No. 10-5443

OFFi.’Si~ ,S; -i-!- i: Cc.E~

~upreme ~aurt ef t~e ~Inite~ ~tate~

CHARLES FOWLER,

VS.Petitione5

UNITED STATES OF AMERICA,

Respondent.

On Writ Of Certiorari [Ib TheUnited States Court Of Appeals

For The Eleventh Circuit

REPLY BRIEF FOR PETITIONER

KENNETH S. SIEGELCounsel of Record14502 North Dale MabryTampa, Florida 33618813-962-6676Fla. Bar No. 746053E-mail: simonscrowd@~nnail.comSTEPHEN M. CRAWFORD610 West Bay StreetTampa, Florida 33606813-251-2273Fla. Bar No. 309613E-mail: stephen_crawford@msn.com

Counsel for Petitioner,Charles Fowler

COCKLE LAW B~IEF PRINTING CO. i[0(b 225.6964OR CALL COLLEC’I :402i 342-2t~31

Blank Page

QUESTION PRESENTED

1. Whether a defendant may be convicted ofmurder under 18 U.S.C. §1512(a)(1)(C) without proofthat information regarding a possible Federal crimewould have been transferred from the victim to Fed-eral law enforcement officers or judges.

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TABLE OF CONTENTSPage

QUESTION PRESENTED ...........................................iTABLE OF CONTENTS ..............................................iiTABLE OF AUTHORITIES .......................................iiiARGUMENT IN REPLY ..............................................11. Introduction ................................................. 12. The reasonably possible standard conflicts

with the text of §1512(a)(1)(C) .................... 43. Information obtained by the Government

in 2002 may not supplant the circum-stances that existed as of March 3, 1998 .... 5

3(a). Postponing the communication elementuntil 2002 contradicts the Indictment inthis case ........................................................ 6

3(b). Circumstances at the time of the obstruc-tive conduct should determine whether thecommunication would have occurred ..........10

3(c). The Government’s approach would eliminatea defense and guarantee a conviction inevery prosecution under §1512(a)(1)(C) ...... 12

4. The Government has relied upon numerousappellate decisions in which Federal agentsalready were investigating at the time of theobstructive conduct. The facts of those deci-sions defeat any contention that reasonablepossibility is a proper standard in deter-mining whether the Government has pre-sented sufficient evidence ............................14

CONCLUSION ....................................................... 23

oooiii

TABLE OF AUTHORITIESPage

CASES

Hamling v. United States, 418 U.S. 87 (1974) .............7Keene Corp. v. United States, 508 U.S. 200

(1993) .........................................................................5

Russell v. United States, 369 U.S. 749 (1962) .............7

South Dakota v. Yankton Sioux Tribe, 522 U.S.329 (1998) ................................................................13

United States v. Bell, 113 F.3d 1345 (3rd Cir.1971) ........................................................................21

United States v. Baldyga, 233 F.3d 674 (1st Cir.2000) ............................................................ 17, 20, 21

United States v. Carson, 560 F.3d 566 (6th Cir.2009), cert. denied, 130 S.Ct. 1048 (2010) .............18

United States v. Diaz, 176 F.3d 52 (2d Cir.),cert. denied, 528 U.S. 875 (1999) ................ 11, 15, 16

United States v. Granderson, 511 U.S. 39(1994) .......................................................................13

United States v. Lopez, 372 F.3d 86 (2d Cir.2004) ............................................................ 10, 11, 12

United States v. Perry, 335 F.3d 316 (4th Cir.2003) ........................................................................22

United States v. Romero, 54 F.3d 56 (2d Cir.1995), cert. denied, 517 U.S. 1149 (1996) ...............17

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TABLE OF AUTHORITIES - ContinuedPage

United States v. Stansfield, 101 F.3d 909 (3dCir. 1996) .................................................................16

United States v. Williams, 504 U.S. 36 (1992) .............3

UNITED STATES CONSTITUTION

Fifth Amendment .........................................................7Sixth Amendment .........................................................7

STATUTES

18 U.S.C. §924(c)(1)(A) .................................................18 U.S.C. §1512(a)(1)(C) .....................................passim

