                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                         March 28, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                         No. 17-2059
                                                 (D.C. No. 2:15-CR-01703-DN-1)
ROCCO TINOCO,                                               (D. N.M.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before MORITZ, McKAY, and KELLY, Circuit Judges.
                  _________________________________

      A jury convicted Rocco Tinoco of six counts of threatening a federal official in

violation of 18 U.S.C. §§ 115(a)(1) and (b)(4), and four counts of using the internet

to communicate a threat in violation of 18 U.S.C. § 875(c). He was sentenced to 63

months’ imprisonment to be followed by three years of supervised release. Tinoco,

appearing pro se, appeals. We exercise jurisdiction under 28 U.S.C. § 1291, and

affirm.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                  BACKGROUND

      Tinoco was initially determined to be incompetent to stand trial. After

eventually being restored to competency, he appeared at a status conference in June

2016. The district court set trial for October. The trial began as scheduled with

Tinoco appearing pro se, but shortly thereafter, Tinoco asked his stand-by counsel to

step in and defend the case.

      The evidence established that Tinoco sought to call attention to his grievances

with marijuana laws by falsely reporting to United States Border Patrol Agents that

he had a load of marijuana in his truck. Tinoco’s encounter with border patrol agents

began when he drove his truck southbound through a non-controlled border

checkpoint in Deming, New Mexico. After passing through the checkpoint, Tinoco

made a U-turn and entered the northbound checkpoint—a controlled area. Tinoco

advised the agent at the primary stop that he wanted to speak with patrol agents, and

the agent directed him to an area where he could pull over.

      Tinoco exited his truck and told the agents that he was recording the

conversation and that he might have a pound of marijuana in his truck. Based on this

statement, the agents, including Agent R.F., began searching his vehicle. Tinoco

continued talking to agents as he observed the search. Among other things, Tinoco

questioned their authority to conduct the search or enforce the laws prohibiting the

possession or trafficking of marijuana.

      Agent R.F. testified that Tinoco said “if [the agents] were iron deficient, he

had banana clips for us, and he could give us iron and potassium. And I took the

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banana clip and all that to—a banana clip is a magazine for a gun, and the iron, I’m

guessing he was talking about bullets.” R., Vol. III at 44. R.F. also testified that

Tinoco told him “I’m going to have your head, [R.F.].” Id. at 45.

      R.F. conceded that Tinoco sometimes used the phrase “figuratively speaking,”

but R.F. “didn’t think [Tinoco] was joking.” Id. at 46. When confronted with the

fact that some other agents joked with Tinoco during the encounter, R.F. said he

nonetheless “took what [Tinoco] was saying was serious . . . I have to take those

threats seriously.” Id. at 108. Tinoco wasn’t “smiling” when he made the

statements. Id. at 46. The agents found no marijuana or other contraband in

Tinoco’s truck, and they permitted him to leave after a supervisor decided not to

arrest him. Later that day, Tinoco posted comments about R.F. on Facebook.

      Two days after the checkpoint encounter, R.F. saw Tinoco as R.F. shopped

with his family at the local Wal-Mart store. R.F. told his family to leave the store

and he approached Tinoco. According to R.F., he told Tinoco to stop threatening him

on Facebook, and Tinoco responded “[l]et’s have a shootout and end this right now. .

. . I’ve been at shootouts before. I know what I’m doing.” Id. at 61. R.F. described

Tinoco’s demeanor as “serious” and “angry,” and R.F. believed Tinoco. Id.

      The following day, Tinoco posted a message on Facebook directed to the

supervisor who was at the Deming checkpoint just a few days earlier: “I can be sure

to come at your brain with a hammer drill as if I was searching for fucking gold.” Id.

at 164.



                                           3
        Based on Tinoco’s statements, the government began an investigation and

sought a search warrant for the recording device Tinoco used at the checkpoint. To

that end, a United States magistrate judge authorized a warrant to search Tinoco’s

home.

        Federal Bureau of Investigation Special Agent Downey participated in the

search. During the search, Downey asked Tinoco about his posts on Facebook and

whether people who received them would feel threatened. Tinoco said: “Of course

they would.” Id. at 145.

        Downey further testified that a few days after the search, Tinoco posted on

Facebook the following message directed at the magistrate judge who had authorized

the warrant: “I can tell you right now you . . . are a superstar. I can see the cameras

everywhere. . . . Smile honey, . . . you’re going to be famous. . . . Extra, extra, read

all about it. 32 holes in your brand new outfit.” Id. at 166. In at least one of his

posts on Facebook, Tinoco stated “[y]ou may quote me. I mean every fucking word.”

Id. at 170.

        Tinoco continued to post messages on Facebook directed to the magistrate

judge: “I shall [figuratively speaking] cut your fucking head off with this shit . . .

this is my machete . . . for your ignorance does not constitute authority.” Aplee.

