Fowler v. United States , 131 S. Ct. 2045 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
FOWLER v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 10–5443. Argued March 29, 2011—Decided May 26, 2011
While preparing to rob a bank, petitioner Fowler and others were dis
covered by a local police officer, whom Fowler killed. Fowler was
convicted of violating the federal witness tampering statute, which
makes it a crime “to kill another person, with intent to . . . prevent
the communication by any person to a [Federal] law enforcement offi
cer” of “information relating to the . . . possible commission of a Fed
eral offense,” 18 U. S. C. §1512(a)(1)(C). Rejecting Fowler’s argument
that the evidence was insufficient to show that he had killed the offi
cer intending to prevent him from communicating with a federal offi
cer, the Eleventh Circuit held that a showing of a possible or poten
tial communication to federal authorities was sufficient.
Held: In such circumstances, the Government must establish a
§1512(a)(1)(C) violation by showing there was a reasonable likelihood
that a relevant communication would have been made to a federal of
ficer. Pp. 3–10.
(a) In a §1512(a)(1)(C) prosecution, “no state of mind need be
proved with respect to the circumstance . . . that the law enforcement
officer is an . . . employee of the Federal Government,” §1512(g)(2).
Thus, the Government must prove (1) a killing, (2) committed with a
particular intent, namely, an intent (a) to “prevent” a “communica
tion” (b) about “the commission or possible commission of a Federal
offense” (c) to a federal “law enforcement officer.” P. 3.
(b) Nothing in §1512(a)(1)(C)’s language limits it to instances in
which the defendant has some identifiable law enforcement officers
particularly in mind. 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 officers—at a time when
2 FOWLER v. UNITED STATES
Syllabus
the precise communication and nature of the officer who may receive
it are not yet known. Hence, the statute covers a defendant, like pe
titioner, who kills with intent to prevent communication with any
and all officers. The Court must consequently decide what, if any
thing, the Government must show about the likelihood of a hypo
thetical communication with a federal officer where the defendant did
not think specifically about any particular communication or its re
cipient. Pp. 4–7.
(c) To determine what the Government must prove in such in
stances, the Court looks to the dictionary definition of the statutory
word “prevent,” which means rendering an “intended,” “possible,” or
“likely” event impractical or impossible by anticipatory action. No
one suggests that the word “intended” sets forth the appropriate
standard here. The Government and the Eleventh Circuit would rest
their standard on the word “possible.” But that standard would
eliminate the independent force of the statutory “federal officer” re
quirement, and would extend the statute beyond its intended, basi
cally federal, scope. Fashioning a standard based on the word
“likely” is consistent with the statute’s language and objectives.
Thus, 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 officers
only if there is a reasonable likelihood under the circumstances that,
in the absence of the killing, at least one of the relevant communica
tions 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. But it must show that the likelihood of communica
tion to a federal officer was more than remote, outlandish, or hypo
thetical. Pp. 7–10.
(d) Because Fowler’s argument that the evidence is insufficient to
satisfy a “reasonable likelihood” standard was not raised at trial, the
lower courts must determine whether, and how, the standard applies
in this case. P. 10.
603 F. 3d 883, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, THOMAS, SOTOMAYOR, and KAGAN, JJ., joined.
SCALIA, J., filed an opinion concurring in the judgment. ALITO, J., filed
a dissenting opinion, in which GINSBURG, J., joined.
Cite as: 563 U. S. ____ (2011) 1
Opinion of the Court
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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 en
forcement officers (or any specific individuals) particularly
in mind. The question before us concerns what, if any
thing, 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 circum
stances, 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
2 FOWLER v. UNITED STATES
Opinion of the Court
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 authori
ties” 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 estab
lished”), 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 offi
cials”); 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).
Cite as: 563 U. S. ____ (2011) 3
Opinion of the Court
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 per
son 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 Gov
ernment 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 pre
vent a communication (b) about the commission or possi
ble commission of a federal offense but (c) to law enforce
ment 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).
4 FOWLER v. UNITED STATES
Opinion of the Court
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 com
municating 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 com
municating 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 commu
nication 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 en
forcement officers”); id., at 19 (witness “[i]ntimidation
offenses are particularly insidious and do violence to
traditional notions of justice because no one can be con
victed of a crime which is not reported. [Section 1512]
reaches intimidation offenses committed before a crime is
reported to the appropriate authorities”). Hence the stat
ute covers a defendant who kills with intent to prevent
Cite as: 563 U. S. ____ (2011) 5
Opinion of the Court
communication with law enforcement officers generally
(i.e., with any and all law enforcement officers). And we
must consequently decide what, if anything, the Govern
ment must show about the likelihood of a hypothetical
communication with a federal law enforcement officer in
circumstances where the defendant did not think specifi
cally about any particular communication or its recipient.
