FOWLER v. UNITED STATES

Opinion of the Court

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SUPREME COURT OF THE UNITED STATES
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No. 10–5443

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CHARLES ANDREW FOWLER, AKA MAN, PETITIONER
v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS 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 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 indefinite 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 i>States v. Harris, 498 F. 3d 278, 286 (CA4 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 (CA2 2004), vacated and remanded on other grounds, 544 U. S. 902 (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 (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). 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 lastmentioned 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) (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 /i> 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 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 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 than the broad indefinite intent we have described, the intent to prevent communications to law enforcement officers in general. That is so for two separate reasons. For one thing, 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” something that could not possibly have taken place regardless. We can speak of a Colorado trout fisherman who tries to prevent his trout stream from being invaded by pike or carp, but in ordinary circumstances we cannot speak about trying to prevent the stream’s invasion by whales. Indeed, the dictionary defines “prevent” as “to render (an intended, possible, or likely action or event) impractical or impossible by anticipatory action.” OED Online (Mar. 2011) (emphasis added), http://www.oed.com/view/Entry/ 151073?rskey=QWN6QB&result=2&isAdvanced=false (all Internet materials as visited May 23, 2011, and available in Clerk of Court’s case file).

For another thing, to allow the Government to show no more than the broad indefinite intent we have described (the intent to prevent communications to law enforcement officers in general) would bring within the scope of this statute many instances of witness tampering in purely state investigations and proceedings, thus extending the scope of this federal statute well beyond the primarily federal area that Congress had in mind. See infra, at 8–9. For both these reasons, unlike the dissent, we cannot read the statute as intending to excuse the Government from proving something about the hypothetical communication with federal officers. The question remains, what is that something?

IV

We find possible answers to this question in the dictionary definition of the word “prevent.” As we have said, that word applies where a defendant, by “anticipatory action,” (here, killing a victim) intended “to render . . . impractical or impossible” an “action or event” (here, the victim’s communication 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 in this context refers to the victim’s intent. That intent is often 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 have been involved in investigating and prosecuting the offense (for instance, robbing the United States Bullion Depository at Fort Knox), but where the defendant killed the victim before the victim had decided to communicate to law enforcement officers. Congress, however, intended the statute to apply in these last-mentioned circumstances. See supra, at 4.

The Government (and the Eleventh Circuit) would rest their standard on the second word, the word “possible.” See Brief for United States 10 (standard is “whether it was reasonably possible that at least one of the communications that the murder . . . was intended to prevent would have been with a federal law enforcement official”); 603 F. 3d, at 888 (requiring showing of a “possible or potential communication to federal authorities”). But, in our view, that standard is difficult to reconcile with the statute’s language and its intended, basically federal, scope. Cf. supra, at 6–7.

Often, when a defendant acts in ways that violate state criminal law, some or all of those acts will violate federal criminal law as well. And where a federal crime is at issue, communication with federal law enforcement officers is almost always a possibility. Thus, to allow the Government to show only a mere possibility that a communication would have been with federal officials is to permit the Government to show little more than the possible commission of a federal offense. (That is to say, the latter showing by itself would almost automatically show the statutorily necessary connection with a federal law enforcement officer.) The “possibility” standard would thereby weaken or eliminate the independent force of the separate statutory requirement that the defendant, in killing the victim, must intend to prevent communication with one who is “a law enforcement officer or judge of the United States.” 18 U. S. C. §1512(a)(1)(C) (emphasis added); 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 clause and word of a statute” (internal quotation marks omitted)); Ratzlaf v. United States, 510 U. S. 135, 140–141 (1994) (expressing particular reluctance to “treat statutory terms” as “surplusage” “when the words describe an element of a criminal offense”).

Moreover, because of the frequent overlap between state and federal crimes, the use of a standard based on the word “possible” would transform a federally oriented statute into a statute that would deal with crimes, investigations, and witness tampering that, as a practical matter, are purely state in nature. See, e.g., Dept. of Justice, Bureau of Justice Statistics, (FY 2008 Persons arrested and 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 (In 2008, 0.7% of arrests for marijuana offenses were made by 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 deemed to have significantly changed the federal-state balance in the prosecution of crimes” (internal quotation marks omitted)).

The defendant argues that we should fashion a standard based on the third word, the word “likely.” And we agree that doing so is consistent with the statute’s language and objectives. We consequently hold that (in a case such as this one where the defendant does not have particular federal law enforcement officers in mind) the Government must show a reasonable likelihood that, had, e.g., the victim communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer. That is to say, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal law enforcement officers only if it is 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.

The Government need not show that such a communication, had it occurred, would have been federal beyond a reasonable doubt, nor even that it is more likely than not. For, as we have said, one can act with an intent to prevent an event from occurring without it being true beyond a reasonable doubt (or even more likely than not) that the event would otherwise occur. (Recall the homeowner who closes his shutters in order to prevent damage from a hurricane that may not happen. Supra, at 5–6.) But the Government must show that the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical. Jones, who kills Smith to prevent his communicating with law enforcement officers in general, does not kill Smith to prevent his communicating with Lithuanian law enforcement officers, for there is no reasonable likelihood that any Lithuanian officers would become involved.

V

Fowler argues that the evidence in this case is insufficient to satisfy a “reasonable likelihood” standard. He concedes, however, that he did not raise this question specifically at trial. Tr. of Oral Arg. 21–22. We leave it to the lower courts to determine whether, and how, the standard applies in this particular case.

The judgment of the Court of Appeals for the Eleventh Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
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No. 10–5443

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CHARLES ANDREW FOWLER, AKA MAN, PETITIONER
v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS 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 prove that the defendant intended to prevent a communication which, had it been made, would beyond a reasonable doubt have been made to a federal law enforcement officer. The Court’s vague “reasonable likelihood” standard has no basis in the statutory text and will serve only to confuse judges and juries. Accordingly, although I agree the case should be remanded for the Eleventh Circuit to consider whether the objection to sufficiency of the evidence was preserved or whether the District Court committed plain error, I would hold that there was insufficient evidence to support 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 the communication by any person to a law enforcement officer . . . of the United States of information relating to the commission 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 intent to prevent communication to a law enforcement officer of the United States; or is it satisfied by the mere intent to prevent communication to a law enforcement officer who happens to be a law enforcement officer of the United States?

Happily, a different statutory provision resolves this ambiguity. It states that “no state of mind need be proved with 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 first possibility is wrong, and the second right. But removing the “federal officer” requirement as an element of the statute’s mens rea does not remove it as an element of the actus reus—that is, as an element of the facts that must be proved for conviction. It must be proved, and proved beyond a reasonable doubt, that the communication intended to be prevented was communication to a federal officer. Thus, if a suspect in an investigation murders an informant to prevent him from talking to authorities, but is unaware that the informant was working for the FBI, the suspect would be guilty: He would have committed a murder with the intention of preventing the informant’s communication to authorities about his criminal activities, and the communication he sought to prevent would necessarily have been to federal law enforcement. Likewise, a suspect would be guilty if he committed a murder to prevent a witness from informing law enforcement that he lied on his federal income tax return: He sought to prevent a communication that would have been made to federal officials, because they alone prosecute federal tax violations. But a suspect who commits a murder with the general intent of preventing law enforcement from learning about activities that violate both state and federal law would not be guilty, because the Government would be unable to prove that the communication he sought to prevent necessarily would have been to a federal official.

Applying that standard, this is an easy case. There was evidence that Fowler murdered Officer Horner in order to prevent him from communicating information about Fowler’s criminal activities. But the only evidence proffered by the Government to establish that the communication would have been to a federal law enforcement agent was the fact that a different state police officer, four years later, contacted federal law enforcement about a robbery by Fowler’s confederate—and that only because the statelaw statute of limitations for the robbery had expired. That is not nearly enough to demonstrate Fowler’s guilt beyond a reasonable doubt.

II

The Court gives the statute a broader reading than the one I ascribe. The Government can obtain a conviction, it says, so long as it can prove a “reasonable likelihood” that the communication would have been made to a federal law enforcement officer. I know of no precedent for using a “likelihood” standard rather than the “beyond a reasonable doubt” standard for a finding of fact essential to a criminal conviction; and the justifications the Court presents for that course in the present case are not convincing.

The Court maintains that the Government need not show beyond a reasonable doubt that the communication would have been to a federal officer because “[t]he relevant question concerns the defendant’s intent.” Ante, at 5. But that reasoning is directly contrary to §1512(g)(2), which expressly states that the defendant’s intent is not the relevant question with respect to the federal character of law enforcement officer meant to be deprived of the information. The Court’s observation that “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,” ante, at 6, is completely irrelevant to the question presented. The Court also proclaims that a narrower view “would conflict with the statute’s basic purpose,” which is to prevent witness tampering “at a time when the precise communication and nature of the officer who may receive it are not yet known.” Ante, at 4. It cites no basis for attributing that purpose, and there is none—other than the fact that it supports the Court’s outcome. Another purpose is just as likely—and indeed more likely, since it can be achieved without abandonment of the ancient rule that in criminal prosecutions facts must be found beyond a reasonable doubt. Murder, after all, is a crime, and often a capital crime, under all state laws. There is no reason to ascribe to Congress the “purpose” of transferring murder prosecutions that would ordinarily be brought in state court to federal court based on only a tangential federal interest. Congress was concerned with preserving the integrity and effectiveness of federal prosecutions, and where they are not clearly involved (as the ordinary beyond-a-reasonable-doubt standard would require) a federal murder prosecution has no proper place. Limited as I have suggested, the federal law would still have ample scope, reaching what were surely the principal cases Congress had in mind—the killing of prospective witnesses in federal trials or in ongoing federal investigations. Here, as would be the case in many situations involving a merely hypothetical link to a federal investigation, Fowler murdered a state police officer. The natural place to have prosecuted him would have been state court.

