United States v. Mohammad Khan ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18‐2612
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MOHAMMAD WAQAS KHAN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15‐cr‐286‐1 — John Robert Blakey, Judge.
____________________
ARGUED MAY 23, 2019 — DECIDED SEPTEMBER 3, 2019
____________________
Before BAUER, MANION, and BRENNAN, Circuit Judges.
BRENNAN, Circuit Judge. Digital platforms unleash instant
and limitless capabilities; at the tap of a finger, one can touch
the world. That power and freedom enables many noble
pursuits. But, as this case shows, underneath the promise of
modern connectivity can lurk a dark side.
Over a seven‐week span, Mohammad Khan used Face‐
book and his job as an Uber driver to threaten and prepare for
2 No. 18‐2612
mass murder. He posted messages threatening to “kill,”
“shoot,” “hunt,” “murder,” and “put bullets in” his “targets.”
Khan’s “targets” included “college student[s],” “vulnerable
individuals,” people “walking their dogs,” “high net worth
individual[s],” and “witnesses” that “get [in] the way.” He
aimed for “a real human tragedy” and “claim[ed] the loop
area of Chicago to the Northern Lincoln Park area” as his
“free kill zone.” Worse, Khan planned to “purchase a
[G]o[P]ro camera, strap it to [his] chest or forehead, record the
killings, and upload them onto Facebook for everyone around
the world to see the grisly footage of death.”
Khan also drove for Uber. He posted messages about “dry
run[s]” and carrying a loaded gun during shifts to prepare for
“necessary murders”—in fact, several of his threatening posts
occurred immediately before and after driving passengers. To
add credence to his threats, Khan boasted his “mental forti‐
tude to pull it off,” posted photos of himself holding the guns
he would use, and “sw[ore] to Allah and everything I hold
dear that I will resort to murder in the next 30 days.” That
thirty‐day deadline corresponded with the date Khan was to
fly to Pakistan.
Khan used Facebook to draw the public into his world; in‐
stead he drew the attention of the FBI. His words and actions
resulted in an indictment for making interstate threats to in‐
jure others, a violation of 18 U.S.C. § 875(c). At trial, Khan
claimed his statements were not “true threats.” A jury disa‐
greed and convicted him.
Khan challenges his conviction, arguing that the govern‐
ment’s indictment and evidence against him were insuffi‐
cient. He also challenges the jury instructions for the § 875(c)
charge and the district court’s refusal to suppress all evidence
No. 18‐2612 3
leading to his arrest. Neither challenge is persuasive, so we
affirm.
I
What prompted Khan’s graphic posts? Three sources
stand out. First, a pedestrian sued Khan and Uber after a traf‐
fic accident. Khan construed the lawsuit and related insur‐
ance claims process as “senseless provocations.” Second, he
believed “noise pollution around [his] house” to be “orga‐
nized persecution,” for which he promised murder in retalia‐
tion. Third, for unstated reasons, he believed Chicago Mayor
Rahm Emanuel “doomed Chicago to an early grave.” For that,
Khan called Emanuel a “rabid dog” who “shall be taught a
lesson [he] will not forget.”
The Facebook posts at issue began in late March 2015 and
ended about two months later with Khan’s arrest. These in‐
cluded:
 April 5: “[I]f there are any more senseless provoca‐
tions committed against me or my family, I will
purchase a [G]o[P]ro camera, strap it to my chest or
forehead, record the killings, and upload them onto
Facebook for everyone around the world to see the
grisly footage of death with their own eyes.”
 April 9: “If these provocations do not cease right
away I will head out to Chicago with my fourth
generation Glock 19 and start hunting. I’m claiming
the loop area of Chicago to the northern Lincoln
Park area where the students be as free fire zones if
push comes to shove. A free fire zone and a free kill
4 No. 18‐2612
zone as well, because as I’ve stated in earlier con‐
texts I will be aiming for the posterior part of the
cranium.”
 April 14: “Keep pushing me and it won’t end well
for a trucker on the road. I’ll pull out my glock and
shoot him on the highway, causing a massive
pileup with many potential fatalities. … Be care‐
ful.”
