Interstate Threatening Communications – 18 U.S.C. § 875 Sentencing Guidelines

Interstate Threatening Communications – 18 U.S.C. § 875 Sentencing Guidelines

Thanks for visiting Spodek Law Group, a second-generation firm managed by Todd Spodek with over 40 years of combined experience. When federal prosecutors charge interstate threatening communications under 18 U.S.C. § 875, they’re alleging you transmitted threats via interstate or foreign commerce—phone calls, emails, text messages, social media posts, or any electronic communication crossing state lines—to kidnap, injure, or extort. Maximum sentence: **5 years** for most threats; **20 years** for ransom demands. This statute is the modern workhorse for federal threat prosecutions, replacing § 876 (mail threats) in the internet age. Nearly every electronic threat crosses state lines given how telecommunications infrastructure operates, making § 875 applicable to virtually all online and phone-based threats.

What § 875 Criminalizes

The statute creates four distinct offenses:

§ 875(a): Ransom Demands

Transmitting ransom demands for kidnapping victims via interstate commerce. Maximum: **20 years**. This covers actual kidnappings where perpetrators demand payment electronically—emails demanding bitcoin for hostages’ release, calls to families demanding wire transfers, messages to companies demanding payment for executives’ safety.

§ 875(b): Threat to Kidnap

Transmitting threats to kidnap any person. Maximum: **5 years**. Threatening to abduct victims, their children, or others—”I’m going to take your kid” emails, texts threatening to kidnap unless demands are met, social media posts threatening abduction.

§ 875(c): Threat to Injure

Transmitting threats to injure recipients or others. Maximum: **5 years**. This is the most commonly charged subsection, covering death threats, assault threats, threats of property damage sent electronically. “I’m going to kill you” emails, threatening texts, violent social media messages all violate § 875(c).

§ 875(d): Extortion by Threat

Transmitting extortionate threats—communications threatening injury to person or property to extort money or anything of value. Maximum: **2 years**. “Pay me $10,000 or I’ll destroy your business” emails, threats to reveal embarrassing information unless paid, blackmail schemes conducted electronically.

The offense level differences reflect perceived harm: ransom demands in actual kidnappings warrant 20 years because lives are immediately at risk. Extortion receives lower maximums than pure threats because extortion requires willingness to not harm if paid, suggesting less dangerous intent than threats seeking no payment.

The Interstate Commerce Element

Section 875 requires threats be transmitted “in interstate or foreign commerce.” What does this mean?

• **Phone calls** – Nearly all phone calls use infrastructure crossing state lines, even local calls. Interstate commerce is presumed for telephonic communications.
• **Emails** – Email servers route messages through multiple states regardless of sender/recipient locations. Federal jurisdiction attaches to virtually all emails.
• **Text messages** – SMS routing crosses state lines, satisfying interstate commerce requirements.
• **Social media** – Posts on Facebook, Twitter, Instagram, TikTok travel through servers in multiple states and countries, creating interstate commerce.
• **Direct messages** – Even private DMs on platforms use interstate infrastructure.

Defense rarely succeeds in challenging the interstate commerce element. Modern telecommunications make it nearly impossible to communicate electronically without crossing state lines. Courts presume interstate commerce when any electronic medium is used.

When Local Communications Become Federal Crimes

This creates anomalies: Someone who verbally threatens a neighbor face-to-face commits state assault/menacing. The same threat sent via text message becomes federal § 875 offense carrying 5-year maximum. The conduct is identical; the medium determines federal jurisdiction.

Critics argue this federalizes too much—local disputes between neighbors, domestic arguments, workplace conflicts all become federal crimes when threats move to email or text. Defenders respond that electronic threats reach broader audiences, create permanent records amplifying harm, and require federal resources to investigate given interstate nature.

Federal Sentencing: Offense Level 12

Under §2A6.1, interstate threatening communications receive base offense level 12 (10-16 months at Category I). Enhancements include:

• **+6 levels** if threats involved conduct evidencing intent to carry out the threat (acquiring weapons, surveillance, travel toward victims)
• **+2 levels** if more than two threatening communications were transmitted
• **+3 levels** if victim was vulnerable or if threats targeted specific victim characteristics (race, religion, disability)
• **Cross-references** to assault, kidnapping, or extortion guidelines when applicable

Simple electronic threats—angry emails, threatening social media posts without action toward execution—result in offense level 12. With acceptance of responsibility (−3 to level 9), defendants often receive probation or 4-10 months. When defendants acquire weapons, conduct surveillance, or take steps toward executing threats, levels jump to 18 (27-33 months).

Most § 875 cases involve people who made intemperate statements online without any genuine intent or capability to act. These defendants receive lower sentences reflecting lack of actual danger. When defendants demonstrate real capacity and intent, sentences approach statutory maximums.

