NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0058n.06

Case No. 21-3028

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

EDWARD KILLINGSWORTH, JR.,

Defendant - Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF OHIO

BEFORE: COLE, GIBBONS, and LARSEN, Circuit Judges.

JULIA SMITH GIBBONS, Circuit Judge. Edward Killingsworth, Jr. was charged in a onecount indictment with Interstate Communication Threat, in violation of 18 U.S.C. § 875(c), for 

knowingly and willfully transmitting interstate communications threatening to kill any law 

enforcement officer. The charges were based on September 2019 Facebook posts stating “I think 

a cop needs killed around here again,” and “[M]ore cops need shot dead. They kill us, we kill 

them simple.” He filed a motion to dismiss the indictment, arguing it was legally insufficient and 

his statements were protected by the First Amendment. The district court denied his motion, 

holding that the indictment was sufficient and that whether Killingsworth’s posts constituted “true 

threats” or protected political hyperbole was a factual determination for the jury. Killingsworth 

then pled guilty to the indictment and the court sentenced him to 30 months’ imprisonment. 

Because the indictment was legally sufficient and the actual determination of whether 

Killingsworth intended the messages as threats is a factual determination for a jury, we affirm.
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I

On September 17, 2019, a discussion was unfolding on the “Warren’s Real Breaking 

News” Facebook page about the county prosecutor’s decision to not charge two police officers in 

the January 2019 shooting death of Matthew Burroughs, an unarmed black man. In the comments 

section of the article, Killingsworth posted two statements: “I think a cop needs killed around here 

again,” and “[M]ore cops need shot dead. They kill us, we kill them simple.” DE 1, Indictment, 

Page ID 1; DE 17, Def.’s Mot. to Dismiss Indictment, Page ID 94–95. A municipal court employee 

took a screenshot of Killingsworth’s comments and texted it to Detective John Greaver of the 

Warren Police Department. Greaver looked up Killingsworth in Ohio’s law enforcement database 

and matched his Facebook profile picture to his driver’s license photograph. A warrant was issued 

for Killingsworth’s arrest for Aggravated Menacing and Telecommunication Harassment in 

violation of Warren, Ohio’s Codified Ordinances. Immediately after the warrant was issued, 

Killingsworth’s parole officer arranged to meet him at the Warren Police Station and advised him 

of the warrant. Greaver and another police officer placed Killingsworth under arrest on September 

17, 2019.

On March 4, 2020, a federal grand jury indicted Mr. Killingsworth, charging him in a onecount indictment with Interstate Communication Threat, in violation of 18 U.S.C. § 875(c). The 

indictment stated: 

On or about September 17, 2019, in the Northern District of Ohio, Eastern Division, 

Defendant EDWARD KILLINGSWORTH JR. did knowingly and willfully 

transmit in interstate and foreign commerce from Warren, Ohio, communications 

which viewed together, threatened to kill any law enforcement officer, to wit: 

Facebook.com public postings, which included:

a. On September 16, 2019, “I think a cop needs killed around here again.”

b. On September 17, 2019, “[M]ore cops need shot dead. They kill us, we kill them 

simple.”
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DE 1, Indictment, Page ID 1. Killingsworth pled not guilty and moved to dismiss the indictment, 

arguing the indictment was legally insufficient because his Facebook comments did not constitute 

threats, but rather “statements of opinion not subject to prosecution.” DE 17, Def.’s Mot. to 

Dismiss Indictment, Page ID 98. He asserted his statements did not rise to the level of a “true 

threat” and were protected as political speech under the First Amendment. Id. at 101–02. The 

district court held a hearing on Killingsworth’s Motion to Dismiss the Indictment and his 

contemporaneously filed Motion to Suppress, at which Detective Greaver testified that, in addition 

to the threats against law enforcement, Killingsworth posted “several other threats toward other 

people . . . .” DE 22, Hearing Transcript, Page ID 203. These comments, directed at other users 

on the Facebook thread, included: “Your kids need shot in front of you”; “F you and your kids, 

you son that prize”; “I’m going to F your wife first”; “Trust me I’ll take one with me”; and “I’ll 

see you in the woods.” Id. at 206.

