Recklessness Suffices for § 875(c) “True Threats”; Rule 106 Context Is Narrow; Keene Alternative-Sentence Harmlessness Reaffirmed

Introduction

In United States v. Cloepha Franks, No. 24-11546 (11th Cir. Sept. 25, 2025) (per curiam) (non-argument calendar) (not for publication), the Eleventh Circuit affirmed a jury conviction under 18 U.S.C. § 875(c) for transmitting threats in interstate commerce. After being terminated from a construction job, Cloepha Franks sent a stream of text messages to his former supervisor, Kelly Watts, including explicit promises to kill him and references to the time and place he would do so. A jury convicted Franks and the district court imposed a 33-month sentence (within the advisory Guidelines range).

On appeal, Franks pressed three issues:

Insufficiency of the evidence as to a “true threat,” including mens rea;
Erroneous exclusion under Federal Rule of Evidence 106 (the “rule of completeness”) of earlier, non-threatening texts he sent to Watts;
Sentencing errors: the “more than two threats” enhancement under U.S.S.G. § 2A6.1(b)(2)(A) and denial of the “little or no deliberation” reduction under § 2A6.1(b)(6).

The panel rejected all challenges. Although unpublished and therefore non-precedential, the opinion is notable in three respects: it applies Counterman v. Colorado to confirm that recklessness suffices for the mens rea element in § 875(c) “true threat” prosecutions; it cabins Rule 106’s use to admit prior benign communications that are not necessary to contextualize later threats; and it reaffirms the Eleventh Circuit’s harmless-error doctrine where a district court issues a clear alternative sentence under United States v. Keene.

Summary of the Opinion

Sufficiency of the Evidence: Affirmed. The content of the texts—explicit promises to murder Watts, with details about time and place—constituted “paradigmatic threats.” A reasonable jury could also find Franks intended to convey a threat, based on his own words and the circumstances. The court emphasized that a statement can be a threat based on its objective content and that recklessness suffices for the mens rea requirement after Counterman.
Rule 106 / Rule of Completeness: No abuse of discretion in excluding earlier, unrelated April texts (e.g., holiday greetings, music links, and gripes about a raise). The messages were neither necessary to qualify or explain the later threats nor relevant to whether those later communications were objectively threatening.
Sentencing:
- “More than two threats” enhancement (§ 2A6.1(b)(2)(A)). The panel declined to decide whether a rapid-fire string of texts counts as multiple threats because the district court made a clear Keene alternative-sentence statement: it would have imposed the same sentence regardless. Any error was harmless, and the sentence was substantively reasonable.
- “Little or no deliberation” reduction (§ 2A6.1(b)(6)). Affirmed denial. Franks offered no credible intoxication evidence; the multi-hour pattern (with 30–120+ minute intervals) supported a finding of deliberation.

Detailed Analysis

Precedents and Authorities Cited

Virginia v. Black, 538 U.S. 343, 359 (2003): Defines “true threat” as a serious expression of intent to commit unlawful violence.
Counterman v. Colorado, 600 U.S. 66 (2023): Articulates that the First Amendment requires at least recklessness as to threatening nature; also recognizes that whether words are threatening can turn on objective content.
Elonis v. United States, 575 U.S. 723 (2015): Interprets § 875(c) to require more than negligence; discusses intent/knowledge; the Eleventh Circuit here reads Counterman to permit recklessness as sufficient mens rea.
United States v. Callahan, 702 F.2d 964 (11th Cir. 1983): A letter threatening murder with specifics is “threatening on its face.”
United States v. Bozeman, 495 F.2d 508 (5th Cir. 1974): A promise to commit murder is a clear threat under § 875(c). As a pre-October 1981 Fifth Circuit decision, Bozeman is binding in the Eleventh Circuit.
United States v. Curtin, 78 F.4th 1299 (11th Cir. 2023): Intent to threaten can be proven circumstantially; the defendant’s own words are powerful evidence.
United States v. Chafin, 808 F.3d 1263 (11th Cir. 2015); United States v. Holmes, 814 F.3d 1246 (11th Cir. 2016): Standards for de novo review of sufficiency and Rule 29 denial; facts viewed in the light favorable to the government.
United States v. Russell, 703 F.2d 1243 (11th Cir. 1983); United States v. Harris, 989 F.3d 908 (11th Cir. 2021); Carrizosa v. Chiquita Brands Int’l, Inc., 47 F.4th 1278 (11th Cir. 2022): Evidentiary abuse-of-discretion standard and proponent’s burden.
United States v. Pendas-Martinez, 845 F.2d 938 (11th Cir. 1988): Rule 106 does not open the door to entire documents; it admits only what’s needed to qualify, explain, or contextualize what was introduced.
United States v. Rothenberg, 610 F.3d 621 (11th Cir. 2010): Appellate standards for Guidelines issues.
United States v. Keene, 470 F.3d 1347 (11th Cir. 2006): A clear alternative-sentence statement can render Guidelines error harmless.
United States v. Delgado, 981 F.3d 889, 900 n.8 (11th Cir. 2020): Notes best practices for the timing of Keene statements.
United States v. Scott, 441 F.3d 1322 (11th Cir. 2006); United States v. Grushko, 50 F.4th 1 (11th Cir. 2022): Harmlessness and substantive reasonableness analysis.

