I dismissed the indictment on the ground that it failed to allege a solicitation and as contrary to the First Amendment, but the Seventh Circuit reversed, finding that I acted prematurely, and remanded the case for a trial at which the context of the posts could be considered. United States v. White, 610 F.3d 956 (7th Cir.2010). The Seventh Circuit acknowledged that the case presented important First Amendment issues and stated that after the government produced its evidence, “the court may decide that a reasonable juror could not conclude that White's intent was for harm to befall [Hoffman], and not merely electronic or verbal harassment.” Id. at 962.

"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 so that he may prepare a defense; and (3) allows the defendant to plead the judgment as a bar to any future prosecutions." United States v. White, 610 F.3d 956, 958 (7th Cir. 2010) (citing Fed.R.Crim.P. 7(c)(1)). "An indictment is reviewed on its face, regardless of the strength or weakness of the government's case." Id. (citation omitted).

“An indictment is reviewed on its face, regardless of the strength or weakness of the government's case.” United States v. White, 610 F.3d 956, 958 (7th Cir. 2010) (citing United States v. Risk, 843 F.2d 1059, 1061 (7th Cir. 1988))

We reversed because the indictment was facially valid and White's First Amendment rights were protected by the government's burden to prove beyond a reasonable doubt that White had the requisite intent for criminal solicitation. United States v. White, 610 F.3d 956, 961 (7th Cir.2010) (per curiam). As we explained:

We reversed because the indictment was facially valid and White's First Amendment rights were protected by the government's burden to prove beyond a reasonable doubt that White had the requisite intent for criminal solicitation. United States v. White, 610 F.3d 956, 961 (7th Cir. 2010) (per curiam). As we explained:

Judge Duffin characterized Rehaif as dealing with “the question of what the government must prove at trial rather than the sufficiency of the indictment.” Id. As to the standard for analyzing a challenge to the sufficiency of an indictment, Judge Duffin quoted United States v. White, 610 F.3d 956, 958 (7th Cir. 2010), which held that an indictment is sufficient if it states all the elements of the crime, informs the defendant of the nature of the charges so that he can prepare a defense and allows the defendant to plead the judgment as a bar to future prosecutions. Id.

An indictment is sufficient if it: (1) states the elements of the offense charged; (2) fairly informs the defendant of the nature of the charge so that he may prepare a defense; and (3) enables him to plead an acquittal or conviction as a bar against future prosecutions for the same offense. See United States v. Vaughn, 722 F.3d 918, 925 (7th Cir. 2010); United States v. White, 610 F.3d 956, 958 (7th Cir. 2010). Once the elements of the crime have been specified, an indictment need only provide enough factual information to enable a defendant to identify the conduct on which the government intends to base its case.

A legally sufficient indictment is one that “(1) states all the elements of the crime charged; (2) adequately informs the defendant of the nature of the charges so that he may prepare a defense; and (3) allows the defendant to plead the judgment as a bar to any future prosecutions.” United States v. White, 610 F.3d 956, 958–59 (7th Cir.2010) (citing Fed. R. Crim. P. 7(c)(1)). The Court reviews an indictment on its face, id. accepting all of its allegations as true.

The Seventh Circuit has held that the determining whether a statement constitutes true threat is question which should be left to the trier of fact. See United States v. Saunders, 166 F.3d 907, 912 (7th Cir.1999) (holding that “whether the statement [contained in the defendant's letter to Judge Manning] constitutes a threat was an issue of fact for the jury to decide,” in a case involving 18 U.S.C. § 115(a)(1)(B)); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir.1990) (holding that “[t]he threat in this case was ambiguous, but the task of interpretation was for the jury ...” in a case involving 18 U.S.C. § 876); United States v. Parr, 545 F.3d 491, 500 (7th Cir.2008) (discussing the possible change in the threat doctrine after the Supreme Court's decision in Virginia v. Black, 538 U.S. 343, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) and stating that if the doctrine had changed “the factfinder” would now be asked to answer an additional question regarding subjective intent); United States v. White, 610 F.3d 956, 962 (7th Cir.2010) (reversing a district court's dismissal because the defendant's argument was not whether the indictment was valid but whether the posting on the website was a solicitation or speech deserving of First Amendment protection, which was an issue for the jury to decide). Other circuits have similarly held that whether a statement is a “true threat is to be decided by the trier of fact.”

An indictment “that ‘tracks' the words of a statute to state the elements of the crime is generally acceptable, and while there must be enough factual particulars so the defendant is aware of the specific conduct at issue, the presence or absence of any particular fact is not dispositive.” United States v. White, 610 F.3d 956, 958-59 (7th Cir. 2010) (citing United States v. Smith, 230 F.3d 300, 305 (7th Cir. 2000)). An indictment sufficiently alleges an offense when it “(1) states the elements of the offense charged; (2) fairly informs the defendant of the nature of the charge so that he may prepare a defense; and (3) enables him to plead an acquittal or conviction as a bar against future prosecutions for the same offense.”