Opposition Brief — Roylee Richardson, Petitioner v. United States

No. 23-7668

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

ROYLEE RICHARDSON, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

SOFIA M. VICKERY

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether sufficient evidence supported one of petitioner’s

convictions for witness tampering, in violation of 18 U.S.C.

1512(b)(1), on the theory that the government did not prove that

the “official proceeding” was objectively foreseeable.

(I)

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 23-7668

ROYLEE RICHARDSON, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-8) is

reported at 92 F.4th 728.

The order of the district court denying

petitioner’s motion for a judgment of acquittal is unreported.

JURISDICTION

The judgment of the court of appeals (Pet. App. 9) was entered

on February 7, 2024.

A petition for rehearing was denied on March

12, 2024 (Pet. App. 18).

The petition for a writ of certiorari

was filed on June 5, 2024.

The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for the Southern District of Iowa, petitioner was convicted on one

count of possessing a firearm following a felony conviction, in

violation of 18 U.S.C. 922(g)(1) and 924(a)(2), and two counts of

witness tampering, in violation of 18 U.S.C. 1512(b).

2.

Judgment 1-

He was sentenced to 240 months of imprisonment, to be followed

by three years of supervised release.

appeals affirmed.

1.

Judgment 3-4.

The court of

Pet. App. 1-8.

On February 7, 2021, petitioner and his romantic partner

A.D. had an argument in A.D.’s apartment in Davenport, Iowa.

Presentence Investigation Report (PSR) ¶¶ 10-12, 26.

Petitioner

struck A.D. several times in the head with a gun, broke her nose,

and strangled her.

PSR ¶¶ 26-27.

A.D. ran outside and tried to

flee by getting into a vehicle occupied by unknown individuals.

PSR ¶ 28.

But as the vehicle pulled away, petitioner fired

multiple shots, and the vehicle crashed into a snowbank.

¶¶ 12, 28.

PSR

Petitioner pointed his gun at the driver, told him to

unlock the doors, and ordered A.D. out of the vehicle.

then fled to a nearby apartment.

Ibid.

A.D.

Ibid.

Police officers, who had been alerted to shots fired by

multiple

911

¶¶ 10, 15.

calls,

arrived

and

arrested

petitioner.

PSR

From a search of A.D.’s apartment, officers recovered

a loaded firearm hidden in her one-year-old child’s toy crate.

PSR ¶ 23.

Officers also found one spent shell casing, one bullet,

3

and two bullet fragments on the driveway outside the apartment.

PSR ¶ 24.

Further examination showed that the shell casing,

bullet, and one of the bullet fragments were shot from the gun

recovered from A.D.’s apartment.

PSR ¶ 29.

fragment was too damaged for examination.

The other bullet

Ibid.

Petitioner was initially held in state custody.

PSR ¶ 32.

In a recorded jailhouse call three days after his arrest, he was

warned by an unknown associate that he was “gonna go federal” and

was “facing like 10, 15 years if the feds pick everything up right

now.”

Pet. App. 4 (emphases omitted).

Despite the warnings,

petitioner indicated that he would “take” a “felon in possession”

charge.

Ibid. (emphases omitted).

Then, about 20 minutes later,

in a recorded call with A.D., petitioner professed his love for

her and urged her to “say nothing,” explaining that he feared

“spending

his

life

in

prison.”

Ibid.

(brackets

omitted).

Petitioner offered to “be cool” if she refused to appear in court

or “got on the stand and said [] that she had lied” to law

enforcement.

Ibid. (brackets omitted).

In a subsequent call,

petitioner stated that the discovery of the gun “might” mean that

he “goes fed” and instructed A.D. to change her story.

Ibid.

(brackets and emphasis omitted).

In December 2021,

a federal grand jury in the Southern

District of Iowa charged petitioner with possessing a firearm

following a felony conviction, in violation of 18 U.S.C. 922(g)(1)

and 924(a)(2).

Indictment 1.

Petitioner’s trial, originally set

4

to begin in June 2022, was continued shortly before the scheduled

start date. PSR ¶ 33. Shortly thereafter, petitioner began asking

others to contact A.D. to change her testimony. Ibid.; Pet. App 5.

