F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

J A C Q U E L I

N E A N D E R S O N , Defendant-Appellant. No. 20-50207

D .C. Nos. 2:19-cr-00157-CJ C-1 2:19-cr-00157-CJ C

OPI NI ON

A ppeal from the United States District Court for the Central District of California Cormac J . Carney , District J udg e, Presiding

Arg u ed and Submitted December 8, 2021

Pasadena, California

F iled Aug ust 25, 2022

B efore: W illiam A. F letcher, J ohnnie B . Rawlinson, and

J ohn B . Owens, Circuit J udg es.

Opinion by

J u dg e Rawlinson; Dissent by J udg e W . F letcherU N I T E D S T A T E S V

. A

N D E R S O N 2

SUMMARY *

Crim inal Law

The p an e l a f

f i r m e d Ja c q u e line Anderson’s jury conviction for threatening a person assisting federal o f f icers a nd employ e es in violation of 18 U.S.C. § 115(a)(1)(B ).

Anderson threatened to kill a Protective Security Officer

w h ile he was on duty at the L ong B e ach Social Securi t y Office. The PSO was an employ e e of a private company that had b een c ontracted by the Fe deral Protective Service to “provide security services at g overnment

- o wned and leased properties.”

Section 115(a)(1)(B ) prohibits threats a ga i nst “a United States official, a United States judg e, a F ederal la w enforcement officer, or a

n official whose killing would be a crime under section 1114 of this title.” 18 U

. S

. C. § 1114 prohibits killing or attempting to kill “any officer o r employ e e of the United States or of any ag ency in any b ranch of the United States Government

. . . w h i le such officer o r employ e e is eng ag ed in o r on account of the performance o f official duties, or any person a ssisting such an officer o r employ e e in the performance of such duties.”

Ag reeing w i t h the Third and Eig hth Circuits, the panel held that the plain lang u ag e o f § 115(a)(1)(B ) includes all
persons described in § 1114. T he panel rejected Anderson’s
arg ument that the word “official” was a “term of limitation”

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. A

N D E R S O N 3

intended to protect only those “ o fficials ” d esig nated in § 1114. T he panel held that, because, under § 1114, the PSO

was assisting with official duties, Anderso n ’ s conduct

v i o lated § 115, and the district court properly denied h e r motion for a judg ment of acquittal.

Dissenting

, J udg e W

. F letcher wrote t h a t § 1 15(a)(1)(B ) clearly d id not support And e r s o n’s conviction because the PSO was not an “official.” J udg e W

. F letcher wrote that the restrictive clause of § 115(a)(1)(B ) indicates that the targ et o f the threat must not only be a f ederal official, but must also be

a f eder al official whose killing would be a crime under § 1114. Put differently

, § 1 15( a ) ( 1 ) ( B ) protects federal officials, but only the subset of federal officials whose k illing would be a crime under § 1114. J udg e W

. F letcher wrote that the Third and Eig hth Circuit c a ses addressed a different question and d id not support the majority ’s statutory reading

. J udg e W. Fl e t ch er w rote that the PSO, the targ e t o f Anderson’s threat, was not a federal official, but r a t h e r was

a “person assisting

. . . an officer or employ ee” of the United States; therefore, under the plain me a n i n g of the statute, Anderson did not violate § 115(a)(1)(B ).

COUNSEL

Gia K im (arg

ued), Deputy F ederal Public Defender; Cuauhtemoc Orteg a , F ederal Public Defender; Office of the F ederal Public Defender, L os A ng eles, Califor n i a , for Defendant-Appellant.

David R. F riedman (arg ued), Assistant United S t at e s Attorney ; B ram M. Alden, Chief, Criminal Appeals Section; Tracy L

. W ilkison, Acting United St ates Attorney ; UnitedU N I T E D S T A T E S V

. A

N D E R S O N 4

States Attorney ’ s Office, L os Ang eles, California; for Plaintiff-Appellee.

OP INION

RAW L I NSON, Circuit J udg e:

W e readily a c k nowledg e that 18 U.S.C. § 1 1 5 is not a model of leg islative c larity

. However, t h a t is nothing new. See, e.g. , United States v. Lucero
, 989 F

. 3d 1088, 1096 (9th Cir. 2 0 2 1 ) (describing the Clean W ater Act as “ not the
most artfully d

rafted”); see also In re HP Inkjet Printer Litig.
, 716 F

. 3d 1 173, 1181 ( 9th Cir. 2013) (noting the “ bewildering wording ” of the Class Action F airness Act) ( citation a nd internal quotation marks omitted). W e a re not the first court to find the st a t utes and cross-references of issue h ere to be unclear. S

ee United States v

. W

ynn , 827 F .3d 778, 7 83 (8th Cir. 2 016) ( describing § 115 a s a “strang e ly -worded statute”). B ut the lack o f clarity does not neg ate our ob l i ga t i on to ascertain the intent of Cong ress in enacting t h e statute. 1 Having done so, we c onclude that the district court correctly

1 Co n trary to th e d issen t ’ s in sin u atio n , a lack o f clarity d o es n o t eq u ate to am

b ig u i ty

. S ee Dissen tin g Op in io n , p

. 2 2

. A l th ou g h 1 8 U.S.C. § 1 1 5 co u ld h a ve b e e n m o r e clearly draf ted

, it is n o t am

b ig u ou s. S

ee Ch o w d h u r y v. I.N.S

. , 2 4 9 F.3 d 9 7 0
, 9 7 2 (9 th Cir. 2 0 0 1 ) (“ W e m u st f irst d eterm in e w

h eth er th ere is an y am

b ig u ity i n t

h e statu te u sin g trad itio n al
to o ls o f s tatu t o ry i n t erp retatio n

. . . .”) (citatio n o m itted ). T h u s, th e ru l e of len i ty is n o t trig g ered

