Fowler v. United States, 563 U.S. (2011)
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(Slip Opinion) OCTOBER TERM, 2010 NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader.See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 1
v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE ELEVENTH CIRCUIT[May 26, 2011]
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 thecommunication 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 defendantkilled a person with an intent to prevent that person fromcommunicating with law enforcement officers in generalbut where the defendant did not have federal law enforcement officers (or any specific individuals) particularlyin 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 moreparticularly intended to prevent communication withfederal officers as well. We hold that, in such circumstances, the Government must show that there was areasonable likelihood that a relevant communicationwould have been made to a federal officer
I
In the early morning hours of March 3, 1998, Charles 2 FOWLER v. UNITED STATES Opinion of the Court Fowler and several other men prepared to rob a Floridabank. They met in a cemetery, put on black clothes andgloves, began to drink and use drugs, and discussed theproposed crime. Shortly before daybreak a local policeofficer, Todd Horner, came upon the group. He pulled outhis gun and asked the men to identify themselves. Fowlerand some of the others managed to overcome Horner andtake his gun. After Horner spoke to one of the men byname, Fowler said, "Now we can't walk away from thisthing." App. 38 (internal quotation marks omitted). Andhe shot and killed Horner. Federal authorities charged Fowler with violating thefederal witness tampering statute. He was convicted. Onappeal, Fowler argued that the evidence was insufficientto show that he had killed Horner intending to preventHorner from communicating with a federal officer. TheEleventh 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 havedisagreed about this last-mentioned matter, we grantedFowler's petition for certiorari. Compare United States v.Harris, 498 F. 3d 278, 286 (CA4 2007) ("So long as theinformation the defendant seeks to suppress actuallyrelates to the commission or possible commission of afederal offense, the federal nexus requirement is established"), with United States v. Lopez, 372 F. 3d 86, 91-92(CA2 2004), vacated and remanded on other grounds, 544
U. S. 902 (2005) (requiring Government to show federalcrime 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(CA3 1997); United States v. Causey, 185 F. 3d 407, 422-423 (CA5 1999); United States v. Wright, 536 F. 3d 819,824-825 (CA8 2008). Opinion of the Court II
The federal witness tampering statute in relevant partforbids the "kill[ing] or attempt[ed] kill[ing]" of "anotherperson" with a certain "intent," namely, an "intent to . . . prevent the communication by any person to a law enforcement officer or judge of the UnitedStates of information relating to the commission orpossible commission of a Federal offense . . . ." 18
U. S. C. §1512(a)(1)(C). A related subsection says that in a prosecution for thisoffense "no state of mind need be proved with respect tothe circumstance . . . that the judge is a judge of theUnited States or that the law enforcement officer is anofficer 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 commissionor possible commission of a Federal offense" (c) to a federal"law enforcement officer or judge." The question here is how this language applies when adefendant (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 lawenforcement officer or set of officers which the defendanthas in mind. This kind of circumstance is not necessarilyrare, as the facts here illustrate. Fowler (we here assume)was not thinking specifically about federal officers, but hewould nonetheless have wanted to prevent communicationwith federal officers from taking place (had he consideredthe matter). 4 FOWLER v. UNITED STATESOpinion of the CourtIIIWhen the defendant has in mind a particular individualor a particular set of individuals with whom he fears thevictim might communicate, the application of the statuteis relatively clear. For instance, if a defendant kills avictim with the intent of preventing the victim from communicating with a particular individual, say John Smith,who the defendant knows is a federal law enforcementofficer, the statute fits like a glove. If a defendant kills avictim with the intent of preventing the victim from communicating with Sam Smith, who is in fact (but who thedefendant does not know is) a federal law enforcementofficer, the statute still fits, for it specifically says that "nostate of mind need be proved" with respect to this last-mentioned circumstance. Nothing in the statutory language, however, limits it tothese kinds of instances, instances in which the defendanthas some law enforcement officer or set of officers, or otheridentifiable individuals, particularly in mind. Moreover,any such limitation would conflict with the statute's basicpurpose. Witness tampering may prove more serious (andmore effective) when the crime takes place before thevictim has engaged in any communication at all with lawenforcement officers-at a time when the precise communication and nature of the officer who may receive it