UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF FLORIDA 

 TALLAHASSEE DIVISION 

 

UNITED STATES OF AMERICA 

v. Case No. 4:21mj9-MAF 

DANIEL ALAN BAKER, 

 

 Defendant. 

________________________________/ 

DEFENDANT’S MEMORANDUM REGARDING 

PROBABLE CAUSE 

Defendant, Daniel Baker, files this memorandum supporting his 

contention that the Government’s affidavit fails to establish probable 

cause to detain him as required by the Fourth Amendment to the United 

States Constitution. See Gerstein v. Pugh, 420 U.S. 103, 114 (1975); 

Fed.R.Crim.P. 5.1(f). It fails because the alleged threats are described in 

conclusory terms, the product of the heated political dialogue of the day, 

equivocal, conditional, and fail to show an intent to immediately inflict 

injury. 

The complaint alleges a violation of 18 U.S.C. § 875(c), which reads: 

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Whoever transmits in interstate or foreign 

commerce any communication containing any 

threat to kidnap any person or any threat to injure 

the person of another, shall be fined under this 

title or imprisoned not more than five years, or 

both. 

The affidavit alleges many facts that would, understandably, cause 

the Court and the Government concern, including Mr. Baker’s claim to 

be a “trained sniper” and Mr. Baker’s ownership of firearms. For 

purposes of the preliminary hearing, however, the question is whether 

the Government can “prove the existence of probable cause to believe the 

arrestee has committed a crime.” United States v. Garcia, 593 F.2d 77, 

81 (8th Cir. 1979). 

The complaint contains a limited number of allegations that the 

Court might construe to be a threat to kidnap or injure any person sent 

through interstate commerce. Those are, at least as Mr. Baker reads 

them: 

1. “Baker continues to threaten the use of violence, and has made 

‘multiple threats to those he claims to be white supremacists, 

fascists, people with different ideologies than his, and allies of 

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the United States.” ⁋ 10 of Affidavit in Support of Criminal 

Complaint. (ECF No. 2). 

2. “Baker has promoted the killing of United States military 

officers.” Id.

3. “Baker has informed his followers on social media to prepare for 

war.” Id. 

4. “On October 2, 2020, Baker authored a Facebook post stating: 

‘This is war. Are you willing to take up arms with us yet? Buy 

guns and join us this November. We are voting from the 

rooftops.” Id. at ⁋ 16. 

5. “On October 20, 2020, Baker authored a post advising of the 

upcoming civil war: ‘God I hope the right tries a coup Nov 3rd 

cuz (sic) I’m so fucking down to slay enemies again.” Id. at ⁋ 20. 

6. “On December 17, 2020, Baker made a post to his Instagram 

account that appears to resemble bombs or explosives being 

dropped from the sky and captions the post ‘Jacksonville nazis 

gonne (sic) be real sad when this happens to their hq.” Id. at ⁋

30. 

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7. “On December 29, 2020, Baker made a post to his Instagram 

account advocating for individuals to stop training cops in 

Jujitsu, that cops kill civilians, and states ‘We are hunting yall. 

The favelas will rise up and the mcdojos will burn during the 

revolution.’ Your affiant believes that Baker’s reference to ‘yall’ 

in that post was referring to law enforcement officers.” Id. at ⁋

32. 

8. In a reference to the mob that broke into the United States 

Capitol earlier this month: “Yall better hope the cops find you 

before we do cuz I believe in torturing prisoners for information. 

Yall better turn yourself in cuz we don’t intend to involve the 

cops.” Id. at ⁋ 33. 

9. Under the heading “Defend Tallahassee” the January 12, 2021 

Facebook post that reads: “Armed racist mobs have planted the 

Confederate flag in the nations Capitol while announcing their 

plans to storm every American state Capitol on or around 

inauguration day. We will fight back. We will circle the state 

Capitol and let them fight the cops and take the building. Then 

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we will encircle and trap them inside. We will drive them out of 

Tallahassee with every caliber available. They are staging an 

armed takeover so only an armed community can stop them. We 

can win! We have a duty to and duty to win. We have already 

recruited an army armed combat veterans and volunteers.” Id. 

at ⁋ 39. 

