United States v. Jacqueline Anderson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50207
Plaintiff-Appellee,
D.C. Nos.
v. 2:19-cr-00157-CJC-1
2:19-cr-00157-CJC
JACQUELINE ANDERSON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted December 8, 2021
Pasadena, California
Filed August 25, 2022
Before: William A. Fletcher, Johnnie B. Rawlinson, and
John B. Owens, Circuit Judges.
Opinion by Judge Rawlinson;
Dissent by Judge W. Fletcher
2 UNITED STATES V. ANDERSON
SUMMARY*
Criminal Law
The panel affirmed Jacqueline Anderson’s jury conviction
for threatening a person assisting federal officers and
employees in violation of 18 U.S.C. § 115(a)(1)(B).
Anderson threatened to kill a Protective Security Officer
while he was on duty at the Long Beach Social Security
Office. The PSO was an employee of a private company that
had been contracted by the Federal Protective Service to
“provide security services at government-owned and leased
properties.”
Section 115(a)(1)(B) prohibits threats against “a United
States official, a United States judge, a Federal law
enforcement officer, or an official whose killing would be a
crime under section 1114 of this title.” 18 U.S.C. § 1114prohibits killing or attempting to kill “any officer or
employee of the United States or of any agency in any branch
of the United States Government . . . while such officer or
employee is engaged in or on account of the performance of
official duties, or any person assisting such an officer or
employee in the performance of such duties.”
Agreeing with the Third and Eighth Circuits, the panel
held that the plain language of § 115(a)(1)(B) includes all
persons described in § 1114. The panel rejected Anderson’s
argument that the word “official” was a “term of limitation”
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ANDERSON 3
intended to protect only those “officials” designated in
§ 1114. The panel held that, because, under § 1114, the PSO
was assisting with official duties, Anderson’s conduct
violated § 115, and the district court properly denied her
motion for a judgment of acquittal.
Dissenting, Judge W. Fletcher wrote that § 115(a)(1)(B)
clearly did not support Anderson’s conviction because the
PSO was not an “official.” Judge W. Fletcher wrote that the
restrictive clause of § 115(a)(1)(B) indicates that the target of
the threat must not only be a federal official, but must also be
a federal official whose killing would be a crime under
§ 1114. Put differently, § 115(a)(1)(B) protects federal
officials, but only the subset of federal officials whose killing
would be a crime under § 1114. Judge W. Fletcher wrote that
the Third and Eighth Circuit cases addressed a different
question and did not support the majority’s statutory reading.
Judge W. Fletcher wrote that the PSO, the target of
Anderson’s threat, was not a federal official, but rather was
a “person assisting . . . an officer or employee” of the United
States; therefore, under the plain meaning of the statute,
Anderson did not violate § 115(a)(1)(B).
COUNSEL
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
4 UNITED STATES V. ANDERSON
States Attorney’s Office, Los Angeles, California; for
Plaintiff-Appellee.
OPINION
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
1
Contrary to the dissent’s insinuation, a lack of clarity does not
equate to ambiguity. See Dissenting Opinion, p. 22. Although 18 U.S.C.
§ 115 could have been more clearly drafted, it is not ambiguous. See
Chowdhury v. I.N.S., 249 F.3d 970, 972 (9th Cir. 2001) (“We must first
determine whether there is any ambiguity in the statute using traditional
tools of statutory interpretation. . . .”) (citation omitted). Thus, the rule of
lenity is not triggered. See Ocasio v. United States, 578 U.S. 282, 295 n.8
(2016) (“Th[e] rule [of lenity] applies only when a criminal statute
contains a grievous ambiguity or uncertainty, and only if, after seizing
everything from which aid can be derived, the Court can make no more
than a guess as to what Congress intended.”) (citation and internal
quotation marks omitted).
UNITED STATES V. ANDERSON 5
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.
2
We are not persuaded by our colleagues’ contention that the statute
“is very clear [and] does not support the conviction.” Dissenting Opinion,
p. 22. Under the dissent’s reading of the statute, the language is clear only
if the portions of § 115 incorporating 18 U.S.C. § 1114 are ignored. Of
course, such a reading flouts a cardinal rule of statutory construction—that
each word in the statute be given effect. See Hamazaspyan v. Holder,
590 F.3d 744, 749 (9th Cir. 2009) (“Where possible, we are required to
give each word of a statute meaning. . . .”) (citation omitted).