arenot yet known. Cf., e.g., S. Rep. No. 97-532, pp. 14, 15(1982) (statute applies "to offenses against witnesses,victims, or informants which occur before the witnesstestifies or the informant communicates with law enforcement officers"); id., at 19 (witness "[i]ntimidationoffenses are particularly insidious and do violence totraditional 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 isreported to the appropriate authorities"). Hence the statute covers a defendant who kills with intent to prevent Opinion of the Court communication with law enforcement officers generally(i.e., with any and all law enforcement officers). And wemust consequently decide what, if anything, the Government must show about the likelihood of a hypotheticalcommunication with a federal law enforcement officer incircumstances where the defendant did not think specifically about any particular communication or its recipient. In these circumstances, the application of the statute isnot 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 individualin mind. And we cannot insist that the defendant havehad some general thought about federal officers in mindbecause the statute says that "no state of mind need beproved" 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 toprevent communications to federal officers? We begin with two basic propositions. First, in ourview, the Government need not show beyond a reasonabledoubt (or even that it is more likely than not) that thehypothetical communication would have been to a federalofficer. No Circuit has adopted this interpretation, and noparty argues for it here. But see post, at 1-2 (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 reasonabledoubt that the defendant possessed the relevant broadindefinite intent, namely, the intent to prevent the victimfrom communicating with (unspecified) law enforcementofficers. And one can possess an intent (i.e., one can act inorder to bring about a certain state of affairs) even if thereis considerable doubt whether the event that the intentcontemplates will in fact occur. One can, for example, putup shutters with the intent of protecting the furniturefrom hurricane damage even if there is considerable doubt 5 6 FOWLER v. UNITED STATES Opinion of the Court that any hurricane will actually occur. One can drive toFenway Park with the intent of seeing the Red Sox playthat afternoon even if a mistake about the date means thestadium is empty. One can blow up a bridge with theintent of stopping an advancing army, even if the armyadvances regardless, along a different route. And, similarly, a defendant can kill a victim with an intent toprevent the victim from communicating with federal lawenforcement officers even if there is some considerabledoubt that any such communication would otherwise havetaken place.But, second, the Government must show more thanthe broad indefinite intent we have described, the intentto prevent communications to law enforcement officers ingeneral. That is so for two separate reasons. For onething, the statute speaks of an "intent to prevent" something. But (apart from mistakes, as in our Red Sox example) one cannot act with an "intent to prevent" somethingthat could not possibly have taken place regardless. Wecan speak of a Colorado trout fisherman who tries toprevent his trout stream from being invaded by pike orcarp, but in ordinary circumstances we cannot speakabout trying to prevent the stream's invasion by whales.Indeed, the dictionary defines "prevent" as "to render (anintended, possible, or likely action or event) impracticalor impossible by anticipatory action." OED Online (Mar.2011) (emphasis added), http://www.oed.com/view/Entry/151073?rskey=QWN6QB&result=2&isAdvanced=false (allInternet materials as visited May 23, 2011, and availablein Clerk of Court's case file). For another thing, to allow the Government to show nomore than the broad indefinite intent we have described(the intent to prevent communications to law enforcementofficers in general) would bring within the scope of thisstatute many instances of witness tampering in purelystate investigations and proceedings, thus extending the Opinion of the Court scope of this federal statute well beyond the primarilyfederal area that Congress had in mind. See infra, at 8-9.For both these reasons, unlike the dissent, we cannot readthe statute as intending to excuse the Government fromproving something about the hypothetical communicationwith federal officers. The question remains, what is thatsomething? IV
We find possible answers to this question in the dictionary definition of the word "prevent." As we have said, thatword applies where a defendant, by "anticipatory action,"(here, killing a victim) intended "to render . . . impracticalor impossible" an "action or event" (here, the victim'scommunication with a federal law enforcement officer)which (1) was "intended," (2) was "possible," or (3) was"likely" to have otherwise occurred. No one suggests that the first word, the word "intended," sets forth the appropriate standard. That word inthis context refers to the victim's intent. That intent isoften difficult to discern. Moreover, to require the Government to prove it would prevent the statute from applying where it is plain that federal officers would havebeen involved in investigating and prosecuting