OPINION OF THE COURT
FOWLER V. UNITED STATES
563 U. S. ____ (2011)
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 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
in-definite 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
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 last-mentioned
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 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&=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/;
(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 insuf-ficient 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.
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