563 U.S. 668 (2011), 10-5443, Fowler v. United States

Docket Nº:10-5443
Citation:563 U.S. 668, 131 S.Ct. 2045, 179 L.Ed.2d 1099, 79 U.S.L.W. 4375, 22 Fla.L.Weekly Fed. S 1044
Opinion Judge:Breyer, Justice
Party Name:CHARLES ANDREW FOWLER, AKA MAN, PETITIONER v. UNITED STATES
Attorney:Stephen M. Crawford, Tampa, FL, for petitioner. Sarah E. Harrington argued the cause for respondent.
Judge Panel:BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, SOTOMAYOR, and KAGAN, J J., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 678. Alito, J., filed a dissenting opinion, in which GINSBURG, J., joined, post, p. 685. SCALIA, Just...
Case Date:May 26, 2011
Court:United States Supreme Court
 
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Page ___

___ U.S. ___ (2011)

131 S.Ct. 2045

CHARLES ANDREW FOWLER, AKA MAN, PETITIONER

v.

UNITED STATES

No. 10-5443

United States Supreme Court

May 26, 2011

Argued March 29, 2011

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

[131 S.Ct. 2046] Syllabus[*]

While preparing to rob a bank, petitioner Fowler and others were dis­covered by a local police officer, whom Fowler killed. Fowler was convicted of violating the federal witness tampering statute, which makes it a crime "to kill another person, with intent to . . . prevent the communication by any person to a [Federal] law enforcement offi­cer" of "information relating to the . . . possible commission of a Fed­eral offense, " 18 U.S.C. §1512(a)(1)(C). Rejecting Fowler's argument that the evidence was insufficient to show that he had killed the offi­cer intending to prevent him from communicating with a federal offi­cer, the Eleventh Circuit held that a showing of a possible or poten­tial communication to federal authorities was sufficient.

Held:

In such circumstances, the Government must establish a §1512(a)(1)(C) [131 S.Ct. 2047] violation by showing there was a reasonable likelihood that a relevant communication would have been made to a federal of­ficer. Pp. 2049-2053.

(a) In a §1512(a)(1)(C) prosecution, "no state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an . . . employee of the Federal Government, " §1512(g)(2). Thus, the Government must prove (1) a killing, (2) committed with a particular intent, namely, an intent (a) to "prevent" a "communica­tion" (b) about "the commission or possible commission of a Federal offense" (c) to a federal "law enforcement officer." P. 2049.

(b) Nothing in §1512(a)(1)(C)'s language limits it to instances in which the defendant has some identifiable law enforcement officers particularly in mind. Any such limitation would conflict with the statute's basic purpose. Witness tampering may prove more serious (and more effective) when the crime takes place before the victim has engaged in any communication at all with officers—at a time when the precise communication and nature of the officer who may receive it are not yet known. Hence, the statute covers a defendant, like pe­titioner, who kills with intent to prevent communication with any and all officers. The Court must consequently decide what, if any­thing, the Government must show about the likelihood of a hypo­thetical communication with a federal officer where the defendant did not think specifically about any particular communication or its re­cipient. Pp. 2049-2051.

(c) To determine what the Government must prove in such in­stances, the Court looks to the dictionary definition of the statutory word "prevent, " which means rendering an "intended, " "possible, " or "likely" event impractical or impossible by anticipatory action. No one suggests that the word "intended" sets forth the appropriate standard here. The Government and the Eleventh Circuit would rest their standard on the word "possible." But that standard would eliminate the independent force of the statutory "federal officer" re­quirement, and would extend the statute beyond its intended, basi­cally federal, scope. Fashioning a standard based on the word "likely" is consistent with the statute's language and objectives. Thus, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal officers only if there is a reasonable likelihood under the circumstances that, in the absence of the killing, at least one of the relevant communica­tions would have been made to a federal officer. The Government need not show that such a communication, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not. But it must show that the likelihood of communica­tion to a federal officer was more than remote, outlandish, or hypo­thetical. Pp. 2051 - 2053.

(d) Because Fowler's argument that the evidence is insufficient to satisfy a "reasonable likelihood" standard was not raised at trial, the lower courts must determine whether, and how, the standard applies in this case. P. 2053.