the offense(for instance, robbing the United States Bullion Depositoryat Fort Knox), but where the defendant killed the victimbefore the victim had decided to communicate to lawenforcement officers. Congress, however, intended thestatute to apply in these last-mentioned circumstances.See supra, at 4. The Government (and the Eleventh Circuit) would resttheir standard on the second word, the word "possible."See Brief for United States 10 (standard is "whether itwas reasonably possible that at least one of the communications that the murder . . . was intended to prevent wouldhave been with a federal law enforcement official"); 603 7 8 FOWLER v. UNITED STATES Opinion of the Court F. 3d, at 888 (requiring showing of a "possible or potentialcommunication to federal authorities"). But, in our view,that standard is difficult to reconcile with the statute'slanguage and its intended, basically federal, scope. Cf.supra, at 6-7. Often, when a defendant acts in ways that violate statecriminal law, some or all of those acts will violate federalcriminal law as well. And where a federal crime is atissue, communication with federal law enforcement officers is almost always a possibility. Thus, to allow theGovernment to show only a mere possibility that a communication would have been with federal officials is topermit the Government to show little more than the possible commission of a federal offense. (That is to say, thelatter showing by itself would almost automatically showthe statutorily necessary connection with a federal lawenforcement officer.) The "possibility" standard wouldthereby weaken or eliminate the independent force of theseparate statutory requirement that the defendant, inkilling the victim, must intend to prevent communicationwith one who is "a law enforcement officer or judge ofthe United States." 18 U. S. C. §1512(a)(1)(C) (emphasisadded); see §1515(a)(4) (defining "law enforcement officer"as "an officer or employee of the Federal Government"(emphasis added)). Cf. Duncan v. Walker, 533 U. S. 167,174 (2001) (normally we must give effect "to every clauseand word of a statute" (internal quotation marks omitted)); Ratzlaf v. United States, 510 U. S. 135, 140-141(1994) (expressing particular reluctance to "treat statutoryterms" as "surplusage" "when the words describe an element of a criminal offense"). Moreover, because of the frequent overlap between stateand federal crimes, the use of a standard based on theword "possible" would transform a federally orientedstatute into a statute that would deal with crimes, investigations, and witness tampering that, as a practical mat-Opinion of the Court ter, are purely state in nature. See, e.g., Dept. of Justice,Bureau of Justice Statistics, (FY 2008 Persons arrestedand booked, Drug offense: Marijuana), http://bjs.ojp.usdoj.gov/fjsrc; Dept. of Justice, Federal Bureau of Investigation,2008 Crime in the United States (Arrests), http://www2.fbi.gov/ucr/cius2008/arrests/index.html; (Table 29),http://www2.fbi.gov/ucr/cius2008/data/table_29.html (In2008, 0.7% of arrests for marijuana offenses were madeby federal law enforcement officers); see also Jones v.United States, 529 U. S. 848, 858 (2000) ("[U]nless Congress conveys its purpose clearly, it will not be deemedto have significantly changed the federal-state balancein the prosecution of crimes" (internal quotation marksomitted)).The defendant argues that we should fashion a standardbased on the third word, the word "likely." And we agreethat doing so is consistent with the statute's language andobjectives. We consequently hold that (in a case such asthis one where the defendant does not have particularfederal law enforcement officers in mind) the Governmentmust show a reasonable likelihood that, had, e.g., thevictim communicated with law enforcement officers, atleast one relevant communication would have been madeto a federal law enforcement officer. That is to say, wherethe defendant kills a person with an intent to preventcommunication with law enforcement officers generally,that intent includes an intent to prevent communicationswith federal law enforcement officers only if it is reasonably likely under the circumstances that (in the absence ofthe killing) at least one of the relevant communicationswould have been made to a federal officer. The Government need not show that such a communication, had it occurred, would have been federal beyond areasonable doubt, nor even that it is more likely than not.For, as we have said, one can act with an intent to preventan event from occurring without it being true beyond a 9 10 FOWLER v. UNITED STATES Opinion of the Court reasonable doubt (or even more likely than not) that theevent would otherwise occur. (Recall the homeowner whocloses his shutters in order to prevent damage from ahurricane that may not happen. Supra, at 5-6.) But theGovernment must show that the likelihood of communication to a federal officer was more than remote, outlandish,or simply hypothetical. Jones, who kills Smith to preventhis communicating with law enforcement officers in general, does not kill Smith to prevent his communicatingwith Lithuanian law enforcement officers, for there is noreasonable likelihood that any Lithuanian officers wouldbecome involved
V
