Section 115 “True Threats” After Counterman: Specific Intent to Intimidate or Retaliate Satisfies the Constitution; “Consciously Disregarded a Substantial Risk” Instruction Not Plain Error

I. Introduction

In United States v. Thomas Rutter Woollacott (6th Cir. 2026-06-10), the Sixth Circuit affirmed a jury conviction under 18 U.S.C. § 115(a)(1)(B) for threatening a federal official—here, a sitting Member of Congress, Representative Andy Barr. The case arose from two anonymous voicemails left at the Congressman’s district office in Lexington, Kentucky, containing escalating violent rhetoric, including repeated directives to “Vest up” and assertions that the Congressman and staff would be “hunted” and “removed from the face of this f***ing earth.”

The appeal presented two core issues:

1. Sufficiency of the evidence: whether the April 2024 voicemail constituted a constitutionally unprotected “true threat”.
2. Jury-instruction/First Amendment mens rea: whether, after Counterman v. Colorado, the district court plainly erred in defining the subjective mental state needed to convict under § 115.

The panel (Boggs, Clay, Gilman) held the April voicemail was a true threat and that the instructions—especially given § 115’s built-in specific-intent element—were not plainly erroneous.

II. Summary of the Opinion

The Sixth Circuit affirmed Woollacott’s conviction on Count 2 (April voicemail) and his 30-month sentence. Applying de novo sufficiency review, the court concluded a rational juror could find the voicemail an authentic threat of unlawful violence when considering its language, its context (including a prior similar voicemail), and the staff’s reactions (Capitol Police referral, inter-office warnings, and hiring event security).

On the instruction challenge (reviewed for plain error because there was no contemporaneous objection), the court held that even if the “threat” element was phrased in two ways (“conveyed that he meant” violence or “consciously disregarded a substantial risk”), the jury necessarily found more than recklessness because § 115 required proof that Woollacott acted with intent to impede, intimidate, interfere, or retaliate against a federal official performing official duties.

III. Analysis

A. Precedents Cited

1. “True threat” doctrine and the First Amendment

• Virginia v. Black, 538 U.S. 343 (2003)
  The Opinion relies on Black for the classic definition: a true threat is a communication of a serious expression of intent to commit unlawful violence against an individual or group. This frames the inquiry as one about the threatening character of the statement, not the speaker’s political views or rhetorical style.
• Counterman v. Colorado, 600 U.S. 66 (2023)
  Counterman supplies two critical points used by the court: (i) a statement may qualify as a true threat based on objective content; but (ii) criminal punishment requires a subjective mens rea—at least recklessness—regarding whether the communication would be perceived as threatening violence. The Sixth Circuit’s instruction analysis turns on how § 115’s specific intent interacts with this constitutional floor.
• Watts v. United States, 394 U.S. 705 (1969) (per curiam)
  Cited for the contextual nature of the inquiry and for distinguishing true threats from “political hyperbole.” The Opinion uses Watts largely through Counterman’s explanation that “true” distinguishes threats from jokes, jests, and exaggerations that do not convey a real possibility of violence.
• United States v. Doggart, 906 F.3d 506 (6th Cir. 2018)
  Supplies the Sixth Circuit’s operational test: whether a reasonable observer would take the words as an authentic threat. This anchors the sufficiency analysis to an objective “reasonable observer” lens.
• United States v. Howard, 947 F.3d 936 (6th Cir. 2020)
  Used both for the sufficiency framework (including factors for “true threat” assessment) and as an example where explicit statements (“I’m going to kill you. I am going to murder you.”) were “clear” threats. It also appears in the plain-error discussion (standard for when instructions are “so clearly erroneous” as to cause a grave miscarriage of justice).
• Thames v. City of Westland, 796 F. App'x 251 (6th Cir. 2019)
  Cited for the limited role of listener reaction: subjective fear alone cannot convert an innocuous statement into a true threat, but immediate reporting to authorities can support finding a true threat. The Opinion uses this to validate the staff’s strong responses as probative, not dispositive.

2. Mens rea for threats and statutory interpretation

• Elonis v. United States, 575 U.S. 723 (2015)
  Central to the mens rea discussion. Elonis interpreted a threat statute silent on intent (18 U.S.C. § 875(c)), emphasizing that “wrongdoing must be conscious to be criminal,” and requiring at least purpose/knowledge, while reserving whether recklessness suffices. The Opinion uses Elonis (and Justice Alito’s formulation quoted in Counterman) to define recklessness in the threats context.
• Morissette v. United States, 342 U.S. 246 (1952) and Carter v. United States, 530 U.S. 255 (2000)
  These cases appear through Elonis as the baseline canons for reading mens rea into federal criminal statutes that are silent, to separate wrongful from innocent conduct. Their role here is contrastive: § 115 is not silent—Congress wrote a specific-intent requirement into the statute.

