Garrett, 2012 WL 628619 (U.S. District Court for the District of Colorado 2012).

According to the opinion, in January of 2011, SBM Site Services sued John Garrett and Crown Building Maintenance Inc. d/b/a Able Building Maintenance for violating 18 U.S. Code § 1030. SBM Site Services, LLC v. Garrett, supra. Garrett and Able filed a motion to dismiss SBM’s § 1030(g) cause of action on the premise that it failed to state a claim upon which relief can be granted, i.e., was legally insufficient. SBM Site Services, LLC v. Garrett, supra.

As Wikipedia notes, to successfully plead a cause of action, the plaintiff must plead facts that, if proven, would establish all the elements of that cause of action: “For example, assault requires intent, so if the plaintiff has failed to plead intent, the defense can seek dismissal by filing a 12(b)(6) motion.” So the Rule 12(b)(6) motion is a way of attacking the viability of a plaintiff's asserted cause of action.

As to the factual basis for this suit, the opinion explains that SBM provides facilities

support services such as janitorial, recycling, and moving services to its customers. . . . [It] maintains a `great deal’ of confidential information in an electronic database known as its `Knowledge Portal’. . . . The Knowledge Portal contains all of the forms and procedures necessary to operate SBM's business. . . . [and] confidential customer lists and confidential information pertaining to particular customers. . . .

For nearly fifteen years, Garrett was employed by SBM. . . . Garrett was the Senior Vice President -- Chief Business Development Officer and one of only five employees that reported directly to SBM's Chief Operating Officer. . . . SBM provided Garrett with access to the Knowledge Portal for purposes of performing . . . his job. . . . .

Garrett primarily worked remotely for SBM from a home office in Windsor, Colorado. . . . SBM provided Garrett with two desktop computers and two laptop computers. . . . Garrett used these SBM-provided devices to remotely access SBM's computer system, including the Knowledge Portal. . . . SBM also provided Garrett with an external drive to maintain an archive of bids, proposals, templates, and other marketing tools. . . .

SBM Site Services, LLC v. Garrett, supra.

SBM’s Employee Handbook said no employee could “`remove or make copies of any SBM records, reports or documents without prior management approval.’” SBM Site Services, LLC v. Garrett, supra. Garrett also executed a Confidentiality Agreement in which he agreed to “`hold in confidence and not disclose any’” SBM business, records, customer lists, contracts and other items. SBM Site Services, LLC v. Garrett, supra. And he executed a Non-Competition agreement in which he agreed not to participate in any business activity that competed with or was similar to SBM’s business within three years of leaving SBM. SBM Site Services, LLC v. Garrett, supra.

Able is SBM’s “direct competitor.” SBM Site Services, LLC v. Garrett, supra. In 2009,

Garrett had multiple conversations with high-ranking officers at Able. . . . [and] after one of these meetings, . . . asked, his administrative assistant, to access the Knowledge Portal and download all available files under each category. . . .Garrett later asked [her] to mail him a CD with all of these documents on it. . . .

On January 3, 2010, Garrett met with representatives from Able. . . In follow-up correspondence . . ., Able informed Garrett he would be heading up a new division—Able Building Maintenance. . . . The following day, Garrett informally informed SBM that he was resigning effective January 22. . . .

SBM informed Garrett that, upon his departure . . . he would be required to return all SBM property, including equipment, records, and confidential and/or trade secret information in any form or medium. . . . Garrett confirmed that he would return the property. . . .

On January 11, Able made a written offer of employment to Garrett. . . . [who] directed [his assistant] to contact members of the sales team and have them provide their most current customer contact information sheet. . . . Upon receipt of this information, Garrett e-mailed it to his personal e-mail account. . . . Between January 10 and January 22, [he] sent leads and other confidential information of SBM to executives at Able. . . .

SBM Site Services, LLC v. Garrett, supra.

Garrett met with SBM’s director of human resources on January 26, but “failed to return” any of SBM’s computers or the disk with the data downloaded from the Knowledge Portal. SBM Site Services, LLC v. Garrett, supra. SBM scheduled a “follow-up meeting for January 29 . . . to collect these items”, but Garrett canceled the meeting and told SBM the equipment had been shipped. SBM Site Services, LLC v. Garrett, supra.

SBM received the laptop on February 16 and “it had been encrypted with a drive-lock to prevent access.” SBM Site Services, LLC v. Garrett, supra. The opinion says Garrett “has not provided SBM with the password to access the laptop” and SBM later learned it was “`intentionally erased’”. SBM Site Services, LLC v. Garrett, supra.

