◆ SpookStack

AO 72A (Rev. 8/82) Congressman Murtha. Murtha was not “in the audience” when Fenton spoke, and the government put on no evidence that Fenton,® intended his words to be conveyed to Murtha. One simply cannot be intimidated by speech of which he is unaware. See Snelenberger, 24 F.3d at 803 (noting that district court made similar holding under § 115(a)(1)(B) and concluding, in dictum, “that the court’s reading of the statute was entirely justified”). Cf. Patillo, 431 F.2d at 298 (“There is no danger to the President’s safety from one who utters a threat and has no intent to actually do what he threatens.”) In addition, there is no evidence that Fenton wanted Congressman Murtha to take any official action, or refrain from taking any such action, as a result of his “threats.” Fenton was not, for example, demanding that Murtha sponsor a certain piece of legislation, nor did he make his threats to disrupt, say, an official speech to a group of constituents. It is perhaps arguable that he wanted the Congressman to support his plan, yet the record shows that Fenton thought The government essentially contends that the jury was entitled to find objective intent to communicate, arguing that “the most natural consequence” of making a series of death threats over the phone will be that the recipient of the communication will notify law enforcement, who in turn will notify the intended target. Dkt. no. 131, at 24. I disagree; although whether a statement constitutes a threat is evaluated under an objective standard, the standard for determining specific intent under § 115(a)(1)(B) is subjective, as even the government argues elsewhere in its brief, dkt. no. 131, at 21. See Fulmer, 108 F.3d at 1494 (approving jury instruction to the effect that “[w]hen we are talking about the defendant’s intent, we are talking about what he meant to do and what was in his mind[]’”’). Alternatively, the government may be seen as arguing that a jury could simply infer that Fenton intended for Leventry to warn Congressman Murtha as the “natural and probable consequence” of conveying the threat to Leventry. Again, I disagree. Leventry was not a law enforcement officer or member of the Congressman’s staff. To assume that a private citizen will “naturally and probably” inform the target of the threat anytime a threat is made to a third party would effectively eviscerate § 115(a)(1)(B)’s intent requirement. All that can be inferred from this record is that Fenton intended to threaten Leventry, either to induce him to better handle his insurance claim or to retaliate for the way Leventry had already processed it. 13