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United States v. Twitty

United States District Court, D. Colorado

January 4, 2019

ANDRE J. TWITTY, Defendant.


          R. Brooke Jackson United States District Judge.

         Andre J. Twitty petitions to set aside his conviction pursuant to 28 U.S.C. § 2255. ECF No. 397. He also, as he has before, moves for immediate release from custody. ECF No. 429. The petition and the motion, both filed in No. 13-cr-00076-RBJ, are denied.[1]


         This case began on February 14, 2013 when the government filed a five-count indictment charging the mailing of five letters threatening various federal officials with harm in violation of 18 U.S.C. § 876(c). ECF No. 1. The indictment was replaced by a superseding indictment. ECF No. 24. Two of the counts were later bifurcated for separate trial and ultimately were dismissed. The remaining counts were tried to a jury February 18-21, 2014, resulting in convictions on two counts and an acquittal on one count. ECF No. 157-5 (Jury Verdict, juror names redacted). I sentenced Mr. Twitty to 60 months imprisonment on Count One and 108 months imprisonment on Count Two, the terms to run concurrently. See ECF No. 185 (Judgment).

         The conviction was affirmed by the Tenth Circuit on direct appeal. U.S. v. Twitty, 591 Fed.Appx. 676 (10th Cir. 2015) (unpublished) (Twitty I). Mr. Twitty then successfully petitioned the United States Supreme Court for a writ of certiorari. Twitty v. United States, 136 S.Ct. 90 (2015). The Court vacated the judgment and remanded the case to the Tenth Circuit for further consideration in light of Elonis v. United States, 135 S.Ct. 2001 (2015), a decision that came down after the Tenth Circuit's affirmance of the conviction. The Tenth Circuit subsequently reversed Mr. Twitty's conviction and remanded the case to this Court for further proceedings. United States v. Twitty, 641 Fed.Appx. 801 (10th Cir. Feb. 1, 2016) (unpublished) (Twitty II).

         The issue resulting in the reversal of the conviction was the mens rea requirement for conviction under 18 U.S.C. § 876(c). I had instructed the jury that a true threat was a serious threat as distinguished from mere political argument, idle talk, or jest. A true threat was a declaration of intention, purpose, design, goal, or determination to inflict punishment, loss, or pain on another, or to injure another or his property by the commission of some unlawful act. I told that jury that it could consider the reaction of those to whom it was made and the context in which the statements were made. I instructed that it was not necessary that the government show that the defendant intended to carry out the threat, nor that the defendant had the apparent ability to carry out the threat. Significantly, my instruction stated, “The question is whether those who hear or read the threat reasonably consider that an actual threat has been made. It is the making of the threat and not the intention to carry out the threat that violates the law.” ECF No. 157-4, Instructions 9 and 10 (emphasis added).

         In Elonis, which concerned a prohibition on making threats found in a statute similar to the one at issue in the present case, 18 U.S.C. § 875(c), the Court found that an instruction that the government need only prove that a reasonable person would regard the communications as threats was error. Rather, the mental state of the defendant, that is, an intent to issue a threat (or what he knows will be interpreted by the recipient as a threat) is a critical element. See Id. at 2008-12. The Court stated, “There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” Id. at 2012.

         On remand the Tenth Circuit held that a mental state element similar to that applied to 18 U.S.C. § 875(c) in Elonis must also be alleged and proved in cases charging a violation of 18 U.S.C. § 876(c). 641 Fed.Appx. at 802. n.1. The court cited Elonis' holding that the mental state requirement “was satisfied where ‘the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.'” Id. Throughout the remainder of the order, however, the court expressed this mental state requirement in terms of Mr. Twitty's “subjective intent” to issue a threat. Id. at 802-04/

         In addition to his successful challenge to the jury instruction, Mr. Twitty also challenged the sufficiency of the indictment which had omitted the mental state requirement. The court held that he had forfeited that challenge by failing to raise it in his opening brief on appeal. Id. at 808. However, the court noted that “should the government elect to retry Mr. Twitty on the § 876(c) counts, it will need to amend the indictment to include the subjective-intent element.” Id.

         The government then obtained and filed a Second Superseding Indictment. ECF No. 271. In each of the two counts, after quoting language from letters written and mailed by Mr. Twitty that the government contends constitute unlawful threats, the government added the following: “The defendant transmitted this communication for the purpose of issuing a threat, and with knowledge that the communication would be viewed as a threat.” Id. 2, 4. Thus, the government essentially borrowed the language from Elonis that the Court and the Tenth Circuit both held would satisfy the mental state requirement, changing the disjunctive “or” in the appellate opinions to the conjunctive “and” in the indictment.

