Harmless-Error Affirmance Despite § 875(c) Indictment Omitting Subjective Mens Rea When the Record Establishes Recklessness/Knowledge and a “True Threat” in Context

I. Introduction

Case: United States v. Nformangum (5th Cir. Jan. 2, 2026) (per curiam) (unpublished).
Parties: United States (Appellee) v. Isaac Ambe Nformangum (Appellant).
Charge at issue: 18 U.S.C. § 875(c) (transmitting in interstate commerce a communication containing a threat to injure).

Nformangum left a voicemail at Senator Rafael Edward “Ted” Cruz’s Houston office advocating that Cruz and Republican colleagues “be found and killed,” including references to trailing officials to their homes and noting addresses were “public knowledge.” The case proceeded to a bench trial on Count 2 (§ 875(c)) after a jury waiver; Count 1 (§ 115) was dismissed. The key appellate issues were (1) whether the voicemail was a constitutionally unprotected “true threat,” (2) whether § 875(c) was unconstitutional as applied given the asserted political subject matter, and (3) whether the indictment was defective for not alleging the requisite subjective mens rea and, if so, whether that defect required dismissal.

II. Summary of the Opinion

The Fifth Circuit affirmed. It held that sufficient evidence supported the conviction because, in context, an objectively reasonable person would understand the voicemail as a serious expression of intent to cause future harm, and Nformangum did not dispute he was subjectively aware of the threatening nature of the message. Because the message was a “true threat,” the First Amendment as-applied challenge failed.

The court further concluded that although the indictment did not allege Nformangum’s subjective mens rea as to the threatening nature of the communication (a defect under the mens rea framework reflected in Elonis v. United States and Counterman v. Colorado), the error was harmless under Fifth Circuit precedent. The record—including Nformangum’s custodial statement admitting he was “reckless”—and the bench-trial findings (plus stipulations) established the missing mens rea beyond a reasonable doubt, and a rational grand jury would have charged the omitted element.

