perceive please the court michael lieberman on behalf of petitioner appellant jesse if i could reserve three minutes for rebuttal the district court used a witness tampering jury instruction that the supreme court had rejected in fowler and trial counsel did not object to that incorrect instruction that failure to object was unreasonable as the instruction directly and obviously contravene binding supreme court precedent now there was also no strategic reason for failing to object and most importantly the incorrect instruction made it easier for the government to convict jesse levin's in that circumstance failing to object to that instruction was deficient performance so how do you think it made it easier in this case made it easier because the standard that the standard that the supreme court adopted in feller requires the government to show that he prevented communications that there was a reasonable likelihood that those communications would have been made to a federal official reasonable likelihood that the victim would have communicated with a federal law enforcement person so i want to be careful it's the likelihood of the actual communication happening doesn't matter it's assuming there was a communication is it reasonably likely that it would have been to a federal officer instead of a state one oh ok well i've forgotten that so so yes so it's a little it's a little bit of a complicated and tricky inquiry because we're in this kind of counterfactual hypothetical world and so the basic question is if and when this hit if the witness tampering had never happened and the victim had gone on to communicate with somebody about what he knew would he have communicated with a federal officer or state officer and the reason why the supreme court adopted this reasonable likelihood standard set of the governments that the government wanted was a standard basically saying as long as the communication was possible with a federal officer or it might happen which is the standard that the district court used here and the supreme court said that's not sufficiently stringent because what's really important here is what congress was trying to do was protect the integrity of federal investigations and congress and really have an interest in protecting the integrity of investigations that were really going to be handled on the state side they want to step in and want to step on any toes of the state prosecutors and just didn't want to expend federal resources on that kind of thing and so in fifteen twelve congress put these two federal nexus requirements in there the preventive communications the information that would have been communicated if not for the tampering has to relate both to a federal offense and has to be there has to be a reasonable likelihood it would have been to a federal official is that nexus thing related to a federal offense is that i mean that is something that i guess supreme court has said is an element it's in the statute itself supreme court hasn't hasn't done kind of a similar analysis as to what burden the government has to prove the federal offense and so and so what big part of that and kind of the the importance of there being two separate federal nexus requirements both the federal offense in the federal official piece of it is what the supreme court's in feller is look the got the government's argument feller was well the underlying crimes here were possible federal offenses so we certainly satisfied that there was a conspiracy to rob a bank in possession of cocaine and marijuana in that case and the governor said well that should be good enough we've proven the federal offense whenever there's a possible federal offense there's going to be a possible communication with a federal official and so we should said no that's not going to be enough given kind of the wide range of federal offenses and how most cases that are usually held at the state level can also be tried federally because there are so many federal criminal statutes just proving that one point isn't going to be enough to satisfy this and to satisfy congress's desire to keep the statute primarily federal in nature and so the reason that there was that there was air here in the reason the district instruction was incorrect is it basically ignored that part of it and basically told the jury that as long as you find a federal offense you can go ahead and find out the second element is satisfied as well because the instruction the district court gave here was as as long boy the victim here might have communicated to the federal government and in a case where there's an underlying federal crime you know anything might happen it seems it certainly seems possible that would happen and in my tracks the possible language that the supreme court was saying is inaccurate that's want to reasonable likelihood not the possibility but what was actually given here tracks more nearly what the supreme court rejected that's right so in fowler itself the instruction of the get the eleventh circuit or the district court within the eleventh circuit given said that all that mattered was that it was possible and the instruction here on in this case was that he might communicate and so i think those are basically the same the third circuit before fell or had a might communicate standard and it has since really recognized that feller overturns that standard requires them to adopt this reasonable likelihood standard on the prejudice prong  arguably could have been could have been you know it wasn't could have been charged as a federal crime would you agree with that i would agree as a general matter i don't know if the jury had enough information about the crime to make that conclusion i think all the jury knew was