UNITED STATES AMERICA v. JAMES THOMAS SANNY JR (2023)

ORDER DENYING MOTION TO DISMISS INDICTMENT

Before the court are Defendant's “Motion to Dismiss the Indictment” [ECF No. 49], filed November 21, 2022, by James Sanny Jr. (“Defendant”) and “Government's Response to Defendant's Motion to Dismiss the Indictment” [ECF No. 50], filed December 14, 2022, by the government. Defendant requests that the court dismiss the indictment as a matter of law.¹ After full and thorough consideration of the briefing, applicable law, and evidence, the motion to dismiss the indictment is DENIED.

I. BACKGROUND

Defendant was diagnosed with a schizoaffective disorder in 2008.² He has a sustained history of schizoaffective behavior for years prior to the events leading to his current arrest. The FBI interviewed Defendant's ex-girlfriend (“Victim 1”) and her husband (“Victim 2”) on November 25, 2019.³ The FBI then opened an investigation that continued until September 3, 2021, when the government submitted its probable cause statement and application for a warrant.⁴

Defendant is charged with one count of Interstate Threatening Communications pursuant to 18 U.S.C. § 875(c) and one count of cyberstalking pursuant to 18 U.S.C. § 2261A(2)(A), Defendant lived and travelled with his father. While living in El Paso, Defendant met and had a child with victim 1 in 1998.⁵ He did not want a relationship with the child. Defendant moved with his father and resided with him in Maryland. Victim 1 did not hear from Defendant again until December 2013 when he showed up at Victim 1's home wanting to see his daughter.⁶ After Victim 1 sent him away, Defendant continued to visit her home attempting to see his daughter.⁷ Eventually, Victim 1 sought and obtained a protective order. Victim 1 did not hear or see Defendant again until on or around June 21, 2019, when Victim 1 and Victim 2 started receiving emails from the Defendant.⁸

These emails contained ramblings and links to mental health articles, and, one email, contained a statement, “Bitch is going to DIE. I'm going to get through herself.”⁹ Defendant also attempted to contact his daughter through the internet and made inappropriate remarks. From January 20 to February 6, 2020, Victim 1, her daughter, and Victim 2 received approximately 36 voicemails from Defendant. Most of these voicemails contained nonsensical ramblings; however, one voicemail ended with Defendant stating, “I want to fuck my daughter, I want to fuck my daughter.” Again, most of Defendant's contacts with the victims are nowhere close to coherent in thought. Defendant's letters are filled with doodles and drawings, non-legible writing, page long ramblings of “pooh pooh poopy,” and then the odd coherent sentence that the government would take for their case.¹⁰ On February 11, 2020, Defendant was arrested in Maryland and committed to the Maryland Department of Health.¹¹ On June 4, 2021, following release from a Maryland State mental health facility, Defendant sent 125 texts to Victim 1 consisting of gibberish, racial slurs, and nonsensical words.

Over the course of the FBI's investigation, it obtained all these nonsensical communications. The FBI also obtained documentation that flagged Defendant's mental health, and police reports where the investigating officer stated that Defendant “is schizophrenic.” The FBI further obtained criminal case records stating Defendant was found incompetent.

Defendant is high school educated but abandoned his studies at Boston University after one year and was discovered homeless. Since then, he has lived in a trailer on his father's property in Waldorf, Maryland. Defendant is deemed disabled by the Commissioner of the Social Security Administration due to chronic schizoaffective disorder.¹²

Defendant was taken into custody by the FBI on May 20, 2022, and has been held without bond since then.¹³ Counsel was appointed on June 14, 2022, for Defendant and subsequently moved for a competency hearing on July 5, 2022.¹⁴ Forty-seven days passed between Defendant's arrest and the filing of a motion for a competency hearing. A competency hearing was held on August 9, 2022.¹⁵ Defendant was determined to be mentally incompetent, and a restoration order was issued.¹⁶ The competency hearing was the first time the court interacted with Defendant in person. The psychiatric evaluation introduced at the hearing noted, the Defendant is presently suffering from an acute exacerbation of schizoaffective disorder; displays neologisms, expresses racist remarks, makes comments against the examiner, does not have a rational understanding of the proceedings against him; and does not have the capacity to consult with his attorney.¹⁷

While waiting for transfer to FMC Butner, Defendant was confined at the West Texas Detention Facility. Staff at the West Texas Detention Facility noted Defendant manifested and suffered from his schizophrenia as follows: (1) severe edema and erythema in his lower extremities; (2) severe mental, emotional, and physical distress, (3) inability to provide for his basic activities of daily living such as basic hygiene; (4) experiencing hallucinations and is completely incoherent in his speech; (5) banging his head against the jail cell door for hours, staying totally naked, defecating on the floor and searching his cell toilet.¹⁸ Following a Sell v. United States (“Sell hearing”), the court granted the government's motion to involuntarily medicate Defendant to prevent further deterioration of both his physical and mental health while awaiting transfer to FMC Butner.¹⁹ Defendant was transferred to Butner on May 2, 2023, and is currently being held there receiving treatment.

