Fowler v. United States

Decision Date26 May 2011
Docket NumberNo. 10–5443.,10–5443.
Parties Charles Andrew FOWLER, aka Man, Petitioner, v. UNITED STATES.
CourtU.S. Supreme Court

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

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.

Justice BREYER delivered the opinion of the Court.

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 in-definite 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 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 wanted to prevent communication with federal officers from taking place (had he considered the matter).

III

When the defendant has in mind a particular individual or a particular set of individuals with whom he fears the victim might communicate, the application of the statute is relatively clear. For instance, if a defendant kills a victim with the intent of preventing the victim from communicating with a particular individual, say John Smith, who the defendant knows is a federal law enforcement officer, the statute fits like a glove. If a defendant kills a victim with the intent of preventing the victim from communicating with Sam Smith, who is in fact (but who the defendant does not know is) a federal law enforcement officer, the statute still fits, for it specifically says that "no state of mind need be proved" with respect to this last-mentioned circumstance.

Nothing in the statutory language, however, limits it to these kinds of instances, instances in which the defendant has some law enforcement officer or set of officers, or other identifiable individuals, particularly in mind. Moreover, 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 law enforcement officers—at a time when the precise communication and nature of the officer who may receive it are not yet known. Cf., e.g., S.Rep. No. 97–532, pp. 14, 15 (1982), U.S.Code Cong. & Admin.News 1982, pp. 2515, 2520–21 (statute applies "to offenses against witnesses, victims, or informants which occur before the witness testifies or the informant communicates with law enforcement officers"); id. , at 19 (witness "[i]ntimidation offenses are particularly insidious and do violence to traditional notions of justice because no one can be convicted of a crime which is not reported. [ Section 1512 ] reaches intimidation offenses committed before a crime is reported to the appropriate authorities"). Hence the statute covers a defendant who kills with intent to prevent communication with law enforcement officers generally (i.e., with any and all law enforcement officers). And we must consequently decide what, if anything, the Government must show about the likelihood of a hypothetical communication with a federal law enforcement officer in circumstances where the defendant did not think specifically about any particular communication or its recipient.

In these circumstances, the application of the statute is not as simple. We cannot determine whether the individual the defendant had in mind is in fact a federal officer, because the defendant did not have a particular individual in mind. And we cannot insist that the defendant have had some general thought about federal officers in mind because the statute says that "no state of mind need be proved" in respect to the federal nature of the communication's recipient. § 1512(g)(2). What, then, must the Government show to prove that such a defendant intended to prevent communications to federal officers?

We begin with two basic propositions. First, in our view, the Government need not show beyond a reasonable doubt (or even that it is more likely than not ) that the hypothetical communication would have been to a federal officer. No Circuit has adopted this interpretation, and no party argues for it here. But see post, at 2053 – 2054 (SCALIA, J., concurring in judgment). And for good reason: The relevant question concerns the defendant's intent. The Government will already have shown beyond a reasonable doubt that the defendant possessed the relevant broad indefinite intent, namely, the intent to prevent the victim from communicating with (unspecified) law enforcement officers. And one can possess an intent (i.e., one can act in order to bring about a certain state of affairs) even if there is considerable doubt whether the event that the intent contemplates will in fact occur. One can, for example, put up shutters with the intent of protecting the furniture from hurricane damage even if there is considerable doubt that any hurricane will actually occur. One can drive to Fenway Park with the intent of seeing the Red Sox play that afternoon even if a mistake about the date means the stadium is empty. One can blow up a bridge with the intent of stopping an advancing army, even if the army advances regardless, along a different route. And, similarly, a defendant can kill a victim with an intent to prevent the victim from communicating with federal law enforcement officers even if there is some considerable doubt that any such communication would otherwise have taken place.

But, second, the Government must show more...

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