United States v. Anderson

• Decision Date: 25 August 2022
• Docket Number: 20-50207
• Citation: 46 F.4th 1000
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jacqueline ANDERSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

46 F.4th 1000

UNITED STATES of America, Plaintiff-Appellee,

v.Jacqueline ANDERSON, Defendant-Appellant.

No. 20-50207

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2021 Pasadena, California

Filed August 25, 2022

Gia Kim (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California, for Defendant-Appellant.

David R. Friedman (argued), Assistant United States Attorney; Bram M. Alden, Chief, Criminal Appeals Section; Tracy L. Wilkison, Acting United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

Before: William A. Fletcher, Johnnie B. Rawlinson, and John B. Owens, Circuit Judges.

Opinion by Judge Rawlinson ;

Dissent by Judge W. Fletcher

RAWLINSON, Circuit Judge:

We readily acknowledge that 18 U.S.C. § 115 is not a model of legislative clarity. However, that is nothing new. See, e.g., United States v. Lucero , 989 F.3d 1088, 1096 (9th Cir. 2021) (describing the Clean Water Act as "not the most artfully drafted"); see also In re HP Inkjet Printer Litig. , 716 F.3d 1173, 1181 (9th Cir. 2013) (noting the "bewildering wording" of the Class Action Fairness Act) (citation and internal quotation marks omitted). We are not the first court to find the statutes and cross-references of issue here to be unclear. See United States v. Wynn , 827 F.3d 778, 783 (8th Cir. 2016) (describing § 115 as a "strangely-worded statute"). But the lack of clarity does not negate our obligation to ascertain the intent of Congress in enacting the statute.¹ Having done so, we conclude that the district court correctly included a Protective Security Officer (PSO) within the persons covered under the provisions of § 115, and AFFIRM the judgment of conviction.²

I. Background

Defendant Jacqueline Anderson (Anderson) was convicted of violating 18 U.S.C. § 115(a)(1)(B) by threatening a person assisting federal officers and employees. Anderson threatened to kill PSO Justin Bacchus (PSO Bacchus) while he was on duty at the Long Beach Social Security Office (Social Security Office). We have jurisdiction to review Anderson's appeal under 28 U.S.C. § 1291.

A. The Incident and The Indictment

At all times relevant to this case, PSO Bacchus was an employee of a private company that has been contracted by the Federal Protective Service (FPS) to "provide security services at government-owned and leased properties." FPS is the federal agency responsible for protecting federal buildings. Given the sheer number of facilities within its jurisdiction, FPS relies on contractors to protect facilities that it does not have the capacity to cover.

On a typical day, the Social Security Office tasks three PSOs with screening and processing the office's visitors. The first PSO is stationed outside the main entrance and is responsible for directing visitors to either the "appointment" or "general information" line. The second PSO is assigned to screen and check bags for prohibited items. The third PSO is stationed at the metal detector to ensure that no weapons are brought into the office. The three PSOs rotate through these positions throughout the day.

On the morning of December 12, 2018, PSO Bacchus was outside, screening and processing visitors to the Social Security Office. Anderson arrived at the Social Security Office just before 11:15 that morning. She approached PSO Bacchus and informed him that she had an appointment. When PSO Bacchus was unable to verify that Anderson had an appointment, he directed her to the "general information" line.

PSO Bacchus' response angered Anderson. She became aggressive, and her voice "got louder." Initially she refused to move; but eventually, went to the back of the line as directed.

Shortly thereafter, an older man approached PSO Bacchus. The man did not have an appointment either, so PSO Bacchus instructed him to go to the back of the "general information" line as well. Despite PSO Bacchus' instruction, moments later, the man was near the front of the line with Anderson. Because PSO Bacchus knew that the man "didn't go to the back of the line and make his way to the front that quickly," he decided to approach the man. However, Anderson "jumped in the conversation and told [PSO Bacchus that the man] didn't have to go anywhere." She continued: "I don't give a f*** about you or none of these illegal Mexicans," and that she didn't "care about the rules of the Social Security Administration." She then turned to PSO Bacchus and said, "F*** you, b**** a** n****."

PSO Bacchus informed Anderson that her behavior was "becoming a problem for the other people in line" and that she "cannot be speaking like that." Anderson had become so "loud[ ]" and "unruly" that PSO Kraft came outside to help PSO Bacchus de-escalate the situation. Despite the PSOs' attempts at de-escalation, Anderson persisted in "[c]ursing, getting loud, and just being very, like, aggressive in her manner." Ultimately, PSO Bacchus decided that, given Anderson's behavior, he could not allow her into the building.