II. LEGAL STANDARD

Federal Rule of Criminal Procedure 12(b)(1) provides, “a party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.”²⁰ The Fifth Circuit has stated that when deciding a pre-trial motion to dismiss an indictment “by-and-large [is] contingent upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact.”²¹ “If a question of law is involved, then consideration of the motion is generally proper.”²²

III. DISCUSSION

The main issue is the government's failure to disclose severe mental incompetence evidence to the judiciary in their probable cause statement or early interactions with the court. The first part of this discussion will establish that Defendant's indictment is valid according to precedent and should not be dismissed. Then, the court will discuss what it feels to be an important issue, the government abusing its discretion when it obtained an arrest warrant that does not comport with Fourth Amendment standards.

A. The Indictment is Proper

The Fifth Amendment provides, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”²³ The Supreme Court stated that the Fifth Amendment requires nothing more than an indictment returned by a legally constituted and unbiased grand jury with information drawn by the prosecutor that is valid on its face.²⁴ The defense does not argue the grand jury was illegally constituted or biased. Likewise, the defense does not argue the information drawn upon by the prosecutor was invalid. Additionally, the indictment lays out the elements of Defendant's alleged offenses. At this juncture, Defendant's conduct could be reasonably seen as meeting the elements of the charged offenses.

Indictments obtained in accordance with the Fifth Amendment should not be dismissed, absent demonstrable prejudice, even if there is a constitutional violation.²⁵ “The court would exceed the scope of its judicial authority to engage in further review of the evidence supporting the indictment.”²⁶ Defendant makes arguments that go beyond challenging the indictment or information upon which Rule 12 allows. Such as arguing that Defendant cannot meet the mens rea element of “knowingly and intentionally” given his mental disability,²⁷ and that prosecution cannot prove the Victims were in “reasonable fear” of death or serious bodily injury as required by 18 U.S.C. 2261A(1)(A).²⁸ These arguments involve contentions of fact and are not creatures of law alone. Therefore, they are not to be addressed with a Rule 12 pre-trial motion.

Defendant was found mentally incompetent following a psychiatric evaluation.²⁹ It remains to be seen if the government can rehabilitate him or if he will fall under the category of incompetent and not restorable. Defendant's history in previous criminal proceedings lends support to the latter probability. However, given the requirements of the Fifth Amendment as decreed by the Supreme Court, Defendant's indictment is valid and should not be dismissed due to a legal infirmity.

B. Fourth Amendment Requirements and Mental Competency

Having held that the government's grand jury indictment is valid, and thus, Defendant's motion to dismiss is denied. The court will expound on an important action—or lack thereof—which occurred early in the prosecution of this case. First, the government should take a long look in the mirror and reflect on what is written in the manual of the Department of Justice. “It is the policy of the Department of Justice, however, that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.”³⁰

The government had explicit evidence of Defendant's severe mental health history prior to seeking an arrest warrant and failed to disclose that information to the issuing U.S. Magistrate ³¹ This failure to disclose bears on the constitutionality of the government's actions and doing so may violate the Fourth Amendment. In short, if the government has evidence that raises sufficient doubt as to a suspect's competency, that information should be included in the probable cause statement submitted to a Magistrate Judge. Yet, the government did not disclose this information.

Probable cause is a requirement of the Fourth Amendment and the formula to determine if probable cause exists is well established at this point: “[p]robable cause exists where ‘the facts and circumstances within their (the officers) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.’ ”³² Probable cause is a fact based inquiry, and one must look at all facts collectively and in totality to determine probable cause; one should not look at each fact individually.³³ “The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating often opposing interests.”³⁴

But what are the “opposing interests” and how did probable cause become the threshold protection to rights under the Fourth Amendment? These opposing interests are States' rights to swiftly mete out justice and police its citizens, and the fear of leaving citizens to the mercy of an officer's whims and infringement of a citizen's substantive rights during criminal proceedings. Probable cause is the compromise of these competing interests, as stated by the Supreme Court almost sixty years ago, “[r]equiring more [than probable cause] would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers' whim or caprice.”³⁵ Probable cause is the threshold protection allowing police to operate and conduct searches and seizures that are not violative of the Fourth Amendment, while still offering protection to citizens from wanton police searches and seizures.