Supp. Excerpts of Record at 12. He also posted that “when all is [said] and done,

someones mothafucking fingers are being cut off [speaking figuratively]. Are they

mine or yours?” Id. at 14.



                                            4
       Tinoco didn’t challenge the fact that he made and/or posted the statements, but

argued the statements were hyperbole and intended to call attention to his

grievances—not true threats.

       On the last day of trial, two jurors told the court clerk they were concerned

because Tinoco was “staring at the jurors.” The jurors reported that they were

uncomfortable and felt “unsafe to go out to dinner.” R., Vol. III at 219. The district

court asked the parties for suggestions as to how to address the jurors’ concerns.

Tinoco suggested the court should examine the two jurors individually and replace

them if necessary. The government maintained that a juror contact instruction was

adequate. The court adopted the government’s suggestion:

        I’ve considered alternatives. I’ve considered the remedial steps that I
intend to take, including the juror contact order, which I will present to the jury;
the fact that we will collect the voir dire data and have it held by the attorneys; the
fact that we have never addressed any of the members of the panel or jury by
name; the assurance this will provide. . . . I’m employing reasonable means to
provide assurance.
Id. at 227 (emphasis added).

       The district court then asked the parties if there was anything else before the

jury returned to the courtroom. Tinoco’s counsel replied: “Nothing, Your Honor.

Thank you.” Id. at 228.

       Following the jury’s guilty verdict, the probation department prepared a

presentence report that contained a guidelines sentencing range and standard terms of

supervised release. Tinoco objected to any terms of supervised release that imposed

drug testing and monitoring. The district court overruled his objections and


                                              5
sentenced Tinoco to 63 months’ imprisonment, followed by three years of supervised

release that included standard terms of drug monitoring and testing.

                                      DISCUSSION

Sufficiency of the Evidence

       Tinoco can be constitutionally convicted only if he made a “true threat.”

“[T]rue threats [are] statements where the speaker means to communicate a serious

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

individual.” United States v. Wheeler, 776 F.3d 736, 743 (10th Cir. 2015) (internal

quotation marks omitted). “In distinguishing between true threats and protected

speech, this court asks whether those who hear or read the threat reasonably consider

that an actual threat has been made.” Id. (internal quotation marks omitted).

       “[W]hether a defendant’s statement is a true threat or [protected] speech is a

question for the jury.” Id. at 742 (internal quotation marks omitted).1 We review

“claims of evidentiary sufficiency under a deferential standard, viewing all the

evidence, . . . with all reasonable inferences . . . , in the light most favorable to the

prosecution[,] . . . [and ask] whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. at 741-42 (brackets

and internal quotation marks omitted).




       1
       “[I]f there is no question that a defendant’s speech is protected by the First
Amendment, the court may dismiss the charge as a matter of law.” Wheeler,
776 F.3d at 742 (internal quotation marks omitted).

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       Tinoco maintains that no rational trier of fact could have found his statements

were “true threats” because (1) he didn’t intend to place the victims in fear; (2) his

Facebook posts didn’t reach the victims; and (3) he frequently peppered his

statements with the phrase “figuratively speaking.” We disagree. Ample evidence

existed from which a rational trier of fact could have found the statements to be “true

threats,” including (1) R.F.’s testimony that he took the threats seriously; (2)

Tinoco’s admission to Downey that people who received his threats would feel

threatened, and (3) Tinoco statements: “I mean every word” and “You can quote me.”

Prosecutorial Misconduct

       Tinoco argues for the first time on appeal that the prosecutor’s repeated

description of the “statements as ‘threats’ improperly influenced and forged the

mental acceptance of jurors to ultimately regard statements as ‘threats’ from the

outset.” Aplt. Opening Br. at 21.

       We generally won’t consider arguments not raised in the district court.

See Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir. 2011) (“[I]f the

theory . . . wasn’t raised before the district court, we usually hold if forfeited.”).

When a party forfeits an argument by failing to raise it in the district court, we may

nevertheless review the issue for plain error. See id. (“[W]e will entertain forfeited

theories on appeal, but we will reverse . . . on the basis of a forfeited theory only if

failing to do so would entrench a plainly erroneous result.”). But Tinoco hasn’t

argued for plain-error review, and his failure to do so “marks the end of the road for

an argument for reversal not first presented to the district court.” Id. at 1131.

                                             7
Failure to Excuse Jurors

       Near the end of the trial, two jurors advised the court clerk that Tinoco was

staring at the jurors and that it bothered them. As we detailed above, the district

court ultimately rejected Tinoco’s suggestion to interview the jurors, and determined

that the juror contact instruction was sufficient. Notably, Tinoco’s counsel didn’t

object.

       Tinoco argues for the first time on appeal that the district court erred. He

further suggests that the two “complaining” jurors should have been excused

outright. Because Tinoco didn’t object below, we review this issue for plain error.