Following the hearing, the district court issued a Memorandum of Opinion and Order 

denying Killingsworth’s Motion to Dismiss and Motion to Suppress.1 The court held the 

indictment was legally sufficient because it provided “a precise recitation of the elements of the 

crime for which Killingsworth [was] charged along with a concise and definite statement of the 

facts supporting the charge against him . . . .” DE 24, Mem. Op. and Order, Page ID 254. The 

court further held that the indictment sufficiently alleged Killingsworth had the requisite mental 

state required for a violation of 18 U.S.C. § 875(c). Id. at 255–56. Finally, the court discussed 

Killingsworth’s argument that his speech was protected by the First Amendment, holding that 

whether “Killingsworth subjectively intended his statements to be threatening or political 

1 The district court denied Killingsworth’s Motion to Dismiss the Indictment and his Motion to 

Suppress, but he does not challenge the denial of the Motion to Suppress on appeal.
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hyperbole is . . . clearly a factual disagreement, one in which this Court may not opine, analyze, or 

further discuss [because] factual issues remain the duty of the jury.” Id. at 258. On September 9, 

2020, Killingsworth pled guilty to the one-count indictment. The factual basis of the plea 

agreement mirrored the facts as set forth in the indictment, and Killingsworth reserved the right to 

appeal the district court’s written judgment on his motion to dismiss the indictment.

The district court sentenced Killingsworth on December 21, 2020. With a total offense 

level of ten and a criminal history category of VI, his advisory guideline sentencing range was 24 

to 30 months. The court discussed the 18 U.S.C. § 3553(a) factors and imposed a high-end 

guideline sentence of 30 months and 3 years of supervised release, citing Killingsworth’s lack of 

remorse, criminal history, and past probation violations.

II

This court reviews the sufficiency of an indictment de novo. United States v. DeZarn, 157 

F.3d 1042, 1046 (6th Cir. 1998). “An indictment is generally sufficient if it fully, directly, and 

expressly sets forth all the elements necessary to constitute the offense intended to be punished.” 

United States v. McAuliffe, 490 F.3d 526, 531 (6th Cir. 2007) (internal quotation marks and citation 

omitted). To be sufficient, the indictment must (1) detail each element of the charged offense and 

give the defendant notice of the charges he faces, and (2) “be sufficiently specific to enable the 

defendant to plead double jeopardy in a subsequent proceeding, if charged with the same crime 

based on the same facts.” Id. (quoting United States v. Douglas, 398 F.3d 407, 413 (6th Cir.

2005)). The indictment must be read as a whole, with factual allegations accepted as true and 

construed in a practical sense with all the necessary implications. United States v. Reed, 77 F.3d 

139, 140 n.1 (6th Cir. 1996) (en banc).
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III

“Section 875(c) punishes the transmission in interstate commerce of ‘any communication 

containing . . . any threat to injure the person of another.’” United States v. Doggart, 906 F.3d 

506, 510 (6th Cir. 2018) (alteration in original) (quoting 18 U.S.C. § 875(c)). For someone to be 

convicted under this law, “the government must prove that: (1) the defendant sent a message in 

interstate commerce; (2) a reasonable observer would view the message as a threat; and (3) the 

defendant intended the message as a threat.” Id.; see also United States v. Howard, 947 F.3d 936, 

943 (6th Cir. 2020).

On appeal, Killingsworth asserts the indictment is legally deficient under 18 U.S.C 

§ 875(c) because it failed to allege intent of communicating a true threat. He argues that pursuant 

to Elonis v. United States, 575 U.S. 723, 737 (2015), a defendant convicted under § 875(c) must 

know that he is transmitting a communication and that his communication contains a threat. 

Killingsworth contends his two Facebook statements “were not threats, did not contain any 

language construable as a serious expression of an intent imminently to carry out some injurious 

act, and lacked any expression of an intent to commit the injury.” CA6 R. 21, Appellant Br., at 

13.