As noted above, Garrett and Able move to dismiss SBM’s § 1030(g) cause of action. As I’ve noted before, in order to state such a cause of action, the plaintiff must allege that it has been damaged by the defendants’ committing one of the offenses defined by 18 U.S. Code § 1030(a).

In his opinion ruling on the motion to dismiss, the federal judge said the “pertinent” provision of 18 U.S. Code § 1030(a)(5)(C), which makes it a crime to intentionally access a protected computer without authorization and, as a result, cause damage and loss to the owner of the computer. SBM Site Services, LLC v. Garrett, supra. As I’ve noted, § 1030 defines “protected computer” broadly, so that it basically encompasses any computer used in interstate commerce and, I’m sure, encompasses the computer at issue here.

The judge then noted that for SBM to state a viable cause of action under this sub-section of § 1030, it had to allege that Garrett accessed the SBM-owned laptop without being authorized to do so. SBM Site Services, LLC v. Garrett, supra. In their motion to dismiss the defendants argued that “because Garrett was authorized to access the laptop while he was employed by [SBM], he cannot have accessed [it] without authorization.” SBM Site Services, LLC v. Garrett, supra.

In analyzing this argument, the judge noted there is a split of opinion among federal courts as to “what constitutes `unauthorized access’” for purposes of § 1030(a). SBM Site Services, LLC v. Garrett, supra. One view is that authorized access ends when the employee has decided to quit his job or otherwise is guilty of a “`breach of loyalty’” to his employer. SBM Site Services, LLC v. Garrett, supra. That view essentially links the concept of authorization to allegiance to the employer, who conferred authorization on the employee. The other view sees authorized access as ending only if and when the employer “has specifically rescinded the employee’s access to the computer”. SBM Site Services, LLC v. Garrett, supra.

The judge ultimately decided he did not need to adopt either view because both were “immaterial to this case”:

SBM informed Garrett that he was required to return all property that he had been given, including his equipment, at the time he ended his employment. . . . Thus, SBM explicitly revoked Garrett's access to the laptop as of his last day as an employee.

Garrett failed to return much of his equipment, including a laptop, on his last day and canceled a follow-up meeting SBM had scheduled to collect this equipment. . . .

Garrett retained the laptop for approximately three weeks after he terminated his employment with [SBM]. . . . When he returned the laptop . . ., it had been `intentionally erased.’ . . .

The Court finds it is reasonable to infer that Garrett accessed the laptop after his last day of employment with SBM or, stated differently, it is unreasonable to infer that Garrett retained the SBM laptop for about three weeks after his employment with SBM had terminated only to refrain from accessing said laptop during this prolonged period of time. As a consequence, the Court holds that SBM has stated a claim for violation of [18 U.S. Code § 1030].

SBM Site Services, LLC v. Garrett, supra.

The judge then elaborated a bit on his holding:

The cases cited by Defendants for the proposition that Garrett's access to the laptop was not `unauthorized’ are easily distinguishable because they involve the use (or alleged misuse) of company-provided equipment during the duration of the defendant's employment. . . .

In this case, Garrett retained [SBM’s] laptop for three weeks after his employment ended, including more than two weeks after he started his employment with Able, a direct competitor with SBM. . . .

There can be no question that . . . Garrett's access to the laptop became unauthorized when his employment ended and SBM requested return of the laptop.

SBM Site Services, LLC v. Garrett, supra.

The judge also found that SBM had stated a § 1030 cause of action against Able:

Garrett began his employment with Able on January 28, 2010. . . . At such time, Garrett became an agent of Able and Able became liable for any actions taken within the scope of his employment. . . . Garrett did not return the laptop computer to [SBM] until more than two [weeks] after he began his employment with Able. . . . It is reasonable to infer that Garrett accessed SBM's laptop during the time that he was employed with Able and in the scope of such employment. . . .

SBM Site Services, LLC v. Garrett, supra.

He therefore denied the defendants’ motion to dismiss the § 1030 claim. SBM Site Services, LLC v. Garrett, supra. That doesn’t mean SBM will win on the claim. As I noted earlier, the judge was only ruling on whether the facts alleged in SBM’s Complaint, if proven by a preponderance of the evidence, suffice to allege the § 1030 cause of action.