18 U.S.C. §1512(b)(3) ............................................ 10, 15

18 U.S.C. §2113 ...........................................................22

ARGUMENT IN REPLY

1. Introduction.

A Grand Jury empanelled in the Tampa Divi-sion of the Middle District of F]orida indicted thePetitioner on September 19, 2007, and accused him ofmurdering Officer Christopher Homer of the HainesCity Police Department "loin or about March 3,1998." The Grand Jury alleged that the Petitionerviolated 18 U.S.C. §1512(a)(1)(C) by committing themurder "with the intent to prevent the communica-tion by Officer Homer to a law enforcement officer orjudge of the United States of information relating tothe commission or possible commission of a federaloffense .... " See Indictment, J.A. 15-16. (italicsadded) The Indictment identified six Federal crimesthat the Petitioner and his companions allegedly hadcommitted or were preparing to commit on the morn-ing of March 3, 1998.

The Petitioner was tried in June of 2008 (ten yearsafter the alleged murder of Officer Horner), and ajury found him guilty of violating both §1512(a)(1)(C)and §924(C)(1)(a). The Petitioner appealed his convic-tion under §1512(a)(1)(C), and argued to the UnitedStates Court of Appeals for the Eleventh Circuit thatthe Government had failed to present any proof thatOfficer Horner would have communicated any infor-mation to a Federal officer if he had not been killedon the morning of March 3, 1998.

The Eleventh Circuit affirmed the Petitioner’sconviction on April 14, 2010, and held that the Gov-ernment was not required to prove that Officer Horn-er would have communicated with a Federal officer.According to the Eleventh Circuit, "the possible orpotential communication to federal authorities of apossible federal crime is sufficient for purposes ofsection 1512(a)(1)(C) .... " See Eleventh Circuit’sOpinion, J.A. 76, 85. (italics in original)

This Court granted the Petitioner’s Petition forCertiorari on November 15, 2010. The Petitioner filedhis Merits Brief on January 12, 2011. The Govern-ment filed its Brief on February 25, 2011.

The Government has acknowledged that theEleventh Circuit’s formulation was erroneous. TheGovernment has not stated anywhere in its Brief thatthe Eleventh Circuit was correct in allowing a convic-tion under §1512(a)(1)(C) to stand on nothing morethan a "possible or potential communication." TheGovernment has attempted to distance itself from thedecision under review and has stated that a "theoreti-cal or remote possibility will not suffice ...." SeeGovernment Brief, page 13.

Instead, the Government has proposed a stan-dard which arguably is somewhat more demandingthan the Eleventh Circuit’s. The Government hasasserted that §1512(a)(1)(C) "is satisfied by proof of areasonable possibility that one of the communicationsthat a defendant prevented or intended to prevent bykilling his victim would have been with a federal law

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enforcement official ...." See Government’s Brief,page 9. (italics added)

The Government has also claimed that its pro-posed standard has been fulfilled by the transfer ofinformation four years after the death of OfficerHorner. For that reason, the Government argues, thePetitioner’s conviction should be affirmed. See Gov-ernment’s Brief, pages 39-40.

The Petitioner asserts in Reply that the Govern-ment’s "reasonable possibility" standard conflictswith the text of §1512(a)(1)(C) and should be rejectedas a guide for District Courts in determining whetherthere is sufficient evidence of a communication to aFederal officer.1

Furthermore, the Government’s reliance onevents that occurred four years after the death of

1 The Government has mentioned in its Brief that thePetitioner raised his sufficiency argument for the first time onappeal to the Eleventh Circuit. See Government Brief, p. 6. TheGovernment made the same contention in its Brief to theEleventh Circuit (pgs. 9-11, 13) and in its Response (pg. 5) to thePetitioner’s Petition for Certiorari. The Eleventh Circuit, how-ever, fully addressed the Petitioner’s sufficiency arguments onthe merits in its decision of April 14, 2010. See Eleventh Circuitdecision, J.A. 76 et seq. Under these circumstances, the grant ofthe Petition for Certiorari signifies that this Court "necessarilyconsidered and rejected that contention as a basis for denyingreview." See United States v. Williams, 504 U.S. 36, 40 (1992).This Court’s traditional rule "precludes a grant of certiorari onlywhen ’the question was not pressed or passed upon below.’" Id.,at 40. The sufficiency issue was both pressed and passed upon inthe Eleventh Circuit.