6 UNITED STATES V. ANDERSON
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
UNITED STATES V. ANDERSON 7
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.
8 UNITED STATES V. ANDERSON
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,
UNITED STATES V. ANDERSON 9
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.
10 UNITED STATES V. ANDERSON
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
UNITED STATES V. ANDERSON 11
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 to assault, kidnap, or
murder, a United States official, a United
States judge, a Federal law enforcement
officer, or an official whose killing would be
a crime under section 1114 of this title, . . .
with intent to impede, intimidate, or interfere
with such official, judge, or law enforcement
officer while engaged in the performance of
official duties, or with intent to retaliate
against such official, judge, or law
enforcement officer on account of the
performance of official duties, shall be
punished . . . .
18 U.S.C. § 115(a)(1)(B) (2018) (emphasis added).
3
The government argues that Anderson waived her claim that PSO
Bacchus is not an “official” covered by 18 U.S.C. § 115(a)(1)(B) by
failing to raise it in a pretrial motion as required by Federal Rule of
Criminal Procedure 12(b)(3). We are unpersuaded by this argument.
Even if the government is correct and Anderson was required to raise this
claim before trial, the claim is not waived because the district court
addressed it on the merits in a written decision. See United States v. Scott,
705 F.3d 410, 416 (9th Cir. 2012) (“Even where a waiver argument may
be available, when a court rules on the merits of an untimely suppression
motion, it implicitly concludes that there is adequate cause to grant relief
from a waiver of the right to seek suppression. . . .”) (citation, alteration,
and internal quotation marks omitted).
12 UNITED STATES V. ANDERSON
In turn, § 1114 provides, in relevant part, that:
Whoever kills or attempts to kill any officer
or employee of the United States or of any
agency in any branch of the United States
Government (including any member of the
uniformed services) while such officer or
employee is engaged in or on account of the
performance of official duties, or any person
assisting such an officer or employee in the
performance of such duties or on account of
that assistance, shall be punished . . .
18 U.S.C. § 1114(a) (2018) (emphasis added).
In cases requiring statutory interpretation, “our starting
point is the plain language of the statute.” United States v.
Williams, 659 F.3d 1223, 1225 (9th Cir. 2011). Our review
of the statute’s plain language involves an examination of
“the specific provision at issue, but also the structure of the
statute as a whole, including its object and policy.” Id.(citation omitted). Our analysis is informed by decisions
from other circuit courts that have interpreted the statute, and
we will not create a circuit split unnecessarily. See Seven
Arts Filmed Ent. Ltd. v. Content Media Corp., 733 F.3d 1251,
1255 (9th Cir. 2013) (taking guidance from two of our sister
circuits when resolving an issue of first impression); see also
Padilla-Ramirez v. Bible, 882 F.3d 826, 836 (9th Cir. 2017)
(“declin[ing] to create a circuit split unless there is a
compelling reason to do so”) (citation omitted).
Although we have not previously considered the issue
presented by Anderson’s appeal, two of our sister circuits
have held that § 115(a)(1)(B) includes all individuals covered
UNITED STATES V. ANDERSON 13
by 18 U.S.C. § 1114. See United States v. Bankoff, 613 F.3d
358, 360 (3rd Cir. 2010); see also Wynn, 827 F.3d at 783–85.
The Third Circuit was the first federal appellate court to
resolve the question of the scope of § 115(a)(1)(B). In
Bankoff, the defendant was convicted of threatening two
Social Security Administration employees in violation of
§ 115(a)(1)(B). See 613 F.3d at 360. The first employee was
a claims representative (indictment Count Three) and the
second was an operations supervisor (indictment Count Two).
See id. The district court granted the defendant’s motion for
judgment of acquittal on Count Three on the basis that the
claims representative was not an “official” under
§ 115(a)(1)(B), because her responsibilities were limited to
“routine and subordinate functions.” Id. The defendant’s
motion for judgment of acquittal on Count Two was denied.
See id. The district court reasoned that because an operations
supervisor “had the authority to adjudicate claims on behalf
of the federal government,” she was an “official.” Id. On
appeal, the Third Circuit affirmed the district court’s denial
of the defendant’s motion for judgment of acquittal on Count
Two and vacated the acquittal on Count Three. See id. The
Third Circuit reasoned that both the claims representative and
the operations supervisor were “official[s]” under
§ 115(a)(1)(B). Id.
