Recklessness Is the Mens Rea for 18 U.S.C. § 875(c) in the Seventh Circuit (Post-Counterman)

I. Introduction

United States v. Farhan Sheikh (7th Cir. Jan. 13, 2026) addresses the constitutionality and application of 18 U.S.C. § 875(c) (interstate transmission of threats). Farhan Sheikh was convicted by a jury after posting on the social media platform iFunny that he would go to a specific Chicago abortion clinic—the “WOMANS AID CENTER”—on a specific date and “slaughter and murder any doctor, patient, or visitor” he saw, adding “This is not a joke…” and messaging others about access and the possibility of not “mak[ing] it out.”

On appeal, Sheikh raised three central issues:

Facial First Amendment challenge: He argued § 875(c) is unconstitutional because it does not expressly limit liability to “true threats” and does not expressly require a sufficiently subjective mens rea.
Grand jury challenge: He argued the grand jury was not adequately instructed on the law (true-threat and mens rea requirements and contextual considerations).
Evidentiary challenge: He argued the trial court improperly admitted clinic-employee testimony and images of security improvements the clinic made after law enforcement warned them of the threat.

II. Summary of the Opinion

The Seventh Circuit affirmed Sheikh’s conviction. The court held that § 875(c) must be construed to apply only to true threats and to include a constitutionally sufficient mens rea. Critically, relying on Counterman v. Colorado, the court announced that, for § 875(c), the constitutionally adequate mental state is recklessness—and to the extent earlier Seventh Circuit precedent suggested a higher subjective intent requirement, Counterman supersedes it.

The court also rejected the grand-jury claims as, in any event, harmless after a guilty verdict, and held that the challenged evidence at trial was relevant to whether the posts conveyed “a real possibility that violence will follow,” was not unfairly prejudicial under Rule 403, and was harmless given the strength of the government’s evidence.

III. Analysis

A. Precedents Cited

1. Defining and limiting “true threats” (First Amendment boundary)

Virginia v. Black, 538 U.S. 343, 359 (2003): The court adopted Black’s formulation that a “true threat” is “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” This definition anchors the constitutional line between protected speech and punishable threats.
Watts v. United States, 394 U.S. 705, 707 (1969): Cited (via earlier Seventh Circuit precedent) to support that statutes criminalizing “threats” must be confined to true threats rather than political hyperbole or protected expression.
United States v. Stewart, 411 F.3d 825, 828 (7th Cir. 2005): The panel relied on Stewart for the proposition that § 875(c) reaches only true threats, but explicitly clarified Stewart’s mens rea implications are overtaken by Counterman (discussed below).
United States v. Khan, 937 F.3d 1042, 1051 (7th Cir. 2019): Reinforced the Seventh Circuit’s existing understanding that § 875(c) is limited to true threats.

2. Reading mens rea into threat statutes; the shift to recklessness

Elonis v. United States, 575 U.S. 723, 734, 737-42 (2015): Used for the interpretive principle that the omission of mens rea in a criminal statute generally does not eliminate a scienter requirement, and that courts commonly construe criminal statutes to include mens rea even if not stated.
Counterman v. Colorado, 600 U.S. 66, 73-82 (2023): The centerpiece of the opinion. Counterman held that, for true-threat prosecutions consistent with the First Amendment, a mens rea of recklessness suffices. The Seventh Circuit applied that constitutional floor to § 875(c), concluding that a threat “made at least recklessly” is enough. The court made a doctrinal housekeeping point: to the extent Seventh Circuit cases (including Stewart) suggested a higher subjective intent threshold, Counterman supersedes that approach.
The court also cited post-Counterman circuit authority aligning § 875 with recklessness: United States v. Garnes, 102 F.4th 628, 637 (2d Cir. 2024); Voneida v. Johnson, 88 F.4th 233, 238 & n.3 (3d Cir. 2023); United States v. Ehmer, 87 F.4th 1073, 1120 n.16 (9th Cir. 2023); United States v. Nformangum, No. 24-20515, 2026 WL 18900, at *4-6 (5th Cir. Jan. 2, 2026); United States v. Franks, No. 24-11546, 2025 WL 2732412, at *1 (11th Cir. Sept. 25, 2025). These citations show the Seventh Circuit placing itself within an emerging national consensus on § 875’s post-Counterman mens rea.

