8.47A MAILING THREATENING COMMUNICATIONS—THREATS

TO KIDNAP OR INJURE

(18 U.S.C. § 876(c))

The defendant is charged in [Count _______ ] of the indictment with mailing threatening communications in violation of Section 876(c) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly [mailed] [arranged to have mailed] a [letter] [insert other form of communication] addressed to [insert name or title of natural person] containing a threat to [kidnap] [injure] any person.

Second, such [insert form of communication] was transmitted for the purpose of issuing a threat, or with knowledge that the [insert form of communication] would be viewed as a threat.

The government need not prove that the defendant intended to carry out the threat.

Comment

This instruction is based on United States v. Keyser, 704 F.3d 631 (9th Cir.2012), United States v. Havelock, 664 F.3d 1284 (9th Cir. 2012), United States v. King, 122 F.3d 808 (9th Cir.1997), United States v. Twine, 853 F.2d 676 (9th Cir. 1988), and United States v. Sirhan, 504 F.2d 818, 820 (9th Cir.1974). While the Ninth Circuit has not offered comprehensive guidance concerning the requirements for conviction under 18 U.S.C. § 876, these cases are instructive.

Under 18 U.S.C. § 876, the threatening communications must be addressed to a natural person. Havelock, 664 F.3d at 1286. "[I]n order to determine whom a threatening communication is 'addressed to,' a court may consult the directions on the outside of the envelope or the packaging, the salutation line, if any, and the contents of the communication." Id. at 1296. A general title such as "manager" is sufficient to meet this requirement. Keyser, 704 F.3d at 641.

Whether a particular statement may be considered a threat is not governed by an objective standard. The mens rea of the crime involved in communicating a threat is established through proof that a defendant makes a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. See Elonis v. United States, 135 S. Ct. 2001 (2015) (involving violation of 18 U.S.C. § 875(c), transmitting in interstate or foreign commerce threat to kidnap or threat to injure person).

There are two specific intent elements in 18 U.S.C. § 876. The defendant must have both "knowingly" transmitted the communication and subjectively intended to threaten. Twine, 853 F.2d at 680; Keyser, 704 F.3d at 638 ("In order to be subject to criminal liability for a threat, the speaker must subjectively intend to threaten."). However, the defendant need not have expected the threats to gain him a benefit, or have had the intent or ability to actually carry out the threat. Planned Parenthood of the Columbia/Williamette, Inc. v. Am. Coalition of Life Activists, 290 F.3d 1058, 1076 n.9 (9th Cir.2002); King, 122 F.3d at 809.

Approved 9/2015