Appellate Case: 23-2201 Document: 126 Date Filed: 10/11/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 11, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 23-2201 (D.C. No. 2:21-CR-00878-KG-1) v. (D. N.M.)
JOHN BENJAMIN THORNTON,
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before TYMKOVICH, McHUGH, and MORITZ, Circuit Judges. _________________________________
Defendant John Benjamin Thornton pleaded guilty to one count of
cyberstalking, in violation of 18 U.S.C. §§ 2261A(2)(B) and 2261, and eight counts
of transmitting threats in interstate commerce, in violation of 18 U.S.C. § 875(c).
The district court sentenced Mr. Thornton to a term of imprisonment of 60 months, to
be followed by a three-year term of supervised release. Mr. Thornton has now filed a
pro se appeal seeking to withdraw his plea of guilty, challenging the grand jury
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-2201 Document: 126 Date Filed: 10/11/2024 Page: 2
process and the sufficiency of the second superseding indictment, and alleging bias
on the part of the district court judge. Exercising jurisdiction pursuant to 28 U.S.C.
§ 1291, we reject Mr. Thornton’s arguments and affirm the judgment of the district
court.
I
In May 2021, agents with the Federal Bureau of Investigation (FBI) received
information that Mr. Thornton sent threatening text messages to four different
individuals, including his ex-wife T.T. Three of the message recipients lived in
Texas and the fourth lived in Florida. FBI agents investigated and obtained records
indicating that Mr. Thornton’s cell phone was located in Las Cruces, New Mexico, at
the time the threatening text messages were sent. FBI agents also determined, based
on a review of Mr. Thornton’s driver’s license, that photographs associated with the
threatening text messages were of Mr. Thornton himself.
Mr. Thornton was initially charged by criminal complaint with one count of
transmitting in interstate commerce communications containing a threat to injure the
person of another, in violation of 18 U.S.C. § 875(c). After filing the complaint, the
government filed a motion for a competency hearing and a psychological evaluation
of Mr. Thornton. Mr. Thornton’s counsel opposed the motion and the magistrate
judge denied the motion.
A federal grand jury subsequently returned three indictments against Mr.
Thornton. Count 1 of the second superseding indictment charged Mr. Thornton with
cyberstalking T.T. between February 4 and May 23, 2021, by the use of text
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messages and Facebook posts, in violation of 18 U.S.C. §§ 2261A(2)(B) and 2261.
Counts 2 through 9 of the second superseding indictment charged Mr. Thornton with
transmitting threats in interstate commerce, in violation of § 875(c). The § 875(c)
counts related to Facebook posts concerning, and text and email messages that Mr.
Thornton sent to, T.T. and two other victims in which he threatened to injure or kill
them.
On the eve of trial in December 2021, the district court, at Mr. Thornton’s
request, held an impromptu plea hearing. During the hearing, Mr. Thornton
expressed his intent to plead guilty to all nine counts in the second superseding
indictment. After a lengthy colloquy with Mr. Thornton, the district court found him
competent and capable of entering into a formal plea of guilty, found his plea to be
knowing and voluntary, and accepted his plea of guilty as to each count in the second
superseding indictment.
Prior to sentencing, Mr. Thornton’s counsel filed a motion to determine
competency. Although Mr. Thornton objected, the district court granted that motion
and ordered Mr. Thornton to be evaluated by a psychologist to determine whether he
suffered from a mental disease or defect that rendered him incompetent. A
psychologist evaluated Mr. Thornton, diagnosed him as suffering from delusional
disorder, mixed type, and concluded his delusional symptoms were impacting his
functioning to such a degree that he was not competent to stand trial.
The district court held a competency hearing in August 2022. During the
hearing, the government requested that Mr. Thornton be committed to the custody of
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the Attorney General of the United States to be hospitalized at a suitable facility
where he would be evaluated and possibly treated until he attained competency.
Mr. Thornton’s counsel did not oppose the request. The district court granted the
government’s request and committed Mr. Thornton for purposes of evaluation and
treatment.
