Fowler, Federalization, and Statutory Interpretation

Brown v. Plata grabbed the headlines last week, but the Supreme Court’s decision in Fowler v. United States (No. 10-5443) also merits attention for what it has to say about the federalization of criminal law and the interpretation of criminal statutes.  The case also nicely illustrates the way that the Court’s stereotypical ideological divisions (so starkly manifest in Brown) break down when the Court moves out of politically charged areas of constitutional law (e.g., the Fourth and Eighth Amendments) and into the interpretation of federal criminal statutes.

Here’s what happened.  While preparing to rob a bank, Fowler and some confederates were discovered by a local police officer, whom Fowler then killed.  Fowler was later convicted in federal court under the 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 officer” of “information relating to the . . . possible commission of a Federal offense,” 18 U.S.C. § 1512(a)(1)(C).

Fowler’s intended bank robbery counts as a federal offense, and Fowler clearly killed the police officer in order to prevent him from communicating information relating to this offense.  The only question in the case was whether Fowler had the intent to prevent communication to a federal law enforcement officer.  There was no evidence that Fowler actually contemplated that his victim might report the crime to federal authorities, as opposed simply to calling in additional local cops.  But does the statute really require the defendant to be thinking about federal involvement?

The Eleventh Circuit interpreted this element such that the government need only prove “possible or potential” communication to federal authorities.  One problem with this interpretation is that it means it will almost always be a federal offense when a witness is killed to prevent the witness from reporting any crime to any authority.  Given how broad the federal criminal code is and how much it overlaps with state codes, it will usually be possible to say that communication with federal authorities regarding a federal offense was “possible or potential.”  The Eleventh Circuit’s interpretation would thus mark a significant expansion of the already wide reach of federal criminal law.

Against this backdrop, three options were on the table for the Supreme Court: (1) adopt the Eleventh Circuit’s interpretation, (2) require the government to prove that the victim actually would have reported the crime to federal officers, or (3) find a middle ground.  (A fourth possible option, that the government must prove that the defendant intended to prevent the victim from reporting the crime to a person whom the defendant knew to be a federal officer, was apparently ruled out in light of a portion of the statute saying that “no state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government,” 18 U.S.C. § 1512(g)(2).)

An ideologically unusual coalition of six justices (Breyer, Roberts, Kennedy, Thomas, Sotomayor, and Kagan) chose the middle-ground option.  Specifically, they held that the government “must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer” (slip op. at 1).

The various opinions in the case put on display a number of the different considerations the Court takes into account when interpreting criminal statutes.  Thus, for instance, the majority rejected the Eleventh Circuit’s approach on the basis of the surplusage and federalism canons:

Often, when a defendant acts in ways that violate state criminal law, some or all of those acts will violate federal criminal law as well. And where a federal crime is at issue, communication with federal law enforcement officers is almost always a possibility. Thus, to allow the Government to show only a mere possibility that a communication would have been with federal officials is to permit the Government to show little more than the possible commission of a federal offense. (That is to say, the latter showing by itself would almost automatically show the statutorily necessary connection with a federal law enforcement officer.) The “possibility” standard would thereby weaken or eliminate the independent force of the separate statutory requirement that the defendant, in killing the victim, must intend to prevent communication with one who is “a law enforcement officer or judge of the United States.” 18 U. S. C. §1512(a)(1)(C) (emphasis added); see §1515(a)(4) (defining “law enforcement officer” as “an officer or employee of the Federal Government” (emphasis added)). Cf. Duncan v. Walker, 533 U. S. 167, 174 (2001) (normally we must give effect “to every clause and word of a statute” (internal quotation marks omitted)); Ratzlaf v. United States, 510 U. S. 135, 140–141 (1994) (expressing particular reluctance to “treat statutory terms” as “surplusage” “when the words describe an element of a criminal offense”).

Moreover, because of the frequent overlap between state and federal crimes, the use of a standard based on the word “possible” would transform a federally oriented statute into a statute that would deal with crimes, investigations, and witness tampering that, as a practical matter, are purely state in nature. See, e.g., Dept. of Justice, Bureau of Justice Statistics, (FY 2008 Persons arrested and booked, Drug offense: Marijuana), http://bjs.ojp.usdoj.gov/ fjsrc; Dept. of Justice, Federal Bureau of Investigation, 2008 Crime in the United States (Arrests), http:// www2.fbi.gov/ucr/cius2008/arrests/index.html; (Table 29), http://www2.fbi.gov/ucr/cius2008/data/table_29.html (In 2008, 0.7% of arrests for marijuana offenses were made by federal law enforcement officers); see also Jones v. United States, 529 U. S. 848, 858 (2000) (“[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes” (internal quotation marks omitted)).  (9-10)

I think it is particularly interesting to see the Court breathe new life into the Jones principle that federal statutes should not be interpreted so as to “significantly change[] the federal-state balance in the prosecution of crimes.”  If applied consistently and rigorously, the canon could have implications for the interpretation of many federal criminal statutes.

In a concurring opinion, Justice Scalia adopted an even more aggressively narrowing interpretation (option 2 above).  I think his criticisms of the majority opinion are on target, as is his basic approach to interpreting the statute:

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. . . .

Section 1512(a)(1)(C) of Title 18 makes it a federal crime “to kill another person, with intent to . . . prevent the communication by any person to a law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense.” Viewed in isolation, this provision contains an ambiguity: Does the mens rea of the statute include a specific intent to prevent communication to a law enforcement officer of the United States; or is it satisfied by the mere intent to prevent communication to a law enforcement officer who happens to be a law enforcement officer of the United States?

Happily, a different statutory provision resolves this ambiguity. It states that “no state of mind need be proved with respect to the circumstance . . . that the law enforcement officer is an officer or employee of the Federal Government.” §1512(g)(2). This makes clear that the first possibility is wrong, and the second right. But removing the “federal officer” requirement as an element of the statute’s mens rea does not remove it as an element of the actus reus—that is, as an element of the facts that must be proved for conviction. It must be proved, and proved beyond a reasonable doubt, that the communication intended to be prevented was communication to a federal officer.  (1-2)

Scalia also invokes the rule of lenity and criticizes the majority’s mushy purposivism:

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 . . . . 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 . . . a federal murder prosecution has no proper place. Limited as I have suggested, the federal law would still have ample scope, reaching what were surely the principal cases Congress had in mind—the killing of prospective witnesses in federal trials or in ongoing federal investigations. Here, as would be the case in many situations involving a merely hypothetical link to a federal investigation, Fowler murdered a state police officer. The natural place to have prosecuted him would have been state court.

The Court’s analysis is even less persuasive in light of the rule of lenity, under which we must construe ambiguous criminal statutes in favor of the defendant. Here, the Court adopts a kind of rule of harshness, discarding the most straightforward construction of the text in favor of textually implausible one, based on vague intuitions about the statute’s purpose.  (4)

Rounding out the opinions, Justices Alito and Ginsburg (another strange-bedfellows pairing) dissented, favoring the Eleventh Circuit’s approach.

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