UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANDRE J. TWITTY,

Defendant - Appellant.

No. 14-1173

(D.C. No. 1:13-CR-00076-RBJ-1)

(D. Colo.)

ORDER AND JUDGMENT*

Before McKAY, McHUGH, and MORITZ, Circuit Judges.

Defendant Andre J. Twitty appeals pro se from his conviction on two counts of 

mailing threatening communications in violation of 18 U.S.C. § 876(c). Exercising 

jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

While serving a sentence for making bomb threats and threatening a federal 

officer, Mr. Twitty sent threatening letters to federal judge Peter Dorsey and to a 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist the determination of this 

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

January 20, 2015

Elisabeth A. Shumaker

Clerk of Court

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United States Attorney’s Office in Georgia. Judge Dorsey had denied several 

attempts by Mr. Twitty to obtain post-conviction relief from his previous sentence. 

Mr. Twitty’s January 2011 letter to him read in pertinent part as follows:

Peter,

NEVER! think! I have any respect for you, the fucking Federal Judicial 

or the Bullshit U.S. Government!! Now, as long as the LAW states 

what does it! Regarding Rule 60(b)(4), then you and your Redneck staff 

can continue to issue this same Bullshit order all that you want. There 

is only 27 [months] left to play this game And as long as I already have 

those WHITE Motherfuckers in the Eleventh Circuit on Lock, then I 

have you and the Second Circuit as well.

Its 4:00 AM, And I am thinking about the little *9 yr old girl that got 

shot in Tucson. And NO! I don’t give a fuck. The point is, I was 

reminded of something Wayne Williams!! allegedly stated during the 

Atlanta child murders!

“How many ‘Niggers’ can you stop from being born if you Kill one 

little Black Boy?!!” 

So, I was thinking the same about REDNECKS!!! “How many crackers 

can you keep from being born, if someone were to Blow-up Daycare 

centers.” one can only wonder.

Now, back to Tucson! They made a big deal about Judge Roll being 

killed. Like who gives a Fuck. To paraphrase the Klu Klux Klan “Just 

one less federal Dickhead to worry about! Remember, when . . . 

[Second] Circuit Judge Moody got Blown up back in the 80’s. Funny as 

shit!!

Now, go call the U.S. Marshals. like I give a Fuck! As long as I have 

that stolen Remington .700 and the McMillian TAC-.50 cal (2) M-16 

(A2s) with (2) M-32 grenade launcher(s) with a crate of 40MM “Hell 

Hound” shells. And the Benelli & Mossberg shotgun(s). Not to mention 

my trusty Colt .357 Python with the teflon coated Hollow Points. All I 

need to do now is steal a new PDW .6MM And I’m set. So Fuck the 

FBI, USM and anyone else! And that RICIN!! is still in a safe place!

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So Justice will be mine! Even if I have to DIE!! to get it! . . . You all 

don’t respect the law. And neither do I. So lets just wait!! Time is not a 

factor!”

R., Vol. 3 at 450-51 (underlining and non-alphabetical markings omitted).

1

 The United States Attorney’s Office in the Northern District of Georgia had

previously prosecuted Mr. Twitty for making threatening statements. Assistant 

United States Attorney David Leta handled the prosecution and prepared briefs filed 

in response to Mr. Twitty’s appeal and attempts to obtain post-conviction relief. 

Judge J. Owen Forrester presided at the trial. Mr. Twitty mailed a letter to Sally 

Yates, the United States Attorney for the Northern District of Georgia, which read in 

part as follows:

In light of Former Federal Judge John Roll getting his Punk ass brains 

blown the fuck out! Which in my ‘opinion’ Should happen to a lot more 

federal bastards Starting with the Punk ass *Supreme Court Bastards,” 

then Flow down to the Eleventh Circuit bitch ass Judges then over to the 

federal Punks in the district court then of course, I would love to see 

‘someone’ poke a McMillian TAC-50 with some M107 API” and Blow” 

AUSA David M. Leta motherfucking Head OFF!!! And of course, we 

cannot forget about those F.B.I lying motherfuckers! . . . I am Praying 

for the day when “somebody” Locks-N-Load an M82A3 or M2 lite .50 

cal on these bastards! And blows their fucking brains outs!!! That is my 

wish!!!

