Yesterday, the Supreme Court agreed to decide what “federal nexus” must be proven in a murder prosecution under 18 U.S.C. § 1512(a)(1)(C). The statute makes it a federal crime 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.” The specific question before the Court is whether a defendant may be “convicted of murder under § 1512(a)(1)(C) without proof that information regarding a possible federal crime would have been transferred from the victim to federal law enforcement officers or judges.” Additionally, the case presents interesting questions regarding the interpretation of statutory state-of-mind requirements and the scope of federal criminal jurisdiction.
The decision below was United States v. Fowler, 603 F.3d 702 (11th Cir. 2010). Here’s what happened.
Fowler and others were preparing to rob a bank when a municipal police officer stumbled upon them. The officer was immediately suspicious — no doubt because the men were wearing dark clothes and gloves on a warm spring day in Florida — and actually recognized one of Fowler’s companions from previous robberies. The men succeeded in disarming the officer and eventually killed him.
Fowler was convicted of the murder, but argued on appeal that the government failed to prove a sufficient federal nexus for the crime. Specifically, Fowler argued that the government must prove it was likely that the victim would have communicated information about a federal offense to federal authorities. Bank robbery is, of course, a federal offense, but would the slain cop have informed federal agents of Fowler’s intended crime? It is certainly plausible, but the government apparently failed to introduce any evidence to that effect.
No matter, held the Eleventh Circuit. The lower court observed, “In construing the statute [as he did], Fowler focuses on the victim’s state of mind instead of, as the statute requires, the defendant’s state of mind.”
I think the court was correct in this criticism of Fowler’s position. The statutory language about communicating information to a federal agent appears after the phrase “with intent to.” As I read it, this is a pure state-of-mind element and requires no proof of what the slain officer actually would have done.
On the other hand, I’m not sure the Eleventh Circuit quite ended up in the right place, either. The court held that there must merely be a “possible or potential communication to federal authorities” (as opposed to a likely communication). Although the court’s holding is not entirely clear in this regard, it sounds to me like the court may have made a similar mistake to Fowler’s by converting a subjective, state-of-mind requirement into an objective element. The real question, which I don’t see the Eleventh Circuit clearly recognizing, is whether Fowler had the intent to prevent communication with a federal agent. Even though such communication was objectively possible, it may be that the possibility never actually occurred to Fowler before the killing. If so, he is not guilty of violating § 1512(a)(1)(C).
Given the way the question is framed for the Supreme Court, the Court may not need to clarify the culpability requirements of § 1512(a)(1)(C). However, I would welcome a reaffirmation by the Court of the need for lower courts to engage with statutory culpability requirements in a careful, rigorous fashion. These are, after all, absolutely central to the justification of punishment and the determination of offense severity.
Another interesting dimension of Fowler is the federalization issue. Once upon a time, federal criminal law was regarded as a very small, narrowly focused field, with state law regarded as the nation’s basic source of criminal law to address “real crime” — murder, rape, robbery, burglary, etc. As many scholars have documented, however, there has been an unprecedented federalization of criminal law over the past few decades, with the feds increasingly taking over prosecution of “street crime.” Fowler is a case in point. One might think that murder of a local cop is more a matter of local concern than federal concern, but § 1512(a)(1)(C) creates a possibility of federal prosecution.
Is such federalization a bad thing? There are respectable arguments on both sides of the question. What is clear is that the Eleventh Circuit’s approach to § 1512(a)(1)(C) authorizes federal prosecution just about any time a criminal suspect kills an investigating officer or informant. Given the growing reach of federal criminal jurisdiction, it will almost always be possible to find a possible communication regarding a possible federal crime.
Cross posted at Marquette Law Faculty Blog.