The Court’s analysis is even less persuasive in light of the rule of lenity, under which we must construe ambiguous criminal statutes in favor of the defendant. Here, the Court adopts a kind of rule of harshness, discarding the most straightforward construction of the text in favor of textually implausible one, based on vague intuitions about the statute’s purpose. The Court’s opinion never cites the rule of lenity, probably because it cannot honestly say that the statute is so clear that “there is no ambiguity for the rule 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 a communication to a federal officer is “reasonably likely,” which is less likely than “more likely than not,” but more likely than “reasonably possible.” Ante, at 7–9. I doubt that any jury can grasp the distinction between “you must find that a communication to a federal officer was reasonably likely” and “you must find that a communication to a federal officer was reasonably possible.” Understandably, the Court refuses to give any examples of what “reasonably likely” means, except for an absurd example involving communications with Lithuanian police officers, ante, at 10—which obviously would not be “reasonably possible” either. Indeed, the Court refuses to apply its standard to the facts of this case, leaving that precarious task to the lower court.

III

The dissent adopts a view of the statute that is even broader than the Government’s. It effectively contends that the Government need not prove anything with respect to the fact that the communication sought to be prevented was “to a law enforcement officer . . . of the United States.” As long as the Government can prove that the defendant sought to prevent the communication of information about a federal crime (including a federal crime that is also a state crime) it will necessarily have proved that the “set of law enforcement officers (whose identities were unknown to him)” he had in mind “included law enforcement officers who were employed by the United States.” Post, at 3 (opinion of ALITO, J.). Conviction requires neither any specific intent regarding the federal status of the officer, nor even any likelihood that a communication to a federal officer would have occurred.

The principal defect in this interpretation is that it makes 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 or possible 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—and not sound statutory interpretation.

The dissent claims that my analysis “confuses what the prosecution must prove with what a rational jury may choose to infer in a particular case.” Post, at 6. I find this contention difficult to understand. In the dissent’s view, a properly instructed jury should be required to find neither that the defendant’s mens rea had any connection to a federal officer, nor that the defendant’s actus reus had any connection to a federal officer. It therefore follows that under the dissent’s view, a properly instructed jury should be required to find nothing about a connection to a federal officer beyond the fact that the information related to a federal offense, which means that, unless the jury is acting irrationally or is engaging in jury nullification, the “of the United 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 that a different element (such as a conspiratorial agreement) is satisfied, post, at 6–7, n. 2; but in such cases, the jury is instructed that it is required to make a separate finding to convict (e.g., that a conspiratorial agreement actually occurred). Here, the dissent identifies no separate finding the jury must make beyond the fact of a federal offense. The dissent also observes that when a defendant murders a federal officer to prevent him from communicating information about a nonfederal crime, he does not violate the statute. Post, at 7. This observation convincingly establishes that the statutory words “Federal offense” are not superfluous under the dissent’s view, an observation irrelevant to my point that the dissent makes the statutory words “of the United States” superfluous.

The dissent contends that my interpretation “has no grounding in the language of the statute.” Post, at 4. It asserts that “the text of the statute makes it perfectly clear that the federal officer requirement is exclusively an element of the defendant’s mens rea.” Post, at 5 (internal quotation marks omitted). Perhaps the only thing “perfectly clear” about this statute is that it states the precise opposite of that proposition: “[N]o state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government.” §1512(g)(2).

The dissent’s interpretation would federalize crimes that have no connection to any federal investigation. A person caught by a state police officer with marijuana who murders the state police officer to cover it up could be prosecuted in federal court. That would approach the outer limits of Congress’s enumerated powers. We have adopted a federalism principle that applies when a statute would render “traditionally local criminal conduct . . . a matter for federal enforcement”: “[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution 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 of antifederalism, under which a court must actually ignore a federal connection that Congress prescribed so as to avoid intrusion into traditionally local law enforcement. * * *

Because the Government did not establish that Fowler intended to prevent a communication that, if made, would have been made to a federal law enforcement officer, there was insufficient evidence to convict him of violating §1512(a)(1)(C). Since there remains, however, the question whether Fowler preserved this issue at trial or whether the inadequacy of the evidence constituted plain error, I concur in the Court’s order vacating the judgment and remanding for resolution of that question.

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 10–5443

_________________

CHARLES ANDREW FOWLER, AKA MAN, PETITIONER
v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS 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 heeding the statutory text, the Court has effectively amended the statute 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 the communication by any person to a law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense.” Also important for present purposes is §1512(g)(2), which provides, among other things, that “[i]n a prosecution for an offense under this section, no state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government.”

Putting these two provisions together, what had to be shown 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 Fowler) was a federal law enforcement officer, (4) information concerning the possible commission of a federal crime.

The question before us is whether there was sufficient evidence to support Fowler’s conviction, and thus we must ask whether any rational jury could find that all of the elements noted above were adequately established. See United 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, there was ample evidence to show (1) that Fowler killed Officer Horner, (2) that he did so with the intent to prevent the communication of information about what Officer Horner had seen, and (4) that this information concerned the possible commission of at least one federal crime—for example, conspiracy to rob a bank in violation of 18 U. S. C. §§371, 2113.

Thus, the only remaining question is whether there was enough evidence to permit a rational jury to infer that element (3) had been satisfied. And in connection with this question, it is important to keep in mind three things that element (3) does not require.

First, element (3) does not demand proof that Officer Horner, had he not been killed, would have reported—or even might have reported—what he saw to anyone, much less to a federal officer. Element (3) is solely concerned with a defendant’s intent.

Second, while element (3) requires proof that Fowler intended to prevent some law enforcement officer from learning what Officer Horner had seen, element (3) does not require proof that Fowler had any particular law enforcement officer in mind. Section 1512(a)(1)(C) simply demands that the recipient of the information be “a law enforcement officer.” Thus, it would be enough if Fowler’s intent was to prevent Officer Horner’s information from reaching any federal law enforcement officer. Third, element (3) does not demand proof that Fowler knew 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 federal officer.

When the meaning of element (3) is understood, it is clear that the decision of the Court of Appeals in this case must be affirmed. A rational jury could infer that Fowler’s intent was to prevent information about what Officer Horner had seen from reaching any person who could bring about his arrest and conviction. In other words, a rational jury could infer that Fowler, in effect, had in mind a set of law enforcement officers (whose identities were unknown to him) who could set in motion a chain of events that would land him in prison. And since the information that Officer Horner possessed related to, among other things, the possible commission of a federal crime, a rational jury could infer that this group included law enforcement officers who were employed by the United States. The question presented in this case is as simple as that.

II

The Court begins on the right track, observing that the “relevant question concerns the defendant’s intent” and that therefore “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.” Ante, at 5 (emphasis in original). But the Court veers off course when it goes on to hold that the prosecution was required to show that, if Officer Horner had 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 of the word “prevent.” See ante, at 6–10. The Court starts with the proposition that “apart from mistakes . . . one cannot act with an ‘intent to prevent’ something that could not possibly have taken place regardless.” Ante, at 6 (emphasis in original). I understand this to mean that a rational person will not take action to prevent something that the person knows is not possible. This is true, but it does not follow that a rational person will not take action to 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 prevent being trapped in the event of a fire.

What matters under §1512(a)(1)(C) is not the likelihood that information about a possible federal crime will be conveyed to a federal officer. What matters is the intent of the person who kills or attempts to kill in order to prevent that information from reaching such an officer. The Court’s “reasonable likelihood” test has no basis in the text of §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 witnesskiller’s toleration of risk. According to the Court, §1512(a)(1)(C) does not reach a killer who has so little regard for human life that he or she is willing to murder in order to prevent even a remote possibility that a witness will inform the authorities. It is hard to imagine why Congress would have wanted to draw this line.

III

JUSTICE SCALIA’s interpretation of §1512(a)(1)(C) also has no grounding in the language of the statute. He makes 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 (opinion concurring in judgment), but the text of the statute makes it perfectly clear that “the ‘federal officer’ requirement” is exclusively an element of the defendant’s mens rea.

The statute provides:

“(a)(1) Whoever kills or attempts to kill another person, with intent to—

. . . . .

“(C) 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 or a violation of conditions of probation, parole, or release pending judicial proceedings; “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 first eight words (“Whoever kills or attempts to kill another person”). Everything else—that is, everything that follows the phrase “with intent to”—concerns the defendant’s mens rea.

JUSTICE SCALIA interprets §1512(g)(2) as transforming “the ‘federal officer’ requirement” from an element of the mens rea into an element of the actus reus, see ante, at 2–3, 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 enforcement officer is an officer or employee of the Federal Government.”

