# United States v. James Harry Rand, Also Known as Harry Rand

> Court of Appeals for the Seventh Circuit · April 6, 2007 · 482 F.3d 943

URL: https://www.frixlaw.com/law-library/cases/9499595

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. James Harry RAND, Also Known as Harry Rand, Defendant-Appellant
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** April 6, 2007
- **Citations:** 482 F.3d 943; 2007 U.S. App. LEXIS 7978; 2007 WL 1029431
- **Precedential status:** Published
- **Opinion:** Dissent by Rovner
- **Judges:** Flaum, Rovner, Evans
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499595

## How later opinions describe it (automated extraction)

- stating that a statute’s title can “inform the meaning of ambiguous text,” but cannot “limit the plain meaning of the text”

## Opinion text

ROVNER, Circuit Judge,
dissenting.
When James Rand agreed to find a body double and victim for Joseph Kalady’s incomprehensible scheme, he undoubtedly aided and abetted Kalady in the murder of William White. Such a prosecution would have been an easy one for the state prosecutors. Kalady had told Rand to “get a homeless guy, kill him, and pretend he’s me.” Rand dutifully brought the homeless man to Kalady, and that man, White, was then killed as planned and placed in a chair, wearing Kalady’s ill-fitting clothing, to stand in for Kalady. The prosecutors, however, chose not to take this route. Instead they sought to convict Rand under a witness tampering statute which states:
Whoever kills or attempts to kill another person, with intent to—
% * :Ji
(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 conditions of probation, parole, or release pending judicial proceedings;
*950 shall be punished as provided in paragraph (3).
18 U.S.C. § 1512 (a)(1)(C).
The government’s theory is that Kalady killed White intending to prevent a pretrial services officer (PSO) from communicating to the court that Kalady had violated his conditions of release by fleeing from home confinement. If true, then Rand aided and abetted Kalady in the commission of that offense. Such a theory would cause any tribunal to raise a brow. Section 1512, after all, is a witness tampering statute clearly designed to protect the integrity of the judicial process by punishing defendants who keep witnesses from testifying.
We need not turn to the purpose of the statute, however, to see why Kalady’s (and thus Rand’s) crime does not fit. The statute requires that a defendant kill with the intent to prevent communication of, in this case, the violation of a condition of release pending a judicial proceeding. Kalady, however, never intended to prevent the PSO from communicating anything; he hoped to manipulate the PSO into communicating information that was not correct— i.e. that Kalady had died, rather than that he had fled. The term “prevent,” on its face, implies the use of an act that disables a person from communicating or one that is so coercive as to effectively disable that person from communicating. Feeding false information to a PSO in the hopes that he will communicate the misinformation rather than the truth is simply in a different league from an act that prevents communication.
If we had any doubt whatsoever about the limitations of the word “prevent” in this context, the remainder of the statute makes it clear. Section 1512(a)(2), for example, criminalizes the use of physical force or the threat of physical force to “hinder, delay or prevent” the communication to a judge regarding a violation of a condition of release pending judicial proceedings. 18 U.S.C. § 1512 (a)(2) (emphasis supplied). Other sections of the statute similarly refer to attempts to “influence, delay or prevent” communication. 18 U.S.C. §§ 1512 (a)(2)(A), (b)(1). Thus the plain language of the statute sets forth a distinction between actions which may influence, hinder, or delay on the one hand, and actions which wholly prevent communication on the other. Although Kalady intended to influence the information that the PSO communicated, the facts of this case demonstrate precisely why he could not prevent the PSO from communicating that he had fled. The PSO certainly could have accepted Michael Kalady’s report that his brother Joe had died, but he was also free to investigate further to determine what message he should send to the court. In fact, Kalady may not have cared that his scheme might eventually unwind and that the message that he fled would then merely have been delayed rather than prevented. By that time, Kalady hoped to be living abroad, perhaps under an assumed identity or in a place safe from detection and extradition.
Of course, the record contains no evidence of Kalady’s intent regarding his efforts to thwart communication. For this reason, I particularly am troubled by the majority’s naked assertion that “Kalady had the requisite intent required under the statute.” Ante at 9. Clearly, Kalady’s intent was to fake his death, escape an inevitable prison term, and live undetected in Poland or Massachusetts or wherever his final destination may have been. But an intent to prevent his pre-trial services officer from communicating to the judge that he had violated a condition of his release pending his judicial proceeding? That is not at all clear.