Fowler argues that the evidence in this case is insufficient to satisfy a "reasonable likelihood" standard. Heconcedes, however, that he did not raise this questionspecifically at trial. Tr. of Oral Arg. 21-22. We leave it tothe lower courts to determine whether, and how, thestandard applies in this particular case. The judgment of the Court of Appeals for the EleventhCircuit is vacated, and the case is remanded for furtherproceedings consistent with this opinion. It is so ordered. SCALIA, J., concurring in judgment 1
CHARLES ANDREW FOWLER, AKA MAN, PETITIONER
v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE ELEVENTH CIRCUIT[May 26, 2011]JUSTICE SCALIA, concurring in the judgment.I disagree with the Court's interpretation of 18 U. S. C.§1512(a)(1)(C). In my view, the Government must provethat the defendant intended to prevent a communicationwhich, had it been made, would beyond a reasonable doubthave been made to a federal law enforcement officer. TheCourt's vague "reasonable likelihood" standard has nobasis in the statutory text and will serve only to confusejudges and juries. Accordingly, although I agree the caseshould be remanded for the Eleventh Circuit to considerwhether the objection to sufficiency of the evidence waspreserved or whether the District Court committed plainerror, I would hold that there was insufficient evidence tosupport Fowler's conviction
I
Section 1512(a)(1)(C) of Title 18 makes it a federal crime"to kill another person, with intent to . . . prevent thecommunication by any person to a law enforcement officer
. . . of the United States of information relating to thecommission or possible commission of a Federal offense."Viewed in isolation, this provision contains an ambiguity:Does the mens rea of the statute include a specific intentto prevent communication to a law enforcement officer ofthe United States; or is it satisfied by the mere intent to 2 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment prevent communication to a law enforcement officer whohappens to be a law enforcement officer of the UnitedStates? Happily, a different statutory provision resolves thisambiguity. It states that "no state of mind need be provedwith respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government." §1512(g)(2). This makes clear that the firstpossibility is wrong, and the second right. But removingthe "federal officer" requirement as an element of thestatute's mens rea does not remove it as an element of theactus reus-that is, as an element of the facts that must beproved for conviction. It must be proved, and provedbeyond a reasonable doubt, that the communication intended to be prevented was communication to a federalofficer. Thus, if a suspect in an investigation murders aninformant to prevent him from talking to authorities, butis unaware that the informant was working for the FBI,the suspect would be guilty: He would have committed amurder with the intention of preventing the informant'scommunication to authorities about his criminal activities,and the communication he sought to prevent would necessarily have been to federal law enforcement. Likewise, asuspect would be guilty if he committed a murder to prevent a witness from informing law enforcement that helied on his federal income tax return: He sought to prevent a communication that would have been made tofederal officials, because they alone prosecute federal taxviolations. But a suspect who commits a murder with thegeneral intent of preventing law enforcement from learning about activities that violate both state and federallaw would not be guilty, because the Government wouldbe unable to prove that the communication he sought toprevent necessarily would have been to a federal official.Applying that standard, this is an easy case. There wasevidence that Fowler murdered Officer Horner in order SCALIA, J., concurring in judgment to prevent him from communicating information aboutFowler's criminal activities. But the only evidence proffered by the Government to establish that the communication would have been to a federal law enforcement agentwas the fact that a different state police officer, four yearslater, contacted federal law enforcement about a robberyby Fowler's confederate-and that only because the state-law statute of limitations for the robbery had expired.That is not nearly enough to demonstrate Fowler's guiltbeyond a reasonable doubt. II The Court gives the statute a broader reading than theone I ascribe. The Government can obtain a conviction, itsays, so long as it can prove a "reasonable likelihood" thatthe communication would have been made to a federallaw enforcement officer. I know of no precedent for usinga "likelihood" standard rather than the "beyond a reasonable doubt" standard for a finding of fact essentialto a criminal conviction; and the justifications the Courtpresents for that course in the present case are notconvincing.The Court maintains that the Government need notshow beyond a reasonable doubt that the communicationwould have been to a federal officer because "[t]he relevantquestion concerns the defendant's intent." Ante, at 5. Butthat reasoning is directly contrary to §1512(g)(2), whichexpressly states that the defendant's intent is not therelevant question with respect to the federal character oflaw enforcement officer meant to be deprived of the information. The Court's observation that "a defendant can killa victim with an intent to prevent the victim from communicating with federal law enforcement officers even ifthere is some considerable doubt that any such communication would otherwise have taken place," ante, at 6, iscompletely irrelevant to the question presented. 