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. e du/thir dc ir c uit_1997/110Filed May 22, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7654

UNITED STATES OF AMERICA,

v.

ROBERTA RONIQUE BELL, Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Criminal No. 95-163)

Argued: April 15, 1997

Before: GREENBERG, ALITO, and SEITZ, Circuit Judges

(Opinion Filed: May 22, 1997)

RICHARD K. RENN (Argued)
SNYDER & RENN
149 East Market Street York, PA 17401

Attorney for Appellant

DAVID M. BARASCH
UNITED STATES ATTORNEY

GORDON A.D. ZUBROD (Argued) Assistant U.S. Attorney
P.O. Box 11754 Harrisburg, PA 17108

Attorneys for AppelleeOPINION OF THE COURT

ALITO, Circuit Judge :

Appellant Roberta Ronique Bell was convicted follow ing a jury trial of conspiracy, in violation of 18 U.S.C. § 371; murder of a witness, in violation of 18 U.S.C. § 15 12(a)(1)(A) and (C); use of physical force and threats against a witness, in violation of 18 U.S.C. § 1512(b)(1), (2), and (3 ); and use of a firearm during the commission of a crime of vi olence, in violation of 18 U.S.C. § 924(c)(1). She was sent enced to life imprisonment. These charges all relate to the killing of Doreen Proctor, who had been acting as an informant for the Tri-County Drug Task Force. Before Bell was ind icted on these federal charges in June 1995, she had been acquitted in the Court of Common Pleas for Adams Co unty of murder and witness intimidation charges arising out of
the same events.

Bell's principal argument in this appeal is that he r convictions on the witness tampering charges must b e reversed because there was insufficient evidence th at she
intended to interfere with a federal proceeding or to prevent
the communication of information to federal law enforcement officers. We hold that the jury was ent itled to conclude (1) that Bell intended to prevent communic ations by Proctor to law enforcement officers and (2) that under
United States v. Stansfield , 101 F.3d 909 (3d Cir. 1996), at
least one of those communications would have been t o a federal officer. Accordingly, we affirm.

I.

Doreen Proctor was an informant for the Tri-County Drug Task Force ("the Task Force"), which was comprised of local, state, and federal investigators operating i n Cumberland, Dauphin, and Franklin Counties in Pennsylvania. The Task Force had developed federal as well as state criminal cases. Based on an investigation by the Task Force in which Proctor had provided informatio n, David Tyler (who was Bell's boyfriend and colleague in the

2drug business) was on trial for drug offenses in st ate court.

Proctor was scheduled to testify against Tyler on A pril 21, 1992, in the Court of Common Pleas for Cumberland County. In the early morning of April 21, at the di rection of David Tyler, Bell and several others kidnapped Proc tor, took her to an isolated location in Adams County, t ortured her, and killed her. Bell drove Proctor to the plac e where she was killed, and fired the first shot, into Proc tor's chest. Willie Tyler, David Tyler's brother, then shot Proc tor in the
head.

Several of Bell's co-conspirators were convicted in state court of murder and/or witness intimidation. Bell, however, was acquitted in April 1993. Federal authorities th en began their own investigation into Proctor's murder, whic h culminated in the convictions that are the subject of this appeal.1

Before trial, Bell moved to dismiss the indictment on double jeopardy and related grounds. The district c ourt denied this motion in September 1995. Following tri al, Bell moved for judgment of acquittal or a new trial, ren ewing her double jeopardy argument and contending that th ere was insufficient evidence to sustain her conviction s on the witness tampering charges because Proctor was not a federal witness. In addition to challenging the suf ficiency of the evidence, Bell contended that the court erred i n its charge to the jury on the issue of her intent to in terfere with a federal proceeding or investigation. She als o advanced the related argument that without a connec tion between Proctor and a federal proceeding or a feder al investigation, the court lacked jurisdiction. The c ourt denied this motion in a memorandum opinion filed in June 1996. At her sentencing hearing, Bell argued that i t was error to use the first-degree murder guideline in c omputing her sentence on the 18 U.S.C. § 1512(a) intimidatio n count

___________________________________________________ ______________

1. Willie Tyler is the only co-conspirator of Bell' s to have been similarly prosecuted in federal court after the state prosecu tion. He was acquitted
of murder and convicted of witness intimidation in the state trial, and served two years in prison. He was then convicted o f the same offenses as Bell following a trial in the Middle District ofPennsylvania (No. 1:CR96-106).