The history of probable cause is not very illuminating for modern interpretative questions, because it establishes probable cause as a more recent addition to our constitutional law. In the Framing-Era, probable cause was not enough to initiate a search or perform an arrest as a constable or police officer,³⁶ Probable cause was sufficient for an arrest only if a victim attested that a crime had occurred, or the officer saw a crime in progress.³⁷ Additionally, the Framing-Era did not have standing police forces like we do today. Victims were the primary investigative engines. A victim would take an oath that a crime had occurred and could obtain a warrant to search for evidence.³⁸ The victim merely had to assert that he had probable cause to suspect the person identified was the culprit or had probable cause to believe evidence of a crime could be located in the identified location.³⁹ Magistrates would generally turn down a citizens probable cause request for a warrant only if that citizen had a history of requesting frivolous warrants.

Probable cause, as it is understood today, was a standard uniquely applicable to customs officers.⁴⁰ English customs officers would get “general warrants” that allowed them to search warehouses and such for customs violations. Boston area merchants and smugglers retained lawyers to argue that general warrants should not be available to customs officers. These lawyers inspired John Adams when they argued, “these warrants placed the liberty of every man in the ‘hands of a petty officer.’ ”⁴¹ Thus, there was a distinction between victim-based crimes and mercantile crimes.

The modern probable cause standard spread across criminal law as society called for, and came to accept, modern police forces and regulation of private moral practices.⁴² Metropolitan police forces were created for the express purpose of investigating and controlling crime. Prohibition—especially—lead to the creation of the modem probable cause doctrine because these metropolitan police forces needed a way to obtain search warrants based on investigations and descriptions of liquor sales they observed. Importing and exporting alcohol did not often have victims who would go out and get warrants as was the practice in the past.⁴³

This history showcases that probable cause requirements were born out of practicality and necessity. Probable cause, as it is understood today, was not a firmly rooted practice before the Constitution.

Jurisprudence established over the decades that probable cause is not a toothless protection; however, it has limitations and is not a higher standard than what trial will ultimately be. In Gerstein v. Pugh, the Supreme Court declared “whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pre-trial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest.”⁴⁴ This is necessary because of the significant harms of pre-trial custody including: imperiling a suspect's job, interrupting his source of income, impairing his family relationships, harming his mental health, and other serious concerns.⁴⁵ Thus, the Fourth Amendment “requires a probable cause determination by a neutral magistrate as opposed to law enforcement․ [o]therwise the protection the fourth amendment is supposed to provide is meaningless.”⁴⁶ However, the Court in Pugh also stated that “the fourth amendment does not require a pre-trial custody hearing on probable cause that is similar to an evidentiary hearing.”⁴⁷ An evidentiary hearing for probable cause would be too burdensome and swings too far against a State's right to control and prosecute crime.

When law enforcement submits a probable cause statement to a magistrate, it generally must include minimum facts that establish the elements of the alleged offense. One such element is mens rea, where part of the determination is if there is “sufficient evidence to support․ that officers had probable cause to believe that the Defendant had the mens rea.”⁴⁸ While officers generally need to provide some evidence of an accused's mens rea, they are given substantial leeway because of the nature of most police work. The Second Circuit has stated, “the law has long recognized that probable cause does not demand evidence of every element of a crime—not even to support a person's arrest.”⁴⁹ This is because of “practical restraints in ascertaining knowledge and intent” when handling a purported crime.⁵⁰

These practical reasons are best illustrated through an example: an officer is dispatched to respond to a domestic abuse call. This officer does not have a history with the victim or aggressor and does not know exactly what to expect when she arrives at the scene. The officer shows up at the location of the call and starts to follow her protocol in assessing the situation. While assessing the situation, the officer sees clear marks of a physical altercation on the victim. The officer then arrests the aggressor for domestic abuse. It later comes out that the aggressor has a severe mental health impairment; however, the officer had no way to know this before arriving and likely had little opportunity to deduce this after arriving at the scene. The officer acted based on what she quickly ascertained at the scene of the call.

This is the nature of most modern police work. Officers will rarely engage in months-long investigations into a criminal defendant. Therefore, officers are given latitude in the context of mens rea for probable cause because they will often not have clear mental state evidence at the time of arrest. Mental state evidence is typically established as the case goes through the criminal procedure process.

