Court of Appeals for the Fifth Circuit

United States v. Burger

26-500110 citations·Filed March 19, 2026

Summary of the case United States v. Burger

James Wesley Burger was charged with three counts of transmitting threats in interstate commerce via the Roblox platform. The district court dismissed the indictment, ruling that Burger's statements were not 'true threats' under the First Amendment. The Fifth Circuit reversed this decision, requiring a trial to assess the government's evidence.

Key Issues of the case United States v. Burger

Whether Burger's statements constituted 'true threats' outside First Amendment protection
Sufficiency of evidence for transmitting threats in interstate commerce

Key Facts of the case United States v. Burger

Burger made threatening statements on Roblox using avatars 'Ghurabaah' and 'crazz3pain'
Statements were reported to the FBI by Roblox users in Pennsylvania and Nevada

Decision of the case United States v. Burger

Reversed and remanded

Opinions

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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit

_____________ FILED
March 19, 2026
No. 25-50976 Lyle W. Cayce
consolidated with Clerk
Nos. 25-51021 and 26-50011
_____________

United States of America,

Plaintiff—Appellant,

versus

James Wesley Burger,

Defendant—Appellee.
______________________________

Appeals from the United States District Court
for the Western District of Texas
USDC No. 1:25-CR-332-1
______________________________

Before Elrod, Chief Judge, and Smith and Wilson, Circuit Judges.
Per Curiam:
A grand jury charged James Wesley Burger with three counts of
transmitting threats in interstate commerce. The district court dismissed the
indictment, concluding that no reasonable juror could ﬁnd beyond a
reasonable doubt that Burger’s statements were “true threats” and thus
outside the protection of the First Amendment. Because a trial on the merits
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is necessary to evaluate the suﬃciency of the government’s evidence, we
reverse the district court’s order dismissing the indictment and remand.
I
We ﬁrst discuss the factual background of this case and then turn to
its procedural history. 1
A
The alleged threats in this case took place on Roblox, a popular online
gaming platform and game-creation system. Roblox is not a single game. It
is a platform that hosts millions of user-created “experiences,” which
include games, virtual worlds, and social spaces. Anyone can build
experiences on Roblox using its free development tool. Once built,
experiences can be joined by other users.
Some experiences involve strategy and contain tasks or goals. For
example, in an experience called “Grow a Garden,” players buy seeds, grow
plants, sell the plants, and, with the money, buy more seeds. Other
experiences have less of an objective but give users the opportunity to role-
play and be creative. For example, the “Courtroom Shenanigans”
experience is a courtroom simulator where each user is assigned a role:
prosecutor, defendant, witness, bailiﬀ, attorney, or jury member. A case is
presented in which the defendant is accused of something absurd, witnesses
testify, and attorneys present argument. The jury deliberates and votes on
whether the defendant is guilty or not guilty. Still other experiences involve
more earnest communication. In the “Up For Debate” experience, for

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1
The following recitation of facts assumes the truth of the allegations in the
indictment and reflects the evidence in the light most favorable to the government. See
United States v. Kay, 359 F.3d 738, 742 (5th Cir. 2004).

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example, two players are randomly assigned a topic and argue for or against
a proposal.
Roblox experiences share some fundamental features. First, each user
customizes an avatar. In Roblox, an avatar is a humanoid ﬁgure with a
cylindrical head, C-shaped hands, a block-shaped body, and a cartoon-like
facial expression. Users choose their avatars’ clothing, body parts, facial
expressions, gear, and accessories. Typically, when a user joins an
experience, his Roblox avatar spawns into the world, though developers can
override the user’s avatar with a custom character, force a custom style, hide
the avatar completely, or lock the camera to a ﬁxed perspective.
Second, the chat function. Experiences can enable either text chat or
voice chat for users. When a player types a message, that message appears in
a chat window, in a speech bubble above the avatar’s head, or both. The chat
bubbles disappear after being visible to nearby players for a few seconds.
Users can join a Roblox experience on a computer, mobile device, or
console such as an Xbox or PlayStation. The cross-platform availability
allows players on diﬀerent devices to join the same experiences. Partly
because of this, Roblox has a massive user base: Roblox reports 144 million
daily active users. Only 27% of Roblox users are 18 or older. 2
B
The statements at issue in this case took place in an experience called
“Church.” The Church experience was created in September 2017 and had
logged 20 million visits by the time of Burger’s arrest in February 2025.
Avatars entered a structure styled as a virtual church through a set of doors.
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2
Roblox Corp., Q4 2025 Shareholder Letter 1–3 (Feb. 5, 2026),
https://s27.q4cdn.com/984876518/files/doc_financials/2025/q4/Q4-2025-Shareholder-
Letter.pdf.

