The use of conditional language is pertinent in evaluating the "threat" content of a statement for purposes of 18 U.S.C. § 871. Such evaluation must take the full context of an alleged threat into consideration. Alexander v. United States, 418 F.2d 1203 (D.C. Cir. 1969). Motive of the defendant may well be germane to the inquiry. Other factors for consideration would include such matters as audience reaction, intoxication, a history of mental illness unaccompanied by dangerous propensities, and capability of or preparations by the defendant to act upon his/her words.
The United States Attorney should not decline prosecution on the ground of a lack of a defendant's subjective intent to carry out a threat. If a prospective defendant's conduct reasonably appears to amount to a serious expression of intent to inflict harm, action to prosecute should follow immediately. The need for prompt action in this type of case indicates use of the complaint procedure unless some special circumstances require direct resort to the grand jury.
[cited in JM 9-65.200]