United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
REBECCA R. PALLMEYER United States District Judge
August 12, 2014, in Bali, Indonesia, Heather Mack and her
romantic partner, Tommy Schaefer, murdered Mack's mother,
Sheila Von Weise. Schaefer and Mack were convicted of the
murder in Indonesian court, and are not before this court.
Defendant in this case is Robert Bibbs. The government
alleges that Bibbs sent electronic messages to Mack that
provided advice about how to kill Von Wiese and encouraged
Mack to follow through with the murder. Defendant has been
charged with conspiracy to kill a person in a foreign country
(Count One, 18 U.S.C. § 956), conspiracy to commit
foreign murder of a United States national (Count Two, 18
U.S.C. §§ 1117, 1119(b)), and solicitation of a
crime of violence (Count Three, 18 U.S.C. §§ 373,
moved to dismiss the indictment, arguing that (1) the
conspiracy counts were inadequately pled because they did not
allege an "agreement" between Bibbs and his alleged
co-conspirators and (2) the solicitation count should be
dismissed because it involves speech protected by the First
Amendment, and because the indictment contains no allegation
that Bibbs originated the plan to kill Von Weise or that he
convinced Schaefer and Mack to do so. On September 8, 2016,
the court denied the motion to dismiss. See United States
v. Bibbs, No. 15 CR 578, 2016 WL 4701441, at *1 (N.D.
Ill. Sept. 8, 2016). As the court noted in its order denying
Defendant's motion, the government's pleading burden
in a criminal case is relatively minimal. Id. at *3.
An indictment is legally sufficient if it (1) states all the
elements of the crime charged, (2) adequately informs the
defendant of the nature of the charges against him, and (3)
allows the defendant to assert the judgment as a bar to
future prosecutions of the same offense." United
States v. Vaughn, 722 F.3d 918, 925 (7th Cir. 2013).
Regarding Counts One and Two, the court concluded that the
government adequately alleged the existence of a conspiracy
even though the indictment did not contain the word
"agreement." Bibbs, 2016 WL 4701441, at
*2. The court found Defendant's "largely
semantic" challenge unpersuasive. Id. As for
the solicitation count, the court rejected Defendant's
First Amendment challenge as being premature. Id. at
*4. Whether Bibbs' speech is protected depends upon
whether he intended to induce harm. Id. If the
government proves beyond a reasonable doubt at trial that
Bibbs possessed such an intent, then his speech would fall
outside the First Amendment's protection. Id.
But the court declined to dismiss the solicitation count on
First Amendment grounds at this early stage. Id.
court did express some uncertainty about whether the
indictment's allegations were sufficient to support a
solicitation charge. In particular, the court noted its
concern about whether 18 U.S.C. § 373-the federal
statute prohibiting solicitation to commit a violent crime-
covers situations in which the purported solicitees'
decision to commit a violent crime predates the purported
solicitor's involvement. Id. at *3-*4. To
prosecute a defendant for solicitation, the statute requires
the government to prove that the defendant "solicit[ed],
command[ed], induc[ed], or otherwise endeavor[ed] to
persuade" another person to commit a violent crime. 18
U.S.C. § 373(a). According to the indictment's
allegations, Bibbs was not the originator of the murder plot,
and at the moment that Defendant allegedly sent his message
of encouragement, Mack was already in Bali for the purpose of
killing Von Wiese. (See Indictment ¶ 4.) Yet
the court noted that the broad prohibition in § 373
against "otherwise endeavor[ing] to persuade" could
be interpreted to cover Defendant's alleged conduct, and
no case law appears to directly defeat such an
interpretation. Bibbs, 2016 WL 4701441, at *4. Thus,
because the government "conceivably could produce
evidence at trial showing that [Bibbs was guilty of
solicitation], " United States v. Castor, 558
F.2d 379 (7th Cir. 1977), the court ultimately concluded that
the question of whether the government could establish
Defendant's guilt would be better addressed after the
presentation of evidence at trial. Bibbs, 2016 WL
4701441, at *4.
of its uncertainty on this point, the court did invite
additional briefing on the issue. The court also noted that
if Defendant is genuinely unsure about the nature of the
charges against him, he could move for a bill of particulars.
