USA v. Avalos

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
United States of America,
Plaintiff,
v.
Tyler Maxon Avalos,
Defendant.
Case No. 0:25-cr-00435-SRN-EMB
REPORT &
RECOMMENDATION
Before the Court is the Motion to Dismiss (Dkt. No. 37) filed by
Defendant Tyer Maxon Avalos. The Government filed a response (Dkt. No.
40). I held a status conference with the parties, who agreed that a hearing on
the motion was unnecessary. (See Dkt. No. 41.) Instead, the parties
submitted supplemental briefing. (Dkt. Nos. 46, 47). For the following
reasons, I recommend the Court DEFER ruling on the challenge until after a
factual record is developed at trial or by stipulation.
I. Background
The Government initiated this action by filing a criminal complaint on
October 16, 2025. (See Dkt. No. 1.) The probable cause finding was based on
an affidavit sworn by FBI Special Agent Caleb Jurchisin. (See Dkt. No. 1–2.)
As set forth in that affidavit, a TikTok user reported a tip to the FBI Agent
Jurchisin about the following post:
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(Dkt. No. 1-2 ¶¶ 4–6.) Agent Jurchisin described how the FBI retrieved the
IP address and email address associated with the account that created the
post. (Id. ¶¶ 9–12.) Based on that information, the FBI determined Mr.
Avalos owned the account that made the post. (Id. ¶¶ 12–16.)
Magistrate Judge Elizabeth Cowan Wright signed the criminal
complaint, which included one count of “knowingly transmit[ting], in
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interstate and foreign commerce, communications consisting of an online post
containing a threat to injure the person of another, all in violation of 18
U.S.C. § 875(c).” (Dkt. No. 1.) Mr. Avalos made his initial appearance the
following day. (See Dkt. No. 6.)
A grand jury then returned an indictment charging Mr. Avalos with
one count of interstate transmission of a threat to injure the person of
another, in violation of 18 U.S.C. § 875(c). (Dkt. No. 18.)
A superseding indictment was returned on January 29, 2026. (Dkt. No.
32.) The superseding indictment, which included the same single charge,
alleged Mr. Avalos transmitted “a TikTok post containing a threat to injure
Victim A, with the purpose of issuing a threat, and with knowledge that the
communication would be viewed as a threat, and consciously disregarding a
substantial and unjustifiable risk that the communication would be viewed
as a threat.” (Id.) Neither the indictment nor the superseding indictment
contain factual details about the post, other than the date it was made and
the platform used.
Mr. Avalos moves to dismiss the superseding indictment pursuant to
Federal Rule of Criminal Procedure 12(b), arguing it violates his
“constitutional right to free speech protected by the First Amendment.” (Dkt.
No. 37 at 1.)
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II. Legal Standard
Federal Rule of Criminal Procedure 12 governs the filing of pretrial
motions. Rule 12(b)(1) permits a party to “raise by pretrial motion any
defense, objection, or request that the court can determine without a trial on
the merits.” And Rule 12(d) requires the Court to “decide every pretrial
motion before trial unless it finds good cause to defer a ruling.” (emphasis
added). The rule therefore “permits pretrial resolution of a motion to dismiss
the indictment only when trial of the facts surrounding the commission of the
alleged offense would be of no assistance in determining the validity of the
defense.” United States v. Grubb, 135 F.4th 604, 607 (8th Cir. 2025) (quoting
United States v. Pope, 613 F.3d 1255, 1259 (10th Cir. 2010)).
The First Amendment prohibits Congress from making laws “abridging
the freedom of speech.” U.S. Const. amend. I. This right is not absolute,
however, and “the government may regulate certain categories of expression
consistent with the Constitution.” Virginia v. Black, 538 U.S. 343, 358
(2003). The Constitution does not protect a “true threat,” which is a
“statement that a reasonable recipient would have interpreted as a serious
expression of an intent to harm or cause injury to another.” United States v.
Dierks, 978 F.3d 585, 589 (8th Cir. 2020) (quoting Doe v. Pulaski Cty. Special
Sch. Dist., 306 F.3d 616, 624 (8th Cir. 2002) (en banc)).
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The statute at issue in this case makes it unlawful to “transmit[] in
interstate or foreign commerce any communication containing any threat to
kidnap any person or any threat to injure the person of another.” 18 U.S.C.
§ 875(c). “Section 875(c) is violated if the government proves the defendant
communicated a true threat and ‘transmitted [that] communication for the
purpose of issuing a threat or with knowledge that the communication would
be viewed as a threat.’” United States v. Leveke, 38 F.4th 662, 668 (8th Cir.
2022) (alteration in original) (quoting Dierks, 978 F.3d at 591). Determining
whether a communication is a “true threat” under § 875(c)—as opposed to
constitutionally protected speech—is a task reserved for the jury. United
States v. Ivers, 967 F.3d 709, 718 (8th Cir. 2020); see also Brandy v. City of St.
Louis, 75 F.4th 908, 915 (8th Cir. 2023) (“In the absence of unusual facts [],
the question whether a statement amounts to a true threat is a question
generally left to a jury.”).
Here, Mr. Avalos makes an as-applied challenge, which “requires
courts to examine a statute based on a defendant’s individual
circumstances.”1 United States v. Veasley, 98 F.4th 906, 909 (8th Cir. 2024),
cert. denied, 145 S. Ct. 304 (2024). An as-applied challenge may be
inappropriate for pretrial resolution if it requires the Court to “resolv[e]
1 Mr. Avalos does not argue that § 875(c) is facially unconstitutional.
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factual issues related to [the defendant’s] alleged offense.” United States v.