Mr. Thornton was subsequently evaluated at the Federal Medical Center in
Devens, Massachusetts (FMC Devens). The clinical team at FMC Devens diagnosed
him as suffering from delusional disorder, mixed type, as well as antisocial and
narcissistic personality disorders. Although Mr. Thornton refused to take medication
or to fully participate in a formal competency restoration process, the clinical team
nevertheless concluded his mental health symptoms did not compromise his ability to
understand the nature and consequences of the proceedings against him or to assist in
his defense.
In November 2023, the warden at FMC Devens notified the district court of
the clinical team’s findings and conclusions. The warden attached to his letter a
certificate of competency. Government counsel and counsel for Mr. Thornton
stipulated to the certificate of competency and agreed there was no need to hold a
competency hearing. The district court found Mr. Thornton to be competent and
ready to proceed with his criminal case.
The district court held a sentencing hearing in December 2023. At the outset
of the hearing, Mr. Thornton asserted he “ha[d] not signed a plea” nor “seen one.”
R. vol. 3 at 9. Government counsel rebutted that assertion, noting that Mr. Thornton
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“pled straight to the indictment the Friday before trial.” Id. The district court in turn
noted it recalled taking Mr. Thornton’s guilty plea by video and that it found
Mr. Thornton competent at that time. Mr. Thornton, however, continued to maintain
he “never signed a plea agreement” and he argued the prosecutor “falsified the
evidence.” Id. at 12. Mr. Thornton also refused to be seated, continued to argue with
the district court, and ultimately had to be removed from the courtroom. The district
court noted on the record that it was “construing his conduct to be a waiver of his
right to be present for sentencing and his right to allocute.” Id. at 13. The district
court, after conferring with counsel, allowed Mr. Thornton to return to the courtroom
and advised him that if he could not “comply or conform to the rules of the
courtroom,” then he would be removed. Id. at 22. Mr. Thornton stated that he could
not comply. He in turn asserted that the government “falsified the evidence tags in
this case,” and that he was never arraigned nor “saw a plea.” Id. at 23. Mr. Thornton
then voluntarily left the courtroom. The district court noted on the record that
“Mr. Thornton ha[d] waived his right to be present” at sentencing. Id.
Although the presentence investigation report (PSR) proposed a two-level
upward adjustment pursuant to U.S.S.G. § 2A6.1(b)(2)(A) on the grounds that the
offense involved more than two threats, the district court found there were “many,
many more than two” threats and therefore concluded that an additional two-level
increase was necessary. R. vol. 3 at 66. The district court also declined to apply a
two-level downward adjustment for acceptance of responsibility under
U.S.S.G. § 3E1.1(a), noting that Mr. Thornton’s “conduct” and “words spoken in
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open court” were not “appropriately remorseful.” Id. at 66–67. That resulted in a
total offense level of 24 and a resulting advisory guidelines sentencing range of 51 to
63 months. The district court imposed a sentence of imprisonment of 60 months,
citing the seriousness of Mr. Thornton’s conduct, the need to deter future criminal
conduct, the need to protect the public, and the need to protect the victims from
Mr. Thornton’s future criminal conduct. The district court also imposed a three-year
term of supervised release that included special conditions, such as mandatory
participation in mental health treatment and supervision of computer activities.
Mr. Thornton’s counsel filed a timely notice of appeal. Mr. Thornton has
since chosen to represent himself on appeal.