What this clearly means, as the Court recognizes, see ante, at 4, is simply that a defendant need not intend to prevent a qualifying communication from reaching an 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 the United States’ superfluous.” Ante, at 6.1 He incorrectly states that under my interpretation “the Government need not 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 long as the Government can prove that the defendant sought to prevent the communication of information about a federal crime (including a federal crime that is also a state crime) it will necessarily have proved that [the set of officers whom 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 my interpretation confuses what the prosecution must prove with what a rational jury may choose to infer in a particular case.

In order to violate §1512(a)(1)(C), a defendant must have an intent regarding two things: first, the substance of the 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 officer or judge).

It is true that evidence regarding the federal character of an offense may lead a rational jury to infer that the officers whom the defendant had in mind included federal officers.2 But those two elements remain distinct; both must be proved beyond a reasonable doubt; and it is entirely possible for a defendant to satisfy one without also satisfying the other. For example, if a uniformed federal officer came upon a defendant during the commission of a purely state offense (for example, a murder, assault, or rape not committed in a federal enclave), the defendant might kill or attempt to kill the officer to prevent the officer from radioing in that information to the officer’s superiors. This defendant would have the intent to prevent a communication to a federal officer, but there would be no violation of the statute because the information would not concern a federal crime. Thus, contrary to JUSTICE SCALIA’s suggestion, under my interpretation, the two intent elements—relating to the substance of the feared 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 the prosecution 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 the statute.

* * *

The Court has effectively amended §1512(a)(1)(C) by adding an element that is nowhere to be found in the text of the statute. And the Court’s new element makes little sense and will create confusion for trial judges and juries. Following the language of §1512(a)(1)(C), I would hold that the evidence in this case was sufficient to establish all of the elements that Congress saw fit to include. I therefore respectfully dissent.

1 The Court makes a related argument. See ante, at 8.

2 There is nothing unusual about the proposition that the proof of one element of a crime may provide a sufficient basis for inferring that another element may be satisfied. To take a common example, overt acts committed in furtherance of a conspiracy may be sufficient to permit a jury to infer that a conspiratorial agreement was reached. But that does not alter the need to prove beyond a reasonable doubt that such an agreement was reached.

3 The Court again makes a related argument. See ante, at 8–9.

Print this transcript Transcript: 

ORAL ARGUMENT OF STEPHEN M. CRAWFORD ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument next this morning in Case 10-5443, Fowler v. United States.

Mr. Crawford.

Mr. Crawford: Mr. Chief Justice, and may it please the Court:

There is a significant disagreement between the circuit court over what the government must prove beyond a reasonable doubt to establish the violation of Title 18, United States Code, section 1512(a)(1)(C).

This death qualifying Federal criminal statute must be construed clearly, consistently, and narrowly.

Yet, the Eleventh Circuit's opinion in this case conflicts with the rulings in factually similar cases: From the Second Circuit, Lopez, and the Fifth Circuit, Causey and other circuit precedent.

More specifically--

Justice Antonin Scalia: Are they all consistent?

Mr. Crawford: --It would be our opinion they are all inconsistent, which is what we need from this Court, Your Honor.

The Eleventh Circuit erred by placing the word "possible" in the statute and, thus, significantly modifying the plain language of the statute, and by proposing a standard of mere possibility--

Justice Elena Kagan: Mr. Crawford, what's your standard?

Sometimes you say "certain"; sometimes you say "likely"; sometimes you say "plausible".

Which -- which is your standard?

Mr. Crawford: --Justice Kagan, we would offer the standard of realistic likelihood, which we cited in our brief on page 17 and page 41, as the appropriate standard in this particular case.

That is language that comes from Lopez, the Second Circuit case, and also places a higher burden on the government, which we believe is important in order to maintain the Federal/State balance that is required in Federal criminal matters.

It is a reasonable standard, more reasonable than what we would characterize the governor's -- the government's standard of "reasonable possible".

In their brief, page 9, 10, and 13, they propose that, which, we would add, differs from what the Eleventh Circuit said.

If you'll remember, in Lopez, the Eleventh Circuit offered the standard "possible".

And yet, the government, backing away from that a bit, in their briefs, on page 9, 10, and 13, used the phrase "reasonably possible".

And while we would concede it is an improvement on the Eleventh Circuit's mere possibility standard, it still is vague.

It still upsets the--

Justice Samuel Alito: The statute speaks of the intent of the defendant.

The defendant must intend to prevent the communication of information about a Federal offense or a possible Federal offense to a law enforcement officer who happens to be a Federal law enforcement officer.

So, it's all a matter of intent.

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 the mind of the defendant?

Mr. Crawford: --We believe that subsection (g) of the statute precludes the -- or takes the mens rea element of the defendant off the table with respect to whether or not the person is a law enforcement official or whether or not there's an ongoing Federal criminal investigation.

We would agree with you that the law does require that the defendant intend to prevent a communication.

The Eleventh Circuit puts the word "possible" in there and says intent to prevent a possible communication.

And that's the rub, Justice Alito, that we're asking this Court to address.

Justice Sonia Sotomayor: Going -- going back to Justice Alito's question: Obviously, the statute's not written to say the intent to preclude a witness from talking to law enforcement officials.

If it were that simple about a Federal crime, then it wouldn't matter whether it was likely, possible.

All that we have -- know is that the witness was -- that the killing was intended to stop them from talking to law enforcement, period.

So, clearly, (g) has to have a meaning different than merely stopping from someone talking to a law enforcement officer, because there has to be some connection to that officer being a Federal officer.

So, going back to Justice Alito's question, how do you define the intent?

What is the defendant's intent?

If he doesn't have to know it's a Federal officer, what does he have to intend?

Mr. Crawford: We believe that you define or would find -- determine the defendant's intent based on the circumstances and the totality of the circumstances of the case.

Justice Sonia Sotomayor: Articulate what the intent has to be.

Mr. Crawford: The intent would have to be a realistic likelihood that there's going to be communication.

Justice Sonia Sotomayor: Does the defendant have to know that?

That's my question.

Does he have to intend to stop the witness from communicating this information to someone that's related to either a Federal judge or a Federal law enforcement agent?

Mr. Crawford: Yes, Your Honor.

That is the gravamen of the offense.

That intent element is essential.

Justice Samuel Alito: What do you say that is--

Justice Antonin Scalia: What does that have to do with reasonable likelihood that it would occur?

I mean, he either intends it or he doesn't intend it.

What--

Mr. Crawford: The--

Justice Samuel Alito: --The reasonable likelihood that this person who was killed -- now, you say "realistic likelihood".

Mr. Crawford: --That is correct.

Justice Antonin Scalia: --The realistic likelihood that this person who was killed might have gone to a Federal officer doesn't at all establish that the intent of the person who killed him was to prevent him from going to that officer, does it?

Mr. Crawford: We--

Justice Antonin Scalia: I mean, it seems to me you have to stand on one stool or the other one.

Either it -- it relates to intent, as the statute says, or all there has to be is a reasonable likelihood that this person who was killed would have gone to a Federal official.

Mr. Crawford: --Well--

Justice Antonin Scalia: Which is it?

Mr. Crawford: --It is our position that we are trying to determine or the jury has to determine a future act.

The prevention of communication denotes the future tense of the word "communicate".

So, what standard should we ask the jury to use in order to determine whether the government has provided evidence that there was going to be a future act prevented?

And so, it is--

Justice Antonin Scalia: No, no, that -- that's not what the statute says.

It doesn't talk about preventing a future act.

It doesn't say anyone who kills someone who would have gone to a Federal official is -- is subject to this penalty.

Mr. Crawford: --Well, Your Honor, we believe--

Justice Antonin Scalia: If that's what it said, your -- your realistic likelihood test would be quite reasonable, but it doesn't say that.

It says that the -- the killing has to be with the intent of preventing him from going.

Mr. Crawford: --The intent to prevent the communication, the communication in the future is what is modified by the word "prevent".

And so, that's what we're -- that's what we're struggling with, Your Honor.

We're trying to come up with a standard as to what--

Justice Elena Kagan: Mr. Crawford, do you think this is right, that the statute says that the person has to prevent the communication to a law enforcement officer?

The statute also says that the law enforcement officer, in fact, has to be a Federal law enforcement officer, but because of subsection (g), the statute does not require that the person intend the communication to be to a Federal law enforcement officer, and that's what we're struggling over, correct?

Mr. Crawford: --That is correct, Your Honor.

Justice Elena Kagan: And -- and in doing that -- I mean, I guess my question to you is the same as my question to the Government, which is where any of these standards come from.

And I agree that the statute does not provide a lot of guidance, but how does one pick between a realistic likelihood or a possibility or a theoretical possibility or any of those things?

Mr. Crawford: We would urge the Court to pick a particular standard, if you're going to, to help us interpret this statute that would strike the appropriate balance between State and Federal criminal jurisdiction.

Justice Samuel Alito: Well, why don't we pick the standard that is set out in the text of the statute?

Let me give you this example:

Let's -- let's hypothesize a very cold, calculating, rational defendant who is planning a Federal crime, let's say the hijacking of an airplane over international waters, and this defendant finds out that his mother has learned about the plot.

