United States v. Twitty
| Decision Date | 15 June 2021 |
| Docket Number | No. 20-1083,20-1083 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDRE J. TWITTY, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Colo.)
ORDER AND JUDGMENT*Before PHILLIPS, EBEL, and CARSON, Circuit Judges.
State statutes assimilated by the Assimilated Crimes Act ("ACA") in effect become federal statutes. See United States v. Kiliz, 694 F.2d 628, 629 (9th Cir. 1982) (citing Johnson v. Yellow Cab Transit Co., 321 U.S. 383 (1944)). That means if a Defendant commits a crime on federal land or in a federal building, and that crime is not already a federal offense, the ACA acts as a gap-filler allowing the government to apply state law on federal property. See Lewis v. United States, 523 U.S. 155, 159-66 (1998).
On the eve of his release from federal prison, Defendant Andre J. Twitty threatened a Bureau of Prisons ("BOP") disciplinary officer. A jury convicted Defendant for violating Colorado's stalking statute as assimilated by the ACA. Defendant appeals, arguing that the ACA did not properly assimilate Colorado's stalking statute and even if it did, the district court could not interpret the Colorado statute in the same ways it would other federal statutes. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
While serving a sentence in federal prison for making threats, Defendant threatened Shery Beicker-Gallegos. Before threatening Beicker-Gallegos, Defendant threatened the prison's warden, writing in a cop-out that he would "deal with all upon release."1 In this cop-out Defendant also referenced a former Colorado inmate who murdered the director of the Colorado Department of Corrections shortly after release. In response, a staff member drafted an incident report (also known as a "shot") charging Defendant with threatening another with bodily harm. Beicker-Gallegos—a BOP disciplinary hearing officer—presided over Defendant's disciplinary hearing on that charge. At the hearing, Defendant emphasized that upon his impending release he would shoot as many people as possible and then commit suicide. Based on Defendant's tone and body language, Beicker-Gallegos became concerned Defendant might follow through on these threats, given his impendingrelease. So she drafted another incident report charging Defendant with making even more threats of bodily injury.
At this point, Defendant's behavior became cyclical—he would make a threat, a staff member would charge him, and then, angered by the charge, he would make another threat. So after Beicker-Gallegos charged Defendant, he wrote a cop-out saying:
How do you stop a man with a suicide plan . . . you can't. . . . So write another shot! Then I will send you some more and let's see who wins. . . . Dumb ass b**ch.
He addressed this cop-out to Beicker-Gallegos, referring to her by name and also as a "white DHO b**ch." He also made several statements noting that he had access to guns and bombmaking materials.2 He included a copy of the incident report in thecop-out, and on it he wrote He also attached ten photographs of guns and ammunition.
After a new hearing officer adjudicated Beicker-Gallegos's charge, Defendant sent a cop-out to that hearing officer. On that cop-out, Defendant wrote "Google home address" next to Beicker-Gallegos's name. He also wrote
Months later, BOP staff charged Defendant with making renewed threats to kill BOP staff and their children. Beicker-Gallegos adjudicated the new charge and found Defendant guilty. In response, Defendant sent another cop-out addressed to Beicker-Gallegos. He made statements expressing he did not "give a f**k" about the reports and charges. Again, he threatened to exact revenge once released and circled several BOP personnel's names writing "Google" next to them.
Defendant then sent yet another cop-out, referencing Beicker-Gallegos by name noting that he planned to "encourage all real black men to kill all white racist police and prison staff." Soon after, BOP personnel charged Defendant again for threatening another with bodily harm related to another incident. Beicker-Gallegos adjudicated that charge, again, finding Defendant guilty. Defendant responded just as he had in the past—he sent a cop-out letter to Beicker-Gallegos referencing his plan to exact revenge on white America and noting that these charges just motivated him. Beicker-Gallegos received this cop-out and filed yet another charge against Defendant for threatening another with bodily harm. In total, BOP personnel charged Defendant five times for threatening another with bodily injury.
