Date: Oct 9, 2025

Post‑Counterman Bomb‑Threat Prosecutions: Eleventh Circuit Confirms that “Willfully” in 18 U.S.C. § 844(e) and the Pattern “Serious Threat” Instruction Satisfy the First Amendment

Case: United States v. Rigoberto Albizar‑Martinez, No. 25‑11781 (11th Cir. Oct. 3, 2025) (unpublished, non‑argument calendar)

Court: U.S. Court of Appeals for the Eleventh Circuit

Panel: Jordan, Rosenbaum, and Luck, Circuit Judges (per curiam)

Introduction

In this non‑precedential but analytically significant opinion, the Eleventh Circuit affirms the conviction of Rigoberto Albizar‑Martinez for making a bomb threat by telephone in violation of 18 U.S.C. § 844(e). The case presents two questions at the heart of modern threat jurisprudence after the Supreme Court’s decisions in Elonis v. United States and Counterman v. Colorado:

What mens rea and jury instructions are required to convict for a speech‑based threat offense consistent with the First Amendment?
Was the trial evidence sufficient to establish both a “true threat” and the defendant’s subjective intent?

Albizar‑Martinez left a voicemail for the Tampa office of a United States Representative declaring, among other things, “I’m going to put a bomb in your office … it’s a threat, it’s a threat.” He argued on appeal that his statements were protected political hyperbole and that the district court erred by failing to give a “true threat” instruction aligned with Counterman’s subjective‑intent requirement. The Eleventh Circuit rejected both claims, holding that the circuit’s pattern instruction—which defines “threat” as an expression intended to be understood as a serious threat—and the statute’s willfulness requirement together satisfy Counterman. The court also found abundant evidence from which a rational jury could conclude that the message was a true threat willfully made.

Summary of the Opinion

Jury instructions: The district court did not abuse its discretion in giving the Eleventh Circuit pattern instruction for § 844(e) rather than the defendant’s proposed “true threat” instruction. Because § 844(e) expressly requires that a defendant “willfully” make the threat, and the pattern definition of “threat” requires an intent that others understand it as a serious threat, the charge adequately covered the subjective‑intent requirement recognized in Elonis and Counterman.
Counterman’s role: Counterman establishes a First Amendment baseline of at least recklessness for threat prosecutions when a statute is silent on mens rea. But it is “irrelevant” when Congress has specified a higher mens rea—here, willfulness—because the higher statutory standard already satisfies the First Amendment.
Sufficiency of the evidence: A rational jury could find both (1) that the voicemail conveyed a true threat in context and (2) that Albizar‑Martinez willfully intended his words to be received as a serious threat. The explicit statement “it’s a threat,” the anger and abusive language, the recipients’ serious reaction, and a prior law‑enforcement warning about similar conduct supported the verdict.
Disposition: Conviction affirmed.

Analysis

Precedents Cited and How They Shape the Decision

Watts v. United States, 394 U.S. 705 (1969): The Supreme Court cautioned that statutes criminalizing pure speech must be read with the First Amendment “clearly in mind” and distinguished true threats from protected political hyperbole. The Eleventh Circuit invokes Watts to reaffirm that the First Amendment does not shield true threats even when uttered amid political commentary.
Virginia v. Black, 538 U.S. 343 (2003): The Court held that the speaker need not intend to carry out the threatened violence; the focus is on the serious expression of intent to commit unlawful violence. The opinion relies on Black to reject the defense’s emphasis on the lack of intent or ability to execute the threat.
Elonis v. United States, 575 U.S. 723 (2015): Elonis required reading an implied mens rea into a threat statute that lacked an explicit one, holding that liability cannot rest solely on how a reasonable person would interpret the communication; at least knowledge or purpose suffices to satisfy the First Amendment. The Eleventh Circuit distinguishes Elonis, emphasizing that § 844(e) is not silent and expressly uses “willfully,” a mental state above recklessness.
Counterman v. Colorado, 600 U.S. 66 (2023): Counterman constitutionalized a minimum subjective mens rea (at least recklessness) for threat prosecutions to avoid chilling protected speech where a statute is silent. The court explains that when a statute requires a higher scienter—like willfulness—Counterman does not require more; the statute already exceeds the constitutional floor.
United States v. Fleury, 20 F.4th 1353 (11th Cir. 2021): The court previously held that where a statute contains its own scienter element (there, intent to harass or intimidate under § 2261A(2)), courts need not read in an additional Elonis/Counterman mens rea. Martinez follows the same approach.
United States v. Curtin, 78 F.4th 1299 (11th Cir. 2023): Cited to show that when record evidence demonstrates knowledge (or higher), Counterman’s recklessness floor is surpassed, making its specific analysis unnecessary.
United States v. Viefhaus, 168 F.3d 392 (10th Cir. 1999) and United States v. Spruill, 118 F.3d 221 (4th Cir. 1997): Other circuits recognize § 844(e) as limited to true threats and accept conditional threats as actionable when the contingency is within the speaker’s control. The Eleventh Circuit aligns with these readings.
United States v. Callahan, 702 F.2d 964 (11th Cir. 1983): A threat accompanied by political and religious statements is still punishable; a conditional formulation does not negate the threatening nature if the threat itself is clear.
Standards and instruction cases: United States v. Moore (jury‑instruction review standard), United States v. Prather (discretion in formulating instructions), McCormick v. Aderholt (reversal only if substantial doubt jury was properly guided), Weeks v. Angelone (jurors presumed to follow instructions), Booth v. Pasco County (harmlessness where party could argue theory in closing).