We disagree. The indictment against Killingsworth fully, directly, and expressly sets forth 

each of the elements necessary to constitute an offense under § 875(c). The indictment provides 

specific dates for the offense and identifies Killingsworth as the defendant. The indictment tracks 

the statutory language, stating that Killingsworth “did knowingly and willfully transmit in 

interstate and foreign commerce from Warren, Ohio, communications . . . [that] threatened to kill 

any law enforcement officer.” DE 1, Indictment, Page ID 1. The indictment then quotes two of 

Killingsworth’s posts: (1) “I think a cop needs killed around here again,” and (2) “[M]ore cops 
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need shot dead. They kill us, we kill them simple.” Id. These allegations are sufficiently specific 

as to give Killingsworth notice of the charges and protect him against double jeopardy. See 

McAuliffe, 490 F.3d at 531.

Killingsworth maintains the indictment is nevertheless defective because its language does 

not allege that he intended to threaten law enforcement officers. He argues his posts are not threats, 

but rather are “statements of opinion not subject to prosecution.” CA6 R. 21, Appellant Br., at 14. 

Killingsworth points to Watts v. United States, 394 U.S. 705 (1969), in which an 18-year-old stated 

at a public rally, during a discussion of police brutality, that

They always holler at us to get an education. And now I have already received my 

draft classification as 1-A and I have got to report for my physical this Monday 

coming. I am not going. If they ever make me carry a rifle the first man I want to 

get in my sights is [President Lyndon B. Johnson]. They are not going to make me 

kill my black brothers.

Watts, 394 U.S. at 706. In Watts, the Supreme Court held that, “[t]aken in context, and regarding 

the expressly conditional nature of the statement and the reaction of the listeners,” the statement 

was not a true threat against the President’s life and the conviction could not stand.2 Id. at 708. 

Killingsworth argues his language, like the defendant’s in Watts, is political hyperbole at a time of 

social unrest when the black community felt frustration with another unarmed black man dying at 

the hands of the police without consequences for the officers. He asserts that his language merely 

constituted a “vehement, caustic, and sometimes unpleasantly sharp attack[] on government and 

public officials.” CA6 R. 21, Appellant Br., at 18 (citing Watts, 394 U.S. at 708).

Unlike the language in Watts, Killingsworth’s statements lacked the word “if” and were 

not conditional. Moreover, Killingsworth’s argument is contrary to Supreme Court and Sixth 

2 The defendant in Watts was convicted of violating a 1917 statute that prohibited “any person 

from knowingly and willfully making any threat to take the life of or to inflict bodily harm upon 

the President of the United States.” 394 U.S. at 705 (internal quotation marks omitted).
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Circuit precedent regarding an indictment’s sufficiency in alleging a defendant’s intent under 

§ 875(c). His argument that his statements are expressions of political opinion, not threats, does 

not render the indictment legally insufficient. In Elonis, the Supreme Court explained “the mental 

state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the

purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.” 

Elonis, 575 U.S. at 740. The Sixth Circuit has held that “an indictment, when read in its entirety, 

can allege a defendant’s intent element by way of descriptions of defendant’s actions—all of which 

can imply defendant’s requisite mental state for every element of the crime.” Howard, 947 F.3d 

at 944.

The government bears the burden at trial of proving that a threat is a “true threat.” See 

Howard, 947 F.3d at 947. At the indictment stage, however, the government’s obligation is simply 

to directly set forth each element necessary to constitute the offense intended to be punished. 

Hamling v. United States, 418 U.S. 87, 117 (1974). Here, the indictment specifically alleges 

Killingsworth knowingly and willfully transmitted a communication threatening to kill police 

officers, and this is sufficient. A reasonable reader of the indictment could conclude that 

Killingsworth “willfully and knowingly” transmitted the Facebook posts listed in the indictment 

“for the purpose of issuing a threat, or with the knowledge that the [posts would] be viewed as a 

threat.” Elonis, 575 U.S. at 740. Accordingly, the indictment against Killingsworth sufficiently 

contains each element necessary to constitute an offense under 18 U.S.C § 875(c), including the 

intent requirement.