The Social Media Explosion

Section 875(c) prosecutions have surged with social media. What were once private angry statements to friends now get posted publicly, triggering federal investigations:

• **Political threats** – Angry posts about politicians, public figures, or controversial cases that include threatening language
• **Revenge threats** – Ex-partners post threats after breakups, divorces, or custody disputes
• **Drunken posts** – Intoxicated individuals post threatening content they immediately regret
• **Misunderstood satire** – Dark humor or sarcasm interpreted by readers as genuine threats
• **Anonymous accounts** – Defendants believe online anonymity protects them, unaware law enforcement traces threats through IP addresses and account data

Common scenarios: Someone angry about a judge’s ruling posts “That judge deserves to die” on Facebook. A defendant tweets “Someone should kill [public figure]” after a controversial event. An ex-boyfriend texts “I’m going to find you and hurt you” after a breakup. These statements, made impulsively or rhetorically, become federal felonies when transmitted electronically.

The True Threat Analysis

First Amendment protects angry speech, political hyperbole, and rhetorical excess. Courts distinguish “true threats” (criminal) from protected speech:

• **True threats** – Statements where speakers seriously expressed intent to commit unlawful violence, regardless of whether they actually intended to act. If recipients would reasonably fear harm, and speakers knew or should have known that, true threats exist.
• **Protected speech** – Conditional statements, political hyperbole, satire, artistic expression, venting that doesn’t communicate genuine intent to harm.

The Supreme Court in *Counterman v. Colorado* (2023) held that true threats require subjective awareness—defendants must have known or recklessly disregarded risk that communications would be interpreted as threats. Objective threat alone isn’t enough; prosecution must prove defendants’ mental state.

Defense presents evidence that statements were jokes, satire, political commentary, or venting without threatening intent. Context matters: statements on comedy accounts receive more protection than direct messages to victims, posts in political forums get analyzed differently than private threats, and rhetorical styles matter—people known for hyperbolic language aren’t making “true threats” when they use similar language about public figures.

Defending § 875 Charges

Challenge whether defendants subjectively intended threats. Present evidence that:

• Statements were made while intoxicated, undermining knowing/willful intent
• Defendants had histories of using hyperbolic language without action
• Posts were on accounts known for satire or comedy
• Defendants immediately deleted or retracted statements, showing recognition they were inappropriate
• Mental health issues affected judgment, negating subjective threatening intent

Contest whether communications would cause reasonable recipients to fear harm. If statements were ambiguous, conditional (“if X happens, then Y”), or clearly hyperbolic, reasonable people wouldn’t interpret them as genuine threats. Expert testimony on linguistics and communication norms can establish that statements wouldn’t objectively threaten reasonable recipients.

Demonstrate lack of capacity to execute threats. When defendants had no weapons, no access to victims, no transportation to reach victims, and no history of violence, courts recognize threats were empty rhetoric. Evidence of defendants’ actual harmlessness—unemployed, living far from victims, physically unable to commit threatened acts—supports arguments they posed no real danger.

Negotiate resolutions emphasizing remorse and changed circumstances. Defendants who accept responsibility, apologize to victims, complete anger management or substance abuse treatment before sentencing, and demonstrate threats were aberrations often receive probation. When underlying issues (divorce stress, job loss, mental health crises) that sparked threats are resolved, recurrence seems unlikely, supporting lenient sentences.

Collateral Consequences

Section 875 convictions create serious collateral consequences:

• **Employment loss** – Background checks reveal federal convictions for threatening communications, eliminating employment in most professional fields
• **Security clearances** – Federal, state, and private security clearances are revoked and can’t be reinstated
• **Immigration consequences** – Non-citizens face deportation for crimes involving moral turpitude or crimes of violence
• **Firearms prohibition** – Felony convictions prohibit gun ownership under 18 U.S.C. § 922(g)(1)
• **Protective orders** – Victims obtain restraining orders prohibiting any contact, limiting where defendants can live/work

Comparing §875(c) to State Menacing Laws

States have their own threat laws—menacing, terroristic threatening, criminal threats. Why charge federally under § 875?

• **Higher maximums** – Federal 5-year maximum typically exceeds state menacing penalties (often 6-12 months)
• **Resource advantages** – FBI investigates, U.S. Attorneys prosecute, bringing federal resources to bear
• **Automatic jurisdiction** – Electronic communications presumptively cross state lines, making federal jurisdiction automatic rather than requiring proof of interstate travel
• **Consistency** – Federal sentencing guidelines create uniform national standards; state sentences vary widely

For high-profile threats—targeting public figures, involving multiple victims across states, generating media attention—federal prosecution provides gravitas and resources state systems might lack. For ordinary threats between individuals, federal charging seems disproportionate, but jurisdictional ease makes § 875 attractive to prosecutors.

Todd Spodek built this firm defending clients whose angry words—posted online, sent via text, or spoken during phone calls—resulted in federal felony charges carrying 5-year maximums. Social media transformed how people communicate, eliminating filters that previously prevented impulsive statements from becoming permanent public records. Our work taught us that § 875 prosecutions often involve people who said terrible things during crises, while intoxicated, or without considering how recipients would interpret statements. The internet doesn’t forget—posts made in seconds create evidence used for prosecution years later. But the First Amendment still protects angry speech, political commentary, and rhetorical excess. Federal prosecutors can’t silence criticism by characterizing every intemperate statement as a criminal threat. If you’re under investigation for or charged with interstate threatening communications, contact us immediately. Federal agents investigate electronic threats aggressively, obtaining account data, IP addresses, and communications records before defendants know they’re suspects. Early legal representation protects rights and potentially prevents charges by explaining context investigators might not understand. We’re available 24/7.