 April 17: “I’ve given plenty of warnings … and this
kind of stuff tends to happen suddenly. I’m already
carrying my gun with me to work and let me be
frank here I see a great deal of vulnerable individ‐
uals, for example walking their dogs and whatnot.”
 May 2 (Post 1): “There will be blood running in the
streets of Chicago as I had stated. In the next 30
days, I will undertake the necessary murders. … I
swear to Allah and everything I hold dear that I will
resort to murder in the next 30 days.”
 May 2 (Post 2): “It’s not easy to kill. It takes mental
fortitude to pull it off. I take this as a personal chal‐
lenge … I’m gona try to empty out as much of the
clip on the victim in a 5 second window as possi‐
ble.”
 May 3: “The … deadline I have set is not written in
stone. If I see vulnerabilities, any at all, I will exploit
them immediately. Murder is in the air on the
streets of Chicago. I can’t control my 9 [millime‐
ter].”
No. 18‐2612 5
 May 7 (Post 1): “Tonight is promising to be a mur‐
derous night!”
 May 7 (Post 2): “Alrighttt … I’m goin hunting tonite
baby!”
 May 7 (Post 3): “If I see a high value target Ima ex‐
ploit it. I’m not killin sum bum on the street. I want
a high net worth individual to shoot. I want this to
be a real human tragedy. Much mourned. I have a
month. Ima hunt aggressively tonight. Keep an eye
out for ideal victims. If I don’t catch nobody tonite
then another nite.”
 May 8: “Good dry run tonight. Saw a couple of ex‐
cellent targets. The key is right approach and tim‐
ing. There were many potential witnesses because
it was a college student night. Inshallah1 the deed
will be done well before the deadline I have set. …
When I have said something, it means I will do it.
The rest is opportune timing.”
 May 14: “The gun is cocked and ready to go. …
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 revenge
even if it costs me my life. And that’s that.”
1 “Inshallah” is an Arabic expression meaning “if Allah wills” or “God
willing.” Merriam‐Webster’s Online Dictionary, https://www.merriam‐
webster.com/dictionary/inshallah (last visited September 3, 2019).
6 No. 18‐2612
Khan sent the third May 7 post about hunting for “ideal
victims” one minute before he picked up an Uber passenger.
The May 8 post about a “dry run” was sent three minutes after
he dropped off another Uber passenger. Khan’s Facebook
page also included several photos of guns and ammunition
he threatened to use, as well as photos of him holding those
weapons.
Law enforcement first learned of Khan’s Facebook posts
about a week after they began. The Illinois State Police run a
website that allows users to send anonymous complaints. Af‐
ter police received an anonymous tip containing a link to
Khan’s Facebook page, they immediately notified the FBI but
did not forward or save the original tip itself. Because Khan
set his Facebook privacy settings to “public,” anyone with ac‐
cess to Facebook (including the FBI) could view his comments
and photos.
Khan sent the May 14 post, about getting revenge before
leaving America, from his home. When he left his house later
that day, surveilling FBI agents notified the DuPage County
Sheriff’s Department that Khan drove off after threatening to
kill people in his car and that he may be armed.
At the FBI’s request, Sheriff’s Detective Patrick O’Neil
found Khan about one block from his home, pulled him over,
and asked him to step out of the car. When Khan opened the
door, O’Neil saw the handle of a gun in the driver’s side door.
On O’Neil’s order Khan walked to the rear of his car, where
O’Neil told him that he was being “detained” for an FBI in‐
vestigation. O’Neil then asked Khan if he was armed. Khan
told O’Neil that a loaded gun was in the car and admitted he
did not have a concealed carry license. O’Neil next asked for
Khan’s permission to get the gun. Khan agreed. Once backup
No. 18‐2612 7
arrived, O’Neil recovered a nine‐millimeter handgun—the
same gun referenced and pictured in Khan’s Facebook posts.