See Richison, 634 F.3d at 1128. But Tinoco fails to argue for plain-error review;

thus, he has waived the issue. See id. at 1131.

Cumulative Error

       According to Tinoco, the prosecutor’s repeated use of the term “threats,”

coupled with the district court’s failure to replace the two jurors who reported that he

was staring at the jury, “robbed him of his right to a fair trial, his due process of law,

and ultimately his justice.” Aplt. Opening Br. at 23.

       “A cumulative error analysis aggregates all errors found to be harmless and

analyzes whether their cumulative effect on the outcome of the trial is such that

collectively they can no longer be determined to be harmless.” United States v.

Barrett, 496 F.3d 1079, 1121 (10th Cir. 2007) (internal quotation marks omitted).

“Only actual errors are considered in determining whether the defendant’s right to a

fair trial was violated.” Id. (internal quotation marks omitted). We have addressed

                                            8
Tinoco’s arguments and found neither harmless error nor any non-reversible plain

error. Thus, we reject his cumulative error argument.

Failure to Continue the Trial

       Next, Tinoco argues that the district court’s decision to conduct the trial in

October, instead of a later date, deprived him of the opportunity to learn the rules of

evidence and other aspects of the law, which in turn resulted in his unpreparedness

for trial. Further, Tinoco maintains that the district court’s refusal to give him more

time to prepare necessitated his reliance on stand-by counsel to defend him at trial.

       Our examination of the record reveals that Tinoco never requested a

continuance. The parties met for a status conference in June 2016 at which time the

district court set the October trial date. Because Tinoco planned to represent himself,

he asked for more time to study the law, including the rules of evidence: “[I]n order

to be properly prepared, I would prefer that our trial date be a little bit further away

from October.” Supp. R., Vol. II at 97. The court responded: “[W]e can talk about

that [at the] August . . . [pretrial conference], but I’m going to advise you that it’s in

your best interest to have this case tried more quickly while recollections are fresh.”

Id. at 98. But when the parties met in August, Tinoco didn’t question the trial date,

nor did he seek a continuance at the final pretrial conference in September. And he

didn’t ask for a continuance on the day of trial.

       Tinoco’s failure to raise this issue in the district court means that we review

the issue for plain error. But again, Tinoco’s failure to argue for plain-error review

“marks the end of the road.” Richison, 634 F.3d at 1131.

                                             9
Terms of Supervised Release

       Finally, in his written response to the presentence report and at his sentencing

hearing, Tinoco objected to the terms of supervised probation. Specifically, Tinoco

argued that his religious beliefs provided a legitimate basis for him to ingest

marijuana, and that the standard terms of release that subjected him to drug

monitoring and testing imposed a unconstitutional burden on these religious beliefs,

citing the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1 (“Government

shall not substantially burden a person’s exercise of religion . . . [unless] it

demonstrates that . . . the burden . . . is in furtherance of a compelling governmental

interest[] and [] is the least restrictive means of furthering that compelling

governmental interest.”).

       Assuming arguendo that Tinoco established a sincerely held religious belief,

the government established a compelling interest to justify the terms of supervised

release, including the fact that the conditions are the least restrictive means available

to protect its compelling interest.

       Relevant here, “Congress has required courts to include two prohibitions as

‘explicit condition[s] of supervised release’ for all defendants: ‘that the defendant

not commit another Federal, State, or local crime during the term of supervision and

that the defendant not unlawfully possess a controlled substance.’” United States v.

Lafley, 656 F.3d 936, 940 (9th Cir. 2011), (quoting 18 U.S.C. § 3583(d)). The

condition regarding controlled substances “is consistent with the congressional

finding in the Controlled Substances Act that the illegal importation, manufacture,

                                            10
distribution, and possession and improper use of controlled substances have a

substantial and detrimental effect on the health and general welfare of the American

people.” Id. (brackets and internal quotation marks omitted). The mandatory

requirement “also represents Congress’ judgment about the importance of preventing

drug abuse among those who have been convicted of crimes and sentenced to a term

that includes a supervised release component.” Id. Thus, it is beyond dispute that

the government has a compelling interest in prohibiting Tinoco from using marijuana.

      Further, the conditions of supervised release governing the use of marijuana

and testing are no broader than the compelling government interest at stake. The

conditions simply state that Tinoco “must not knowingly purchase, possess,

distribute, administer, or otherwise use any psychoactive substances (e.g., synthetic

marijuana, bath salts, etc.,) that impair [his] physical or mental functioning, whether

or not intended for human consumption,” R., Vol. I at 99, and he “must submit to

substance abuse testing” to determine whether he has used a prohibited substance. id.

at 100. Tinoco has failed to articulate how less restrictive conditions could feasibly

and adequately prevent him from using marijuana, which is prohibited by Congress

for all defendants on supervised release. See 18 U.S.C. § 3583(d).

      The judgment of the district court is affirmed.


                                                Entered for the Court
                                                Per Curiam




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