10. A second posting of “Defending Tallahassee” under the 

heading “Call to Arms January 20th!” as a comment to a news 

article by a Tallahassee-based television station. Id. at ⁋ 43. 

Mr. Baker acknowledges the relatively low threshold the 

Government must meet to establish probable cause, only that of 

establishing “a reasonable ground to believe the accused guilty of the 

crime charged.” Garcia-Guillern v. United States, 450 F.2d 1189, 1192 

(5th Cir. 1971). But it is that standard the allegations in the affidavit fail 

to meet. 

 The first three claims are conclusory statements that don’t allow 

the Court to make its own independent determination. See Illinois v. 

Gates, 462 U.S. 213, 213, 239 (1983) (“An affidavit must provide the 

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magistrate with a substantial basis for determining the basis of probable 

cause, and the wholly conclusory statement at issue in Nathanson [v. 

United States, 290 U.S. 41 (1933)] failed to meet this requirement.”) The 

first two, don’t allege how the “threats” were communicated. 

 In evaluating the remaining statements, Mr. Baker contends the 

Court should place them in the context of what is a time of overheated 

rhetoric. An Associated Press story that appeared this past Sunday 

quoted an online post of the Chairman of the St. Croix, Wisconsin 

Republican Party in which he urged followers to “prepare for war.” Joe 

Reaves and Julie Smyth, Some in GOP talk of civil war, TALLAHASSEE 

DEMOCRAT, Jan. 17, 2021. The article states Phil Reynolds, “a member of 

the GOP central committee in California’s Santa Clara County, declared 

on Facebook that “The war has begun. Citizens take arms!” Id. The 

Seattle Times reports state Representative Robert Sutherland wrote 

“prepare for war,” “on his Facebook site, after declaring that ‘Joe Biden 

is not now, nor will ever be my President.’” Danny Westmeat, ‘Prepare for 

war’: A local GOP official goes all-in with election conspiracy theories, 

THE SEATTLE TIMES, December 16, 2020. 

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 In interpreting a statute “which makes criminal a form of pure 

speech,” courts must do so “with the commands of the First Amendment 

clearly in mind” and must “distinguish[] . . . what is constitutionally 

protected speech.” Watts v. United States, 394 U.S. 705, 707 (1969). 

“[P]olitical hyperbole” falls on the side of protected speech. Id. at 708. The 

Watts Court found that the statement, “If they ever make me carry a rifle 

the first man I want to get in my sights is LBJ” was political hyperbole 

rather than a “true threat” against the President. In reaching its 

conclusion, the court found crucial the context in which the statement 

was uttered. Specifically, the court gave great weight to the fact that the 

declarant was a disgruntled eighteen year old who had recently been 

drafted, and who was at a protest against police brutality at the 

Washington Monument. Given the rhetoric of the day, Mr. Baker’s talk 

of war as do the postings reported in the Associated Press story can only 

be considered political hyperbole. 

 Some of Mr. Baker’s statements go beyond asking people to prepare 

for war. However, those statements also fail because they are so 

conditional, equivocal, speculative, and unrealistic. Hoping there is a 

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coup so he can “slay enemies again,” the drawings of bombs or explosives 

dropping on Jacksonville Nazis, the claim “we are hunting yall,” the 

statement he believes in “torturing prisoners,” and the specifics of 

encircling “armed racists” after they invade the Florida Capitol are not 

“true threats.” See United States v. Sovie, 122 F.3d 122, 127 (2d Cir. 1997) 

(“As noted, Section 875(c) requires the threatening language be a ‘true 

threat.’”); Eleventh Circuit Pattern Jury Instructions (Criminal Cases) 

O30.3 (2016) (requiring the Government to prove “The Defendant sent 

the message with the intent to communicate a true threat or with the 

knowledge it would be viewed as a true threat.”) 

Much of what Mr. Baker has posted amounts to a call for a citizen 

defense of the Florida Capitol not unlike the citizen militia’s efforts at 

defending Harper’s Ferry when in the summer of 1859 an armed group 

led by John Brown commandeered the federal armory at Harper’s Ferry.1

Indeed, an effort by citizens to defend a state capitol hardly seems illegal. 