Id. at *4. Defendant has now filed a supplemental
memorandum  in support of the dismissal of Count Three of
the indictment, as well as a motion for a bill of particulars
. Having read the additional briefing, the court stands
by its decision not to dismiss Count Three at this stage of
the case. Defendant points to the definition of
"solicitation" found in Black's Law Dictionary
and argues that the definition- "asking, enticing,
urgent request"-does not fit Defendant's alleged
actions in this case. But as the government notes, § 373
refers not only to soliciting, but also to
"command[ing], induc[ing], or otherwise endeavor[ing] to
persuade" the other person to engage in a violent crime.
18 U.S.C. § 373(a). As explained earlier,
Defendant's alleged behavior is arguably covered by the
phrase "otherwise endeavors to persuade."
Bibbs, 2016 WL 4701441, at *4.
also follows the court in comparing this case to entrapment
cases. Recognizing that the Seventh Circuit has not yet
addressed the issue of whether a defendant can be guilty of
solicitation without originating the criminal plot, the court
reasoned in its prior ruling that criminal solicitation may
be akin to "government solicitation, " which the
Seventh Circuit has addressed in the entrapment context.
Id. The court looked to United States v.
Mayfair, 771 F.3d 417 (7th Cir. 2014), in which the
Court of Appeals explained that an entrapment defense
requires a showing that the defendant was not predisposed to
commit the crime prior to the government's involvement
and that the government's actions amounted to inducement,
which goes beyond "mere government solicitation; the
fact that government agents initiated contact with the
defendant, suggested the crime, or furnished the ordinary
opportunity to commit it is insufficient to show
inducement." Id. at 434. The language in
Mayfield suggests that solicitation of a crime may
require "initiation" or "suggestion" or
"furnishing the opportunity to commit" the crime.
Bibbs, 2016 WL 4701441, at *4. And Mayfield
suggests that even more is required to show
"inducement." Mayfield, 771 F.3d at 434.
As Defendant sees things, the purported solicitees in this
case were not only predisposed to committing a crime, they
were "actively engaged in committing . . . the exact
offense for which Bibbs is now charged with
instigating." (Def.'s Supp. Mem.  at 4.) Thus,
Defendant argues, his actions could not constitute
solicitation. In its prior ruling, however, the court
acknowledged that language in Mayfield provides
support for Defendant's position; nevertheless, because
evidence of Defendant's involvement, and of Schaefer and
Mack's "active engagement" at the time of his
involvement has not yet been presented, the issue was not
squarely before the court. Nothing in Defendant's
supplemental brief persuades the court that it should reach a
different conclusion at this time. The indictment adequately
states the elements of solicitation, informs Defendant of the
nature of the charges against him, and provides allegations
of specific conduct (for example, the allegations concerning
the messages he sent to Schaefer) that supports the charge.
The indictment thus appears to be legally sufficient.
Vaughn, 722 F.3d at 925. Whether the government can
present enough evidence to establish Defendant's guilt
is, of course, another question. But that question cannot be
addressed until the government has presented its evidence at
has also not demonstrated a need for a bill of particulars.
"A bill of particulars is 'unnecessary where the
indictment sets forth the elements of the charged offenses
and provides sufficient notice of the charges to enable the
defendant to prepare his defense.'" Id. at
927 (quoting United States v. Hernandez, 330 F.3d
964, 975 (7th Cir. 2003)). The ndictment does so here.