3 4 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment The Court also proclaims that a narrower view "wouldconflict with the statute's basic purpose," which is toprevent witness tampering "at a time when the precisecommunication and nature of the officer who may receiveit are not yet known." Ante, at 4. It cites no basis forattributing that purpose, and there is none-other thanthe fact that it supports the Court's outcome. Anotherpurpose is just as likely-and indeed more likely, since itcan be achieved without abandonment of the ancient rulethat in criminal prosecutions facts must be found beyond areasonable doubt. Murder, after all, is a crime, and oftena capital crime, under all state laws. There is no reason toascribe to Congress the "purpose" of transferring murderprosecutions that would ordinarily be brought in statecourt to federal court based on only a tangential federalinterest. Congress was concerned with preserving theintegrity and effectiveness of federal prosecutions, andwhere they are not clearly involved (as the ordinary beyond-a-reasonable-doubt standard would require) a federalmurder prosecution has no proper place. Limited as Ihave suggested, the federal law would still have amplescope, reaching what were surely the principal cases Congress had in mind-the killing of prospective witnesses infederal trials or in ongoing federal investigations. Here,as would be the case in many situations involving amerely hypothetical link to a federal investigation, Fowlermurdered a state police officer. The natural place to haveprosecuted him would have been state court. The Court's analysis is even less persuasive in light ofthe rule of lenity, under which we must construe ambiguous criminal statutes in favor of the defendant. Here, theCourt adopts a kind of rule of harshness, discarding themost straightforward construction of the text in favor oftextually implausible one, based on vague intuitions aboutthe statute's purpose. The Court's opinion never cites therule of lenity, probably because it cannot honestly say that SCALIA, J., concurring in judgment the statute is so clear that "there is no ambiguity for therule of lenity to resolve." Burgess v. United States, 553
U. S. 124, 136 (2008).To make matters worse, the Court's standard is hopelessly indeterminate. The Government must show that acommunication to a federal officer is "reasonably likely,"which is less likely than "more likely than not," but morelikely than "reasonably possible." Ante, at 7-9. I doubtthat any jury can grasp the distinction between "you mustfind that a communication to a federal officer was reasonably likely" and "you must find that a communicationto a federal officer was reasonably possible." Understandably, the Court refuses to give any examples of what"reasonably likely" means, except for an absurd exampleinvolving communications with Lithuanian police officers,ante, at 10-which obviously would not be "reasonablypossible" either. Indeed, the Court refuses to apply itsstandard to the facts of this case, leaving that precarioustask to the lower court. III The dissent adopts a view of the statute that is evenbroader than the Government's. It effectively contendsthat the Government need not prove anything with respectto the fact that the communication sought to be preventedwas "to a law enforcement officer . . . of the United States."As long as the Government can prove that the defendantsought to prevent the communication of information abouta federal crime (including a federal crime that is also astate crime) it will necessarily have proved that the "set oflaw enforcement officers (whose identities were unknownto him)" he had in mind "included law enforcement officerswho were employed by the United States." Post, at 3(opinion of ALITO, J.). Conviction requires neither anyspecific intent regarding the federal status of the officer,nor even any likelihood that a communication to a federal 5 6 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment officer would have occurred. The principal defect in this interpretation is that itmakes the words "of the United States" superfluous.Section 1512(a)(1)(C) specifically requires that the information the defendant seeks to prevent from being communicated be "information relating to the commission orpossible commission of a Federal offense." If the phrase"to a law enforcement officer . . . of the United States"requires nothing more than this it is utterly without effect.The implication of this view is that Congress enacted§1512(a)(1)(C)'s reference to "a law enforcement officer . . .of the United States," only to immediately nullify it by§1512(g)(2)'s "no state of mind" provision. Not likely-andnot sound statutory interpretation. The dissent claims that my analysis "confuses what theprosecution must prove with what a rational jury maychoose to infer in a particular case." Post, at 6. I find thiscontention difficult to understand. In the dissent's view, aproperly instructed jury should be required to find neitherthat the defendant's mens rea had any