Opinion analysis: Fowler v. United States

The federal witness tampering statute, 18 U.S.C. § 1512(a)(1)(C), 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.” A related provision, Section 1512(g)(2), provides that no particular state of mind need be proved with respect to the fact that “the law enforcement officer is an officer or employee of the Federal Government.” In other words, the would-be recipient of the communication must be a federal officer, but the defendant need not know that.

The petitioner in this case, Charles Andrew Fowler, killed a local police officer who had discovered him while he was preparing to rob a bank. Although there was evidence that Fowler intended to kill the police officer to prevent him from exposing the robbery scheme, it was not clear that Fowler specifically envisioned that the police officer would inform federal agents of the planned crime. Rather, it appeared that Fowler’s goal was to prevent the officer from informing  law enforcement officials in general. He was convicted under the witness-tampering statute. On appeal, the Eleventh Circuit affirmed, holding that the government needed to show only that a “possible or potential” communication by the witness to federal authorities.

In an opinion by Justice Breyer that was joined by the Chief Justice and Justices Kennedy, Thomas, Sotomayor, and Kagan, the Court vacated and remanded the Eleventh Circuit’s decision.  It held that a showing of a possible or potential communication to federal authorities by the victim was not sufficient for a conviction under the witness-tampering statute. Instead, the statute requires a “reasonable likelihood” that the would-be recipient of the information was a federal official.

In its opinion, the Court begins by noting that the statute must cover an intent to prevent communication with law enforcement officials generally (rather than merely communications with a specific person), because the most serious witness tampering may occur before any communication to specific officials has occurred or been contemplated. Once that general intent is established, the Court explained, the relevant question then becomes what standard the government must meet to show that the would-be recipients of the witness’s information included federal officials.

As an initial matter, the Court rejects both the “reasonable doubt” and “preponderance of the evidence” standards; because the relevant factor is the defendant’s intent, the actual outcome need not be particularly certain. (In the Court’s opinion, for example, Justice Breyer notes that one can go to Fenway Park with the intent of seeing the Red Sox, even if they are not playing that day and there is thus very little chance of actually seeing them play.)

The Court similarly rejects the opposite extreme – that proof of broad intent to prevent communication with any and all law enforcement officials is itself sufficient. The Court explains that one cannot, unless there is a mistake, intend to prevent something that had no chance of happening anyway; moreover, if the statute did not require any showing of ties to federal officials, it would sweep a large amount of tampering in purely state investigations under its reach.

In seeking some middle ground, the Court then turns to the dictionary for a definition of the word “prevent,” which supplies three possible standards: “intended,” was “possible,” or was “likely.” It rejects the first out of hand, because it would refer to the victim’s intent, which may not have been formed and would not be relevant in the case of a crime that would obviously involve a federal investigation, regardless whether the witness knew it. The second option, “possible,” invokes the standard adopted by the Eleventh Circuit, but the Court also rejects this standard, deeming it insufficient to maintain the “basically federal” scope of the statute.

This leaves “likely” – which the Court fashions into the standard that it ultimately articulates:  it must be “reasonably likely 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.” Because the lower courts did not evaluate Fowler’s claim under this standard, the Court vacated the decision below and remanded the case for further proceedings.

Justice Scalia concurred in the judgment only. In his view, the statute requires a showing beyond a reasonable doubt that a communication would have been made to a federal law enforcement officer. He first acknowledges that the statute is ambiguous as to whether it requires the defendant to specifically intend that the law enforcement officer to whom the potential communication is made be a federal one. But he finds clarity in a separate provision of the witness-tampering statute, which specifies that the defendant need not have any particular state of mind with regard to the recipient’s status as a federal officer. Having noted that the statute requires no particular mens rea with regard to the federal character of the intended recipient, he concludes that the statute’s requirement that the officer be a federal one must instead define the actus reus of the crime, and, accordingly, must be “an element of the facts that must be proved for conviction.” Justice Scalia notes that the Court has never used a “likelihood” standard for elements of crimes before; in his view, it should not do so here. Any lower standard, he suggests, would convert what should be state murder prosecutions into federal crimes and would violate the rule of lenity. Finally, he complains that the new standard is confusing and vague.

Justice Alito filed a dissenting opinion, joined by Justice Ginsburg, in which he argues that the Eleventh Circuit’s “possible or potential” standard is correct. In his dissent, Justice Alito enumerates the things that the statute does not require to be proved: that the victim would have reported what he saw to anyone (much less a federal officer), that the defendant had a particular law enforcement officer in mind as the recipient of the information, or that the defendant knew that the potential “generic” recipient officer was a federal officer. All that matters, Justice Alito explains, is that the “generic” recipient officer is in fact a federal officer. Justice Alito disputes Justice Breyer’s conclusion that a rational person will not act to prevent something unless it is “reasonably likely;” instead, Justice Alito argues, it is perfectly rational to act to prevent something that is possible, whether it is “reasonably likely” or not.