Legal Reasoning

1) The First Amendment’s two‑part true‑threat framework

The court explicitly applies the modern two‑part structure:

Objective component: Whether the communication, in context, conveys a serious expression of intent to commit unlawful violence to a reasonable recipient (Counterman, Watts). The court finds the explicit statement “I’m going to put a bomb in your office,” reinforced by “it’s a threat,” suffices, particularly given the recipients’ reaction (Capitol Police notification and heightened security).
Subjective component: The First Amendment requires at least recklessness—awareness of a substantial risk the statement will be received as a threat—when a statute is silent (Counterman). But here, the statute requires “willfully,” which exceeds recklessness. The pattern instruction’s definition—“made with the intent that others understand it as a serious threat”—squarely requires subjective intent that the communication be taken as a threat.

2) Mens rea under § 844(e): why “willfully” is enough after Counterman

Unlike the statute in Elonis and the state statute in Counterman, § 844(e) has an express scienter requirement: the defendant must willfully make a threat concerning explosive violence. Because “willfully” denotes voluntary and purposeful conduct “with the intent to do something the law forbids,” it exceeds Counterman’s recklessness floor and satisfies the First Amendment without further doctrinal overlay. Thus, the court declines to graft additional elements (such as a term‑of‑art “true threat” label) where the pattern definition already embeds the required subjectivity.

3) Adequacy of the jury instructions

The defendant’s requested instruction would have:

Replaced “threat” with “true threat,”
Defined “true threat” as excluding political hyperbole, jokes, and careless remarks, and
Deleted “knowingly” from the elements to mirror the statute’s “willfully” language.

Applying the Eleventh Circuit’s three‑part test for instructional error (correctness, coverage, and importance), the court holds that even if the requested instruction was correct, the pattern charge “substantially covered” the same ground because:

“Threat” was defined as a serious expression intended to be understood as a serious threat—functionally the same as “true threat” in content, if not label.
“Willfully” was defined and required; adding “knowingly” may have been superfluous, but did not undercut the government’s burden.
The defense was free to argue (and did argue) that the message was political hyperbole or a joke. The absence of negative examples in the instruction did not “seriously impair” the defense.

The jury’s note seeking a definition of “intent” and a copy of the First Amendment did not reveal instructional inadequacy; the court properly referred jurors back to the given instructions, and jurors are presumed to understand and follow those directions.

4) Sufficiency of the evidence

Viewing the record in the light most favorable to the verdict, the court identifies multiple strands of evidence supporting both the objective and subjective components:

Text and tone: The explicit threat (“I’m going to put a bomb in your office”) followed immediately by “it’s a threat, it’s a threat,” delivered in an angry, abusive, and aggrieved manner.
Recipient response: Staff deemed it “pretty serious,” notified Capitol Police, and implemented heightened security until arrest.
Context and history: The defendant’s prior 2021 law‑enforcement warning about threatening voicemails to another Representative showed awareness that such statements are received as threats.
Subsequent conduct: Continued anger toward the Congresswoman during an interview and a follow‑up call to the agent supported purposeful threatening intent.
Conditional phrasing: Even if couched with a vague condition (“if something happens to me”), the threat itself was unconditioned and actionable (Viefhaus; Callahan).

Consistent with Black, the government did not need to prove an intent or ability to carry out the threat. The evidence permitted a rational trier of fact to find that Albizar‑Martinez willfully made a serious threat.

5) Preservation and reply‑brief argument

The court declines to conduct the defendant’s requested “independent” appellate review for constitutional facts because it was raised for the first time in the reply brief (Herring). Even if considered, the panel indicates it would not change the outcome.