Now, he says, well, you know, I think there's a one-tenth of 1 percent chance that mom is going to go to the FBI and turn me in, but in order to prevent that, I'm going to kill her.

I intend -- I kill her with the -- for the purpose of preventing her from going to the FBI, even though I think very, very, very unlikely she's going to do that.

Hasn't that defendant violated this statute?

Mr. Crawford: We believe the jury would make that determination as to whether or not it was likely, realistically likely that mom would report him to Federal law enforcement officials.

That's what we're trying to do, is give the lower courts or the -- or the jury--

Justice Anthony Kennedy: I don't -- I think Justice Alito can protect his own question, but I don't think you've answered it.

You've put in realistic likelihood.

He's asked you whether or not as a matter of law, assuming that you're a juror and you read the statute and you were instructed on the words of the statute and you have Justice Alito's hypothetical, what result?

Mr. Crawford: --The result of the question of intent?

Or what are you asking the result of--

Justice Anthony Kennedy: The reliability under the statute under Justice Alito's hypothetical.

Mr. Crawford: --Then we would say, yes, that the defendant could be found to have violated the statute under that particular hypothetical.

Justice Anthony Kennedy: All right.

Then Justice Alito's next question -- again, he can protect his own line of questioning -- but what does that have to do with realistic likelihood?

There's no realistic likelihood; it was only a half of 1 percent chance that the communication would be made.

So, that takes realistic likelihood off the table, and if it's off the table, you have to give us a different test.

Mr. Crawford: Well, then, I would go with the beyond a reasonable doubt that the government must prove in any criminal matter.

Justice Stephen G. Breyer: That's what I wondered.

You haven't really argued that, so maybe I'm missing something, and this question may be better for the other side, but this statute, as you go through it, has some elements.

The first are facts about the world, killing people; the second has to do with intent, and then they talk about all these different things to stop him from going to a Federal officer; the third says no state of mind need be proved with respect to the fact he works for the Feds.

So, therefore, it's not part of intent.

Now, if it's a circumstance that is an element of the offense and it is not part of the intent of the defendant, then isn't it an element, like all other elements, that you have to prove beyond a reasonable doubt?

Mr. Crawford: We would agree.

That is--

Justice Stephen G. Breyer: You didn't argue it, so nobody's ever adopted this, so I feel I might be barking up the wrong tree.

Now, I grant you, you're not the leaf on the tree that's going to give me the answer I need, which is why I'm wrong, but -- but did you -- you've researched this and haven't really argued this point.

So, why not?

Mr. Crawford: --Well, we understand.

And -- and we are assuming, of course, that all elements of the offense have to be proven beyond a reasonable doubt.

What we've tried to do is provide the Court with some sort of standard that the jury could be instructed as to how to prove that fourth element, and that is this future communication.

Justice Antonin Scalia: You think a realistic likelihood must be proven beyond a reasonable doubt?

Mr. Crawford: We do.

Justice Antonin Scalia: You think a juror can grasp all of that in a juror's mind?

You must find that there is--

Mr. Crawford: I do, Your Honor.

I believe--

Justice Antonin Scalia: --that there is a realistic likelihood beyond a reasonable doubt?

Mr. Crawford: --We believe that given the proper instructions and definitions of the word "realistic likelihood"--

Justice Ruth Bader Ginsburg: Suppose the -- suppose the prosecutor argued a realistic prospect there.

When Gamble confessed, he confessed to the local police, and they immediately communicated that information to the Federal prosecutors.

So, if that's what the government counsel argues, wouldn't that be a realistic prospect -- wouldn't they likely have done the same thing with respect to Fowler that they did with respect to Gamble?

Mr. Crawford: --Well, I would answer that two ways, Justice Ginsburg.

Number one, that is not what happened in the case below.

Once Mr. Gamble decided to -- 4 years after the killing of Officer Horner, to talk to local law enforcement, it was not immediately reported to the Federal law enforcement officials.

It was reported years later.

So, we don't have that immediacy.

Justice Ruth Bader Ginsburg: Was -- what was the time sequence?

How much after Gamble came to the local police did the local police go to the--

Mr. Crawford: Officer Horner was found dead on March of 1998, and he came forward to the local police in 2002 after he was sentenced to 20 years on an unrelated State robbery.

There was then several years before the U.S. Attorney's Office was contacted, and they decided to go forward with the case that is before us today.

Justice Ruth Bader Ginsburg: --Several years after 2002?

Mr. Crawford: 2002 is when he came forward and began talking to law enforcement.

Justice Sonia Sotomayor: When did they go to the Federal authorities after 2002?

Mr. Crawford: I'm sorry?

Justice Sonia Sotomayor: When did they go to the Federal authorities after 2002?

Mr. Crawford: 2003.

Almost -- almost a year afterwards it was -- it was taken over there.

Chief Justice John G. Roberts: What is -- what is your position on the subsequent element or -- or feature about relating to the commission or possible commission of a Federal offense?

Does the defendant have to know that his actions to prevent communication involve an underlying Federal offense?

Mr. Crawford: No, Your Honor, they do not.

You basically take your offense as you find them, just as you take your officer as you find him, and we believe that's the--

Chief Justice John G. Roberts: Why is that?

1512(g)(2) talks about with respect to the law enforcement officer.

Mr. Crawford: --Correct.

Chief Justice John G. Roberts: I would have thought you'd say there's a negative implication that intent has to be shown with respect to everything else, including whether or not this is a possible Federal crime.

Mr. Crawford: Well, we -- we are willing to concede that there was a possible Federal crime that was occurring at the time of Officer Horner's death.

Chief Justice John G. Roberts: Are you willing to concede that the defendant knew that?

Mr. Crawford: I'm willing to concede the defendant -- it need not be proved that the defendant knew that.

Now, if the government can establish evidence of that, we believe that goes to the defendant's intent and to a different element, but the government need not prove that because we believe the subsection (g) takes that off the table.

Justice Samuel Alito: The issue -- the issue here is the sufficiency of the evidence.

So -- so -- and the question is whether a reasonable juror could adopt a certain view of the facts.

Now, couldn't a reasonable juror in this situation take this view of the facts?

Your client killed Officer Horner simply because your client didn't want to go to jail.

He didn't particularly care whether he was going to be prosecuted in State court or Federal court; he just didn't want to go to jail.

So his intent was to prevent the communication of information about the crimes that were being planned to any law enforcement officer who could send him to jail, and that would include a State officer; it also would include a Federal officer.

And, therefore, there's a violation of the statute.

Now, what's wrong with that view of the facts?

Mr. Crawford: We believe, Your Honor, that if that is the reading of the statute, that that would basically federalize murder, that there is always going to be some overlapping Federal crime that is possible, or the possible commission of, and if that becomes the standard or the reading or the interpretation of 1512, then every case is going to be allowed to be prosecuted--

Justice Antonin Scalia: I would think your answer would be that if that were the law, (a)(1)(C) would have omitted the word "Federal".

Mr. Crawford: --I would agree.

Justice Antonin Scalia: It would have said

"by any person to a law enforcement officer. "

And you would -- you would eliminate

"or judge of the United States -- information related to commission or possible commission of a violation of the law. "

period.

Mr. Crawford: I -- I would agree with you.

The Congress sought or deemed fit to put the word "Federal" in there twice, both a Federal offense and a Federal official.

Justice Samuel Alito: No, because if there were -- if the only crimes that were being planned were State offenses, then there would be no chance that -- that the conveying of that information to a Federal law enforcement officer would send the person to jail.

Mr. Crawford: Well, the problem, Justice Alito--

Justice Samuel Alito: They're planning -- they're planning to hold up a convenience store.

It's not a Federal offense; it's a State offense.

Mr. Crawford: --Well--

Justice Samuel Alito: So, the person isn't going to go to jail on a Federal charge.

Mr. Crawford: --I'm not so sure that holding up a convenience store would not qualify under the Hobbs Act or under some other Federal statute that a creative--

Justice Samuel Alito: Well, are you saying that there is no possible offense that's only a violation of State law and Federal law?

Mr. Crawford: --There are.

Justice Samuel Alito: All right.

Mr. Crawford: But there needs to be proof -- there needs to be proof more than just the mere presence of a potential Federal offense.

I believe in the Third Circuit opinion of Bell, which, if I remember it correctly, when you were serving on the Third Circuit, you authored that opinion, that you set up a standard that the Federal crime has to have additional appropriate evidence in order to have a violation under this statute.

That's the problem we have with this case, is that we have Federal crimes -- we'll concede that; the cocaine and the potential or conspiracy to rob a bank -- but there is no additional appropriate evidence to meet the standard here.

So, using the opinion in Bell, we would ask this Court to find that--

Justice Elena Kagan: Mr. Crawford, what would happen if you were dealing with a Federal offense that was a distinctly Federal offense, that really didn't have a State counterpart, like hijacking an airplane?

Would that itself be sufficient to support a prosecution under this statute?

Mr. Crawford: --It would be -- it would make the government's burden easier, because it is more likely than not, it is realistic likelihood that there's going to be Federal involvement, as Justice Scalia pointed out, on a case where it's a threat to kill the President or hijacking or income tax, Federal income tax.