3. Circuit authority on § 115 and related “intent-to-threaten” arguments

• United States v. Veach, 455 F.3d 628 (6th Cir. 2006)
  The Sixth Circuit’s key internal precedent that § 115(a)(1)(B) contains a specific intent element that must be proven beyond a reasonable doubt. The Opinion leans on Veach to treat § 115’s intent-to-impede/intimidate/interfere/retaliate as an inescapable statutory component.
• United States v. Cope, 283 F. App'x 384 (6th Cir. 2008)
  Used to reject the notion that § 115 requires an additional, separate finding that the defendant “intended his statements to be threats.” The quoted logic—“Surely a defendant who ‘intend[s]’ a ‘threat as an act of retaliation’ subjectively ‘intends’ the threat to be a real one”—supports the panel’s conclusion that § 115’s intent element covers the subjective requirement.
• United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005) and United States v. Turner, 720 F.3d 411 (2d Cir. 2013)
  Cited in accord with Cope: it is difficult (or “impossible”) to intend the prohibited intimidation/retaliation under § 115 without intending to make a threatening communication. These citations bolster the Sixth Circuit’s view that the statutory intent and the subjective awareness required by the First Amendment substantially overlap.
• Sister-circuit cases used to situate Elonis’s post-decision landscape: United States v. Mast, 938 F.3d 973 (8th Cir. 2019); United States v. Lynch, 881 F.3d 812 (10th Cir. 2018); United States v. Wynn, 827 F.3d 778 (8th Cir. 2016); United States v. White, 810 F.3d 212 (4th Cir. 2016); United States v. Fleury, 20 F.4th 1353 (11th Cir. 2021); United States v. Killen, 729 F. App'x 703 (11th Cir. 2018).
  The Opinion uses these to demonstrate that where a statute already requires a targeted intent (harass, intimidate, extort, retaliate), courts often find Elonis concerns diminished or satisfied.

4. Standards of review and jury-instruction doctrines

• United States v. Howard, 947 F.3d 936 (6th Cir. 2020), United States v. Ward, 957 F.3d 691 (6th Cir. 2020), and United States v. Reynolds, 86 F.4th 332 (6th Cir. 2023)
  Establish de novo sufficiency review and the requirement to view evidence in the light most favorable to the verdict.
• United States v. You, 74 F.4th 378 (6th Cir. 2023) and United States v. Houston, 792 F.3d 663 (6th Cir. 2015)
  Ground the use of plain-error review when no objection was made to jury instructions.
• United States v. Bauer, 82 F.4th 522 (6th Cir. 2023) and United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc)
  Provide the familiar four-part plain-error test.
• United States v. Mahbub, 818 F.3d 213 (6th Cir. 2016)
  Appears through the “grave miscarriage of justice” formulation for when instructional error becomes plain error.
• United States. v. Kubeck, 487 F.2d 1256 (6th Cir. 1973) and United States v. Common, 563 F. App'x 429 (6th Cir. 2014)
  Confirm that de novo sufficiency review applies when the defendant moved for acquittal after the government’s case and presented no proof.
• B.A. v. Tri Cnty. Area Schs., 156 F.4th 782 (6th Cir. 2025)
  Cited only in a footnote about “sanitized expressions” in quotations (a stylistic/record-handling point), not as a substantive threat precedent.

B. Legal Reasoning

1. Why the April voicemail was a “true threat”

The court treated the April voicemail as more than “ominous” criticism or generalized political rage. It emphasized:

• Direct, violent framing: “we'll f***ing find you,” “You will be hunted and found and removed from the face of this f***ing earth,” “It’s over for you,” and “Vest up.”
• Targeting and immediacy: the call went to the Congressman’s office and referenced a coordinated, persistent pursuit (“We’re coast to coast”).
• Escalation and repetition: it followed an earlier threatening voicemail, making the April message harder to dismiss as a one-off vent.
• Objective corroboration via reaction and security measures: staff fear, Capitol Police involvement, warnings to other offices, and hiring security for public events.
• Post-arrest admissions suggesting awareness of intimidation effect: Woollacott described the voicemails as “effective” in making the Congressman uncomfortable and justified fear as evidence of “guilt.”