To reach this conclusion, the Third Circuit reviewed the
text, context, and legislative histories4 of §§ 115(a)(1)(B) and
1114. See id. at 365–72. The court began by rejecting the
defendant’s argument that “Congress could not have intended
4
The court noted that because the language of § 115 was “plain,”
consulting legislative history was not required, but considered only as a
“course marker.” Bankoff, 613 F.3d at 371.
14 UNITED STATES V. ANDERSON
that § 115 apply to threats against employees ‘whose killing
would be a crime under’ § 1114 by referring to threats against
‘official[s] whose killing would be a crime under’ § 1114”
because the terms “official” and “employee” have different
ordinary meanings. Id. at 365. The court reasoned that § 115
“prohibits threats against four categories of
individuals—‘United States officials,’ ‘United States judges,’
‘Federal law enforcement officers,’ and ‘officials whose
killing would be a crime under’ § 1114.” Id. at 366
(alterations omitted). Although only the first three terms are
explicitly defined by the statute, the court was persuaded that
“Congress intended for § 1114 itself to define th[e] [fourth]
category by incorporating it by reference into § 115.” Id.
(citation omitted). Thus, the court held, the ordinary
dictionary definition of “official” is not controlling. Id.
at 366–67.
The court was not convinced by the defendant’s argument
that if Congress had intended to have § 115 apply to all
persons listed in § 1114, it would have used language like
“any person designated in section 1114,” as it did in
18 U.S.C. § 111. Id. at 367 (emphasis in the original).
Rather, the court concluded that Congress’ use of different
language to incorporate § 1114 into “different statutes that
were codified nearly four decades apart—§ 111 in 1948, and
§ 115 in 1984” did not portend that “it used the term ‘official’
(as opposed to ‘person’) in § 115 with the intention of
limiting its scope.” Id. (footnote reference omitted).
The Bankoff defendant’s final argument centered on the
legislative history of §§ 115 and 1114. See 613 F.3d at 371.
The defendant maintained that the legislative history of the
two provisions “indicates that Congress was concerned with
high policymaking, judicial and law enforcement officers, but
UNITED STATES V. ANDERSON 15
that . . . legislative concern did not extend to federal
employees in general.” Id. The court rejected this
contention, concluding that even if “Congress was primarily
concerned with protecting high-ranking policy makers,” there
was no indication in the legislative history that Congress did
not intend to protect “mere employees” as well. Id. (internal
quotation marks omitted).
After its thorough review of the text and legislative
histories of the statutes, the Third Circuit concluded that
“Congress did not use ‘official’ [in § 115] as a limitation on
the categories of individuals protected by § 1114.” Id. at 372.
In Wynn, the defendant also challenged his conviction
under § 115(a)(1)(B) by arguing that the supervisor he
threatened was not a federal “official.” 827 F.3d at 783. The
Eighth Circuit was unpersuaded, reasoning that in context, the
wording of § 115(a)(1)(B) “strongly suggests” that the term
“official” was defined by a cross-reference to the “universe
of federal ‘officials’ covered by § 1114.” Id. Citing Bankoff,
the Eighth Circuit observed that the defendant’s argument
relied on an interpretation of § 115(a)(1)(B) that is contrary
to the statutory history of §§ 115(a)(1)(B) and 1114. Id.
at 783–84. Although acknowledging that § 1114 has been
cross-referenced in other statutes containing words broader
than “official,” the Eighth Circuit was nevertheless persuaded
that “there is nothing in the legislative history of these other
statutes, or of the later amendments to § 115(a)(1)(B) and
§ 1114, that suggests Congress intended to change, or to
clarify, the fundamental relationship between’ § 115 and
§ 1114.” Id. at 784 (citation, alteration, and internal quotation
marks omitted). This “fundamental relationship” is that
§ 115(a)(1)(B) incorporates § 1114 in its entirety. Id.
at 784–85.
16 UNITED STATES V. ANDERSON
We are similarly persuaded that the plain language of
§ 115 incorporates all persons described in § 1114. Section
115(a)(1)(B) criminalizes threatening to assault, kidnap or
murder “a United States official, a United States judge, a
Federal law enforcement officer, or an official whose killing
would be a crime under [section 1114].” 18 U.S.C.
