Martinez: Indictment for 875(c) violation defective post-Elonis

In U.S. v. Martinez, No. 11-13295 (Sept. 3, 2015), on remand from the Supreme Court for consideration in light of Elonis v. U.S., the Court reversed its earlier holding and remanded the case with instructions to the district court to dismiss the indictment without Martinez. The indictment charged Martinez with making a threat to injure another person, in violation of 18 U.S.C. § 875(c). Martinez moved the dismiss the indictment, because it failed to allege that she subjectively intended to convey a threat to injure others. The district court denied the motion, and the Court affirmed. The Court noted that Elonis held that to violate § 875(c), a person must subjectively intend to convey a threat. Whether a “reasonable person” regards the communication as a threat does not suffice. Because Martinez’ indictment failed to allege that she subjectively intended to convey a threat, and because, post-Elonis, this is an essential element of § 875(c), the indictment was deficient.