Baxter, 127 F.4th 1087, 1091 (8th Cir. 2025) (quoting United States v. Turner,
842 F.3d 602, 605 (8th Cir. 2016)), cert. denied, 146 S. Ct. 294 (2025).
III. Analysis
The Court should defer ruling on Mr. Avalos’s motion under Rule 12(d).
His as-applied challenge would require the Court to make factual findings
that are bound up with evidence bearing on his guilt or innocence.
Citing Agent Jurchisin’s affidavit, Mr. Avalos argues “[t]he existing
undisputed record sufficiently sets forth the nature and context of the alleged
threatening communication for consideration and a ruling by this Court.”
(Dkt. No. 46 at 1.) Mr. Avalos asks the Court to consider Agent Jurchisin’s
affidavit as the undisputed factual record and to rule, as a matter of law, that
his prosecution under those facts would violate his First Amendment rights.
But “[t]here is no procedure in federal criminal cases equivalent to the motion
for summary judgment in civil cases, and the government has no duty to
reveal all of its proof before trial.”2 Grubb, 135 F.4th at 607 (citing United
States v. Nabors, 45 F.3d 238, 240 (8th Cir. 1995)). The Government’s case
2 Indeed, Agent Jurchisin’s affidavit clarifies that it “does not include all the
details of the investigation known to [him] or the government” and instead
includes only “information believed to be sufficient to establish probable
cause for the charge in the Complaint.” (Dkt. No. 1-2 at 2.)
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isn’t confined to the affidavit of Agent Jurchisin, nor does the Government
have any obligation to proffer additional proof at this juncture. And although
courts can resolve as-applied challenges if the parties stipulate to the facts,
the Government has no duty to enter into such a stipulation. See id.
(“Unless the prosecution voluntarily presents the entirety of its evidence in
response to a pretrial motion, the court cannot know the universe of
additional facts that will be presented at trial and whether they will be
disputed.”). And here, the Government did not stipulate.
Despite the Government’s invocation of Grubb in its initial response,
(see Dkt. No. 40), Mr. Avalos’s supplemental motion does not cite or address
that case. Instead, Mr. Avalos argues that “[w]hether the communication
constitutes a ‘true threat’ or mere political hyperbole is not an inquiry that
that Court needs to undertake” because the post “contains no threat at all.”
(Dkt. No. 46 at 4–5.) But whether the post contains a threat is a
determination squarely reserved for the jury.
Next, Mr. Avalos suggests his post was merely “an invitation to join the
debate” that “expresse[d] a preference for” Ms. Bondi’s production “to be
posthumous.” (Dkt. No. 46 at 3–4.) The Government disagrees, claiming the
post at least “meets the recklessness standard of intent” based on Mr.
Avalos’s “concession that [it] could be viewed as ‘implicitly inviting someone
else to commit an act of unlawful violence.’” (Dkt. No. 47 at 8 (quoting Dkt.
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No. 46 at 4) (citing United States v. Unocic, 135 F.4th 632, 635 (8th Cir.
2025).) To resolve that dispute, the Court would necessarily need to make
factual determinations about the nature of Mr. Avalos’s subjective intent.
See Dierks, 978 F.3d at 592 (acknowledging “that § 875(c) is a specific intent
crime”). The Court should decline to resolve those facts—which are key to
the question of guilt or innocence—in a pretrial motion.
Further, in deciding whether something is a “true threat,” a jury should
consider “the context of the totality of the circumstances in which the
communication was made.” Ivers, 967 F.3d at 718 (quotations omitted).
Factors relevant to this inquiry include:
1) [T]he reaction of those who heard the alleged threat; 2) whether
the threat was conditional; 3) whether the person who made the
alleged threat communicated it directly to the object of the threat;
4) whether the speaker had a history of making threats against the
person purportedly threatened; and 5) whether the recipient had a
reason to believe that the speaker had a propensity to engage in
violence.
Id. (alteration in original) (quoting Pulaski Cnty. Special Sch. Dist., 306 F.3d
at 623). This pretrial motion is an ill-suited vehicle to weigh these factors. A
trial on the merits will give the parties an opportunity to introduce evidence
about the presence (or absence) of these factors. Cf. id. (affirming jury’s
guilty verdict where evidence introduced at trial demonstrated defendant’s
two-year “fixation with, and anger towards, Judge Wright” preceding his
interstate communication of: “You don’t know the 50 different ways I planned
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to kill her”). Indeed, Mr. Avalos acknowledges there is “limited available
context” at this stage. (Dkt. No. 46 at 4.)
Because I “cannot say definitively that ‘trial of the facts surrounding
the commission of the alleged offense would be of no assistance in
determining the validity of the defense,’” I recommend deferring a ruling
under Rule 12(d). Grubb, 135 F.4th at 608 (quoting United States v.
Covington, 395 U.S. 57, 60 (1969)).
RECOMMENDATION
For the foregoing reasons and upon careful consideration of the entire
record, IT IS HEREBY RECOMMENDED that the Court DEFER ruling on
Mr. Avalos’s Motion (Dkt. No. 37) until a factual record is developed at trial
or upon the parties’ stipulation.
Date: May 7, 2026
NOTICE
Filing Objections: This Report and Recommendation is not an order or
judgment of the District Court and is therefore not appealable directly to the
Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed finding and recommendations
within 14 days after being served a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after being served a
s/Elsa M. Bullard
ELSA M. BULLARD
United States Magistrate Judge
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copy of the objections. See Local Rule 72.2(b)(2). All objections and responses
must comply with the word or line limits set forth in Local Rule 72.2(c).
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