. . . 

 1 We have included the pertinent portions of Mr. Twitty’s communications 

without correction of grammatical errors or redaction of offensive language. Some 

punctuation marks in the letters reproduced in the record are unclear; we have

deciphered and reproduced them as best we can. We omit various punctuation marks 

and capitalization when quoting the letters later in this order and judgment.

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So, since you all are not going to obey the law. The[n] FUCK!! the 

law!! You know, I have been doing some real hard thinking about my 

upmost HATRED of Rednecks!!, Niggers!! and wetbacks!! as well as 

Homo(s) and the rest of the other disgusting bastards in 

‘Your’government!!

Then I started having these “DREAMS” where I am tying “Leta” over a 

table!! and taking a can of gasoline and Pouring it all over his white!! 

ass!! and setting the motherfucker on fire!! He screams while I stand 

there laughing . . . Then the ‘DREAM’ switches. Now, ‘Leta’ is staked 

to the ground, with his extra-crispy ass! mumbling!! And I take this 

“AX”, and start cutting the motherfucker into tiny pieces!! And in 

another ‘DREAM’ I was walking down Northside Drive. And I went 

into this House and Found Leta!! duct-taped to a chair, he and [Judge] 

Forrester!! And I took this Benelli Pump shot-gun. And blew his head 

off!! And the ‘DREAM’ was so vivid, that I could actually Feel and 

smell the motherfuckers Blood on me!! Then I shot [Judge] Forrester in 

his nuts! then Put the barrel to his left eye and BAM! Brains Just blew 

against the wall!! Then I woke up laughing.

THAT’S CALL PURE HATRED!!!!!!!!!

No one lies on me No one!!! especially not some Federal Bastard. So, 

You all continue to lie and cover up!! And I will keep my mind on that 

dead fuck nigga AUSA they found shot to death in 2003 in that ditch! in 

Pennsylvania!! And all of the Federal Bldgs and employees that walk in 

and out those doors, all over this Bullshit country. Yeah! I will just put 

my mind on that! And I will think everyday! how Leta!! really thinks! 

he is going to get away with this Lie!! Then once I get Justice!! It will 

be time to go to my secret place! and commit “suicide” depriving You 

Punks of any get back Because No one lies on me No one!! . . . 

P.S. Daycare centers!! hmmm!

Id. at 454-55 (underlining and non-alphabetical markings omitted).

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As a result of these letters, a jury convicted Mr. Twitty of two counts of 

mailing threatening communications in violation of 18 U.S.C. § 876(c).

2

 The district 

court sentenced him to 60 months’ incarceration on the first count, and 108 months 

on the second count, to be served concurrently.

II. ANALYSIS

We construe Mr. Twitty’s pro se brief liberally. See United States v. Davis, 

339 F.3d 1223, 1225 (10th Cir. 2003). He challenges whether probable cause existed 

to arrest, indict, and prosecute him for the offenses charged; whether there was 

sufficient evidence to convict him of them; and whether his prosecution and 

conviction violated the First Amendment. He also challenges the prosecutor’s 

reference to Oklahoma City bomber Timothy McVeigh during closing argument. 

We focus on the issues concerning his trial and conviction, as these resolve or 

moot his other issues. For example, to the extent Mr. Twitty challenges the existence 

of probable cause to indict him, this challenge was mooted by the jury’s guilty 

verdict. See United States v. Hillman, 642 F.3d 929, 936 (10th Cir. 2011) (“[A]fter a 

petit jury’s guilty verdict we will not consider a defendant’s arguments regarding 

errors affecting only the grand jury’s finding of probable cause, because those claims 

 2 Mr. Twitty was charged with a third § 876(c) count, resulting from another 

letter he sent, but the jury acquitted him of that count. The third count is not at issue 

in this appeal.