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Officer Horner leads to absurd results, not the leastof which would be the almost indefinite postponementof a completed offense under §1512(a)(1)(C). Thelikelihood of a communication between an informantand a Federal officer should be determined by thecircumstances at the time of the victim’s death andnot at some unknown point in the future.

2. The reasonably possible standard con-flicts with the text of §1512(a)(1)(C).

Congress has already dealt with the subject of"possibilities" in §1512(a)(1)(C). The word "possible"appears in one place, as an adjective to modify theword commission. Section 1512(a)(1)(C) makes it acrime to kill another person to "prevent the communi-cation by any person to a law enforcement officer orjudge of the United States of information relating tothe commission or possible commission of a Federaloffense .... " (italics added)

In contrast, Congress did not qualify "communi-cation" with the word "possible" or any other modifier.Although Congress arguably could have treated"communication" in the same way that it treated"commission" and inserted the word "possible" as anadjective, it clearly chose not to do so. The presence ofthe word "possible" in one part of the statute and itsabsence from another part cannot be passed off as amere inadvertence. The disparate treatment is inten-tional.

5

This Court has recognized its "duty to refrainfrom reading a phrase into the statute when Congresshas left it out. [W]here Congress includes particularlanguage in one section of a statute but omits it inanother ... , it is generally presumed that Congressacts intentionally and purposely in the disparateinclusion or exclusion. Russello v. United States, 464U.S. 16, 23 (1983) (citation omitted)." See Keene Corp.v. United States, 508 U.S. 200, 208 (1993). (internalquotations omitted) In the context of §1512(a)(1)(C),Congress intended that the communication betweenthe informant and Federal officer would be certain orlikely, not merely possible or reasonably possible.

3. Information obtained by the Governmentin 2002 may not supplant the circum-stances that existed as of March 3, 1998.

The Government has contended that it fulfilledits "reasonably possible" standard in 2002 whenChristopher Gamble (who was sentenced in 2001 to20 years in the Florida state prison system for a 1999robbery of a liquor store) provided local law enforce-ment officers with information which they in turndelivered to their Federal counterparts.2 See Gov-ernment Brief, pages 12, 37-40. The Governmentasserts that this transfer of information establishesthe Federal nexus necessary under §1512(a)(1)(C).

~ As a reward for his cooperation in the Federal prosecu-tions, Gamble received a reduction in his Federal sentence fromlife to 185 months on November 25, 2008. See U.S.v. Gamble,8:04-CR-04-T-30TGW (MDFL) Doc. 52.

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The Government’s attempt to rely on the transferof information in 2002 is flawed for at least threereasons. First, the Government has contradicted theallegations of the Indictment by arguing that thecommunication element of §1512(a)(1)(C) did notoccur until 2002. Second, the likelihood of a transferof information should be determined according to thecircumstances in effect at the time of the obstructiveconduct, and not at some indefinite point in thefuture. Third, convictions under §1512(a)(1)(C) will bevirtually automatic if the Government is allowed tosubstitute the receipt of information at some un-known point in the future for the circumstances thatexisted when the obstructive conduct occurred.

3(a). Postponing the communication elementuntil 2002 contradicts the Indictment inthis case.

The Grand Jury accused the Petitioner of violat-ing §1512(a)(1)(C) on March 3, 1998. The Indictmentalleged in relevant part:

On or about March 3, 1998, in the MiddleDistrict of Florida, the defendant ... withmalice aforethought, did unlawfully, will-fully, deliberately, maliciously, and withpremeditation, kill Haines City Police OfficerChristopher Todd Horner... with the intentto prevent the communication by OfficerHorner to a law enforcement officer or judgeof the United States of information relating

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to the commission or possible commission ofa federal offense, namely that:

[six federal crimes are specified]

All in violation of Title 18, United StatesCode, Sections 1512(a)(1)(C), 1512(a)(3)(A),1111, and 2.

