United States v. Jordan
678 F. App'x 759
| 10th Cir. | 2017Background
- In July 2012 Melissa Jordan created a Facebook event titled “KILLING SPREE,” using an account named after Eric Harris (one of the Columbine shooters), inviting others to join a mass murder in Littleton, Colorado; police and FBI investigated but the event did not occur.
- Jordan pleaded guilty to one count of transmitting a threat in interstate commerce under 18 U.S.C. § 875(c) pursuant to a plea agreement in which the government promised to recommend 3 years probation.
- The Presentence Report calculated an advisory Guidelines range of 15–21 months (offense level 12, Criminal History Category III) and applied a two-level enhancement for multiple threats under USSG §2A6.1(b)(2)(A); probation was not authorized by the Guidelines.
- Probation officer, defense, government, and Jordan’s treating psychologist recommended probation with treatment; the district judge, a former Colorado state judge with personal and professional connections to the Columbine and Aurora shootings, publicly disclosed those connections.
- The district judge denied Jordan’s objections to the multiple-threat enhancement, varied downward from the Guidelines, and imposed a 6‑month term of imprisonment plus three years supervised release.
- Jordan moved for recusal under 28 U.S.C. § 455(a), arguing the judge’s Columbine connections and sentencing choice created an appearance of bias; she also appealed the enhancement for multiple threats.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judge must recuse under 28 U.S.C. § 455(a) | Judge’s personal/professional ties to Columbine plus harsh sentence create appearance of bias | Judge disclosed ties, applied §3553(a) factors, showed sympathy for mental‑health issues, and imposed a below‑Guidelines sentence based on neutral reasons | No recusal; an objective, fully‑informed observer would not reasonably question impartiality |
| Validity of two‑level enhancement under USSG §2A6.1(b)(2)(A) for >2 threats (specific‑victim element) | Other Facebook posts were not directed at a specific individual or group, so they are not “threats” for enhancement | Posts, in context of the Littleton event and account name, were threats directed at the Littleton community | Enhancement upheld: contextualized posts count as threats directed at a group |
| Whether §2A6.1(b)(2)(A) requires defendant’s subjective intent to threaten (mens rea) | Following Heineman, subjective intent to make recipients feel threatened is required; district court erred by not finding intent | The Guidelines contain no mens rea; plain‑error review fails because no controlling precedent imposed mens rea on the guideline enhancement | No plain error: enhancement may be applied without specific mens rea because the guideline lacks a mens rea element |
| Whether sentence itself demonstrates disqualifying bias | Sentence at odds with recommendations shows judge acted from bias | Sentence was a reasoned §3553(a) decision (deterrence, prior suspended sentences, risk if treatment lapses), and was well below Guidelines | Sentence does not require recusal; judicial rulings alone are insufficient to show bias |
Key Cases Cited
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (U.S. 1988) (§455(a) promotes public confidence and addresses both actual bias and appearance of bias)
- Liteky v. United States, 510 U.S. 540 (U.S. 1994) (judicial rulings alone generally do not constitute bias requiring disqualification)
- Nichols v. Alley, 71 F.3d 347 (10th Cir. 1995) (recusal standard and timeliness principles)
- Hinman v. Rogers, 831 F.2d 937 (10th Cir. 1987) (objective test: whether reasonable person, knowing all facts, would doubt impartiality)
- United States v. Nickl, 427 F.3d 1286 (10th Cir. 2005) (§455(a) is a purely objective standard; recusal required when comments reveal extreme favoritism or antagonism)
- Mathis v. Huff & Puff Trucking, Inc., 787 F.3d 1297 (10th Cir. 2015) (reiterating objective standard for §455 analysis)
- United States v. Parker, 551 F.3d 1167 (10th Cir. 2008) (counting number of threatening communications under §2A6.1)
- United States v. Heineman, 767 F.3d 970 (10th Cir. 2014) (First Amendment requires subjective intent to threaten to support conviction under criminal threat statute)
- United States v. Ray, 704 F.3d 1307 (10th Cir. 2013) (refusing to imply mens rea in a guideline when text is silent)