United States District Court, N.D. Illinois, Eastern Division
Robert Blakey United States District Judge.
23, 2015, pro se Defendant Mohammad Waqas Khan
(“Defendant”) was indicted for communicating a
threat in violation of 18 U.S.C. § 875(c). Indictment
. Pending before the Court are Defendant's
timely pretrial motions, including: (1) Motion to
Suppress Evidence ; (2) Motion to Dismiss the Indictment
; (3) Motion to Void 18 U.S.C. § 875(c) for
Vagueness ; (4) Motion to Unseal Pertinent Documents,
Subpoena Medical Records of Dr. Carl Wahlstrom, and Order Dr.
Wahlstrom to Amend His Diagnosis ; (5) Motion to Rebuke
and Sanction the Government and Defendant's Former Public
Defender for Unauthorized Disclosure of Privileged
Physician-Client Medical Information ; (6) Motion to Show
Cause on Bill of Particulars ; (7) Motion to Compel
Discovery ; (8) Motion to Show Cause on Subject Matter
Jurisdiction ; (9) Motion to Dismiss for Lack of
Territorial Jurisdiction ; and (10) Motion to Extend
Trial Date .
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:
Findings of Fact A. The Original Tip to Law
May 13, 2015, the Illinois State Police Firearms Owners
Identification (“FOID”) Department received an
email regarding Defendant's Facebook
activities. Tr.  14:14-19.
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.
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.
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,
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.
Timothy Walther has been employed as a Special Agent with the
FBI since March 2008. Tr.  11:7-10; Gov. Ex.
Facebook is an online social media platform that can be
accessed by Facebook users to post comments and photographs.
Def. Ex. 35 at 3.
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.
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.
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.”
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.
Defendant's Facebook Page
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. 
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.
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 the deed will be done well before the
deadline I have set. Jab manay bola hai to karun
When I have said something, it means I will do it. The rest
is opportune timing.” Id.
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
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
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.
Other Information Obtained by the FBI
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.”
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.
FBI also conducted a search of U.S. Custom and Border
Protection travel records. Tr.  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.”
Interviews Conducted by the FBI
Between May 13, 2015 and May 14, 2015, the FBI conducted
multiple witness interviews for Defendant's
investigation. Tr.  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.”
Surveillance of Defendant
the afternoon of May 13, 2015, the FBI established personal
surveillance of Defendant's residence. Tr. 
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.
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. Id. at
66:6-9. The individual did not inform FBI agents of any
suspicious or illegal activity by Defendant. Id. at
agents maintained surveillance of Defendant as he conducted
approximately five to ten more Uber rides. Id. 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.
Upon arrival at Defendant's residence, FBI agents
identified Defendant's silver Toyota Corolla parked in
the driveway. Id. at 67:7-10.
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.”
Following Defendant's post, the FBI established
twenty-four hour surveillance of Defendant. Tr. 
The Traffic Stop and Detention of Defendant
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.  105:15-23, 161:8-10.
One of the deputies present at the briefing was Detective
Patrick O'Neil. Id. at 161:5-7.
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.  209:21-210:15. Photographs
of Defendant and his firearms were also provided.
Id. at 107:7-10, 161:11-23; Tr.  210:16-211:9.
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,
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.  Ex. 1 at 15:2-4.
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.  211:24-212:7; Gov.'s
Resp.  Ex. 1 at 9:22-10:8.
approximately 5:45 p.m., Detective O'Neil received
notification from the FBI that Defendant had left his
residence in a vehicle. Tr.  212:8-14; Def. Ex. 2.
approximately 5:51 p.m., Detective O'Neil observed
Defendant's vehicle traveling eastbound on Armitage
Avenue. Tr.  212:15-19; Gov.'s Resp.  Ex. 1 at
13:4-9. Detective O'Neil observed Defendant driving the
vehicle. Tr.  212:20-23.
Detective O'Neil stopped Defendant's vehicle at the
intersection of Armitage Avenue and Pleasant Avenue. Tr.
 172:2-7; Tr.  212:24-213:2.
Prior to stopping Defendant's vehicle, Detective
O'Neil did not observe Defendant engage in any traffic
violations. Gov.'s Resp.  Ex. 1 at 15:15-18.
After curbing Defendant's vehicle, Detective O'Neil
exited his police vehicle and approached Defendant's
vehicle on foot. Tr.  214:1-4.
Detective O'Neil asked Defendant to step out of the
vehicle so that Detective O'Neil could speak with him.
Tr.  176:7-10; Tr.  214:16-19.
the time Detective O'Neil asked Defendant to step out of
the vehicle, Defendant was not under formal arrest.
After Defendant exited the vehicle, Detective O'Neil
requested that Defendant walk to the back of Defendant's
vehicle. Tr.  178:12-15; Tr.  215:8-9.
approximately the time Defendant exited his vehicle, another
DuPage County detective arrived at the scene. Gov.'s
Resp.  Ex. 1 at 28:17-20.
the back of Defendant's vehicle, Detective O'Neil
informed Defendant that he was being detained pursuant to an
FBI investigation. Tr.  182:1-9; Tr.  214:20-22,
Detective O'Neil then asked Defendant if he had any
firearms on his person. Tr.  186:4-6; Tr. 
216:12-13. Defendant stated that he did not. Tr. 
186:7-8; Tr.  216:12-13.
Detective O'Neil then asked Defendant if he had any
firearms in the vehicle. Tr.  186:9-11; Tr. 
216:25-217:3. Defendant hesitated in answering Detective
O'Neil's question. Tr.  187:10-13; Tr. 
217:3. Upon further questioning, however, Defendant admitted
that there was a 9mm Glock in the lower pocket of the
driver's door. Tr.  189:16-190:8; Tr.  217:3-7;
Def. Ex. 2.
Detective O'Neil asked Defendant if he possessed a
concealed carry permit and if the firearm was loaded. Tr.
 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.
Prior to Detective O'Neil's questioning, he did not
provide Defendant with Miranda warnings. ...