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are mooted by the petit jury’s findings of guilt.”).

3

 For the same reasons sufficient 

evidence supports the jury’s verdict and that verdict did not violate the First 

Amendment—reasons which we discuss infra—Mr. Twitty’s arrest and prosecution 

were supported by probable cause and did not violate the First Amendment. 

The most essential facts proved at trial—the words used in Mr. Twitty’s 

letters—are undisputed. The sufficiency of the evidence to convict him turns on

whether his actions proved at trial established his guilt of each element of the crimes 

charged. See United States v. Jones, 768 F.3d 1096, 1101 (10th Cir. 2014) (stating 

reviewing court determines “whether the evidence, if believed, would establish each 

element of the crime.” (internal quotation marks omitted)). “We review the denial of 

[Mr. Twitty’s] motion for judgment of acquittal de novo, viewing the evidence in the 

light most favorable to the government.” United States v. Burkley, 513 F.3d 1183, 

1190 (10th Cir. 2008). In assessing the sufficiency of the evidence, we ask whether 

“any rational trier of fact could have found [Mr. Twitty] guilty of the crime beyond a 

reasonable doubt.” United States v. Cooper, 654 F.3d 1104, 1115 (10th Cir. 2011)

(internal quotation marks omitted). We have generally applied these standards for 

evaluating evidentiary sufficiency in cases involving threatening communications, 

notwithstanding the special First Amendment concerns involved in such cases. See 

 3 Mr. Twitty contends that the verdict did not moot his challenge to the grand 

jury proceedings because the government committed fraud in presenting its case to 

the grand jury. But the alleged “fraud” centers on the government’s purported 

misrepresentation to the grand jury that his letters contained true threats—the very 

issue resolved against him by the petit jury after trial. 

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United States v. Wheeler, No. 14-1031, slip op. at 9-11 (10th Cir. Jan. 15, 2015) 

(discussing appropriate standard of review in “true threat” case). 

The statute under which Mr. Twitty was convicted, 18 U.S.C. § 876(c), 

provides that

[w]hoever knowingly . . . deposits [in a post office or authorized 

mail depository] or causes to be delivered [by the U.S. Postal Service]

any communication with or without a name or designating mark 

subscribed thereto, addressed to any other person and containing any 

threat to kidnap any person or any threat to injure the person of the 

addressee or of another, shall be fined under this title or imprisoned not 

more than five years, or both. If such a communication is addressed to a 

United States judge, a Federal law enforcement officer, or an official 

who is covered by [18 U.S.C.] section 1114, the individual shall be 

fined under this title, imprisoned not more than 10 years, or both.

Mr. Twitty brings two basic challenges to the sufficiency of the evidence 

against him. He argues that his actions in delivering the letters to prison authorities, 

which they then mailed, did not constitute “knowing deposit” or “knowing delivery”

of a threatening communication within the meaning of the statute. He also argues

that his letters did not contain “true threats” and that his conviction therefore was 

both unsupported by sufficient evidence and in violation of the First Amendment.

 1. Delivery of a Threatening Communication

Mr. Twitty argues that he did not “knowingly . . . deposit or cause[] to be 

delivered” the letters containing the alleged threats. He contends he had “no control 

over whether his mail would ever be mailed out of the Federal Bureau of Prisons,” 

Aplt. Opening Br. at 14 (internal quotation marks and underlining omitted), because a 

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counselor picked up his mail, and it was then inspected before it was mailed out by 

employees in the mailroom. 