Petitioner told his go-betweens to emphasize to A.D. that he had

children and was fighting for his life, and to “put some umph”

into those conversations.

had to go to court.

2.

PSR ¶ 33.

He also questioned why A.D.

Ibid.

In a second superseding indictment, a grand jury in the

Southern District of Iowa charged petitioner not only with one

count of possessing a firearm following a felony conviction, in

violation of 18 U.S.C. 922(g)(1) and 924(a)(2), but also with one

count of witness tampering, in violation of 18 U.S.C. 1512(b), for

conduct between February 7, 2021 and July 22, 2021, and another

count of witness tampering, in violation of 18 U.S.C. 1512(b), for

conduct

between

June

25,

Superseding Indictment 1-2.

to

“knowingly

use[]

2022

and

June

27,

2022.

Second

Section 1512(b)(1) makes it a crime

intimidation,

threaten[],

or

corruptly

persuade[] another person, or attempt[] to do so, or engage[] in

misleading

conduct

toward

another

person,

with

intent

to[]

influence, delay, or prevent the testimony of any person in an

official proceeding.”

18 U.S.C. 1512(b)(1).

Petitioner proceeded to a jury trial.

The district court

instructed the jury that the witness-tampering counts required,

among other things, proof that petitioner intended to influence or

prevent

the

testimony

of

A.D.

in

an

“official

proceeding.”

5

Preliminary Jury Instructions 5; Final Jury Instructions 14-15.

The court further instructed the jury that the government must

prove

that

petitioner

“contemplated

some

particular

official

proceeding in which the testimony might be material.”

Preliminary

Jury Instructions 7; see Final Jury Instructions 17.

At trial,

petitioner argued that he was not guilty on the first witnesstampering count, asserting that there was “no indication that

he was contemplating a federal charge” in February 2021.

Trial

Tr. 596.

The jury found petitioner guilty on all counts.

Verdict 1-

2.

The district court denied petitioner’s motion for a judgment

of

acquittal,

finding

that,

among

other

things,

sufficient

evidence supported petitioner’s conviction on the first witnesstampering count.

D. Ct. Doc. 160 (Dec. 8, 2022).

The court

sentenced petitioner to a total term of 240 months of imprisonment,

consisting of 120 months on the felon-in-possession offense and

240 months on each of the witness-tampering counts, all to be

served concurrently, to be followed by three years of supervised

release.

3.

Judgment 3-4.

The court of appeals affirmed.

Pet. App. 1-9.

Among

other things, the court rejected petitioner’s challenge to the

sufficiency of the evidence supporting the first witness-tampering

count, finding sufficient evidence that he was “‘contemplating’ a

federal felon-in-possession charge” even while in state custody

and

that

petitioner’s

“‘particular’

federal

prosecution”

for

6

possession was “‘foreseeable.’” Id. at 3-4 (brackets and citations

omitted); see id. at 4 (“[T]he jury drew the reasonable inference

that [petitioner]’s attempts at ‘corruptly persuading’ [A.D.] to

lie or refuse to testify had a nexus to the lengthy sentence he

would face from a federal felon-in-possession charge.”) (brackets

and citations omitted).

ARGUMENT

Petitioner contends (Pet. 5-7) that the court of appeals erred

in rejecting his challenge to the sufficiency of the evidence

supporting his witness-tampering conviction on Count Two because

the court did not consider whether an official proceeding was

objectively foreseeable.

That contention, which was not properly

raised below, lacks merit.

In any event, this case would be a

poor vehicle to consider the question presented, and the petition

for a writ of certiorari should be denied.

1.

As a threshold matter, this Court should not consider

petitioner’s claim because he raised it for the first time in a

petition for rehearing en banc.

Before then, in his arguments

challenging the sufficiency of the evidence in the courts below,

petitioner had focused on his subjective belief, arguing that the

evidence did not show that “[he] actually contemplated an official

(federal court) proceeding at the time of the alleged tampering

charged in Count 2.”