Justice Elena Kagan: Is that actually similar to this case?

These guys were going to rob a bank, which I take it is mostly prosecuted by Federal officials.

Mr. Crawford: Well, I would agree with that.

Certainly not in the State of Florida.

I would say that most State attorneys handle bank robberies as much if not more than the Federal authorities.

But we would concede that bank robbery is a Federal crime.

That's why we need something more than just Federal crime to confer jurisdiction.

We need Federal law enforcement involvement, and we have nothing on this record that shows any involvement of Federal law enforcement.

And that's why the case needs to be reversed.

That's why the Eleventh Circuit's standard of mere possibility is too broad, and we're looking for a rule from this Court that will narrow that and keep that -- that balance of Federal and State criminal jurisprudence where it needs to be.

And, quite frankly, if there's no other questions--

Justice Sonia Sotomayor: I have one last one, the plain error question.

Neither your brief -- I think you're taking the position that simply because we granted cert, we've accepted there's a plain error; is that your position?

Because you haven't really defended against a finding of plain error.

Mr. Crawford: --Well, the trial lawyer did a poor job in articulating the reasons for the judgment of acquittal.

Justice Stephen G. Breyer: I take it you were not the trial lawyer?

Mr. Crawford: Well, unfortunately, Judge, I was.

So, that's why I--

Justice Stephen G. Breyer: Oh, you were?

[Laughter]

Mr. Crawford: --Did a poor job of articulating the judgment of -- the judgment at acquittal time, the reasons that the court should grant it and quite frankly did disservice to the district court judge, who we need to help out more.

But--

Justice Sonia Sotomayor: So we're really -- granted cert to give an advisory opinion?

Mr. Crawford: --No.

Justice Sonia Sotomayor: Because if there's not plain error, how do we reverse this court below?

Mr. Crawford: Well, we believe that when the argument was made at the Eleventh Circuit, that whether the sufficiency of the evidence issue was raised there, and the Eleventh Circuit chose not to rule on that, but chose to rule on a statutory construction of 1512 -- that then, when this Court granted cert, that basically took that issue off the table.

Justice Sonia Sotomayor: So, what you're suggesting is that we announce the standard, hopefully different than the courts below for your sake, and then remand to then let the court apply the new standard?

Mr. Crawford: That is one possibility.

Or--

Justice Sonia Sotomayor: And if it's not, what's the other?

Mr. Crawford: --The other is, is to overrule the Eleventh Circuit and with instructions to enter a judgment of acquittal.

Justice Sonia Sotomayor: How could we do that unless we found there was plain error?

And how can we say there's plain error when this question has vexed so many courts?

Mr. Crawford: I don't know at this particular point, but I do know that we have a problem in the circuits, that the standards being applied are across the board; and we need a bright line, hopefully a bright-line rule, that will help us in the courts below so we can do our job better.

Justice Sonia Sotomayor: I have to say to you that even if a bright-line rule is announced, the real work begins in deciding what evidence is sufficient to meet that burden.

Mr. Crawford: Understood, but it's our position that any of the rules that have been proposed, except maybe the mere possibility, which is overbroad, there still is nothing on this record that is going to show a Federal law enforcement involvement or communication to Federal law enforcement; and we're going to win at any point.

That is our fall-back position on that.

Justice Stephen G. Breyer: Anyway, you've made a fine argument here, even if you didn't make it--

[Laughter]

Mr. Crawford: Thank you, sir.

I'll do better next time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Crawford: Thank you, Your Honor.

Chief Justice John G. Roberts: Ms. Harrington.

ORAL ARGUMENT OF SARAH E. HARRINGTON ON BEHALF OF THE RESPONDENT

Ms Harrington: Mr. Chief Justice, and may it please the Court:

When Congress enacted section 1512(a)(1)(C), it sought to protect the integrity of Federal criminal investigations and prosecutions.

The statute requires the government to prove four things -- an actus reus, a mens rea and two Federal nexus elements, one of which is at issue in this case.

The actus reus is murder, the mens rea that's common to every prosecution under section 1512(a)(1)(C) is an intent to prevent the communication of information to a law enforcement officer.

The first Federal nexus element requires that that information relate to the commission or possible commission of a Federal offense; and the second Federal nexus element, the one at issue in this case, requires that there's a reasonable possibility that the information would have been communicated to a Federal officer if the murder had not occurred.

Justice Elena Kagan: Well, where does that reasonable possibility standard come from, Ms. Harrington?

Ms Harrington: Well, it comes from trying to construe all the different relevant provisions of the statute to make sense together.

Section (a)(1)(C) specifies that a defendant has to have an intent to prevent the communication of the relevant information to a law enforcement officer; section 1515 tells us that the law enforcement officer has to be a Federal law enforcement officer, that's the definitional section; and then section 1512(g)(2) specifies that the government doesn't need to prove any state of mind about the fact that the officer is a Federal officer.

Justice Samuel Alito: Let me give you a hypothetical similar to the one that I gave your -- your friend.

Two men are sitting on a park bench planning the commission of a Federal crime, hijacking of an airplane, and they think they're by themselves; so they're talking about this, and then after they've had a discussion they turn around and they see there's somebody standing very close by; and so they say we have to kill this person to prevent him from going to the FBI, and so they do, and they're prosecuted under this statute.

But then at trial they bring out evidence that the person didn't speak a word of English, only spoke Russian.

So there wasn't any possibility whatsoever that this person was going to report that to the FBI or any law enforcement officer.

Violation of this statute or not?

Ms Harrington: Yes.

In our view there are two different ways to prove a violation of the statute.

One is if you just read section (a)(1)(C), a natural reading of that section is that if a -- if defendant has a specific intent to prevent a communication to a Federal officer specifically, then that's a violation of the statute.

What subsection (g)(2) tells us is that you don't need to prove a Federal officer's specific intent for every violation of the statute, but if you can prove that, then that's enough.

And so in this case there's no evidence that the Petitioner had a specific intent as to a Federal officer, but, for example, if Officer Horner had said, hey, I'm the FBI or hey, I'm calling the FBI right now, and then he had killed him, that would have been enough whether it were true or not.

Justice Samuel Alito: So a realistic probability relates only to the question of whether it would have been conveyed to a Federal officer as opposed to some other law enforcement officer?

Ms Harrington: Yes, that's right, and in section (g)(2) it's described as a circumstance that the Federal, that the officer in question is a Federal officer, and so that's -- that's a fact in the world that the jury needs to make a determination about.

Of course, it's a fact in the world about--

Justice Anthony Kennedy: But suppose in Justice -- please continue.

I interrupted you.

Ms Harrington: --That's okay.

I was going to say it's a fact in the world about something that by -- by the design of the defendant is never going to happen.

The communication that's at issue when you -- when you don't have the Federal officer's specific intent, is a communication that's never going to happen, and so the jury has to make a reasonable prediction about what could have happened in the absence of the murder.

Justice Sonia Sotomayor: What do you see--

Justice Anthony Kennedy: Suppose in Justice Alito's hypothetical, two guys on the park bench, and they find out that the man with the gray coat behind them was listening.

They say, we have to get the man with the gray coat.

They turn around and they shoot a man with a gray coat, but it's a different man.

What result?

Ms Harrington: If they -- if they--

Justice Anthony Kennedy: It wasn't the man that was listening.

They got the wrong guy.

Ms Harrington: --But if -- if the same--

Justice Anthony Kennedy: The intent was there.

Ms Harrington: --So they say, we have to shoot this guy to keep him from talking to the FBI?

That's still a violation of the statute, because they have the requisite intent as to a Federal officer.

Justice Anthony Kennedy: But then your realistic possibility -- the realistic probability standard just falls out of your test.

Ms Harrington: Well, just to be clear, the realistic possibility part only comes in where the defendant doesn't have a specific intent as to the Federal officer specifically.

So, in Justice Alito's hypothetical, the intent was to prevent a communication to the FBI in particular, and if a defendant has that specific Federal officer, a specific intent, it doesn't matter whether it might have happened, would have happened, could have happened.

Where the reasonable possibility standard comes in is in cases like this one, where the defendant has an intent to prevent a communication to a law enforcement officer for sure, but doesn't have any specific intent as to the Federal nature.

Justice Anthony Kennedy: Well, I think it's very difficult to instruct the jury, to say, now, sometimes there's realistic probability, sometimes there isn't.

I just don't know what this jury instruction is going to look like.

Ms Harrington: Well, I think the jury instruction would say, you know, you need to make a determination about what could have happened if the murder hadn't occurred, and if you find that there is a reasonable possibility that there would have been a communication with the Federal officer -- and that can be proved in any number of different ways in any particular case -- then you find that there's a violation of the statute.

Justice Antonin Scalia: Why do you -- why do you need that?

I mean, we're always talking here about -- about murders of a witness, right?

Ms Harrington: Yes.

Justice Antonin Scalia: So you're always talking about a murder that was intended to remove somebody who could incriminate the killer--

Ms Harrington: Right.

Justice Antonin Scalia: --for some other crime.

Why isn't it enough to say you killed that person to prevent the disclosure of the crime, and if the crime was a Federal crime, the disclosure you were preventing was a disclosure to a Federal Court or to a Federal police officer?