The Twitter Subpoena, the Machete and the Motion to Quash

On August 5, 2011, a federal grand jury in the District of Columbia issued a subpoena “to Twitter, Inc. on August 5, 2011, demanding that Twitter provide `any and all records pertaining to the identity of user name [redacted].’” In re Grand Jury Subpoena No. 11116275, 2012 WL 691599 (U.S. District Court for the District of Columbia 2012). For reasons we’ll get to, the opinion doesn’t identify the target of the subpoena, i.e., “the individual who utilizes the Twitter.com username [redacted] and the pseudonym [redacted] (hereinafter `Mr. X’).’ In re Grand Jury Subpoena, supra.

The target of the subpoena – Mr. X – moved to quash it, i.e,, have it declared invalid. In re Grand Jury Subpoena, supra. Before we get into his arguments as to why it should be quashed, I need to note why the grand jury was interested in his identity. According to the opinion, on “August 2, 2011 at 9:32 p.m.”, Mr. X posted the

message, or `tweet,’ that provoked the subpoena and is the subject of this motion. . . . [I]t no longer appears on the user's Twitter page. The tweet read: `I want to fuck Michele Bachman in the ass with a Vietnam era machete.’

In re Grand Jury Subpoena, supra. From the opinion, it’s clear that federal prosecutors were concerned that this was a threat to harm Bachmann, a member of Congress who was then a candidate for the Republican nomination for President.

“Upon receiving the subpoena, Twitter informed Mr. X of its existence and of Twitter's intent to comply unless [he] filed a prompt motion to quash.” In re Grand Jury Subpoena, supra. Mr. X then filed a motion to quash “pursuant to Rule 17(c) of the Federal Rules of Criminal Procedure.” In re Grand Jury Subpoena, supra. Under Rule 17(c), a judge can quash a subpoena “if compliance would be unreasonable or oppressive”.

The judge began the opinion in which he ruled on Mr. X’s motion by explaining that

The public, acting through the grand jury, `has a right to every man's evidence.’ U.S. v. Nixon, 418 U.S. 683 (1974). Although this right provides the grand jury with the . . . power to subpoena witnesses, this power is not absolute. . . . [A] grand jury may not compel testimony from an individual who holds a valid `constitutional . . . privilege,’ because compliance in such a scenario would be `unreasonable or oppressive’ for the purposes of Rule 17(c). . . . Mr. X has a right under the 1st Amendment to post on the Internet, and to do so anonymously. . . .

Accordingly, the grand jury may not subpoena Twitter to gain information regarding Mr. X's identity unless the government can show `a compelling interest in the sought-after material’ and `a sufficient nexus between the subject matter of the investigation and the information they seek.’ In re Grand Jury Investigation, 706 F.Supp.2d 11 (D.D.C.2009)

In re Grand Jury Subpoena, supra.

In opposing Mr. X’s motion to quash, the federal government said it

may be investigating the tweet as a violation of 18 U.S. Code § 875(c), which criminalizes the transmission `in interstate or foreign commerce’ of `any communication containing any threat to. . . injure the person of another. . . .’ The subpoena at issue identified a possible violation of 18 U.S. Code § 115, which criminalizes threats to `assault . . . a United States official . . . with intent to impede, intimidate, or interfere with such official . . . or with intent to retaliate against such official. . . .’

In re Grand Jury Subpoena, supra. The judge noted that the 1^st Amendment “analysis is the same for either statute.” In re Grand Jury Subpoena, supra.

He explained that the “`compelling interest’ and `sufficient nexus’ requirements involve a straightforward inquiry into whether the information sought is truly necessary to the grand jury's investigation.” In re Grand Jury Subpoena, supra. He also noted that this

approach has the benefit of easy application in many cases. Here, however, Mr. X argues that the government lacks a real investigative need for his identity. The 1st Amendment limits the authority of the federal government to criminalize speech, and in this context would only allow prosecution of Mr. X if his tweet constituted a `true threat.’

In order for a threat to be `true,’ its speaker must mean `to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual. . . .’ Virginia v. Black, 538 U.S. 343 (2003). Mr. X argues that this is a purely objective test: Would a reasonable person view the statement as expressing a serious intent to cause harm? Since reasonable people viewing Mr. X's tweets do not know his identity, he posits that the grand jury need not know his identity to determine whether there exists probable cause to indict.

In re Grand Jury Subpoena, supra.

The judge found, though, that while an “objectivity requirement” may seem

prudent in some cases, an objective inquiry is uniquely problematic for anonymous threats -- particularly those made on the Internet. . . . The anonymity of a threatening communication introduces an element of ambiguity that renders an assessment of the threat's legitimacy difficult.

A reasonable recipient of such a threat simply may not know whether she ought to take it seriously. Although the recipient of a threat may always have some doubt about the likelihood of the threatened act materializing -- such as when the recipient is ignorant of basic details regarding the identified speaker—the recipient of a truly anonymous threat will rarely be able to assess its validity.

