NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

 v.

TYLER CHANCE BATEMAN,

Defendant-Appellant.

No. 19-30191

D.C. No. 

3:18-cr-00042-TMB-1

MEMORANDUM*

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, Chief District Judge, Presiding

Argued and Submitted May 3, 2021

Seattle, Washington

Before: CHRISTEN and BENNETT, Circuit Judges, and FRIEDMAN,** District

Judge.

 

Tyler Bateman appeals his jury convictions for transmitting threats in

interstate commerce in violation of 18 U.S.C. § 875(c). Bateman argues: (1) the

district court erred by failing to instruct the jury on the definition of a true threat;

FILED

JUN 11 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Paul L. Friedman, United States District Judge for the

District of Columbia, sitting by designation.
(2) there was insufficient evidence to convict on each of the eight counts of

transmitting threats in interstate commerce; and (3) the district court erred by

applying an obstruction of justice enhancement at sentencing. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties are

familiar with the facts, we recite only those necessary to resolve the appeal.

1. We review the district court’s “formulation of jury instructions for an

abuse of discretion, . . . and we review de novo whether the instructions misstated

or omitted an element of the charged offense.” United States v. Hofus, 598 F.3d

1171, 1174 (9th Cir. 2010). “[T]he omission of an element is an error that is

subject to harmless-error analysis.” Neder v. United States, 527 U.S. 1, 15 (1999).

The First Amendment permits the prohibition of “true threats,” which

“encompass those statements where the speaker means to communicate a serious

expression of an intent to commit an act of unlawful violence to a particular

individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). 

“[T]he subjective test set forth in Black must be read into all threat statutes that

criminalize pure speech.” United States v. Bagdasarian, 652 F.3d 1113, 1117 (9th

Cir. 2011). “[W]ith respect to some threat statutes, we require that the purported

threat meet an objective standard in addition [to the subjective standard], and for

some we do not.” Id. 

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In the district court, Bateman argued the jury should be instructed on the

definition of a “true threat.” He first proposed a jury instruction that incorporated

an objective standard, but later withdrew it. Bateman then proposed a jury

instruction that read:

A ‘threat’ is a serious statement expressing an intent to

injure a person as distinguished from mere idle or careless

talk, exaggeration, or something said in a joking manner.

The district court declined to instruct the jury on the definition of a “true threat,”

but included as an element of each charged offense that “[t]he defendant

transmitted the communication for the purpose of issuing a threat, or with

knowledge that the communication would be viewed as a threat.”

The evidence presented to the jury included text and Facebook messages

Bateman sent in which he threatened, among other things, to poison his father and

a police officer with ricin; “walk into a building with an AR15” and “hurt a lot of

people”; “hurt a lot of dirty cops and their families.” Concerning his former place

of employment, he stated “If I decide to walk into Fasteners with an AR 15 [sic]

you won’t ever stop me,” . . . “Pipe bombs. Gas grenades. Flash bangs. All that.”

Bateman told his parents they would “[n]ever stop [him] from hurting [them]

should [he] choose,” but that they could “only postpone it”; he called his father a

“fucking retard” if his father thought Bateman would not poison him with ricin; he

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“promise[d]” his father that “[b]y 2021 [his father] will not walk this Earth”; and

he informed the Anchorage Police Department that they “won’t stop” Bateman

from “kill[ing] Officer Thomas Gaulke and several other people.” Bateman also

sent a message directly to Officer Gaulke, who was then his mother’s boyfriend,

saying “[b]y 2020 you will no longer walk this world,” and that there was “nothing

[Officer Gaulke] can do” but “postpone it and make it worse.” Bateman’s text and

Facebook messages also included warnings that he was not joking. For example,

one text stated, “You think its just talk,” and “. . . you just think its funny. Laugh it

off like a joke,” followed by, “[w]e will see how funny it is when I am cutting you

to ribbons, Mike.” This content shows Bateman “subjectively intended the speech

as a threat.” United States v. Stewart, 420 F.3d 1007, 1019 (9th Cir. 2005)

(quotation marks and citation omitted). 

Assuming the district court erred by failing to instruct the jury on the

definition of a “true threat,” we conclude the error was harmless because it is clear

beyond a reasonable doubt that a rational jury would have found the defendant

objectively and subjectively intended to send a true threat. Neder, 527 U.S. at 19;

Stewart, 420 F.3d at 1018–19.

2. We review de novo the sufficiency of the evidence and will affirm the

jury’s verdict if, “after viewing the evidence in the light most favorable to the

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prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(emphasis in original). We conclude the evidence—including text messages,

Facebook messages, and a videotaped confession—was sufficient to convict

Bateman on all counts.

3. We review for clear error the district court’s factual findings

underlying an obstruction of justice sentencing enhancement, and we review de

novo “[t]he district court’s characterization of a defendant’s conduct as obstruction

of justice within the meaning of [U.S.S.G.] § 3C1.1.” United States v. CastroPonce, 770 F.3d 819, 821–22 (9th Cir. 2014). The obstruction of justice

enhancement applies “[i]f (1) the defendant willfully obstructed or impeded . . . the

administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction, and (2) the obstructive conduct

related to (A) the defendant’s offense of conviction and any relevant conduct; or

(B) a closely related offense.” U.S.S.G. § 3C1.1. Bateman sent a letter to the

prosecutor in which he stated “[i]t would be naive to say” he could not “obtain the

means to carry out” his threats of “poisoning folks with ricin” after his release. 

Bateman’s letter to the prosecutor continued: “For all you know, I could be

plotting against you! Your address is public domain and easily found . . . . It’s as

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simple as a box of chocolates.” We conclude the district court correctly applied

the obstruction of justice enhancement. See United States v. Jackson, 974 F.2d

104, 106 (9th Cir. 1992) (“Where a defendant’s statements can be reasonably

construed as a threat, . . . the defendant has obstructed justice.”).

AFFIRMED.

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