Mr. Twitty cites the testimony of Michael McAlister, a special investigative 

technician at the ADX in Florence, Colorado where Mr. Twitty was incarcerated in 

2011. Mr. McAlister testified that when the threatening letters were mailed,

Mr. Twitty was under a mail restriction. Under the restriction, all of his outgoing 

legal and special mail was sent to Mr. McAlister for review. As part of the review 

process, Mr. McAlister would contact the intended recipient and seek his or her 

permission to open the mail. If permission was not granted or if he could not reach 

the recipient, Mr. McAlister would mail the letter unopened. If the recipient’s 

permission was granted, he would open the mail and read it to the recipient. If the 

letter read to the recipient did not contain a threat, Mr. McAlister would reseal the 

envelope and send the mail to its recipient. If it did contain a threat, it would not be 

sent unless the recipient requested that it be mailed.

Mr. Twitty contends that he did not knowingly mail or cause to be mailed the 

threatening letters; he merely provided them to Mr. McAlister, who made the 

determination concerning whether they should be mailed and then either mailed them 

or declined to do so. Mr. Twitty argues that because of the mail restriction, he could 

not know that a threatening communication would actually be mailed to the recipient.

This argument lacks merit. It was Mr. Twitty who knowingly wrote and 

addressed the letters containing the threats and provided them to prison authorities to 

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be mailed. He points to no evidence from which he could reasonably have concluded 

that the prison’s legal mail procedures would prevent his threatening letters from 

entering the United States mail. According to Mr. McAlister, there were several 

ways that a letter containing threats could end up being mailed even if the inmate 

were under a mailing restriction, including circumstances when the recipient could 

not be reached. And in fact, that was the case here: Mr. McAlister testified that he 

did not open either of the letters at issue in this case, but sent them on unopened.

Mr. Twitty also argues that once Mr. McAlister took possession of his mail, 

Mr. Twitty lost physical control of whether the letter was actually mailed out. He 

notes Mr. McAlister’s testimony that an inmate cannot himself take a letter to the 

mailroom. But the statute requires only that the defendant “cause[d] [the letter] to be 

delivered.” 18 U.S.C. § 876(c). That requirement clearly was satisfied when 

Mr. Twitty provided the letters to his counselor to be mailed. See United States v. 

Davis, 926 F.2d 969, 971 (10th Cir. 1991) (finding sufficient evidence to support 

§ 876 conviction where defendant’s acquaintances testified that they mailed letters at 

the defendant’s request). 

2. “True Threat” 

A statute “which makes criminal a form of pure speech, must be interpreted 

with the commands of the First Amendment clearly in mind. What is a threat must be 

distinguished from what is constitutionally protected speech.” Watts v. United States, 

394 U.S. 705, 707 (1969). The First Amendment, therefore, permits conviction under 

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Section 876(c) only if the communication at issue constitutes a “true threat.” 

See Virginia v. Black, 538 U.S. 343, 359-60 (2003) (explaining that the First 

Amendment “permits a state to ban a ‘true threat’”). A true threat is one that 

communicates a “serious expression of an intent to commit an act of unlawful 

violence to a particular individual or group of individuals.” Id. at 359.

A true threat does not require the speaker to “actually intend to carry out the 

threat.” Id. at 360. Nor does it require proof that he or she “had the apparent ability 

to carry out the threat. . . . It is the making of the threat and not the intention to carry 

out the threat that violates the law.” United States v. Viefhaus, 168 F.3d 392, 395-96 

(10th Cir. 1999). 

It is also not necessary that a true threat be made directly to the proposed 

victim. United States v. Martin, 163 F.3d 1212, 1216 (10th Cir. 1998) (applying 

“true threat” analysis to conviction under 18 U.S.C. § 115). But the statement must 

be one that a reasonable person under the circumstances would understand “as a 

declaration of intention, purpose, design, goal, or determination to inflict punishment, 

loss, or pain on another.” Viefhaus, 168 F.3d at 395.