In District of Columbia v. Wesby, officers arrived at a vacant house in which a party was in progress, the party goers' actions such as: hiding around the house, being evasive in their answers, and the purported renter's difficulty in answering the officers questions, taken together, showed a guilty mind and mens rea.⁵¹ In United States v. Nelson, officers had sufficient evidence of mens rea (recklessly creating a risk) when they arrested a protestor for not following an officer's order for dispersal because of his combative tone and abusive language, coupled with the location of the incident.⁵² In Pollard v. D.C., a case involving a criminal defendant with a severe intellectual disability, the court determined the officers had sufficient mens rea evidence for probable cause because at the time of the offense the defendant answered the officers' questions, knew and took them to locations where drugs were sold, and conducted the transaction to purchase drugs for the officers.⁵³ Even though the defendant had, and still has, a severe intellectual disability, the officers had little chance to discern this during their interactions with him.⁵⁴ Precedent establishes that the key for probable cause, and mens rea, is what the officers knew at the time based on the facts.

The practical reasons permitting leeway in mens rea evidence for probable cause are not present here. The government engaged in a lengthy investigation before arresting the Defendant. Early in the investigation, the government learned the Defendant had severe mental health issues. In fact, there were multiple indicators of mental impairment and incompetency. In police reports from previous complaints involving Defendant, the investigating officer listed explicitly, “[Defendant] has schizophrenia.” The government knew the Defendant was found incompetent in these previous cases. These are the most egregious facts, but the government also had a plethora of circumstantial facts and evidence related to this case that raised serious doubts about Defendant's competency. Defendant's calls and letters to the victims contained “mostly gibberish” and were written in barely legible hieroglyphic fashion. The government parsed out bits and pieces of clear statements in a sea of chaos to put together Defendant's charges. In situations like the instant case, there is no reasonable basis for leeway with probable cause statements regarding mens rea.

“If facts known to the officer include information about an individual's disability—and particularly if the information known to the officer about an individual's disability would exculpate the defendant—those facts inform the probable cause calculus.”⁵⁵ The D.C. Circuit has also recognized that an intellectual disability can prevent a defendant from forming the mens rea required for a specific intent crime, so long as the officer has reason to know of the disability.⁵⁶ Out of the three counts against the Defendant in the government's indictment, two of them require “specific intent” and one requires “knowingly and willfully.”⁵⁷ Yet, nowhere in the probable cause statement filed with the Magistrate Judge is there any mention of facts supporting the mens rea elements of these charges.⁵⁸ Poignantly, there is zero mention of Defendant's severe mental illness. Being generous, at most the probable cause statement simply alludes to Defendant's lack of competency, “[m]ost of these voicemails contained nonsensical ramblings” and “text messages․ consisting of gibberish.” This court agrees with the D.C. courts and Tenth Circuit, that facts of an individual's disability—particularly a severe one—inform the probable cause calculus.⁵⁹

Probable cause exists as a means to balance competing interests. For probable cause to act as a protection at all, it must be reviewable by the judiciary. To be properly reviewable, probable cause must lay out sufficient facts making out the offense. Unless, due to the typical quick nature of police work, courts should give leeway to a probable cause statement mens rea requirements. The government's proffer of probable cause fell below what is acceptable, particularly given the length and depth of investigation preceding the arrest.

CONCLUSION

The court is denying the Defendant's motion to dismiss the indictment because the indictment is legally proper. Additionally, the Defendant does not put forth the proper vehicle, nor may there be one available, to address the constitutional concerns outlined by the court. However, the court strongly condemns the government's actions in this case when requesting a warrant and in grand jury proceedings. The government would do well to review the DOJ's policies and be mindful of what it means to seek justice.⁶⁰

Accordingly, it is HEREBY ORDERED that Defendant's “Motion to Dismiss the Indictment,” ECF No. 49, is DENIED.

SIGNED AND ENTERED this 14 day of July 2023.

FOOTNOTES

1.   “Motion to Dismiss the Indictment” 1, ECF No. 49, filed Nov. 21, 2022.

2.   Id

3.   “Criminal Complaint” 2, ECF No. 3, filed Sep. 3, 2021.

4.   Id

5.   See id

6.   Id

7.   Id.

8.   Id.

9.   Id

10.   Id. at 3.

11.   Id.

12.   Id.

13.   “Arrest Warrant” 1, ECF No. 10, entered May 24, 2022.

14.   “Defendant's Sealed Ex Parte Motion for Determination of Mental Competency Pursuant to 18 U.S.C. § 4241” 1, ECF No. 34, filed July 5, 2022.

15.   “Order Committing Defendant for Psychiatric Care and Treatment Pursuant to 18 U.S.C. § 4241” 1, ECF No. 39, entered August 10, 2022.

16.   Id. at 2.

17.   “Psychiatric Evaluation for the Purpose of Competency Determination” 3, ECF no. 36, filed July 27, 2022.

