United States v. Terrence Smith ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-7301
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TERRENCE SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:05-cr-00061-JFM-6; 1:11-cv-00953-JFM)
Argued: May 14, 2013 Decided: July 25, 2013
Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judge Floyd joined.
ARGUED: C. Justin Brown, LAW OFFICE OF C. JUSTIN BROWN,
Baltimore, Maryland, for Appellant. Albert David Copperthite,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
NIEMEYER, Circuit Judge:
In his § 2255 motion, filed in the district court, Terrence
Smith challenged the jury instruction given in his underlying
trial for witness tampering as defined in 18 U.S.C. § 1512(a).
Specifically, Smith argued that the instruction misstated the
federal nexus required for the offense, given the Supreme
Court’s decision in Fowler v. United States, 131 S. Ct. 2045
(2011). Fowler, which was handed down after Smith’s conviction
became final, abrogated Fourth Circuit precedent on which the
jury instruction was based. The district court concluded that
the instruction did indeed violate Fowler and that Fowler
created a new substantive right that should be afforded to
Smith. But it found that the effect or influence of the error
was harmless and therefore denied Smith’s § 2255 motion.
In reviewing the district court’s order, we apply to this
§ 2255 case the same harmless-error standard that we do in
§ 2254 cases, as articulated in Brecht v. Abrahamson, 507 U.S.
619, 623 (1993) (holding that error is harmless if it did not
have a “substantial and injurious effect or influence in
determining the jury’s verdict” (internal quotation marks
omitted)), rather than the standard of review for harmless error
on direct appeal, see Chapman v. California, 386 U.S. 18, 24
(1967) (holding that on direct appeal, an error must be harmless
beyond a reasonable doubt). Under Brecht, we conclude that the
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instructional error did not have a substantial and injurious
effect or influence in determining the jury’s verdict. We
therefore find that the error was harmless and accordingly
affirm the district court’s order denying Smith’s § 2255 motion.
I
On January 15, 2005, members of the Bloods gang in the
Harwood neighborhood of Baltimore, Maryland, firebombed the home
of Edna McAbier, who was the president of the Harwood Community
Association. On the night of the attack, Terrence Smith, the
leader of the gang, called a meeting of the gang’s membership at
his house and told them that he wanted to firebomb McAbier’s
house in retaliation for her contacting the police about drug
activity in the neighborhood. McAbier had indeed been
contacting the Baltimore City Police Department “[p]ractically
every day” by telephone or email about drug-related activity in
her neighborhood and had provided the Department with a detailed
log of criminal activity in the community, complete with names
and addresses of suspected individuals. Following the gang’s
meeting, members carried out the attack, using gasoline-filled
beer bottles.
Smith and other gang members were indicted and convicted
for this conduct. Among the five counts on which Smith was
convicted, three involved witness tampering: two substantive
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counts for violations of 18 U.S.C. § 1512(a)(1)(C) and 18 U.S.C.
§ 1512(a)(2)(C), respectively, and one conspiracy count.
At the close of the government’s case, Smith filed a motion
for a judgment of acquittal, arguing that the government had
failed to establish the federal nexus required to convict him
under the witness tampering statutes because the government
failed to show that McAbier had contacted federal authorities or
was likely to do so. ∗ The government argued that the federal
nexus was established as a matter of law because drug
trafficking, about which McAbier complained, was a federal
offense. After an extended discussion, the district court
denied Smith’s motion for acquittal but granted a motion by the
government to reopen its case to present additional evidence
regarding the likelihood that McAbier’s complaints would have
been referred to federal authorities.
Special Agent Robert Brisolari of the Drug Enforcement
Administration (“DEA”) then testified that the Baltimore City
Police Department was the “biggest source” of referrals for drug
∗
Prescribing the federal nexus, § 1512(a)(1)(C) punishes
“[w]hoever . . . attempts to kill another person, with intent to
. . . prevent the communication by any person to a law
enforcement officer or judge of the United States of information
relating to the commission or possible commission of a Federal
offense”; and § 1512(a)(2)(C) punishes “[w]hoever uses physical
force . . . with intent to . . . hinder, delay, or prevent the
communication to a law enforcement officer or judge of the
United States of information relating to the commission or
possible commission of a Federal offense.”