The analysis tracks the Sixth Circuit’s established “words + context + reaction” framework (from Watts v. United States, United States v. Doggart, and United States v. Howard), and treats the staff’s actions as probative (consistent with Thames v. City of Westland).

2. Why the jury instructions satisfied Counterman (and why plain error was unavailable)

The heart of the instruction dispute was how to square Counterman v. Colorado’s subjective-mens-rea requirement with a statute that already requires specific intent. The district court instructed the jury that the government must prove Woollacott either: (i) “conveyed that he meant to commit an act of unlawful violence” or (ii) “consciously disregarded a substantial risk that his communication would be viewed as threatening violence.”

Woollacott argued the first alternative permitted conviction without a finding that he was at least reckless as to how others would interpret his words. The Sixth Circuit answered in two steps:

1. Even accepting Woollacott’s premise about the first element, the verdict required more than recklessness anyway: to convict under § 115(a)(1)(B), the jury also had to find he acted “with the intent to impede, intimidate, or interfere” with Barr’s duties or “with the intent to retaliate.” That level of purposefulness, the panel reasoned, necessarily surpasses Counterman’s constitutional floor of recklessness.
2. Counterman does not require the magic word “reckless”: Counterman defines threats-recklessness as awareness that others could regard the statements as threatening violence and delivering them anyway. The instruction’s “consciously disregarded a substantial risk” formulation tracks that concept.

C. Impact

1. Reinforcement of § 115 as a “specific intent” threats statute

The decision strengthens (and updates for Counterman) the Sixth Circuit’s line from United States v. Veach and United States v. Cope: § 115 is not merely about uttering scary words; it is about threatening a federal official with an additional targeted purpose—impeding, intimidating, interfering with, or retaliating for official duties. That statutory purpose, the court implies, makes many Counterman-style challenges harder because the jury must already find a high degree of subjective culpability.

2. Instruction drafting after Counterman

The court signals that instructions may constitutionally define the subjective requirement using functional equivalents (e.g., “consciously disregarded a substantial risk”). For trial courts, the case provides a litigation-safe template: pair a Counterman-compliant subjective formulation with § 115’s explicit intent element.

3. Evidence considerations in “voicemail threat” prosecutions

The opinion underscores that even without a detailed plan or explicit “I will shoot you at X place and time,” a jury may find a true threat where: (i) the language conveys pursuit and lethal intent (“hunted,” “removed from the face of the earth”); (ii) the speaker repeats or escalates communications; and (iii) recipients take concrete security steps and involve law enforcement.

4. Appellate posture matters: plain error is a steep hill

Because Woollacott did not object to the final jury instructions, the panel’s analysis is shaped by United States v. You, United States v. Bauer, and United States v. Vonner. The decision illustrates that post-Counterman instruction attacks will often fail on plain-error review unless the charge omits any meaningful subjective component and the statute lacks its own intent requirement.

IV. Complex Concepts Simplified

• “True threat”: Not every angry or violent-sounding remark is criminal. A “true threat” is a serious expression of intent to commit unlawful violence, assessed in context. Political “hyperbole” is protected; genuine threats are not.
• Objective vs. subjective inquiry:
  • Objective: Would a reasonable observer take the words as an authentic threat? (helps decide whether the speech falls into the “true threat” category).
  • Subjective: Did the speaker have a culpable mental state regarding the threatening nature of the communication? After Counterman v. Colorado, criminal liability requires at least recklessness about how the message would be perceived.
• Recklessness (in threats law): Awareness of a substantial risk that others will interpret the statement as threatening violence, and sending it anyway.
• Specific intent (in § 115): Beyond intending to speak, the defendant must act for a targeted purpose—impeding, intimidating, interfering with, or retaliating against a federal official because of official duties.
• Plain-error review: If you do not object at trial, you generally must show an obvious, outcome-affecting error that seriously undermines the fairness and integrity of the proceedings.
• Sufficiency of the evidence: On appeal, the question is not whether judges personally believe the defendant is guilty; it is whether any rational juror could find guilt beyond a reasonable doubt when the evidence is viewed in the government’s favor.

V. Conclusion

United States v. Thomas Rutter Woollacott affirms a § 115 conviction by applying a contextual “true threat” analysis to a targeted, escalating voicemail campaign and by treating § 115’s specific-intent element as a powerful answer to Counterman v. Colorado concerns about subjective mens rea. The decision’s main significance is its practical synthesis: when Congress requires proof that the defendant intended to intimidate, impede, interfere with, or retaliate against a federal official, that statutory intent will often satisfy (and exceed) Counterman’s constitutional minimum of recklessness—especially on plain-error review.