Oral argument: Mar. 29, 2011
Appealed from: United States Court of Appeals for the Eleventh Circuit (Apr. 14, 2010)
FEDERAL TAMPERING LAW, FEDERALISM, CRIMINAL LAW, FEDERAL CRIMINAL JURISDICTION
Petitioner Charles Fowler murdered a local police officer after the officer approached him and his associates, who were preparing to rob a bank. Fowler was convicted under 18 U.S.C. § 1512(a)(1)(C), which makes it a federal crime to murder a witness to a federal crime with the intent of preventing that witness from communicating with federal law enforcement officials. Fowler challenged his conviction, arguing that the government did not show with sufficient certainty that the officer he murdered was reasonably likely to communicate with federal authorities, had he not been killed. Fowler asserts that failing to require the government to show at least a reasonable likelihood of such communication is inconsistent with the statutory language, and would disrupt the balance between state and federal criminal jurisdiction. The United States responds that requiring such a standard would undermine the statute’s purpose of maintaining the integrity of the federal justice system, and that allowing a lower standard will not disrupt the state-federal balance. The Supreme Court’s decision will clarify the standard the government must meet in prosecuting Section 1512(a)(1)(C) violations, and resolve uncertainty among the circuit courts on this point.
Whether a defendant may be convicted of murder under 18 U.S.C. § 1512(a)(1)(C) without proof that information regarding a possible federal crime would have been transferred from the victim to federal law enforcement officers or judges.
Whether the government must only prove that the transfer of information regarding the commission of a federal crime to federal law enforcement officers or judges was "possible” absent the homicide; or whether some higher level of certainty is required under 18 U.S.C. § 1512(a)(1)(C).
In March 1998, Haines City Police Officer Christopher Todd Horner was found dead in a Florida cemetery with a bullet in the back of his head. See United States v. Fowler, 603 F.3d 883, 884–85 (11th Cir. 2010). The events leading to Horner’s death began when Christopher Gamble, Andre Paige, and Jeffrey Bouyie recruited Petitioner Charles Fowler and Robert Winston to help them rob a NationsBank the next morning. See id. at 884. In preparation for the robbery, the five obtained gloves, masks, and guns, and then drove to the Oakland Cemetery in a stolen Oldsmobile. See id. The cemetery was known as a popular place for leaving stolen cars. See id. at 884–85. After planning the robbery, the men put on black clothing and began consuming alcohol and drugs while listening to music throughout the night. See id. at 884. Shortly before daybreak, Fowler left the car to use cocaine. See id.
While Fowler was away, Officer Horner drove toward the stolen car and called the police dispatcher to report that he was about to investigate a suspicious vehicle. See Fowler, 603 F.3d at 884–85. Approaching the group of men in the car, Officer Horner instructed them to remain still. See id. at 885. According to Gamble’s testimony at trial, Horner then pulled out his gun and told the men to give him their names so that he could check for outstanding warrants. See id.
Around that time, Fowler appeared behind Horner, and Gamble began talking to the officer to distract him as Fowler crept closer. See Fowler, 603 F.3d at 885. Fowler then grabbed the officer’s gun and gained control of it with help from Gamble, Paige, and Winston. See id. At trial, Gamble testified that the men had jumped Horner because “[h]e knowed [sic] that something ain’t right, and he knowed [sic] before that I was robbing.” See id.
At some point after the scuffle, Officer Horner asked Gamble, “Chris, why are you doing this?” See Fowler, 603 F.3d at 885. According to Gamble, the rest of the group lost control upon hearing Horner call Gamble by his first name. See id. Fowler then told Horner to get on his knees. See id. Gamble testified that as the men were deliberating what to do, Gamble reminded Fowler that he did not know the names of the others in the group. See id. During their conversation, Bouyie shouted, “kill that cracker,” and Fowler shot Horner in the head. See id. The police launched an investigation, but were unable to determine who fired the gun. See Brief for Petitioner, Charles Fowler at 3–4.
While serving a sentence for an unrelated offense, Gamble called officials in March 2002 to inform them that Fowler had shot Horner. See Fowler, 603 F.3d at 885. Gamble eventually received a life sentence with a consecutive sentence of 107 years’ imprisonment, after pleading guilty to other federal crimes. See id.