See Indictment, J.A. 15-17.

The Fifth Amendment of the United StatesConstitution provides in relevant part, "No personshall be held to answer for a capital, or otherwiseinfamous crime, unless on a presentment or indict-ment of a Grand Jury...." The Sixth Amendmentprovides in relevant part, "In all criminal prosecu-tions, the accused shall enjoy the right ... to be in-formed of the nature and cause of the accusation .... "

An indictment must "contain [ ] the elements ofthe offense intended to be charged, and sufficientlyapprise[ ] the defendant of what he must be preparedto meet .... " See Russell v. United States, 369 U.S.749, 764 (1962). (citations and internal quotationmarks omitted) "It is generally sufficient that anindictment set forth the offense in the words of thestatute itself, as long as ’those words of themselvesfully, directly, and expressly, without any uncertaintyor ambiguity, set forth all the elements necessaryto constitute the offence intended to be punished.’United States v. Carll, 105 U.S. 611, 612 (1882)."Hamling v. United States, 418 U.S. 87, 117 (1974).

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According to the Indictment in the case at bar,the violation of §1512(a)(1)(C) occurred on March 3,1998. All elements of the charged offense - includingthe prevention of the communication between OfficerHorner and Federal agencies - should have beenfulfilled as of that date. Now, however, the Gov-ernment has contradicted the Indictment and isclaiming that the communication which the Peti-tioner allegedly prevented would not have occurreduntil 2002, as opposed to some time in early March of1998. The Government’s position is contrary to theplain language of the Indictment.

The Government also is contradicting the In-dictment in an additional way. Although the Indict-ment alleged that Petitioner killed Officer Horner "toprevent the communication by Officer Horner to a lawenforcement officer," the Government now has takenthe position that the communication element can befulfilled by any person who transferred information tothe Federal agents.

According to the Government, "Because Section1512(a)(1)(C) does not require that the victim himselfbe the one who might have communicated with afederal officer, the relevant inquiry is whether infor-mation relating to the underlying federal crimesmight have been communicated by any person tofederal officers. That standard was easily satisfied inthis case." See Government’s Brief, page 38. (italicsadded)

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The Petitioner disagrees with the Government’sassertion. There is no question that §1512(a)(1)(C)applies to cases where the defendant kills one per-son for the purpose of preventing another personfrom communicating with Federal officers. Ergo, thekilling of a spouse to prevent the other partner fromcommunicating with Federal officers undoubtedly iscriminalized under § 1512(a)(1)(C).

However, the Grand Jury specified that thekilling of Officer Horner was perpetrated for thepurpose of preventing Officer Horner from communi-cating with Federal officers.3 The Government shouldnot be permitted to ignore the Indictment and shiftthe communication inquiry to other law enforcementpersonnel who transferred information to Federalagents four years later. The Indictment pleads other-wise.

In a similar vein, the Government has arguedthat it "was required to prove that petitioner killedOfficer Horner with the intent to prevent any person’scommunication to a law enforcement official .... " Gov-ernment Brief, p. 36. (italics added) The Indictment

3 The Government has stated in its Brief (p. 8) that thePetitioner did not dispute the evidence that he murdered OfficerHorner. To the contrary, the Petitioner presented evidence attrial that Officer Horner had committed suicide and that thePetitioner was home at the time of Officer Horner’s death in theOakland Cemetery. See Petitioner’s Merits Brief, pp. 7-8. Whileunderstanding that the jury found him guilty of murderingOfficer Horner, the Petitioner continues to maintain that he isinnocent.

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specified only Officer Horner. It did not refer to anyother person whose communication was allegedlythwarted. The Government should not be permittedto ignore the allegations of the Indictment or steerthe inquiry away from the circumstances that existedin March of 1998.

3(b). Circumstances at the time of the obstruc-tive conduct should determine whetherthe communication would have occurred.