3(as the pre-sentence report recommended) because th e jury

never determined that Bell committed first-degree m urder. The court rejected this argument. (App. 21A-30A)

On appeal, Bell raises these same contentions. In evaluating Bell's sufficiency challenge, we must vi ew the evidence in the light most favorable to the governm ent (the verdict-winner) and ask "whether any rational trier of fact
could have found the essential elements of the crim e beyond a reasonable doubt." United States v. Price , 13 F.3d 711, 731 (3d Cir. 1994). Since the remainder of Bel l's contentions pose questions of law, our review as to them is plenary.

II.

Subsection (a)(1) of 18 U.S.C. § 1512 ("Tampering w ith a witness, victim, or an informant") makes it unlawfu l to kill or attempt to kill another person "with intent to - - (A) prevent the attendance or testimony of any person i n an official proceeding; [or] (C) prevent the communica tion by any person to a law enforcement officer or judge of the United States of information relating to the commis sion or possible commission of a Federal offense . . . ." S ubsection (b) of 18 U.S.C. § 1512 prohibits the knowing use o f intimidation, physical force, threats, and corrupt persuasion to accomplish these ends.

Title 18 U.S.C. § 1515(a)(1) defines an "official proceeding" as a federal proceeding, whether before a court, a grand jury, Congress, or a government agency. Sim ilarly, 18 U.S.C. § 1515(a)(4) defines a "law enforcement o fficer" as "an officer or employee of the Federal Government, or a person authorized to act for or on behalf of the Fe deral
Government . . . ." While the statute thus limits i ts reach to tampering that affects a federal proceeding or investigation, it expressly does not require that the defendant know or intend anything with respect to t his federal character. Title 18 U.S.C. § 1512(f) provid es: "no state of mind need be proved with respect to the circumstance -- (1) that the official proceeding be fore a judge [or] court . . . is before a judge or court o f the United States . . . or (2) that the . . . law enforcement officer is an

4officer or employee of the Federal Government or a person

authorized to act for or on behalf of the Federal
Government . . . ."

A. In the district court's view, the government was required to prove only that "the Defendant intended to interfere with a proceeding (that happened to be a federal proceeding) or interfere with communication to a la w enforcement officer (who happened to be a federal l aw enforcement officer)." Dist. Ct. Op. at 7. If the g overnment had presented evidence that it was contemplated tha t Proctor would testify in a federal proceeding, the jury could easily have inferred that at least one of the proce edings
with which Bell intended to interfere would have be en federal. But there was no federal proceeding contem plated at the time of Proctor's murder.2 Similarly, if the government had presented evidence that at the time of her murder Proctor was cooperating in an ongoing federa l investigation, the jury could easily have inferred that at
least one of the law-enforcement-officer communicat ions that Bell intended to prevent would have been with a federal officer. But, while federal officers were i nvolved in the Task Force investigation, there is no evidence that Proctor had been providing information to a federal officer
or to an officer authorized to act on behalf of the federal
government.

Accordingly, in this case, as in United States v.
Stansfield , 101 F.3d 909 (3d Cir. 1996), we must rely on circumstantial evidence to decide whether the jury could
have concluded that at least one of the law-enforce mentofficer communications that Bell intended to preven t would
have been with a federal officer. In Stansfield , the
defendant believed that one Hoffman had told the
authorities that Stansfield had burned down his

___________________________________________________ ______________

2. The government contends that "federal proceeding s were, in fact, contemplated as the result of the victim's discussi ons with Special Agent Diller. (App. Vol. 2, pp. 45, 46)." Govt. Br. at 23 . Diller's testimony does not bear this characterization. He did not say anyt hing that can be construed to mean that the Task Force had already d ecided at the time
of Proctor's murder to make a federal case out of t he drug trade in which Tyler, Bell, and others were engaged, or that it ha d even thought about doing so.

5(Stansfield's) house to collect the insurance money

.

Stansfield threatened, beat up, and attempted to ki ll Hoffman and Hoffman's parents. On appeal, Stansfiel d argued that his conviction for witness tampering co uld not
stand because there was insufficient evidence that he had
intended to hinder Hoffman's communications with a
federal law enforcement officer. Id . at 917.