Why -- why do you have to create a -- a reasonable likelihood that this person, this particular person, would have gone to a Federal officer rather than a State officer?

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?

Ms Harrington: Well, I think that's an interpretation of the statute the government could live with, but the effect of that--

Justice Antonin Scalia: Oh, the government could more than live with it.

The government could wallow in it.

Ms Harrington: --But that -- indeed.

But that is a more aggressive reading than the reading we're offering, because Congress went to the extra step of defining "law enforcement officer" to mean "Federal law enforcement officer".

So the interpretation you're positing would essentially read that out of the statute.

Justice Antonin Scalia: No, but the statute reads it out of the statute.

It says in (g) that you don't -- the intent element does -- does not require that you know it's a Federal officer or that you know it's a Federal judicial proceeding.

Ms Harrington: Right.

The reason--

Justice Antonin Scalia: Why isn't it enough that you -- you kill somebody to prevent the disclosure of a crime that's a Federal crime?

Ms Harrington: --I mean, Congress could have written the statute that way, but when Congress defined "law enforcement officer" to mean "Federal law enforcement officer", presumably, they meant that to mean something.

And in (g)(2), what they do is they take the Federal nature of the law enforcement officer out of the mens rea part of the offense, but they describe it as a circumstance, and so that presumably is -- has to relate to something that could have happened in the world in the absence of the murder.

Chief Justice John G. Roberts: Isn't -- if you have a Federal -- underlying Federal offense, and I gather you don't think -- that just needs to be shown as a matter of fact, right?

Ms Harrington: Correct.

Chief Justice John G. Roberts: No intent with respect to that.

Isn't it always likely that there's going to be a reasonable possibility, reasonable likelihood, that the communication is going to go to a Federal officer?

Ms Harrington: I--

Chief Justice John G. Roberts: It's a Federal offense.

If the communication covers Federal judges, that's the person who is going to try the case in every case.

Ms Harrington: --Except that not all crimes that could be prosecuted as Federal crimes are prosecuted as Federal crimes.

For example, there are -- most drug crimes are prosecuted by State authorities rather than by Federal authorities, even though--

Chief Justice John G. Roberts: No, obviously not all of them.

Ms Harrington: --Not all of them.

If--

Chief Justice John G. Roberts: So you think that -- that it's not an element of the crime, but that feature of the prosecution depends upon what percentage of the crimes are prosecuted Federally as opposed to by State law?

Ms Harrington: --No, it doesn't.

And I think in a particular case, if the drug crime is the underlying crime, that could serve as the predicate crime.

But I think that what matters is what the jury has reason to conclude, and jurors generally don't understand the way that the Federal system works vis-a-vis the State system.

And so if there's no reason for the jury to think that the information might have gone to Federal officers, then they wouldn't have a basis for a conviction under the statute.

Chief Justice John G. Roberts: Can you instruct the jury that the underlying crime here is a Federal crime and then say the only thing they have to determine under some standard is whether or not the communication would be to a Federal officer?

Ms Harrington: You could -- you could give that instruction, but I -- I think -- I took the hypothetical from Justice Scalia to be that you wouldn't need to show that there's any -- any chance that the communication would have gone to a Federal officer.

And I think that would read the Federal officer definition out of the statute, if all that was required was that the offense be a Federal offense.

And then could you just say, well, you know, in theory -- and it's true that anybody who has information about a commission of a Federal offense, theoretically, could someday choose to give that information to a Federal officer, but that--

Justice Samuel Alito: Let's say the case -- that this case arises -- exactly this case arises in two different adjacent jurisdictions.

In one, the local sheriff and the local district attorney hate the Feds.

They never talk to them unless they absolutely have to.

And so if Officer Horner had taken the information that he learned to the local sheriff, there's no chance whatsoever that they would have referred that over to the FBI or the U.S. attorney for prosecution in Federal Court, so no realistic possibility there.

In the other jurisdiction, right next door, the local sheriff and the local DA don't want to be bothered with bank robbery trials.

They send all of those over to the FBI and the U.S. attorney, so there's a very high probability the information would have gotten to the Federal authorities.

Now, would this case come out differently depending on the jurisdiction?

Ms Harrington: --I think it would, Justice Alito.

I think in the first case, the jury wouldn't have a reasonable basis to conclude that the information might have gone to Federal officers in the absence of the murder.

In the second case, they would have a very reasonable basis to make that inference.

Justice Anthony Kennedy: I don't see what that has to do with the defendant's intent.

Ms Harrington: It doesn't have anything to do with the defendant's intent.

Again, there are two different ways, in our view, to prove a violation of the statute.

One is if the defendant has a specific intent about preventing communication to a specifically Federal officer.

If the Federal nature of the officer is in his mind, that's one way to prove a violation of the statute.

If he doesn't have that specific intent, which is going to be in most cases, honestly, that are prosecuted under the statute, then you have to prove that there's some reasonable possibility that that communication would have happened--

Justice Stephen G. Breyer: Okay, where do we get this--

Justice Anthony Kennedy: Then you have to change your answer -- right?

Maybe you don't -- to my hypothetical where they shoot the wrong man.

Ms Harrington: --But in your hypothetical, which I think you borrowed from Justice Alito, there was a specific intent to prevent a communication with the FBI, and so there they have the Federal officer specific intent.

Justice Antonin Scalia: Isn't it rather strange, trials?

It's such a weird issue to submit to the jury in a criminal trial, you know, whether this witness who was -- whether there's a reasonable likelihood that this person who was killed would have gone to a Federal law enforcement authority rather than the State law enforcement authority?

Ms Harrington: But the reason it's weird is because the design of the defendant in killing the victim is to prevent something from happening, and then the jury is asked to make a -- make a determination of whether that thing might have happened or not.

And so you don't -- if you place too high a burden on the government, you're basically giving a defendant who acts efficiently and early in the criminal process a leg up, because you're -- if you require the government to prove that it's more likely than not that the communication in question would have happened with the Federal officer, then what you're doing is you're not giving sufficient protection to those communications to Federal officers that would cause a Federal investigation to be initiated.

Right?

You're -- it's not how--

Justice Sonia Sotomayor: --I'm a little bit confused.

Tell me exactly why you see a difference between "realistically likely" or "reasonably possible".

Tell me -- tell me what fine line exists between those two and what quantum of evidence more you would need under one as opposed to the other.

Ms Harrington: --Well, I guess what we see -- where we see the -- sort of the ballpark is, either the government needs to prove that it's more likely than not that it would have happened, or they just need to prove that it's a reasonable possibility.

And so we would opt for the second of those two options.

You could--

Justice Sonia Sotomayor: Tell me what the difference in proof would look like.

Ms Harrington: --The difference in proof -- I mean, it depends on the particular case.

Right?

In many of the cases that are actually prosecuted under the statute, there's already a Federal investigation underway, and in those cases, this element--

Justice Sonia Sotomayor: "Likely" is proven?

Ms Harrington: --Easy to prove, yes.

Justice Sonia Sotomayor: Okay.

Ms Harrington: So the cases that are at issue are cases like this, where the murder happens almost contemporaneously with the Federal criminal activity.

And in those cases, nobody's had a chance to even think about initiating an investigation, and so -- but those initial communications are vital to protecting the Federal interest and protecting the integrity of Federal investigations.

Justice Sonia Sotomayor: Well, but you still had to prove, didn't you, or wouldn't you have a measure of obligation to have a witness get up on the stand and say, the FBI always looks at bank robberies?

In the absence of that, aren't we asking the jury to speculate that, merely because it can be a Federal crime -- bank robbery can be both a State and a Federal -- that it's reasonably possible it would go, not everything you yourself said not everything goes to the Federal government, so--

Ms Harrington: Right.

And if I -- I would like to try to separate.

There is the question of what is the element of the crime, how -- how do we define it, then what -- what is the evidence you would introduce to satisfy that element.

In this case, certainly the government could have introduced evidence that -- that local law enforcement officers report all evidence of bank robberies to the FBI.

That would have been enough.

They didn't introduce that evidence.

What they introduced instead was that when local law enforcement officers later got the information through other sources, they then shared the information with Federal officers.

If they hadn't proven that, our contention is it wouldn't -- the evidence would not have been sufficient to sustain the conviction.

Justice Antonin Scalia: Miss Harrington, we -- we've gotten along for over 200 years without this particular Federal law, and I, therefore, am not inclined to give it a -- a sweeping broad interpretation, and I think it's so weird to submit to the jury, you know, how likely is it that this dead person would have gone to a Federal law enforcement officer rather than a State law enforcement officer.

Why isn't an entirely satisfactory reading of this statute the following, that if you -- if, indeed, you have in mind specifically the FBI or a Federal proceeding, you're done?

If, however, you don't have in mind specifically a Federal proceeding, but you have in mind a particular proceeding, which is a Federal proceeding, or a particular officer who is a Federal officer, then you're done, but anything else isn't covered?

So the intent has to be the intent to stop a particular proceeding or -- or to stop the person going to a particular officer.

If that proceeding is Federal or if the officer is Federal, you have the defendant -- but otherwise, the laws that we've lived under for 210 years will continue to apply, and -- and -- and this new Federal statute will not apply.