603 F.3d 883, vacated and remanded.

BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, SOTOMAYOR, and KAGAN, J J., joined. SCALIA, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which GINSBURG, J., joined.

Stephen M. Crawford, Tampa, FL, for petitioner.

[131 S.Ct. 2048] Sarah E. Harrington, Washington, DC, for respondent.

Kenneth S. Siegel, Counsel of Record, Tampa, FL, Stephen M. Crawford, Tampa, FL, for Petitioner.

Neal Kumar Katyal, Acting Solicitor General, Counsel of Record, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Kirby A. Heller, Attorney, Department of Justice, Washington, DC, for United States.

OPINION

Breyer, Justice

The federal witness tampering statute makes it a crime "to kill another person, with intent to . . . prevent the communication by any person to a law enforcement officer . . . of the United States" of "information relating to the . . . possible commission of a Federal offense." 18 U.S.C. §1512(a)(1)(C). We focus on instances where a defendant killed a person with an intent to prevent that person from communicating with law enforcement officers in general but where the defendant did not have federal law en­forcement officers (or any specific individuals) particularly in mind. The question before us concerns what, if any­thing, the Government must show beyond this broad in­definite intent in order to show that the defendant more particularly intended to prevent communication with federal officers as well. We hold that, in such circum­stances, the Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer.

I

In the early morning hours of March 3, 1998, Charles Fowler and several other men prepared to rob a Florida bank. They met in a cemetery, put on black clothes and gloves, began to drink and use drugs, and discussed the proposed crime. Shortly before daybreak a local police officer, Todd Horner, came upon the group. He pulled out his gun and asked the men to identify themselves. Fowler and some of the others managed to overcome Horner and take his gun. After Horner spoke to one of the men by name, Fowler said, "Now we can't walk away from this thing." App. 38 (internal quotation marks omitted). And he shot and killed Horner.

Federal authorities charged Fowler with violating the federal witness tampering statute. He was convicted. On appeal, Fowler argued that the evidence was insufficient to show that he had killed Horner intending to prevent Horner from communicating with a federal officer. The Eleventh Circuit disagreed. It held that a showing of a "possible or potential communication to federal authori­ties" was sufficient. 603 F.3d 883, 888 (2010).

Fowler sought certiorari. And because the Circuits have disagreed about this last-mentioned matter, we granted Fowler's petition for certiorari. Compare United States v. Harris, 498 F.3d 278, 286 (C.A.4 2007) ("So long as the information the defendant seeks to suppress actually relates to the commission or possible commission of a federal offense, the federal nexus requirement is estab­lished"), with United States v. Lopez, 372 F.3d 86, 91–92 (C.A.2 2004), vacated and remanded on other grounds, 544 U.S. 902, 125 S.Ct. 1613, 161 L.Ed.2d 273 (2005) (requiring Government to show federal crime along with "'additional appropriate evidence'" that "the victim plausibly might have [131 S.Ct. 2049] turned to federal offi­cials"); see also United States v. Bell, 113 F.3d 1345, 1349 (C.A.3 1997); United States v. Causey, 185 F.3d 407, 422– 423 (C.A.5 1999); United States v. Wright, 536 F.3d 819, 824–825 (C.A.8 2008).

II

The federal witness tampering statute in relevant part forbids the "kill[ing] or attempt[ed] kill[ing]" of "another person" with a certain "intent, " namely, an

"intent to . . . prevent the communication by any per­son to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . ." 18 U.S.C. §1512(a)(1)(C).

A related subsection says that in a prosecution for this offense

"no state of mind need be proved with respect to the circumstance . . . that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government . . . ." §1512(g)(2).

This language makes clear that in a prosecution the Gov­ernment must prove (1) a killing or attempted killing, (2) committed with a particular intent, namely, an intent (a) to "prevent" a "communication" (b) about "the commission or possible commission of a Federal offense" (c) to a federal "law enforcement officer or judge."

The question here is how this language applies when a defendant (1) kills a victim, (2) with an intent (a) to pre­vent a communication (b) about the commission or possi­ble commission of a federal offense but (c) to law enforce­ment officers in general rather than to some specific law enforcement officer or set of officers which the defendant has in mind. This kind of circumstance is not necessarily rare, as the facts here illustrate. Fowler (we here assume) was not thinking specifically about federal officers, but he would nonetheless have...

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