Argument analysis: The Court debates intent versus reasonable possibilities

On Tuesday, the Supreme Court heard argument in Fowler v. United States, No. 10-5443. Fowler’s case addresses 18 U.S.C. § 1512(a)(1)(C), the federal witness protection murder statute under which Fowler was convicted. This statute makes murder a federal offense if the defendant kills a person “with 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. § 1515 defines “law enforcement officer” to mean “an officer or employee of the United States.”

Fowler murdered a local police officer after the officer discovered Fowler and other individuals in a cemetery planning a bank robbery and engaging in other criminal offenses. Fowler concedes that the evidence proved he killed the officer after the officer discovered him committing federal offenses. Fowler, however, challenges the sufficiency of the evidence in proving that these federal offenses would have been communicated to a federal officer.

Arguing on behalf of Fowler, Stephen Crawford began his argument by asserting that the government needed to prove a “reasonable likelihood” that, absent the murder, the victim would have communicated the federal offense to a federal officer. This standard, Crawford argued, appropriately would narrow the scope of federal authority to prosecute murder, and would resolve inconsistency in the circuit courts.

Justice Elena Kagan quickly noted the potential inconsistency in Crawford’s own argument: “[s]ometimes you say ‘likely’; sometimes you say ‘plausible’; Which … is your standard?” As Crawford responded, Justice Samuel Alito reframed the issue altogether, asking: “The statute speaks of the intent of the defendant. The defendant must intend to prevent the communication of information about a federal offense … Where do you get this question of whether it’s possible or likely or certain or whatever that the information will eventually get to a Federal law enforcement officer? Isn’t it—isn’t it simply what is in mind the mind of the defendant?” Justice Alito offered hypotheticals to illustrate the point of this question. Justice Antonin Scalia joined by observing, “What does [the statute] have to do with reasonable likelihood that it would occur? I mean, he either intends it or he doesn’t intend it.” Justice Scalia then inquired incredulously, “You think a reasonable likelihood must be proved beyond a reasonable doubt?”

Crawford stuck to his guns, arguing that the statute only requires intent to prevent the communication of a federal offense. The statute, in another subsection, “takes the mens rea off the table with respect to whether or not this person is a law enforcement official.” As to this federal officer element, Crawford contended, “the jury has to determine a future act” that the murder prevented. Several of the Justices seemed unsure of this interpretation of the statute, although Justices Kagan, Stephen Breyer, and even Scalia threw Crawford one or two lifelines.

As Crawford concluded, Justice Sonia Sotomayor inquired whether Fowler’s unpreserved sufficiency argument could withstand “plain error” review. Crawford observed, “the trial lawyer did a poor job in articulating the reasons for the judgment of acquittal.” Justice Breyer followed, “I take it you were not the trial lawyer?” Prompting laughter, Crawford responded, “Well, unfortunately, Judge, I was.” Later, Justice Breyer offered, “[Y]ou’ve made a fine argument here, even if you didn’t make it.”

Arguing on behalf of the United States, Assistant to the Solicitor General Sarah Harrington identified the disputed federal officer element as a “federal nexus element” that could be proved in either of two ways:  first, when the government proves that the defendant actually intended to prevent the communication from reaching a federal officer; and, second, when the government proves that “there’s a reasonable possibility that the information would have been communicated to a Federal officer if the murder had not occurred,” even if the defendant did not intend it.

Justice Scalia characterized this second theory as “weird” to submit to a jury—the prediction of a future act that the defendant’s murder may have prevented. Justices Alito and Anthony Kennedy expressed similar concerns. Justice Scalia suggested a simpler construction: “Isn’t it enough to kill the person to prevent disclosure of the crime that the crime was a federal crime? Why isn’t that the test?” When Harrington acknowledged that the government “could live” with this standard, Justice Scalia replied, “Oh, the government could more than live with it. The government could wallow in it.” Harrington demurred, however, explaining that “that is a more aggressive reading than the reading we’re offering.”

Justices Kagan, Alito, and Sotomayor tested the government’s reasonable possibility standard with hypotheticals probing when the evidence might fail to meet this standard, including whether this standard could turn on the odd circumstance of whether local officials liked to cooperate with federal officials. Justice Breyer circled this discussion of unrealized communications back to the defendant’s intent under the statute, asking whether the reasonable possibility test might limit the defendant’s intent in murdering a witness “to cover odd occurrences but not outlandish occurrences.”

As a safety net, Harrington argued that the government had proved Fowler’s guilt even under his construction of the statute. Addressing this premise, Justice Breyer on rebuttal asked Crawford, “are you going to go back and argue that there was not one piece of evidence whatsoever that there was any reasonable likelihood that the Feds would investigate your case?” Crawford responded, “We would argue that … the record is insufficient to establish reasonable likelihood of Federal involvement. And I can’t put it any better than that.”

As this conclusion suggested, the argument was difficult to read as not favoring the government. The Court, however, left open a number of ways it might read this statute or the record to rule for the government.