Ms Harrington: Well, Justice Scalia, I think it would be insufficiently protective of the Federal interests to say that you could only -- that you would look at what the defendant had in mind about what the chain of communication might be if he didn't murder the person who was witnessing the crime.

Most defendants don't think, wow, you know, if Officer Horner is going to call the dispatch, the dispatch is going to call, you know, the other person in the Haines City police department, they're going to call the sheriff, they're going to call the Federal law enforcement officers, most defendants wouldn't have -- wouldn't be thinking down that -- sort of down the chain of communication that way.

But the statute criminalizes killing someone to prevent the communication, not a communication, not a particular communication, but the communication by any person of information relating to the commission of a Federal crime.

Justice Antonin Scalia: I suspect that what this mainly addressed is -- is killing of witnesses, which has become very common in some jurisdictions, witnesses in criminal trials, and you know darn well what trial is involved.

It's a trial that's already underway, and if it's a Federal trial and you kill the witness, you're -- you're liable under this statute.

What -- what is covered beyond that is if -- if you know that the information is going to be given to a Federal officer, then they have you also, but I don't know why we should read the statute any more broadly than that and -- and have these weird questions submitted to the jury how likely was it that this -- this dead person would have gone to a Federal officer rather than a State officer and -- and inquire into the question that Justice Alito asked, you know, how is there a friendly relationship between State and local officials so that the State official would -- I don't want to get into that.

I don't think the juries do.

Ms Harrington: I mean, many of these things are not -- in many of these cases, this is not an element that's difficult to prove.

If, as you say, it's a witness in a particular investigation or is going to testify in a particular trial who has been murdered, then it's easy to prove that the Federal officer nexus has been satisfied.

But Congress was also trying to protect information that would cause Federal investigations to be initiated.

Those are important communications.

If you allow murders of people who witness crimes in order to prevent them from reporting that information to law enforcement officers, where the reporting of that information would have caused a Federal investigation to be initiated, then you're insufficiently protecting the Federal interest in prosecuting Federal crimes.

Justice Elena Kagan: Ms. Harrington, what would be -- what would happen if instead of Officer Horner, the custodian of the cemetery had come across these people and the exact same thing had happened, would you then say that there would be -- that there would be a prosecution -- there could be a prosecution under this statute?

Ms Harrington: Not unless the custodian of the cemetery was on his cell phone saying I'm calling 911.

So, if we -- what's important--

Justice Elena Kagan: So is that the difference, that Officer Horner was on his cell phone?

Ms Harrington: --Well, in terms of whether the evidence that was presented in this case was sufficient, it was sufficient because the jury knew two things.

They knew, first, that Officer Horner definitely would have communicated the information that's relevant in the case to local law enforcement officers; and second, they knew that when local law enforcement officers later acquired that information from other sources, they shared it with Federal officers.

So if you didn't know the first step, if you didn't know that definitely the person who was killed would have communicated to local law enforcement officers, then there wouldn't be a reason -- first of all, you might not have -- have the correct specific intent to prevent communication with a law enforcement officer which is required.

Justice Stephen G. Breyer: --I do have a question I would like to ask at some point.

Are you finished?

Ms Harrington: Yes.

Go ahead.

Justice Stephen G. Breyer: Because this is very interesting.

I normally think purpose is important.

In this one I don't, and suppose I'm right, purpose has nothing to do with this.

The problem here is with the words "intent" and "prevent".

Ms Harrington: Yes.

Justice Stephen G. Breyer: And it's how they're used in ordinary English.

So let me give you an example, even odder than Justice Alito's.

But I think it illustrates the point -- the question.

Imagine you put your son in his room, and they say why do you keep your son in his room doing his homework?

Because I wanted to prevent him from going to the movies.

That's why.

Now, when you say that, we would impute, correctly, you wanted to prevent him from going to a Hollywood movie.

You wanted to prevent him from going to an old movie, prevent him from going to a new movie, but prevent him from going to a Lithuanian movie?

Now, why does that sound so odd?

Because there's no realistic possibility that he would go to a Lithuanian movie.

Okay.

[Laughter]

Now, if that's the problem, if that's the problem, the words that capture that problem, are their words "realistic likelihood", not the words "possibility".

So if I have to choose between those two, and that is the problem, why don't I choose their solution?

Ms Harrington: I guess in our view it's less important which words you pick--

Justice Stephen G. Breyer: All right.

Ms Harrington: --Than it is what they mean.

And, so, if by realistic -- realistic probability or realistic likelihood--

Justice Stephen G. Breyer: They use realistic likelihood and if someone were to tell me in my odd example there is no realistic likelihood he would go to a Lithuanian movie, that seems to describe perfectly whether I would or would not say in trying to prevent him from going to the movies, you try to prevent him from going to a Lithuanian movie.

And your -- yours doesn't -- I mean it's a -- I agree it may not make that much difference, but we have to choose some form of words.

Justice Antonin Scalia: Understand this, you mean it would have been okay if he went to a Lithuanian movie?

[Laughter]

Justice Stephen G. Breyer: No, it wouldn't have been okay, but you don't normally say of a person when a thing is really weird, but he wants it to happen that doesn't do it for that -- it's so unlikely.

I shoot an arrow into the air hoping it will fall on my enemy.

All right?

It's not going to.

But if it does, we say he intended it.

You see, that -- that's the kind of linguistic problem that I think is present.

Ms Harrington: --Right.

And it's not -- it doesn't perfectly map on to the problem in this case, of course, because there is subsection (g)(2), which specifically says you take intent out of the equation.

And, so, I'll concede it's an awkwardly constructed statutory provision.

But I think the important--

Justice Stephen G. Breyer: It's not awkwardly constructed.

It's trying to get odd possibilities, and if it is trying to get those odd possibilities about which we normally would say he did intend to prevent that from happening, then those things we're trying to leave out are those where there is no realistic possibility that they would happen.

Ms Harrington: --I would agree with that, so what we would like--

Justice Stephen G. Breyer: Then let's take their words.

Ms Harrington: --Well, we -- again, it depends what it -- what you mean by realistic possibility or likelihood.

If you mean more likely than not, then we would say that's too high a burden on the government.

We want to include odd possibilities but not outlandish possibilities.

Justice Sonia Sotomayor: --I'm not sure I understand your answer to Justice Kagan's hypothetical.

We -- we -- there's no proof that this particular officer who was shot was going to pick up the phone to the FBI.

He may have overheard this.

He would have called his fellow officers, and somebody, probably his supervisor, or the DA's office was going to make the decision whether to call the FBI.

So, how is that different from the cemetery caretaker, who is going to call it in probably to 9-1-1, and he doesn't particularly have an idea of who's going to get involved or not because it's really not his issue.

Why is there a difference between those two situations?

And isn't the question, going back to what Justice Breyer asked, was, what's the likelihood that this is going to get investigated by the Federal Government?

Why is it reasonably possible?

Anything is reasonably possible -- or almost anything.

Ms Harrington: Well, I mean, we -- we attach the word reasonably to possible to sort of to wall off cases that are theoretically possible, right?

So again, we would like to cover odd occurrences but not outlandish occurrences, so it's not just anything that's possible.

It's -- the jury has to have a reason to think it might have happened in this case.

Justice Sonia Sotomayor: So I guess then your burden is only to show that it's a Federal offense, because why you need to show anything else because "reasonably possible" encompasses every single Federal offense or anything that could be termed a Federal offense.

Ms Harrington: With respect, Your Honor, we don't -- we don't think that's correct.

I think there needs to be a reason for the jury to think that if this communication had not been prevented, the information eventually would have gone to Federal officers.

The reason--

Chief Justice John G. Roberts: But why isn't that -- maybe I asked this already, but why isn't that the case when you're dealing with the Federal offense?

Ms Harrington: --Because, the reality is that not information -- that all local law enforcement officers share every piece of information about Federal offenses with--

Chief Justice John G. Roberts: Oh, but there's a possibility.

Ms Harrington: --There's a possibility, but I think--

Chief Justice John G. Roberts: A realistic possibility.

Ms Harrington: --And again that's -- if that's how the Court wanted to go, that's something the government could live with.

But--

Justice Ruth Bader Ginsburg: Did you say before that -- that presenting this to the jury; everybody's worried about what the jury will think; that when Gamble came and confessed, the local official went to -- to the Federal?

I think we were told that there was a year lapse between when the local police knew about Gamble's confession and when--

Ms Harrington: --Well, there's a 10-month lapse between when Gamble went to the local law enforcement officers and when Gamble testified before the Federal grand jury.

So presumably the Federal -- the AUSA was brought in sometime in that 10-month period.

So, it wasn't that long a lapse.

Justice Sonia Sotomayor: Do you know what the difference was between the State and the Federal penalties?

Ms Harrington: I don't know the difference.

I mean, Gamble when he was -- hew was indicted eventually for 14 Federal offenses to which he pled guilty and was sentenced initially to life plus 107 years.

Some of the -- some of the crimes for which he was indicted could not have been prosecuted in State court; but presumably he could have gotten a life sentence for murdering a police officer if he had been prosecuted in State court as well.

Justice Elena Kagan: So Ms. Harrington, suppose Officer Horner had come to the scene and instead of seeing evidence that there was a robbery about to occur, had seen evidence only of drug use.