Stansfield argued that the government was required to prove "an intent to prevent the communication of information to some particular law enforcement offi cer" who was, in fact, a federal officer. Id . at 918. The government countered that all it had to prove was that "the of fense about which the defendant wishe[d] to prevent communications [was] actually a federal offense." I d . We rejected Stansfield's interpretation, but noted as well that "the position of the government [was not] without problems." Id . We expressed concern that if we demanded "only that the government prove that the underlying offense is federal and that the defendant intended to preve nt the witness from communicating with law enforcement off icers in general . . . we would essentially vitiate an im portant facet of the intent requirement of the statute." Id . We set forth the following formulation of the elements of § 1512(a)(1)(C):

[T]he government must prove: (1) the defendant kill ed or attempted to kill a person; (2) the defendant wa s motivated by a desire to prevent the communication between any person and law enforcement authorities concerning the commission or possible commission of an offense; (3) that offense was actually a federal offense; and (4) the defendant believed that the pe rson in (2) above might communicate with the federal
authorities

.

Id . (emphasis added).

In view of the statute's clear command that the government need not prove any "state of mind" on th e part of the defendant with respect to the federal charac ter of the proceeding or officer, 18 U.S.C. § 1512(f), we do n ot read the italicized passage as requiring proof that the defendant believed the victim might communicate with law

6enforcement officers whom the defendant knew or bel ieved

to be federal officers . Rather, we read this sentence as recognizing that what the statute mandates is proof that
the officers with whom the defendant believed the v ictim might communicate would in fact be federal officers .3

Our interpretation is buttressed by the Stansfield court's explanation that "[t]his last element may be inferr ed by the jury from the fact that the offense was federal in nature, plus additional appropriate evidence." Id . If an offense constitutes a federal crime, it is more likely that an officer investigating it would be a federal officer, but an offense's status as a federal crime has no relationship with the defendant's subjective belief about the individual investigating it. Our reading of Stansfield is further confirmed by an examination of the dissent in that case. The dissent would have ordered the entry of a judgm ent of acquittal because the evidence revealed "no way to
conclude that Stansfield either believed that a fed eral investigation was underway or could possibly have b een aware of the potential for a federal investigation. " Id . at 924 (Lewis, J., dissenting). The dissent thus clearly f ramed the
issue as whether the defendant must know or intend that
the law-enforcement-officer communications which he seeks to prevent would be with federal officers. Be cause of the majority's conclusion that such federal-specifi c knowledge or intent was not required, the dissent c harged that the majority had "essentially eviscerate[d] th e intent
element of the statute." Id . at 923 (Lewis, J., dissenting).

Accordingly, we believe that the law of this circui t after
Stansfield is that the government must prove that at least
one of the law-enforcement-officer communications w hich the defendant sought to prevent would have been wit h a

___________________________________________________ ______________

3. We do not mean to imply that the victim and the witness or informant -- the person murdered and the person whom the murd erer intended to prevent from communicating with the authorities -- must be one and the same. 18 U.S.C. § 1512(a)(1)(C) seems to apply as w ell to a situation where the defendant kills one person at least in pa rt to set an intimidating example to dissuade another person or persons from communicating to the authorities. See id . ("Whoever kills or attempts to kill another person , with intent to . . . prevent the communication by any

person to a law enforcement officer . . . .") (emphases a dded).

7federal officer, but that the government is not obl igated to

prove that the defendant knew or intended anything with respect to this federal involvement. As Stansfield explained, the government may carry this burden by showing tha t the
conduct which the defendant believed would be discu ssed
in these communications constitutes a federal offen se, so long as the government also presents "additional appropriate evidence." Id . at 918.

B. The questions upon which the disposition of this appeal turns, then, are: (1) whether the jury could have concluded that at least part of Bell's motivation i n killing Proctor was to prevent Proctor from communicating f urther with the Task Force; and (2) if so, whether the jur y could
have concluded that at least one of Proctor's furth er communications with the Task Force would have been with
a federal officer.

