Professional Documents
Culture Documents
No. 12-7301
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
J. Frederick Motz, Senior District
Judge. (1:05-cr-00061-JFM-6; 1:11-cv-00953-JFM)
Argued:
Decided:
ARGUED:
Baltimore,
OFFICE OF
Appellee.
Baltimore,
nexus
required
for
the
offense,
given
the
Supreme
the
violate
instruction
new
did
indeed
substantive
right
Fowler
that
and
should
be
that
Fowler
created
afforded
to
Smith.
case
the
same
harmless-error
standard
that
we
do
in
substantial
determining
the
and
jurys
injurious
verdict
effect
(internal
or
influence
quotation
in
marks
or
therefore
influence
find
that
in
the
determining
error
was
the
jurys
harmless
verdict.
and
We
accordingly
I
On January 15, 2005, members of the Bloods gang in the
Harwood neighborhood of Baltimore, Maryland, firebombed the home
of Edna McAbier, who was the president of the Harwood Community
Association.
in
the
neighborhood.
McAbier
had
indeed
been
two substantive
the
witness
tampering
statutes
because
the
government
was
established
trafficking,
offense.
about
After
an
as
which
matter
McAbier
extended
of
law
complained,
discussion,
because
was
the
drug
federal
district
court
Agent
Robert
Brisolari
of
the
Drug
Enforcement
cases
to
his
field
office
and
that
it
contributed
the
most
the nine task force groups in the area were joint task forces,
meaning that theyre comprised of [federal] agents as well as
sworn task force officers from other police departments.
He
also explained that the DEA accepts cases that are considered
street level trafficking, especially when street level drug
organizations
[are]
involved
in
crack
cocaine,
heroin
or
cocaine.
At the close of the evidence, the district court instructed
the jury that to establish the necessary mens rea for witness
tampering, the government must prove that Smith acted knowingly
and with the unlawful intent to induce Mrs. McAbier to hinder,
delay,
or
prevent
the
communication
of
information
to
law
sentenced
him
to
960
months
imprisonment.
On
direct
finding
was
that
satisfied
the
federal
because
[a]
nexus
portion
required
of
the
by
the
potential
We
commission
requirement
[was]
of
federal
established.
offense,
Id.
the
federal
Responding
to
nexus
Smiths
convictions,
remanded
the
Although we affirmed
case
to
correct
sentencing error.
At resentencing, Smith again received a 960-month sentence,
and we thereafter affirmed.
Appx
856
(4th
Cir.
2009)
curiam).
The
Supreme
Court
Smith v.
trial
decided
counsel.
Fowler
Shortly
v.
United
thereafter,
States,
131
the
S.
Supreme
Court
2045
(2011)
Ct.
standard
that
likelihood
supplement
of
to
the
for
government
such
his
satisfying
had
the
to
communication).
2255
motion,
federal
nexus
prove
Smith
then
challenging
and
reasonable
filed
the
witness
possibility
of
the
witness
communication
to
federal
authorities.
The
Fowlers
district
court
holding
to
acknowledged
Smiths
trial
the
applicability
but
found
that
of
the
forces
targeted
activity -- violent
street
the
drug
very
type
trafficking.
of
criminal
The
court
provided
by
Ms.
McAbier
would
eventually
be
communicated
to
II
In instructing the jury at the underlying trial on federal
witness tampering, the district court stated, as relevant to the
required federal nexus of the conduct, that the government must
prove
that
there
was
possibility
or
likelihood
that
the
The
instruction
given
was
consistent
with
then-
v.
overruling
United
Harris.
States,
131
Fowler
S.
held
Ct.
2045
that
the
(2011),
in
witness
effect
tampering
Id. at 2052.
In defining
need
not
show
that
such
communication,
had
it
v.
to
or
federal
simply
Ramos-Cruz,
officer
was
hypothetical.
667
F.3d
487,
more
Id.;
see
495
(4th
than
remote,
also
United
Cir.
2012)
with
Smith
that
Fowler
created
new
right
that
was
harmless.
Smith now contends either that the error was structural and
therefore not subject to harmless-error analysis or that it was,
in fact, not harmless.
To begin with, we agree that the Fowler right has been
newly
recognized
by
the
Supreme
Court
and
that
it
is
See 28
The
Fowler
the
right,
by
changing
the
standard
for
determining
brings
us
to
Smiths
first
argument
--
that
the
See
In short,
omitted),
because
they
affect[]
the
framework
within
Johnson v. United
instruction
that
omits
an
element
of
the
offense
does
not
Neder v.
F.3d
332,
362-64
(4th
Cir.