Appellate decisions which have analyzed§1512(a)(1)(C), or comparable subsections of §1512,have concentrated on the circumstances at the time ofthe killing or other obstructive conduct to determinewhether a communication with Federal officers wouldhave occurred. In United States v. Lopez, 372 F.3d 86(2d Cir. 2004), the Second Circuit reversed a convic-tion under §1512(a)(1)(C) because there was noevidence that the victim ever contemplated going toFederal officers for protection from the defendant. SeeLopez, 372 F.3d at 92. The Second Circuit refused tospeculate as to what might occur at some point in theindefinite future: "It is always possible that Montalvo[the victim] someday ’might’ have turned to federalofficials; but the range of things he ’might’ do islimitless, and no evidence in the record connects thispossibility with reality." Id., at 92. (italics added)

In the converse situation, the Second Circuitaffirmed the conviction under §1512(b)(3) of a gangleader who had ordered the beating of a suspected

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informant in United States v. Diaz, 176 F.3d 52 (2dCir.), cert. denied, 528 U.S. 875, and 528 U.S. 957(1999). The defendant in Diaz ordered the beating ata time when

federal authorities were in fact workingclosely with local police on a massive federalinvestigation of the gang’s drug activities.Therefore, we find that a jury could reason-ably have inferred from this evidence thatif the potential informant communicatedwith the local police concerning Latin Kingactivities constituting federal offenses, atleast one of his communications would havebeen with a federal law enforcement officer.Accordingly, we conclude that there was suf-ficient evidence to satisfy the federal juris-dictional element of § 1512(b)(3).

Id., at 90.

Lopez and Diaz illustrate that the likelihood of acommunication between the informant and the Fed-eral officer is determined by the circumstances whichexist when the obstructive conduct takes place. In thepresent case, there is no evidence that a communica-tion would have occurred between Officer Horner andFederal officers in March 1998, and the Governmenthas not suggested anything to the contrary in itsBrief. The Government’s attempt to substitute adifferent set of circumstances that arose in 2002 iscompletely at odds with the law as expressed in Lopezand Diaz.

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3(c). The Government’s approach would elimi-nate a defense and guarantee a convictionin every prosecution under §1512(a)(1)(C).

The Government’s position would automaticallyassure a conviction every time it prosecuted a de-fendant for violating §1512(a)(1)(C). Every prosecu-tion under §1512(a)(1)(C) inevitably is based onactions taken by Federal officers who at some pointhave received information about Federal crimes andhave linked this information to a person’s death. Ifthe Federal Government’s eventual discovery of theinformation can be used in place of the circumstancesthat existed at the time of the victim’s death, thedefendant no longer will be able to defend by dem-onstrating that the victim would not have communi-cated with Federal officers.

Once again, the Second Circuit’s decision inLopez illustrates the fallacy in the Government’sapproach. In describing the background of the Lopezcase, the Second Circuit stated that Federal lawenforcement officials learned of the murder eightyears after it had occurred. The Second Circuit ex-plained, "In early 1999, the Federal Bureau of Inves-tigation and the New York City Police Departmentlearned through a cooperating witness, Victor Cruz,that Carlos Lopez murdered an individual namedEdward Montalvo in 1991 and that from 1989through 1996 Lopez led a violent crew of crack co-caine dealers operating principally in the vicinity of aflower shop in the East New York section of Brooklyn,New York .... " See Lopez, 372 F.3d at 88.

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If the Government’s position were to be acceptedby this Court, the FBI’s receipt of the information in1999 would constitute the "communication" for pur-poses of §1512(a)(1)(C) and, ipso facto, prove that Mr.Montalvo would have gone to the FBI in 1991 if Lopezhad not killed him (This is classic bootstrapping). Aprosecution under §1512(a)(1)(C) no longer would beconcerned with circumstances of communication withFederal agents as they existed at the time of theobstructive conduct.

The Government’s proposal would lead to anabsurd result barring the accused from defending onthe basis that the victim would not have communi-cated with Federal agents. A statute should receivea "sensible construction" that avoids an "absurdconclusion." See South Dakota v. Yankton Sioux Tribe,522 U.S. 329, 346 (1998), citing United States v.Granderson, 511 U.S. 39, 56 (1994).

