United States v. Smith

• Citation: 723 F.3d 510
• Decision Date: 25 July 2013
• Docket Number: No. 12–7301.,12–7301.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Terrence SMITH, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

723 F.3d 510

UNITED STATES of America, Plaintiff–Appellee,

v.Terrence SMITH, Defendant–Appellant.

No. 12–7301.

United States Court of Appeals, Fourth Circuit.

Argued: May 14, 2013.

Decided: July 25, 2013.

ARGUED:C. Justin Brown, Law Office of C. Justin Brown, Baltimore, Maryland, for Appellant. Albert David Copperthite, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF:Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Chief Judge TRAXLER and Judge FLOYD joined.

NIEMEYER, Circuit Judge:

In his § 2255 motion, filed in the district court, Terrence Smith challenged the jury instruction given in his underlying trial for witness tampering as defined in 18 U.S.C. § 1512(a). Specifically, Smith argued that the instruction misstated the federal nexus required for the offense, given the Supreme Court's decision in Fowler v. United States, –––U.S. ––––, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011). Fowler, which was handed down after Smith's conviction became final, abrogated Fourth Circuit precedent on which the jury instruction was based. The district court concluded that the instruction did indeed violate Fowler and that Fowler created a new substantive right that should be afforded to Smith. But it found that the effect or influence of the error was harmless and therefore denied Smith's § 2255 motion.

In reviewing the district court's order, we apply to this § 2255 case the same harmless-error standard that we do in § 2254 cases, as articulated in Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (holding that error is harmless if it did not have a “substantial and injurious effect or influence in determining the jury's verdict” (internal quotation marks omitted)), rather than the standard of review for harmless error on direct appeal, see Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (holding that on direct appeal, an error must be harmless beyond a reasonable doubt). Under Brecht, we conclude that the instructional error did not have a substantial and injurious effect or influence in determining the jury's verdict. We therefore find that the error was harmless and accordingly affirm the district court's order denying Smith's § 2255 motion.

I

On January 15, 2005, members of the Bloods gang in the Harwood neighborhood of Baltimore, Maryland, firebombed the home of Edna McAbier, who was the president of the Harwood Community Association. On the night of the attack, Terrence Smith, the leader of the gang, called a meeting of the gang's membership at his house and told them that he wanted to firebomb McAbier's house in retaliation for her contacting the police about drug activity in the neighborhood. McAbier had indeed been contacting the Baltimore City Police Department “[p]ractically every day” by telephone or email about drug-related activity in her neighborhood and had provided the Department with a detailed log of criminal activity in the community, complete with names and addresses of suspected individuals. Following the gang's meeting, members carried out the attack, using gasoline-filled beer bottles.

Smith and other gang members were indicted and convicted for this conduct. Among the five counts on which Smith was convicted, three involved witness tampering: two substantive counts for violations of 18 U.S.C. § 1512(a)(1)(C) and 18 U.S.C. § 1512(a)(2)(C), respectively, and one conspiracy count.

At the close of the government's case, Smith filed a motion for a judgment of acquittal, arguing that the government had failed to establish the federal nexus required to convict him under the witness tampering statutes because the government failed to show that McAbier had contacted federal authorities or was likely to do so.^* The government argued that the federal nexus was established as a matter of law because drug trafficking, about which McAbier complained, was a federal offense. After an extended discussion, the district court denied Smith's motion for acquittal but granted a motion by the government to reopen its case to present additional evidence regarding the likelihood that McAbier's complaints would have been referred to federal authorities.

Special Agent Robert Brisolari of the Drug Enforcement Administration (“DEA”) then testified that the Baltimore City Police Department was the “biggest source” of referrals for drug cases to his field office and that it contributed the most officers to local DEA task force groups. He stated that six of the nine task force groups in the area were joint task forces, “meaning that they're comprised of [federal] agents as well as sworn task force officers from other police departments.” He also explained that the DEA accepts cases that “are considered street level trafficking,” especially when “street level drug organizations [are] involved in crack cocaine, heroin or cocaine.”