that it was a murder yeah well i mean murder could have been charged as a federal and then is there no likelihood that in the event there was a communication it would have been with the feds i think that the main reason that doesn't work is because the supreme court  feller basically said that that doesn't work if all you have is the possible communication of a federal offense if that's enough by itself you read out the second federal nexus from the statute and in felon self as i said that there were plenty of underlying federal crimes there so we know from fellow there has to be more than just a possible federal offense right and so in some cases you can go a couple different ways depending on what happens with the underlying crime if the underlying crime is not only federal but isn't fact prosecuted federally i think that gets the government along a long way towards their ultimate burden in the case to show that a federal communication would have been reasonably likely but if it's something that was actually prosecuted at the state level then i think we're in a whole different world where the government really has a burden there to show that even though this was handled at the state level by state prosecutors and state court for some reason there would have been some kind of federal involvement in that case and the federal offense done that in some other cases there in the fourth circuit a case called smith that shows this pretty well it was the underlying crime were basically street level drug offenses that would generally be prosecuted at the state level but the government called the dea agent to the stand who said look we work really closely with the baltimore city police on this kind of thing we are always investigating drug crimes alongside them we probably would have talked to this witness if she hadn't been killed and all that kind of stuff and so the government put that evidence on and so even though it was prosecuted  state level there are joint task forces or some other reason the federal government would have gotten involved and we don't have any of that here we have essentially no evidence beyond the fact that the murder could have been tried a federal level and again i'm not even sure the jury could have concluded that much at all you know the government tried to prove this nexus the strategy was basically to ask ask the cooperating witness maurice boyd whether or not an a t f agent had interviewed him previously and he just didn't give them the answer they wanted they said was there an a t f agent there he said i talked to the district attorney they said was there an a t f agent there and he said there were a lot of people that questions that didn't get the answer right and didn't get the objection they should have gotten either but that's a different story and so you know they tried they didn't get it didn't really have a plan and they're kind of just left with this evidence language a couple of times saying that there isn't even enough evidence here i mean that's not my burden right now i just have to show the reasonable probability that the jury would have come out differently if it was instructed on the right standard i think i can do a lot more than that i really don't think there was not and there was enough evidence if you look at like the seven  case called snyder that was on direct appeal a sufficiency of the evidence challenge and the conviction was vacated and there was much more evidence there than there is here and there you have the state police gets on the stand it testifies that the f b i actually shares office space with them and actually provided some friends of assistance on the exact case and even all that's not quite enough to prove the federal communication and so i think you know is trying to place this case on the spectrum of all the other cases that have interpreted this this case is pretty close to the bottom in terms of what the government was able to offer here and so i just don't think that's enough to show it about the government's argument that the instruction is given which is i recall focus more on boyd's intent to speak to law enforcement in my recalling that correctly as a premise here  actually might be more favorable to your kleiner had been more favorable why on the record again do you think that's wrong so i think that's wrong for a couple of reasons first i mean the idea that council had done the strategically and didn't object because he thought that might be more favorable i a bit too much credit it's not as if he was making a bunch of different objections and that held some back for some nuanced reason he made no objections there were six different counts here and plenty of reason to object to some of these instructions and he just submitted a one page letter that said i have no objection to any of these and so i don't think there was kind of a lot of strategic thought going into it but it is more based on the record yeah even if there was i mean there's no basis in the record to suggest that knew the board was even awaiting awaiting sentencing much less was in on federal charges this is  facility actually run by the state that had state and federal detainees and there's no suggestion that law even knew boyd at all outside the context of this much less knew that ford was but had a federal sentencing coming up and then in terms of kind of whether this could have been strategy or not if it was strategy it wasn't one that was carried out at all because if you read the closing argument this isn't an argument truck council make trial counsel doesn't get up there and say oh well who knows what would happen in the real world but certainly didn't believe that this happened he didn't see any of that he was talking about