4

 “Whether a statement 

 4 Recently we determined as a matter of first impression that in any true-threat 

prosecution the First Amendment requires that the defendant subjectively intended 

the recipient to feel threatened. United States v. Heineman, 767 F.3d 970, 978 

(10th Cir. 2014); see also Wheeler, No. 14-1031, slip op. at 7 (discussing rule in 

Heineman, which is now “Tenth Circuit law.”) This subjective-intent issue is also 

currently pending before the Supreme Court. See Elonis v. United States, 134 S. Ct. 

2819 (2014) (mem.); Wheeler, slip op. at 7 n.2 (noting pending issue in Elonis) 

Although he mentions Elonis in his briefing in this court, see Aplt. Br. at 17, 

(continued)

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constitutes a ‘true threat’ is a fact-intensive inquiry, in which the language, the 

context in which the statements are made, as well as the recipients’ responses are all 

relevant.” Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1167-68 (10th Cir. 

2009). “[A]bsent an unusual set of facts, the question whether statements amount to 

true threats is a question generally best left to a jury.” Wheeler, No. 14-1031, slip op. 

at 11 (internal quotation marks omitted).

Both the letters at issue here, taken as a whole, satisfy the standard for a true 

threat. In the letter to Judge Dorsey, Mr. Twitty informed the judge that he had him 

 

Mr. Twitty fails to show that he raised an issue concerning his subjective intent in 

district court. It was his duty to object to the omission of the alleged element from 

the jury instructions, see Fed. R. Crim. P. 30(d), and to challenge the sufficiency of 

the evidence concerning this issue, and his failure to object means we may review the 

issue only for plain error, see Fed. R. Crim. P. 52(b). But he has failed to attempt to 

show how this alleged error even meets the plain error test. Accordingly, we could 

decline to consider the argument altogether. See Abernathy v. Wandes, 713 F.3d 538, 

551 (10th Cir. 2013), cert. denied, 134 S. Ct. 1874 (2014). 

But even if we were to review the issue of Mr. Twitty’s subjective intent for 

plain error, it would fail that test, for any alleged error was not “plain.” “An error is 

plain if it is clear or obvious under current, well-settled law. In general, for an error 

to be contrary to well-settled law, either the Supreme Court or this court must have 

addressed the issue.” United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 

2012) (internal quotation marks omitted). In Heineman we determined that the 

Supreme Court’s decision in Virginia v. Black, 538 U.S. 343 (2003) required a 

showing of subjective intent in any true-threat prosecution. See Heineman, 767 F.3d 

at 975-79. But this interpretation of Black was far from “clear or obvious,” and we 

acknowledged that several “[o]ther circuits have declined to read Black as imposing a 

subjective-intent requirement.” Id. at 979. Thus, Mr. Twitty cannot show an error 

that was “plain” in the district court’s failure to instruct the jury concerning 

subjective intent, or in its failure to acquit him due to an alleged lack of sufficient 

evidence on that issue.

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“on lock.” R., Vol. 3 at 450. After discussing several acts of violence, including the 

killing of a judge, Mr. Twitty provided a list of deadly weapons and poison he 

claimed he would have access to after his release. He asserted he did not respect the 

law and that he had “only 27 months left to play this game” (i.e., until his release 

from incarceration). Id.5

 He claimed that “justice will be mine even if I have to die 

to get it.” Id. at 451 (punctuation omitted). 

Similarly, the letter that Mr. Twitty sent to the United States Attorney in 

Georgia contained sufficient evidence of true threats. Mr. Twitty noted the killing of 

a federal judge and stated that this “should happen to a lot more federal bastards.” 

Id. at 454 (underlining omitted). He then described his “dreams.” Id. at 455. The 

“dreams” involved graphic descriptions of Mr. Twitty burning, chopping up, and 

shooting Assistant United States Attorney (AUSA) David Leta and Judge Forrester. 