connection to afederal officer, nor that the defendant's actus reus had anyconnection to a federal officer. It therefore follows thatunder the dissent's view, a properly instructed jury shouldbe required to find nothing about a connection to a federalofficer beyond the fact that the information related to afederal offense, which means that, unless the jury is actingirrationally or is engaging in jury nullification, the "of theUnited States" provision is indeed superfluous. The dissent is correct that the proof of one element of a crime(such as an overt act) can sometimes be used to prove thata different element (such as a conspiratorial agreement) issatisfied, post, at 6-7, n. 2; but in such cases, the jury isinstructed that it is required to make a separate finding toconvict (e.g., that a conspiratorial agreement actuallyoccurred). Here, the dissent identifies no separate findingthe jury must make beyond the fact of a federal offense. SCALIA, J., concurring in judgment The dissent also observes that when a defendant murdersa federal officer to prevent him from communicating information about a nonfederal crime, he does not violatethe statute. Post, at 7. This observation convincinglyestablishes that the statutory words "Federal offense" arenot superfluous under the dissent's view, an observationirrelevant to my point that the dissent makes the statutory words "of the United States" superfluous. The dissent contends that my interpretation "has nogrounding in the language of the statute." Post, at 4. Itasserts that "the text of the statute makes it perfectlyclear that the federal officer requirement is exclusively anelement of the defendant's mens rea." Post, at 5 (internalquotation marks omitted). Perhaps the only thing "perfectly clear" about this statute is that it states the preciseopposite of that proposition: "[N]o state of mind need beproved with respect to the circumstance . . . that the lawenforcement officer is an officer or employee of the FederalGovernment." §1512(g)(2).The dissent's interpretation would federalize crimesthat have no connection to any federal investigation. Aperson caught by a state police officer with marijuana whomurders the state police officer to cover it up could beprosecuted in federal court. That would approach theouter limits of Congress's enumerated powers. We haveadopted a federalism principle that applies when a statutewould render "traditionally local criminal conduct . . . amatter for federal enforcement": "[U]nless Congress conveys its purpose clearly, it will not be deemed to havesignificantly changed the federal-state balance in theprosecution of crimes." Jones v. United States, 529 U. S.848, 858 (2000) (internal quotation marks omitted). Thus,the dissent adds to the Court's "rule of harshness" a rule ofantifederalism, under which a court must actually ignorea federal connection that Congress prescribed so as toavoid intrusion into traditionally local law enforcement. 7 8 FOWLER v. UNITED STATES SCALIA, J., concurring in judgment * * *
Because the Government did not establish that Fowlerintended to prevent a communication that, if made, wouldhave been made to a federal law enforcement officer, therewas insufficient evidence to convict him of violating§1512(a)(1)(C). Since there remains, however, the question whether Fowler preserved this issue at trial orwhether the inadequacy of the evidence constituted plainerror, I concur in the Court's order vacating the judgmentand remanding for resolution of that question. ALITO, J., dissenting 1
CHARLES ANDREW FOWLER, AKA MAN, PETITIONER
v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE ELEVENTH CIRCUIT[May 26, 2011]JUSTICE ALITO, with whom JUSTICE GINSBURG joins,dissenting. The decision of the Court fails to follow the clear language of 18 U. S. C. §1512(a)(1)(C). Instead of heedingthe statutory text, the Court has effectively amended thestatute by adding a new element
I
As relevant here, §1512(a)(1)(C) makes it a federal crime"to kill another person, with intent to . . . prevent thecommunication by any person to a law enforcement officer
. . . of the United States of information relating to thecommission or possible commission of a Federal offense."Also important for present purposes is §1512(g)(2), whichprovides, among other things, that "[i]n a prosecution foran offense under this section, no state of mind need beproved with respect to the circumstance . . . that the lawenforcement officer is an officer or employee of the FederalGovernment." Putting these two provisions together, what had to beshown in the present case was as follows:
(1) Fowler killed Officer Horner,
(2) with the intent to prevent any person (i.e., either Officer Horner or someone else) from communicating,
(3) to a person who (whether or not known as such to 2 FOWLER v. UNITED STATES ALITO, J., dissenting Fowler) was a federal law enforcement officer,
(4) information concerning the possible commission of afederal crime. The question before us is whether there was sufficientevidence to support Fowler's conviction, and thus we mustask whether any rational jury could find that all of theelements noted above were adequately established. SeeUnited States v. Powell, 469 U. S. 57, 67 (1984).There can be no dispute that there was sufficient evidence to establish elements (1), (2), and (4). That is, therewas ample evidence to show (1) that Fowler killed OfficerHorner, (2) that he did so with the intent to prevent thecommunication of information about what Officer Hornerhad seen, and (4) that this information concerned thepossible commission of at least one federal crime-forexample, conspiracy to rob a bank in violation of 18