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cases to his field office and that it contributed the most
officers to local DEA task force groups. He stated that six of
the nine task force groups in the area were joint task forces,
“meaning that they’re comprised of [federal] agents as well as
sworn task force officers from other police departments.” He
also explained that the DEA accepts cases that “are considered
street level trafficking,” especially when “street level drug
organizations [are] involved in crack cocaine, heroin or
cocaine.”
At the close of the evidence, the district court instructed
the jury that to establish the necessary mens rea for witness
tampering, the government must prove that Smith “acted knowingly
and with the unlawful intent to induce Mrs. McAbier to hinder,
delay, or prevent the communication of information to a law
enforcement officer of the United States.” The court continued:
In order to satisfy [the intent] element, it is not
necessary for the government to prove that the
defendant knew he was breaking any particular criminal
law nor need the government prove that the defendant
knew that the law enforcement officer is a federal law
enforcement officer. What the government must prove
is that there was a possibility or likelihood that the
information being provided by Ms. McAbier about drug
activities would be communicated to a law enforcement
officer of the United States, irrespective of the
governmental authority represented by the officers to
whom she personally communicated information.
(Emphasis added).
5
The jury convicted Smith on all counts, and the district
court sentenced him to 960 months’ imprisonment. On direct
appeal, Smith argued that the district court misinstructed the
jury on the witness tampering counts, and we rejected Smith’s
arguments, finding that the federal nexus required by the
offense was satisfied because “[a] portion of the potential
investigation that [the defendant] sought to prevent ‘happened
to be federal’ because drug trafficking is a federal offense.”
United States v. Harris, 498 F.3d 278, 286 (4th Cir. 2007). We
explained further, “So long as the information the defendant
[sought] to suppress actually relate[d] to the commission or
possible commission of a federal offense, the federal nexus
requirement [was] established.” Id. Responding to Smith’s
argument that the government failed to prove the “‘possibility’
that the information that McAbier would have provided would have
been communicated to federal authorities,” we stated that “the
federal nature of the offense at issue at least created the
possibility that she might have decided in the future to contact
federal authorities.” Id. at 286 n.5. Although we affirmed
Smith’s convictions, we remanded the case to correct a
sentencing error.
At resentencing, Smith again received a 960-month sentence,
and we thereafter affirmed. United States v. Smith, 344 F.
App’x 856 (4th Cir. 2009) (per curiam). The Supreme Court
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denied Smith’s petition for a writ of certiorari. Smith v.
United States, 130 S. Ct. 2417 (2010).
On April 12, 2011, Smith filed a motion under 28 U.S.C.
§ 2255, raising numerous issues regarding the effectiveness of
his trial counsel. Shortly thereafter, the Supreme Court
decided Fowler v. United States, 131 S. Ct. 2045 (2011)
(rejecting the “possibility” of a federal communication as the
appropriate standard for satisfying the federal nexus and
holding that the government had to prove a “reasonable
likelihood” of such communication). Smith then filed a
supplement to his § 2255 motion, challenging the witness
tampering instruction at his trial, inasmuch as the instruction
allowed the jury to find that the defendant interfered with the
mere “possibility” of the witness’ communication to federal
authorities.
The district court acknowledged the applicability of
Fowler’s holding to Smith’s trial but found that the
instructional error was harmless. It noted that “the evidence
at trial established that federal and local authorities worked
closely with one another through DEA task forces and that the
task forces targeted the very type of criminal
activity -- violent street drug trafficking.” The court
concluded that it was “virtually inevitable that the information
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provided by Ms. McAbier would eventually be communicated to
federal authorities and that federal prosecution would ensue.”
Smith filed a timely notice of appeal, and the district
court granted his motion for a certificate of appealability.
II
In instructing the jury at the underlying trial on federal
witness tampering, the district court stated, as relevant to the
required federal nexus of the conduct, that the government must
prove that “there was a possibility or likelihood that the
information being provided by Ms. McAbier about drug activities
would be communicated to a law enforcement officer of the United
States.” The instruction given was consistent with then-
existing Fourth Circuit precedent, as we recognized on Smith’s
direct appeal. See United States v. Harris, 498 F.3d 278, 284-
86 (4th Cir. 2007).
