FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT May 9, 2017
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-1322
(D.C. No. 1:13-CR-00076-RBJ-1)
ANDRE J. TWITTY, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, MURPHY, and MATHESON, Circuit Judges.
_________________________________
Defendant-Appellant Andre Twitty appeals from his conviction in the United
States District Court for the District of Colorado for two counts of mailing
threatening communications, in violation of 18 U.S.C. § 876(c). He argues the
district court abused its discretion in admitting two sets of exhibits at trial, requiring
reversal. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I. BACKGROUND1
A. 1999 Conviction and Post-Conviction Proceedings
In 1999, Mr. Twitty was convicted in a Georgia federal district court for
making bomb threats and threatening federal law enforcement. Assistant United
States Attorney (“AUSA”) David Leta prosecuted Mr. Twitty. Judge J. Owen
Forrester presided over the trial and sentencing. The Eleventh Circuit Court of
Appeals affirmed his conviction.
Mr. Twitty filed two habeas petitions under 28 U.S.C. § 2255, which Judge
Forrester denied. The Eleventh Circuit denied Mr. Twitty’s appeal of one of the
denials.
From 2005 to 2008, Mr. Twitty filed seven habeas petitions under 28 U.S.C.
§ 2241 and one Rule 60(b)(4) motion to vacate the judgment in federal district court
in Connecticut, where he was serving his sentence at a federal penitentiary. Judge
Peter Dorsey denied each petition and motion.
B. Threatening Letters
In 2011, Mr. Twitty, while incarcerated at the federal prison in Florence,
Colorado, mailed a letter addressed to Northern District of Georgia U.S. Attorney
Sally Yates and another to the U.S. district court in Connecticut. The letters
contained threats directed to AUSA Leta, Judge Forrester, Judge Dorsey, the
1
We refer to the record on appeal as “ROA” and the supplemental record as
“SROA.”
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Eleventh Circuit, the Second Circuit, and the U.S. Attorney for Georgia. He later
admitted to writing and mailing each of those letters.
As an example, one letter described how Mr. Twitty “started having these
‘DREAMS’” of killing AUSA Leta and Judge Forrester. See SROA at 10. Another
letter mentioned ricin—a deadly poison—and specific weapons and ammunition.
See, e.g., SROA at 5 (mentioning a Colt .357 and Remington .700). The letters also
mentioned specific court orders. See SROA at 9 (mentioning an Eleventh Circuit
“fraudulent” order).
C. First Trial
The letters led to his prosecution and conviction for two counts of mailing
threatening communications, in violation of 18 U.S.C. § 876(c), in federal district
court in Colorado. On appeal, we affirmed his conviction. United States v. Twitty,
591 F. App’x 676, 684 (10th Cir. 2015).
The Supreme Court vacated our judgment and remanded for further
consideration in light of its decision in Elonis v. United States, 135 S. Ct. 2001
(2015). Twitty v. United States, 136 S. Ct. 90 (2015) (Mem.). Elonis clarified that
the mental state for a § 876(c) offense requires that a defendant “transmit[] a
communication for the purpose of issuing a threat or with knowledge that the
communication will be viewed as a threat.” 135 S. Ct. at 2012. On remand, we
reversed Mr. Twitty’s conviction and remanded to the district court because the
district court did not instruct the jury on the requisite mental state of § 876(c) at the
first trial. United States v. Twitty, 641 F. App’x 801, 805, 808 (10th Cir. 2016).
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D. Second Trial
Following our reversal, the Government filed a second superseding indictment
charging Mr. Twitty with the two counts of violating § 876(c). The indictment
included a charge that he sent the letters “for the purpose of issuing a threat, and with
knowledge that the communication[s] would be viewed as a threat,” as required by
Elonis. ROA, Vol. 1 at 71, 73. At trial, the Government introduced Mr. Twitty’s
threatening letters, SROA, Exs. 1-2, and copies of the court orders denying his direct
appeal and habeas petitions.2 Mr. Twitty’s counsel objected to the orders’ admission
on relevancy and hearsay grounds. The court overruled the objections.
The Government also introduced photos of the weapons and ammunition
described in Mr. Twitty’s letters. SROA, Exs. 18-26. Mr. Twitty’s counsel objected
based on relevancy and Federal Rule of Evidence 403.3 The court overruled those
objections.