Now that might be a Federal offense, but typically it wouldn't be prosecuted in -- in a Federal court.

Would you say then that the statute is not satisfied?

Ms Harrington: No, we would say it is satisfied if everything else was the same.

Justice Elena Kagan: Because?

Ms Harrington: Because it -- it's still information relating to the commission or possible commission of a Federal offense, we still know that Officer Horner definitely would have transmitted that information to local law enforcement officers, and we still know that when local law enforcement officers later got the information, they would -- they transmitted it to Federal--

Justice Elena Kagan: Oh, but that's 4 years later.

That was way past the time when this incident occurred.

Ms Harrington: --It's true.

And just to be clear, we're not saying that that communication that happened in 2002 is the communication that was prevented or intended to be prevented.

What we're saying is that the fact when local cops got the information in 2002, they shared it with Federal officers, that that's a reason for the jury to infer that they would have done the same thing if they had gotten the information--

Justice Elena Kagan: You're saying the fact that they got this information 4 years later, shared it with law enforcement officers after they knew that a murder had occurred as a result of an incident would be the same kind of inquiry that they would make at that time?

Ms Harrington: --Well, I think--

Justice Elena Kagan: Before the murder?

Ms Harrington: --Well, of course, we don't know what would have happened, because Officer Horner was murdered to prevent any of this from happening, but in fact, the evidence before the jury suggested that it wasn't the murder that motivated them to share the information with Federal officers; it was one of the underlying robberies.

It was the robbery of the Holiday Inn, which was a Federal offense.

The statute of limitations had run on that in State court, and so they wanted to -- but they wanted to maximize the amount of charges they could bring against Chris Gamble.

And so they decided to share that information with Federal officers.

So it wasn't the murder that made the difference; it was one of the underlying Federal offenses that was charged against -- as one of the predicate crimes against Petitioner here.

Justice Antonin Scalia: Would -- would you not acknowledge that the statute is vague enough that the intent which it requires could be either the intent to prevent testimony from being given to a particular Federal proceeding or to a particular Federal officer or the specific intent to withhold it from a proceeding or an officer who happens to be or which happens to be Federal, but which the defendant is not aware is Federal?

It could bear that meaning, couldn't it?

Ms Harrington: It could, but Justice Scalia, I want to point out that subsections (A) and (B) of (a)(1), those are the provisions that talk about official proceedings.

Subsection (a)(1)(C), which is the provision that's at issue here, does not talk about official proceedings.

It talks about transferring information to Federal -- to law enforcement officers or to judges.

And so there doesn't -- I think by -- just by reading, sort of a plain reading of those provisions together means that for subsection (C), you don't need to have an official proceeding that was in anyone's mind or that was underway at the time.

Justice Antonin Scalia: Oh, I acknowledge that, but a particular judge or -- or the conduct of a Federal proceeding, it could -- it could require specific intent of a proceeding or a judge or an officer which happens to be a Federal officer.

Ms Harrington: It could, yes, and again, I think if the defendant has a Federal officer specific intent in mind when he commits the murder, that's enough.

Justice Samuel Alito: So if a defendant has in mind a particular officer, then there's a potential violation of the statute, but if the defendant just kills for the purpose of preventing this from going to any Federal -- any officer who might happen to be a Federal officer, then there's no violation under this -- under this reading of the statute?

Ms Harrington: No, there is -- there is violation, if there's a reasonable possibility--

Justice Samuel Alito: Under the interpretation that's been suggested to you, that would be the distinction?

Ms Harrington: --I'm not -- I don't mean to give that -- this is a case where there's not a specific Federal officer intent.

I may have misunderstood the question as it was put to me.

If there's no specific Federal officer intent, but you can prove that there's a reasonable possibility that one of the communications prevented by the murder would have been with a Federal officer--

Justice Stephen G. Breyer: I think the question was.

Justice Antonin Scalia: It's unfair for him to ask you what my -- what my hypothetical was.

I think the answer is yes.

Ms Harrington: --Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Crawford, you have 7 minutes remaining.

REBUTTAL ARGUMENT OF STEPHEN M. CRAWFORD ON BEHALF OF THE PETITIONER

Mr. Crawford: Justice Kagan, if I could go to a question that you posed: If this Court were to find that the mere presence of a possible Federal offense was appropriate to give Federal jurisdiction under this particular statute, then I would ask the Court to consider the effect that that would have on criminal practice throughout this country.

There is significant overlap between Federal and State criminal laws, and if we are simply going to confer Federal jurisdiction on this particular statute because of the mere possibility of a Federal offense, you have created a huge exception and, we would respectfully submit, create problems for that delicate balance between State and Federal.

Justice Ruth Bader Ginsburg: What's delicate about robbery?

I mean, robbery is clearly a Federal crime, and that was what the -- that was what Horner observed, and they were -- they were planning for the robbery the next day.

Mr. Crawford: Justice Ginsburg, we would agree that bank robbery is a Federal crime.

The question is: Is there any evidence in the record that would show there was going to be any Federal involvement in that Federal crime?

Every day, Federal crimes are prosecuted in the State system under their State crimes, but absent some Federal involvement, you have obliterated that line between State and Federal criminal practice, and that is too broad, or that, we believe, upsets this delicate balance that we must maintain.

If I could, I want to go to Lithuania and suggest this.

Justice Stephen G. Breyer: I'm slightly regretting bringing up that.

Mr. Crawford: There have been a number of cases cited at the Circuit Court level that give examples of how the government can meet their proof, and quite frankly, it's not difficult.

In Romero, there is a Federal -- ongoing Federal law enforcement official investigation going on, so if there is an ongoing Lithuanian movie--

Justice Stephen G. Breyer: You agree basically on the point?

Mr. Crawford: --I do.

Justice Stephen G. Breyer: I think where you have -- where somebody tries to prevent a general thing, we normally say you also prevent -- tries to prevent those things that are specific that fall within the general term, but not every oddball example.

Mr. Crawford: Exactly.

Justice Stephen G. Breyer: And what you want is something that rules out the oddball examples.

And your words are "reasonable likelihood", and you'll say if it's an oddball example, you can't hold him guilty of that, if it turns out that in this case the Federal example is an oddball example.

My question really is to you: If you win on that, then are you going to go back and argue there was not one piece of evidence whatsoever that there was any reasonable likelihood that the Feds would investigate your case?

Mr. Crawford: We would argue that there is -- the record is insufficient to establish reasonable likelihood of Federal involvement.

And I can't put it any better than that.

Thank you, Justice Breyer.

Thank you, Mr. Chief Justice.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Justice Stephen G. Breyer: The second case is Fowler.

And we -- we thought the last term was technical to try this one.

The federal witness tampering statute makes it a crime to "kill another person, with intent to prevent the communication to a law enforcement officer of the United States, communication of information relating to the possible commission of a set -- of a Federal offense".

A separate provision adds that the Government need not prove the defendant's state of mind, remember you had to prove his intent, but you need not prove his state of mind with respect to whether the officer, that's the person whom the victim was prevented from communicating with because the defendant killed him.

Alright, so, he was prevented with com -- you don't have to prove whether that officer worked for the United States, that's -- you don't have to prove that.

But what, if anything, does the Government have to show about the likelihood that that victim, if he had not been killed, if he had decided to report the crime would really have communicated to a federal officer.

That's the problem.

Here, roughly speaking, the defendant killed the victim, who was a local policeman, intending the -- he intended the -- the defendant in killing him to prevent that victim from reporting about a bank robbery he was planning, the killer, to any officer.

The defendant began simplifying, I think, he wasn't thinking, "I'm going to stop him from communicating with a federal policeman."

He wasn't thinking, "I'm going to stop him from communicating with a local policeman."

He was just thinking, "I don't want him to communicate, period."

Not with anyone.

And he just left it at that.

So now, what does the Government, in that situation, have to do to show that that anyone included a federal officer?

Now, you could argue that the Government has to show beyond a reasonable doubt that the victim would've communicated with a federal officer.

But we think that burden is too strict and that's because the statute penalizes killing with a particular intent, namely, an intent to prevent a communication with a federal officer, and you can easily have an intent even if there is great doubt that the communication would ever taken place.

Think of a homeowner who puts up shutters with the intent of preventing hurricane damage.

Now, he has that intent even if there is doubt, a lot of doubt about whether there will really be a hurricane.

On the other hand, one might argue that the Government need only show that it is possible that the victim would have communicated with a federal police officer.

But we think that burden is too lenient.

It would expand the scope of the federal witness tampering statute to include many situations where state witness tampering is -- a state witness tampering is really the issue.

And that's because many state crimes are also federal crimes, and communication with the federal officer about a federal crime is almost always possible.

We do not believe Congress would've intended an expansion of the statute's scope of this kind.

Finally, one might argue the Government must show there was a reasonable likelihood that the victim would've communicated with a federal police officer.

We find this standard not too strict, not too lenient but just right.

And for reasons which we set out at greater length than our opinion, we adopt that standard.

We vacate the decision below and we remand the case.

Justice Scalia has filed an opinion concurring in the judgment.

Justice Alito has filed the dissenting opinion which Justice Ginsburg has joined.