. S

ee Oca sio v. Un ited S ta t es , 5 7 8 U.S. 2 8 2
, 2 9 5 n .8 (2 0 1 6) (“T h [ e ] r u le [o f len ity ] ap p lies o n ly w h en a crim in al statu te

co n tain s a g riev o u s am

b ig u ity o r u n certain ty , a n d o n ly if

, af ter seizin g

e v e r y t h in g f ro m w h ich aid can b e d eriv ed

, th e C o u rt can m ak e n o m o r e th an a g u ess as to w

h at C o n g r e s s in ten d ed .”) (citatio n an d in tern al
q u o tatio n m ark s o m itted ).U N I T E D S T A T E S V

. A

N D E R S O N 5

include d a Protective Security O fficer (PSO) within the
persons c overed under the p rovisions of § 115, and A F F I RM the judg ment of conviction. 2

I. Background

Defendant J a c queline Anderson (Anderson) was convicted of violating 1 8 U.S.C. § 115(a)(1)(B ) b y threatening a person assisting federal officers and employ ees. Anderson t h r e atened to kill PSO J ustin B acchus (PSO B acchus) while he was on duty a t the L ong B ea c h Social Security Office (Social Security O f fice). We have jurisdiction to revie w A n derson’s a ppeal under 28 U .S.C. § 1291.

A. The Incident and The Indictm e nt

At all times relevant to this case, PSO Ba cchus was an employ e e o f a private company that has b e en contracted b y the F ederal Protective Service (F PS) to “provide security services at g overnment-owned and leased properties.” F PS is the federal ag ency responsible for protecting federal building s. Given the sheer nu m ber o f facilities within its jurisdiction, F PS relies on contractors to protect facilities that it does not have the capacity to cover.

2 W e are n o t p ersu ad ed b y o u r co lleag u es’ co n ten tio n th at t h e statu te

“ i s v ery clear [an d ] d o es n o t su p p o rt t h e co n v ictio n .” Dissen tin g O p in io n , p

. 2 2

. Un d er th e d issen t’ s read in g of th e statu te, t h e l an g u ag e is clear o n ly if th e po rtio n s o f § 11 5 in co rp o ratin g 18 U.S.C. § 1 1 1 4 are ig n o red

. O f

co u rse, s u ch a read in g f

lo u ts a card i n al ru le o f statu to ry co n stru ctio n —th at

e a c h w o rd in th e statu te b e g iv en ef f ect. S ee Ha ma za s

p ya n v. H o l d e r , 5 9 0 F.3 d 7 4 4
, 7 4 9 ( 9 t h C i r. 20 0 9 ) (“ W h ere p o ssib le, w e are req u ired to g iv e each w o rd o f

a statu te m ean i n g . . . .”) (citatio n o m i tted ).U N I T E D S T A T E S V

. A

N D E R S O N 6

On a ty

pical day

, the Social Security Off i c e t asks three PSOs with screening and p rocessing the o ffice’s v isitors. The first PSO is stationed outside the main entrance and is responsible for directing visitors to either the “appointment”

or “g e neral information” line. The second PSO is assig ned to

screen and check bag s for prohibited items. The third PSO is stationed at the metal detector to ensure that no w eapons a re broug ht into the office. The three PSOs rotate throug h these positions throug hout the day

.

On the morning of December 12, 2018, PSO B acchus was outside, screening an d processing visitors to the Social Security O ffice. Anderson arriv ed at the Social Security Office just b efore 11:15 that morning

. She approached PSO B acchus and inform ed h i m that she had an appointment. W h en PSO B acchus was unable to verify that A nderson had

an appointment, he directed h er to the “g eneral information” line.

PSO B acchus’ response ang e red Anderson. She became
ag g r essive, a

nd h er voice “g o t louder.” I nit i ally she refused
to move; but eventually

, went to the back of the line a s directed.

Shortly thereafter, an older man approached PSO B acc h us. The man did not have an appointment either, so PSO B a cchus instructed him to g o to the back of the “ g eneral information” line as well. D espite PSO B acchus’ instruction,
moments later, the man was ne a r t h e f r ont of the line with Anderson. B ecause PSO B acchus knew that the man “didn’t
g o to the back of the line and m a k e h i s way to the f ront that quickly

, ” he decided to approach the ma n

. H owever, Anderson “jumped in the conversation and told [ PSO B acchus t h a t t he man] d idn’t have to g o any where.” SheU N I T E D S T A T E S V

. A

N D E R S O N 7

c o n t i n u ed: “I don’t g ive a f *** about y ou or none of thes e illeg al Mex icans,” and that she didn’t “care about the rules o f the Social Security Administration.” She then turned to PSO B acchus and said, “F *** y ou, b  a**  n****.”

PSO B ac ch u s informed Anderson that her behavior was “becoming a problem for the other people in line” a nd that she “ cannot be speaking like that.” Anderson had b e come so “loud[ ] ” and “unruly ” that P S O Kraft came outside to h elp PSO B acchus de-escalate the s i t u a t ion. Despite the PSOs’ attempts at de-escalation, Anderson persisted in “[ c] ursing

, g etting loud, and just being very , like, ag g re s s i v e i n her

m a n n er.” Ultimately

, PSO B acchus decided that, g iven Anderson ’ s b e h avior, he could not a llow her into the building

.

W h en PSO B acchus informed Anderson that she would
not be allowed into the Social Security Office and would have
to c ome b ack the nex t day

, Anderson became “[ v] ery upset.” She blocked the door to the Social Security Office a nd refused to leave. R a t h er than moving Anderson—and to avoid f urther escalating the situation—PSO Kraft d ecided to open another door to allow visitors t o enter and ex it. A s Anderson continued to block the entrance, she told PSO B acchus that she “would not move” a n d that she didn’t “ care about [ his] job and she’ll g et [ his] black a** fired.”

W h en P S O Wh i t e side came outside to help PSOs B a cchus and Kraft d iffuse the situati o n and spoke to Anderson, she

once ag ain “y elled” and cursed. After PSO W hites i de went back inside, Anderson continued to block the door.U N I T E D S T A T E S V

. A

N D E R S O N 8

Eventua lly

, Anderson turned toward her car to leave the Social Security Offic e. B ut as she walked a way , she told PSO B acchus: “I ’ m go i n g to g o to my car and g et my g un and blow y o ur f***ing brains out.”