Sheriffs arrested Khan at the scene, and he was charged
with violating Illinois’s concealed carry laws. After Khan’s ar‐
rest, sheriffs performed a routine inventory search of his car
where they found a loaded magazine under the passenger‐
side front seat. That same day FBI agents obtained a warrant
and searched Khan’s home. There, agents found two guns de‐
picted in Khan’s Facebook photos—a .40 caliber semi‐auto‐
matic handgun and a 12‐gauge semi‐automatic shotgun—and
a box for the nine‐millimeter handgun, which contained three
loaded magazines.
A grand jury indicted Khan for violating 18 U.S.C.
§ 875(c), which makes it a crime to transmit in interstate com‐
merce “any communication containing … any threat to injure
the person of another.” The indictment charged Khan with
maintaining “an account at Facebook in his own name” and
that he “used the account to post messages and photographs
that could be viewed on the internet by all Facebook users.”
It also quoted the May 7 (Post 3), May 8, and May 14 posts,
and described Khan’s purchase of a plane ticket to Karachi,
Pakistan for travel on June 8, 2015.
At trial, Khan denied his posts were threats. Instead, he
said they were “[f]acetious,” “artistic,” “hyperbole,” and
emulations of rap songs “protected by the First Amendment.”
He also said he used Facebook like a “free notebook” that he
believed no one would read. The jury rejected these defenses
and found Khan guilty. The district court sentenced him to 41
months’ imprisonment.
8 No. 18‐2612
II
Khan challenges his conviction. He disputes his indict‐
ment, the jury instructions, the evidentiary rulings at trial,
and the sufficiency of the evidence. We address each argu‐
ment in turn.
A
We review the sufficiency of an indictment de novo.
United States v. Miller, 883 F.3d 998, 1002 (7th Cir. 2018). An
indictment must: (1) state the elements of the offense charged;
(2) fairly inform the defendant of the nature of the charge so
that he may prepare a defense; and (3) enable the defendant
to plead an acquittal or conviction as a bar against future pros‐
ecutions for the same offense. Id. (citations and internal quo‐
tations omitted). The key question is whether the indictment
sufficiently apprised Khan of the charges against him in order
to enable adequate trial preparation. See United States v.
Vaughn, 722 F.3d 918, 927 (7th Cir. 2013).
Here, the indictment mirrored the terms of § 875(c), alleg‐
ing Khan “transmit[ted] in interstate commerce a communi‐
cation containing a threat to injure the person of another,
namely, the [May 14, 2015] communication … [i]n violation of
Title 18, United States Code, Section 875(c).” So far, so good;
Khan does not dispute that the indictment apprised him of
the governing statute. Instead, he argues the indictment failed
to allege he intended to make threats when he made the Face‐
book posts. Khan moved the district court to dismiss the in‐
dictment on the same grounds. The court denied his motion
and characterized his objections as “a defense relating to the
strength of the government’s evidence [which] ordinarily
must wait for trial.”
No. 18‐2612 9
Although § 875(c) omits any mention of criminal intent,
the statute still “include[s] broadly applicable scienter re‐
quirements.” Elonis v. United States, 135 S. Ct. 2001, 2009 (2015)
(“The fact that the statute does not specify any required men‐
tal state … does not mean that none exists.”). “[T]he mental
state requirement in Section 875(c) is satisfied if the defendant
transmits a communication for the purpose of issuing a threat,
or with knowledge that the communication will be viewed as
a threat.” Id. at 2012.
This indictment did not explicitly accuse Khan of intend‐
ing to send a threat, or allege that he knew the posts would be
viewed as threats. But an indictment need not “spell out each
element” as long as “each element [is] present in context.”
United States v. Smith, 223 F.3d 554, 571 (7th Cir. 2000). An im‐
plicit allegation of an element of a crime is enough; the indict‐
ment “need not specifically allege” every “component part of
the offense.” United States v. Resendiz‐Ponce, 549 U.S. 102,
107‐08, 108 n.4 (2007).
