On May 26, the United States Supreme Court decided Fowler v. United States, No. 10-5443, holding that to secure a conviction under the federal witness tampering statute, 18 U.S.C. §1512(a)(1)(C), the government must prove that the defendant killed the victim because there was a "reasonable likelihood" that the victim would communicate with federal law enforcement regarding a federal offense.
In 1998, Fowler and several other men planned to rob a Florida bank, and they met in a cemetery to drink alcohol and use drugs in preparation for the crime. A local police officer discovered the men and asked for identification, but the men subdued the officer. After one of Fowler's accomplices called another accomplice by name, Fowler killed the officer to stop him from revealing their identities.
Fowler was convicted under the federal witness tampering statute, 18 U.S.C. §1512(a)(1)(C), which makes it a crime to kill someone to prevent them from communicating to federal law enforcement regarding a federal offense. On appeal, Fowler argued that the federal statute was inapplicable because he had killed a local officer who would not have communicated with federal law enforcement. The Eleventh Circuit Court of Appeals upheld his conviction, reasoning that the government only had to show that it was "possible" that one of the communications that the murder was intended to prevent would have been with federal law enforcement.
The Supreme Court vacated the Eleventh Circuit's decision, holding that the federal statute required more than a showing that communication with federal officers was "possible" or "potential." The Court reasoned that the government must show a "reasonable likelihood" that "had the victim communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer." Thus, the likelihood of communication with federal agents must be "more than remote, outlandish, or simply hypothetical." The Court remanded Fowler's case for a factual determination under the "reasonable likelihood standard."
Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Thomas, Sotomayor, and Kagan joined. Justice Scalia filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Justice Ginsburg joined.