III. Analysis

A. Precedents Cited

United States v. Crandell, 72 F.4th 110 (5th Cir. 2023) and Jackson v. Virginia, 443 U.S. 307 (1979)
Role: Provided the sufficiency standard: affirm if any rational factfinder could find the elements beyond a reasonable doubt when viewing the evidence favorably to the prosecution.
United States v. Howard, 766 F.3d 414 (5th Cir. 2014) and United States v. Berrios- Centeno, 250 F.3d 294 (5th Cir. 2001)
Role: Confirmed de novo review for preserved constitutional and indictment-sufficiency challenges; emphasized mens rea is a material/essential element for indictment purposes.
United States v. Jubert, 139 F.4th 484 (5th Cir. 2025); Ashcroft v. ACLU, 535 U.S. 564 (2002)
Role: Anchored the principle that content-based restrictions are disfavored and that § 875(c) must be limited to “true threats.” Jubert supplied the twofold “true threat” inquiry post-Counterman: objective threatening meaning plus subjective awareness.
United States v. Morales, 272 F.3d 284 (5th Cir. 2001) and United States v. Myers, 104 F.3d 76 (5th Cir. 1997)
Role: Provided the Fifth Circuit’s contextual/objective formulation: a statement is a true threat if it reasonably tends to create apprehension the originator will act according to its tenor.
Virginia v. Black, 538 U.S. 343 (2003)
Role: Confirmed “true threats” fall outside First Amendment protection, supporting the court’s rejection of the as-applied challenge once it found a true threat.
Counterman v. Colorado, 600 U.S. 66 (2023)
Role: Central to the decision. The panel relied on Counterman for (1) the definition of true threats as serious expressions of unlawful violence, and (2) the constitutional floor for mens rea—recklessness is sufficient.
Bailey v. Iles, 87 F.4th 275 (5th Cir. 2023) and Watts v. United States, 394 U.S. 705 (1969)
Role: Reinforced that “context is critical” in separating hyperbole/jest from true threats.
Porter v. Ascension Par. Sch. Bd., 393 F.3d 608 (5th Cir. 2004)
Role: Supplied the “objectively reasonable person” framing for interpreting speech as a serious expression of intent to harm.
United States v. Goltz, No. 23-10851, 2024 WL 3355355 (5th Cir. July 10, 2024) (unpublished)
Role: Used by analogy to reject the “no first-person pronoun, no threat” argument. In Goltz, the lack of an explicit “I will” did not defeat a true threat where context suggested personal willingness to commit violence.
United States v. O'Dwyer, 443 F. App'x 18 (5th Cir. 2011)
Role: Distinguished. The panel contrasted O’Dwyer’s hypothetical/conditional language and lack of a particular target with Nformangum’s specificity and unconditional violent directives.
United States v. Bagdasarian, 652 F.3d 1113 (9th Cir. 2011) and United States v. White, 670 F.3d 498 (4th Cir. 2012), abrogated on other grounds by, Elonis v. United States, 575 U.S. 723 (2015)
Role: Addressed and rejected as inapposite. Those cases involved exhortations calling on others to commit violence without conveying the speaker’s intent; the Fifth Circuit found Nformangum’s message conveyed more than mere exhortation when read in full context.
United States v. Vidaure, 861 F.2d 1337 (5th Cir. 1988); United States v. Mullens, 583 F.2d 134 (5th Cir. 1978); United States v. Hagmann, 950 F.2d 175 (5th Cir. 1991)
Role: Set the baseline indictment rule: every element must be alleged; tracking statutory language can suffice only when the statute unambiguously contains all elements (which is complicated for § 875(c) after Elonis).
Elonis v. United States, 575 U.S. 723 (2015) and United States v. X-Citement Video, Inc., 513 U.S. 64 (1994)
Role: Supplied the key mens rea insight for § 875(c): the “crucial element” is the threatening nature; a conviction cannot stand without a subjective mens rea (purpose/knowledge; later clarified constitutionally to include recklessness in Counterman).
United States v. DeAndino, 958 F.2d 146 (6th Cir. 1992) and United States v. Solomon, 273 F.3d 1108, *4 (5th Cir. 2001)
Role: Supported the characterization that “knowingly and willfully transmit” can reflect general intent (doing the act knowingly) rather than the specific subjective mental state about the threat’s nature required under modern § 875(c) doctrine.
United States v. Suarez, 966 F.3d 376 (5th Cir. 2020); United States v. Robinson, 367 F.3d 278 (5th Cir. 2004); United States v. Dentler, 492 F.3d 306 (5th Cir. 2007); Chapman v. California, 386 U.S. 18 (1967)
Role: These cases drove the outcome on the indictment issue. Even when an indictment fails to state an offense, the Fifth Circuit applies harmless-error review, asking (1) whether the defect affected substantial rights and (2) whether, beyond a reasonable doubt, the error did not contribute to the verdict; it also asks whether a rational grand jury, with proper charging language, would have indicted on the missing element.
United States v. Martinez, 800 F.3d 1293 (11th Cir. 2015)
Role: Raised by the defense for dismissal. The panel distinguished it because it did not perform harmlessness analysis and involved party agreement to remand for dismissal without prejudice.

B. Legal Reasoning

1. “True threat” despite collective framing and absence of first-person phrasing

The court applied the modern two-part true-threat framework as articulated in United States v. Jubert (citing Counterman v. Colorado): (i) would a reasonable person perceive the statement as threatening, and (ii) was the speaker subjectively aware of its threatening nature. Because Nformangum stipulated subjective awareness, the appeal turned on the objective prong.

The panel treated the voicemail’s repeated, concrete depictions of killing (“bullet to the face,” “smashing of a brick in your skull,” “shot dead”), coupled with targeting (“You and every one of your colleagues”), and “home trailing” language (“trailing you to your very public homes” and noting addresses were “public knowledge”), as sufficient for a rational factfinder to deem the communication serious rather than political hyperbole.

Importantly, the court rejected a formalistic “no ‘I will,’ no threat” rule. It reasoned that (a) an objectively reasonable listener could understand Nformangum to include himself within “every American,” especially after he identified himself as a constituent; and (b) his reference to the target’s publicly knowable address supported an inference of personal willingness and capability, aligning with the contextual approach illustrated in United States v. Goltz.