On its face, the indictment charged Khan with transmit‐
ting threats to “get my revenge,” “hunt aggressively,” “ex‐
ploit,” and “kill” “ideal victims.” Those words denote
purpose, knowledge, and intent. See Smith, 223 F.3d at 572 (re‐
jecting challenge to language of indictment and holding “pur‐
pose, knowledge, and intent are inherent” in the words
“induce” and “entice”). The indictment, reasonably inter‐
preted and given the full context of its allegations, alleged
Khan’s intent.
Next, Khan argues the indictment failed to set forth who
he threatened, as well as where, when, why, and how threat‐
ened violence would occur. The omission of these facts, he
claims, rendered the indictment impermissibly “vague and
10 No. 18‐2612
nonspecific.” Khan asks too much of the indictment. We re‐
view indictments “on a practical basis and in their entirety,”
not in a “hypertechnical manner.” Miller, 883 F.3d at 1002.
“Although the indictment must provide some means of pin‐
ning down the specific conduct at issue[,] … the presence or
absence of any particular fact need not be dispositive.” United
States v. Sandoval, 347 F.3d 627, 633 (7th Cir. 2003).
Regardless, this indictment provides the facts Khan claims
are missing. It cites three specific threats, gives the itinerary
of Khan’s flight to Pakistan, and states that the operative facts
were based on his Facebook “messages and photographs” ac‐
cessible to “all Facebook users.” That was enough to signal:
what (threats of mass murder); who (at least six specified “tar‐
gets”); where (the Chicago loop to the Northern Lincoln Park
area); how (a nine‐millimeter handgun, a .40 caliber semi‐au‐
tomatic handgun, and a 12‐gauge semi‐automatic shotgun);
why (Khan felt “provoked” by a lawsuit and noise pollution);
and when (before he jumped on a plane to Karachi).
The indictment satisfied all necessary criteria and amply
apprised Khan of the charges against him. The district court
did not err in refusing to dismiss it.
B
Khan next argues the district court failed to instruct the
jury on all elements of a § 875(c) offense.
We review this challenge in two steps. First, we review de
novo “whether [the] jury instructions accurately summarize
the law, but give the district court substantial discretion to
formulate the instructions provided that the instructions rep‐
resent a complete and correct statement of the law.” United
States v. Bonin, No. 18‐1479, 2019 WL 3369562, at *8 (7th Cir.
No. 18‐2612 11
July 26, 2019). “If the instructions are legally accurate, then we
review the district court’s phrasing of the instructions for
abuse of discretion.” Id.
Here, the instruction read:
The indictment charges the defendant with
transmitting, in interstate commerce, a threat to
injure another person. In order for you to find
the defendant guilty of this charge, the govern‐
ment must prove each of the three following el‐
ements beyond a reasonable doubt:
1. The defendant knowingly transmitted in
interstate commerce the communication
charged in the indictment, on or about
May 14, 2015; and
2. This communication contained a true
threat to injure the person of another; and
3. The defendant intended it to communi‐
cate a true threat or knew that the com‐
munication would be viewed as a true
threat.
The jury instructions also said “[a] person acts knowingly
if he realizes what he is doing and is aware of the nature of
his conduct, and does not act through ignorance, mistake, or
accident.” As for a “true threat,” the district court instructed
the jury:
A true threat is a serious expression of intent to
commit unlawful physical violence against an‐
other person or a group of people. The commu‐
nication must be one that a reasonable observer,
considering the context and circumstances of
12 No. 18‐2612
the statement, including surrounding commu‐
nications, would interpret as a true threat.
The government does not have to prove that the
defendant actually intended to carry out the
threat, or even that the defendant had the capac‐
ity to do so. A threat does not need to be com‐
municated directly to its intended victim, or
specify a particular victim, or specify when it
will be carried out.
A communication is not a true threat if it is
merely idle or careless talk, exaggeration, or
something said in a joking manner.