Anderson’s tone was “loud” and made PSO B acchus feel “threatened,” “afraid,” an d “ like she mig ht carry out the action.” W anting to “make sure [ he] heard what was said to [ him] ,” PSO B acchus responded, “Ex cuse me? ” “W hat did
y ou say ? ” Anderson continued toward her car and replied, “You heard me.”

PSO B a cchus immediately informed PSOs Kraft a nd W h iteside that Anderson had threatened him. PSO B a cchus “felt scared” and “fea r e d for [ his] life.” He was also concerned about the “ other people in line based off . . . what she said about illeg a l immig rants.” Consequently

, the PSOs decided to leave their posts, a n d follow Anderson to her car. They planned to detain her, or at the v ery least, g et her license plate number so they

could report the threat.

Althoug h Ander s o n drove away in a “[ f] ast, ag g ressive”

man n e r before the PSOs were able to detain her, they recorded her license plate number. They also reported the incident, and “stay ed on alert” for “two or three day s.”

After an investig ation by F PS, Anderson was charg ed in

a sing le count indictment with threatening a person assisting federal officers and employ ees in violation of § 115(a)(1)(B ). The indictment alleg e d that Anderson:

knowing ly threatened to assault and m u r der victim [ PSO B acchus]

, a Protective Se curity Officer employ e d by P a r ag o n Sy stems,U N I T E D S T A T E S V

. A

N D E R S O N 9

assisting officers and employ ees of the United States Socia l S e c u

r i t y A d m i n i s t r a t i o n (“SSA”) in the L ong B each, Californ i a field o ffice, with the intent to impede, intimidate, a nd interfere w ith victim [PSO B acchus] while victim [ PSO B acchus] was eng ag ed in, and on account of, the p erformance of official duties, and with the intent to retaliate ag ainst victim [ PSO B acchus] on a ccount of the performance of official duties.

B. The Trial

During tr ial, PSOs B acchus, Kraft and W hiteside all testified on b ehalf of the g overnment about their interaction with A nderson. Anderson did n o t c all any witnesses, but moved under F ederal Rule of Crim inal Procedure 29 (Rule 29) for judg ment of acquittal o n the basis that PSO B a cchus is not an “official” for the purposes of § 115(a)(1)(B)

. S h e contended t h at “[ t] h e o nly evidence put on during the
g overnment’s case [ wa] s that a threat was made towar d a private security

g uard in the employ

of Parag on Sy stems.”

The district court declined to rule on the motion u ntil a fter the jury returned its verdict. Mea n t i me, the jury was instructed that:

The second element the g over n m e nt must prove b ey ond a reasonable doubt is that, at the time the threat was made, Protective Security Officer B acchus was a federal official.U N I T E D S T A T E S V

. A

N D E R S O N 10

A “federal official” includes officers a nd employ ees of the United States and a ny person assisting an officer or employee of the United States while such a n officer or employee i s engaged in the performance of official duties. Officers and e mploy ees of the Social Security Administration and the F ederal Protective Service, which i s part o f the Department of H omeland Security

, a re officers and employ ees of the United States. I t is f or y ou to determine if Protective Securit y Officer B a c chus w as a

n officer or employ ee of the United Sta t es o r a person

. . . a ssisting

o f ficers o r employ ees of the United States at the time the threat was made.

(Emphasis added).

The jury c onvicted Anderson of violat i n g 1 8 U .S.C. § 115(a)(1)(B ), and the court subsequently d e n ied Anderson’s Rule 29 motion. Af

t e r being sentenced to one y ear o f probation and a fine, Anderson filed a timely n otice of appeal.

II. Discussion

Anderson challeng es the district court’s denial of her Rule 29 motion for judg ment of acqui t tal. She arg ues on appeal that PSO B acchus is not a n “o f f i c i a l ” under 1 8 U .S.C. § 115(a)(1)(B ). This arg u ment present s a q uestion o fU N I T E D S T A T E S V

. A

N D E R S O N 11

statuto r y i nterpretation, which we decide de novo. See United S tates v. Pacheco

, 977 F .3d 764, 767 (9th Cir. 2020). 3

Anderson wa s c harg ed under § 115(a)(1)(B ) which provides in pertinent part:

W h oever

. . . threate n s to assault, kidnap, o r murder, a Un i t ed States official, a United States judg e, a F ed e ral law enforcement officer, or an officia l whose killing would be

a crime under section 1114 of this t i t l e , . . . with intent to impede, intimidate, or interfere with such official, judg e, or law enforcement of f i ce r while eng ag ed in the p erformance o f official duties, or with intent to retaliate

a g a i n s t s u c h o f

f i ci a l

, j u d ge , o r l a w enforcement o fficer on acco u nt of the performance of official duties, s h a ll be punished . . . .

18 U.S.C. § 115(a)(1)(B ) (2018) (emphasis added).

3 T h e g o v ern m en t arg u es th at A n d erso n w aiv ed h er claim th at P S O B acch u s is n ot an “ o f

f icial” co v ered b y 1 8 U

. S

. C

. § 1 1 5 (a)(1 )(B ) b y f ailin g to raise it in a p retrial m o t i o n as req u ired b y Fed eral Ru l e of Crim in al P ro ced u re 1 2 (b )(3 ). W e a r e u n persu ad ed b y th is arg u m en t. Ev en if th e g ov ern m en t is co rrect an d A n d erso n w as req u ired to raise th is claim b ef o re trial, t

h e claim i s n o t w aiv ed b ecau se th e d istrict co u rt ad d ressed it o n th e m erits in a w ritten d ecisio n

. S

ee Un ited S ta tes v. S

co tt , 7 0 5 F.3 d 4 1 0, 4 1 6 (9 th

Cir. 2 0 1 2 ) (“ Ev en

w h ere a w aiv er arg u m en t m ay b e av ailab l e, w

h en a co u rt ru les on th e m erits o f an u n tim ely su p p ressio n

m o tio n , it i m

p licitly co n clu d es th at th ere is ad eq u ate cau se t o g ran t relief f ro m a w aiv er o f

th e rig h t to seek s u

p p ressio n

. . . .”) (citatio n , alteratio n , an d in tern al q u o tatio n

m ark s o m itted ).U N I T E D S T A T E S V

. A

N D E R S O N 12

I n turn, § 1114 provides, in relevant part, that:

W h oever k i lls or attempts to kill any officer

or employ ee of t h e United States or of any ag ency in any branch of the United States Government (including any m ember of the uniformed services) while such off i cer o r

e mploy ee is eng ag ed in or on account of the perform ance of official duties, or any person

a ssisting such a n officer o r employee in the
p e r f ormance of such d

u ties or on account o f that assistance, shall be punished . . .

