United States v. De Vaughn

• Decision Date: 31 August 2012
• Docket Number: Nos. 11–1225,11–1226,11–1228.,s. 11–1225
• Citation: 694 F.3d 1141
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jay Stuart DE VAUGHN, a/k/a Jay Paige Edwards, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

694 F.3d 1141

UNITED STATES of America, Plaintiff–Appellee,

v.Jay Stuart DE VAUGHN, a/k/a Jay Paige Edwards, Defendant–Appellant.

Nos. 11–1225, 11–1226, 11–1228.

United States Court of Appeals, Tenth Circuit.

Aug. 31, 2012.

Kiwi A.D. Camara, Camara & Sibley LLP, Houston, TX, for Defendant–Appellant.

Andrew A. Vogt, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, CO, for Plaintiff–Appellee.

Before GORSUCH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge.

BALDOCK, Circuit Judge.

Defendant Jay Stuart De Vaughn mailed twelve hoax anthrax letters to the President of the United States, seven members of Congress, and two Argentine consulates in the United States. He pleaded guilty to multiple counts of mailing threatening communications in violation of 18 U.S.C. §§ 871, 875(c), 876(c), and 1038(a)(1). Defendant now challenges the validity of these charges, arguing his statements did not constitute “threats” and that applying these statutes to him violates the First Amendment. Addressing these arguments requires some straightforward statutory construction and the application of controlling Supreme Court precedent. Yet this case is not as simple as it seems. Defendant pleaded guilty unconditionally without reserving a right to appeal, but the Government has failed to raise the preclusive effect of Defendant's guilty plea. We must therefore determine whether Defendant's guilty plea deprives us of jurisdiction and prevents us from reaching the merits. The Government also seeks to dismiss two of the cases on appeal for lack of territorial jurisdiction. So this apparently simple case requires us to resolve some complex questions before reaching the merits. Ultimately, we conclude we have jurisdiction under 28 U.S.C. § 1291, and we affirm.

I.

Over a four-month period around the end of 2009, Defendant sent anthrax hoax letters to President Barack Obama; Senators Michael Bennet, Jeff Sessions, Richard Shelby, and Mark Udall; Representatives Mike Coffman, Diana DeGette, and Mike Rogers; and the Argentine consulates in Los Angeles and New York. Each letter contained a harmless white powder, yet each stated or implied the powder was anthrax. The letters included statements such as “Have you heard of anthrax? ? ? Get a whiff of this Sambo,” “Your government rules are suffocating us !!! Take a whiff of this !” and “You are going to die like you killed my friends.” Record on Appeal (ROA) vol. I at 17–20.

A federal grand jury in Colorado issued an eight-count indictment, charging Defendant with four counts of mailing threatening communications in violation of 18 U.S.C. § 876(c) and four counts of “False Information and Hoax” in violation of 18 U.S.C. § 1038(a)(1).¹ Two months later, the Government filed an information in the Northern District of Alabama charging Defendant with three counts under § 1038(a)(1), based on the letters received at congressional offices in Birmingham and Anniston, Alabama. Five days later, the Government filed an information in the Middle District of Alabama charging Defendant with another three counts under § 1038(a)(1), relating to letters sent to congressional offices in Montgomery, Alabama.

Because Defendant agreed to plead guilty to the Alabama charges in the Colorado federal district court, the parties transferred the Alabama cases to the District of Colorado pursuant to Fed.R.Crim.P. 20(a). Thereafter Defendant waived indictment in the District of Colorado, and the Government filed a seven-count information (which superseded the indictment) charging him with one count of mailing a threat against the President of the United States in violation of 18 U.S.C. § 871, four counts of mailing threatening communications in violation of 18 U.S.C. § 876(c), and two counts of transmitting threatening communications in interstate commerce in violation of 18 U.S.C. § 875(c).² Defendant entered into a plea agreement that did not reserve a right to appeal. He then pleaded guilty to all thirteen counts—seven counts in the Colorado information and three counts in each Alabama case. The district court sentenced Defendant to 24 months in each case, to be served consecutively, for a total of 72 months' imprisonment. Defendant appealed, raising two arguments regarding his convictions' validity. First, he argues the threatening letters charged in the criminal informations were not, as a matter of law, “threats.” Second, he argues both the threat and hoax statutes as applied to him violate the First Amendment.

II.