Legal Reasoning

1) Sufficiency of the Evidence under § 875(c)

The panel restated the elements: (1) interstate transmission; (2) a communication containing a threat; and (3) the defendant intended to issue a threat or knew it would be perceived as such. It then added a pivotal clarification from Counterman: “A showing of recklessness is enough to satisfy the mens rea requirement.” While Elonis left open whether recklessness suffices under § 875(c) as a matter of statutory interpretation, Counterman sets the constitutional floor. The panel’s synthesis indicates that, in the Eleventh Circuit’s view, proof of at least recklessness as to the threatening nature of the communication satisfies § 875(c) post-Counterman.

On the facts, the court found the texts were classic “true threats.” Franks “promised to shoot Watts,” referenced accurate knowledge of Watts’s workplace and schedule, and specified “Monday morning at the ‘Cross road’” as the intended time and place—tracking the specificity that made the letter in Callahan threatening on its face. The court emphasized:

Graphic promises to commit murder are paradigmatic threats.

As to mens rea, the panel relied on circumstantial evidence and the defendant’s “own words” (Curtin). Franks wrote that Watts would “never know when I [am] going to pull up you,” and persisted with at least ten messages over several hours despite being told to stop. That pattern, word choice, and persistence were sufficient for a jury to find that Franks intended to convey a threat—or at minimum was reckless about how his words would be understood.

The defense argued that Watts’s replies downplayed fear. But the court treated recipient reaction as “some” evidence rather than a legal requirement and found the objective content dispositive (Counterman, 600 U.S. at 72). In any event, Watts’s actions—altering schedules, arriving early, directing his crew to delay their arrival, and promptly notifying HR, state police, and the FBI—refuted the suggestion that he was unfazed.

2) Rule 106 and Exclusion of Earlier Benign Texts

Franks sought admission of prior messages (from April)—music links, a “Happy Easter,” thanks for hiring him, and a demand for a raise (paired with insult)—arguing completeness and their effect on Watts’s state of mind. Rule 106 allows an adverse party to require introduction of other portions of a statement or other statements that “in fairness ought to be considered at the same time,” even over hearsay objection.

The district court excluded the communications as hearsay and, critically, as irrelevant to the later threats. The Eleventh Circuit affirmed under the settled principle that Rule 106 does not “automatically make the entire document admissible”; it reaches only material necessary to qualify, explain, or contextualize what the jury already saw (Pendas-Martinez).

Two points carried the day:

Temporal and contextual disconnect: the earlier texts predated termination; unsurprisingly, their tone differed. Their benign nature did not meaningfully bear on the objective threat posed by later messages.
Objective focus: whether words are threats often hinges on their objective content at the time of communication. A prior “Happy Easter” does not alter the threatening meaning of later detailed murder promises or suggest Watts would not reasonably perceive risk.

Because the April texts were not necessary to place the May threats in fair context, exclusion was within the court’s discretion. The proponent’s failure to show relevance also independently defeated admission (Carrizosa).

3) Sentencing: Enhancements, Reductions, and Harmless Error

The district court started with a base offense level of 12, criminal history category IV, and applied the two-level increase for offenses “involving more than two threats” under § 2A6.1(b)(2)(A), yielding an advisory range of 27–33 months. It imposed 33 months.

On appeal, Franks argued the series of texts was “a single episode or occurrence” and thus should not trigger the “more than two threats” enhancement. The panel expressly declined to decide this question because of the district court’s clear alternative-sentence statement under Keene: the court “would have imposed [its] sentence regardless of whether the plus two [was] appropriate.” Made after allocution and argument, the statement satisfied the Eleventh Circuit’s preference for timing (Delgado, 981 F.3d at 900 n.8). Consequently, any Guidelines error was harmless so long as the sentence was substantively reasonable—an inquiry the panel answered affirmatively given Franks’s criminal history (category IV), the fact he offended while on probation, and the seriousness of the threats.

Franks also sought the § 2A6.1(b)(6) reduction for offenses evidencing “little or no deliberation,” arguing intoxication. The district court found no credible evidence of intoxication and noted the threats spanned roughly three hours with substantial gaps (30 minutes to over two hours), allowing for reflection. The Eleventh Circuit upheld that factual finding under clear-error review and also noted the district court declined a voluntary intoxication instruction at sentencing.