U. S. C. §§371, 2113.Thus, the only remaining question is whether there wasenough evidence to permit a rational jury to infer thatelement (3) had been satisfied. And in connection withthis question, it is important to keep in mind three thingsthat element (3) does not require.First, element (3) does not demand proof that OfficerHorner, had he not been killed, would have reported-oreven might have reported-what he saw to anyone, muchless to a federal officer. Element (3) is solely concernedwith a defendant's intent. Second, while element (3) requires proof that Fowlerintended to prevent some law enforcement officer fromlearning what Officer Horner had seen, element (3) doesnot require proof that Fowler had any particular lawenforcement officer in mind. Section 1512(a)(1)(C) simplydemands that the recipient of the information be "a lawenforcement officer." Thus, it would be enough if Fowler'sintent was to prevent Officer Horner's information fromreaching any federal law enforcement officer. ALITO, J., dissenting Third, element (3) does not demand proof that Fowlerknew that the generic officer noted above was a federal,as opposed to a state or local, law enforcement officer. Section 1512(g)(2) specifically rules out any such requirement.It is enough that our generic officer was in fact a federalofficer. When the meaning of element (3) is understood, it isclear that the decision of the Court of Appeals in this casemust be affirmed. A rational jury could infer that Fowler'sintent was to prevent information about what OfficerHorner had seen from reaching any person who couldbring about his arrest and conviction. In other words, arational jury could infer that Fowler, in effect, had in minda set of law enforcement officers (whose identities wereunknown to him) who could set in motion a chain of eventsthat would land him in prison. And since the informationthat Officer Horner possessed related to, among otherthings, the possible commission of a federal crime, a rational jury could infer that this group included law enforcement officers who were employed by the UnitedStates. The question presented in this case is as simple asthat
II
The Court begins on the right track, observing that the"relevant question concerns the defendant's intent" andthat therefore "the Government need not show beyond areasonable doubt (or even that it is more likely than not)that the hypothetical communication would have been to afederal officer." Ante, at 5 (emphasis in original). But theCourt veers off course when it goes on to hold that theprosecution was required to show that, if Officer Hornerhad not been killed, there was a "reasonable likelihood"that his information would have reached a federal officer.Ante, at 9 (emphasis in original). The Court reaches this conclusion based on the meaning 3 4 FOWLER v. UNITED STATES ALITO, J., dissenting of the word "prevent." See ante, at 6-10. The Court startswith the proposition that "apart from mistakes . . . onecannot act with an 'intent to prevent' something that couldnot possibly have taken place regardless." Ante, at 6(emphasis in original). I understand this to mean that arational person will not take action to prevent somethingthat the person knows is not possible. This is true, but itdoes not follow that a rational person will not take actionto prevent an undesirable event unless the event is "reasonably likely." Risk-averse people do this all the time.They refrain from flying to avoid dying in a plane crash.They shun rooms on the upper floors of hotels to preventbeing trapped in the event of a fire. What matters under §1512(a)(1)(C) is not the likelihoodthat information about a possible federal crime will beconveyed to a federal officer. What matters is the intentof the person who kills or attempts to kill in order to prevent that information from reaching such an officer. TheCourt's "reasonable likelihood" test has no basis in the textof §1512(a)(1)(C). The Court's test also makes little sense. Under this test,the application of §1512(a)(1)(C) depends on a witness-killer's toleration of risk. According to the Court,§1512(a)(1)(C) does not reach a killer who has so littleregard for human life that he or she is willing to murder inorder to prevent even a remote possibility that a witnesswill inform the authorities. It is hard to imagine whyCongress would have wanted to draw this line. III JUSTICE SCALIA's interpretation of §1512(a)(1)(C) alsohas no grounding in the language of the statute. Hemakes the fundamental mistake of confusing §1512(a)
(1)(C)'s mens rea and actus reus elements. JUSTICE SCALIA states that what he terms "the 'federal officer'requirement" is "an element of the actus reus," ante, at 2 ALITO, J., dissenting (opinion concurring in judgment), but the text of thestatute makes it perfectly clear that "the 'federal officer'requirement" is exclusively an element of the defendant'smens rea. The statute provides: "(a)(1) Whoever kills or attempts to kill anotherperson, with intent to- . . . . .