Before reaching the merits, we must address three jurisdictional questions. The first is the Government's argument that we have no appellate jurisdiction over the cases filed in the Alabama district courts. The second is whether Defendant's claims on appeal—that the charging documents fail to state an offense and that the criminal statutes are unconstitutional—go to federal subject-matter jurisdiction. If they do, then we must address the arguments despite Defendant's guilty plea because such jurisdictional issues are unwaivable. If these claims are not jurisdictional, however, then Defendant has waived them by pleading guilty. Finally, if we determine Defendant's arguments are non-jurisdictional and that he therefore has waived them by pleading guilty, we must determine whether the Government can “waive [ ] the waiver.” United States v. Heckenliable, 446 F.3d 1048, 1049 n. 3 (10th Cir.2006). That is, we must determine whether Defendant's guilty plea itself deprives us of jurisdiction by rendering the case moot. If his guilty plea moots the case, we must dismiss this appeal. But if his guilty plea merely has a preclusive effect, then the Government has waived the effect of his guilty plea by failing to raise the issue on appeal.

A.

The Government moves to dismiss appeals 11–1225 and 11–1226, the two cases originating in the Northern and Middle Districts of Alabama, for “lack of territorial and subject matter jurisdiction.” The Government argues we have no jurisdiction to consider the validity of charges filed outside our circuit, because the Colorado “district court's subject matter jurisdiction was limited under Rule 20.” Appellee's Br. at 18. The Government is mistaken on a number of levels.

Our appellate jurisdiction extends to “appeals from all final decisions of the district courts.” 28 U.S.C. § 1291. The territorial scope of that jurisdiction is limited to “appeals from reviewable decisions” by district courts within our circuit. 28 U.S.C. § 1294. The only “final decisions” in the cases on appeal are the three criminal judgments entered against Defendant. The United States District Court for the District of Colorado entered these judgments, and our circuit embraces that district. So a straightforward reading of sections 1291 and 1294 suggests we have jurisdiction.

To support its interpretation of § 1294, the Government cites our decision in McGeorge v. Continental Airlines, 871 F.2d 952 (10th Cir.1989). In McGeorge, the United States District Court for the District of Columbia issued an order dismissing four of the plaintiff's five claims and then transferred venue to the Western District of Oklahoma. Id. at 953. After a hearing, the Oklahoma district court dismissed the remaining claim. Id. The plaintiff then tried to appeal both orders, suggesting the D.C. district court's order was not final (and thus appealable) until the Oklahoma court entered its order. Id. at 954. We rejected this argument, reasoning that § 1294's territorial limits were not dependent upon the decision's finality, but upon the district court's location. Id. That is, the Tenth Circuit does not have jurisdiction over orders from out-of-circuit district courts, even if those orders do not become final until the case is transferred to an in-circuit district court. Id. But see Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1518 (10th Cir.1991) (recognizing a limited exception for review of whether a transferee district court properly applied the law of the case). McGeorge is inapposite to this case. Unlike McGeorge, where the plaintiff sought review from orders entered in another district court, Defendant is challenging charging documents filed in other district courts that resulted in criminal judgments within our circuit. Section 1294's territorial limits apply to “reviewable decisions of the district ... courts,” and not to charging documents. 28 U.S.C. § 1294. So McGeorge does not suggest that we lack jurisdiction over Defendant's appeals.

The Government also relies on Rule 20, which it incorrectly argues is a jurisdictional rule. Rule 20 allows a district court to transfer a federal prosecution “to the district where the defendant is arrested, held, or present” if (1) the defendant agrees in writing to plead guilty and waive his right to a trial in the transferor court and (2) the United States Attorneys in both districts approve. Fed.R.Crim.P. 20(a). Rule 20 is in a section of the federal rules entitled “venue,” and we have held that venue rules are not jurisdictional. Hilderbrand v. United States, 304 F.2d 716, 717 (10th Cir.1962) (per curiam). The Defendant in Hilderbrand argued Rule 20 was unconstitutional in light of the Sixth Amendment's requirement that a trial be held in the state and district where the crime was committed. Id. He argued the constitutional provisions relating to the place of trial were “jurisdictional limitations.” Id. We concluded that “the constitutional provisions as to the place of trial relate to venue” and could be waived. Id. The Government's argument that Rule 20 is jurisdictional simply cannot be squared with Hilderbrand. See also Wachovia Bank v. Schmidt, 546 U.S. 303, 316, 126 S.Ct. 941, 163 L.Ed.2d 797 (2006) (“[V]enue and subject-matter jurisdiction are not concepts of the same order.”); Jackson v. United States, 489 F.2d 695, 696 (1st Cir.1974) (rejecting an argument “that Rule 20 is a...