Impact and Significance

Mens rea for threats after Counterman: The opinion concretely applies Counterman to § 875(c), stating that “recklessness is enough.” While unpublished, the reasoning signals how Eleventh Circuit panels are treating the intersection of Elonis and Counterman. Prosecutors do not need to prove purpose or knowledge if they can show recklessness with respect to the communications’ threatening nature, though many cases will involve stronger evidence of intent, as here.
Objective-content emphasis: By reaffirming that statements may qualify as threats based on objective content, the court sidelines debates about the recipient’s subjective fear when the communication is facially violent and specific.
Rule 106 boundaries: The decision curtails attempts to dilute the force of threats with earlier benign messages that are neither temporally nor contextually bound up with the charged communications. Defense strategies reliant on “prior good relationship” texts will face relevance and completeness hurdles.
Keene alternative-sentence doctrine: The case underscores the prudential power of a clear alternative-sentence statement. Where given properly, it can insulate the sentence from reversal even if a Guidelines calculation is arguable. Defense counsel should be prepared to (a) object to the adequacy of such a statement if ambiguous, and (b) mount a robust substantive-reasonableness challenge, as that may be the only viable appellate path.
“Multiple threats” enhancement remains an open question: The panel left unresolved how to count multiple messages sent in quick succession for § 2A6.1(b)(2)(A). Future published decisions may clarify whether a text barrage is a single “occurrence” or multiple threats, potentially with attention to content segmentation and temporal breaks.
Limited deliberation reduction is exacting: Demonstrating “little or no deliberation” requires more than assertions of intoxication. Timestamps and gaps between messages can be potent evidence of deliberation; defense teams should be ready with corroborated evidence if they intend to rely on § 2A6.1(b)(6).

Complex Concepts Simplified

True threat: A serious expression of intent to commit unlawful violence; not mere hyperbole, jokes, or political hyperbole. Courts look at words, context, and circumstances.
Mens rea (mental state): The required state of mind for guilt. After Counterman, the First Amendment requires at least recklessness as to whether speech is threatening; many prosecutions will show intent or knowledge. The panel here embraces recklessness as sufficient for § 875(c).
Objective vs. subjective: “Objective content” means how a reasonable person would understand the words in context. The recipient’s subjective feelings can be considered but are not controlling where the message is plainly threatening.
Rule 106 (rule of completeness): Lets a party require introduction of additional portions of a statement or related statements necessary to fairly understand what the jury has seen. It is not a carte blanche to admit all prior communications; relevance and necessity are key.
Harmless error and alternative sentences: If a district court says it would impose the same sentence even if it miscalculated the Guidelines, an appellate court may treat a Guidelines error as harmless—so long as the sentence is substantively reasonable.
Substantive reasonableness: An appellate check on whether the length of a sentence is reasonable in light of statutory factors (e.g., seriousness, history, deterrence). It is deferential to the sentencing judge.
U.S.S.G. § 2A6.1(b)(2)(A): Adds two levels for offenses involving “more than two threats.” How to count threats within a rapid message thread can be litigated; this case leaves the issue unresolved.
U.S.S.G. § 2A6.1(b)(6): Reduces offense level if the offense evidenced “little or no deliberation.” Gaps between transmissions and absence of credible intoxication evidence can defeat this reduction.

Key Precedential Threads and How They Shaped the Outcome

Counterman and Elonis synergy: The panel quotes Elonis for the proposition that the government must prove intent to issue a threat or knowledge it would be perceived as such, then adds Counterman’s recklessness floor. In practice, the court accepted that proof of recklessness satisfies the requirement—suggesting that juries may be instructed accordingly in future § 875(c) cases.
Callahan / Bozeman on content: The court leaned heavily on these cases to treat explicit murder promises—especially with date/time/place specificity—as quintessential threats.
Curtin on intent evidence: The defendant’s own words and persistence amid requests to stop allowed the jury to infer intent beyond reasonable doubt.
Pendas-Martinez on Rule 106: Confirmed that completeness is a fairness tool, not a vehicle to smuggle in irrelevant or temporally distinct communications.
Keene and harmlessness: The panel strictly applied Keene: a clear, on-the-record, post-allocution statement that the same sentence would issue regardless rendered the potential Guidelines error harmless, shifting the appellate battleground to substantive reasonableness.

Conclusion

The Eleventh Circuit’s unpublished decision in United States v. Franks offers a crisp, three-part reaffirmation of modern threat jurisprudence. First, it operationalizes Counterman in the § 875(c) context by treating recklessness as a sufficient mens rea and prioritizing objective content in determining whether a communication is a “true threat.” Second, it demonstrates the narrow scope of Rule 106, rejecting efforts to dilute the force of later threats with earlier benign messages that do not “qualify, explain, or place into context” the admitted communications. Third, it underscores the protective effect of a clear Keene alternative-sentence statement in insulating sentences from Guidelines-calculation challenges, while reminding litigants that the ultimate backstop is substantive reasonableness.

Practically, the opinion strengthens prosecutors’ pathways to proving § 875(c) cases that feature explicit, time-and-place-specific threats and sustained messaging conduct, and it cautions defense counsel that completeness arguments require tight contextual fit. In sentencing, it reaffirms that alleged Guidelines missteps may not warrant reversal when the record shows the district court would have imposed the same term. Although not binding precedent, Franks is a useful roadmap for threat prosecutions and appeals in the Eleventh Circuit post-Counterman.