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Inside appeared rows of pews and a pulpit with a large cross on a wall facing
the entrance. In the church, avatars walked around and argued with each
other. This experience was not task-oriented; rather, avatars explored the 3-
D church and communicated with other users.
A user in the Church experience could use “Robux”—the game’s
virtual currency and the method by which developers monetize their
creations—to customize his avatar’s outﬁt and appearance. Users
customized their avatars’ appearances to align with their positions—
sometimes extreme or oﬀensive. Avatars in the Church experience included
skinheads arguing about race, balaclava-clad members of the Irish Republican
Army, Nazi S.S. oﬃcers denying the Holocaust, and avatars dressed in
Middle Eastern clothing debating the Koran and discussing violent jihadism.
It is unclear at this stage whether the typical Church player sincerely held the
views which he espoused in the experience.
C
In January 2025, James Wesley Burger was an 18-year-old high school
senior living in Round Rock, Texas, and a user of the Church experience. A
grand jury indicted Burger on three counts of transmitting threats in
interstate commerce. The charges were based on three statements that he
allegedly made in the Church experience during the month of January 2025.
First, on January 21, 2025, Burger, using an avatar that he named
“Ghurabaah,” stated:
Yes I have guns
Incase the authorities
Want to arrest me
When another avatar asked, “[W]hat are you g[o]nna do if they try?” Burger
responded:
I am ready

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To sacrifice my life
For my Rabb 3
Detonate what I’ve prepared
Of munitions
And use my firearms
To take many with me
Yes wish me luck
On the path of martyrdom
In’shaa’allah 4
A Roblox user in Pennsylvania saw these statements, captured screenshots
of them, and reported them to the FBI. According to the government, this
Roblox player was an experienced participant and had the ability to
diﬀerentiate between role-playing and serious expressions within the Church
experience. The government has represented that this tipster would be
available to testify at trial. This tipster was not a source for the FBI when he
reported the threat, but he has since become a source for the FBI. The record
does not contain the age of this tipster.
Second, two days after the ﬁrst alleged threat, Burger used a diﬀerent
avatar named “crazz3pain” to enter the Church experience. Burger
appeared alongside “xandersrange” (whom the government identiﬁes as an
ISIS supporter in Saudi Arabia) and “KardalAlli” (whom the government
identiﬁes as a Bosnian ISIS recruiter). The government has not pointed to
evidence showing that Burger knew who these avatars were outside the game
or where they lived. A Roblox user in Nevada reported to the FBI that
“crazz3pain” spoke about his desire to commit “martyrdom” at a Christian

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3
“Rabb” is an Arabic word referring to God as Lord.
4
“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 Mar. 19, 2026).

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event and that he wanted to “bring humiliation to worshippers of the cross.”
When the witness asked “crazz3pain” if it was going to be at a church
service, “crazz3pain” told the witness that it would be a Christian concert.
“Xandersrange” then asked how many days until “you do tha[t],” and
Burger responded:
It will be months
Shawwal
April
It will be a glorious wound
Upon their capitol
And deal a grievous wound upon the followers of the Cross
“Xandersrange” responded, “Akhi [brother], we will make dua [an appeal
or invocation] for u once u martyr,” “I[’]ll keep u in my prayers,” and
“InshaAllah [I’]ll follow after u.” Burger replied:
I cannot confirm anything aloud at the moment
But things are in motion
“Xandersrange” then turned to “KardalAlli” and said, “ALI MY
BROTHER IS ABOUT TO DO HIS ATTACK,” and Burger responded,
“Don’t delay yourselves too long brothers, Jannah [heaven] awaits us.”
According to the government, the Nevada Roblox user witnessed this
exchange and believed it to be a threat as opposed to trolling 5 or role-playing.
That witness reported these statements to the FBI, some of which were
captured in screenshots. The government has represented that this tipster
would be available to testify at trial. At the time that this witness reported

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5
In this context, to engage in “trolling” means “to antagonize (others) online by
deliberately posting inflammatory, irrelevant, or offensive comments or other disruptive
content.” Troll, Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/troll (last visited Mar. 19, 2026).

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Burger’s statements, the tipster was, like Burger, a senior in high school. The
record does not reﬂect whether this tipster was a minor at the time.
Third, a few days later, a keylogger that Burger’s uncle installed on the
computer that Burger used reported that Burger typed the following in the
Roblox application:
I’ve come to conclude it will befall the 12 of Shawwal
And it will be a music festival
Attracting bounties of Christians
In’shaa’allah we will attain martyrdom
And deal a grievous wound upon the followers of the Cross
Pray for me and enjoin yourself to martyrdom
The keylogger program captured only what was typed by Burger—not other
avatars. The record does not reﬂect what other avatars were with Burger, the
reaction, if any, to Burger’s statement, or the statements, if any, to which
Burger was reacting.
According to the government, “the 12 of Shawwal” means April 12,
2025. The government also contends that a Christian concert was scheduled
for April 12, 2025, in Austin. 6 An examination of Burger’s devices revealed
a number of disturbing internet searches, including, “Lone wolf terrorists
isis,” “Which month is april in islam,” “Festivals happening near me,” and
“what is the punishment for the one who insults allah or his messenger.”
Burger made some concerning statements during the 11 hours that
FBI agents spent at Burger’s house executing a search warrant. Burger
moved to suppress these statements under Miranda v. Arizona, 384 U.S. 436
(1966). The government did not oppose the motion, so all parties agree that
the statements cannot be used in the government’s case in chief. No party
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6
The government has not identified the performer at this concert or the venue at
which the concert occurred.

