Twombly

ORDER ON MOTIONS TO DISMISS INDICTMENT

On September 18, 2006, Defendants filed a motion seeking, among other things, dismissal of the indictment on the basis that the statute under which they are charged, 18 U.S.C. § 1037 (a)(3) and (4), is unconstitutionally vague. Defendants later supplemented their motion, asking the Court to dismiss the indictment as over-broad, and for failure to allege an essential element. At a hearing held November 20, 2006, the Court took these motions under submission. It now renders its decision.

I. Factual Background

The charges in this case stem from a large number of electronic messages sent between April and September, 2004. The Government alleges Defendant Twombly leased dedicated servers using an alias, including one server from Biznesshosting, Inc. (“Biznesshosting”). According to the Government’s allegations, within approximately two hours after Biznesshosting provided Twombly with logon credentials, it began receiving complaints regarding spam electronic mail messages originating from its network. Defendants allegedly sent approximately 1 million spam electronic mail messages, followed several days later by another 1.5 million. The spam…