Pet. C.A. Br. 27; see id. at 27-32.

Although

petitioner made a passing reference to whether the government had

established “that federal charges were reasonably likely at the

7

time of the relevant communications,” id. at 27, he did not posit

objective reasonableness as a standalone requirement.

On the

contrary, petitioner referenced the likelihood of federal charges

only as evidence of his subjective mental state.

See ibid.

(arguing that the communications did not show what petitioner

“actually contemplated” and “d[id] not prove [petitioner’s] mental

state”); id. at 31 (“In this case, the government failed to

establish that [petitioner] was ever truly aware that federal

charges

were

a

realistic

possibility

at

the

time

of

the

communications at issue in Count 2.”); Pet. C.A. Reply Br. 6

(“[Petitioner]’s focus at the time of the alleged tampering at

issue in Count 2 was on his pending state charges.”); Pet. Br. in

Support of Mot. for Judgment of Acquittal 2.

Petitioner’s contention (Pet. 5) that the court of appeals

erred by “focus[ing] entirely on subjective foreseeability and not

at all on objective foreseeability” is accordingly misplaced.

It

is well established that courts of appeals are not obligated to

address matters first raised in petitions for rehearing.

See,

e.g., United States v. Replogle, 678 F.3d 940, 942 (8th Cir.),

cert. denied, 568 U.S. 1053 (2012); United States v. Lewis, 412

F.3d 614, 615-616 (5th Cir. 2005) (per curiam); United States v.

Patzer, 284 F.3d 1043, 1045 (9th Cir. 2002).

And federal courts

generally “refuse to take cognizance of arguments that are made in

passing without proper development.”

U.S. 289, 299 (2013).

Johnson v. Williams, 568

Because petitioner did not advance his

8

objective-foreseeability theory before the appellate panel, the

court did not err by not addressing it in its decision.

This Court is “a court of review, not of first view.”

v. Wilkinson, 544 U.S. 709, 718 n.7 (2005).

Cutter

Its “traditional rule

* * * precludes a grant of certiorari” on a question “‘not pressed

or passed upon below.’”

United States v. Williams, 504 U.S. 36,

41 (1992) (citation omitted); see Byrd v. United States, 584 U.S.

395, 404 (2018) (noting that “it is generally unwise” for the Court

“to

consider

arguments

in

the

first

instance”).

Petitioner

identifies no sound reason for this Court to depart from that rule

here.

2.

Even assuming that petitioner’s claim had been properly

preserved, the claim lacks merit.

Section 1512(b)(1) prohibits

knowingly intimidating, threatening, or corruptly persuading, or

engaging in misleading conduct toward another person, with intent

to “influence, delay, or prevent the testimony of any person

in an official proceeding.”

18 U.S.C. 1512(b)(1).

An “official

proceeding” is defined to include “a proceeding before a judge or

court of the United States.”

18 U.S.C. 1515(a)(1).

The statute

specifies that “an official proceeding need not be pending or about

to

be

instituted

1512(f)(1).

at

the

time

of

the

offense.”

18

U.S.C.

It further specifies that “no state of mind need be

proven with respect to the circumstance

proceeding before a judge [or] court

court of the United States.”

* * *

* * *

that the official

is before a judge or

18 U.S.C. 1512(g)(1).

9

Petitioner asserts (Pet. 5-6) that the court of appeals should

have

considered

whether

the

official

proceeding

contemplated

by him was “objectively foreseeable” and whether petitioner’s

“fears about a federal firearm prosecution” were “objectively

reasonable.” But he fails to explain how the decision below failed

to do so.

Relying on circuit precedent, the court of appeals in

this case reasoned that the evidence of witness tampering would be

sufficient so long as it permitted the jury to draw a reasonable

inference that “a ‘particular, foreseeable’ federal proceeding was

‘contemplated’ at the time the ‘intimidation, threat, or corrupt

persuasion’ took place.”

Pet. App. 3 (quoting United States v.

Petruk, 781 F.3d 438, 445 (8th Cir. 2015) and 18 U.S.C. 1512(b))

(brackets omitted; emphasis added by court of appeals).

