Fowler: Miniscule Evidence Needed to Show Federal Nexus when Murder Prosecuted under Statute Intended to Punish Federal Witness Tampering

Today the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, decided U.S. v. Fowler. The court took the government’s side in a circuit court split, holding that evidence is sufficient to establish the federal nexus of 18 U.S.C. § 1512(a)(1)(c) where any “possible or potential communication [may be made] to federal authorities of a possible federal crime.” In other words, the government can make a federal case out of any murder, if the victim might have possibly given information that may have been eventually transferred to a federal officer or federal judge.

The facts of this case are heartbreaking. The case certainly merited the charge of murder of a police officer. The evidence showed that three men robbed a hotel, then recruited Fowler and another man to help them rob a bank the next morning. They prepared in a cemetery, dressing in black clothing, drinking, and taking drugs. Fowler didn’t want them to see his cocaine supply, so he walked away to use it. While he was gone, a local police officer showed up. Fowler snuck up behind him and grabbed his gun, while the others helped him gain control. Fowler eventually shot him in the back of the head.

This was a dreadful crime, but murder cases are not common in federal court. Why was this a federal case? In 2004, a spokesman for the Middle District of Florida’s U.S. Attorney’s office explained that the local authorities requested federal prosecution. He cited the multiple suspects, multiple crimes, and wide jurisdiction, but all of these factors are common in state-prosecuted cases.

The statute used, § 1512, is intended to punish witness tampering. One of the elements of subsection (a)(1)(c) is a federal nexus – the murder must have been intended to prevent communication relating to the possible commission of a federal offense. Fowler argued that the evidence did not sufficiently prove this federal nexus.

The Court held that the federal nexus requirement does not require proof of the victim’s state of mind, i.e. a plan to communicate information to federal authorities (unlikely with the victim in this case.) Instead, the statute focuses on the defendant’s intent “to prevent the murder victim from potentially communicating with federal law enforcement officials generally about a possible federal offense.”

Under this holding, any murder intended to cover up anything that could arguably be investigated as a possible federal crime is a federal case. In this previous post, we discussed the danger of over-federalization of crime. We have also discussed some differences between federal and state prosecutions here.

The Court’s opinion is available here.