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has asserted that these statements are material to Burger’s motion to dismiss,
so we do not discuss them further.
D
A federal grand jury initially indicted Burger on two counts of violating
18 U.S.C. § 875(c). 7 Upon the indictment, the government sought pretrial
detention, urging that Burger constituted a ﬂight risk and a danger to the
community. A magistrate judge held a contested detention hearing and, after
agreeing with the government that Burger was a ﬂight risk and danger to the
community, ordered Burger detained pending trial. A superseding
indictment added a third count under § 875(c).
Burger moved to dismiss the indictment under Federal Rule of
Criminal Procedure 12, arguing, among other things, that the indictment
punished speech protected by the First Amendment. A week before the trial
setting, the district court orally granted Burger’s motion to dismiss and
ordered him released. The district court denied the government’s motion to
stay the dismissal. Two days later, the district court issued a written
dismissal order stating that a memorandum in support of the written order
would be forthcoming. The government ﬁled its ﬁrst notice of appeal that
same day, and Burger was released without conditions.
The government ﬁled an emergency motion with this court to stay the
district court’s dismissal and release orders. A motions panel
administratively stayed the orders for ten days to allow the district court to
provide its reasons for dismissal and produce hearing transcripts. The stay

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7
“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.” 18 U.S.C.
§ 875(c).

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did “not aﬀect any relief that the district court may provide pursuant to 18
U.S.C. § 3143.” 8
The government then moved for a hearing in the district court on
detention or conditions of release. Burger moved for release on personal
recognizance without a hearing. The district court granted Burger’s motion,
maintaining the status quo of his release without conditions. The district
court found that Burger “pose[d] no ﬂight or safety risk.” Via a second
notice of appeal, the government appealed that order, which the parties call
the “second release order.” See Fed. R. App. P. 9(a) (providing procedures
for appealing release orders prior to conviction).
Two weeks after dismissing the indictment, the district court issued a
written order stating its “essential ﬁndings” pursuant to Federal Rule of
Criminal Procedure 12(d). The court explained that Burger made his
statements “while playing an online video game, speaking as a character,
among other players who were similarly acting as characters in a virtual
Church.” The district court found that the statements lacked speciﬁcity and
were made in a “role-playing context” where individuals “engaged in role-
play,” including “trolling” and “intentionally engag[ed] in distasteful
debate.” The district court rejected evidence of Burger’s conduct outside of
Roblox as “irrelevant” because it was “unknown to any recipient of the
alleged threatening communications.”

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8
Title 18 U.S.C. § 3143(c) provides that “[t]he judicial officer shall treat a
defendant in a case in which an appeal has been taken by the United States under section
3731 of this title, in accordance with section 3142 of this title, unless the defendant is
otherwise subject to a release or detention order.” Section 3142 establishes the framework
for determining whether “a person charged with an offense” should be detained or
released, and if released, upon what conditions. See 18 U.S.C. § 3142(a). Courts look to
§ 3142 when determining whether a defendant should be released pre-trial.

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A motions panel administratively stayed the second release order and
expedited the case to this merits panel. The next day, we clariﬁed that
“nothing prohibits the government, in its discretion, from detaining the
defendant or from requesting that the district court impose conditions of
release pursuant to 18 U.S.C. § 3143.” In other words, we clariﬁed that the
parties could continue to litigate the issue of detention in district court.
To secure Burger’s detention, the government sought a warrant for
Burger’s arrest in district court. Burger, in turn, moved to vacate or modify
the magistrate judge’s original detention order, which the parties agreed was
the operative order, given that we had stayed the district court’s order
dismissing the indictment and its “ﬁrst” and “second” release orders. A
diﬀerent magistrate judge scheduled a hearing on the government’s motion
for an arrest warrant and Burger’s motion to revoke the detention order.
At the hearing on December 29, 2025—which the district judge
conducted—the district court issued its “third release order,” ordering
Burger released with strict conditions, including home detention, GPS
monitoring, a prohibition on ﬁrearm access, and a requirement to attend
counseling. 9 The government did not ﬁle a notice of appeal of the third
release order.
II
The government argues that the district court erred in dismissing the
superseding indictment because whether Burger’s statements were “true
threats” could not properly be resolved pretrial under Rule 12. The

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9
At that hearing, the government argued that the district court lacked jurisdiction
to issue a new release order because the government had appealed the prior release order.
The district court rejected that argument as do we.

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government asserts that the district court improperly resolved disputed
questions of fact and did so on an incomplete record. We agree.
A
The First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech.” U.S. Const. amend. I. But
“[f]rom 1791 to the present,” the First Amendment has “permitted
restrictions upon the content of speech in a few limited areas.” United States
v. Stevens, 559 U.S. 460, 468 (2010) (quoting R.A.V. v. City of St. Paul, 505
U.S. 377, 382–83 (1992)). One such category of unprotected speech is “true
threats.” Virginia v. Black, 538 U.S. 343, 359 (2003). “True threats” are
“those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.” Id.
A statement is a “true threat” when: (1) “an objectively reasonable
person would interpret the speech as a serious expression of an intent to
cause a present or future harm”; and (2) “the speaker was subjectively aware
of [the statement’s] threatening nature.” United States v. Jubert, 139 F.4th
484, 490–91 (5th Cir. 2025) (quoting Porter v. Ascension Par. Sch. Bd., 393
F.3d 608, 616 (5th Cir. 2004)). “The speaker need not actually intend to
carry out the threat.” Black, 538 U.S. at 359–60. Rather, “a prohibition on
true threats ʻprotect[s] individuals from the fear of violence’ and ʻfrom the
disruption that fear engenders,’” in addition to “protecting people ʻfrom the
possibility that the threatened violence will occur.’” Id. at 360 (quoting
R.A.V., 505 U.S. at 388).
The “true threats” category of unprotected speech (or at least its
nomenclature) originated in Watts v. United States, 394 U.S. 705 (1969).
There, a young Vietnam War protestor stated to a small crowd, “If they ever
make me carry a riﬂe the ﬁrst man I want to get in my sights is L.B.J.” Id. at