The instructions the district court gave the jury accurately
and thoroughly summarized applicable law. According to
Elonis, the Supreme Court’s most recent decision on true
threats, a conviction under § 875(c) requires: (1) the knowing
transmission in interstate commerce of a communication; (2)
the communication contained a threat; and (3) the communi‐
cation was transmitted for the purpose of issuing a threat, or
with knowledge that the communication would be viewed as
a threat. Elonis, 135 S. Ct. at 2008–12. A “true threat” is “a se‐
rious expression of an intent to commit an act of unlawful vi‐
olence to a particular individual or group of individuals.”
United States v. Parr, 545 F.3d 491, 497 (7th Cir. 2008) (quoting
Virginia v. Black, 538 U.S. 343, 359 (2003)). And “[a]true threat
does not require that the speaker intend to carry it out, or even
that she have the capacity to do so.” United States v. Dutcher,
851 F.3d 757, 761 (7th Cir. 2017) (citations omitted). These
holdings are reflected almost verbatim in the instructions
Khan challenges. Khan fails to show an abuse of discretion.
No. 18‐2612 13
Khan also argues the holdings of Brandenburg v. Ohio, 395
U.S. 444, 447 (1969), and Black, 538 U.S. at 359–60, require the
district court to instruct the jury on three more elements: that
Khan intended to communicate a threat; that the intended vic‐
tim received it; and that it caused the victim to feel threatened.
Khan’s request here is incorrect for three reasons. One, a
true threat does not need to be communicated directly to the
intended victim. Parr, 545 F.3d at 497. Two, Khan seeks a re‐
dundant instruction about his intent, as the elements instruc‐
tion already included a scienter component when it required
proof that Khan “knowingly transmitted” his posts. In es‐
sence, Khan demands an instruction requiring the govern‐
ment to prove that he intended to do what he knowingly did
do: send Facebook posts accessible to all Facebook users
around the world. At trial, Khan testified he considered his
Facebook account a private diary, so he lacked intent to con‐
vey a threat or knowledge that his posts would be viewed as
threats. Because he had only one “Facebook friend,” he said
he believed no one would see his messages. Using a social me‐
dia platform to publish one’s thoughts publicly on the Inter‐
net is an odd way to keep a “private” diary. Yet however
flimsy this argument appears, it was the jury’s province to
weigh Khan’s credibility and decide whether those posts
qualified as true threats. See id. It did so and found Khan
guilty.
Last, neither Brandenburg nor Black require proof that a vic‐
tim felt threatened, as Khan insists. Brandenburg says that
speech “directed to inciting or producing imminent lawless
action” and “likely to incite or produce such action” falls out‐
side the protection of the First Amendment. 395 U.S. at 447.
Black held “a threat to a person or group of persons with the
14 No. 18‐2612
intent of placing the victim in fear of bodily harm or death,”
is likewise unprotected. 538 U.S. at 359–60 (defining “[i]ntim‐
idation” as a type of “constitutionally proscribable” speech).
Khan posted increasingly aggressive promises to “murder” at
least six specified “target” groups in a defined area of Chicago
“well before” his dwindling deadline. These threats evince
the type of intimidation and criminal action proscribed in
Brandenburg and Black. And even if no one feared imminent
action, nothing in Brandenburg, Black, or Elonis excludes the
possibility of an unreported true threat. See Dutcher, 851 F.3d
at 762 (rejecting contention that unreported Facebook post
threatening to assassinate the president was not taken seri‐
ously). At any rate, an anonymous person viewed Khan’s
posts and took them seriously enough to pass them on to the
Illinois State Police.
We find no error in the district court’s jury instructions.
C
Up next are Khan’s evidentiary challenges: the admissibil‐
ity of the gun found in Khan’s car, and the anonymous tip
forwarded to the FBI. Khan argues the district court should
have suppressed this evidence. When reviewing the denial of
a motion to suppress, we review the district court’s factual
findings for clear error and issues of law de novo. United
States v. Key, 889 F.3d 910, 912 (7th Cir. 2018).
1
We begin with the gun. Before trial, Khan moved to sup‐
press the firearm seized from his car under two theories: the
stop was not supported by reasonable suspicion, and he was
entitled to Miranda warnings before being asked about a gun
in the car. The district court denied Khan’s motion, finding
No. 18‐2612 15
reasonable suspicion for the stop. The court also found that,
when asked about guns, Khan was not in custody for Miranda
purposes. Khan reprises his arguments on appeal.