"(C) prevent the communication by any person to alaw enforcement officer or judge of the United Statesof information relating to the commission or possiblecommission of a Federal offense or a violation of conditions of probation, parole, or release pending judicialproceedings;
"shall be punished as provided in paragraph (3)."§1512(a)(1)(C) (emphasis added). The actus reus of this provision is set out in its firsteight words ("Whoever kills or attempts to kill anotherperson"). Everything else-that is, everything that followsthe phrase "with intent to"-concerns the defendant'smens rea. JUSTICE SCALIA interprets §1512(g)(2) as transforming"the 'federal officer' requirement" from an element of themens rea into an element of the actus reus, see ante, at2-3, but this reading is plainly wrong. Section 1512(g)(2)provides in relevant part: "In a prosecution for an offense under [18 U. S. C.§1512], no state of mind need be proved with respect to the circumstance . . . that the law enforcementofficer is an officer or employee of the FederalGovernment." What this clearly means, as the Court recognizes, seeante, at 4, is simply that a defendant need not intend toprevent a qualifying communication from reaching an 5 6 FOWLER v. UNITED STATES ALITO, J., dissenting officer whom the defendant knows to be a federal, as opposed to a state or local law enforcement officer. But nothing in this provision adds to the actus reus elements in§1512(a)(1)(C).JUSTICE SCALIA's principal criticism of my interpretation of the statute is that "it makes the words 'of theUnited States' superfluous." Ante, at 6.1 He incorrectlystates that under my interpretation "the Government neednot prove anything with respect to the fact that the communication sought to be prevented was 'to a law enforcement officer . . . of the United States' " and that "[a]s longas the Government can prove that the defendant sought toprevent the communication of information about a federalcrime (including a federal crime that is also a state crime)it will necessarily have proved that [the set of officerswhom the defendant had in mind] 'included law enforcement officers who were employed by the United States.' "Ante, at 5 (emphasis in original). This description of myinterpretation confuses what the prosecution must provewith what a rational jury may choose to infer in a particular case. In order to violate §1512(a)(1)(C), a defendant musthave an intent regarding two things: first, the substance ofthe communication that the defendant wishes to prevent(information concerning, among other things, the commission or possible commission of a federal crime) and, second, the recipient of the communication (a law enforcement officer or judge who turns out to be a federal officeror judge).It is true that evidence regarding the federal characterof an offense may lead a rational jury to infer that theofficers whom the defendant had in mind included federalofficers.2 But those two elements remain distinct; both ------
1 The Court makes a related argument. See ante, at 8. 2 There is nothing unusual about the proposition that the proof of one ALITO, J., dissenting must be proved beyond a reasonable doubt; and it is entirely possible for a defendant to satisfy one without alsosatisfying the other. For example, if a uniformed federalofficer came upon a defendant during the commission of apurely state offense (for example, a murder, assault, orrape not committed in a federal enclave), the defendantmight kill or attempt to kill the officer to prevent theofficer from radioing in that information to the officer'ssuperiors. This defendant would have the intent to prevent a communication to a federal officer, but there wouldbe no violation of the statute because the informationwould not concern a federal crime. Thus, contrary toJUSTICE SCALIA's suggestion, under my interpretation,the two intent elements-relating to the substance of thefeared communication and the identity of the feared recipient-are not redundant.JUSTICE SCALIA invokes a rule that disfavors the interpretation of a federal criminal statute in a way that" 'significantly change[s] the federal-state balance in theprosecution of crimes.' "3 Ante, at 7 (quoting Jones v.United States, 529 U. S. 848, 858 (2000)). This rule, however, does not justify ignoring the plain terms of thestatute. * * *
The Court has effectively amended §1512(a)(1)(C) byadding an element that is nowhere to be found in the textof the statute. And the Court's new element makes littlesense and will create confusion for trial judges and juries. ------ element of a crime may provide a sufficient basis for inferring thatanother element may be satisfied. To take a common example, overtacts committed in furtherance of a conspiracy may be sufficient topermit a jury to infer that a conspiratorial agreement was reached. Butthat does not alter the need to prove beyond a reasonable doubt thatsuch an agreement was reached. 3 The Court again makes a related argument. See ante, at 8-9. 7 8 FOWLER v. UNITED STATES ALITO, J., dissenting Following the language of §1512(a)(1)(C), I would holdthat the evidence in this case was sufficient to establish allof the elements that Congress saw fit to include. I therefore respectfully dissent.
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