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706. The Supreme Court held that the context demonstrated that the
statement was “political hyperbole”—in other words, a “very crude
oﬀensive method of stating a political opposition to the President.” Id. at
708. The statement was made “during a political debate,” was “expressly
made conditional upon an event—induction into the Armed Forces—which
[Watts] vowed would never occur,” and “both [Watts] and the crowd
laughed after the statement was made.” Id. at 707.
So, to be a “true threat,” the statement, “when taken in context,”
must convey a real possibility that violence will follow. Counterman, 600 U.S.
at 74. This distinguishes a “true threat” from jests or hyperbole. Id.
Further, the speaker must be “aware ʻthat others could regard his statements
as’ threatening violence and ʻdeliver[] them anyway.’” Id. at 79 (quoting
Elonis v. United States, 575 U.S. 723, 746 (2015) (Alito, J., concurring in part
and dissenting in part)). In short, when it comes to the true-threats analysis,
“context is critical.” Bailey v. Iles, 87 F.4th 275, 285 (5th Cir. 2023). For
example, a statement in a play or a movie might reasonably be viewed
diﬀerently from the same statement left in a voicemail by a masked number.
See Black, 538 U.S. at 366. Another part of this context is how particularly
the alleged threat identiﬁes a time, place, and target. But a threat’s lack of
particularity is relevant only insofar as it tends to negate an assertion that an
objectively reasonable listener would conclude that threatened violence will
occur. See United States v. Perez, 43 F.4th 437, 443–44 (5th Cir. 2022).
B
Federal Rule of Criminal Procedure 12 governs pre-trial motions in a
criminal case. Rule 12(b)(1) provides that a party may raise by pre-trial
motion any defense that “the court can determine without a trial on the
merits.” A defense is “capable of determination” without a trial on the
merits “if trial of the facts surrounding the commission of the alleged oﬀense

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would be of no assistance in determining the validity of the defense.” United
States v. Covington, 395 U.S. 57, 60 (1969). 10 So, in this circuit, “[t]he
propriety of granting a motion to dismiss an indictment under [Rule] 12 by
pretrial motion is by-and-large contingent upon whether the inﬁrmity in the
prosecution is essentially one of law or involves determinations of fact.”
United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005). And a court may
not grant a motion to dismiss “on the ground that the allegations are not
supported by adequate evidence, for an indictment returned by a legally
constituted and unbiased grand jury, if valid on its face, is enough to call for
trial of the charge on the merits.” United States v. Mann, 517 F.2d 259, 267
(5th Cir. 1975) (citing Costello v. United States, 350 U.S. 359, 363 (1956)).
C
A trial on the merits is necessary to determine whether Burger’s
statements were true threats. Whether a statement is a true threat is
generally a question for the jury. See United States v. Daughenbaugh, 49 F.3d
171, 173 (5th Cir. 1995) (“Guided by instructions . . . removing protected
speech from the deﬁnition of ʻthreat,’ the jury is to determine the nature of
the subject communication.”) (footnote omitted) (citing United States v.
Malik, 16 F.3d 45 (2d Cir. 1994)). In other words, whether Burger’s
statements are true threats is a fact issue. And “[t]here is no authority under
Rule 12 . . . to dismiss on the basis of a suﬃciency-of-the evidence defense

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10
The relevant provision of Rule 12 remains substantially unchanged since
Covington. Compare Fed. R. Crim. P. 12(b)(1) (1944) (“Any defense or objection which is
capable of determination without the trial of the general issue may be raised before trial by
motion.”), with Fed. R. Crim. P. 12(b)(1) (2025) (“A party may raise by pretrial motion
any defense, objection, or request that a court can determine without a trial on the
merits.”). “No change in meaning” was intended by substituting the “more modern
phrase ‘trial on the merits’” for the “more archaic phrase ‘trial of the general issue.’”
Fed. R. Crim. P. 12, adv. comm. note (2014).

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which raises factual questions embraced in the general issue.” Mann, 517
F.2d at 267.
1
Only two cases from the Supreme Court, both over 50 years old,
delineate the outer bounds of Rule 12. In Covington, the Supreme Court
addressed whether a defense of self-incrimination to a Marihuana Tax Act
prosecution could be properly resolved on a Rule 12 motion. 395 U.S. at 60.
The Court noted that a defense is “capable of determination without the trial
of the general issue” if “trial of the facts surrounding the commission of the
alleged offense would be of no assistance in determining the validity of the
defense.” Id. The Court held that the “question whether the defendant
faced a substantial risk of incrimination is usually one of law which may be
resolved without reference to the circumstances of the alleged offense.” Id.
(emphasis added). By contrast, more fact-bound questions like “waiver” of
are more frequently “suitable for trial together with the ‘general issue.’” Id.
In United States v. Knox, the defendant was indicted for “knowingly
and willfully understat[ing] the number of employees accepting wagers on his
behalf.” 396 U.S. 77, 78 (1969). The defendant argued that, had he filed a
truthful report, he would have incriminated himself under Texas wagering
laws, but that if he had failed to file a report at all, he would have subjected
himself to federal criminal prosecution. Id. at 81. He contended that a third
alternative, submission of a fraudulent form, was the “least of three evils”
and that he pursued that option “under a form of duress that allegedly [made]
his choice involuntary for purposes of the Fifth Amendment.” Id. The Court
held that “the question whether Knox’s predicament contains the seeds of a
‘duress’ defense, or perhaps whether his false statement was not made
‘willfully,’” was “one that must be determined initially at his trial,” rather
than on a Rule 12 motion to dismiss. Id. at 83. “[E]videntiary questions of