the fact that in actuality objective facts were that the underlying crime the church will murders were tried at the state level and that's really where he rested his defense which really shows why the air was so was so egregious here to kind of rest your defense on this one element of the crime but they're not even asked for the reason the supreme court took that case is there was a circuit split among these two standards and if those two standards were basically the same and didn't make a difference it wouldn't have taken the case it wouldn't have gone through in the first ever might be good as a general proposition but with with regard to this particular case and help things would have played out in light of the evidence that was presented or vailable maybe and maybe maybe the outcome wouldn't have made a difference  beyond the commission of a possibly federal crime that's the extent of what's in the record and i think that might be something that would satisfy the communicate standard of the possibility standard but fowler is very clear that that fact alone cannot satisfy the reasonable likelihood standard and that's the big jump consideration of other ineffectiveness kline's or to permit law to refile an amended twenty to fifty i don't have anything from the six circuit i started a couple cases in the reply brief from other circuits and i think it's just the general idea leave to amend kind of generously i think it would make some sense to be able to go down have counsel look at this record take a look and see if there's anything else there there might not be but but you know it certainly could you have nothing that you could tell us the record indicates might need to be reconsidered on on the first time i've really focused kind of on this particular count i mean reading through some other areas i'm not sure the amount of counts to constitutional errors but there certainly were plenty of other errors made in certainly wouldn't be surprised if there was problem if i may there he has to show both that as of the time of the jury instructions here which are just three months after fowler was handed down it was clearly foreshadowed that feller's holding would be extended fifteen twelve  c second even if that was clearly foreshadow that there was no valid strategic reason not to prefer the jury instruction that the district court drafted what indication record you hear that this was a strategic choice so that has been fleshed out because there was no evidence you're hearing on the twenty fifty five but there's a fair bit of case law to the basically saying that when the record is silent on whether something was in fact a strategic choice the court should assume that that decisions made by trial coun were based on a valid strategy here the very argument that would have been used was not even used in closing argument isn't that an indication that there was if this was not a strategic consideration for purpose i don't think that that's really an accurate characterization of the closing i mean since counsel sort of hit a number of points on closing but certainly a big part of his argument was we don't know why jesse lo know they were in rival gangs maybe that's why he assaulted them maybe one of the other attackers had been provoked by marie spoiled and so it fit in well with this theory of you should quit because you don't know what jesse his motivation was to keep this marginally higher standard on the mens rea element that would have fallen out had the fellow objection been raised so going back to the clear foreshadowing i think it's you know important again to kind of look at the case from the perspective of three months after fowler and avoid the distorting hindsight that sometimes comes in years later and i think it's sort of a useful data point to ask what did the district court judge see as the law at the time jury instructions are sort of an unusual part of a criminal trial most of the trial it's the parties that kind of identifying tip the issues when it comes to jury instructions it's uniquely the province of the district judge to tell the jury what federal law matter well yes and no i mean i think when when talking about the significance of power i think one very important consideration here is how do people see fell or the time so certainly in the seven year sense some courts of appeals have given but if you look at justice scalia's concurrence of valor he says i doubt that any reasonable jury is going to be able to appreciate any distinction between this could possibly communicate standard and recently likely to communicate standard and so  kind of things that often govern the result in cases particularly you know we talk all the time about what is the review standard oh well we're in a beyond a reasonable doubt well we are we're not in that and so so much of the case law absolutely turns on what that standard is and here the supreme court took care careful care to say a possibility is not good enough and to articulate why you needed a different standard and yet the instruction that was given in this very case went right back to what the supreme court said it's worth my time to explain to you that you don't get to do think that's a significant difference well i think the fact that they took the case to kind of resolve the circuit split sort of either here nor there i think the question is how big a difference it was there between what communicate or could possibly communicate and reasonably likely to communicate again justice scalia says i don't think any juror is going to be able to appreciate his would not a majority not the majority opinion that's right but we might want to just sort of set aside the question whether that standard makes a difference i mean that