3. Constitutional avoidance; facial overbreadth framework

United States v. Hansen, 599 U.S. 762, 781 (2023): Provided the “seek harmony”/constitutional-avoidance principle—when possible, statutes should be construed to avoid constitutional conflict. The court used this to justify reading true-threat and mens rea limits into § 875(c).
Moody v. NetChoice, LLC, 603 U.S. 707, 723 (2024): Supplied the standard for a facial challenge: the challenger must show “a substantial number” of unconstitutional applications “judged in relation to the statute’s plainly legitimate sweep.” Because the court construed § 875(c) to reach only true threats and to require recklessness, Sheikh could not establish substantial unconstitutional applications on the theory he advanced.
United States v. Rush, 130 F.4th 633, 635 (7th Cir. 2025): Cited for de novo review of federal statutes’ constitutionality.

4. Grand jury error after conviction

United States v. Mechanik, 475 U.S. 66, 70-71 (1986): The court applied Mechanik to hold that speculative defects in the grand jury process are harmless once a petit jury has returned a guilty verdict, because the verdict establishes probable cause and more.

5. Evidence of the recipient’s reaction; Rule 403

United States v. Smith, 150 F.4th 832, 847-48 (7th Cir. 2025): Cited for the abuse-of-discretion standard in evidentiary rulings and the harmless-error framework.
United States v. Parr, 545 F.3d 491, 501-02 (7th Cir. 2008), and United States v. Schneider, 910 F.2d 1569, 1570-71 (7th Cir. 1990): Key to the evidentiary holding. They support that both a victim’s response and belief that a statement was a threat are relevant to whether speech constitutes a true threat—even if the threat was not communicated directly by the speaker to the target.
United States v. McKibbins, 656 F.3d 707, 711 (7th Cir. 2011): Used to reinforce the breadth of relevance under the Federal Rules of Evidence and the idea that the government need not present only “the most probative” evidence.
United States v. Frazier, 129 F.4th 392, 405 (7th Cir. 2025), and Barber v. City of Chicago, 725 F.3d 702, 714 (7th Cir. 2013): Cited for the deference afforded to district courts under Rule 403 and the meaning of “unfair prejudice” (risk of verdict driven by emotion rather than evidence).

B. Legal Reasoning

1. Saving construction of § 875(c): true threats + mens rea

Sheikh’s facial challenge depended on the text of § 875(c), which does not expressly say “true threat” and does not expressly identify a mens rea. The court’s response was interpretive rather than textualist in a narrow sense: consistent with United States v. Hansen and Elonis v. United States, the court held § 875(c) can and must be read to include (i) a true-threat limitation and (ii) a scienter requirement.

On mens rea, the court treated Counterman v. Colorado as controlling on the First Amendment minimum for true-threat prosecutions, and it expressly adopted recklessness as the governing standard for § 875(c) going forward. This is the opinion’s most significant doctrinal move: it aligns Seventh Circuit § 875(c) doctrine with Counterman and signals that any older Seventh Circuit suggestions of a higher subjective standard are no longer good law to that extent.

2. Facial challenge fails under Moody’s “substantial number” test

Applying Moody v. NetChoice, LLC, the panel concluded Sheikh could not show a substantial number of unconstitutional applications because the statute, as construed, covers only unprotected true threats and requires at least recklessness—thereby removing the two defects he claimed were inherent to the statute.

3. Grand jury instruction/context arguments neutralized by Mechanik

Even assuming deficiencies in what the grand jury was told about true threats, mens rea, or context, the court invoked United States v. Mechanik to hold such issues harmless after a conviction by a trial jury. The court characterized Sheikh’s theory as speculative and, in any event, legally insufficient to upset the conviction post-verdict.

