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1072. Special Considerations in Proving a Threat

A threat has been defined as "an avowed present determination or intent to injure presently or in the future." See United States v. Dysart, 705 F.2d 1247, 1256 (10th Cir.), cert. denied, 464 U.S. 934 (1983); United States v. Marino, 148 F. Supp. 75, 77 (N.D.Ill. 1957). See also 2 E. Devitt and C. Blackmar, Federal Jury Practice Instructions, § 66.04 (3d ed. 1977). Most courts have held that the government need not prove that the defendant actually intended to carry out the threat. See, e.g., Dysart, supra, 705 F.2d at 1257; United States v. Kelner, 534 F.2d 1020, 1023 (2d Cir. 1977), cert. denied, 429 U.S. 1022 (1978)(collecting cases). Contra, United States v. Patillo, 438 F.2d 13, 16 (4th Cir. 1971) (en banc). The issue of defendant's intent in uttering particular words (e.g., whether an alleged threat was made seriously or merely in jest), is a question of fact to be determined by the jury upon consideration of the words themselves and the circumstances surrounding their use. See Martin v. United States, 691 F.2d 1235, 1239-40 (8th Cir. 1982), cert. denied, 459 U.S. 1211 (1983); United States v. Carrier, 672 F.2d 300, 304-06 (2d Cir.), cert. denied, 457 U.S. 1139 (1982). The circuits are split on the question of whether specific or general intent is required. See United States v. Darby, 37 F.3d 1059 (4th Cir. 1994), cert. denied, ___U.S.___, 115 S. Ct. 1826 (1995).

A threat may be communicated to persons other than the person to whom the threat is directed. See, e.g., United States v. Cooper, 523 F.2d 8 (6th Cir. 1975) (threats to injure fictitious persons made during calls to radio station). See also Kelner, supra, (defendant threatened during television interview to assassinate foreign leader).

The Ninth Circuit has stated that, as a general rule, the truth of damaging allegations underlying a threat to injure the reputation of another is no defense to a charge of extortion. See United States v. Van der Linden, 561 F.2d 1340, 1341 (9th Cir. 1977), cert. denied, 435 U.S. 974 (1978).

[cited in JM 9-60.300]

Updated September 19, 2018