might not be the best way for you to spend your time in our job to begin with i understand i mean and so you're trying to say that people might not have really seen that the court's interpretation of a once see if i recall there would apply to eight to suit a one c says prevent a communication a to c says hinder delay or prevent and you suggest that hinder or delay might somehow distinguish a to b c and so we can't blame counsel for immediately objecting that but yet unless i'm misreading your brief i don't see any reason basis in your brief to suggest what that you know distinction would be and why those words would create a different outcome for this nor in my aware of the government ever contesting and please tell me if i'm wrong so far as i know the government has never even contested that the fowler standard would apply and they to see case frankly i don't think we have any a t c cases where where this is come up in the johnson case of the ninth circuit which was i think a fifteen twelve b three case that the government did say the feller standard doesn't apply to that subsection and and that might standard should apply even several years after fell so it i something that still remains kind of an open issue but why i mean i mean the government you cite the booker sam you know book or issue before book or poster or book or like start blakeley but my recollection is that the government or the states whatever were vigorously contesting the extension of a pretty to those other areas and i whether the government has conceded the issue because part of that goes to kind of how significant the difference is between the white communicate and recently likely to communicate standards so if they shout the government's letting the wrong standard in its view sort of go through but i mean well i think i could have presume to tell you your business you know they often when issues raised before trial and it seems as though the finn is asking to raise the bar minimally and you can just say we're going to take th agree and go forward that's not unusual and you know certainly there are cases like beckles where the government decides to err on the side of caution and make a concession that's later rejected by courts so that the fact of a government concession and in other cases and i think is dispositive of whether it was obvious i just i'm not seeing the basis to think that anyone would argue this doesn't fall or doesn't apply to this provision i just well and nor do i ever see the government you know presenting a basis well i think the main distinction will not be so much the textual distinction between a one c and a to c but the narrowness of fowler's factual context you know the court emphasized over and over again we are considering a case where the victim witness is actually murdered and so we have to speculate what would have happened had he or she not been murdered and i mean they say it's in a one c case a one c talks about attempt to kill i mean they're interpreted that provision that's a holding for that  categorically i mean you can argue otherwise but i mean you know good good luck to the circuit that distinguishes that case in a one seat case based on the person being dead rather than  circuit said that you know when i think didn't the government conceded it could be circuit that could be i'm not sure your honor so but little so let me switch this strategic point just for a moment i understand essentially a higher means raeburn than what would have applied had the fall or objection raise and i think it's well within the realm of strategic consideration to say i'm not going to trade off this this heightened when humans read standard for this minimally heightened some theoretical possibility that commit communication could go to a federal law enforcement officer but that possibility is remote outlandish hypothetical here what we have is a very high profile gang related double murder that of the gang related nature of the murder i believe and given that they had you know that was the essence of the law bans in battle case i think it was clear that ok and you're doing a value i mean you're doing a good job here ok i mean to give you a hard time but is there any part of the record you would point us to for the proposition that the jury would be aware that this was a high profile by car eligible  fense as opposed to some garden variety kind of you know hand in hand transaction deal no i mean i understand your point and i don't diminish it but my question is does the record really supported i think first let me say that we were talking about what the record shows here i think the petition wants to treat this as though it's a sufficiency challenge on direct appeal and say all that's in the record is what was presented to the jury but twenty fifty five i think it's not unusual for courts to say ok well if a different jury instruction had been given if a different defense has been presented what evidence which was not presented to the jury could have been presented and here we have paragraph forty six of the pre sentence report which is one objected to saying prior to the stabbing boyd boyd had conveyed the information about the church will murder to federal law enforcement what do you have any authority for the proposition that in twenty to fifty five we look beyond the trial record to determine prejudice a trial well i don't have cases off the top my head but i think for example you can imagine a case where they were at a trial there was something that was not an element of the offense so there was no proof on it one way or the other because the this evidence that could have been presented in their forty's i've never seen that case with a could have been presented i mean just