4. Evidentiary rulings: victim reaction remains relevant even if mediated by law enforcement

To prove a true threat, the government had to establish the posts conveyed “a real possibility that violence will follow” (Counterman v. Colorado). Under United States v. Parr and United States v. Schneider, the response of those threatened and their belief that the communication was a threat is relevant to that inquiry. Sheikh argued the clinic witnesses lacked direct exposure to the iFunny posts and that law enforcement prompted security changes, diminishing probative value. The court agreed these features diminished probative value but did not eliminate relevance; the gist of the posts was accurately conveyed, and the reaction still illuminated how the communication was received and the seriousness with which it was taken.

On unfair prejudice (Fed. R. Evid. 403), the panel deferred to the district court (United States v. Frazier) and found the testimony “largely matter-of-fact” rather than emotionally inflammatory (Barber v. City of Chicago). The court further held that even if there were error, it was harmless given the “specificity of the initial post,” corroborating interpretations by an iFunny user, and Sheikh’s own subsequent posts and messages expressing serious intent (United States v. Smith).

C. Impact

1. Doctrinal: Seventh Circuit crystallizes recklessness for § 875(c)

The opinion’s most important legal consequence is its clear statement that, in the Seventh Circuit, § 875(c) requires proof that the defendant made a true threat with at least recklessness as to its threatening character. The court also signals that any earlier Seventh Circuit gloss implying a higher subjective intent requirement is displaced by Counterman v. Colorado.

2. Practical: jury instructions, charging decisions, and proof at trial

After Sheikh, litigants should expect:

Jury instructions to focus on recklessness (awareness of and conscious disregard of a substantial risk that the communication would be viewed as threatening), rather than demanding proof of purpose to threaten.
Proof frameworks to emphasize contextual indicia of seriousness—specificity, reinforcement (“This is not a joke…”), follow-up communications, planning talk, and other behavior consistent with conscious disregard.
Victim-reaction evidence to remain admissible and relevant even when recipients learned of threats through intermediaries such as law enforcement, so long as it assists the “true threat” inquiry under Parr and Schneider and survives Rule 403.

3. Litigation posture: diminished leverage of grand jury challenges after conviction

By leaning on United States v. Mechanik, the court reinforces a recurring practical lesson: most grand-jury-process disputes (especially those framed as instructional omissions) are unlikely to yield relief once a trial jury convicts.

IV. Complex Concepts Simplified

“True threat”: Not jokes, hyperbole, or political rhetoric—rather, speech that is a serious expression of intent to commit unlawful violence (Virginia v. Black).
Recklessness (in this context): A culpable mental state where the speaker consciously disregards a substantial risk that the communication will be understood as a serious threat of violence. Under Counterman v. Colorado, recklessness is enough (constitutionally) for true-threat punishment.
Facial challenge / overbreadth style test: A claim that a law is unconstitutional in many applications, not just as applied to the defendant. Under Moody v. NetChoice, LLC, the challenger must show a substantial number of unconstitutional applications relative to legitimate ones.
Constitutional avoidance: Courts often interpret statutes to avoid constitutional conflict where a reasonable limiting construction is available (United States v. Hansen).
Rule 403 “unfair prejudice”: Evidence is not excluded merely because it hurts the defendant; it must risk an irrational, emotion-driven verdict, and that risk must substantially outweigh probative value (United States v. Frazier; Barber v. City of Chicago).
Harmless grand jury error after conviction: Under United States v. Mechanik, many alleged grand jury defects no longer matter once a petit jury finds guilt beyond a reasonable doubt.

V. Conclusion

United States v. Farhan Sheikh is a clarifying Seventh Circuit decision on § 875(c) after Counterman v. Colorado. It reaffirms that § 875(c) reaches only true threats and holds that the required mental state is recklessness, with Counterman superseding any prior Seventh Circuit suggestions of a higher subjective intent requirement. The court also confirms the continuing relevance of victim-response evidence to the true-threat inquiry (even when the threat is learned via law enforcement) and reiterates that post-conviction attacks based on grand jury instructional shortcomings are generally foreclosed by United States v. Mechanik.