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

                            FOR THE TENTH CIRCUIT                       January 8, 2013

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

              Plaintiff-Appellee,

v.                                                         No. 11-4213
                                                  (D.C. No. 2:10-CR-00688-TS-1)
GUY ALMA REAM,                                               (D. Utah)

              Defendant-Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, McKAY, and O’BRIEN, Circuit Judges.


      Defendant Guy Alma Ream, appearing pro se, appeals his conviction for

threatening a federal official in violation of 18 U.S.C. § 115(a)(1)(B). The district

court sentenced Mr. Ream to an eight-month credit-for-time served sentence and

thirty-six months’ probation. We exercise jurisdiction pursuant to 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 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    I. Background

      Mr. Ream’s conviction stems from his threatening conduct towards a postal

clerk at a Salt Lake City post office. He asked the clerk for his mail but when she

told him she could not find any mail for him, he began yelling at her. She looked in

the back room, and when she again told Mr. Ream there was no mail for him, he

yelled, shouted very offensive racial and sexual epithets at her, and ripped his shirt

off. Another postal customer, Ms. Long, testified that Mr. Ream whipped his shirt at

the postal worker, knocked a fan and calculator from the counter to the floor, and

“screech[ed]” at the clerk, “I will kill you, you [explicatives deleted].” R. Vol. III, at

160. The postal clerk, who described Mr. Ream as “very, very angry,” and “crazy,”

called for her supervisor, twice called 911, and, fearing he would jump over the

counter and attack her, hid behind a wall in the back of the post office. Id. at 179.

When the police arrived, Mr. Ream said he had not threatened anyone, but had only

yelled, “you’re dead” to the postal clerk. Id. at 256.

      Mr. Ream was arrested and charged with disorderly conduct in Utah. After he

spent four days in jail, the state charges were dismissed. A month later, a federal

grand jury indicted Mr. Ream for threatening a federal official. The government

filed a motion asking that Mr. Ream undergo a mental competency evaluation

pursuant to 18 U.S.C. § 4241(a). The magistrate judge granted the motion after two

hearings, and the district court affirmed the order. After the psychiatric evaluation,

the district court ruled Mr. Ream was competent to stand trial.


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        Because Mr. Ream proceeds pro se in this appeal, we construe his arguments

liberally, but do not assume the role of his advocate. See United States v. Viera,

674 F.3d 1214, 1216 n.1 (10th Cir. 2012). His appellate brief is not entirely clear,

but we discern the following issues on appeal: (1) The district court should have

dismissed the indictment because (a) the federal charges violated the constitutional

prohibition on double jeopardy because he spent time in jail on the initial state

charges; (b) his name was misspelled on the original indictment; (c) his conduct at

the post office was constitutionally protected free speech; and (d) the government

obstructed justice by vindictively prosecuting him despite his double jeopardy and

free speech rights; (2) he was detained prior to trial without just cause; (3) the

government’s motion that he undergo a competency evaluation was malicious and

abusive, and the district court’s grant of that motion was without legal basis; and

(4) there was insufficient evidence to convict him because he had no intent to harm

the clerk, nor did he have weapons or physical contact with the clerk, and only one

witness testified that he threatened to kill the postal clerk, which was an “outright

lie.” Aplt. Br. at 5.

                               II. Standards of Review

       “[W]e review legal questions de novo but view the facts in the light most

favorable to the government as the prevailing party.” United States v. Ludwig,

641 F.3d 1243, 1247 (10th Cir.), cert. denied, 132 S. Ct. 306 (2011). Mr. Ream

rarely cites legal authority in support of his arguments or references where in the


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record an issue was presented to the district court, as required by Tenth Circuit

Rule 28.2(C)(2). Pro se parties must “follow the same rules of procedure that govern

other litigants.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005) (internal quotation marks omitted). Thus, we confine our review to

the extent that Mr. Ream has complied with applicable court rules. See id. (“[T]he

court cannot take on the responsibility of serving as the litigant’s attorney in

constructing arguments and searching the record.”).

                                    III. Discussion

   Double Jeopardy. Mr. Ream filed a motion to dismiss the indictment, alleging the

federal charges violated the Double Jeopardy clause because of the time he spent in

jail on the state charges. But the state charges were dismissed before any jury was

empaneled. Thus, Utah’s arrest and detention of Mr. Ream did not place him in

jeopardy, which occurs “when a jury is empaneled and sworn, or, in a bench trial,

when the judge begins to receive evidence.” United States v. Martin Linen Supply

Co., 430 U.S. 564, 569 (1977). Accordingly, no double jeopardy concerns were

implicated by his federal prosecution and conviction, and the district court correctly

denied all of Mr. Ream’s motions asserting a double jeopardy claim. See Serfass v.

United States, 420 U.S. 377, 393 (1975) (“[A]n accused must suffer jeopardy before

he can suffer double jeopardy.”).