II
A
We begin by liberally construing Mr. Thornton’s pro se appellate pleadings as
arguing that the district court erred, at the time of sentencing, by failing to sua sponte
allow him to withdraw his guilty plea.1 Typically, we review a district court’s denial
of a motion to withdraw a guilty plea “under our ‘deferential’ abuse-of-discretion
1 The overarching theme in all of Mr. Thornton’s pleadings is that he is innocent of the charges that were asserted against him in the second superseding indictment. He also argues that he never saw, nor orally accepted the terms of, any written plea agreement during the district court proceedings. In addition, he argues that Counts 1 and 2 of the original indictment “still remain,” that “[a] trial on [the] merits” of those claims “with a reset docket is needed,” and that he “will be representing [him]self, Pro Se” at any such trial. Aplt. Br. at 3. And, ultimately, he argues that “[a] complete dismissal is warranted.” Aplt. Reply Br. at 20. “Because [Mr. Thornton] is pro se, we liberally construe his filings, but we will not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013). 6 Appellate Case: 23-2201 Document: 126 Date Filed: 10/11/2024 Page: 7
standard.” United States v. Dominguez, 998 F.3d 1094, 1103 (10th Cir. 2021)
(quoting United States v. Byrum, 567 F.3d 1255, 1259 (10th Cir. 2009)). But because
Mr. Thornton did not seek to withdraw his guilty plea in the district court, we review
only for plain error. See generally United States v. Vonn, 535 U.S. 55, 59 (2002)
(holding “that a silent defendant has the burden to satisfy the plain-error rule”). To
establish plain error, Mr. Thornton “must show (1) the district court erred, (2) the
error was plain, (3) the error affected [his] substantial rights, and (4) the error
seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” See United States v. Miller, 978 F.3d 746, 757 (10th Cir. 2020)
(internal quotation marks omitted).
“Defendants do not have an absolute right to withdraw a guilty plea.”
United States v. Siedlik, 231 F.3d 744, 748 (10th Cir. 2000). Instead, a defendant
“bears the burden of establishing a fair and just reason for his request.” Dominguez,
998 F.3d at 1103 (internal quotation marks omitted). In assessing whether a
defendant has established a fair and just reason for withdrawing his guilty plea, “we
have typically considered” seven factors:
(1) whether the defendant has asserted his innocence; (2) whether withdrawal would prejudice the government; (3) whether [he] delayed in filing his motion, and if so, the reason for the delay; (4) whether withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to [him]; (6) whether [his] plea was knowing and voluntary; and (7) whether the withdrawal would waste judicial resources.
Id. (brackets omitted) (quoting United States v. Yazzie, 407 F.3d 1139, 1142
(10th Cir. 2005) (en banc).
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The first of these factors weighs against any finding of error on the part of the
district court. Mr. Thornton has, as we have noted, effectively asserted his innocence
in his appellate pleadings. But he did not clearly do so during the district court
proceedings. To be sure, Mr. Thornton argued at the outset of his sentencing hearing
that he “was never arraigned on th[e] [second superseding] indictment” and, as a
result, it was “impossible for [him] to enter a plea of not guilty or guilty.” R. vol. 3
at 8. But the prosecutor and the district court refuted that assertion, noting that
Mr. Thornton was arraigned on all three indictments. Mr. Thornton then asserted, as
he does now on appeal, that he did “not sign[] a plea” and “ha[d] not seen one.” Id.
at 9. The prosecutor noted that in response the parties had reached no plea agreement
and that, instead, Mr. Thornton “pled straight to the [second superseding] indictment
the Friday before trial.” Id. The district court likewise noted on the record that it
recalled personally taking Mr. Thornton’s guilty plea. Mr. Thornton did not dispute
that he pleaded guilty. Instead, he asserted that he “pled guilty to the [first
superseding] indictment” and “was not aware” that it failed to adequately allege “the
mens rea.” Id. at 11. Thus, although Mr. Thornton argued that the first superseding
indictment was legally insufficient, he failed to assert his innocence of the charges
contained in the second superseding indictment.
The third, fifth, and sixth factors also weigh against any finding of error on the
part of the district court. Regarding the third factor, Mr. Thornton never moved to
withdraw his guilty plea and raised concerns about the lack of a plea agreement and
the sufficiency of the first superseding indictment only at sentencing. As for the fifth
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factor, a review of the district court proceedings indicates that Mr. Thornton was
represented at all times by appointed counsel and thus the close assistance of counsel
was available to him had he wished to seek to withdraw his guilty plea. Regarding
the sixth factor, the district court conducted a lengthy colloquy with Mr. Thornton at
the time he entered his oral plea of guilty to the second superseding indictment and
concluded that Mr. Thornton’s plea was knowing and voluntary. Notably,
Mr. Thornton does not dispute that conclusion.
That leaves the second, fourth, and seventh factors. The government addresses
these factors in its appellate response brief and asserts “that withdrawal would
prejudice the government and the [district] court” and “waste judicial resources.”