After Smith’s conviction became final and he had filed his
§ 2255 motion, the Supreme Court handed down its decision in
Fowler v. United States, 131 S. Ct. 2045 (2011), in effect
overruling Harris. Fowler held that the witness tampering
statute, 18 U.S.C. § 1512, requires the government to show a
“reasonable likelihood” that, had the victim communicated with
law enforcement officers, at least one of the communications
would have reached a federal officer. Id. at 2052. In defining
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the reasonable-likelihood standard, the Court explained that the
government “need not show that such a communication, had it
occurred, would have been federal beyond a reasonable doubt, nor
even that it [was] more likely than not.” Id. (emphasis added).
But the government is required to show “that the likelihood of
communication to a federal officer was more than remote,
outlandish, or simply hypothetical.” Id.; see also United
States v. Ramos-Cruz, 667 F.3d 487, 495 (4th Cir. 2012)
(applying the Fowler standard).
In considering Smith’s § 2255 motion, the district court
agreed with Smith that Fowler created a new right that was
applicable to Smith and that, under Fowler, the instruction that
it gave was now erroneous. But it concluded that the error was
harmless.
Smith now contends either that the error was structural and
therefore not subject to harmless-error analysis or that it was,
in fact, not harmless.
To begin with, we agree that the Fowler right has been
“newly recognized” by the Supreme Court and that it is
retroactively applicable to cases on collateral review. See 28
U.S.C. § 2255(f)(3); Teague v. Lane, 489 U.S. 288 (1989). The
Fowler right, by changing the standard for determining the
federal nexus in witness tampering, placed the conduct covered
by the district court’s jury instruction beyond the scope of
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conduct made criminal by the statute. See United States v.
Bousley, 523 U.S. 614, 620 (1998).
That brings us to Smith’s first argument -- that the
instructional error was “not amenable to harmless error review,”
because it was “a fundamental error in the proceedings.” See
Sullivan v. Louisiana, 508 U.S. 275, 279-82 (1993). In short,
he argues that the error was structural and thus subject to
automatic reversal.
It is true that structural errors “require reversal without
regard to the evidence in a particular case,” United States v.
Curbelo, 343 F.3d 273, 281 (4th Cir. 2003) (internal quotation
marks omitted), because they “affect[] the framework within
which the trial proceeds, rather than simply an error in the
trial process itself,” Arizona v. Fulminante, 499 U.S. 279, 310
(1991). But the Supreme Court has found errors to be structural
in only a “very limited class of cases.” Johnson v. United
States, 520 U.S. 461, 468 (1997). Thus, “if the defendant had
counsel and was tried by an impartial adjudicator, there is a
strong presumption that any other errors that may have occurred
are subject to harmless-error analysis.” Rose v. Clark, 478
U.S. 570, 579 (1986).
The instructional error in this case, which related only to
the federal nexus for witness tampering, did not taint the trial
“from beginning to end,” nor did it undermine “the framework
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within which the trial proceed[ed].” Fulminante, 499 U.S. at
309-10. Indeed, the Supreme Court has noted that even a “jury
instruction that omits an element of the offense” does not
“necessarily render a trial fundamentally unfair.” Neder v.
United States, 527 U.S. 1, 8 (1999) (emphasis added) (internal
quotation marks omitted); see also United States v. Jefferson,
674 F.3d 332, 362-64 (4th Cir. 2012) (reviewing erroneous
honest-services wire fraud jury instruction for harmlessness).
Inasmuch as the district court misinstructed the jury on only an
element of the witness tampering offense, we conclude that the
error does not fall within that narrow category of structural
errors that are immune to harmless-error analysis.
Smith contends that even if we conduct a harmless-error
analysis, we should apply the standard of review for direct
appeals stated in Chapman v. California, 386 U.S. 18 (1967), and
not the standard of review for collateral appeals set forth in
Brecht v. Abrahamson, 507 U.S. 619 (1993). Under Chapman, an
error is harmless if it is “clear beyond a reasonable doubt that
a rational jury would have found the defendant guilty absent the
error.” Neder, 527 U.S. at 18 (interpreting Chapman, 386 U.S.
at 24). By contrast, under Brecht, “the standard for
determining whether habeas relief must be granted is whether the
. . . error ‘had substantial and injurious effect or influence
in determining the jury’s verdict.’” Brecht, 507 U.S. at 623
11
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
Smith argues that the Chapman standard “is more appropriate in
this case because the constitutional error was not revealed
until after the appeal was perfected, and therefore there exists
no need to defer to the decision below, as Brecht urges.”