2012)
(reviewing
erroneous
we
should
apply
the
standard
of
review
for
direct
Under Chapman, an
24).
contrast,
under
Brecht,
the
standard
for
case
because
the
constitutional
error
was
not
revealed
until after the appeal was perfected, and therefore there exists
no need to defer to the decision below, as Brecht urges.
Although
habeas
the
cases,
Brecht
the
standard
Supreme
Court
clearly
has
applies
not
in
directly
2254
addressed
review
of
omitted)).
section
2254
petition
(internal
citations
The
standard,
standard
Court
noting
is
rejected
that
better
the
Chapmans
beyond-a-reasonable-doubt
substantial
tailored
to
12
the
and
injurious
nature
and
effect
purpose
of
collateral
review
harmless-error
standard
and
on
application
habeas
promotes
identified
direct
and
several
collateral
reasons
review,
of
the
less
considerations
Id. at 623.
for
The Court
distinguishing
including:
onerous
(1)
between
structural
liberal
prominence
of
allowance
of
the
itself.
trial
the
writ
Id.
.
at
degrades
633-35
the
(internal
be
sure,
Brecht
because
in
Brecht
the
is
state
distinguishable
court
originates
implicate
the
in
comity
federal
and
system
from
had
this
case
evaluated
the
court
federalism
and
therefore
factor
that
does
the
not
Court
state
involved.
criminal
trials
because
state
courts
are
not
omitted).
The other three factors identified in Brecht, however, are
fully and directly applicable to collateral review under 2255.
First, the structural nature of collateral review is the same
for both 2254 and 2255 cases -- in both, the court must
13
or
laws
U.S.C.
of
the
United
2254(a).
States.
Second,
28
society
has
U.S.C.
the
same
(1982)
States,
has
judgments).
(But
an
Federal
interest
in
Government,
the
no
finality
less
of
its
than
the
criminal
harmlessness
review
under
Chapman
because
the
state
court
no
party
in
Penry
asserted
that
Brecht
was
an
F.3d 1238, 1246 (10th Cir. 2006) ([W]e hold that the Brecht
standard applies when conducting a harmless-error review of a
2255 petitioner's claim that the jury in his or her trial was
[improperly] instructed); United States v. Montalvo, 331 F.3d
1052, 1058 (9th Cir. 2003) (per curiam) (same); Ross v. United
States, 289 F.3d 677, 682 (11th Cir. 2002) ([A]pplication of
the Brecht standard to [an instructional] error on collateral
appeal is the appropriate approach); Murr v. United States, 200
F.3d 895, 906 (6th Cir. 2000) (noting that for purposes of
federal
habeas
corpus
review,
constitutional
error
that
had
substantial
and
injurious
effect
or
influence
in
Chapman
evaluating
standard
but
presumptively
noting
correct
15
that
[g]enerally,
convictions
on
when
collateral
habeas
review,
the
harmless
error
inquiry
for
errors
of
injurious
effect
or
influence
in
determining
States,
220
F.3d
833,
839
(7th
the
jury's
Cir.
2000)
(applying
sum,
standard,
we
hold
applicable
that
to
Brechts
2254
cases,
harmless-error
is
also
review
applicable
to
2255 cases.
for
2255
cases
whether
the
error
had
substantial
and
III
In arguing that the instructional error was not harmless,
Smith observes that it is impossible to say whether he would
have
been
convicted
of
witness
tampering
had
the
correct
is
the
more
refined.
We
must
determine
whether
erroneous
of
witness
tampering,
the
16
government
must
prove
that
there
being
was
possibility
provided
by
Ms.
or
likelihood
McAbier
would
word
possibility
likelihood.
but
that
be
the
information
communicated
to
approved
the
use
of
the
word
in
approving
the
use
of
reasonable
Collegiate
Dictionary
721
(11th
ed.
2007)
--
and
The
was
more
than
remote,
outlandish,
or
simply
nexus
by
presenting
evidence
showing
that
less
than
communication
probability,
was
not
so
remote,
hypothetical.
17
long
as
the
outlandish,
chance
or
of
the
simply
injurious
verdict.
effect
or
influence
in
determining
the
jurys
McAbier was
her
neighborhood.
To
be
sure,
the
presence
of
drug
standard,
trafficking,
plus
the standard.
but
the
additional
federal
appropriate
nature
evidence
of
drug
does
meet
nature,
plus
additional
appropriate
evidence
(internal
487,
497
(4th
Cir.
2012)
(adopting
the
Third
Circuit
standard).
Here, the government did put forth additional appropriate
evidence
showing
the
reasonable
likelihood
that
McAbiers
officers.
DEA
Special
Agent
Brisolari
testified
cooperation
with
the
Baltimore
18
City
Police
Department,
19