The majority’s unsupported assertion of intent is problematic because the statute at issue, 18 U.S.C. § 1512 , is a specific intent *951 statute. It requires the government to prove beyond a reasonable doubt that the defendant killed with the specific purpose of preventing communication about a violation of a condition of release. See U.S. v. Jefferson, 149 F.3d 444, 446 (6th Cir.1998) (noting that the government needed to prove that the defendant was motivated by a desire to prevent communication about the defendant’s involvement in a federal crime.); id. at 447 (Daugherty, J., dissenting) (arguing that a reasonable jury could not determine beyond a reasonable doubt that the defendant had killed the victim to prevent him from communicating with the authorities where there was insufficient evidence of the defendant’s specific intent to prevent communication); U.S. v. Causey, 185 F.3d 407, 422-23 (4th Cir.1999) (holding that evidence was insufficient to convict the defendant under § 1512 where evidence revealed that the defendant did not have the requisite specific intent). The majority fails to identify any evidence offered by the government whatsoever to support the hypothesis about Kalady’s intent to prevent communication. In fact, the only real information we have about Kalady’s intent was that he intended to fake his own death and escape. To travel from Kalady’s primary intent — escape—to the statute’s requisite intent — prevention of communication — requires quite a few awkward leaps.
It is true, of course, that Kalady intended to fake his own death to manipulate the information that the PSO obtained and, in due course, communicated. Had he merely wished to escape he simply could have flown the coop, without the body double, and hoped no one ever tracked him down. Instead, he wanted to flee without fear of pursuit. For this reason he sought to convince the PSO, and subsequently, the judge, that he had died. Of course, a person who has died cannot violate a condition of release. Ergo, if Kalady convinced the PSO that he had died, the PSO would not have reason to inform the court that he had violated his conditions of release. But hopscotching from Kalady’s clear intent — -escape—to the inevitable misinformation he created by trying to conceal his escape, steps outside the bounds of the statute.
The fact that Kalady intended that no one find out about his scheme hardly creates the specific intent to prevent communication required by this statute. Most criminals (and not just the particularly clever ones as this case demonstrates) intend to keep their crimes a secret from law enforcement officers and judges. Consequently, as they plan and commit their crimes they tend to take steps to hinder witnesses from communicating information relating to their crime to law enforcement and judges. Almost any action that a defendant takes to divert suspicion from himself or to throw pursuers off his scent— using an alias, wearing a disguise, or pointing the finger at someone else — could be characterized as an effort to “prevent” someone from communicating the truth of criminal culpability. But to transform these steps, which are part and parcel of any crime, into crimes of their own would expand the scope of this witness tampering statute in a manner not contemplated by Congress.
Moreover, the government’s attempts to shoehorn Rand’s actions into an ill-fitting statute violate the guarantees of due process. Due process requires that a statute must give the ordinary person fair warning of what conduct it prohibits. City of Chicago v. Morales, 527 U.S. 41, 56 , 119 S.Ct. 1849 , 144 L.Ed.2d 67 (1999). As Rand points out, in all other reported appellate cases referring to § 1512(a)(1), the defendant killed or threatened to kill a witness or informant (or his relative) to prevent that person from communicating information. Whereas in this case, preventing a *952 communication was not the true aim of the crime; the purpose of staging Kalady’s death was not to prevent a communication, but to alter the message that the authorities received to give Kalady more, or an unlimited, time in which to flee. “[D]ue process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope.” U.S. v. Lanier, 520 U.S. 259, 266 , 117 S.Ct. 1219 , 137 L.Ed.2d 432 (1997). Since the statute is such an ill-fit and no other reported cases support its use in this manner, it is hard to imagine how Rand, or any other ordinary person, could have foreseen that the language of § 1512(a)(1)(c) would apply to his acts.
Rand’s actions simply do not fit within the plain language of this statute even with a shoehorn. As Cinderella’s wicked stepsisters taught us, no good can come of stuffing a foot into an ill-fitting shoe. Particularly where, as here, there were plenty of proverbial shoes just right for Rand’s foot.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499595. Public record. Not legal advice.