                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 26 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-50226

              Plaintiff - Appellee,              D.C. No. 3:10-cr-02417-H-1

  v.
                                                 MEMORANDUM *
ROBERT HADLEY HEIZELMAN,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                             Submitted March 7, 2012 **
                                Pasadena, California

Before: FARRIS, CLIFTON, and IKUTA, Circuit Judges.




       Heizelman was convicted of two counts of threatening a judge, in violation

of 18 U.S.C. § 115(a)(1)(B). He appeals, arguing that his jury waiver was not


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
voluntary, knowing, and intelligent and that his statements were not “true threats”

and are therefore protected speech. We affirm.

      We review de novo the adequacy of a jury waiver. United States v.

Duarte-Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997). Given the “suspected

presence of mental or emotional instability” in a defendant, the district court is

required “to conduct an in-depth colloquy” to assure that the defendant’s waiver of

a jury trial is voluntary, knowing, and intelligent. Id. at 1003 (internal citation and

quotations omitted). The record establishes that the district court’s colloquy was

sufficiently in-depth to assure that Heizelman’s waiver was voluntary, knowing,

and intelligent.

      If a defendant moves for acquittal at trial, we review de novo the sufficiency

of the evidence. United States v. Stewart, 420 F.3d 1007, 1014 (9th Cir. 2005). If

a party fails to make a timely assertion of rights, however, the right is forfeited and

we review for plain error. United States v. Perez, 116 F.3d 840, 845 (9th Cir.

1997). We must also determine whether the statement constitutes a true threat,

unprotected by the First Amendment, Stewart, 420 F.3d at 1015, which requires

proof “that the speaker subjectively intended the speech as a threat,” Id. at 1017

(internal citation and quotations omitted); see United States v. Bagdasarian, 652

F.3d 1113, 1117 (9th Cir. 2011) (subjective test “must be read into all threat


                                           2
statutes that criminalize pure speech”). There was no error. The record contains

sufficient evidence to establish the elements of the statutory violation, see Stewart,

420 F.3d at 1015, and Heizelman’s calls to the district court were “true threats.”

      AFFIRMED.




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