Section 1512(a)(1)(C) should be interpreted sen-sibly so as to require the Government to prove beyonda reasonable doubt that the obstructive act preventeda communication that otherwise would have occurredbetween the informant and a Federal agent. Theproof should relate only to the circumstances thatexisted at the time of the obstructive act and not atsome indefinite point in the future. The Government’sproposal ignores the circumstances that existed atthe time of Officer Horner’s death, fosters an absurdinterpretation of §1512(a)(1)(C); and should be re-jected.

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For all of the foregoing reasons - the disregardfor the Indictment, the effort to sidestep the circum-stances that existed at the time of Officer Horner’sdeath, and the absurd meaning that would hopelesslydistort §1512(a)(1)(C) - this Court should reject theGovernment’s argument that the information trans-ferred in 2002 fulfills the communication element ofthe statute.

4. The Government has relied upon numer-ous appellate decisions in which Federalagents already were investigating at thetime of the obstructive conduct. The factsof those decisions defeat any contentionthat reasonable possibility is a properstandard in determining whether theGovernment has presented sufficient evi-dence.

The Government has cited numerous appellatecourt decisions which have analyzed §1512(a)(1)(C)or other subsections of §1512. The Governmenthas declared that "Courts of appeals have routinelyheld that the federal-officer element in Section1512(a)(1)(C) is established when the evidence estab-lishes a ’possibility’ that the information would havebeen communicated to a federal official." See Gov-ernment Brief, page 25, fn. 4.

Contrary to the Government’s assertion, the vastmajority of Circuit Court decisions cited in its Briefhave emphasized that Federal law enforcementagents were already involved or were certain to

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become involved when the defendant in each casecommitted an obstructive act in violation of §1512.The facts in these cases established that the Federalagencies were involved, and reliance on possibilitieswas entirely unnecessary.

In United States v. Diaz, 176 F.3d 52 (2d Cir.),cert. denied, 528 U.S. 875 and 528 U.S. 957 (1999), aleader of the Latin Kings in Connecticut directedanother member of the organization to "impose dis-cipline" upon a person believed to be cooperating withthe New Haven police. The leader, Nelson Millet, wasin Federal prison when he issued his order. "At thetime of Millet’s conversations with J. Rodriguez [theother member], there was an extensive federal inves-tigation underway of the Latin Kings. The investiga-tion was being conducted by a task force whichincluded the FBI, the Drug Enforcement Administra-tion, the Connecticut State Police, as well as the NewHaven and Bridgeport Police Departments." Id., at90. (italics added)

Millet eventually was indicted and convicted on awide array of Federal charges, including obstructionof justice in violation of §1512(b)(3) as a result of thebeating perpetrated upon the suspected informant.The Second Circuit affirmed the conviction andrejected Millet’s claim of insufficient evidence. Theactive participation of Federal agencies in the LatinKings investigation played a large part in the SecondCircuit’s decision:

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In this case, the government presented suffi-cient evidence for a jury to reasonably con-clude (1) that Millet intended to preventGarcia [the suspected informant] from com-municating with local police because hefeared that Garcia would provide infor-mation on the Latin Kings’ racketeering ac-tivities, which clearly constitute federaloffenses; (2) that Millet knew federal author-ities could record his telephone conversationswith J. Rodriguez; and (3) at the time of theseconversations, federal authorities were in factworking closely with local police on a massivefederal investigation of the gang’s drug activ-ities. Therefore, we rind that a jury couldreasonably have inferred from this evidencethat if the potential informant communi-cated with the local police concerning LatinKing activities constituting federal offenses,at least one of his communications wouldhave been with a federal law enforcement of-ricer. Accordingly, we conclude that there wassufficient evidence to satisfy the federal ju-risdictional element of §1512(b)(3).

Diaz, 176 F.3d at 91. (italics added)

In United States v. Stansfield, 101 F.3d 909 (3dCir. 1996), the defendant’s house was destroyed byarson in 1990. Initially, the property insurer andstate law enforcement officials investigated. In Sep-tember of 1993, the insurer "referred the matter tofederal postal inspectors. The Postal Inspector pre-sented the case to the United States Attorney’s Office,which requested that the Postal Inspection Service

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continue the investigation." Id., at 911. The obstruc-tive conduct occurred the following month, October of1993, when the defendant physically beat and terror-ized a witness and the witness’s parents. Id., at 911-912. Again, there was significant evidence of Federallaw enforcement involvement at the time of theoffense presented to the jury.