At the close of the evidence, the district court instructed the jury that to establish the necessary mens rea for witness tampering, the government must prove that Smith “acted knowingly and with the unlawful intent to induce Mrs. McAbier to hinder, delay, or prevent the communication of information to a law enforcement officer of the United States.” The court continued:

In order to satisfy [the intent] element, it is not necessary for the government to prove that the defendant knew he was breaking any particular criminal law nor need the government prove that the defendant knew that the law enforcement officer is a federal law enforcement officer. What the government must prove is that there was a possibility or likelihood that the information being provided by Ms. McAbier about drug activities would be communicated to a law enforcement officer of the United States, irrespective of the governmental authority represented by the officers to whom she personally communicated information.

(Emphasis added).

The jury convicted Smith on all counts, and the district court sentenced him to 960 months' imprisonment. On direct appeal, Smith argued that the district court misinstructed the jury on the witness tampering counts, and we rejected Smith's arguments, finding that the federal nexus required by the offense was satisfied because “[a] portion of the potential investigation that [the defendant] sought to prevent ‘happened to be federal’ because drug trafficking is a federal offense.” United States v. Harris, 498 F.3d 278, 286 (4th Cir.2007). We explained further, “So long as the information the defendant [sought] to suppress actually relate[d] to the commission or possible commission of a federal offense, the federal nexus requirement [was] established.” Id. Responding to Smith's argument that the government failed to prove the “ ‘possibility’ that the information that McAbier would have provided would have been communicated to federal authorities,” we stated that “the federal nature of the offense at issue at least created the possibility that she might have decided in the future to contact federal authorities.” Id. at 286 n. 5. Although we affirmed Smith's convictions, we remanded the case to correct a sentencing error.

At resentencing, Smith again received a 960–month sentence, and we thereafter affirmed. United States v. Smith, 344 Fed.Appx. 856 (4th Cir.2009) (per curiam). The Supreme Court denied Smith's petition for a writ of certiorari. Smith v. United States, 559 U.S. 1115, 130 S.Ct. 2417, 176 L.Ed.2d 940 (2010).

On April 12, 2011, Smith filed a motion under 28 U.S.C. § 2255, raising numerous issues regarding the effectiveness of his trial counsel. Shortly thereafter, the Supreme Court decided Fowler v. United States, –––U.S. ––––, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011) (rejecting the “possibility” of a federal communication as the appropriate standard for satisfying the federal nexus and holding that the government had to prove a “reasonable likelihood” of such communication). Smith then filed a supplement to his § 2255 motion, challenging the witness tampering instruction at his trial, inasmuch as the instruction allowed the jury to find that the defendant interfered with the mere “possibility” of the witness' communication to federal authorities.

The district court acknowledged the applicability of Fowler 's holding to Smith's trial but found that the instructional error was harmless. It noted that “the evidence at trial established that federal and local authorities worked closely with one another through DEA task forces and that the task forces targeted the very type of criminal activity—violent street drug trafficking.” The court concluded that it was “virtually inevitable that the information provided by Ms. McAbier would eventually be communicated to federal authorities and that federal prosecution would ensue.”

Smith filed a timely notice of appeal, and the district court granted his motion for a certificate of appealability.

II

In instructing the jury at the underlying trial on federal witness tampering, the district court stated, as relevant to the required federal nexus of the conduct, that the government must prove that “there was a possibility or likelihood that the information being provided by Ms. McAbier about drug activities would be communicated to a law enforcement officer of the United States.” The instruction given was consistent with then-existing Fourth Circuit precedent, as we recognized on Smith's direct appeal. See United States v. Harris, 498 F.3d 278, 284–86 (4th Cir.2007).

After Smith's conviction became final and he had filed his § 2255 motion, the Supreme Court handed down its decision in Fowler v. United States, ––– U.S. ––––, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), in effect overruling Harris.Fowler held that the witness tampering statute, 18 U.S.C. § 1512, requires the government to show a ...