Although the Brecht standard clearly applies in § 2254
habeas cases, the Supreme Court has not directly addressed
whether it applies in § 2255 cases. Nor have we addressed that
question. See United States v. Owen, 407 F.3d 222, 229 (4th
Cir. 2005) (“In the context of a section 2255 motion alleging
constitutional error, such as Owen’s, the Fourth Circuit has not
decided whether the harmless-beyond-a-reasonable-doubt standard
of Chapman applies, as it would on direct appeal, or whether the
less stringent test of Brecht v. Abrahamson applies, as it would
on review of a section 2254 petition” (internal citations
omitted)). After a careful reading of both Brecht and Chapman,
we now conclude that the standard set forth in Brecht applies to
§ 2255 cases.
In Brecht, the defendant challenged his state conviction
pursuant to 28 U.S.C. § 2254 on the grounds that the State used
his post-Miranda silence for impeachment. Brecht, 507 U.S. at
626. The Court rejected Chapman’s beyond-a-reasonable-doubt
standard, noting that the “substantial and injurious effect”
standard is “better tailored to the nature and purpose of
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collateral review . . . and application of a less onerous
harmless-error standard on habeas promotes the considerations
underlying our habeas jurisprudence.” Id. at 623. The Court
then identified several reasons for distinguishing between
direct and collateral review, including: (1) structural
differences between the two forms of review; (2) the “finality
of convictions that have survived direct review within the state
court system”; (3) “comity and federalism”; and (4) the notion
that “liberal allowance of the writ . . . degrades the
prominence of the trial itself.” Id. at 633-35 (internal
quotation marks omitted).
To be sure, Brecht is distinguishable from this case
because in Brecht the state court system had evaluated the
claimed error on direct appeal. A § 2255 case, on the other
hand, originates in federal court and therefore does not
implicate the comity and federalism factor that the Court
considered in Brecht; there is no risk of “[f]ederal intrusions
into state criminal trials” because state courts are not
involved. Brecht, 507 U.S. at 635 (internal quotation marks
omitted).
The other three factors identified in Brecht, however, are
fully and directly applicable to collateral review under § 2255.
First, the structural nature of collateral review is the same
for both § 2254 and § 2255 cases -- in both, the court must
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decide whether a defendant is in custody “in violation of the
Constitution or laws of the United States.” 28 U.S.C. §
2255(a); 28 U.S.C. § 2254(a). Second, society has the same
interest in the finality of federal convictions as it does in
state convictions. See United States v. Frady, 456 U.S. 152,
166 (1982) (“But the Federal Government, no less than the
States, has an interest in the finality of its criminal
judgments”). And finally, the risk of degradation of the writ
is present in both federal § 2255 cases as in state-habeas §
2254 cases.
Moreover, the fact that the Fowler issue was not addressed
by the district court in the first place and by the court of
appeals on direct review under Chapman does not preclude the
application of Brecht. The Supreme Court has applied the Brecht
standard to a § 2254 case even when no lower court has conducted
a Chapman review of the alleged error. See Penry v. Johnson,
532 U.S. 782, 791, 795 (2001) (applying Brecht’s “substantial
and injurious effect” test where the state court did not conduct
a harmlessness review under Chapman because the state court
determined that no constitutional error had occurred); see also
Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir. 2002) (“Even
though no party in Penry asserted that Brecht was an
inappropriate standard, we are not inclined to disregard this
clear signal from the Court that Brecht applies to an AEDPA case
14
even when no proper harmless error assessment occurred in state
court”).
We conclude, therefore, that the Brecht standard of review
for harmlessness is better suited to § 2255 cases than is the
Chapman standard applicable to direct appeals.
In applying Brecht to § 2255 cases, we join other courts of
appeals that have done so. See, e.g., United States Dago, 441
F.3d 1238, 1246 (10th Cir. 2006) (“[W]e hold that the Brecht
standard applies when conducting a harmless-error review of a §
2255 petitioner's claim that the jury in his or her trial was
[improperly] instructed”); United States v. Montalvo, 331 F.3d
1052, 1058 (9th Cir. 2003) (per curiam) (same); Ross v. United
States, 289 F.3d 677, 682 (11th Cir. 2002) (“[A]pplication of
the Brecht standard to [an instructional] error on collateral
appeal is the appropriate approach”); Murr v. United States, 200
F.3d 895, 906 (6th Cir. 2000) (noting that “for purposes of
federal habeas corpus review, a constitutional error that
implicates trial procedures shall be considered harmless unless
it had a ‘substantial and injurious effect or influence in
determining the jury's verdict’”); see also Santana-Madera v.