And it

found the evidence sufficient to show that a “‘particular’ federal

prosecution was ‘foreseeable.’”

Id. at 4 (quoting Petruk, 781

F.3d at 445). Petitioner fails to explain how his current proposed

standard would be different, let alone how the evidence in his

case was insufficient to satisfy it.

Petitioner’s claim (Pet. 7-8) of a conflict among the courts

of appeals on this issue is similarly misplaced.

In United States

v. Sutton, 30 F.4th 981 (2022), the Tenth Circuit stated that

Section 1512(b)(2)(A) requires “[a] reasonable likelihood” that

the official proceeding contemplated by the defendant “would be

federal.”

Id. at 989.

And in United States v. Shavers, 693 F.3d

363 (2012), judgment vacated on other grounds, 570 U.S. 913 (2013),

10

the Third Circuit stated that “a successful prosecution under

§ 1512(b)(1) requires proof, beyond a reasonable doubt, that the

defendant contemplated a particular, foreseeable proceeding, and

that

the

contemplated

proceeding

constituted

an

‘official

proceeding,’ as defined by § 1515(a)(1)(A),” id. at 379, and

reversed a witness-tampering conviction where the defendants “were

clearly contemplating their upcoming hearings in Pennsylvania

state court, and not any federal proceeding, when they sought to

tamper with potential witnesses,” id. at 381.

Here, however,

the court

“was

of

‘contemplating’

appeals

a

found

federal

that

petitioner

felon-in-possession

charge”

already

at

the

time of the charged conduct, Pet. App. 3 (brackets and citation

omitted), and that he sought to persuade A.D. “to lie or refuse to

testify” to avoid “the lengthy sentence he would face from” that

“‘foreseeable’” and “‘particular’ federal prosecution,” id. at 4

(citation

omitted).

Accordingly,

petitioner

is

incorrect

in

claiming (Pet. 8) that his “conviction would not stand under Sutton

or Shavers.”

3.

Finally, even if the question presented would otherwise

warrant this Court’s review, this case would be a poor vehicle for

considering it because even assuming that petitioner’s argument

were adequately presented to the court of appeals, he forfeited it

in

the

district

court.

Indeed,

during

the

district

court

proceedings, petitioner agreed to jury instructions explaining

that the government must “prove that the Defendant contemplated

11

some particular official proceeding in which the testimony might

be

material”

without

mention

of

some

separate,

requirement of objective reasonableness.

additional

Final Jury Instructions

17; see Trial Tr. 466-468, 472-484 (discussing jury charge).

Although petitioner’s position on the jury instructions does

not itself foreclose his challenges to the sufficiency of the

evidence, see Musacchio v. United States, 577 U.S. 237, 243-244

(2016), it does make this case an inappropriate vehicle for

reviewing the question presented.

This Court has “treated an

inconsistency between a party’s request for a jury instruction and

its position before this Court” as a relevant “consideration[]

bearing on” whether to grant the petition for a writ of certiorari.

United States v. Wells, 519 U.S. 482, 488 (1997).

be

considerable

because

of

prudential

instructions

itself requested.”

objection

that

“[T]here would

to

reversing

a

judgment

petitioner

accepted,

and

indeed

City of Springfield v. Kibbe, 480 U.S. 257,

259 (1987) (per curiam).

At all events, petitioner’s challenge is at best reviewable

only for plain error.

See Fed. R. Crim. P. 52(b); United States

v. Olano, 507 U.S. 725, 731-732 (1993).

To establish reversible

plain error, petitioner must demonstrate (1) error; (2) that is

plain

or

obvious;

(3)

that

affected

substantial

rights;

and

(4) that seriously affected the fairness, integrity, or public

reputation of judicial proceedings.

Olano, 507 U.S. at 732-736;

12

see, e.g., Puckett v. United States, 556 U.S. 129, 135 (2009).

cannot do so.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Solicitor General

NICOLE M. ARGENTIERI

Principal Deputy Assistant

Attorney General

SOFIA M. VICKERY

Attorney

AUGUST 2024

He