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United States v. Khan

United States District Court, N.D. Illinois, Eastern Division

May 31, 2017



          John Robert Blakey United States District Judge.

         On July 23, 2015, pro se[1] Defendant Mohammad Waqas Khan (“Defendant”) was indicted for communicating a threat in violation of 18 U.S.C. § 875(c). Indictment [16]. Pending before the Court are Defendant's timely[2] pretrial motions, including: (1) Motion to Suppress Evidence [89]; (2) Motion to Dismiss the Indictment [89]; (3) Motion to Void 18 U.S.C. § 875(c) for Vagueness [89]; (4) Motion to Unseal Pertinent Documents, Subpoena Medical Records of Dr. Carl Wahlstrom, and Order Dr. Wahlstrom to Amend His Diagnosis [85]; (5) Motion to Rebuke and Sanction the Government and Defendant's Former Public Defender for Unauthorized Disclosure of Privileged Physician-Client Medical Information [85]; (6) Motion to Show Cause on Bill of Particulars [97]; (7) Motion to Compel Discovery [85]; (8) Motion to Show Cause on Subject Matter Jurisdiction [97]; (9) Motion to Dismiss for Lack of Territorial Jurisdiction [101]; and (10) Motion to Extend Trial Date [85].

         The Court held an evidentiary hearing on April 12 and 13, 2017. At the evidentiary hearing, Defendant raised an additional oral motion regarding supposed destruction of exculpatory evidence. This Memorandum Opinion outlines the Court's rulings on all pending timely motions. Having considered the evidence presented, the parties' written submissions, and oral arguments, the Court makes the following findings of fact and conclusions of law:

         I. Findings of Fact A. The Original Tip to Law Enforcement

         1. On May 13, 2015, the Illinois State Police Firearms Owners Identification (“FOID”) Department received an email regarding Defendant's Facebook activities.[3] Tr. [144] 14:14-19.

         2. On May 13, 2015, after receiving the email, Illinois State Police notified the Federal Bureau of Investigations (“FBI”) Headquarters in Washington, D.C. Id. at 21:19-20.

         3. On May 13, 2015, after receiving the notification from Illinois State Police, FBI Headquarters notified the FBI field office in Springfield, Illinois for further investigation. Id. at 21:20-23; 25:13-15.

         4. On May 13, 2015, after receiving the lead from FBI Headquarters, the FBI field office in Springfield notified the FBI field office in Chicago, Illinois. Id. at 25:14-15, 118:5-14.

         5. On May 13, 2015, upon notification from the FBI field office in Springfield, the FBI field office in Chicago assigned Special Agent Timothy Walther to investigate Defendant's Facebook activities. Id. at 52:5-7.

         6. Timothy Walther has been employed as a Special Agent with the FBI since March 2008. Tr. [144] 11:7-10; Gov. Ex. “Warrant.”

         B. Facebook

         7. Facebook is an online social media platform that can be accessed by Facebook users to post comments and photographs. Def. Ex. 35 at 3.

         8. Facebook maintains servers outside the State of Illinois. Id. When Facebook users post comments on their Facebook profile, their messages travel across state lines to Facebook servers. Id. at 4.

         9. Through their personal privacy and application settings, Facebook users control the extent to which content and information posted on their Facebook page is shared with other Facebook users. Def. Ex. 24 at 1.

         10. By adjusting privacy and application settings, Facebook users can make content and information available only to themselves, to particular Facebook users, or to anyone with access to the Internet, including people who are not Facebook users. Gov. Ex. “Warrant.”

         11. When Facebook users publish content or information without privacy restrictions (also known as the “Public” setting), they allow everyone, including non-Facebook users, to access and use that information. Def. Ex. 24 at 1.

         C. Defendant's Facebook Page

         12. Defendant initially created his Facebook account in 2011. Gov. Ex. “Warrant.” 13. On May 13, 2015, Special Agent Walther viewed Defendant's Facebook page. Tr. [144] at 53:5-8.

         14. At the time, Defendant did not have any privacy restrictions on his Facebook account, and his Facebook page was publicly viewable. Id. at 53:9-14.

         15. When Special Agent Walther reviewed Defendant's Facebook page, he observed the following posts by Defendant:

a. At 9:22 p.m. on May 7, 2015, Defendant posted: “If I see a high value target Ima exploit it. I'm not killin sum bum on the street. I want a high net individual to shoot. I want this to be a real human tragedy. Much mourned. I have a month. Ima hunt aggressively tonite. Keep an eye out for ideal victims. If I don't catch nobody tonite then another nite.” Gov. Ex. “Facebook Pages.”
b. At 12:26 a.m. on May 8, 2015, Defendant posted: “Good dry run tonight. Saw a couple of excellent targets. The key is right approach and timing. There were many potential witnesses because it was a college student night. Inshallah[4] the deed will be done well before the deadline I have set. Jab manay bola hai to karun ga.[5] When I have said something, it means I will do it. The rest is opportune timing.” Id.