§ 115(a)(1)(B) (emphasis added). Congress explicitly
delineated the defined categories of “United States official,”
“United States judge,” and “Federal law enforcement
officer,” in § 115. Id. § 115(c). This phrasing “strongly
suggests” that the following phrase—“official whose killing
would be a crime under section 1114”—was not intended to
be an undefined term. Wynn, 827 F.3d at 783; see also
Bankoff, 613 F.3d at 366. Logically and linguistically
speaking, the definition can only be found in the language of
§ 1114. See id.
Anderson argues that we should reject the plain reading
of § 115 and instead interpret the statute using the ordinary
meaning of “official.” She suggests that the word “official”
in § 115 is a “term of limitation” intended to protect only
those “official[s]” designated in § 1114. Anderson therefore
contends, that even if PSO Bacchus was assisting with
official duties, he was not an “official” within the ordinary
meaning of that term, or in a similar position as the
“official[s]” specifically delineated in § 1114.
Our colleague in dissent parrots Anderson’s argument.
But this argument makes sense only if the word “official” is
considered in isolation without consideration of those
individuals described in § 1114. We, like the Third Circuit,
find this narrow reading unpersuasive. As the Third Circuit
wrote in Bankoff:
UNITED STATES V. ANDERSON 17
[W]e think it implausible that Congress used
the term “official” as a limitation on the
persons enumerated in § 1114, yet declined to
define that term or provide any indication as
to how courts (or presumably juries) were to
determine which of the enumerated
“employees,” “officers,” “members,” and
“agents” listed in § 1114 also qualify as
“officials.”
613 F.3d at 369–70 (footnote reference omitted).
We agree with the Third and Eighth Circuits that
Anderson’s interpretation would require an individual to be
both an “official” and an “officer,” “employee” or person
assisting an officer or employee with their official duties
under § 1114. Id.; see also Wynn, 827 F.3d at 785. Because
Congress provided no guidance on how to even begin to
determine which “officers,” “employees,” or persons assisting
those officers or employees would count as “official[s]”
under § 115, Anderson and the dissent’s suggested
interpretation is unworkable and unfaithful to the intent of the
statute.
Our colleague in dissent reasons that an individual
“assisting a federal officer or employee is not himself . . . a
federal officer or employee.” Dissenting Opinion, p. 26
(internal quotation marks omitted). But this reasoning elides
the actual inclusion of those assisting a federal officer or
employee under the umbrella of individuals referenced in
§115, whose killing would violate § 1114. Admittedly,
§ 1114 did not originally protect persons assisting federal
officers. See Bankoff, 613 F.3d at 368–69 (discussing
amendment history of § 1114). But the dissent does not
18 UNITED STATES V. ANDERSON
explain how the subsequent expansion of § 1114 transformed
the term “official” in § 115 into a term of limitation, when it
was not a term of limitation originally. See Dissenting
Opinion, p. 26–27 (agreeing that “federal employee[s]”—a
class that encompasses the individuals previously protected
by § 1114—are “‘official[s]’ within the meaning of
§ 115(a)(1)(B)”).
The dissent also seeks to distinguish the cases relied on by
the majority, both of which interpret the same two statutes at
issue in this case. See Dissenting Opinion pp. 26–27. The
dissent is correct that both Bankoff and Wynn involved federal
employees, not persons assisting federal employees, but the
logic of those cases does not support the dissent’s proposed
line-drawing. And it is telling that the dissent cites no case
that has reached a different conclusion regarding the interplay
between §§ 115 and 1114. Indeed, adoption of the dissent’s
reading of the statutes would create an unwarranted circuit
split, a result we understandably avoid if at all possible. See
Padilla-Ramirez, 882 F.3d at 836.
Anderson also contends that the legislative history of
§ 115 supports her reading that § 115 only applies to
“officials” designated in § 1114. Actually, the legislative
history of § 115 offers no such support. The Senate Report
accompanying § 115 demonstrates, contrary to Anderson’s
position, that the protections afforded by § 115 were not
intended to be limited to “officials.” When § 115 was passed,
the Senate wrote that:
[§ 115] is a new provision designed to protect
the close relatives of certain high level
officials, such as the President, Vice-
President, members of Congress, cabinet
UNITED STATES V. ANDERSON 19
officers, and federal judges, as well as federal
law enforcement officers . . .
The Committee believes that serious crimes
against family members of high level federal
officials, federal judges, and federal law
enforcement officers, which are committed
because of their relatives’ jobs are, generally
speaking, proper matters of federal
concern. . . .
