Fowler v. United States

(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

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

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.