18 U.S.C. § 1114(a) (2018) (emphasis added).

I n cases requiring statutory interpretatio n , “our starting point is the plain l ang uag e of the statute.” United States v

. W illiams

, 659 F .3d 1223, 1225 ( 9th Cir. 2 0 1 1 )

. Our r eview of the statute’s p lain lang u ag e involve s a n ex amination o f

“ t h e specific provision at issue, but also the structure of the
statute as a w hole, including its obj e c t an d policy .” Id. (citation o mitted). Our analy sis is i n f o r med by decisions from other circuit courts that have interpreted the statute, a nd

we will not create a c i r cu i t split unnecessarily

. See Seven Arts Filmed Ent. Ltd. v. Content Media Corp.
, 733 F .3d 1251, 1255 (9th Cir. 2013) (taking g uidance from two of our sister circuits when resolving an issue o f first impression); see also Padilla-Ramirez v. Bible

, 882 F .3d 826, 836 (9th Cir. 2017) (“declin[ ing ] to create a circuit split unless t h e r e is a compelling reason to do so”) (citation omitted).

Althoug h we have not previously considered the iss u e presented b y Anderson’s appeal, two of our sister c ircuits have held that § 115(a)(1)(B ) includes all individuals coveredU N I T E D S T A T E S V

. A

N D E R S O N 13

by 18 U.S.C. § 1114. See U nited S tates v. Bankoff

, 613 F .3d 358, 3 6 0 (3rd Cir. 2010); see also W ynn , 827 F .3d at 783–85.

The Third Circuit was the first federal appellate cour t t o resolve the question of the scope of § 115(a)(1)(B ). I n Bankoff

, the defendant was convi c t ed of threatening two Soc i a l Security Administration employ ees in violation o f § 115(a)(1)(B ). S

ee 613 F .3d at 360. The first employ ee was

a claims r e p r esentative (indictment Count Three) a nd the second w as a

n o p e r a t i ons supervisor (indictment Count Two). See id. The district court g ranted the d efendant’s motion for judg ment of acquittal on Count Three on the ba s i s that the claims representative was not a n “official” under § 115(a)(1)( B)

, because her responsibilities were limited to “routine and subordinate functions.” Id. T h e d efendant’s motion for judg ment of acquittal on Count Two was denied. See id. The district court reasoned that because an operations supervisor “had the a

uthority to adjudicate claims o n behalf of the federal g overnment,” she was an “of f i c i a l

. ” I d

. On appeal, the Third Circuit affirmed the d istrict court’ s d enial of the d efendant’s motion f or judg ment of acquittal on Count Two and vacated the acquittal on Count Three. See id. The Third Circuit reasoned that both the c laims representative a nd
t h e o peratio n s s u p er v i s o r w e r e “ o f f i c i a l [ s ] ” u n d e r § 115(a)(1)(B ). Id.

To reac h t his conclusion, the Third Circuit reviewed the
tex t, c ontex t, and leg islative histories 4 of §§ 115(a)(1)(B ) a nd 1114. See i d. at 365–72. The court b eg an by rejecting the defendant’s arg ument that “ Cong ress could not have intended

4 T h e co u rt n o t ed t h a t b ecau s e t h e lan g u ag e o f § 1 1 5 w as “ p l ain ,”

co n su ltin g l eg islativ e h i s t o ry w as n o t req u ired

, b u t co n sid ered on ly as a

“ co u rse m ark er.” Ba n ko

ff , 6 13 F.3 d at 3 7 1

.U N I T E D S T A T E S V

. A

N D E R S O N 14

that § 1 15 apply to threats ag ainst employ ees ‘whose killing would be a c rime under’ § 1114 by referring to threats ag ainst

‘ o f f i c ial[ s] whose killing would be a crime under’ § 1 1 1 4 ” because the terms “official” and “ employ ee” have different ordinary meaning s. I

d. at 365. The court reasoned that § 115

“ p r o h i b i t s t h r e a t s a g a i n s t f o u r c a t e g o r i e s o f individuals—‘United States o fficials,’ ‘United S t a t e s j u d g e s,’ ‘F ederal law enforcement o fficers,’ and ‘officials whose killi n g wo u l d be a crime under’ § 1114.” Id. at 366 (alterations omitted )

. Althoug h only the first three terms a re

ex p licitly defined b y the statute, the court was persuaded that “Cong ress intended for § 1114 itself to de f i ne th[ e] [fourth]

c a teg ory by incorporating it by reference into § 115.” Id. (citation o mitted ). T hus, the court held, the ordinary dictionary definition o f “official” is not controlling

. Id. at 366–67.

The court was not convinced by the defendant’s arg ument that if Cong ress had intended to have § 1 1 5 apply to all
persons listed in § 1114, it would h ave used lang uag e like “any p erson desig na t ed in section 1114,” as it did in 18 U.S.C. § 111. Id. at 367 (emphasis in the orig inal). Rather, the court concluded th a t Cong r e ss’ use of different lang uag e to incorporat e § 1114 into “different statutes that

were c odified nearly four decades apart—§ 111 in 1948, a nd § 115 in 1984” did not portend that “it used the term ‘official’ (as opposed to ‘person’) in § 1 1 5 with the intention o f limiting its scope.” Id. (footnote reference omitted).