S. Rep. No. 98-225 at 320 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3496, 1983 WL 25404 (emphasis
added). This language signals that Congress’ intent in
passing § 115 was to afford protections to non-officials; we
are therefore unpersuaded that § 115 should be read to
capture only those “officials” listed in § 1114.
Anderson relies on the reference canon to argue that § 115
incorporates § 1114 as it existed in 1986, when Congress first
added § 115(a)(1)(B). See Jam v. Int’l Fin. Corp., 139 S. Ct.
759, 769 (2019) (explaining that, under the reference canon,
“a statute that refers to another statute by . . . section number
in effect cuts and pastes the referenced statute as it existed
when the referring statute was enacted, without any
subsequent amendments”) (citation omitted). At that time,
§ 1114 did not protect “person[s] assisting” federal
employees and would not have protected PSOs like Bacchus.
See Bankoff, 613 F.3d at 368 n.9.
But the reference canon does not apply when “there is
some very clear indication to the contrary.” United States v.
Smith, 683 F.2d 1236, 1239 (9th Cir. 1982) (en banc)
(citations omitted). And, as other circuits have concluded,
20 UNITED STATES V. ANDERSON
simultaneous amendment or re-enactment of both statutes
“evidences a congressional intent to incorporate subsequent
amendments.” United States v. Rodriguez-Rodriguez,
863 F.2d 830, 831 (11th Cir. 1989) (per curiam). Even
amendments that “appear small” can show that the interaction
between two statutes “did not escape Congress’s notice.”
New York ex rel. N.Y. Off. of Child. & Fam. Servs. v. U.S.
Dep’t of Health & Hum. Servs.’ Admin. for Child. & Fams.,
556 F.3d 90, 99 (2d Cir. 2009).
Here, Congress amended both §§ 115 and 1114 when it
passed the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA). Pub. L. No. 104-132, §§ 723, 727, 110 Stat
1214, 1300, 1302 (1996). It is implausible that Congress
simultaneously edited both statutes but missed their
interaction. True, AEDPA amended § 115(a)(1)(A), not
subsection (a)(1)(B), with which Anderson is charged. But
subsection (B) incorporates § 1114 only through its reference
to subsection (A). Given the link between these subsections,
it is absurd to think that Congress intended the scope of
(a)(1)(A) (covering assaults, kidnappings, murders, attempts,
and conspiracies) to differ from that of (a)(1)(B) (covering
threats).
AEDPA’s legislative history bolsters our conclusion that
Congress was aware of the cross-reference and intended
§ 115 to incorporate the updates to § 1114. A summary of
AEDPA explained that, “[b]y expanding the coverage of
18 U.S.C. 1114 to include all federal officers and employees,
[AEDPA] also expands the coverage of . . . 18 U.S.C. 115.”
Charles Doyle, American Law Division, 96-499 A,
Antiterrorism and Effective Death Penalty Act of 1996: A
Summary 38 (1996) [hereinafter Doyle, Summary]. This
reading also furthers AEDPA’s “larger legislative scheme,”
UNITED STATES V. ANDERSON 21
Rodriguez-Rodriguez, 863 F.2d at 831, “[t]o deter terrorism.”
110 Stat. at 1214.5 We therefore reject application of the
reference canon in this case as incompatible with
Congressional intent.
We are convinced that affording the protections of § 115
to individuals who are threatened while assisting officers or
employees of the United States with their official duties is
similarly a “matter[] of federal concern.” S. Rep. No. 98-225,
at 320.
III. Conclusion
Although we acknowledge that Congress could have more
carefully drafted 18 U.S.C. § 115, we join our sister circuits
in concluding that, plainly read, the statute incorporates all
persons covered by 18 U.S.C. § 1114. When Anderson
threatened PSO Bacchus, he was assisting the FPS in
performing its official duty to protect the Social Security
Office. Thus, her conduct violated 18 U.S.C. § 115, and the
5
The events that prompted the passage of AEDPA included the
deadly bombing at an Oklahoma City federal building in 1995. See, e.g.,
Doyle, Summary, at 1 (“The Antiterrorism and Effective Death Penalty
Act of 1996 is the product of legislative efforts . . . stimulated to passage
in part by the traged[y] in Oklahoma City . . .”). Given this historical
context, we cannot conclude that Congress intended to leave unprotected
the very people who protect federal buildings: PSOs like Bacchus. See
also, e.g., Cara McCoy, Slain Court Officer Remembered for Service to
Las Vegas (Jan. 11, 2010), https://lasvegassun.com/news/2010/jan/11/
funeral-services-today-slain-court-officer/ (reporting on the killing of a
court security officer in Las Vegas).