A traffic stop is lawful under the Fourth Amendment
when a law enforcement officer has a particularized and
objective basis for suspecting the person stopped of criminal
activity. United States v. Yancey, 928 F.3d 627, 630 (7th Cir.
2019) (citations and internal quotation marks omitted).
“When more than one police officer is involved in the reason‐
able‐suspicion analysis, courts consider their collective
knowledge.” United States v. Street, 917 F.3d 586, 596 (7th Cir.
2019). The collective knowledge doctrine permits a stop at the
direction of, or based on information relayed from, another
law enforcement agency. See United States v. Hensley, 469 U.S.
221, 232–33 (1985); see also Street, 917 F.3d at 596. The doctrine
applies even if the officer performing the stop does not have
firsthand knowledge of information creating the justification
for a stop. Street, 917 F.3d at 596. Nor does it matter that the
communication is by dispatch or a “wanted” bulletin, rather
than face‐to‐face. Hensley, 469 U.S. at 232; Torry v. City of
Chicago, No. 18‐1935, 2019 WL 3521146, at *5 (7th Cir. Aug. 2,
2019). But this doctrine is not an end around Terry v. Ohio—
the officer or agency relaying the information must have rea‐
sonable suspicion to justify the stop. See Hensley, 469 U.S.
232‐33. Reasonable suspicion exists when an officer can point
to “specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant that
intrusion.” United States v. Richmond, 924 F.3d 404, 411 (7th
Cir. 2019) (quoting Terry v. Ohio, 392 U.S. 1, 21 (1968)).
We apply a three‐pronged test to decide if collective
knowledge exists: (1) “the officer taking the action must act in
16 No. 18‐2612
objective reliance on the information received”; (2) “the of‐
ficer providing the information—or the agency for which he
works—must have facts supporting the level of suspicion re‐
quired”; and (3) “the stop must be no more intrusive than
would have been permissible for the officer requesting it.”
Street, 917 F.3d at 596–97 (citations and internal quotation
marks omitted). In evaluating these elements, we consider all
information known to officers at the time of the stop and give
due weight to the trial court’s assessment of the officers’ cred‐
ibility and the reasonableness of their inferences. Richmond,
924 F.3d at 410, 413.
All three elements were met here. At the suppression hear‐
ing, the district court heard testimony from O’Neil and the
FBI agents who monitored Khan’s Facebook page, surveilled
his residence, and relayed his threats to state police. O’Neil
testified he relied on the FBI agents’ direction when he
stopped Khan. The FBI agents gave specific reasons to stop
Khan. They explained how Khan’s Facebook posts crescen‐
doed in hostility, flaunted “dry runs” during work, repeated
an impending deadline, and climaxed in his final threat to kill.
The agents also relied on several days of surveillance and in‐
terviews of individuals with personal knowledge of Khan.
They gleaned even more information from public and law en‐
forcement databases that corroborated aspects of his posts, in‐
cluding his job with Uber, his ownership of guns, and his
plans to leave the country. These circumstances taken to‐
gether gave the FBI reasonable suspicion to suspect Khan in‐
tended to commit a violent crime while driving. Finally, the
stop was no more intrusive than the one the FBI could have
conducted themselves. The district court appropriately im‐
puted the FBI’s knowledge and reasonable suspicion to
O’Neil. Objectively, the stop was justified.
No. 18‐2612 17
But Khan contends the stop, even if justified, amounted to
a custodial arrest, requiring Miranda warnings before any
question about weapons. See, e.g., United States v. Higgins‐
Vogt, 911 F.3d 814, 820 (7th Cir. 2018) (“Miranda warnings
must be provided at the outset of any custodial interrogation
by law enforcement.”). Setting to the side the legality of
O’Neil’s question to Khan about guns, we consider whether
Khan was in police custody or under arrest when asked.