         16. Special Agent Walther also viewed photographs posted on Defendant's Facebook page. Id. at 58:6-9. Some of these photographs featured firearms. Id. at 61:11-13.

         17. After Special Agent Walther reviewed Defendant's Facebook page, the FBI contacted Facebook, who provided an emergency disclosure of subscriber information. Def. Ex. 35 at 4. This information identified Defendant as a subscriber, as well as provided the static internet protocol (“IP”) address that had been used to access Defendant's Facebook account. Id.

         18. Special Agent Walther determined that the IP addressed used to access Defendant's Facebook account was owned and maintained by Comcast. Id. The FBI contacted Comcast, who provided the FBI with subscriber information for the IP address. Id. at 4-5. The subscriber information named Mohammad Iqbal Khan, whom the FBI determined to be Defendant's father. Id. at 5. The subscriber information also listed a residential address in Glen Ellyn, Illinois. Id.

         D. Other Information Obtained by the FBI

         19. From the Illinois Secretary of State's Office, the FBI ascertained Defendant's address to be 2N525 Pleasant Avenue, Glen Ellyn, Illinois. Gov. Ex. “Warrant.”

         20. From the Illinois FOID Department, the FBI determined that in 2014, Defendant became the registered owner of a Glock Model 19 9mm handgun, a Smith and Wesson .40 caliber semi-automatic handgun, and a Winchester 12-gage semiautomatic shotgun. Def. Ex. 35 at 11. Each of these firearms was depicted in the photographs posted on Defendant's Facebook page. Id. at 12.

         21. The FBI also conducted a search of U.S. Custom and Border Protection travel records. Tr. [144] 56:19-20. From these records, the FBI learned that on April 24, 2015, Defendant purchased an airline ticket to travel from Chicago to Karachi, Pakistan on June 8, 2015. Id. at 56:20-22; Gov. Ex. “Warrant.”

         E. Interviews Conducted by the FBI

         22. Between May 13, 2015 and May 14, 2015, the FBI conducted multiple witness interviews for Defendant's investigation. Tr. [144] at 58:16-59:2.

a. In one interview, FBI agents interviewed an individual who identified Defendant as a family friend. Id. at 59:19-20. The individual confirmed the location of Defendant's residence and told the FBI that Defendant possessed three weapons. Id. at 60:14-61:9.
b. The second interview subject told the FBI that Defendant had a history of inflammatory comments on Facebook and confirmed that Defendant was the owner of three firearms. Id. at 63:14-65:1.
c. Both individuals were also shown the photographs from Defendant's Facebook page. From these photographs, both individuals identified Defendant's bedroom, and confirmed that the firearms depicted in the photographs were identical to the firearms previously seen in the possession of Defendant. Id. at 61:11-62:3, 64:5-17. Additionally, both interview subjects informed the FBI that Defendant resided with his father, mother, and fourteen year-old brother. Gov. Ex. “Warrant.”

         F. Surveillance of Defendant

         23. On the afternoon of May 13, 2015, the FBI established personal surveillance of Defendant's residence. Tr. [144] 64:24-65:1.

         24. During their surveillance on May 13, 2015, FBI agents identified Defendant leaving the residence in a silver Toyota Corolla heading eastbound into the City of Chicago. Id. at 65:16-20. FBI agents maintained surveillance of Defendant in his vehicle. See id.

         25. When Defendant reached downtown Chicago, he began picking up and dropping off passengers. Id. at 66:3-5. FBI agents interviewed the first individual dropped off, who stated that she had just exited an Uber ride.[6] Id. at 66:6-9. The individual did not inform FBI agents of any suspicious or illegal activity by Defendant. Id. at 81:15-17.

         26. FBI agents maintained surveillance of Defendant as he conducted approximately five to ten more Uber rides. Id. at 66:9-13.

         27. At approximately midnight, FBI agents lost surveillance contact with Defendant's vehicle. Id. at 66:14-67:2. The agents returned to Defendant's residence, and arrived at approximately 1:00 a.m. on the morning of May 14, 2015. Id. at 67:3-6.

         28. Upon arrival at Defendant's residence, FBI agents identified Defendant's silver Toyota Corolla parked in the driveway. Id. at 67:7-10.

         29. Shortly thereafter, FBI agents were made aware of a new Facebook post on Defendant's Facebook page:

a. At 1:11 a.m. on May 14, 2015, Defendant posted: “The gun is cocked and ready to go. You keep sending those witnesses around and they're gona see some shit go down that they might now have signed up for. Now I'm gona get my revenge, and that involves putting bullets in someone's body, so get out of the way or I'll literally shoot at them as well and we'll end up with a much bigger scenario on our hands. I'm not leaving America without getting my revenge even if it costs me my life. And that's that. You're not going to intimidate me by threatening to become a witness.” Id. at 67:18-23; Gov. Ex. “Facebook Pages.”