my own experience and maybe it's not so much twenty to fifty five's but my own experiences when the standard changes you just look back at the same record and say well did the evidence you know overwhelmingly support that or whatever the standard might be and you know her i mean i just i just don't think the jury i'm just not aware of any part of the record that supports the idea that the jury knew that this thing was you know a big  federal by car eligible as well just to kind of go back to the kind of methodology question of whether the court can consider things outside of what was presented directly to the jury i mean you can imagine a case for example  where twenty to fifty five petitioner comes in and says counsel was ineffective for failing to present an alibi defense be perfectly appropriate for the court say well had this had he done so here's all these witnesses who could have testified that in fact know that alibi fell apart none of that came into the jury but it's perfectly reasonable for a court to consider that and so you know i think this objected to paragraph forty six of the p s are saying that boyd did in fact communicate with federal law enforcement part of the stabbing i think that also kind of is a factor in strategic communications i mean again we don't we don't know exactly what trial counsel did know because there hasn't been an evidence you're hearing but if in fact he as far as he understood it from reviewing the discovery finally just very briefly your honor going back to your point about a rematch and we would say that even if the court were to vacate count sixty six there is no basis to have further proceedings determine whether any of the other counterfeit perfect if you want to pursue those you can can just make three quick points on the first question kind of what did the jury know how much did you know about whether this was a rocket hearing related murder again related murder so there really isn't anything they know that churchill was in a gang but they don't know that the murder itself was gang related but on top of that things that they do know they do know that it was actually being prosecuted by the d a and was actually tried in state court and so even if they would have had enough information to infer that it could have been prosecuted federally they knew for a fact that it was not being prosecuted federally and i think that's really the key point here is that the jury actually knew that state investigators were the ones who were investigating this federal investigators were not in terms of the statement p s r i mean i don't know the answer your question judge kathy just to whether or not we can kind of think about an imaginary world where they would have put on more evidence but it but if that's all they can point to i mean i think there's two problems there the first is that they tried to put that evidence on and didn't get it out of their witness and so to think they can get like a second bite at the apple or really a third bite at the apple now to pretend that it that they got the answer they got i don't think that works at all it's not as if they decided they didn't need to put on this evidence because they didn't think this was the standard or whatever it was they tried to put on this evidence weren't able to and so i don't think it would be right to now credit the evidence as if it had come in in the first place and then the last point i'll make on that is just that even if even if boyd had talked to a federal official before the witness tampering that still doesn't to serially prove that he would have talked to a federal official afterwards because you can think of a scenario where the federal government is thinking about well should we intervene in this case should we take over the prosecution they talk to the witness decide no there's no real federal interest here we're not going talk to anybody we're going to drop this whole matter and then when the question comes would boyd have communicated with a federal official going forward the answer would be no because the federal government is out of it at that point even if they had proven he had previously spoke to a federal official i don't think that's enough to show that he would have in the future in terms of the closing argument i think counsel mentioned that during closing argument counsel made some sort of variant based on this kind of subjective standard that he thinks might been part of the strategy i mean the argument that trial counsel was making there was not about whether law bans believed that board would talk to a federal versus state official and that's that's the subject of instruction that was actually given the argument counsel made a closing argument was about whether it was tampering at all and so that's the mens rea element of the statute not the federal nexus element so he made the certainly made that argument law and wasn't trying to tamper at all law and was simply retaliating for some other gang related thing but he certainly did not make this kind of law binns didn't believe that boyd would talk to a federal official kind of argument and that's the only kind of strategy i've heard the government suggest he made and then the very last point counsel suggest that the father standard isn't all that different from the standard i think father itself disposed of that because the defendant fell or was convicted under the possibility standard after the supreme court decided the case the case was remanded in his conviction was overturned and vacated and so it's clear from that case itself that the standard does make a big difference and it would have made a big difference here and there's at least a reasonable probability that one juror would have seen this case