In re Grand Jury Subpoena, supra.

He also, though, found that even if objectivity were relevant, the grand jury would

still need to investigate both the objective effect of the supposed threat, and Mr. X's subjective intent to threaten at the time of posting, as the government would need to prove both. Accordingly, the grand jury would still be entitled to make an independent inquiry into Mr. X's subjective intent.

And the Court can easily see how information about Mr. X's identity could be relevant to a grand jury -- indeed, such information might prove dispositive of the probable cause question. The grand jury ought to know if Mr. X has a history of making threats to political candidates in other forums, or has stalked or engaged in other sinister behavior toward Ms. Bachmann, or happens to actually own a Vietnam-era machete. The government and the grand jury surely must know the identity of an individual making a threat in order to ascertain whether he intended the threat to be `true.’

In re Grand Jury Subpoena, supra.

So he held that the government had satisfied the “compelling interest” and “sufficient nexus” requirements. In re Grand Jury Subpoena, supra. But the judge also noted that he “has grave doubts about the likelihood of a grand jury returning an indictment in this case” because a true threat requires a 1serious expression of an intent to commit an act of unlawful violence’” and “[t]here appears to be nothing serious whatsoever about Mr. X's Twitter page”. In re Grand Jury Subpoena, supra. At the same time, he explained that the government must take seriously

all threats against a major presidential candidate such as Ms. Bachmann, unless and until it is satisfied there is no likelihood that the threat was legitimate. Part of taking a threat seriously may include attempting to convince a grand jury to return an indictment. And if a grand jury does return an indictment, it then becomes the role of the courts to decide the sufficiency of the indictment, see., e.g., United States v. Alkhabaz, 104 F.3d 1492 (6th Cir.1997). . . .

In re Grand Jury Subpoena, supra.

In arguing that the subpoena should be quashed, Mr. X claimed his use of the

term `I want to,’ as opposed to `I'm going to’ or `I plan to,’ renders the tweet a mere expression of desire as opposed to a threat. But expressions of desire can still place a recipient `in fear of bodily harm or death,’ Virginia v. Black, supra. If Mr. X were standing next to Ms. Bachmann with a Vietnam-era machete in hand, and had spoken instead of tweeted the message, Ms. Bachmann would take cold comfort in those first few words.

Wanting to do something is often, though not always, a predicate to actually doing something. . . . Use of the phrase `I want to’ may signify an inchoate wish, or may indicate a goal toward which an individual is actively working. Mr. X's use of the word `want’ instead of `plan’ cannot be dispositive.

In re Grand Jury Subpoena, supra.

Mr. X also said the judge should consider “the context of his tweets as a whole, and the ludicrous nature of the tweet at issue” in deciding whether to enforce the subpoena. In re Grand Jury Subpoena, supra. The judge did so, and found that Mr. X’s statement

is indeed a grammatical threat. What Mr. X is describing is the forcible insertion of an extremely sharp, real-world weapon into Ms. Bachmann's rectum, which, if performed, would undoubtedly cause serious bodily injury -- and likely death.

On its face, the statement expresses a threat of violence. And while the statement appears within a larger group of preposterous tweets, this does not automatically render the threat toothless. . . . Mr. X has tweeted a prima facie threat, and the government is entitled to determine whether it is a true threat.

In re Grand Jury Subpoena, supra. (Mr. X also argued that his tweet “was as absurd” as if he’d written “`I want to give Michele Bachmann a kick in the ass that will send her . . . to Mars’” or “`I want to put Michele Bachmann in a time machine and send her back to the middle ages where she belongs’”. In re Grand Jury Subpoena, supra. The judge found that these analogies were inapposite because “they exist outside the realm of physical possibility.” In re Grand Jury Subpoena, supra.)

Finally, the judge said he was

aware that this conclusion may seem to produce absurd results. Under this line of reasoning, the government could presumably subpoena any Web site any time any anonymous user made any post containing a mere scintilla of violence. The government could require Twitter to divulge the identity of a teenager who tweets, `My parents are so mean! I want to toss them in a ditch.’

Anonymity on the Internet would be sufficiently compromised to warrant this Court's concern. But we are nowhere near that slippery slope. Here, an individual has made a statement that threatens an established candidate for the presidential nomination of one of our two major political parties, and the government has a strong public interest in investigating that threat, however outlandish.

In re Grand Jury Subpoena, supra. He therefore denied Mr. X’s motion to quash. In re Grand Jury Subpoena, supra.