10-5443 Fowler v. U.S.

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Witness Tampering
Sufficiency of evidence

To prove witness tampering, the Government must show there was a reasonable likelihood that a relevant communication would have been made to a federal officer.

To determine what the Government must prove in such instances, 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” requirement, and would extend the statute beyond its intended, basically 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 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. But it must show that the likelihood of communication to a federal officer was more than remote, outlandish, or hypothetical.

603 F. 3d 883, vacated and remanded.

10-5443 Fowler v. U.S.

Breyer, J.; Scalia, J., concurring; Alito, J., dissenting.

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