In 2007, a jury in the United States District Court for the Middle District of Florida convicted Fowler under 18 U.S.C. § 1512(a)(1)(C) for murdering Officer Horner with the intent to prevent him from communicating information about a federal offense—in this case, bank robbery, conspiracy to commit robbery, and illegal possession of firearms and drugs—to a federal law enforcement officer or judge. See Fowler, 603 F.3d at 884–886 n.1.
Fowler challenged his federal murder conviction in the Eleventh Circuit Court of Appeals. See Fowler, 603 F.3d at 884. On April 14, 2010, the Eleventh Circuit affirmed the district court’s decision, holding that the government had presented enough evidence to support Fowler’s conviction. See id. at 888. The Supreme Court of the United States subsequently granted certiorari on November 15, 2010. See Fowler v. United States, 131 S. Ct. 596 (2010).
Fowler argues that the government failed to show that the officer he murdered would have likely contacted federal authorities about Fowler’s previous federal crimes, had he not been killed, and that, absent this showing, Fowler should not have been prosecuted under 18 U.S.C. § 1512(a)(1)(C). He contends that adopting the Eleventh Circuit’s interpretation of the statute would be inconsistent with Congress’s intent in passing the statute, and would raise federalism concerns. Respondent, the United States, argues that a reasonable possibility of communication between the murder victim and federal authorities is sufficient to convict a murderer under the statute. Requiring a higher showing, the government argues, would undermine the statute’s purpose of protecting the integrity of the federal justice system.
Giving Effect to Congressional Intent
Fowler argues that the Eleventh Circuit’s interpretation will give the statute a more expansive effect than Congress intended. See Brief for Petitioner, Charles Fowler at 15. He contends that, had Congress sought to require only the possibility of a communication between the victim and federal authorities, it would have included the word “possible” as a modifier of “communication” in the statute’s text. See id. at 16. If the Court were to affirm the Eleventh Circuit’s interpretation, Fowler contends, criminal defendants would be more vulnerable to federal conviction based on pure speculation regarding a murder victim’s intentions. See id. at 17. Fowler urges the Supreme Court to adopt a higher standard, which would require the government to show more than a mere possibility that the murder victim would have communicated information about the commission of a federal crime to federal authorities. See id.
However, the United States contends that requiring prosecutors to show that a victim would have communicated with federal authorities with more certainty than the Eleventh Circuit required would undermine Congress’s purposes in enacting the statute. See Brief for Respondent, United States of America at 21–22. The government points out that the statute was passed as part of the Victim and Witness Protection Act of 1982, which was designed to prevent the loss of evidence that occurs when witnesses to federal crimes are murdered to prevent them from communicating with federal authorities. See id. at 16–17. The United States argues that if the Court adopted Fowler’s interpretation, it would be more difficult for federal prosecutors to convict individuals under Section 1512(a)(1)(C), and that this would undermine Congress’s intention of protecting the integrity of the federal justice system. See id. at 21.
The State-Federal Balance
Fowler argues that allowing the government to convict murderers under the statute without showing a high likelihood that the victim would have communicated with federal authorities would impermissibly expand federal criminal jurisdiction into an area traditionally reserved to state law, the crime of murder. See Brief for Petitioner at 35–36. While the federal government can make certain murders federal crimes if they touch on federal interests, Fowler contends, interpreting this statute to require no more than the possibility that the victim would have communicated with federal authorities provides too tenuous a connection to a federal interest to justify federal jurisdiction. See id. at 37. This tenuous connection, Fowler continues, would allow the federal government to prosecute criminal defendants for crimes that are not related to the goal of protecting the integrity of the federal justice system. See id. at 41. Fowler argues that the state-federal balance would be better preserved if the federal government was required to show more than a mere possibility that a murder victim would have communicated with federal authorities. See id.
In contrast, the United States argues that affirming the Eleventh Circuit’s decision will not alter the state-federal balance. See Brief for Respondent at 33. The United States contends that the statute’s purpose is to ensure the integrity of the federal criminal justice system, and that Congress does have the power to punish crimes that compromise this integrity. See id. Because murdering witnesses to federal crimes can clearly compromise the integrity of the federal justice system, the United States contends, the federal government can punish such murder, even if there was only a reasonable possibility that the victim would have communicated with federal authorities. See id. at 33–34. Adopting the Eleventh Circuit’s broader reading of the statute, the United States urges, would not disrupt federalism. See id. at 36.