The Bankoff defe n d a n t’s final arg ument centered on the leg islative history

of §§ 115 and 1114. See 613 F

. 3d a t 371. The defendant maintained that the leg islat i v e h istory of the two provisions “indicates that Cong ress was concerned with hig h policy

making

, judicial and law e nforcement officers, butU N I T E D S T A T E S V

. A

N D E R S O N 15

that

. . . leg islat ive concern d id not ex tend to federal employ e es in g eneral.” Id. The c o u r t rejected this contention, concluding that even if “ Cong ress was p rimarily concerned with protecting hig h-ranking policy makers,” there

was no indication in the leg islative history that Cong ress did
not intend to protect “mere employ ees” as well. Id. (internal quotation marks omitted).

After its thorough r eview o f the tex t and leg islative histories o f t he statutes, the Third Circuit concluded that “Cong ress did not use ‘official’ [ in § 115] as a limitation on the categ ories o f individuals protected by § 1114.” Id. at 372.

I n W ynn , the defendant also challeng ed his conviction under § 115(a)(1)(B) by arg uing that the supervisor he threatened was not a federal “official.” 827 F .3d at 783. The Eig hth Circuit was u

n p e r suaded, r easoning that in c ontex t, the wording of § 1 15(a)(1)(B ) “strong ly sug g ests” that the term “official” was defined by a c r oss-reference to the “universe of federal ‘ officials’ c overed by § 1114.” Id. Citing B ankoff

, the Eig h th Circuit observed that the def e n dant’s arg ument 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. Althoug h acknowledg ing that § 1114 has been cross-referenced in othe r s t atutes containing words broader than “ official,” the Eig hth Circuit was nevertheless persuaded that “ there is nothing in the leg islative history of these other statutes, or of the later amen dments to § 115(a)(1)(B ) a nd § 1 1 14, that sug g ests Cong ress intended to chang e, or to clarify

, the fun damental r elationship between’ § 115 a nd § 1114.” Id. at 784 (citation, alteration, and internal quotation marks o mitted). This “ fundamental r elationship” is that § 115(a)(1)(B ) incorporat e s § 1114 in its entirety

. Id. at 784–85.U N I T E D S T A T E S V

. A

N D E R S O N 16

W e are similarly persuaded that the plain lang uag e o f § 115 incorp o r a t e s all persons described in § 1114. Section 115(a)(1)(B ) c riminaliz es threa t e ning to assault, kidnap o r murder “a U nited States official, a United States judge

, a F ederal law enforcement officer, or an official whose killing would be a crime under [ section 1114 ] .” 1 8 U .S.C. § 1 15(a)(1)(B ) (emphasis added). Cong ress ex plicitl y delineated the defined categ ories of “United States official,” “United States judg e,” a n d “F ederal law enforc ement officer,” i n § 115. Id. § 115(c). T h is phrasing “strong ly
sug g ests” that the following phrase—“official whose killing would be a crime under section 1114”—was not intended to be an u n d e f

i ned term. W

ynn , 827 F

. 3d at 783; see also Bankoff

, 613 F .3d at 3 6 6

. L og ically and ling uistically speaking

, the definition c an only be found in the lang uag e o f § 1114. See id.

Anderson arg ues that we should reject t h e plain r eading of § 115 and instead interpret the statute using the o r d i n a ry meaning of “official.” She sug g ests that the word “official” in § 115 is a “ term o f limitation” i n t e n d e d to protect only those “official[ s] ” desig nated in § 1114. Anderson therefore contends, that e ven if PSO B acchus wa s a s s i sting with official d uties, he was not an “ o fficial” within the ordinary

me a n i n g of that term, or in a similar position as the “official[ s] ” specifically

delineated in § 1114.

Our colleag ue in dissent parr o t s A nderson’s arg ument. B ut this arg ument makes sense only if the word “official” is considered in is o l a t ion without consideration of those individuals described in § 1114. W e, like the Third Circuit, find this narrow reading u npersuasive. As the Third Circuit wrote in Bankoff

:U N I T E D S T A T E S V

. A

N D E R S O N 17

[ W ] e think it implausible tha t C ong ress used the term “official” as a limitation o n the
persons enumerated in § 1114, y et declined to define that term o r provide any indication a s t o how courts (or presumably juries) were t o d e t e r m i n e w h i c h o f t h e e n u m e r a t e d “employ ees,” “officers, ” “members,” a nd “ag ents” listed in § 1114 a l s o qualify a s “officials.”

613 F .3d at 369–70 (footnote reference omitted).

W e agr ee with the T h ird and Eig hth Circuits that Anderson’s interpretation would r e q uire an individual to b e both a n “official” a

n d an “officer

, ” “employ ee” or person assisting an o fficer or employ ee with their officia l d u ties under § 1114. Id. ; see also W ynn , 827 F .3d at 785. B ecause Cong r ess p rovided no g uidance o n how to e ven beg in to d e t e r m i n e w h i ch “officers,” “employ ees,” or persons as s i s t i n g those officers or employ e es would count as “ o fficial[ s] ” under § 115, Anderson and the dissent’ s s u gg ested interpretation is unworkable and unfaithful to the intent of the
statute.

O u r colleag u e in d issent r easons that an individua l

“ a s s i s ting a federal officer or employ ee is not himself

. . . a federal o f

f i cer or e mploy ee.” Dissenting Opinion
, p

. 26 (internal quotation marks omitted). B u t this reasoning e lides
t h e actual inclusion of those assisting a f ederal officer o r employ e e under t h e u m brella of individuals referenced in §115, whose killing would violate § 1114. Admittedly

, § 1 1 1 4 did n o t orig inally protect persons a ssisting federal officers. See Bankoff

, 613 F

. 3d at 3 6 8

– 6 9 (discussing amendme n t history o f § 1114). B ut the dissent does notU N I T E D S T A T E S V

. A

N D E R S O N 18

ex p lain how the subsequent ex pansion of § 1114 transformed the term “official” in § 115 into a term of limitation, when it

was not a term of limitation orig inally

. See Dissenting Opinion
, p. 26–27 (ag r eeing that “federal employ e e[ s] ”—a class that encompasses th e i ndividuals previously protected by § 1114—are “ ‘official[ s] ’ within the me a n i n g o f § 115(a)(1)(B )”).