Impact and Practical Implications

1) For threat prosecutions under § 844(e) in the Eleventh Circuit

Pattern instruction endorsed: District courts may continue using the Eleventh Circuit’s pattern instruction for § 844(e), which defines “threat” as a serious expression intended to be understood as such, without separately labeling it a “true threat.”
Mens rea settled: The statutory “willfully” element satisfies Counterman’s constitutional requirement. There is no need to augment instructions with a distinct recklessness standard or to require knowledge/purpose beyond the statute’s text.
No carve‑out for political context: Embedding a threat within political commentary does not immunize it. Prosecutors and courts should focus on the serious‑expression inquiry, not the political nature of surrounding speech.

2) For other federal threat statutes

With explicit mens rea: Where Congress has specified scienter (for example, “knowingly,” “willfully,” or “with intent to intimidate/harass”), Counterman generally does not compel more; the First Amendment floor is met if the instruction tracks the statute and requires a serious expression intended to be received as a threat.
Without explicit mens rea: Where a statute is silent, Elonis and Counterman require at least recklessness as to the threatening character of the communication, and many courts may require knowledge or purpose depending on context and statutory history.

3) For defense strategy and jury‑instruction practice

Requests to add the “true threat” label: Even if correct, such requests are unlikely to be reversible if the given charge already requires that the communication be intended as a serious threat. Defense counsel should ensure that the instruction’s definition contains the subjective‑intent requirement, whether or not the “true threat” label appears.
“Knowingly” plus “willfully”: Inclusion of “knowingly” where the statute only uses “willfully” may be superfluous but is not necessarily prejudicial. The critical point is that the charge does not dilute the statutory willfulness requirement.
Argument versus instruction: Courts may permit robust First Amendment and contextual arguments in closing in lieu of listing exclusions (political hyperbole, jokes) within the instruction text. Counsel should be prepared to educate the jury on these distinctions through argument and evidence.

4) Institutional and systemic effects

Administrative clarity for district courts: The opinion signals that post‑Counterman, Eleventh Circuit district courts can rely on the pattern instruction for § 844(e) without risk of reversible error, provided the charge preserves the subjective‑intent component.
Chilling‑effect concerns addressed: By requiring proof that the defendant intended others to understand the communication as a serious threat, the instruction mitigates chilling concerns without unduly burdening legitimate enforcement of threat statutes.

Complex Concepts Simplified

True threat: A serious expression that the speaker means to commit unlawful violence. It is not a joke, exaggeration, or political hyperbole when viewed in context.
Objective vs. subjective components: Objective asks how a reasonable recipient would understand the statement in context; subjective asks about the speaker’s mental state concerning whether the recipient would understand it as a serious threat.
Counterman’s baseline: When a statute is silent, the First Amendment requires at least recklessness—awareness of a substantial risk that the statement will be taken as a threat.
Willfully: Acting voluntarily and purposefully with the intent to do something the law forbids. It is a higher mental state than recklessness, which only involves conscious disregard of a risk.
Conditional threats: Saying “if X happens, I will do Y” can still be a threat, especially when the condition is within the speaker’s control or the threat itself is otherwise unequivocal.
Sufficiency review: On appeal, the court views the evidence in the light most favorable to the verdict and asks whether any rational juror could have found guilt beyond a reasonable doubt. The jury may choose among reasonable interpretations of the evidence.
Jury‑instruction review: A refusal to give a requested instruction is reversible only if the request was correct, not substantially covered by the instructions given, and the omission seriously impaired the defense.

Conclusion

United States v. Albizar‑Martinez confirms an important post‑Counterman equilibrium in the Eleventh Circuit’s threat jurisprudence. For § 844(e) prosecutions, the statute’s express “willfully” requirement, coupled with the pattern instruction’s definition of “threat” as a communication intended to be understood as a serious threat, satisfies the First Amendment’s subjective‑intent mandate. District courts need not append a separate “true threat” label or enumerate exclusions like political hyperbole, so long as the instruction requires that the defendant intended the communication to be taken as a serious threat.

On the facts, the court had little difficulty affirming the jury’s verdict: the explicit nature of the bomb threat (“it’s a threat”), the tone and context, the recipients’ protective response, and the defendant’s prior warning supported both the objective and subjective elements. The opinion underscores that political speech does not insulate explicit threats and that conditional phrasing does not negate threatening content.

Although unpublished and thus non‑precedential, the decision provides clear guidance to practitioners and trial courts: in § 844(e) cases, pattern instructions that track willfulness and require a serious‑threat intent are constitutionally sound after Counterman; sufficiency will often turn on the explicitness of the words used, their context, and corroborative conduct demonstrating that the communication was meant—and expected—to be taken seriously.