“[T]he temporary and relatively nonthreatening detention
involved in a traffic stop or Terry stop does not constitute Mi‐
randa custody.” Maryland v. Shatzer, 559 U.S. 98, 113 (2010) (ci‐
tations omitted). Still, like any Terry stop, a traffic stop must
be reasonably related in scope to the circumstances which jus‐
tified the stop in the first place. Hiibel v. Sixth Judicial Dist.
Court of Nev., Humboldt Cty., 542 U.S. 177, 185 (2004). It also
“cannot continue for an excessive period of time or resemble
a traditional arrest.” Id. at 185–86 (citation omitted). Khan
highlights two parts of O’Neil’s testimony: that O’Neil did not
know how long the stop would last, or where the questioning
of Khan would occur. This uncertainty and potential for an
indefinite detention, Khan claims, converted the stop into a
custodial arrest.
Khan’s argument misses the mark. We do not evaluate the
abstract chance of an excessive detention. What matters is
“whether law enforcement has detained the person longer than
needed to carry out the investigation that was justified by the
reasonable suspicion.” United States v. Lopez, 907 F.3d 472, 486
(7th Cir. 2018) (emphasis added). Khan ignores this question
altogether and submits no evidence showing that he was sub‐
jected to a stop more excessive in duration, scope, or degree
of intrusion than that needed to carry out the reason for the
18 No. 18‐2612
stop—an investigation triggered by his online threats to shoot
people from his car. Finding no evidence of an excessive stop
in the record ourselves, we see no error in the district court’s
conclusion that Khan was not in custody or under arrest when
O’Neil asked him about guns. With that issue resolved, we
turn to O’Neil’s question.
The public safety exception to Miranda allows police offic‐
ers to question a suspect without first giving Miranda warn‐
ings if they reasonably believe the questions are “necessary to
secure their own safety or the safety of the public.” New York
v. Quarles, 467 U.S. 649, 655–57, 659 (1984); see also United
States v. Hernandez, 751 F.3d 538, 540 (7th Cir. 2014) (holding
same). O’Neil’s question fits within this exception. At the sup‐
pression hearing, O’Neil testified he asked Khan about a gun
in his car for “officer safety” and to dispel his suspicion that
Khan had other guns with him. [R. 145, p. 227, 335.] O’Neil
had reason to be concerned: he saw a gun in Khan’s driver’s
side door. O’Neil was not required to ignore the gun, Quarles,
467 U.S. at 657 (holding a gun left unattended was a public
safety concern); grab the gun, Hernandez, 751 F.3d at 542 (rec‐
ognizing the risk of grabbing and setting off a loaded gun); or
allow Khan to bolt for the gun, Richmond, 924 F.3d at 417 (rec‐
ognizing the risk of a gun within a few steps from a suspect).
Accordingly, O’Neil’s question if Khan was armed fell within
the public safety exception to Miranda. Khan’s responses to
that question, which included giving O’Neil permission to get
the gun, pose no admissibility problems.
The district court properly denied Khan’s motion to sup‐
press the gun evidence.
No. 18‐2612 19
2
Khan also sought to suppress all evidence against him be‐
cause the government could not produce a copy of the anon‐
ymous tip sent to Illinois State Police. The district court
denied this request, finding the tip immaterial to the govern‐
ment’s investigation and no bad faith by the government.
At trial, Michael Forsythe, an administrative assistant for
the state police, testified he received the tip via the state police
website. After reviewing the tip, Forsythe sent an email to the
FBI with a link to Khan’s Facebook profile. Critically, state po‐
lice cannot trace the tip’s source, nor do they retain a copy of
the tip (consistent with their email retention policies). They
did, however, preserve evidence of Forsythe’s email to the FBI
in an “Internet Activity Report.” Khan received a copy of this
report in preparation for trial. On appeal, Khan contends the
district court abused its discretion when it allowed testimony
about “destroyed” evidence.
To be sure, the government has an affirmative duty to pre‐
serve and disclose material evidence favorable to a defendant.
