641 F. App'x 801
10th Cir.2016Background
- Andre J. Twitty was convicted on two counts under 18 U.S.C. § 876(c) for sending threatening communications; the Tenth Circuit affirmed in Twitty I but the Supreme Court vacated and remanded after Elonis v. United States.
- The Supreme Court in Elonis clarified the mens rea requirement for a related threats statute (§ 875(c)), requiring proof that defendant intended the communication as a threat or knew it would be viewed as one.
- On remand the Tenth Circuit ordered supplemental briefs to determine whether Elonis requires reversal of Twitty’s § 876(c) convictions.
- Twitty argued the trial court omitted a required subjective-intent jury instruction (per Elonis), that evidence was insufficient on the mens rea element, that the indictment failed to allege mens rea, and that double jeopardy barred retrial.
- The court concluded the omission of a subjective-intent instruction was plain error affecting substantial rights and the integrity of proceedings, so it reversed and remanded for retrial, but held the evidence at trial was sufficient under the pre-Elonis standard so retrial is permitted; the indictment claim was forfeited but must be amended if government retries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Elonis requires a subjective-intent mens rea for § 876(c) convictions | Twitty: trial omitted required subjective-intent instruction; conviction should be reversed | Gov: review only for plain error; evidence established subjective intent so no reversal needed | Court: Subjective-intent element is required; omission was plain error and affected outcome; reversal and remand for retrial granted |
| Whether the omitted instruction affected substantial rights (plain-error prongs 3–4) | Twitty: omission likely affected outcome; jury could have found no subjective intent | Gov: evidence at trial showed sufficient subjective intent; error did not prejudice outcome | Court: Error likely affected outcome (reasonable probability jury would decide differently) and seriously affected fairness/integrity; plain error established |
| Whether evidence was insufficient so double jeopardy bars retrial | Twitty: government put on no evidence of subjective intent; acquittal on one count supports insufficiency | Gov: evidence was sufficient under law at trial; retrial permissible if conviction reversed for trial error | Court: Evidence was sufficient under pre-Elonis standard; retrial permitted (no double jeopardy bar) |
| Whether indictment was jurisdictionally defective for not alleging mens rea | Twitty: omission was jurisdictional and cannot be forfeited | Gov: Twitty forfeited the challenge by not raising it earlier; omission not jurisdictional | Court: Omission was forfeited; not jurisdictional; if retried government must amend indictment to allege mens rea |
Key Cases Cited
- Elonis v. United States, 135 S. Ct. 2001 (2015) (clarified mens rea requirement for criminal threats statute)
- Heineman v. United States, 767 F.3d 970 (10th Cir. 2014) (subjective intent required for true-threat conviction)
- Wheeler v. United States, 776 F.3d 736 (10th Cir. 2015) (omitted subjective-intent instruction warranted retrial where intent not conclusively shown)
- Wacker v. United States, 72 F.3d 1453 (10th Cir. 1995) (retrial permitted when post-trial law clarification renders outcome unclear)
- Musacchio v. United States, 136 S. Ct. 709 (2016) (sufficiency assessed by elements charged, not by erroneous added elements in jury instructions)
- Burks v. United States, 437 U.S. 1 (1978) (reversal for trial error permits retrial; reversal for insufficiency does not)
- Cotton v. United States, 535 U.S. 625 (2002) (omission of an element from indictment is not jurisdictional)