In these circumstances, the application of the statute is
not as simple. We cannot determine whether the individ
ual 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 communica
tion’s recipient. §1512(g)(2). What, then, must the Gov
ernment 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 rele
vant question concerns the defendant’s intent. The Gov
ernment 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
6 FOWLER v. UNITED STATES
Opinion of the Court
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, simi
larly, 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” some
thing. But (apart from mistakes, as in our Red Sox exam
ple) 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
Cite as: 563 U. S. ____ (2011) 7
Opinion of the Court
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 diction
ary 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 “in
tended,” 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 Gov
ernment to prove it would prevent the statute from apply
ing 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 communi
cations that the murder . . . was intended to prevent would
have been with a federal law enforcement official”); 603
8 FOWLER v. UNITED STATES
Opinion of the Court
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 offi
cers is almost always a possibility. Thus, to allow the
Government to show only a mere possibility that a com
munication would have been with federal officials is to
permit the Government to show little more than the possi
ble 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 omit
ted)); 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 ele
ment 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, investi
gations, and witness tampering that, as a practical mat
Cite as: 563 U. S. ____ (2011) 9
Opinion of the Court
ter, 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 Con
gress 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 reasona
bly 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 communica
tion, 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
10 FOWLER v. UNITED STATES
Opinion of the Court
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 communica
tion 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 gen
eral, 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.
Cite as: 563 U. S. ____ (2011) 1
SCALIA, J., concurring in judgment
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 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
2 FOWLER v. UNITED STATES
SCALIA, J., concurring in judgment
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 enforce
ment officer is an officer or employee of the Federal Gov
ernment.” §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 in
tended 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 neces
sarily have been to federal law enforcement. Likewise, a
suspect would be guilty if he committed a murder to pre
vent a witness from informing law enforcement that he
lied on his federal income tax return: He sought to pre
vent 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 learn
ing 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
Cite as: 563 U. S. ____ (2011) 3
SCALIA, J., concurring in judgment
to prevent him from communicating information about
Fowler’s criminal activities. But the only evidence prof
fered by the Government to establish that the communica
tion 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 state
law 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 rea
sonable 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 infor
mation. The Court’s observation that “a defendant can kill
a victim with an intent to prevent the victim from commu
nicating with federal law enforcement officers even if
there is some considerable doubt that any such communi
cation would otherwise have taken place,” ante, at 6, is
completely irrelevant to the question presented.
4 FOWLER v. UNITED STATES
SCALIA, J., concurring in judgment
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 be
yond-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 Con
gress 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 ambigu
ous 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
Cite as: 563 U. S. ____ (2011) 5
SCALIA, J., concurring in judgment
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 hope
lessly 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 rea
sonably likely” and “you must find that a communication
to a federal officer was reasonably possible.” Under
standably, 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
6 FOWLER v. UNITED STATES
SCALIA, J., concurring in judgment
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 in
formation the defendant seeks to prevent from being com
municated 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 dis
sent 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.
Cite as: 563 U. S. ____ (2011) 7
SCALIA, J., concurring in judgment
The dissent also observes that when a defendant murders
a federal officer to prevent him from communicating in
formation 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 statu
tory 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 “per
fectly 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 con
veys 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.
8 FOWLER v. UNITED STATES
SCALIA, J., concurring in judgment
* * *
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 ques
tion 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.
Cite as: 563 U. S. ____ (2011) 1
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 lan
guage 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 Offi
cer Horner or someone else) from communicating,
(3) to a person who (whether or not known as such to
2 FOWLER v. UNITED STATES
ALITO, J., dissenting
Fowler) was a federal law enforcement officer,
(4) information concerning the possible commission of 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 evi
dence 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.
Cite as: 563 U. S. ____ (2011) 3
ALITO, J., dissenting
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. Sec
tion 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 ra
tional jury could infer that this group included law en
forcement 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
4 FOWLER v. UNITED STATES
ALITO, J., dissenting
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 “rea
sonably 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 pre
vent 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 witness
killer’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
Cite as: 563 U. S. ____ (2011) 5
ALITO, J., dissenting
(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 con
ditions 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 re-
spect 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
6 FOWLER v. UNITED STATES
ALITO, J., dissenting
officer whom the defendant knows to be a federal, as op
posed to a state or local law enforcement officer. But noth
ing in this provision adds to the actus reus elements in
§1512(a)(1)(C).
JUSTICE SCALIA’s principal criticism of my interpreta
tion 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 com
munication sought to be prevented was ‘to a law enforce
ment 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 enforce
ment 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 particu
lar 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 commis
sion or possible commission of a federal crime) and, sec
ond, the recipient of the communication (a law enforce
ment 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
——————
1 The Court makes a related argument. See ante, at 8.
2 There is nothing unusual about the proposition that the proof of one
Cite as: 563 U. S. ____ (2011) 7
ALITO, J., dissenting
must be proved beyond a reasonable doubt; and it is en
tirely 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 pre
vent 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 re
cipient—are not redundant.
JUSTICE SCALIA invokes a rule that disfavors the inter
pretation 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, how
ever, 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.
——————
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.
8 FOWLER v. UNITED STATES
ALITO, J., dissenting
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 there
fore respectfully dissent.