A jury found Charles Fowler guilty of murder under 18 U.S.C. § 1512(a)(1)(C), which encompasses homicides committed with the intent of impeding the communication of information about a federal offense to a federal law enforcement officer. On appeal, Fowler argued that the government presented insufficient evidence to prove that Officer Horner—whom Fowler killed—would have communicated information about a federal crime to a federal officer. See United States v. Fowler, 603 F.3d 883, 886 (11th Cir. 2010). The Eleventh Circuit, however, upheld Fowler’s conviction, stating that the government's evidence only had to show that this communication was “possible” See id. at 888. The Supreme Court of the United States will address whether this “possible” level of certainty is appropriate, and whether the evidence was sufficient under the appropriate standard for the jury to find Fowler guilty.
What Level of Certainty Does the Statute Require?
Both parties agree that a mere theoretical or remote possibility that the homicide prevented the transfer of information to federal officers is insufficient. See Brief for Petitioner, Charles Fowler at 17; Brief for Respondent, United States of America at 13. They disagree, however, over how much higher the standard should be; and the statute's plain language offers little assistance because it is silent on the matter.
Fowler argues that the Eleventh Circuit erred by requiring the prosecution to show only a mere “possibility” that the slain officer would have communicated information about a federal crime to federal authorities had he not been killed. See Brief for Petitioner at 14–15. He contends that such a low level of certainty would allow the statute to apply to every homicide committed with intent to hamper communication about a federal offense, regardless of the person to whom that communication would have been made. See id. at 15. Fowler reasons that such a broad interpretation would absorb Congress’s explicit distinction between communication to state and federal officers, rendering it superfluous. See id. He argues that Congress would not have written this distinction into the statute if it had also intended a low level of certainty that would abolish the difference. See id.
The United States disagrees, stating that Fowler failed to read the Eleventh Circuit’s “possible” standard in light of the fact that in the usual criminal trial, the evidence must provide a reasonable basis for any inference the jury makes. See Brief for Respondent at 26. Thus, the United States contends that the Eleventh Circuit’s opinion is properly interpreted as requiring a “reasonable possibility” of federal communication. See id. Accordingly, the United States alleges that, under this reading, the federal and local officer distinction retains meaning. See id. The government must still present sufficient evidence for the jury to conclude that there was a “reasonable possibility” that the homicide prevented information regarding a federal crime from reaching federal officials. See id.
Fowler counters, however, by arguing that the United States and the Eleventh Circuit have disregarded the plain terms of the statute by inserting the word “possible.” See Brief for Petitioner at 16. Moreover, he maintains that the lack of the word “possible” in the statute is augmented by the fact that Congress actually used the word “possible” in connection with the commission of a federal offense. See id. Fowler alleges, therefore, that this is further evidence that Congress intended to exclude any qualifier before communication, and that the Eleventh Circuit acted contrary to Congress’s wishes by judicially inserting the word “possible.” See id. at 16–17. Instead, Fowler posits that the statute requires a higher standard—a “realistic likelihood” that the obstructed communication would have led to federal officials receiving information regarding federal crimes. See id. at 17.
The United States agrees that the statute’s plain language is silent on this matter, but argues that consequently, it is also non-supportive of Fowler’s “realistic likelihood” standard. See Brief for Respondent at 25. The United States contends that, just as Congress did not use the word “possible,” it did not use the words “realistic likelihood.” See id.
Nevertheless, Fowler argues that the level of certainty must be more than a mere possibility of eventual communication with a federal official. See Brief for Petitioner at 24. He cites cases from both the Second and Fifth Circuits, and claims that they require the government to produce evidence that the victim—here the slain police officer—was likely to turn to federal officials. See id. at 17–18. He argues that these decisions focus on the victim’s state of mind, asking whether the victim would have actually or likely communicated or cooperated with federal officials. See id. at 20–21.
