Court Upholds Conviction for Threatening Attack on the FBI

From Friday's U.S. v. Miah, decided by Judge Felipe Restrepo, joined by Chief Judge Michael Chagares and Judge Arianna Freeman:

In September 2020, FBI Special Agent Nick Edquist and an officer from the Joint Terrorism Task force went to Miah's apartment to interview him about his comments on several social media platforms. Miah's comments drew the FBI's attention because they suggested he believed in a "particular extremist ideology," consisting of a "vengeful, violent form of Islam." {Agent Edquist testified at trial that the tweets included incendiary language encouraging violence against Christian-majority countries, an "explicit call to attack Jews," and the glorification of the September 11, 2001 terrorist attacks. The FBI's physical surveillance revealed that Miah frequently went alone to the local shooting range.} Miah was not cooperative during the initial interview and in fact filed a complaint against the FBI. He agreed to another interview the following day but was again uncooperative, refusing to answer the agents' questions about his online conduct.

On October 8, 2020, Miah created a Twitter account named after Agent Edquist's wife that contained pictures of her and her personal information, including her approximate age, place of employment, education, and religion. The next day agents executed a warrant to search Miah's home and devices. {The search of the devices revealed that Miah had gone to gun stores to research different types of weapons, "specifically weapons that had suppressors on the gun and things like that." The devices contained photographs of assault rifles and Miah dressed in a manner that appeared to the agents as emulating ISIS fighters. They also contained multiple pictures of the Tsarnaev brothers, who committed the 2013 Boston Marathon terrorist attack.}

Miah admitted to creating the tweets but claimed they were a joke and that he would not post such content again. He instead immediately resumed creating tweets featuring Agent Edquist and his wife, as well as tweets providing personal details about Agent Edquist's supervisor.

In December 2020, Miah created a second Twitter account with the name "Federal Intelligence Service" and a profile photo of a mock FBI seal. It was on this account that Miah posted the statements that underlie the charges for which he was convicted. On December 27, 2020, Miah tweeted, "Nick, Dave, Mike, the whole bureau, the deed will be done at a time which is the most opportunistic for me, chosen by myself." He followed with, "Currently eating pasta and watching videos of the second plane hit the south tower."

The next day, Miah tweeted, "The zero hour is approaching." On December 29, 2020, Miah tweeted, "38° 53′ 42.7″ N, 77°1′ 30″ W," which are the coordinates for the FBI headquarters in Washington, D.C. The following day, he posted, "Rasheed, Dave, Nick, Mike …. how's your investigation going? Things are looking 'bright' in 2021. Did you find the Saudi passports?" Later he tweeted, "2001-2021 is 20 years. An entire generation, yet men like me still exist and pop up into existence. Next time you come in cowboy with the crew, the hardwood will collapse beneath your feet." Finally, on December 31, 2020, Miah tweeted, "Remember boys, the more eyes on me, the less eyes on others. Regardless, yellow tapes will flow."

Miah was convicted of making threats, and the court affirmed:

A person violates Section 875(c) by "transmit[ting] in interstate or foreign commerce any communication containing … any threat to injure the person of another." Miah argues the tweets that do not identify a natural person as their target—such as "the zero hour is approaching" or the coordinates of the FBI headquarters—cannot be lawfully charged as threats under Section 875(c). This argument overlooks that the context and totality of circumstances of the communications must be considered when assessing whether a threat has been alleged. The indictment provided both context and circumstances by describing Miah's retaliatory targeting of Agent Edquist's wife, his inclusion of the names of the investigating agents in his tweets, the contents of his devices revealing an "interest in weapons, his fascination with violence, and his strong animosity toward law enforcement," and his recurring surveillance of Agent Edquist's residence and the FBI Pittsburgh Field Office.

Thus, the District Court properly ruled Miah's tweet "the zero hour is approaching," which it found indicated "the occurrence of a significant event," could be deemed a threat by a reasonable jury given that it was posted the day after the tweet referencing the September 11, 2001 terrorist attack. Similarly, the Court properly concluded the coordinates of the FBI's headquarters, when viewed through the lens of Miah's conduct and preceding tweets, could be found to "constitute[ ] a threat to injure agents at that location." It was also correct to conclude that the tweet telling the "boys," who were agents named in a prior tweet, that "yellow tapes will flow," which appears to reference crime scene tape, could reasonably be interpreted as a threat to inflict harm. In sum, we agree that the charges alleging a violation of Section 875(c) were properly put to the jury.

We also conclude a reasonable jury could find Miah's tweets communicated "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals" and therefore constituted true threats under First Amendment jurisprudence. As with violations of Section 875(c), we look to Miah's earlier conduct to "contextualize the meaning" of his tweets. As discussed, the conduct outlined in the indictment established Miah's antipathy for specific agents, as well as his animosity towards law enforcement in general. It also demonstrated Miah's captivation with weapons and terroristic-style attacks. We therefore agree with the District Court that a reasonable jury could find Miah's contextualized tweets expressed a serious intent to harm the agents and hold that threats targeting FBI agents generally are sufficiently particularized to qualify as true threats….

The court also rejected other claims, including related to the closure of parts of voir dire and to the admission of evidence. The court also upheld the district court's increasing Miah's sentence in part because "the offense involved any conduct evidencing an intent to carry out such a threat":

The District Court found the following overt acts were directly and substantially connected to the threats of conviction:

The Defendant researching the agents as well as their families, where their family members for instance worked, even their pets, traveled to the vicinity of one of the agent's residences, traveled to the vicinity of the agents' place of employment, the Pittsburgh Field Office of the FBI at various times of the day and night, researching weapons, explosives and violence, and then on one instance going to a shooting range on the day he made an actual threat or post.

In making this finding, the Court recognized that Miah was convicted of threatening to injure the named agents as well as those located in the FBI's headquarters by executing terroristic attacks. Because the conduct was directly connected to the threatening communications, the Court did not err in applying this enhancement.

Jeffrey M. Smith of the Justice Department argued on behalf of the government.