Aple. Br. at 32. Mr. Thornton makes no attempt in his appellate reply brief to refute
these assertions. We therefore conclude these three factors also weigh against any
finding of error on the part of the district court.
For these reasons, we conclude Mr. Thornton has failed to establish the district
court erred by failing to sua sponte allow him to withdraw his guilty plea.
B
We also liberally construe the arguments in Mr. Thornton’s appellate briefs as
challenging the grand jury process and the sufficiency of the second superseding
indictment. For example, in his opening brief, Mr. Thornton alleges he provided
“conversation evidence” to the FBI “via cell phone on 5-24-21 . . . to assist them in
investigating counts 1 and 2” of the original indictment, which charged him with
making threats in interstate commerce against his ex-wife on May 18, 2021, in
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violation of 18 U.S.C. § 875(c). Aplt. Br. at 2. That “conversation history,”
Mr. Thornton alleges, “specifically eliminate[d], beyond a reasonable doubt,
‘knowingly and willfully’ from being applicable to count 3” of the original
indictment, which charged him with violating § 875(c) by way of a Facebook post he
made on May 23, 2021. Id. According to Mr. Thornton, “[n]o complaints were made
by” his ex-wife “about Facebook Posts, because [he] specifically told her what the
posts were” and, thus, “Count 3 d[id] not have the needed elements for an indictment
to happen.” Id.
Mr. Thornton also argues that the Count 1 cyberstalking charge in each of the
superseding indictments “is the result of counts 1 and 3” from the original indictment
“being combined.” Id. He in turn argues that “[t]he dismissal of ‘count 3’ in the
[first] indictment dismisses all cyberstalking ‘count 1’ indictments.” Id. In addition,
he argues that “[a]ll pleadings to the superseding indictment must be expunged.” Id.
Federal Rule of Criminal Procedure 12(b)(3) provides that challenges to the
grand-jury proceeding or the sufficiency of an indictment “must be raised by pretrial
motion if the basis for the motion is then reasonably available and the motion can be
determined without a trial on the merits . . . .” Fed. R. Crim. P. 12(b)(3). Relatedly,
Rule 12(c)(3) states that “[i]f a party does not meet the deadline for making a
Rule 12(b)(3) motion, the motion is untimely.” Fed. R. Crim. P. 12(c)(3).
Rule 12(c)(3) also states, however, that “a court may consider the defense, objection,
or request if the party shows good cause.” Id.
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After the first superseding indictment was returned, Mr. Thornton’s appointed
counsel filed a motion to dismiss that indictment on a number of grounds, including
that the § 875(c) counts failed to allege Mr. Thornton intended or knew that the
alleged victims of his messages and Facebook posts would view them as threats. The
motion to dismiss did not, however, include any of the arguments Mr. Thornton now
asserts in his appellate pleadings. The government responded to that motion, in part,
by seeking the second superseding indictment, which included in each of the § 875(c)
counts specific intent-to-threaten language. The district court denied the motion to
dismiss, noting in part the filing of the second superseding indictment. Less than a
month after the second superseding indictment was returned, and on the eve of trial,
Mr. Thornton entered an oral plea of guilty, without benefit of a plea agreement, to
all of the charges in the second superseding indictment. At no point during the plea
hearing did Mr. Thornton or his counsel raise any challenge to the grand jury process
or to the sufficiency of the second superseding indictment.
In light of this procedural history, we conclude the arguments that
Mr. Thornton now seeks to assert regarding the grand jury process and the
sufficiency of the second superseding indictment are untimely. We further conclude
that Mr. Thornton has failed to show good cause for his delay in asserting these
arguments. We therefore deem his arguments waived. See United States v. Bowline,
917 F.3d 1227, 1237 (10th Cir. 2019) (“[W]e will not review an untimely Rule 12
argument absent good cause.”); United States v. Madsen, 614 F. App’x 944, 953
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(10th Cir. 2015) (deeming challenge to indictment waived because it was untimely
and defendant failed to demonstrate good cause for the delay).
C
Lastly, we address Mr. Thornton’s argument that the district court was
“bias[ed] towards” him “due to wrongful arrests for domestic violence in Fulshear,
Texas.”2 Aplt. Br. at 4. Mr. Thornton argues that those “charges were dismissed”
and he “never should have been arrested.” Id.