After being instructed on the proper mental state under Elonis, the jury found
Mr. Twitty guilty of both counts of mailing threatening communications. The court
2
SROA, Ex. 4 (J. Forrester Order, 10/31/07), Ex. 5 (J. Forrester Order,
11/16/10), Ex. 6 (11th Cir. Order, 1/8/02), Ex. 7 (11th Cir. Order, 11/24/10), Ex. 8
(J. Dorsey Order, 12/19/05), Ex. 10 (J. Dorsey Order, 5/31/06), Ex. 13 (J. Dorsey
Order, 3/17/08), Ex. 14 (J. Dorsey Order, 4/22/08), Ex. 15 (J. Dorsey Order,
7/15/08), Ex. 16 (J. Dorsey Order, 11/3/08), Ex. 17 (J. Dorsey Order, 12/9/2008).
3
Rule 403 allows a court to exclude “relevant evidence if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.”
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sentenced him to 60 months in prison on the first count and 78 months on the second
count, to run concurrently.
II. DISCUSSION
On appeal, Mr. Twitty argues the district court erred in admitting (1) the court
orders and (2) the weapons and ammunition photos. We deny both of Mr. Twitty’s
challenges and affirm his conviction.
A. Standard of Review
We review both of Mr. Twitty’s challenges to a district court’s admission of
evidence for abuse of discretion. United States v. Ford, 613 F.3d 1263, 1267 (10th
Cir. 2010). “Under the abuse of discretion standard, the decision of a trial court will
not be disturbed unless the appellate court has a definite and firm conviction that the
lower court made a clear error of judgment or exceeded the bounds of permissible
choice in the circumstances.” In re Nat. Gas Royalties Qui Tam Litig., 845 F.3d
1010, 1017 (10th Cir. 2017) (quotations omitted).
B. Analysis
1. Admission of Court Orders
Mr. Twitty argues the court erred in admitting the court orders because they
were (1) irrelevant, (2) hearsay, and (3) unfairly prejudicial.
At trial, Mr. Twitty’s counsel objected to the orders’ admission on only the
first two bases—relevancy and hearsay—and raised no objection that the orders were
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unfairly prejudicial under Rule 403.4 Because Mr. Twitty failed to make an unfair
prejudice objection in district court and has not argued plain error on appeal, we do
not address that issue. See United States v. De Vaughn, 694 F.3d 1141, 1159 (10th
Cir. 2012) (declining to consider an argument not raised in district court where the
defendant fails to show on appeal that he meets the plain-error standard). We thus
only address his preserved arguments based on relevancy and hearsay.
a. Relevancy
The district court did not abuse its discretion in admitting the redacted court
orders over Mr. Twitty’s relevancy objections.
Evidence is relevant if “it has any tendency to make a fact more or less
probable than it would be without the evidence” and “the fact is of consequence in
determining the action.” Fed. R. Evid. 401. “Irrelevant evidence is not admissible.”
Fed. R. Evid. 402.
At trial, the Government used the orders to help explain why Mr. Twitty made
the threats in his letters. This evidence helped to prove his intent to issue a threat or
his knowledge that such communication would be viewed as a threat—as required to
sustain a conviction under § 876(c). Elonis, 135 S. Ct. at 2012.
Mr. Twitty does not challenge that the orders were relevant to provide context
to his letters. Mr. Twitty concedes that each order ruled against him and thus “is
relevant to his motive for issuing a threat . . . .” Aplt. Br. at 11; see also id. at 15.
4
Mr. Twitty raised only one Rule 403 objection, which was based on
cumulativeness, not unfair prejudice. ROA, Vol. 7 at 120.
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But, he argues, “the other language in the orders”—which he argues portrayed him
“as contentious, litigious and unreasonable” and were “disparaging” towards him—
“is mostly irrelevant to whether the motive was more or less probable.” Id. at 10-11,
15. We disagree.
The language contained in the orders—not just the courts’ rulings—was
relevant to Mr. Twitty’s motive to send the threatening letters.
First, to the extent the orders criticized Mr. Twitty, the orders’ language would
make it more probable that Mr. Twitty had a motive—beyond just the rulings—to
threaten the orders’ authors.
Second, Mr. Twitty’s own letters show the language in the orders—and not
just the fact that he lost in each order—motivated him. For example, in one letter he
referenced a passage in an Eleventh Circuit opinion and stated: “Is that right? That
is not what there [sic] own [expletive omitted] law states.” SROA at 9. His
references to particular language in the court orders tend to show the orders’
language motivated him to threaten the recipients.