He then stated that he would keep another murdered AUSA “in mind,” along with 

other federal employees walking in and out of federal buildings, and “how [AUSA 

David] Leta really thinks he is going to get away with this lie.” Id. at 455. He stated 

he would “get justice,” then go to his “secret place” and commit suicide, “depriving 

you punks of any get back.” Id. (underlining omitted). 

Mr. Twitty’s attempts to characterize these letters as First Amendment 

“advocacy” rather than true threats are unconvincing. A reasonable jury could have 

 5 A reasonable jury could reject Mr. Twitty’s insistence that this phrase referred

only to his intention to file a lawsuit after his release from prison. Guns and poison 

are not needed to bring legal proceedings.

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concluded that Mr. Twitty was threatening to commit acts of violence rather than 

merely advocating that such acts take place or merely encouraging others to consider 

committing them. 

Nor does the fact that individual sentences in each letter, considered in 

isolation, do not expressly state a plan or intent to commit acts of violence mean that 

letter, taken as a whole, does not contain “true threats.” Recipients of threatening 

letters are not required to read them in a hyper-technical fashion, parsing individual 

sentences and ignoring the context of the statements they contain. They are not 

required to dismiss statements that a reasonable person would consider threatening 

when read as a whole and in context. Testimony by witnesses at trial that specific 

passages in each letter did not expressly state Mr. Twitty’s intention to commit acts 

of violence against particular victims did not prevent a reasonable jury from 

determining that, taken as a whole, each letter contained “true threats.” This is 

particularly true when we consider testimony from some of those same witnesses that 

in their opinion, the letters taken as a whole did contain threats against the identified 

individuals.

In addition, the fact that at times Mr. Twitty described “dreams” he previously 

had did not strip his letter addressed to the United States Attorney’s Office of its 

threatening character. In light of his statements that he would keep a murdered 

AUSA in mind and “get justice,” a reasonable recipient of the letter could conclude 

that he had expressed an intent to bring his “dreams” to fruition by harming Mr. Leta, 

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Judge Forrester, or other federal employees. In sum, the evidence sufficiently 

supported the jury’s determination that the letters contained “true threats.”

3. Reference to Timothy McVeigh

During closing argument, the prosecutor made the following reference to 

Timothy McVeigh, the Oklahoma City bomber:

Charysse Alexander walks in and out, like the defendant said, of these 

federal buildings every day. David Leta walks into these federal 

buildings every day. . . . And then [Mr. Twitty] concludes by [“]day 

care centers, hmm,[”] and who wouldn’t, who walks into these buildings 

every day . . . think as Charysse Alexander thought about those poor 

children and all these federal employees blown up by Timothy McVeigh 

in Oklahoma City. The First Amendment? As cherished as it is [it] 

does not protect that.

R., Vol. VI at 529.6

Mr. Twitty did not object at trial to this statement. Accordingly, we review it 

only for plain error. The plain error standard requires him to demonstrate “(1) error 

that is (2) plain, (3) affects substantial rights, and (4) seriously affects the fairness, 

integrity, or public reputation of judicial proceedings.” United States v. 

DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012). He has failed to make the 

required showing. The prosecutor’s statement explained to the jury why the curt

reference to day care centers in Mr. Twitty’s letter to the United States Attorney’s 

 6 Charysse Alexander, who testified at trial, is an AUSA in Atlanta, Georgia 

whose duties include overseeing security issues in the United States Attorney’s 

Office for the Northern District of Georgia. As part of her investigative duties she 

was given a copy of Mr. Twitty’s letter to that office, which she read and considered 

a threat.

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Office could be pursued as threatening by the federal employees who received the 

letter. Thus, even if it was plain error to permit the statement, Mr. Twitty fails to 

show that it affected his substantial rights or called into question the fairness, 

integrity, or public reputation of his trial. 

CONCLUSION

The district court’s judgment is affirmed. Mr. Twitty’s motions for release 

pending appeal are denied.

Entered for the Court

Carolyn B. McHugh

Circuit Judge

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