See Elonis v. United States, 135 S. Ct. 2001, 2019 (2015) (“To qualify as 

 

1 See John Brown – Amercan abolitionist, Britannica.com at 

https://www.britannica.com/biography/John-Brown-Americanabolitionist.

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a true threat, a communication must be a serious expression of an 

intention to commit unlawful physical violence . . .” (emphasis added)). 

Then, too, it’s conditioned upon the broadly speculative assumption that 

a racist mob would invade the Capitol. 

 The paragraph that includes the opinion Mr. Baker was referring 

to “law enforcement officers” when he wrote “We are hunting yall,” 

includes reference to “favelas” that “will rise up” and “mcdojos” who “will 

burn during the revolution.” A favella is “in Brazil, a slum or shantytown 

located within or on the outskirts of the country’s large cites.”2 A McDojo 

is “a martial arts school that is solely established to make money instead 

of genuinely teaching martial arts.”3 Add those two odd references to the 

description of the post as advocating for individuals to stop training “cops 

in Jujitsu,” and it is a hard paragraph to decipher, with content that is a 

long way from the conclusion that Mr. Baker claimed to be hunting 

officers. 

 

2 Brtiannica.com at https://www.britannica.com/topic/favela. 3 Urbandictionary.com at 

https://www.urbandictionary.com/define.php?term=McDojo

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 The statement about torturing prisoners and the message to those 

who broke into the United States Capitol to turn themselves in, if it can 

even be taken seriously, is conditioned upon identifying and finding those 

who participated in an incident in Washington, D.C., nearly 900 miles 

from Tallahassee. 

 The Instagram post that includes a drawing of what “appears to 

resemble bombs or explosives” dropping from the sky is supposedly aimed 

at the headquarters of Jacksonville Nazis. It seems unlikely there is even 

such a place. 

 Courts have not described a “true threat” in entirely the same way. 

In United States v. C.S., 968 F.3d 237, 243 (3rd Cir. 2020), the court, 

citing an earlier case, wrote that whether language qualified as a threat 

was ordinarily a matter to be decided by the trier of fact. While that 

sentiment may be largely true, taken literally it would give rise to the 

untenable proposition that probable cause always exists so long as the 

government makes a claim that the communication is a true threat. 

In the opinion, the court also stated that “[t]here is no rule that 

conditional statements, statements conveying a vague timeline or 

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condition, or even wishes can never be a true threat.” 968 F.3d at 245. 

But while one may conjure circumstances where conditional statements, 

vague timelines, or wishes might qualify, that is not to say they 

inevitably do. Notably, the object of the threat in C.S. was a nearby 

church. Though there was no mention of when the defendant intended to 

attack the church, the attack did not depend upon any intervening 

circumstance. 

 The clearer analysis is found in United States v. Kelner, 534 F.2d 

1020 (2d Cir.1976). There the court recognized that the “constitutionallylimited definition of the term ‘threat’” is meant to “insure that only 

unequivocal, unconditional and specific expressions of intention 

immediately to inflict injury may be punished . . .” 534 F.2d at 1027. To 

hold otherwise would invite broad prosecution of conceivably even the 

reckless statements described in last Sunday’s Associated Press article. 

Mr. Baker’s language, because it is equivocal, conditional, and omits any 

intention to immediately inflict injury, does not amount to a true threat. 

Because it falls so far short of Kelner’s requirements, the affidavit in this 

case fails to establish probable cause. 

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CERTIFICATE OF SERVICE AND WORD COUNT

 I certify that a copy of the foregoing has been furnished 

electronically via ECF to Assistant United States Attorney Lazaro Fields 

this 20th day of January 2021. This motion has 2,035 words. 

 Respectfully submitted, 

 /s/ Randolph P. Murrell 

 Randolph P. Murrell 

 Federal Public Defender 

 Florida Bar No. 220256 

 227 N. Bronough St., Ste. 4200 

 Tallahassee, FL 32301 

 Phone (850) 942-8818 

 Attorney for the Defendant 

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