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this type,” the Court reasoned, “should not be determined on such a
motion.” Id. at 83 n.7.
Precedent on the propriety of Rule 12 motions is sparse in our circuit
as well. In Flores, we addressed whether 18 U.S.C. § 922(g)(5)’s prohibition
of those “illegally or unlawfully in the United States” from owning guns
included aliens who “entered the country illegally and subsequently qualified
for temporary treatment benefits under 8 U.S.C. § 1254a.” 404 F.3d at 326.
Because all questions of fact were undisputed, that case was properly decided
at the motion-to-dismiss stage. See id. at 324–25 & n.5 (noting that the “sole
question” in the case was a “legal question of statutory interpretation” and
that the essential facts were “uncontested”).
Mann is also instructive. There, the defendant was charged with
“knowingly and willfully” misapplying funds of the bank that he ran “with
intent to injure and defraud.” 517 F.2d at 262. At the hearing on the motion
to dismiss, the defendant introduced evidence, much of which came from the
government’s files. Id. at 265. That evidence, the defendant contended,
showed that he did not act “willfully” because it showed that he did not have
knowledge that the transaction at issue was prohibited by law. Id. at 267. But
we held that the district court erred when it considered the evidence because
courts have no authority “to dismiss on the basis of a sufficiency-of-the-
evidence defense which raises factual questions embraced in the general
issue.” Id. (quoting Brown, 481 F.2d at 1041). We also noted that the
Supreme Court has “specifically held, in reversing a district court’s dismissal
of an indictment, that willfullness is an ‘evidentiary question’ that should not
be determined in a Rule 12(b) proceeding.” Id. (citing Knox, 396 U.S. at 83
n.7).

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2
Here, there are disputed facts bearing on whether Burger’s statements
were true threats—that is, whether Burger “consciously disregarded a
substantial risk that his communications would be viewed as threatening
violence,” Counterman, 600 U.S. at 69, and “an objectively reasonable
person would interpret the speech as a serious expression of an intent to
cause a present or future harm,” Jubert, 139 F.4th at 490 (quoting Porter,
393 F.3d at 616).
In its opinion, the district court resolved contested factual issues in
concluding that no rational juror could find that Burger was subjectively
aware of the threatening nature of his communications. In Mann, we
expressly disapproved of a district court’s considering evidence tending to
rebut an allegation of willfulness, a subjective mental state, at the
motion-to-dismiss stage. 517 F.2d at 266–67. That was so even though much
of the documentary evidence came from the government’s files. Id. at 265.
The district judge similarly erred by resolving contested factual issues
in the objective inquiry. The district judge held that there was “no showing
that Mr. Burger recklessly disregarded the risk that other online characters,
also playing a game, would see his ﬁctional character’s statements and
understand them to be a true threat.” But, according to the government,
another Roblox user did see the statements underlying Count One 11 and
reported the threat to the FBI. A second Roblox user witnessed the
statements underlying Count Three, 12 believed them to be true threats, and
_____________________
11
“It will be months / Shawwal / April / It will be a glorious wound / Upon their
capitol / And deal a grievous wound upon the followers of the Cross”
12
“I have guns / Incase the authorities want to arrest me / I am ready / To sacrifice
my life for my Rabb / Detonate what I’ve prepared / Of munitions / And use my firearms
/ To take many with me / Yes wish me luck / On the path of martyrdom / In’shaa’allah.”

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reported them to the FBI. Given the similar tenor of the statement in Count
Two, 13 the users’ understanding of the seriousness of Burger’s statements
could be similarly probative for that count. The reactions of the recipients of
a threat can be useful in determining whether an objectively reasonable
person would interpret a statement as a threat. See Daughenbaugh, 49 F.3d
at 173–74 (noting the relevance of a victim’s “extra security measures” in
the wake of a threat).
This analysis also aligns with important persuasive authority: the
Tenth Circuit’s opinion in United States v. Pope, 613 F.3d 1255 (10th Cir.
2010), which other circuits have endorsed as well. 14 That opinion, authored
by then-Judge Gorsuch, explained that “[t]o warrant dismissal, it must be
clear from the parties’ agreed representations about the facts surrounding the
commission of the alleged oﬀense that a trial of the general issue would serve
no purpose.” Id. at 1261 (emphasis in original). Even “latent factual disputes
over circumstances surrounding the commission of the alleged oﬀense can
sometimes prevent pretrial determination of a defense.” Id. (emphasis in
original) (citing United States v. Reed, 114 F.3d 1067, 1070 (10th Cir. 1997)).
Here, the district court’s ﬁndings resolved a disputed factual
question: whether the context of the Church experience would lead a
reasonable player to believe that Burger was role-playing rather than
expressing a sincere intent to commit violence. Given that the district
court’s dismissal of each count depended on the “role-playing context” of
_____________________
13
“I’ve come to conclude it will befall the 12 of Shawwal / And it will be a music
festival / Attracting bounties of Christians / In’shaa’allah we will attain martyrdom / And
deal a grievous wound upon the followers of the Cross / Pray for me and enjoin yourself to
martyrdom”
14
See, e.g., United States v. Sampson, 898 F.3d 270, 282–84 (2d Cir. 2018); United
States v. Grubb, 135 F.4th 604, 607 (8th Cir. 2025). Burger neither cites Pope nor explains
why we should not follow its reasoning.