In United States v. Baldyga, 233 F.3d 674 (lstCir. 2000), the defendant’s convictior~s arose from adrug "investigation begun by state and local authori-ties in Webster, Massachusetts, in January of 1998.The federal Drug Enforcement Administration (DEA)joined the investigation in February, 1998." A cooper-ating witness named Richard Chenevert already hadmade three controlled buys of cocaine from the de-fendant in January and February of 1998. Id., at 678.

Chenevert "testified that on March 1, 1998, heagreed with local and federal law enforcement au-thorities to do a fourth controlled buy of cocaine fromBaldyga." The obstructive conduct occurred on thenight of March 1 when Baldyga discovered thatChenevert was wired with a listening device. Id., at678-79. By that time, the Federal DEA had alreadybeen involved in the investigation for at least amonth. Again, the jury heard evidence of significantFederal law enforcement involvement.

In United States v. Romero, 54 F.3d 56 (2d Cir.1995), cert. denied, 517 U.S. 1149 (1996), the de-fendant, Eugene Romero, was serving a Federalprison sentence for possession of heroin with intent

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to distribute and RICO conspiracy. Despite being inFederal custody, the defendant "continued to super-vise his [drug trafficking] organization while inprison .... " Id., at 59.

Romero ordered the killing of a high-level assis-tant, Warren Tyson, for the very reason that Tysonwas believed to be "cooperating with federal authori-ties." Id., at 59. When there is direct evidence thatthe defendant has ordered the killing of a personbecause of his suspected cooperation with Federalagents, the intent element under §1512(a)(1)(C) isreadily fulfilled. Speculation as to possible Federalinvolvement is unnecessary when there is explicitevidence of the Defendant’s actual intent to killsomeone to prevent that person’s cooperation with theGovernment. Again, significant evidence of Federallaw enforcement involvement was presented to thepetit jury.

In United States v. Carson, 560 F.3d 566 (6th Cir.2009), cert. denied, 130 S.Ct. 1048 (2010), severalmembers of the Mount Clemens (Michigan) PoliceDepartment assaulted a man named Robert Paxton.The police officers then were indicted in Federal courtfor depriving the assault victim of his civil rights andobstruction of justice. Id., at 570.

One of the officers, Peter Jacquemain, appealedhis conviction for obstruction of justice in violationof §1512(b)(3). The conviction was based on a mis-leading report that Officer Jacquemain had sub-mitted to his department on the night of the assault.

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He contended that because a Federal investigationdid not begin until six months later, there was insuf-ficient evidence to prove beyond a reasonable doubtthat he intended to hinder, delay, or prevent thecommunication of information to a Federal official.Id., at 581.

The Sixth Circuit, however, affirmed the convic-tion on the strength of evidence which proved thatOfficer Jacquemain was well aware that he could beprosecuted under Federal law for using excessiveforce. "At trial, the government read into evidence ajoint stipulation stating that the training given to allofficers in Michigan ’included instruction that ifofficers use excessive force they could be prosecutedin state or federal court.’ The government also intro-duced into evidence Jacquemain’s community collegetranscript and police academy training records, whichindicate that he had received this training." Id., at581. In the case at bar, the Government offered noevidence that Officer Horner or any other member ofthe Haines City Police Department shared infor-mation with Federal law enforcement officials or wastrained to do so.

The foregoing survey of cases cited by the Gov-ernment demonstrates that the Courts of Appeals didnot have to rely on mere possibility or even a reason-able possibility that a communication with Federallaw enforcement officers would occur. As a matter offact, in each of the cases analyzed above, communica-tions already had taken place or were entirely likelyto occur.

