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Bulldog on phone


It’s a familiar trope in film and TV. The flawed yet noble protagonist faces his tormentor, and says, “If you so much as look at my family again, I will kill you.” The tormentor, a rich, powerful crime boss, leans forward and says, “Is that a threat?” “No,” says our hero, “it’s a promise.” Have we ever stopped to think whether the two are mutually exclusive? What’s the difference? When is a threat a true threat, and what is a true threat, anyway? Is it a “true threat” only if harm is intended, and the one uttering it is capable of carrying it out? 

That familiar movie scene hardly qualifies as being “ripped from today’s headlines,” but the underlying questions have been the subject of recent judicial attention, as courts wrestle with when and under what circumstances a threat can be considered a crime. Enter the recent 6th Circuit decision in United States v. Artel Howard, No. 18-4213, (6th Cir. 1/20/2020). Howard was convicted of one count of communicating a threat in interstate commerce, contrary to 18 U.S.C. § 875(c). 


Howard lives in Ohio. In late 2017 he made a series of calls to the law firm of former Attorney General Eric Holder. In doing that, he had to negotiate through the voicemail system of the law firm, thus the phone calls leading up to the charged event. He had to figure out how to get to Holder’s voicemail at a time when he could be certain that Holder wouldn’t answer. 

In the final call, Howard left the following voicemail:

Former U.S. Attorney General Eric Holder, I’m going to kill you. My name is – former U.S. Attorney General Eric Holder, I am going to murder you. My name is Atrel Howard. We had spoken in February of 2010. I was a United States unconstitutional convicted, uh, uh, prisoner by the Common Pleas Court of Cuyahoga County of the State of Ohio, by Judge John Sutula, through the second part of the clause of the double jeopardy law of the United States Constitution stating that a man cannot be put twice in jeopardy of loss of life — I mean a man cannot be put in jeopardy of loss of limb for the same — a man cannot be twice put in jeopardy for a loss of limb for the same charge.

Seems like a clear threat, and the jury thought so, too. Howard appealed his conviction, alleging deficiencies in the indictment, the jury instructions, and the sufficiency of the evidence. Each alleged error was based upon the argument that the government did not allege or prove that Howard intended to threaten the former A.G., nor did the government prove that the threat was a “true threat.” 


The concepts of intent and true threats are intertwined, and that twining can lead to confusion. The United States Supreme Court addressed that question of what state of mind is required to convict one of violating § 875(c), in United States v. Elonis, 575 U.S. 723, 135 S.Ct. 2001, 192 L.Ed.2d 1 (2015). Elonis didn’t call anyone, but he did post violent rap lyrics on Facebook, which included saying he intended to kill his ex-wife and harm a number of other people. He was charged and convicted of transmitting “in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” 18 U.S.C. § 875(c).

The Supreme Court overturned the conviction, ruling that criminal responsibility in this context cannot be based on negligence, or stated another way, it is not enough to only show that the person identified felt threatened by the communication. Transmitting a communication is not, of course, a crime. Criminal liability can’t be based solely on one’s intent to transmit that communication. Doing so would subject a person to criminal liability based upon the vagaries of whether a “reasonable person” considers the communication a threat. That, said the Court, is an unacceptable negligence standard. 

So, what is the requisite state of mind? What does the government have to prove, beyond the fact that a reasonable person would feel threatened? The Court gives us a slightly muddled standard. The statute’s intent standard is met if the evidence proves the defendant transmitted a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. The elements of the offense are, in accord with Elonis, (1) the defendant sent a message in interstate commerce; (2) a reasonable observer would view the message as a threat; and (3) the defendant intended the message as a threat. 


The Howard trial court took the Supreme Court at is word, and instructed the jury accordingly:

For you to find the defendant guilty… you must be convinced that the government has proved… the following elements beyond a reasonable doubt. A, that the communication was transmitted in interstate purpose of issuing a true threat or with knowledge that the communication would be understood as a true threat; that the communication contained a true threat to murder Eric Holder.

On the issue of what constitutes a “true threat”, the trial court directed the jury to consider

whether in light of the context a reasonable person would believe that the statement was a serious expression of an intention to inflict bodily injury and whether the statement was made for the purpose of furthering some goal through the use of intimidation.

The interjection of the words “reasonable person,” argued Howard, allowed the jury to base its verdict upon the negligence standard, thereby running afoul of Elonis. Not so, said the 6th Circuit. The words “reasonable person” put the decision about Howard’s subjective intent in context, focusing the juror’s mind on the pragmatic inferences about his state of mind that can be drawn from the evidence, including the known result of his conduct. These pragmatic inferences include that Howard must have known the result of the voicemail would be that the A.G. would consider the voicemail a real threat, and he would be frightened by it. With that knowledge one can infer that Howard left the voicemail with the intent to bring about that very result. “It is rare that a jury would find that a reasonable speaker would have intended a threat under the particular facts of a case but that a competent defendant would not.” United States v. Clemons, 738 F.3d 1, 12 (1st Cir. 2013)According to that standard, was the voicemail a “real threat” under the statute? The Court resorted first to the dictionary for the definition of threat. The various dictionary definitions can all be boiled down to a threat is an expression of intent to harm another. A voicemail that vows to kill the recipient seems to meet that standard. 


But did he intend to issue a true threat, or did he have some innocent intent? If someone says that they were just joking when they say “I’m going to murder you,” they’re saying that they did not seriously intend to do so. When boxer Eddie Coyle told his manager Doc O’Hearn, that he would “murder the bum,” referring to fellow boxer Sam Landon, he didn’t seriously intend to kill Landon, and in the context of the statement no one would consider that an expression of serious intent. See, “Men of Steel”, by Shane Collins. By contrast, the circumstances and context of Howard’s voicemail compels a different inference. 

Howard argued that he had no need to threaten the former Attorney General, in fact, he didn’t know nor had he ever met Holder, and thus could not seriously intend to kill him. The context showed otherwise, as there was no suggestion that he was joking; he expressed a motive in a perceived injustice perpetrated against him by the Department of Justice lead by Holder; and, the series of calls to negotiate the law firm’s voicemail system shows that it was not an impulsive act, as he had multiple chances to rethink his plan. 

Howard also argued that because he twice left his name in the voicemail, and that he made the call from Ohio, rebuts any argument of his subjective intent to “willfully” or “knowingly” issue a threat. Unfortunately for Howard, the law is clearly otherwise. There has never been a requirement to prove a defendant intended to carry out his threat, or even that he had the capability of doing so. “Rather, the standard of evaluating ‘intent’ in relation to threats is appropriately low, given the seriousness of these criminal statutes: if a jury could conclude that the defendant ‘intended his threats to influence’ a victim or others ‘through’ intimidation, then a ‘true threat’ and the defendant’s intention can be established.” Howard, quoting United States v. Houston, 683 F. App’x 434, 439 (6th Cir. 2017).


There are many states that have statutes criminalizing the communication of threats. Some have no clearer intent requirements than the federal statute at issue in Howard. We may be pretty comfortable with that, depending on the context of the threat. For example, a high schooler who scrawls a bomb threat on the bathroom wall will probably be violating some statute, even if the student’s intent is clearly to make a joke, albeit a bad one. School officials must take the threat seriously, as the consequences of not doing so and a bomb going off in a school are too horrific to bear. If the threat turns out to be a hollow one, the necessary law enforcement and fire and rescue response will put people at risk.

Some state laws require that a threat be credible to be actionable. Here, the context and circumstantial evidence will likely prove the credibility of the threat, in the same way they proved the “true” nature of the threat in Howard, and Howard’s intent in making it. 


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