Background
Mark William Anten previously worked as a confidential human source for the FBI in Los Angeles. After his relationship with the agency ended in 2018 following an incident that compromised his cover, he ceased contact. However, in 2023, Anten began sending a barrage of escalating emails to his former FBI handlers. The messages became increasingly alarming as Anten started comparing himself to the Unabomber, Ted Kaczynski, and signing his emails as “the Unabomber.”
The communications culminated in December 2023 with several explicit threats. In one email, Anten declared, “I AM THE UNABOMBER” and “I WILL UNABOMB THE LOS ANGELES FBI HQ.” In another, he wrote, “I can go on a mass murder spree. In fact, it would be very explainable by your actions,” and attached a screenshot of a Google search for “how to make a dirty bomb.” These emails led to his arrest and a two-count indictment for transmitting threats in interstate commerce under 18 U.S.C. § 875(c).
At trial, Anten’s defense argued his messages were not serious threats. The jury was instructed that to convict, it must find Anten transmitted a “threat to injure” and did so with knowledge or conscious disregard of the risk that it would be viewed as a threat. The jury found Anten guilty on both counts. Anten appealed, arguing the jury instructions were flawed because they failed to include an objective element: that a “reasonable person” would have understood the communications as a threat.
The Court’s Holding
The Ninth Circuit affirmed Anten’s conviction. The court first clarified the legal standard for the federal true-threat statute, 18 U.S.C. § 875(c). It held that a conviction requires the government to prove two distinct elements: a subjective mental state element and an objective threat element. Citing Supreme Court precedent in Counterman v. Colorado and Elonis v. United States, the court confirmed that the defendant must have a culpable mental state (at least recklessness) regarding the threatening nature of their words. Separately, the communication itself must constitute an objective “true threat.”
The court defined an objective “true threat” as a statement that a reasonable person would view as a serious expression of an intent to commit an act of unlawful violence, as distinguished from a joke, political hyperbole, or idle talk. The determination must be made by considering the full context in which the statement was made. While Anten argued the jury instructions omitted this objective test, the court disagreed. It found that although the instructions could have been “more clearly formulated” (e.g., by explicitly using the “reasonable person” standard), they were legally sufficient. The instructions directed the jury “to consider the circumstances under which the electronic communication was made, including its context… the language the defendant used, and the reaction of those who received” it. This, the court concluded, adequately required the jury to perform the objective analysis and left no room for it to convict based on a joke or hyperbole.
Key Takeaways
- The federal statute prohibiting interstate threats, 18 U.S.C. § 875(c), requires the government to prove both a subjective element (the defendant’s mental state) and an objective element (whether the communication was a “true threat”).
- A communication is an objective “true threat” if a reasonable person, considering the context, would interpret it as a serious expression of intent to inflict bodily injury.
- Jury instructions in a threat case do not necessarily need to use the specific phrase “reasonable person” to be legally adequate, so long as they direct the jury to evaluate the communication’s context, language, and surrounding circumstances.
Why It Matters
This opinion provides important clarification for how “true threat” cases are prosecuted in the Ninth Circuit, particularly in the digital age. By formally holding that § 875(c) contains both objective and subjective elements, the court aligns the statutory analysis with modern First Amendment jurisprudence established by the Supreme Court. The decision distinguishes between what a message conveys to a reasonable observer and what the speaker intended, requiring prosecutors to prove both.
The ruling also offers practical guidance to lower courts on crafting jury instructions. While endorsing clearer language for the future, the court’s approval of the existing instructions shows that a holistic, context-based analysis can satisfy the objective standard. This precedent helps balance the need to prosecute genuine threats of violence made online while protecting constitutionally protected speech that may be inflammatory but does not rise to the level of a true threat.