The dissent also seeks to disting uish the cases r elied on b y the majority

, both o f w hich interpret the same two statutes at issue i n this case. See Dissenting Opinion pp. 26–27. The dissent is correct that both Bankoff and W ynn involved federal

e m p loy ees, not persons a ssisting federal employ ees, but the logic of tho s e cases does not support the dissent’s proposed line-drawing

. And it is telling that the dissent cites n o case that has reached a different conclusion reg arding the interplay between §§ 115 and 1114. I ndeed, adoption of the dissent’s reading of the statutes would create a n unwar r an t ed circuit split, a result we understandably avoid if at all possible. See Padilla-Ramirez , 882 F .3d at 836.

Anderson also c o n t ends that the leg islative history o f § 115 supports her reading that § 115 o nly applies to “officials” desig nated i n § 1114. A ctually

, the leg islative history of § 115 offers no such support. The Senate Report
accompany

ing § 115 d em o n s t rates, contrary to Anderson’s position, that the p rotections afforded by § 115 w ere not intended to be limited to “officials.” W hen § 115 was passed, the Senate wrote that:

[ § 115] is a new provision desig n ed to protect the close relatives of certain hig h lev el officials, such as the President, VicePresiden t , members of Cong ress, cabinetU N I T E D S T A T E S V

. A

N D E R S O N 19

officers, and federal judg es, as well as federal law enforcement officers . . .

The Comm i t t ee believes that serious crimes
ag ainst family members of hig h level fede r al officials, federal judg es, and fed e r al law enforcement officers, which are committed because of their relatives’ jobs a re, g enerally

s p e a k i n g , p r o p e r m a t t e r s o f f e d e r a l

concern. . . .

S. Rep. No. 98-225 at 320 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3496, 1983 W L 25404 (emphasis added). This lan gu a ge sig nals that Cong ress’ intent in passing § 1 1 5 was to afford protections to non-officials; we

are therefore unpersuaded t h at § 1 15 should be read to capture only

those “officials” listed in § 1114.

Anderson relies on the r eference canon to arg ue that § 115 incorporates § 1114 as it ex isted in 1986, when Cong ress first added § 115(a)(1)(B ). S

ee Jam v. Int’l Fin. Corp.
, 139 S. Ct. 759, 769 (2019) (ex plaining 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 e x isted

w h e n the referring statute was enacted, without an y subsequent a mendments”) ( citation omitted). At that time, § 1114 did not protect “person[ s] assisting ” fe d e r al employ e es and would not have protected PSOs like B acchus. See Bankoff

, 613 F .3d at 368 n.9.

B u t t h e reference c a

non does not apply when “ there is
some very clear indication to the contrary .” United States v. Smith

, 68 3 F

. 2d 1236, 1239 (9th Cir. 1982) (en banc) (citations omitted). And, as ot h e r c ircuits have concluded,U N I T E D S T A T E S V

. A

N D E R S O N 20

simulta n eous a mendment or re-enactment of both statutes “evidences a cong r essional intent t o i n corporate subsequent amendments.” Unite d States v. Rodriguez-Rodriguez

, 8 6 3 F .2d 830, 831 (11th Cir. 1989) ( per c uriam). E v e n amendments that “appear small” can show that the interaction b e tween two statutes “did not escape Cong r ess’s notice.” New Y ork 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, Cong ress amende d b o th §§ 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, 1 300, 1302 (1996). I t is i m p lausible that Cong ress simultaneously edited both statutes but missed their interaction. True, AEDPA am e n ded § 115(a)(1)(A), not subsection (a)(1)(B ), with which Anderson i s charg ed. B ut subsection ( B ) incorporates § 1114 only throug h its r e ference
to subsection (A). Given the link between these subsections, it is absurd to think that Cong ress intended the scope o f (a)(1)(A) (covering assaults, kidnapping s, murders, attempts, and conspiracies) to differ from that of (a)(1)(B ) (covering threats).

AEDPA’s leg islative history bolsters our conclusion that Cong r ess was aware of the c r oss-reference and intended § 115 to incorporate the updates to § 1114. A s u mmary o f AEDPA ex plained that, “ [ b] y ex panding the coverag e o f 18 U.S.C. 1114 to include a ll f ederal officers and employ ees, [ AEDPA] also ex p ands the coverag e of . . . 18 U.S.C. 1 15.” Charles Doy le, American L aw Division, 96-499 A
, Antiterrorism and E f

fe c t i v e Death Penalty A ct of 1996: A Summary 38 ( 1996) [ hereinafter Doy le, Summary ]

. This reading a lso furthers AE D P A ’ s “larg e r leg islative scheme,”U N I T E D S T A T E S V

. A

N D E R S O N 21

Rodriguez-Rodriguez

, 863 F

. 2d at 831, “[ t] o deter terrorism.” 110 Stat. at 1214. 5 W e therefore reject applicat i o n of the reference canon in this c ase as incompatible with Cong r essional intent.

W e are convinced that affording the protections of § 115
to individuals who are threatened while assisting officers o r employ e es of the U nited States with their o f f i c i al duties is similarly a “matter[ ] of f

ederal c o ncern.” S. Rep. No. 9 8-225, at 320.