Killingsworth next argues the indictment should have been dismissed because it violated 

his right to free speech under the First Amendment. He acknowledges the First Amendment does 

not protect “true threats,” but argues the district court erred in holding that whether his statements 
No. 21-3028, United States v. Killingsworth

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constitute true threats is a factual issue properly determined by the jury. Killingsworth asserts the 

posts underlying the indictment were “impulsive statements of political alienation which are 

protected by the First Amendment.” CA6 R. 21, Appellant Br., at 21. He argues that when 

underlying “facts are found that establish the violation of a statute, the protection against 

conviction afforded by the First Amendment is a matter of law” requiring judicial determination. 

CA6 R. 21, Appellant Br., at 20 (quoting Dennis v. United States, 341 U.S. 494, 513 (1951)). But, 

unlike in Dennis, no factfinder had yet made any factual determinations in Killingsworth’s case.

The district court noted the parties submitted arguments about whether Killingsworth’s 

statements were true threats or were political hyperbole protected by the First Amendment, but it 

did not fully address the arguments, holding that Killingsworth’s intent behind the statements was 

a “factual disagreement.” DE 24, Mem. Op. and Order, Page ID 258. The court stated that it could 

not “opine, analyze, or further discuss” whether the statements constituted true threats because 

“factual issues remain the duty of the jury.” Id. The district court held that, regardless of whether 

Killingsworth’s Facebook posts constituted true threats, the indictment was legally sufficient 

because it alleged the speech was a threat in violation of 18 U.S.C.§ 875(c) and alleged 

Killingsworth possessed the requisite intent that the speech be threatening.

It is true that “the First Amendment protects a significant amount of verbal criticism and 

challenge directed at police officers.” Greene v. Barber, 310 F.3d 889, 896 (6th Cir. 2002)

(quoting Houston v. Hill, 482 U.S. 451, 461 (1986)). However, the First Amendment does not 

protect “true threats,” a category that includes “those statements where the speaker means to 

communicate a serious expression of an intent to commit an act of unlawful violence to a particular 

individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). In Elonis, the 

Supreme Court recognized that “to be a true threat, the defendant must subjectively intend his 
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communication to be threatening.” Doggart, 906 F.3d at 512 (citing Elonis, 575 U.S. at 737–38). 

Here, Killingsworth’s intent in sending these messages is subject to multiple interpretations, as 

illustrated by the parties’ arguments: Killingsworth submits that his statements, in the context of 

police brutality against the black community, constitute expressions of political frustration. The 

government argues his statements are not political hyperbole, but an authentic threat of violence 

against police officers.

The district court correctly concluded that, at the juncture of a motion to dismiss the 

indictment, determining Killingsworth’s subjective intent behind his communications was a 

question of fact for the jury to determine. Killingsworth argues this is not a factual determination 

because whether his posts are protected by the First Amendment is a matter of law because they 

provide the basis for the violation of 18 U.S.C § 875(c). But, as discussed above, when a district 

court assesses the sufficiency of an indictment, it “accept[s] the factual allegations as true.” 

McAuliffe, 490 F.3d at 531. The government would have been required to prove Killingsworth’s 

specific intent to threaten to the jury, who would have made the factual determination. At this 

stage, the district court’s analysis correctly focused on the legal sufficiency of the indictment and 

properly concluded that because the indictment alleged Killingsworth’s speech was a threat in 

violation of 18 U.S.C. § 875(c) and alleged he possessed the requisite subjective intent that the 

speech be threatening, dismissal was not warranted.

IV

The indictment tracked the language of 18 U.S.C § 875(c) and alleged Edward 

Killingsworth intended his messages as a threat. It detailed each element of the charged offense 

and was sufficiently specific to enable Killingsworth to plead double jeopardy in a subsequent 

proceeding. The actual determination of whether he intended the message as a threat is a factual 
No. 21-3028, United States v. Killingsworth

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determination for a jury. Therefore, the district court properly denied Killingsworth’s motion to 

dismiss the indictment. We affirm.