The United States contends, however, that insofar as Fowler reads these decisions to require a “realistic likelihood” that the victim’s subjective intent was to communicate with federal officials, his reading is too narrow. See Brief for Respondent at 19–20. Instead, the government argues that because the statute does not define the level of certainty required, one must look beyond the statutory words. See id. at 24. The United States maintains that in most cases the homicide will prevent the communication at issue, resulting in an inherent uncertainty. See id. Finally, the government contends that no justification exists for reading into the statute a “realistic likelihood” requirement based on the victim’s subjective intent. See id. at 22. Rather, the United States argues that a “reasonable possibility” that the slain officer would communicate with federal officials is sufficient. See id. at 24–26.
Fowler counters that a justification does exist: constitutional avoidance. See Brief for Petitioner at 35–36. He contends that the “reasonable possibility” standard is broad, and presents potential constitutional issues that ought to be avoided through narrow construction of the statute. See id. at 36–37. Fowler argues that without a “realistic likelihood” that the information would have been communicated to federal officials, the federal government would be able to use the statute to exercise a general police power—a power that, without specific federal legislation, belongs to the states. See id. at 35, 37. Construing the statute broadly, Fowler alleges, would upset the balance between federal and state criminal jurisdiction in a manner unintended by Congress. See id. at 37.
In response, the United States contends that this constitutional avoidance doctrine is inapplicable here. See Brief for Respondent at 32, 36. While it concedes that murder is generally a state law crime, it argues that the Eleventh Circuit’s construction requiring a “reasonable possibility” of communication with federal officials raises no constitutional concerns. See id. at 33. The United States alleges that Congress was well within its authority under the Necessary and Proper Clause to proscribe murders where a jury finds a “reasonable possibility” that the homicide prevented the transfer of information about a federal offense to federal officials. See id. at 34–35. Moreover, this does not upset the jurisdictional balance between the federal and state governments, because the statute targets only conduct that potentially threatens federal law enforcement. See id. at 36.
Was the Evidence Sufficient?
Fowler alleges that the government presented no evidence tending to show a “realistic likelihood” that Officer Horner would have transferred information to federal officials. See Brief for Petitioner at 33. Fowler contends that there were numerous ways that evidence could have been presented to show a “realistic likelihood” of federal communication, including: that Horner intended to communicate with federal officers; that a federal investigation was underway concerning Horner’s death; or that there were policies or programs in place for Haines City officers to inform federal officers of criminal activity within the city. See id. at 19, 23, 33. Therefore, Fowler contends, the government failed to meet its burden of proof. See id. at 33.
The United States disagrees, arguing that the prosecution met its burden of showing that it was “reasonably possible” that the murder of Officer Horner obstructed the communication of information to federal officials. See Brief for Respondent at 36. The government states that Horner was about to initiate contact with local law enforcement officers when he was killed, and that a jury could conclude that it was “reasonably possible” that this information about federal crimes would reach federal officials. See id. at 37. In support of this prediction, it notes that these local law enforcement officers passed information to federal officials when they later received information implicating Fowler in Horner’s murder. See id. at 39. Indeed, the United States argues that there was sufficient evidence at trial to meet even Fowler’s “realistic likelihood” standard. See id. at 39–40.
In this case, the Supreme Court will determine whether a murder conviction under 18 U.S.C. § 1512(a)(1)(C) can stand if the level of certainty that the victim would have transferred information regarding a possible federal crime to federal law enforcement officers or judges rises to the level of a “reasonable possibility,” rather than a “realistic likelihood.” If the Court agrees with Fowler and requires a “realistic likelihood” standard, then it may be more difficult for federal prosecutors to convict murderers in federal court, and such individuals will be prosecuted in state court. On the other hand, if the Court agrees with the United States, and requires only a “reasonable possibility” standard, then the federal courts will find it easier to exercise jurisdiction to further their interest in protecting potential investigations and prosecutions from witness tampering, but the law may also become easier to use in situations unrelated to this federal interest.
Edited by: Eric Johnson
· American Criminal Law Review, Griffin Finan: Supreme Court Grants Cert in Fowler v. United States (Jan. 15, 2011)
· Crime & Consequences, Kent Scheidegger: A Case of Dubious Federalization Reaches the Supreme Court (Nov. 15, 2010)
· Sentencing Law and Policy: SCOTUS Grants Certiorari on Two Pauper Defendant Criminal Justice Petitions (Nov. 15, 2010)