III. Conclusion

Althoug h w e a c k

n o w l edg e that Cong ress could have more carefully drafted 18 U.S.C. § 115, we join our sister c ircuits in concluding that, plainly read, the statute incorporates all
p e r sons covered by 18 U.S.C. § 1114. W hen Ander s o n threatened P S O Bacchus, he was assisting the F PS in performing its official d uty to protect th e Social Security Office. Thus, her conduct violated 18 U.S.C. § 115, and the

5 T h e ev en ts th at p ro m

p ted th e p assag e o f A EDP A in clu ded th e d ead ly b o m

b in g at an Ok lah o m a City f ed eral b u ild in g in 1 9 9 5. S ee, e.g

. , Do y l e, Su m

m ary , at 1 (“ T h e A

n titerr o r i s m an d Ef

f ectiv e Death P en alty A ct of 1 99 6 is th e p ro d u ct o f leg islativ e ef f o rts

. . . s tim

u lated to p assag e in p art b y th e trag ed [y ] in Ok lah om a C ity

. . .”). Giv en t h i s h i s t o r i cal

co n tex t, w e can n o t co n clu d e t h at Co n g ress i n ten d ed t o leav e u n p ro tected th e v ery p e o p l e w

h o p ro tect f

ed eral b u ild in g s: P SOs lik e B acch u s. S ee

a lso

, e.g

. , Cara McCo y , S la in Co urt O f f i c e r Rememb ered fo r Service to La s Veg a s (J an

. 1 1
, 2 0 1 0 ), h t t p s : / / l a s ve ga s s u n

. c o m / n e w s/ 2 0 1 0 /

j a n / 1 1 / f u n eral- serv ices- to d ay

- slain -c o u rt- o f f icer/ (rep ortin g o n th e k i llin g of a

co u rt secu rity

o f f i cer in L as Veg as).U N I T E D S T A T E S V

. A

N D E R S O N 22

district court committed n o e rror when it denied her Rule 29 motion for a judg ment of acquittal. 6

AF F IRMED.

W

. F L ETCHER, Circuit J udg e, dissenting :

The majority writes that the statute under which J acqueline Anderson was convicted “is not a m o d el o f leg islative clarity ,” but concludes that t h e statute’s “lack o f clarity ” does not protect Anderson f r om conviction. I respectfully

disag ree.

I f the s t atute were truly u nclear, it should not be used to convict Anderson. Y

a tes v. U nited States
, 574 U

. S

. 5 2 8, 547–48 (2015) (“[ A] mbig uity concerning the ambit o f criminal statutes should be r esolved in favor of leni t y

. ” (quoting Cleveland v. United States
, 5 31 U.S. 12, 25 (2000))). However, with respect to the question before us, the statute is
very clear. I t does not support the conviction.

6 W e also rej ect A n d erso n ’ s a r g u m en t th at a n ew trial is req u ired b ecau se th e d istrict c o u r t m istak en ly in stru cted th e j u ry

. T h e j u ry w as in stru cted th at “ f

ed eral o f f icial” in clu d es “ an y p erso n assistin g an o f f icer

o r em p lo y ee of th e Un ited States w h i le su ch an o f

f i cer o r em

p lo y ee is

en g ag ed i n th e p e r fo rm an ce o f o f f icial d u ties.” A s d iscu ssed

, th e in stru ctio n w as a co rrect statem en t o f l a w

. T h eref o re, n o n ew t

rial is

r e q u ired

. S

ee Un ited S ta tes v. Ren zi
, 7 6 9 F.3 d 7 3 1
, 7 5 5

– 5 6 (9 th C i r

. 2 0 1 4 ); see a l

so W yn n , 8 2 7 F.3 d at 7 85 (rej ectin g a claim o f in stru ctio n al

erro r).U N I T E D S T A T E S V

. A

N D E R S O N 23

I . B ackg round

The factual narrative underly ing Anderson’s c o nviction is accurately recounted in the majority opinion, and I will not repeat it here.

Anderson threatened Protective Security Officer (“PSO”) J ustin B acchus outside o f a Social Security Admini s tration building

. PSOs assist the F ederal Protective Service ( “F PS”),

a federal ag e ncy that protects g o vernment building s. B ecause F PS does not have enoug h officers t o cover a ll of the building s for which it is responsible, it contracts w ith Parag on Sy stems, a p rivate security firm, to provide protection at

some buildin gs

. B acchus is an e mploy ee of Parag on Sy stems.

I t is u ncontested that B acchus is not an e mploy ee o f the federal g overnment. See
, e.g. , Rabieh v. United Sta t e s , No. 5:19-cv-00944, 2019 W L 5788673, at *2 (N.D. Cal. N ov. 6, 2019) (not ing that PSOs “ are Parag on employ ees,” that “Parag o n is responsible for most of t he training of PSOs,”

an d that “Parag on provides all manag ement, supervision, equipme n t , and certification for PSOs”); Gonzagowski v

. United States

, 495 F

. Supp. 3 d 1 048, 1 103 (D.N.M. Sept. 1, 2020) (“[ PSOs] are independent co n t ractors and not federal employ e es

. . . .”); Un i t e d States v. Maestas
, No. 18-2419, 2019 WL 145578, at *1 (D.N. M

. J an. 9, 2019) (concluding that a PSO is neither a federa l employ ee nor a federal law enforcement officer).U N I T E D S T A T E S V

. A

N D E R S O N 24

Anderson was convicted o f threatening an “official” within the meaning of 18 U.S.C. § 115. Section 115 provides, in relevant part,

W h oever—threatens to assault, kidnap, o r murder, a United States official, a United States judg e, a F ederal law enforcement officer, or an officia l whose killing would be

a crime under [18 U.S.C. § 1114]

, with intent
to impede, intimidate, or interf er e with such

o fficial, judg e, or law enforcement officer while e ng ag ed in the performance of official duties, or with i ntent to retaliate ag ainst such official, judg e, or law enforcement officer on account o f the performance of official duties, shall be punished as provided in subsection (b).

Id. § 115(a)(1)(B ) (emphasis added). Section 1 114, in turn, provides,

W h oever kills o r a ttempts to k il l a ny officer

or employ ee of t h e United States or of any ag ency in any branch of the United States Government (including any m ember of the unifo r med services) w hile such officer o r employ ee is eng ag ed in or on accoun t of the performance of o f

ficial duties, or any person assisting such an officer or e mployee in the performance o

f such duties or on acc o u n t o f that assistance, shall be punished . . . .

