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in favor of an objective test, stating that “section 871 was intended to criminalize the mere utterance of a true threat, rather than the defendant’s intention to carry out the threat.”!? 951 F.2d at 549. Accordingly, Patillo is not good authority in this circuit. Moreover, § 871 requires only willful conduct to establish mens rea, while § 115(a)(1)B) requires the specific intent to retaliate. Congress deliberately set a lower threshold for § 871 prosecutions, owing to the unique position of the President. See Kosma, 951 F.2d at 557. Under § 115(a)(1)(B), Congress did not, preferring to specify in detail the types of intent it wished to criminalize. This militates strongly against applying Patillo, Kosma, or any § 871 case to the interpretation of intent under § 115(a)(1)(B). Thus, I conclude that intent to retaliate within the meaning of § 115(a)(1)(B) can exist only when the speaker intends that his threat be communicated to its object. In sum, it is the conveyance of the threat to the victim--and the fear and apprehension such a communication carries with it--which constitutes the retaliation.” | Accordingly, because there is no evidence that Fenton intended his threat to be communicated to Congressman Murtha, he could not have had an intent to retaliate within the meaning of § 115. Fenton’s conviction cannot stand, and an appropriate order follows. The Kosma court did not cite or discuss Patillo. If the threat is not communicated, but is carried out, prosecution will lie under 18 U.S.C. § 1114 in any event. If it is neither communicated nor carried out, the putative victim has suffered no harm that could amount to retaliation as that word is normally used. 18 AO 72A (Rev. 8/82)