Third, Mr. Twitty argues the orders are not relevant because some of them
were “issued years before the letters were sent.” Aplt. Br. at 15. But his letters’
reference to the orders makes them relevant. For example, the letter mentioning a
“Rule 60(b)(4) motion,” SROA at 4, shows the 2008 order denying his motion
motivated him to write the letter. See id. at 45, 48.
The district court thus did not abuse its discretion in admitting the orders over
Mr. Twitty’s relevancy objections.
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b. Hearsay
The district court also did not abuse its discretion in admitting the court orders
over Mr. Twitty’s hearsay objections.
Hearsay is “a statement that . . . the declarant does not make while testifying at
the current trial or hearing; and . . . a party offers in evidence to prove the truth of the
matter asserted in the statement.” Fed. R. Evid. 801(c).
On appeal, Mr. Twitty asserts, but fails to explain, why the orders contained
hearsay statements. The orders were not hearsay because they were not offered to
prove the truth of the statements in the orders. Rather, they were offered to show
their effect on the listener (Mr. Twitty), to establish his intent to send threatening
communications, and to provide context for Mr. Twitty’s letters. Such evidence is
not hearsay. See United States v. Smalls, 605 F.3d 765, 785 n.18 (10th Cir. 2010)
(explaining statements were not hearsay when offered to establish their effect on the
listener and to provide context for a defendant’s statements, rather than to prove the
truth of the matter asserted).
* * * *
The court did not abuse its discretion in admitting the court orders over Mr.
Twitty’s relevancy and hearsay objections. We thus affirm Mr. Twitty’s conviction
on this basis.
2. Admission of Weapon and Ammunition Photos
Mr. Twitty challenges the admission of photos depicting weapons and
ammunition. He had objected that the photos were (1) irrelevant and (2) not
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admissible under Rule 403. On appeal, Mr. Twitty clarifies that his Rule 403
objections were based on the photos’ potential for unfair prejudice and
cumulativeness.
First, we disagree that the photos were irrelevant. They gave context to Mr.
Twitty’s letters referencing the same weapons and ammunition depicted in the photos
and also made his intent to threaten more likely because the photos showed that Mr.
Twitty’s letter referred to real, rather than fictitious, firearms.
Second, the photos were not unfairly prejudicial and did not, as Mr. Twitty
argues, “serve[] only to frighten the jury.” Aplee. Br. at 17. The photos helped to
prove the letters’ purpose of communicating a threat. Although the photos were not
included in Mr. Twitty’s letters, they showed the potential danger of the weapons
referenced in the letter. The photos’ probative value was not “substantially
outweighed” by any risk of unfair prejudice—as required for exclusion under
Rule 403. See United States v. Cerno, 529 F.3d 926, 935 (10th Cir. 2008) (“Under
Rule 403’s balancing test, it is not enough that the risk of unfair prejudice be greater
than the probative value of the evidence; the danger of that prejudice must
substantially outweigh the evidence’s probative value.”).
Third, the photos were not cumulative, as Mr. Twitty contends, because the
Government introduced only one photo for each type of weapon or ammunition
referenced in the letters.
Fourth, Mr. Twitty asserts the court erred by admitting the photos without
conducting its own balancing analysis on the record of the photos’ potential for
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unfair prejudice. But “[w]e have consistently upheld implicit Rule 403
determinations when the determinations are supported by the record” because we can
conduct a “de novo balancing where the trial court failed to make explicit findings to
support a Rule 403 ruling.” United States v. Lazcano-Villalobos, 175 F.3d 838, 846-
47 (10th Cir. 1999). The court’s failure to make specific 403 findings thus does not
warrant reversal because our own de novo balancing review supports the photos’
admissibility.
The court did not abuse its discretion in admitting the photos over Mr.
Twitty’s objections.
III. CONCLUSION
The court did not abuse its discretion in admitting the court orders and photos
of weapons and ammunition referenced in Mr. Twitty’s letters. We therefore deny
his appeal and affirm his conviction.5
ENTERED FOR THE COURT,
Scott M. Matheson, Jr.
Circuit Judge
5
The docket reflects that Mr. Twitty has submitted various letters and
materials to the court. The court has reviewed them and they do not alter our
decision.
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