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8.47 Threats Against the President

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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 each of the following elements beyond a reasonable doubt:

First, the defendant intentionally threatened, either in writing or orally, to [kill] [injure] [kidnap] the President of the United States; and

Second, the defendant intended that the written or oral statement be taken 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.

Comment

The requirement that the government prove the defendant’s subjective intent "must be read into all threat statutes that criminalize pure speech." United States v. Bagdasarian, 652 F.3d 1113, 1117-18 (9th Cir. 2011). The Ninth Circuit notes that "with respect to some threat statutes, we require the purported threat meet an objective standard in addition,and for some we do not." Id. at 1117. Section 871(a) is among the statutes subject to both the subjective and the objective standards. Id. See also id. at 1118 (stating that the subjective and objective standards apply to 18 U.S.C. § 879(a)).

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.

Approved 8/2012