“Normally, a party alleging judicial bias should move for recusal, and must do
so in a timely fashion.” United States v. Nickl, 427 F.3d 1286, 1297 (10th Cir. 2005)
(internal quotation marks omitted). Because Mr. Thornton did not move for recusal,
we review his claim of bias for plain error. Id.
“The Due Process Clause entitles a person to an impartial and disinterested
tribunal in both civil and criminal cases.” Marshall v. Jerrico, Inc., 446 U.S. 238,
242 (1980). A judge must recuse himself “if sufficient factual grounds exist to cause
a reasonable, objective person, knowing all the relevant facts, to question the judge’s
impartiality.” United States v. Pearson, 203 F.3d 1243, 1277 (10th Cir. 2000).
Although Mr. Thornton’s appellate arguments are not entirely clear, we
construe them in light of the record on appeal as asserting the district judge exhibited
bias during the sentencing hearing by basing its sentence, at least in part, on
2 In his appellate reply brief, Mr. Thornton argues that the district court judge “is mentally ill . . . .” Aplt. Reply Br. at 12. We will consider that argument as part of Mr. Thornton’s assertion that the district court was biased against him.
12 Appellate Case: 23-2201 Document: 126 Date Filed: 10/11/2024 Page: 13
Mr. Thornton’s prior arrests for domestic violence. During the sentencing hearing,
Mr. Thornton’s counsel objected to information in the PSR indicating that Mr.
Thornton was arrested in Texas in 2016 and 2017 in connection with three incidents
of domestic violence. The PSR noted that prosecution was declined in the first
incident, the second case was dismissed due to insufficient evidence, and the third
case was dismissed because the victim either failed to respond or recanted.
Mr. Thornton’s counsel argued that, even though this information did not impact
Mr. Thornton’s criminal history category, it was nevertheless prejudicial because the
government was seeking an upward variance based on the information. Government
counsel responded that their request for an upward variance had nothing to do with
the domestic violence arrests and instead was based on other conduct by
Mr. Thornton.3 As a result, the district judge concluded the language in the PSR
regarding the domestic violence matters was not prejudicial and did not need to be
removed. Later during the sentencing hearing, the district judge agreed with the PSR
that a two-level upward adjustment to the offense level was warranted under
U.S.S.G. § 2A6.1(b)(2)(A) because the offense involved more than two threats. But
it also concluded that an additional two-level increase was necessary because the
offense involved significantly more than two threats. The district judge also found
that Mr. Thornton’s conduct and statements in court failed to demonstrate remorse
3 The record indicates that the government sought an upward variance based upon correspondence Mr. Thornton sent to one of his victims that included a threat to kill another of his victims. 13 Appellate Case: 23-2201 Document: 126 Date Filed: 10/11/2024 Page: 14
and therefore declined to apply a two-level downward adjustment for acceptance of
responsibility under U.S.S.G. § 3E1.1(a).
These circumstances fail to give rise to any grounds upon which a reasonable,
objective person could question the district judge’s impartiality. Where, as here, a
judge’s words or actions are motivated by events originating within the context of
judicial proceedings, they are normally insulated from charges of bias. Liteky v.
United States, 510 U.S. 540, 554–56 (1994). Thus, “adverse rulings cannot in
themselves form the appropriate grounds for disqualification.” Green v. Branson,
108 F.3d 1296, 1305 (10th Cir. 1997) (internal quotation marks omitted). We
therefore conclude Mr. Thornton has failed to establish plain error.4
III
The judgment of the district is affirmed. Mr. Thornton’s motions to
supplement the record, to strike the government’s brief, and to be compensated
equally to an attorney are denied.
Entered for the Court
Carolyn B. McHugh Circuit Judge
4 To the extent Mr. Thornton is also alleging the district judge was biased because he removed Mr. Thornton from the courtroom during the sentencing hearing, we likewise conclude there is no basis for disqualification. See Liteky, 510 U.S. at 556 (noting “[a] judge’s ordinary efforts at courtroom administration,” even if “stern and short-tempered,” are “immune” from charges of bias and partiality). 14