Defendant also has access to a detailed criminal complaint
and extensive discovery materials. See Id. (bill of
particulars also unnecessary "if the information the
defendant seeks is readily available through alternate means
such as discovery"). In its prior ruling, the court
suggested that Defendant might seek a bill of particulars if
he was "genuinely in the dark about the nature of the
charges" against him. Bibbs, 2016 WL 4701441,
at *4. But Defendant's motion for a bill of particulars
does not suggest that he is unaware of the charge filed
against him; he simply disagrees that the indictment's
allegations are sufficient to support that charge. Because a
bill of particulars is unnecessary in this case, the court
denies Defendant's motion.
its ruling in September, the court has also considered the
possibility that the "otherwise endeavors to
persuade" clause of § 373(a), upon which the
government relies in this case, might be void for vagueness,
particularly in light of Johnson v. United States,
135 S.Ct. 2551 (2015). In Johnson, the U.S. Supreme
Court held that the so-called "residual clause" of
the definition of "violent felony" in the Armed
Career Criminal Act ("ACCA") of 1984, 18 U.S.C.
§ 924(e)(2)(B), is unconstitutionally vague.
Johnson, 135 S.Ct. at 2563. The ACCA imposes more
severe punishments on defendants convicted of being felons in
possession of a firearm if those defendants have three or
more previous convictions for a "violent felony."
18 U.S.C. § 924(e)(1). The Act's definition of
"violent felony" includes those crimes involving
"conduct that presents a serious potential risk of
physical injury to another." Id. §
924(e)(2)(B)(ii). The Court in Johnson explained
that this "residual clause" in the definition of
"violent felony" left considerable uncertainty
about how to estimate the risk posed by a given crime and
about how much risk it takes for a crime to qualify as a
violent felony. 135 S.Ct. at 2557-58. Although the Court
found that the abstract inquiry required by the ACCA's
residual clause rendered that provision unconstitutionally
vague, it noted that "[a]s a general matter, we do not
doubt the constitutionality of laws that call for the
application of a qualitative standard such as
'substantial risk' to real-world conduct."
Id. at 2561.
case before this court involves just such an application of a
qualitative standard to real-world conduct. The jury will be
asked to decide whether Defendant's messages constituted
a real-world "endeavor to persuade" Schaefer and
Mack to commit the murder. That inquiry is not nearly as
abstract as the one required by the residual clause in
Johnson. In addition, as the government points out,
§ 373 contains a scienter requirement. Under the
statute, the government must prove that Bibbs acted
"with intent that another person engage in conduct
constituting [a crime of violence] . . . and under
circumstances corroborative of that intent, solicit[ed],
command[ed], induce[d], or otherwise endeavor[ed] to
persuade" that person to engage in such conduct. 18
U.S.C. § 373(a). When a criminal statute contains such a
scienter provision, the defendant "bears an especially
heavy burden in raising his vagueness challenge" because
such provisions diminish the likelihood of unfair enforcement
and make it likely that the defendant had notice that he was
engaging in proscribed conduct. United States v.
Collins, 272 F.3d 984, 989 (7th Cir. 2001). Defendant
would be unable to meet that heavy burden to show
unconstitutional vagueness in this case.
as explained in open court, the court has considered the
possibility of certifying this decision for interlocutory
appellate review. Ultimately, however, the court declines to
do so. As noted in this ruling and in the prior opinion, the
question of whether the government's allegations are
sufficient to support a charge of solicitation is not
squarely before the court at this stage. It is thus possible
that the Court of Appeals would reach the same decision as
this court-that the minimal standard for a legally sufficient
indictment has been met-without addressing the question of
whether a solicitation charge is proper where the purported
solicitees were already predisposed to commit the violent
crime at issue. Rather than wait for an appellate ruling that
may not provide additional clarity, the court would prefer to
see this case proceed swiftly to trial. A jury might conclude
that the government lacks sufficient evidence to convict
Defendant of solicitation, in which case this issue would
become moot. If, on the other hand, a jury returns a guilty
verdict on the solicitation count, the court is confident
that Defendant will have a full opportunity to challenge that
outcome on appeal and to raise the same arguments it has
reasons stated above, the court again denies Defendant's
motion to dismiss the indictment  and also denies
Defendant's motion for a bill of particulars .
January 30, 2017 trial date stands.
 Puzzlingly, Defendant also provides
the definition of "incite, " even though that word
does not appear in ...