Arizona v. Youngblood, 488 U.S. 51, 55, 57–58 (1988). The gov‐
ernment violates that obligation if, acting in bad faith, it fails
to preserve potentially exculpatory evidence that a defendant
would be unable to obtain by other means. Id.; see also United
States v. Bell, 819 F.3d 310, 317–18 (7th Cir. 2016) (bad faith is
“an official animus or a conscious effort to suppress exculpa‐
tory evidence,” which “turns on an official’s subjective
knowledge that the evidence in question had exculpatory
value at the time it was lost or destroyed”). But according to
Forsythe’s testimony, the anonymous tip was neither excul‐
patory nor substantively material. Indeed, the government
20 No. 18‐2612
took on a credibility risk by discussing evidence it never pro‐
duced. Over the government’s objection, the district court al‐
lowed Khan to argue to the jury that the tip was intentionally
destroyed. Khan also had all relevant information about the
tip: the date, time, how it was sent, who received and re‐
viewed it, and its substantive content. And Khan cross‐exam‐
ined the government’s witnesses on all this information. The
district court did not abuse its discretion when it found the
government’s failure to produce a copy of the tip was imma‐
terial.
D
Finally, we address Khan’s assertion he was convicted on
insufficient evidence. His challenges face a high hurdle: we
afford “great deference” to a jury verdict of conviction, view
the evidence in the light most favorable to the government,
and draw all reasonable inferences in the government’s favor.
United States v. Moreno, 922 F.3d 787, 793 (7th Cir. 2019). We
will reverse a conviction only where the record is devoid of
evidence from which a reasonable jury could find guilt be‐
yond a reasonable doubt. United States v. Heon Seok Lee, No.
18‐1687, 2019 WL 3940951, at *6 (7th Cir. Aug. 21, 2019).
Khan first asserts the government failed to prove “the tar‐
get of the alleged threat[s].” Not so: Khan in fact called his
potential victims “targets,” which included college students,
people walking their dogs, truckers, and anyone else who
happened to be in the wrong place (Khan’s defined “free kill
zone”) at the wrong time (before his June 8, 2015 flight to
Pakistan). The recipients of Khan’s threats are quite clear.
Khan also claims the government failed to prove his Face‐
book posts were true threats or that he intended to convey
No. 18‐2612 21
those threats to anyone else. Before the Supreme Court’s de‐
cision in Black, 538 U.S. at 358–59, we used an objective rea‐
sonable person standard to determine whether speech
constituted a true threat. See Maier v. Smith, 912 F.3d 1064,
1072 (7th Cir. 2019) (citing Parr, 545 F.3d at 499). After Black,
“we and other courts have wondered whether speech only
qualifies as a true threat if the speaker subjectively intended
his words to be threatening.” Id. (citing Parr, 545 F.3d at
499‐500). “[T]he Supreme Court has not definitively answered
the question.” Id. But we need not press this issue here. Khan’s
posts were so violent, explicit, and resolute that they consti‐
tuted threats under either an objective or subjective standard.
Among other macabre warnings, Khan repeatedly and cate‐
gorically threatened to murder defined targets in a defined
area of Chicago and livestream “the grisly footage of death.”
He also tied his threats to “revenge” for “provocations” and
“persecutions” against him, connected the date of any at‐
tempted murder to his flight out of the country, and bragged
about his “mental fortitude to pull it off.” These personal ref‐
erents undercut Khan’s defense that his words were artistic
expressions. This is enough to reasonably infer Khan’s intent
to commit an act of unlawful violence towards a particular
group of individuals.
Last, Khan contends the government offered no evidence
that his threats would be seen. This also is not true: Khan’s
posts were seen by at least one observer, who passed them on
to police. After that, the FBI continued to monitor Khan’s pub‐
lic threats in a forum accessible to over one billion Facebook
users. The evidence amply supports Khan’s conviction.
22 No. 18‐2612
III
Boundless connection to the world can betray. Such was
the case for Khan. We find no error in the district court’s rul‐
ings, and AFFIRM Khan’s conviction.