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the Church experience, the testimony from the tipsters would at the very
least “provide a more certain framework for [the district court’s] analysis.”
Pope, 613 F.3d at 1259 (internal quotation marks omitted).
United States v. O’Dwyer, 443 F. App’x 18 (5th Cir. 2011), an
unpublished and non-binding decision, is not to the contrary. There, a
bankruptcy debtor e-mailed his bankruptcy judge imploring him to authorize
payment for the debtor’s anti-depressant medication from his Social Security
check. Id. at 19. He stated:
Maybe my creditors would benefit from my suicide, but
suppose I become “homicidal”? Given the recent “security
breach” at 500 Poydras Street [the Eastern District of
Louisiana courthouse], a number of scoundrels might be at risk
if I DO become homicidal. Please ask His Honor to consider
allowing me to refill my prescription at Walgreen’s, and
allowing me to pay them, which is a condition for my obtaining
a refill. Please communicate this missive to creditors and their
counsel. Thank you.
Id. at 19–20. We aﬃrmed the district court’s dismissal of the indictment.
However, O’Dwyer does not contain any reference to testimony that would
shed light on the context of these communications, and such context appears
to have been agreed. See id. at 20 (noting O’Dwyer’s “documented history
of using coarse and hyperbolic language”).
Here, the correct characterization of the context is disputed. While
the parties to this case agree Burger made his statements in the Church
experience, they disagree as to how that context aﬀects the “true threats”
analysis—and that analysis would be materially incomplete without further
evidence, particularly the testimony of the two tipsters. See United States v.
Rodriguez-Rivera, 918 F.3d 32, 35 (1st Cir. 2019) (noting that “[n]o circuit”
allows dismissal under Rule 12 “on an incomplete or disputed factual
record”).

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Burger’s argument that a trial on the merits was unnecessary boils
down to his assertions that “[n]either the statements themselves nor their
context were disputed” and that “[t]here is no dispute about what Roblox
is.” We disagree that the context is undisputed and hold that a trial on the
merits is necessary to evaluate whether a reasonable jury could ﬁnd that
Burger’s statements were true threats. Indeed, speaking on Roblox, or
similar platform, does not categorically immunize someone from the criminal
code. Accordingly, we REVERSE the district court’s order dismissing the
indictment and REMAND for further proceedings.
III
The government separately appealed the district court’s
December 14, 2025 order, which provided that Burger was to be released
pending his trial without conditions. But on December 29, 2025, the district
court conducted a bond hearing and issued an order that imposed conditions
of release on Burger, including home detention, GPS monitoring, a
prohibition on ﬁrearm access, and a requirement to attend counseling. So “it
is impossible for [us] to grant any eﬀectual relief” as it pertains to the
December 14 order. United States v. Heredia-Holguin, 823 F.3d 337, 340 (5th
Cir. 2016) (en banc). Accordingly, we DISMISS that appeal as moot. 15
IV
The government has requested that this case be reassigned to a
different district judge on remand. We decline to exercise our
“extraordinary” and “rarely invoked” power to reassign. United States v.
Khan, 997 F.3d 242, 248 (5th Cir. 2021) (quoting Miller v. Sam Houston State
Univ., 986 F.3d 880, 892 (5th Cir 2021)). We address each exchange that the
_____________________
15
The government did not appeal the December 29 order setting conditions of
release.

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government points to. As in the “true threats” analysis above, “context is
critical.” See supra at 12. So we reprint the full exchanges of which the
government complains.
A
First, at the hearing on Burger’s motion to dismiss, the district judge
noted that “if [he] were on the jury, [he] would acquit [Burger],” and “[i]f
[the district judge] were a finder of fact, [he] would acquit [Burger].”
THE COURT: Assuming that the statute is constitutional,
I’m not sure why it would be me at this procedural juncture
who would -- the First Amendment applies to the statute. I’m
not sure how it applies -- I’m not sure I’m to make the decision
right now with regard to whether or not these particular
statements are sufficiently protected under the First
Amendment. That’s all that’s troubling me right now is --
[DEFENSE COUNSEL]: Okay.
THE COURT: I’m very sympathetic to everything that
you’ve said. I’ll tell you if I were -- I mean, if we go to trial, the
jury would never know this, but if I were on the jury, I would
acquit him. So that’s -- my question is whether or not that’s
my job -- that’s something I do now and say it’s the First
Amendment or do I let it go to the jury and they’re the arbiters
of whether or not it’s a real threat. Rule 29 maybe, but
that’s -- and, look. I’m not -- I’ve done this a long time and I
can’t get fired. So I’m not afraid to -- you know, to rule either
way. I want to get -- I want to do this the right procedural way.
And so give me whatever you can -- whatever comfort you can
before the government argues because they’re not going to pop
up and say, oh, well, you -- he didn’t tell you that, you know,
your defendant said this and that, you know. I mean, I’ve read
everything -- I know everything he said. And knowing
everything he said, like I said, were I -- if I -- were I a finder of
fact, I would acquit him. I’m struggling with whether or not I