        Amended Indictment. Mr. Ream contends the indictment was impermissibly

amended to correct the spelling of his name from “Reams” to “Ream.” Although a


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district court may not amend the substance of an indictment, it may make

amendments to its form, such as correcting spelling and typographical errors. See

United States v. Cook, 745 F.2d 1311, 1316 (10th Cir. 1984). It is clear the

amendment here was only as to form and did not prejudice Mr. Ream.

      First Amendment Claim. Mr. Ream argues the district court should have

dismissed the indictment because his statements and conduct at the post office were

protected free speech under the First Amendment. He bases this on his assertion that

he had no real intent or means to injure and had no physical contact with anyone.

      Under the First Amendment, threatening expression can be criminally

punished if the communication at issue is a “true threat,” that is, if 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).

      [I]t is not necessary to show that the defendant intended to carry out the
      threat, nor is it necessary to prove that the defendant actually had the
      apparent ability to carry out the threat. The question is whether those
      who hear or read the threat reasonably consider that an actual threat has
      been made. It is the making of the threat, not the intention to carry it
      out, that violates the law.

United States v. Martin, 163 F.3d 1212, 1216 (10th Cir. 1998). It is also not

necessary that a true threat be made directly to the proposed victim. Id. “Whether a

statement constitutes a true threat under 18 U.S.C. § 115 represents a jury question to

be reviewed in the light most favorable to the government.” Id. Thus, the district



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court properly denied Mr. Ream’s motion to dismiss the indictment on First

Amendment grounds and properly submitted this factual issue to the jury.

      Vindictive Prosecution. Mr. Ream also argued in his motion to dismiss that

the government’s decision to seek a competency evaluation and to prosecute him was

vindictive in light of his free speech and double jeopardy claims. We disagree.

Although the government may not punish a defendant for exercising constitutional or

statutory rights in the course of criminal proceedings, United States v. Raymer,

941 F.2d 1031, 1040 (10th Cir. 1991), it may punish him for violating the law.

United States v. Carter, 130 F.3d 1432, 1443 (10th Cir. 1997). The government had

reasonable cause to question whether Mr. Ream was competent to stand trial, see

United States v. Cornejo-Sandoval, 564 F.3d 1225, 1235 (10th Cir. 2009) (“extreme

behavioral manifestations may, along with other factors, raise reasonable cause to

doubt a defendant’s competency”), as well as probable cause to believe he had

threatened a federal officer.

      Pretrial Detention and Competency Evaluation. Mr. Ream’s claim that he

should not have been detained prior to trial was mooted by his conviction.

See Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam) (holding that claim to

pretrial bail was moot once defendant was convicted); United States v. Meyers,

95 F.3d 1475, 1488 (10th Cir. 1996) (holding district court’s failure to hold a timely

pretrial release hearing was moot in light of defendant’s subsequent conviction).




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      Similarly, Mr. Ream’s claims that the district court erred in ordering a

competency evaluation were also mooted by his conviction. See United States v.

Deters, 143 F.3d 577, 581 (10th Cir. 1998) (holding that competency evaluation

order is immediately appealable because the issue becomes moot upon conviction and

sentence); United States v. Weissberger, 951 F.2d 392, 395-97 (D.C. Cir. 1991)

(“If [the defendant] is declared competent and the trial proceeds, post-confinement

review will provide no relief for the loss of liberty associated with the competency

evaluation.”). Accordingly, we lack jurisdiction to consider these two arguments.

      Sufficiency of the Evidence. Mr. Ream argues the district court wrongfully

denied his motion for a judgment of acquittal, because there was insufficient

evidence for the jury to have found both that his statements constituted a true threat

and that he threatened a federal officer in violation of 18 U.S.C. § 115(a)(a)(B).

After viewing the evidence in the light most favorable to the government, we hold

that a rational jury could have found Mr. Ream made a true threat against a federal

officer in violation of § 115(a)(1)(B). See United States v. Austin, 231 F.3d 1278,

1283 (10th Cir. 2000) (court will reverse only “if no rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.”). Mr. Ream

admitted at trial that he was “angry and belligerent;” grabbed a fan and smacked it on

the counter, smashing it; and tore his shirt in anger. R. Vol. III, at 273, 281. He

denied making a “direct threat to kill,” id. at 274, but admitted he used the word

“dead,” and told the postal clerk she was “a brain dead [explicative].” Id. at 282-83.


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Ms. Long testified that Mr. Ream said, “I will kill you, you [explicatives deleted].”

Id. at 160. And the two arresting officers testified Mr. Ream told them he had

“yelled ‘you’re dead’ to the clerk.” Id. at 256. Mr. Ream asserts that Ms. Long’s

testimony was false, but we may not make credibility determinations for any reason

in reviewing the sufficiency of the evidence. See Austin, 231 F.3d at 1283 (holding

that court reviews “the trial record to determine if there is evidence to support the

verdict” but does not “weigh the evidence or consider the credibility of the

witnesses”).

      The judgment of the district court is affirmed. Mr. Ream’s “[m]otion for

acquittal by ‘reverse integration’” is denied.


                                                 Entered for the Court


                                                 Paul J. Kelly, Jr.
                                                 Circuit Judge




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