         Mr. Twitty then moved to dismiss the indictment based on “grand jury misconduct, ” noting that the Tenth Circuit emphasized that an amended indictment must include the subjective intent element, and arguing that the Second Superseding Indictment does not include that element. ECF No. 281. He added in a separate motion that the Court should dismiss the Second Superseding Indictment because a second prosecution would constitute unconstitutional double jeopardy. ECF No. 282. In yet another motion he argued (as he had argued in the trial) that the statements in the letters constituted his exercise of his free speech rights, and that the government could not prove that he had the subjective intent to threaten anyone. ECF No. 285. In a written order issued April 12, 2016 I denied his motions. ECF No. 294.

         The two counts were tried for the second time May 16-18, 2016. I instructed the jury concerning the meaning of a true threat as directed by the Supreme Court in Elonis and the Tenth Circuit in Twitty II. See ECF No. 342 at 15 (Instruction No. 11). He was convicted. ECF No. 345 (Jury Verdict, juror names redacted). On August 4, 2016 I sentenced Mr. Twitty to 60 months imprisonment on Count One and 78 months imprisonment on Count Two, the terms to run concurrently; judgment entered on August 8, 2016. See ECF No. 368 (Judgment). On direct appeal the Tenth Circuit affirmed his conviction. U.S. v. Twitty, 689 Fed.Appx. 890 (10th Cir. May 9, 2017) (unpublished) (Twitty III). His petition for a writ of certiorari was denied. Twitty v. United States, 138 S.Ct. 195 (Mem), Oct. 2, 2017.


         Because the pending petition raises, in part, a claim of ineffective assistance of counsel, I will provide some additional background specifically focusing on attorney representation. During the entire history of this case Mr. Twitty has been an inmate at the United States Penitentiary, Administrative Maximum Facility (ADX), in Florence, Colorado, initially as the result of previous conviction, later serving sentences imposed by this Court. He represented himself pro se at the March 8, 2013 initial appearance after the case was first filed on February 14, 2013.

         On March 11, 2013 an Assistant Federal Public Defender entered an appearance on Mr. Twitty's behalf. ECF No. 6. On June 4, 2013 the Office of the Federal Public Defender moved to withdraw. The assigned lawyer indicated that because she was unwilling to file motions that Mr. Twitty wanted her to file, or otherwise “do his bidding” as she put it, he was insisting on representing himself. See ECF No. 29 at 2-5. The Court granted the motion but ordered that a lawyer from the CJA panel be appointed to represent him. ECF No. 30. Attorney J. Michael Dowling was appointed. ECF No. 31.

         Mr. Twitty continued to file motions on his own behalf, which the Court disallowed in view of his representation by counsel. Mr. Twitty then moved for permission to proceed pro se with advisory counsel only. ECF No. 37. That motion was ultimately granted. ECF No. 43. Mr. Twitty continued to represent himself, with Mr. Dowling serving as advisory counsel, though all pretrial proceedings and his first trial. During the trial I observed Mr. Dowling consulting with Mr. Twitty from time to time, but Mr. Twitty did all the talking and appeared to me always to be having it “his way.” He continued to represent himself on appeal, and in his successful petition for a writ of certiorari.

         After the case returned to this Court on the Tenth Circuit's remand I again appointed a lawyer from the CJA panel to serve as advisory counsel. This time the lawyer assigned by the panel was R. Scott Reisch. Mr. Twitty began the second trial representing himself, but it was apparent to me that he was receiving and considering Mr. Reisch's advice as the jury selection process went forward. During a bench conference near the end of jury selection Mr. Twitty informed the Court that he had changed his mind and now wanted Mr. Reisch to represent him fully, not just as advisory counsel. See ECF No. 379 at 83 (transcript p. 97). I noted that I had known Mr. Reisch a long time, and that he is a good defense attorney. Mr. Twitty agreed, commenting that he had already determined that Mr. Reisch was better than his advisory counsel from the first trial. Id. at 83-84 (transcript p. 97-98). Mr. Reisch agreed to accept the change of his role, and I appointed him as Mr. Twitty's attorney. His representation continued from the opening statement to the end of the trial.

         Following the trial Mr. Twitty filed a motion for judgment of acquittal. ECF No. 346. I denied the motion, noting that he was still represented by counsel, ECF No. 351. Mr. Twitty then terminated Mr. Reisch's services but requested that he serve again as advisory counsel. See ECF No. 357. I declined that request, noting, among other things, that I was not willing to modify Mr. Reisch's role solely so that Mr. Twitty could file his own motions. I reminded him that that was what he had done before the first trial, and expressed my opinion that the result (his filing his own motions) had not been beneficial to him. I indicated that Mr. ...

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