Id. § 1114(a) (emphasis added).U N I T E D S T A T E S V

. A

N D E R S O N 25

I I . Analy sis

The majority a

n d I a gr e e that the question before us is whether B acchus was “an o f f icial whose killing w ould be a crime under [18 U.S.C. § 1 114]

. ” Id. § 115(a)(1)(B ). The question i s r eally two questions: ( 1) W as B acchus “an official”? (2) W ould his killing be a crime under § 1114? I n order to c onvict Anderson, the answer to both questions must have been “y

e s.” The answer to the first question is “no.”

The Supreme Court has “stated time and time a ga in that
courts must presume that a leg islature say s i n a statute what it means and means in a statute what it say s there. W hen the words of a statute are unamb i gu o u s, then, this f irst c anon is also the last: judicial inquiry is complete

. ” Barnhart v

. Sigmon Coal Co.
, Inc

. , 534 U.S. 4 38, 461–62 (2002) (quoting Conn. Nat’l Bank v. Germain
, 503 U.S. 249, 253–54 (1992)). “[ A] literal reading o f Cong ress’ words is g enerally the only
proper reading of those words.” United S t a tes v. Locke

, 471 U.S. 84, 93 (1985).

Section 115(a)(1)(B ) crimina l iz es threats ag ainst “an

o f f icial whose killing would be a crime under [ 18 U

. S

. C

. § 1114] .” I t i s u n disputed that an “official” under § 115(a)(1)(B ) refers to a federal official. The restrictive relative cl a use “whose killing w ould be a crime under [ 18 U.S.C. § 1114] ” limits the categ ory of federal officials to which § 11 5 ( a ) ( 1 )(B ) applies. See The Chicag o Manual o f Sty le ¶ 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 o f the sentence. Restrictive relative clauses are usually introduced by that ( or by who/whom/whose ) and are never set off by c ommas from the rest o f the sentence.”); see alsoU N I T E D S T A T E S V

. A

N D E R S O N 26

United States v. Nishiie

, 996 F .3d 1013, 1 017 (9th Cir. 2 021) (noting t h a t restrictive relative c lauses are “limiting ”). The

r estrictive clause thus indicates that the targ et of the thre at must not only be a federal o fficial, but must a lso be a federal official whose killing would be a crime under § 1114. P ut differently

, § 115(a)(1)(B ) protects federal officials, but only the subset o f federal officials whose k illing would b e a crime under § 1114.

Section 1114 criminaliz es killing an “offic er , ” “employ ee,” and “ any person assisting such an officer o r employ e e.” A p e r son “ assisting ” a federal o f f i cer o r employ e e is n o t himself or herself a federal officer o r employ e e. Rather, a s § 1114 plainly states, that p erson is assisting an officer or employ ee. Under a reasonable r eading of § 1114, B acchus was assisting an office r o r employ ee o f the United States in providing private security t o a Social Security Administration building

. B ut u n d e r no reasonable reading was h e, b y v irtue of providing suc h a ssistance, himself an officer or employ ee.

Anderson was convicted under § 115(a)(1)(B ) o f threate n i n g a federal o fficial. B acchus, the targ e t o f Anderson’s threat, was not a federal official. Rather, he was

a “person a ssisting

. . . an officer or employ ee” of the United States. Under the plain meaning of the statute, Anderson did
not violate § 115(a)(1)(B ). Th a t s h o uld be the e nd of the
matter.

I I I . Majority Opinion

My colleag u es disag ree. They read “official” in § 1 15(a)(1)(B ) to include every one protected in § 1114, not limited to the f

ederal “officials” w ho are protected in § 1114.U N I T E D S T A T E S V

. A

N D E R S O N 27

They rely heavily on two cases to support t h e i r reading

. Neither case provides support.

The f irst is United St a t e s v. Bankoff

, 613 F .3d 358 (3d Cir. 2010). The q

uestion in Bankoff was whet h er an “employ ee” of the federal g overnment, as that term is used in § 1114, is an “official,” as that term is used in § 115(a)(1)(B ). The Third Circuit answered “y es”:

I n sum, we conclude that w hen § 115’s reference to a n “official whose killing would be a crime u n d e r ” § 1114 is read in contex t, its meaning is p lain; “officia l ” i s not used a s

a term of limitation, but as a g eneral term that incorporates by refere n c e a ll the individuals protected under § 1114, both “ o f ficer[ s] a nd employ ee[ s] .”

Id. at 370. T he second case is United States v

. W y n n , 827 F .3d 778 (8th Cir. 2016). The question in W ynn was the

same as in Bankoff

: I s a federal “employ ee,” as used in § 1114, an “official,” as used in § 1 15(a)(1)(B )? T he Eig hth Circuit followed Bankoff

. I t wrote, “Thoug h the interpretive
q uestion is n ot free from doubt, we ag ree with the Thi r d Circuit’s analy sis.” Id. at 784.

I f the question presented in Bankoff and W ynn were before us, I w ould reach the same answer as the T h ird a nd Eig hth Circuits. B u t those courts an s w e r e d a different question. The question in Bankoff and W ynn was w h et her a federal “ employ ee” is a federal “ official” within the meaning of § 115(a)(1)(B ).U N I T E D S T A T E S V

. A

N D E R S O N 28

The question before us is whether a private employ ee w ho assists a federal officer or employ e e is a federal “ o f f i c ial” within the meaning o f § 115(a)(1)(B ). The a n s w er is straig htforward. B acchus wa s assisting federal officers o r employ e es. H e d id not, by virtue of his assistance, become a federal officer or employ

ee.

Conclusion

Section 115(a)(1)(B ) does n ot criminaliz e a threat ag ainst

an employ ee of a private c o rporation that has contracted with the g overnment to provide security to a g overnment building

. Perhaps such a threat should be made criminal under federal law. B ut that is a task for Cong ress, not for us.

I respectfully

dissent.