         30. Following Defendant's post, the FBI established twenty-four hour surveillance of Defendant. Tr. [144] 67:11-15.

         G. The Traffic Stop and Detention of Defendant

         31. Between approximately 3:00 p.m. and 5:00 p.m. on May 14, 2015, FBI Special Agent Ranjit Takher briefed deputies of the DuPage County Sheriff's Office regarding the FBI investigation of Defendant. Tr. [144] 105:15-23, 161:8-10. One of the deputies present at the briefing was Detective Patrick O'Neil. Id. at 161:5-7.

         32. During the briefing, Special Agent Takher informed DuPage County deputies that Defendant possessed firearms and was making threatening remarks on his Facebook page. Id. at 106:6-20, 162:11-15; Tr. [145] 209:21-210:15. Photographs of Defendant and his firearms were also provided. Id. at 107:7-10, 161:11-23; Tr. [145] 210:16-211:9.

         33. Special Agent Takher requested that the DuPage County Sheriff's Office conduct a traffic stop of Defendant and detain him for further questioning. Id. at 96:15-23, 165:8-10.

         34. At the time Special Agent Takher requested the DuPage County Sheriff's Office to conduct a traffic stop, law enforcement did not possess an arrest warrant for Defendant or a search warrant for his vehicle. Id. at 96:24-25; Gov.'s Resp. [111] Ex. 1 at 15:2-4.

         35. Following Special Agent Takher's briefing, at approximately 5:15 p.m. on May 14, 2015, Detective O'Neil waited in his squad car approximately two blocks south of Defendant's residence. Tr. [145] 211:24-212:7; Gov.'s Resp. [111] Ex. 1 at 9:22-10:8.

         36. At approximately 5:45 p.m., Detective O'Neil received notification from the FBI that Defendant had left his residence in a vehicle. Tr. [145] 212:8-14; Def. Ex. 2.

         37. At approximately 5:51 p.m., Detective O'Neil observed Defendant's vehicle traveling eastbound on Armitage Avenue. Tr. [145] 212:15-19; Gov.'s Resp. [111] Ex. 1 at 13:4-9. Detective O'Neil observed Defendant driving the vehicle. Tr. [145] 212:20-23.

         38. Detective O'Neil stopped Defendant's vehicle at the intersection of Armitage Avenue and Pleasant Avenue. Tr. [144] 172:2-7; Tr. [145] 212:24-213:2.

         39. Prior to stopping Defendant's vehicle, Detective O'Neil did not observe Defendant engage in any traffic violations. Gov.'s Resp. [111] Ex. 1 at 15:15-18.

         40. After curbing Defendant's vehicle, Detective O'Neil exited his police vehicle and approached Defendant's vehicle on foot. Tr. [145] 214:1-4.

         41. Detective O'Neil asked Defendant to step out of the vehicle so that Detective O'Neil could speak with him. Tr. [144] 176:7-10; Tr. [145] 214:16-19.

         42. At the time Detective O'Neil asked Defendant to step out of the vehicle, Defendant was not under formal arrest.

         43. After Defendant exited the vehicle, Detective O'Neil requested that Defendant walk to the back of Defendant's vehicle. Tr. [144] 178:12-15; Tr. [145] 215:8-9.

         44. At approximately the time Defendant exited his vehicle, another DuPage County detective arrived at the scene. Gov.'s Resp. [111] Ex. 1 at 28:17-20.[7]

         45. At the back of Defendant's vehicle, Detective O'Neil informed Defendant that he was being detained pursuant to an FBI investigation. Tr. [144] 182:1-9; Tr. [145] 214:20-22, 216:1-4.

         46. Detective O'Neil then asked Defendant if he had any firearms on his person. Tr. [144] 186:4-6; Tr. [145] 216:12-13. Defendant stated that he did not. Tr. [144] 186:7-8; Tr. [145] 216:12-13.

         47. Detective O'Neil then asked Defendant if he had any firearms in the vehicle. Tr. [144] 186:9-11; Tr. [145] 216:25-217:3. Defendant hesitated in answering Detective O'Neil's question. Tr. [144] 187:10-13; Tr. [145] 217:3. Upon further questioning, however, Defendant admitted that there was a 9mm Glock in the lower pocket of the driver's door. Tr. [144] 189:16-190:8; Tr. [145] 217:3-7; Def. Ex. 2.

         48. Detective O'Neil asked Defendant if he possessed a concealed carry permit and if the firearm was loaded. Tr. [145] 217:10-16. Defendant stated that the firearm was loaded and that, although he possessed a FOID card, he did not have a concealed carry permit. Id.

         49. Prior to Detective O'Neil's questioning, he did not provide Defendant with Miranda warnings. ...

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