2O

To the extent that the Courts of Appeals used theterm "possible" in describing the quantum of proofnecessary to establish a Federal nexus, their com-ments were dicta. In Baldyga, where the defendantchallenged his conviction by arguing that Federalauthorities were not listening to the device that thecooperating witness was wearing when he made hiscontrolled buy, the First Circuit rejected the defend-ant’s "claim because §1512 does not require that thewitness’s communication with federal officers be asimminent as Baldyga suggests. Instead, other circuitshave read the statute to require only a possibilitythat the conduct will interfere with communication toa federal agent." Id., at 680. When the defendant inBaldyga disconnected the cooperating witness’slistening device during the cocaine transaction, he"satisfied the requirements of the statute because thepossibility existed that such communication wouldeventually occur with federal officials." Id., at 680.

The First Circuit then alluded to the fact that thecooperating witness already had made controlledbuys at the direction of the state and Federal agen-cies investigating the defendant. "Indeed, not onlywas it possible that Chenevert [the cooperating wit-ness] would communicate with federal agents, but hisprior cooperation with them made such communica-tion probable." Id., at 680.

The First Circuit thus recognized that the coop-erating witness’s communications with the Federalagencies were probable, and not merely possible. Ifanything, the First Circuit’s use of "probable" was an

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understatement. The cooperating witness already hadcompleted three controlled buys from the defendantin Baldyga and was engaged in a fourth such trans-action when the defendant disconnected the listeningdevice. Federal law enforcement officials were al-ready involved in the investigation at the time of thefourth controlled buy, and the jury was so informed.

The facts in the Petitioner’s case are fundamen-tally different from those in the foregoing decisions.There was "NO EVIDENCE" that as of March 3,1998, the Haines City Police Department was work-ing together with one or more Federal agencies in anysort of investigation; or that Federal agents routinelymet with Haines City officers or reviewed incidentor arrest reports generated by the Department; orthat the Polk County State Attorney’s Office conveyedinformation from local departments to Federalagents; or that any other procedures or practiceswould have made it likely that Officer Horner wouldhave communicated with Federal officers.

If there had been any cooperative arrangementbetween the Haines City Police and Federal agencies,the proof of such collaborative efforts would havebeen a comparatively simple matter to establishbefore the jury. Cases cited in the foregoing surveyand in the Petitioner’s Merits Brief, dealt specificallywith cooperative ventures between Federal and localagencies. See, for example, Baldyga; Diaz; UnitedStates v. Bell, 113 F.3d 1345, 1346-47 (3rd Cir. 1997)(where the victim "had been acting as an informantfor the Tri-County Drug Task Force," an organization

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that consisted of "local, state and federal investiga-tors" and "developed federal as well as state cases.");and United States v. Perry, 335 F.3d 316, 319, 322(4th Cir. 2003) (where the county police departmenthad instituted procedures to notify Federal officialswhen felons were arrested for firearms offenses). Theabsence of comparable proof in the present casesignifies that Officer Horner would not have trans-ferred information to Federal officers.

To require the Federal prosecutors to establish aFederal nexus is neither difficult nor contrary to theplain language of the statute. Many Federal criminalstatutes require the Federal prosecutor to prove anelement that is in addition to the equivalent statecriminal statute. For example, many, if not all, of theStates in this Union criminalize bank robbery. Nonerequire proof that the bank was insured by the Fed-eral Deposit Insurance Corporation. In contrast, aFederal prosecutor must prove in a Federal bankrobbery prosecution in Federal court that theBank was federally insured. See 18 U.S.C. §2113.Similarly, the Federal prosecutor trying a case under§1512(a)(1)(C) in Federal court should have no diffi-culty in recognizing that he or she must prove com-munication to a Federal law enforcement officer ofthe commission or possible commission of a Federalcrime. In the case at bar, the Government completelyfailed to establish a Federal nexus.

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CONCLUSION

For the reasons stated in his Merits Brief andthis Reply Brief, the Petitioner, Charles Fowlerrespectfully requests that his conviction under 18U.S.C. §1512(a)(1)(C) be reversed.

Respectfully submitted,KENNETH S. SIEGELCounsel of Record14502 North Dale MabryTampa, Florida 33618813-962-6676Fla. Bar No. 746053E-mail:

simonscrowd@gmail.comSTEPHEN M. CRAWFORD610 West Bay StreetTampa, Florida 33606813-251-2273Fla. Bar No. 309613E-mail:

stephen_crawford@msn.com

Counsel for Petitioner,Charles Fowler

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