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should dismiss the case under First Amendment as you are
asking me to do now.
Second, at the same motion-to-dismiss hearing, the district judge made
a comment about “selective prosecution”:
THE COURT: [T]he other thing that seems to buttress
you -- and I want to hear from the government -- is that this
wasn’t someone -- he wasn’t someone who was on a campus
making comments that were not directly targeting someone but
maybe were related to a group or something which we’ve seen
recently. This was on a game site where what was being said
was within the context of what people -- a lot of people are
saying on the game site. That -- it’s a little -- again, I’m a little
worried -- wondering how the government found him. Given
the cesspool, my sense is that this website is -- and I’m -- you
know, I think you could probably have an argument too about
selective prosecution about -- of him when my guess is with a
little elbow grease, they could find a dozen people who said
equally vile things.
Third, at the December 29 hearing regarding Burger’s conditions of
release pending appeal, the district judge expressed frustration that, were this
court to reverse and remand, there would be an “impossible trial” if Burger
were to testify in his own defense due to the statements suppressed under
Miranda. See supra at 8. 16 At the hearing, to support its position that Burger
was a danger to the community, the government moved to introduce portions
of Burger’s interrogation that the district court had suppressed after the

_____________________
16
Defense counsel represented at a prior hearing that Burger will not testify in his
defense. Of course, Burger has the right to change his mind. See, e.g., Brooks v. Tennessee,
406 U.S. 605, 610–11 (1972). And the right to testify belongs to Burger himself—his
“lawyer cannot waive it over his objection.” United States v. Mullins, 315 F.3d 449, 454
(5th Cir. 2002).

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government elected to not oppose Burger’s motion to suppress under
Miranda:
[PROSECUTOR]: Exhibit 27, your Honor, Exhibit 27 through
33 are clips of the defendant’s interview. I’m not sure if the
we’re moving --
THE COURT: The interview that doesn’t exist?
[PROSECUTOR]: Well, the interview, your Honor, I would
respectfully disagree. The interview exists.
THE COURT: The interview you didn’t even fight me
suppressing?
[PROSECUTOR]: Your Honor, we would say it still goes to
the defendant’s --
THE COURT: The interview where you violated his
constitutional rights so much so that you didn’t even fight the
motion to suppress?
[PROSECUTOR]: Your Honor, we believe it was a voluntary
interview. We did not give --
THE COURT: You didn’t even respond to the motion to
suppress.
[PROSECUTOR]: Your Honor, we did respond to the motion
to suppress. 17
THE COURT: You didn’t -- we can go semantically here.
When I had a hearing on it, you didn’t fight -- I’m not going to
-- I’m not going to -- you are making the record for why I think
this would be such an impossible trial is you have information
_____________________
17
In response to Burger’s motion to suppress, the government filed a notice that it
would not use Burger’s statements in its case in chief, thus mooting the motion to suppress.
The government reserved the right use the statements as impeachment evidence should
Burger testify. See Harris v. New York, 401 U.S. 222, 222-26 (1971) (holding that evidence
suppressed under Miranda may still be used to impeach a testifying defendant). Like the district
court, we have no occasion to decide whether the FBI agents violated Miranda.

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that had your agents acted appropriately when they
interviewed him might or might not be admissible. They -- you
have given up on that.
You can’t defend their conduct and so, you’ve introduce -- I
want to make this clear so the Fifth Circuit has the entire
picture of -- look, whatever the Fifth Circuit says for me to do,
I’m going to do. You know, I am an inferior court. But I do
want the Fifth Circuit to understand that in this unique case,
because of the conduct of the FBI in the way they interviewed
this defendant, I foresee enormous problems in providing a fair
trial to him because what you just said.
Yeah, I get he said it, but he said it in the context of being
interviewed for hours and hours without counsel there and,
therefore, they’re constitutionally infirm. And so, when you
go to trial in my opinion -- look, I’m unhappy about everything
you’ve shown me. It disturbs me at a level -- obviously at my
level, too, but you know, in trying to guarantee the defendant’s
constitutional rights to a fair trial and everything that the
Constitution provides, I just want to be as clear as I can make it
when this goes up immediately after this hearing or down the
road that I don’t know how it will be possible to really give this
defendant a fair trial given the background of it and the conduct
by the agents.
At any time, in my opinion, you have thwarted the defendant’s
ability to take the witness stand or you’ve certainly prejudiced
it because if he gets on the witness stand and says something
that you, the government believe is inconsistent with the, how
long is it, 12 hours he was interviewed without counsel there, if
he says something inconsistent with what he said then, then the
Court has to decide whether or not to admit that statement
because it’s an inconsistent statement. Then the Court has to
decide how to let the jury know that it was a statement that was
made maybe in the 10th hour of an interview that the Court
found shouldn’t be admitted and, therefore, how valuable is the
statement in terms of impeaching him.

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So I want to express my frustration in terms of coming up with
a fair result here, all of that, and the fact that you would try as
part of his detention hearing to try and introduce this
information that the government did not fight over whether or
not a motion to suppress should be granted underscores to me
the problem that this case has, and I want to make sure the Fifth
Circuit understands if -- whatever they do, if they say I was
wrong to dismiss the indictment, they’re the superior court and
I will faithfully execute a trial and do the best that I can to try
and protect the defendant’s constitutional rights and to make
sure the government can put on a fair case.
Fourth, the government complains of a comment the district judge
made to the prosecutor at the same bond hearing. The government argued
for pre-trial detention at the hearing, but in the alternative proposed a list of
conditions that included prohibiting Burger from attending “any organized
religious gatherings.” Burger’s grandfather testified at the hearing that
Burger had been attending church weekly with him. When announcing
Burger’s conditions of release at the end of the hearing, the following
exchange occurred:
[THE COURT:] One of the things you said -- one of the
conditions you said was that he should not be allowed into any
religious facility. Would the government oppose the defendant
from being able to attend church if it was in the company of his
grandfather while he was there?
[PROSECUTOR]: Yes, your Honor, given the fact he wanted
to attack a church, we don’t believe it would be a safe thing to
allow.
THE COURT: You know, sometimes I just ask questions to
measure the credibility of counsel and everything that they say.
Sometimes those answers make me happy and sometimes they
disappoint me. I’ll let you figure out which case that was with
your answer.

