FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JACQUELINE ANDERSON,

Defendant-Appellant.

No. 20-50207

D.C. Nos.

2:19-cr-00157-CJC-1

2:19-cr-00157-CJC

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 juryconviction

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. § 1114

prohibits 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’sreading 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 ofstatutory 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 SecurityOffice 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 PSOWhiteside 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 SocialSecurityAdministration (“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 subsequentlydenied 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 histories4of §§ 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 Statesjudges,’

‘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 policymakers,” 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

determinewhich “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, VicePresident, 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.”

(quotingCleveland 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 SecurityOfficer (“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 bywho/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 is 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.