22 UNITED STATES V. ANDERSON
district court committed no error when it denied her Rule 29
motion for a judgment of acquittal.6
AFFIRMED.
W. FLETCHER, Circuit Judge, dissenting:
The majority writes that the statute under which
Jacqueline Anderson was convicted “is not a model of
legislative clarity,” but concludes that the statute’s “lack of
clarity” does not protect Anderson from conviction. I
respectfully disagree.
If the statute were truly unclear, it should not be used to
convict Anderson. Yates v. United States, 574 U.S. 528,
547–48 (2015) (“[A]mbiguity concerning the ambit of
criminal statutes should be resolved in favor of lenity.”
(quoting Cleveland v. United States, 531 U.S. 12, 25 (2000))).
However, with respect to the question before us, the statute is
very clear. It does not support the conviction.
6
We also reject Anderson’s argument that a new trial is required
because the district court mistakenly instructed the jury. The jury was
instructed that “federal official” includes “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.” As discussed, the
instruction was a correct statement of law. Therefore, no new trial is
required. See United States v. Renzi, 769 F.3d 731, 755–56 (9th Cir.
2014); see also Wynn, 827 F.3d at 785 (rejecting a claim of instructional
error).
UNITED STATES V. ANDERSON 23
I. Background
The factual narrative underlying Anderson’s conviction
is accurately recounted in the majority opinion, and I will not
repeat it here.
Anderson threatened Protective Security Officer (“PSO”)
Justin Bacchus outside of a Social Security Administration
building. PSOs assist the Federal Protective Service (“FPS”),
a federal agency that protects government buildings. Because
FPS does not have enough officers to cover all of the
buildings for which it is responsible, it contracts with Paragon
Systems, a private security firm, to provide protection at
some buildings. Bacchus is an employee of Paragon
Systems.
It is uncontested that Bacchus is not an employee of the
federal government. See, e.g., Rabieh v. United States, No.
5:19-cv-00944, 2019 WL 5788673, at *2 (N.D. Cal. Nov. 6,
2019) (noting that PSOs “are Paragon employees,” that
“Paragon is responsible for most of the training of PSOs,”
and that “Paragon provides all management, supervision,
equipment, and certification for PSOs”); Gonzagowski v.
United States, 495 F. Supp. 3d 1048, 1103 (D.N.M. Sept. 1,
2020) (“[PSOs] are independent contractors and not federal
employees . . . .”); United States v. Maestas, No. 18-2419,
2019 WL 145578, at *1 (D.N.M. Jan. 9, 2019) (concluding
that a PSO is neither a federal employee nor a federal law
enforcement officer).
24 UNITED STATES V. ANDERSON
Anderson was convicted of threatening an “official”
within the meaning of 18 U.S.C. § 115. Section 115
provides, in relevant part,
Whoever—threatens to assault, kidnap, or
murder, a United States official, a United
States judge, a Federal law enforcement
officer, or an official whose killing would be
a crime under [18 U.S.C. § 1114], with intent
to impede, intimidate, or interfere with such
official, judge, or law enforcement officer
while engaged in the performance of official
duties, or with intent to retaliate against such
official, judge, or law enforcement officer on
account of the performance of official duties,
shall be punished as provided in subsection
(b).
Id. § 115(a)(1)(B) (emphasis added). Section 1114, in turn,
provides,
Whoever kills or attempts to kill any officer
or employee of the United States or of any
agency in any branch of the United States
Government (including any member of the
uniformed services) while such officer or
employee is engaged in or on account of the
performance of official duties, or any person
assisting such an officer or employee in the
performance of such duties or on account of
that assistance, shall be punished . . . .
Id. § 1114(a) (emphasis added).
UNITED STATES V. ANDERSON 25
II. Analysis
The majority and I agree that the question before us is
whether Bacchus was “an official whose killing would be a
crime under [18 U.S.C. § 1114].” Id. § 115(a)(1)(B). The
question is really two questions: (1) Was Bacchus “an
official”? (2) Would his killing be a crime under § 1114? In
order to convict Anderson, the answer to both questions must
have been “yes.” The answer to the first question is “no.”
The Supreme Court has “stated time and time again that
courts must presume that a legislature says in a statute what
it means and means in a statute what it says there. When the
words of a statute are unambiguous, then, this first canon is
also the last: judicial inquiry is complete.” Barnhart v.
