* The soundness of including the third element in this instruction may be in doubt. See Elonis v. United States, 135 S. Ct. 2001 (2015).
8.47 THREATS AGAINST THE PRESIDENT (18 U.S.C. § 871)
The defendant is charged in [Count _______ of] the indictment with making a threat against the President of the United States in violation of Section 871 of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove:
First, the defendant intentionally threatened, either in writing or orally, to [kill] [injure] [kidnap] the President of the United States; and
Second, the defendant made the threat for the purpose of issuing a threat, or with the knowledge that it would be viewed as a threat.
[Third, under the circumstances in which the threat was made, a reasonable person would foresee that it would be understood by persons hearing or reading it as a serious expression of an intention to [kill] [injure] [kidnap] the President of the United States.]
The government need not prove that the defendant intended to carry out the threat.
The Supreme Court in reviewing the conviction of a defendant who violated 18 U.S.C. § 875(c), transmitting in interstate or foreign commerce any communication containing a threat to kidnap any person or injure any person, held that the mens rea of a crime involved in communicating a threat is established through proof that the defendant makes a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat. Elonis v. United States, 135 S. Ct. 2001 (2015). The Court in Elonis rejected the rule applied in the Ninth Circuit that "Whether a particular statement may properly be considered to be a threat is governed by an objective standard—whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault." United States v. Keyser, 704 F.3d 631, 638 (9th Cir.2012) (quoting United States v. Orozco-Santillan, 903 F.2d. 1262, 1265 (9th Cir.1990)).
The President need not have received the threat. Romo, 413 F.3d at 1051.
If the defendant is charged with threatening the Vice President or another officer next in the order of succession to the office of President, the instruction should be modified accordingly.