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Fifth, the district judge said “I don’t care” in response to a statement
by the government. As explained above, we issued an order stating that
“nothing prohibits the government, in its discretion, from detaining the
defendant or from requesting that the district court impose conditions of
release.” Before the hearing, the government filed a document noting its
position that the district court lacked jurisdiction to impose conditions of
release. The following exchange occurred at the outset of the hearing:
THE COURT: Let me tell you the way I interpret this. The
way I interpret this is that the Fifth Circuit is making clear that
the government despite the order that I entered dismissing the
case because that’s been stayed, the Fifth Circuit is making it
clear that the government has the right to come in and ask for
the defendant to be detained. I also read this order to say that
the Fifth Circuit isn’t in the business of determining whether
or not he should be detained. That’s up to the district court,
which makes complete sense to me. And that if I -- I can choose
to grant the government’s motion to detain or I can allow the
defendant to not be detained as long as I impose the appropriate
conditions of release. That’s the way I read the order.
So since it’s the government’s motion to detain, I will start
with the government.
[PROSECUTOR]: Your Honor, the government reads that
order differently than the Court does.
THE COURT: Okay. I don’t care. But again, you need to state
your name every time you step up.
[PROSECUTOR]: Yes, your Honor. Keith Henneke
appearing on behalf of the United States.
THE COURT: Okay. We’re here on your motion. I’m happy
to hear your motion.
[PROSECUTOR]: Our motion was for arrest warrant, your
Honor, based on the Fifth Circuit’s orders --

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THE COURT: Okay. I don’t --
[PROSECUTOR]: We don’t believe the Court has
jurisdiction to --
THE COURT: Well, I disagree with you. Let me make this
clear as I can --
[PROSECUTOR]: May I be heard, your Honor?
THE COURT: I don’t need to -- no. I don’t need to -- you’re
welcome to say whatever you want. I have the jurisdiction to
make this decision based on this order and that’s what I’m
going to find. Go ahead and say whatever you care to.
The district judge then let the government make its argument that the district
court lacked jurisdiction to order conditions of release because it was
Burger—not the government—who was asking for conditions in lieu of
detention.
B
We decline to reassign because “[t]he standard for reassignment
presents a high hurdle,” and we hesitate to exercise this “extraordinary”
power. See United States v. Stanford, 883 F.3d 500, 516 (5th Cir. 2018). 18

_____________________
18
Very recently, in United States v. Johnson, No. 25-60479, 2026 WL 625927, at *1
(5th Cir. Mar. 5, 2026), we summarized the tests that this court uses to decide whether to
reassign a case on remand:
We have employed two tests “while expressly declining to adopt one test or the
other.” In re DaimlerChrysler Corp., 294 F.3d 697, 701 (5th Cir. 2002). Under the first
test, we consider three factors: (1) “whether the original judge would reasonably be
expected upon remand to have substantial difficulty” in putting aside his previously
expressed but inappropriate views; (2) “whether reassignment is advisable to preserve the
appearance of justice”; and (3) “whether reassignment would entail waste and duplication
out of proportion to any gain in preserving the appearance of fairness.” Johnson v. Sawyer,
120 F.3d 1307, 1333 (5th Cir. 1997) (citations omitted). For the second test, we ask if there
is actual bias or an objective appearance of bias. See M.D. ex rel. Stukenberg v. Abbott, 119
F.4th 373, 386 (5th Cir.), cert. denied, 146 S. Ct. 99 (2025).

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The district judge may have been able to make his points and ask his
questions without stating that he would acquit if he were on the jury. And he
may have noted his concerns with the FBI’s interrogation without
characterizing any future trial as “impossible.” But “expressions of
impatience, dissatisfaction, annoyance, and even anger” are “within the
bounds of what imperfect men and women, even after having been confirmed
as federal judges, sometimes display.” Liteky v. United States, 510 U.S. 540,
555–56 (1994). They do not establish “bias or partiality.” Id.
We trust that the district judge will set aside his view that “if [he] were
on the jury, [he] would acquit [Burger],” especially when determining the
legal sufficiency of the evidence to support the jury verdict should Burger be
convicted at trial. We take the district judge at his word that he “will
faithfully execute a trial and do the best that [he] can to try and protect the
defendant’s constitutional rights and to make sure the government can put
on a fair case.” We “will not assume the worst, nor would an objective
observer.” Willey v. Harris Cnty. Dist. Att’y, 27 F.4th 1125, 1137 (5th Cir.
2022).
V
For the foregoing reasons, we REVERSE the district court’s order
dismissing the indictment and REMAND for further proceedings
consistent with this opinion.
The appeal of the district court’s order of release pending appeal is
DISMISSED AS MOOT.
The motion to consolidate appeals is GRANTED.
All other pending motions are DENIED AS MOOT.
The mandate shall issue forthwith.