When PSO Bacchus informed Anderson that she would not be allowed into the Social Security Office and would have to come back the next day, Anderson became "[v]ery upset." She blocked the door to the Social Security Office and refused to leave. Rather than moving Anderson—and to avoid further escalating the situation—PSO Kraft decided to open another door to allow visitors to enter and exit. As Anderson continued to block the entrance, she told PSO Bacchus that she "would not move" and that she didn't "care about [his] job and she'll get [his] black a** fired."

When PSO Whiteside came outside to help PSOs Bacchus and Kraft diffuse the situation and spoke to Anderson, she once again "yelled" and cursed. After PSO Whiteside went back inside, Anderson continued to block the door.

Eventually, Anderson turned toward her car to leave the Social Security Office. But as she walked away, she told PSO Bacchus: "I'm going to go to my car and get my gun and blow your f***ing brains out."

Anderson's tone was "loud" and made PSO Bacchus feel "threatened," "afraid," and "like she might carry out the action." Wanting to "make sure [he] heard what was said to [him]," PSO Bacchus responded, "Excuse me?" "What did you say?" Anderson continued toward her car and replied, "You heard me."

PSO Bacchus immediately informed PSOs Kraft and Whiteside that Anderson had threatened him. PSO Bacchus "felt scared" and "feared for [his] life." He was also concerned about the "other people in line based off ... what she said about illegal immigrants." Consequently, the PSOs decided to leave their posts and follow Anderson to her car. They planned to detain her, or at the very least, get her license plate number so they could report the threat.

Although Anderson drove away in a "[f]ast, aggressive" manner before the PSOs were able to detain her, they recorded her license plate number. They also reported the incident, and "stayed on alert" for "two or three days."

After an investigation by FPS, Anderson was charged in a single count indictment with threatening a person assisting federal officers and employees in violation of § 115(a)(1)(B). The indictment alleged that Anderson:

knowingly threatened to assault and murder victim [PSO Bacchus], a Protective Security Officer employed by Paragon Systems, assisting officers and employees of the United States Social Security Administration ("SSA") in the Long Beach, California field office, with the intent to impede, intimidate, and interfere with victim [PSO Bacchus] while victim [PSO Bacchus] was engaged in, and on account of, the performance of official duties, and with the intent to retaliate against victim [PSO Bacchus] on account of the performance of official duties.

B. The Trial

During trial, PSOs Bacchus, Kraft and Whiteside all testified on behalf of the government about their interaction with Anderson. Anderson did not call any witnesses, but moved under Federal Rule of Criminal Procedure 29 (Rule 29 ) for judgment of acquittal on the basis that PSO Bacchus is not an "official" for the purposes of § 115(a)(1)(B). She contended that "[t]he only evidence put on during the government's case [wa]s that a threat was made toward a private security guard in the employ of Paragon Systems."

The district court declined to rule on the motion until after the jury returned its verdict. Meantime, the jury was instructed that:

The second element the government must prove beyond a reasonable doubt is that, at the time the threat was made, Protective Security Officer Bacchus was a federal official.

A "federal official" includes officers and employees of the United States and any person assisting an officer or employee of the United States while such an officer or employee is engaged in the performance of official duties. Officers and employees of the Social Security Administration and the Federal Protective Service, which is part of the Department of Homeland Security, are officers and employees of the United States. It is for you to determine if Protective Security Officer Bacchus was an officer or employee of the United States or a person ... assisting officers or employees of the United States at the time the threat was made.

(Emphasis added).

The jury convicted Anderson of violating 18 U.S.C. § 115(a)(1)(B), and the court subsequently denied Anderson's Rule 29 motion. After being sentenced to one year of probation and a fine, Anderson filed a timely notice of appeal.

II. Discussion

Anderson challenges the district court's denial of her Rule 29 motion for judgment of acquittal. She argues on appeal that PSO Bacchus is not an "official" under 18 U.S.C. § 115(a)(1)(B). This argument presents a question of statutory interpretation, which we decide de novo. See United States v. Pacheco , 977 F.3d 764, 767 (9th Cir. 2020).³

Anderson was charged under § 115(a)(1)(B) which provides in pertinent part:

Whoever ... threatens

...