Having seen enough, the government obtained an indictment alleging Defendant violated Colorado's stalking statute—C.R.S. § 18-3-602(1)(2) ("Colorado statute") as assimilated by the ACA. The indictment named Beicker-Gallegos as the recipient of Defendant's threat. Defendant moved to dismiss, arguing the Colorado statute was unconstitutional because the statute, by its terms, lacked a mens rea requirement. But the government had included an intent requirement in the indictment. And the district court determined that, under our jurisprudence, it should interpret the Colorado statute as having a constitutionality sufficient mens rea requirement. The case proceeded to trial where the district court, consistent with its ruling, instructed the jury that the government had to prove "defendant intended the recipient of the threat to feel threatened." The jury found Defendant guilty.
Defendant moved for a new trial six days after the jury verdict, arguing the district court lacked jurisdiction because 18 U.S.C. § 2261A punished approximately the same conduct as the Colorado statute. And so the ACA did not properly assimilate the Colorado statute. See Lewis, 523 U.S. at 165 (). The district court denied his motion. About a month later, Defendant moved to dismiss the indictment, arguing 18 U.S.C. § 115(a)(1)(B) also punished approximately the same conduct as the Colorado statute. The district court denied Defendant's motion, finding it untimely because Defendant's argument presented a non-jurisdictional challenge that he should have raised pretrial. Following sentencing and entry of judgment, Defendant appealed his conviction.
Defendant makes four claims on appeal: (1) the ACA does not properly assimilate the Colorado statute; (2) the district court erred in interpreting the Colorado statute as containing a mens rea requirement; (3) the district court improperly instructed the jury; and (4) the government presented insufficient evidence to support Defendant's conviction. We address each claim in turn, affirming the district court on every issue.
We review a timely objection to the assimilation of a statute de novo. United States v. Rocha, 598 F.3d 1144, 1147 (10th Cir. 2010).
Defendant argues the district court erred in denying his motions about improper assimilation.3 First, he argues he objected pretrial to the ACA's assimilation of the Colorado statute. He did not.4 So we proceed to his secondargument—that his failure to object pretrial does not matter because assimilation presents a non-waivable jurisdictional issue.
As we see it two alternatives exist here: (1) the ACA properly assimilated the Colorado statute because the Colorado statute does not punish approximately the same behavior as federal law; or (2) the ACA did not properly assimilate the Colorado statute because both state and federal statutes seek to punish approximately the same behavior. Under option one, the district court would have jurisdiction under the ACA. Under option two, the district court would have jurisdiction under the federal statutes—18 U.S.C. §§ 2261A or 115(a)(1)(B). Either way, the district court had jurisdiction over Defendant's purported violations of federal law within the judicial district. So jurisdictionally, whether the government charged the offense under the ACA or another provision of federal law did not matter.
Moreover, in this context Defendant's challenge to assimilation resembles a challenge to an indictment.5 And a challenge to an indictment is not jurisdictional. See Hall, 979 F.2d at 322-23 ().
The Supreme Court has not expressly analyzed whether assimilation presents a jurisdictional issue. But in Lewis, a jury convicted the defendants of first-degree murder under Louisiana law as assimilated through the ACA. 523 U.S. at 158-59. The Supreme Court found the ACA did not properly assimilate the Louisiana statute and remanded the case for resentencing. Id. at 172-73. The Court's silence on the jurisdictional argument demonstrated the non-jurisdictional nature of the defendants' assimilation appeal. Key, 599 F.3d at 476-77 (). Thus, Defendant's challenge here did not present a jurisdictional issue.
Because the basis for Defendant's motion—improper assimilation—is non-jurisdictional, existed pretrial, and the district court could have resolved the motion without a trial on the merits, Defendant had to make his motion pretrial. Fed. R. Crim. P. 12(b)(3)(B). So unless he can show good cause for not doing so, Defendant's failure to make his motion pretrial leaves us unable review his challenge. See Bowline, 917 F.3d at 1237. But Defendant does not...
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