Sigmon Coal Co., Inc., 534 U.S. 438, 461–62 (2002) (quoting
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992)).
“[A] literal reading of Congress’ words is generally the only
proper reading of those words.” United States v. Locke,
471 U.S. 84, 93 (1985).
Section 115(a)(1)(B) criminalizes threats against “an
official whose killing would be a crime under [18 U.S.C.
§ 1114].” It is undisputed that an “official” under
§ 115(a)(1)(B) refers to a federal official. The restrictive
relative clause “whose killing would be a crime under
[18 U.S.C. § 1114]” limits the category of federal officials to
which § 115(a)(1)(B) applies. See The Chicago Manual of
Style ¶ 6.27 (17th ed. 2017) (“A clause is said to be
restrictive (or defining) if it provides information that is
essential to understanding the intended meaning of the rest of
the sentence. Restrictive relative clauses are usually
introduced by that (or by who/whom/whose) and are never set
off by commas from the rest of the sentence.”); see also
26 UNITED STATES V. ANDERSON
United States v. Nishiie, 996 F.3d 1013, 1017 (9th Cir. 2021)
(noting that restrictive relative clauses are “limiting”). The
restrictive clause thus indicates that the target of the threat
must not only be a federal official, but must also be a federal
official whose killing would be a crime under § 1114. Put
differently, § 115(a)(1)(B) protects federal officials, but only
the subset of federal officials whose killing would be a crime
under § 1114.
Section 1114 criminalizes killing an “officer,”
“employee,” and “any person assisting such an officer or
employee.” A person “assisting” a federal officer or
employee is not himself or herself a federal officer or
employee. Rather, as § 1114 plainly states, that person is
assisting an officer or employee. Under a reasonable reading
of § 1114, Bacchus was assisting an officer or employee of
the United States in providing private security to a Social
Security Administration building. But under no reasonable
reading was he, by virtue of providing such assistance,
himself an officer or employee.
Anderson was convicted under § 115(a)(1)(B) of
threatening a federal official. Bacchus, the target of
Anderson’s threat, was not a federal official. Rather, he was
a “person assisting . . . an officer or employee” of the United
States. Under the plain meaning of the statute, Anderson did
not violate § 115(a)(1)(B). That should be the end of the
matter.
III. Majority Opinion
My colleagues disagree. They read “official” in
§ 115(a)(1)(B) to include everyone protected in § 1114, not
limited to the federal “officials” who are protected in § 1114.
UNITED STATES V. ANDERSON 27
They rely heavily on two cases to support their reading.
Neither case provides support.
The first is United States v. Bankoff, 613 F.3d 358 (3d
Cir. 2010). The question in Bankoff was whether an
“employee” of the federal government, as that term is used in
§ 1114, is an “official,” as that term used in § 115(a)(1)(B).
The Third Circuit answered “yes”:
In sum, we conclude that when § 115’s
reference to an “official whose killing would
be a crime under” § 1114 is read in context,
its meaning is plain; “official” is not used as
a term of limitation, but as a general term that
incorporates by reference all the individuals
protected under § 1114, both “officer[s] and
employee[s].”
Id. at 370. The second case is United States v. Wynn,
827 F.3d 778 (8th Cir. 2016). The question in Wynn was the
same as in Bankoff: Is a federal “employee,” as used in
§ 1114, an “official,” as used in § 115(a)(1)(B)? The Eighth
Circuit followed Bankoff. It wrote, “Though the interpretive
question is not free from doubt, we agree with the Third
Circuit’s analysis.” Id. at 784.
If the question presented in Bankoff and Wynn were
before us, I would reach the same answer as the Third and
Eighth Circuits. But those courts answered a different
question. The question in Bankoff and Wynn was whether a
federal “employee” is a federal “official” within the meaning
of § 115(a)(1)(B).
28 UNITED STATES V. ANDERSON
The question before us is whether a private employee who
assists a federal officer or employee is a federal “official”
within the meaning of § 115(a)(1)(B). The answer is
straightforward. Bacchus was assisting federal officers or
employees. He did not, by virtue of his assistance, become a
federal officer or employee.
Conclusion
Section 115(a)(1)(B) does not criminalize a threat against
an employee of a private corporation that has contracted with
the government to provide security to a government building.
Perhaps such a threat should be made criminal under federal
law. But that is a task for Congress, not for us.
I respectfully dissent.