United States, 260 F.3d 133, 140 (2d Cir. 2001) (concluding that
an instructional error was harmless under either the Brecht or
the Chapman standard but noting that “[g]enerally, when
evaluating presumptively correct convictions on collateral
15
habeas review, the harmless error inquiry for errors of a
constitutional dimension is whether the error had substantial
and injurious effect or influence in determining the jury's
verdict” (internal quotation marks omitted)). But see Lanier v.
United States, 220 F.3d 833, 839 (7th Cir. 2000) (applying
Chapman on § 2255 review).
In sum, we hold that Brecht’s harmless-error review
standard, applicable to § 2254 cases, is also applicable to
§ 2255 cases. Accordingly, we review error for harmlessness in
§ 2255 cases for whether the error had a substantial and
injurious effect or influence in determining the jury’s verdict.
III
In arguing that the instructional error was not harmless,
Smith observes that it is “impossible to say” whether he would
have been convicted of witness tampering had the correct
“reasonable likelihood” instruction been given. But the issue
is more refined. We must determine whether the erroneous
instruction had a substantial and injurious effect or influence
on the jury’s verdict, and to resolve this, we consider the
effect or influence that the erroneous instruction had in light
of the evidence presented.
Here, the jury was instructed that to prove the federal
nexus of witness tampering, the government must prove that
16
“there was a possibility or likelihood that the information
being provided by Ms. McAbier would be communicated to a
[federal] law enforcement officer.” Fowler rejected the use of
the word “possibility” but approved the use of the word
“likelihood.” Because the district court used the words in the
disjunctive, the jury was left to consider the “possibility”
standard, which Fowler rejected.
Nonetheless, in approving the use of a “reasonable
likelihood” standard, the Fowler Court constricted a dictionary
definition of likelihood -- meaning a “probability,” Merriam-
Webster’s Collegiate Dictionary 721 (11th ed. 2007) -- and
stated explicitly that in using the word likelihood, it did not
mean “more likely than not.” Fowler, 131 S. Ct. at 2052. The
Court’s standard demands much less, requiring the government to
show only that “the likelihood of communication to a federal
officer was more than remote, outlandish, or simply
hypothetical,” id., a relatively low bar.
Properly understood, therefore, the “reasonable likelihood”
standard in Fowler requires that the government establish the
federal nexus by presenting evidence showing that a
communication with a federal officer was more than a possibility
but less than a probability, so long as the chance of the
communication was not remote, outlandish, or simply
hypothetical.
17
In applying this standard to the record in this case, we
conclude that the instructional error did not have “substantial
and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 623. The evidence satisfying the
“reasonable likelihood” standard was substantial. McAbier was
complaining about large scale gang activity and drug trafficking
in her neighborhood. To be sure, the presence of drug
trafficking alone might not be enough to satisfy the “reasonable
likelihood” standard, but the federal nature of drug
trafficking, plus “additional appropriate evidence” does meet
the standard. United States v. Bell, 113 F.3d 1345, 1349 (3d
Cir. 1997) (noting that federal nexus in § 1512(a)(1) “may be
inferred by the jury from the fact that the offense was federal
in nature, plus additional appropriate evidence” (internal
citation omitted)); see also United States v. Ramos-Cruz, 667
F.3d 487, 497 (4th Cir. 2012) (adopting the Third Circuit
standard).
Here, the government did put forth “additional appropriate
evidence” showing the reasonable likelihood that McAbier’s
reports would have been brought to the attention of federal law
enforcement officers. DEA Special Agent Brisolari testified
that the DEA field office’s “biggest source of information” was
the Baltimore City Police Department and that the DEA worked in
close cooperation with the Baltimore City Police Department,
18
specifically mentioning its participation in six of nine task
forces. Agent Brisolari also noted that even street level drug
cases come to the attention of the DEA. This case also involved
gang activity, elevating the profile of the drug trafficking.
In short, we conclude that the instructional error in this
case was harmless as defined in Brecht. The district court’s
denial of Smith’s § 2255 motion is accordingly
AFFIRMED.
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