Tuesday, July 28, 2026
Page 4
Ninth Circuit:
Conviction Over Threat to ‘Unabomb’ L.A. FBI Office Upheld
Opinion Says Objective Standard Coupled With Subjective Mental State Applies to Analysis of Whether Comment by Disgruntled Former Agency Source Violates Criminal Statute
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the conviction of an ex-FBI confidential informant accused of sending an email to a former handler in which he said that he was going to “UNABOMB THE LOS ANGELES FBI HQ,” rejecting the claim that the trial judge abused his discretion by not explicitly instructing the jury to apply an objective standard to determine if the statement qualifies as a “threat” under federal law.
Circuit Judge Consuelo M. Callahan authored yesterday’s opinion, joined in by Circuit Judges Patrick J. Bumatay and Eric C. Tung, saying that what constitutes a violation of the statute turns on the analysis of whether a reasonable person would have considered the statement a “threat” and whether the defendant acted with recklessness in making the comment. She wrote:
“We now confirm what we have previously assumed—that § 875(c) requires an objective threat element as well as a subjective mental state element.”
However, she opined that there was no instructional error even though the trial judge made no mention of the reasonable person standard. Saying that, while “the district court’s instructions could have been clearer,” she remarked:
“The district court elaborated: ‘To determine whether or not the defendant transmitted a threat here, you should consider the circumstances under which the electronic communication was made, including its context with respect to surrounding conversation, the language the defendant used, and the reaction of those who received the electronic communication.’ This instruction…indicated that the jurors should determine whether there was a ‘threat,’ not from the perspective of [the defendant or his ex-handler], but from the perspective of a reasonable person.”
Federal Violation
Appealing his conviction based on the asserted instructional error was Mark Anten, who was accused by federal prosecutors of violating 18 U.S.C. §875(c) in December 2023 when he emailed FBI Special Agent Amir Sharif the remark about the downtown-Los Angeles headquarters. The section provides:
“Whoever transmits in interstate or foreign commerce any communication containing any threat to…to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”
Anten had worked as what the agency calls a “confidential human source” relating to a fraud investigation into a healthcare company in 2018. He posed as an employee by the name of “Donovan” until he dropped a recording device styled as a water bottle, causing wires to be exposed in front of a colleague who was one of the targets of the sting that October.
During his five-month stint as an undercover source, Sharif noticed that Anten had “quirks” such as sending “rambling” emails to his handlers, making “outlandish” requests, and other “socially awkward” behaviors, but the agency kept him on until his cover was blown.
2023 Communications
In July 2023, the defendant attempted to resume communications with Sharif, showing up at the Los Angeles headquarters and sending emails in which he referred to himself as the new “Unabomber.” In the messages, he recounted similarities between himself and the late Ted Kaczynski, the man previously affiliated with the title who pled guilty to a string of bombings between 1978 and 1995.
A few months later, Anten sent the email purportedly threatening the headquarters and a second one in which he said things like, “I can go on a mass murder spree,” “SuperMax or Death,” and “You ain’t getting away with this one.” On Dec. 21, 2023, a search incident to his arrest revealed no weapons or bomb-making materials at his home.
At trial District Court Judge Wesley L. Hsu of the Central District of California rejected the defendant’s request to define a “threat” as a “serious statement…as distinguished from idle or careless talk, exaggeration, or something said jokingly” and to instruct that “the statement must have been made under such circumstances that a reasonable person…would understand it as a serious expression of an intent to inflict bodily injury.”
The jury found him guilty of two counts of violating §875(c) in June 2024, and he was sentenced to one year in federal prison.
Supreme Court Jurisprudence
Callahan noted that U.S. Supreme Court jurisprudence has held that courts must read a mental state element into §875(c) and that recklessness would suffice to avoid First Amendment concerns but commented that “a defendant’s intent does not determine whether he communicated a threat.” She explained:
“A threat is a threat, whatever the speaker’s mental state. To secure a conviction under §875(c), the government must prove that a defendant both made an objective ‘threat,’ and that he did so with the necessary subjective mental state.”
Saying that what constitutes a “threat” under the statute must be distinguished from constitutionally protected speech, she remarked that “the statement at issue must be a ‘true’ threat” as opposed to a jest, hyperbole, or other statements that, when taken in context, do not convey that violence is likely to occur. The jurist said:
“The Supreme Court has provided less guidance on whose perspective must be considered to determine whether a statement is a ‘true threat’: the speaker’s, the victim’s, or a hypothetical reasonable person’s. Process of elimination reveals the answer.”
She continued:
“The answer cannot be the defendant speaker’s perspective, or the ‘threat’ element would be no different than the defendant’s subjective mental state requirement….The answer also cannot be the victim’s perspective. The victim of a threat could be a particularly sensitive or paranoid individual….Thus, whether a statement is a ‘threat’ must be judged through the eyes of a reasonable person.”
The judge added:
“To the extent Anten contends that the instructions could have been more clearly formulated, we find no abuse of discretion, though we intend for this opinion to aid district courts in formulating clearer instructions in future cases.”
The case is U.S. v. Anten, 24-7261.
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