2. As-applied First Amendment challenge fails once the statement is a true threat

Nformangum argued § 875(c) was unconstitutional as applied because the voicemail related to a matter of public concern (voting rights and a party platform). The panel’s response was doctrinally straightforward: under Counterman v. Colorado and Virginia v. Black, true threats are categorically unprotected. Thus, the “public concern” backdrop did not immunize speech that crossed into a true threat.

3. Indictment omitting subjective mens rea: defect recognized, but harmless

The indictment alleged Nformangum “knowingly and willfully transmit[ted]” a communication containing a threat, but did not allege he acted with the required subjective mental state concerning the threatening nature of the communication (purpose/knowledge, and constitutionally at least recklessness). The panel acknowledged—through Elonis v. United States and Counterman v. Colorado—that the missing allegation matters because the wrongfulness of § 875(c) turns on the threat element and its mens rea, not merely on the act of communication.

Yet, following United States v. Suarez, United States v. Robinson, and United States v. Dentler, the court applied harmless-error review. It found:

Notice/preparation of defense: The indictment sufficiently notified Nformangum of the government’s theory (a true threat to Senator Cruz), and he did not argue lack of notice.
Grand jury prejudice: A rational grand jury presented with a properly worded indictment would have charged the missing mens rea element because the grand jury had access to Nformangum’s custodial admissions that he was “reckless” and expected government action—matching the Counterman constitutional threshold.
Verdict integrity: Beyond a reasonable doubt, the omission did not contribute to the verdict because the bench-trial factfinder found the requisite subjective awareness and Nformangum stipulated to that awareness.

C. Impact

Context-driven assessment of “intent”: The opinion reinforces that § 875(c) true-threat analysis does not turn on grammatical form (e.g., first-person pronouns). Collective language (“every American”) can still be read as the speaker’s serious expression of intent when contextual cues suggest inclusion, willingness, and targeting.
Political subject matter is not a safe harbor: Even if speech is framed around public issues, once it is found to be a true threat, the First Amendment does not shield it.
Indictment practice after Elonis/Counterman: The case signals practical risk in indictments that merely allege “knowingly and willfully transmit” without expressly alleging the defendant’s subjective mental state as to the threat’s nature. However, it also underscores that in the Fifth Circuit an omission may not be case-dispositive where the record overwhelmingly establishes recklessness/knowledge and the defendant had notice.
Procedural posture matters: Stipulations and bench-trial findings can make indictment defects easier to deem harmless, especially where the defendant concedes or stipulates the very mens rea element alleged to be missing.

IV. Complex Concepts Simplified

“True threat”: A statement is a “true threat” when, in context, a reasonable person would understand it as a serious expression of intent to commit unlawful violence—not a joke, exaggeration, or political bombast—and the speaker is at least reckless about whether it will be taken as a threat.
Objective vs. subjective components:
- Objective: How a reasonable listener would interpret the statement in context.
- Subjective: The speaker’s mental state—after Counterman, at least recklessness as to the threatening character of the speech.
“Recklessness” (in this setting): Conscious disregard of a substantial risk that the message will be understood as a threat.
Indictment “fails to state an offense”: If an indictment omits an essential element (here, the required subjective mens rea), it is defective. In the Fifth Circuit, that defect can still be affirmed if it is harmless beyond a reasonable doubt under the post-trial harmless-error framework.
Harmless error: A legal error that does not justify reversal because the court is convinced beyond a reasonable doubt it did not affect the outcome (e.g., the evidence and findings clearly establish the missing element anyway).

V. Conclusion

United States v. Nformangum applies the post-Counterman true-threat framework in a politically charged context and rejects the notion that threats must be phrased in the first person to be actionable under § 875(c). It also delivers a significant procedural takeaway: even where a § 875(c) indictment omits the defendant’s subjective mens rea as to the threatening nature of the communication, Fifth Circuit harmless-error doctrine (Suarez/Robinson/Dentler) can sustain the conviction when the record—especially the defendant’s admissions and stipulations—establishes recklessness/knowledge beyond a reasonable doubt and a rational grand jury would have charged the missing element.