18.   “Order Granting Involuntary Medication to Restore Competency” 1–2, ECF No. 67, filed Jan. 20, 2023 ;(To avoid further deterioration of Defendant's condition, forced medication began following a Sell hearing, ECF No. 67, filed Jan. 20, 2023.).

19.   “Order Granting Involuntary Medication to Restore Competency” 1–3, ECF No. 67, filed Jan. 20, 2023.

20.   FED. R. CRIM. P. 12(b)(1).

21.   U.S. v. Korn, 551 F.2d 1089, 1090 (5th Cir. 1977).

22.   Id.

23.   U.S. CONST, amend. V.

24.   See Costello v. U.S., 350 U.S. 359, 361 (1956) (“Petitioner here urges: (1) that an indictment based solely on hearsay evidence violates that part of the Fifth Amendment providing that ‘No person shall be held to answer for capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury’ and (2) that if the Fifth Amendment does not invalidate an indictment based solely on hearsay we should now lay down such a rule.”).

25.   See U.S. v. Morrison, 449 U.S. 361, 365 (1981) (Stating that an indictment should not be dismissed even though there may be a fifth or fourth amendment violation. “This has been the result reached where a Fifth Amendment violation has occurred, and we have not suggested that searches and seizures contrary to the Fourth Amendment warrant dismissal of the indictment. The remedy in the criminal proceeding is limited to denying the prosecution the fruits of its transgression.” Id. at 366.).

26.   United States v. Alcantar, 2011 WL 4971616 *1 (D. Ariz. Sept. 22, 2011), report and recommendation adopted, 2011 WL 4971604 (D. Ariz. Oct. 19, 2011).

27.   “Motion to Dismiss the Indictment” 5, ECF No. 49, filed Nov. 21, 2022.

28.   Id at 7.

29.   “Order Committing Defendant for Psychiatric Care and Treatment Pursuant to 18 U.S.C. § 4241” 1–2, ECF No. 39, entered August 10, 2022.

30.   See U.S. DEPT'T of JUST., JUSTICE MANUAL § 9-11.233 (2018).

31.   (This court reviewed, in camera, the totality of the government's files produced pursuant to court order, ECF No. 68, filed March 2, 2023.).

32.   Brinegar v. US., 338 U.S, 160, 175–76(1949).

33.   See District of Columbia v. Wesby, 138 S.Ct. 577, 588 (2018).

34.   Beck v. Ohio, 379 U.S. 89, 91 (1964).

35.   Id.

36.   Wesley MacNeil Oliver, The Modem History of Probable Cause, 78 TENN. L. REV. 377, 378 (2011).

37.   Id.

38.   Id

39.   Id

40.   Id. at 394.

41.   Id at 395.

42.   Id. at 379.

43.   Id at 380.

44.   See Gerstein v. Pugh, 420 U.S. 103, 125 (1975).

45.   Id at 112–14.

46.   Id at 117,

47.   Id at 125.

48.   See United States v. Nelson, 500 F. Appx 90, 93–94 (2nd Cir. 2012); see also Wesby, 765 F.3d at 20 (Probable cause requires “at least some evidence” as to each element of the particular offense, “including the requisite mental state[.]”).

49.   Ganek v. Leibowitz, 874 F.3d 73, 86 (2nd Cir. 2017).

50.   Id.

51.   See Wesby, 138 S.Ct. at 587.

52.   Nelson, 500 F, Appx at 94.

53.   See Pollard v. D.C., 191 F. Supp. 3d 58, 73–74 (D.D.C. 2016).

54.   See Pollard, 191 F. Supp. 3d at 75.

55.   J.H. ex rel. J.P. v. Bernalillo Cnty., 2014 WL 3421037 *101 (D.N.M. July 8, 2014), aff'd, 806 F.3d 1255 (10th Cir. 2015).

56.   See United States v. Childress, 58 F.3d 693, 729 (D.C. Cir. 1995),

57.   “Indictment” 1–2, ECF No. 11, filed June 1, 2022.

58.   See “Probable Cause Statement” 2–3, ECF No. 3, filed Sep. 3, 2021.

59.   See Pollard, 191 F. Supp. at 73; Sperry v, Maes, 592 Fed.Appx. 688, 696 (10th Cir. 2014) (Stating that an officer did not have knowledge of the defendant's cognitive disability and ruling that an officer have no duty to uncover it if they do not know. However, implying that if the officers had known then the analysis may or may not have been different),

60.   See U.S. DEPT'T OF JUST., JUSTICE MANUAL§ 9-11.233 (2018).

FRANK MONTALVO SENIOR UNITED STATES DISTRICT JUDGE