We have no hesitation in answering the first questi on in
the affirmative. In Stansfield , the government's case appears to have been based solely on the law-enforc ementofficer-communication part of the statute. Here, in contrast, the government has emphasized the official-proceedi ng subsection (despite the fact that § 1512 clearly wo uld not apply if Bell's sole motivation in killing Proctor was to prevent her from testifying at Tyler's trial, becau se that state-court trial does not qualify as an "official proceeding"). Nevertheless, the government also alleged in the in dictment and submitted to the jury the theory that Bell kill ed Proctor to prevent her from communicating with law enforcem ent officers. (App. 62A, 70A, 72A-73A; 561-62, 565-66, 586-87)

We are satisfied that, while the evidence may lend itself more obviously to the theory that Bell killed Proct or in order to prevent her from testifying a few hours la ter at Tyler's trial, it also supports the inference that Bell believed Proctor was going to continue to communicate with t he Task Force concerning drug crimes that Bell and oth ers had committed. It is undisputed that, as a result o f Proctor's information and testimony, an individual named Mary Jane Hodge had been convicted of drug offenses , and
that at the time of her murder Proctor was schedule d to testify against two other drug defendants besides T yler. (App. 54-57) The Task Force had not at that point b egun an

8investigation of Bell, but it is undisputed that Pr octor "was

still providing information about the drug trade in the Carlisle area at the time and also Harrisburg," a d rug trade in which Bell was personally and heavily involved. (App. 57)

We hold that it was reasonable for the jury to infe r that Bell feared that Proctor's continued cooperation wi th the
Task Force would have resulted in additional
communications with law enforcement officers concer ning drug crimes committed by Bell, among others, and th at at least part of Bell's motivation in killing Proctor was to prevent such communications. The evidence is thus sufficient to support a finding that Bell killed Pr octor not only to protect her boyfriend, Tyler, but also to p rotect herself, because there is evidence that Bell was at least as heavily implicated as Tyler in the drug trade for w hich Tyler was on trial. (App. 300, 435-36, 451)

We also believe that the second question requires a n affirmative answer. The government clearly presente d sufficient evidence to entitle the jury to conclude that Bell killed Proctor; we have held that the jury could ha ve found that Bell was motivated at least in part by a desir e to prevent Proctor from communicating with the Task Fo rce concerning the commission or possible commission of offenses; and those offenses (drug crimes) are clea rly
federal offenses. See Stansfield , 101 F.3d at 918. Bell, like Stansfield, "had knowledge of [Proctor's] past coop eration and was aware that some investigation, though not necessarily a federal one, was underway." Id . at 919. The
Stansfield court noted that it was unclear whether Stansfield knew that a federal investigation had be en opened. Id . Similarly, it is unclear whether Bell knew that the Task Force was a joint federal-state effort, bu t it is clear
that it in fact was. As in Stansfield , the evidence does not indicate that Bell intended to prevent Proctor from communicating with a particular officer or officers , but rather with the Task Force generally.

We hold that it was reasonable for the jury to infe r that if Proctor had continued to cooperate with a partia lly federal law enforcement body regarding conduct constituting federal crimes, at least one of her
communications would have been to a federal officer or to

9an officer authorized to act on behalf of the feder al

government.4 The jury thus could reasonably have fo und that Bell killed Proctor "with intent to . . . prev ent the communication by [Proctor] to a law enforcement off icer . . . of the United States of information relating to the commission or possible commission of a Federal offe nse." 18 U.S.C. § 1512(a)(1)(C). Contrary to the criticis m expressed by the dissent in Stansfield , this conclusion does
not render the defendant's intent "irrelevant." See 101 F.3d at 922 (Lewis, J., dissenting). Rather, it respects fully the statute's requirement that the defendant intend to prevent a communication to a law enforcement officer, as we ll as its requirement that such officer be, in fact, a federa l officer. What our analysis renders irrelevant is the defenda nt's "mental state" regarding the fact that the officer is a federal officer -- a fact which § 1512(f)(2) by its terms d eclares
irrelevant.5

III.

We next address Bell's challenge to the district co urt's jury charge with respect to the intent requirement of the tampering counts. The court gave the jury a supplem ental instruction stating that the government was require d to prove that:

___________________________________________________ ______________

4. Beyond stating our conclusion that the additiona l evidence presented in this case (in particular, that the Task Force wa s a joint federal-state effort that had developed federal cases in the past ) constitutes "additional appropriate evidence" of the sort manda ted by Stansfield , 101 F.3d at 918, we express no opinion as to what types and what quantum of evidence satisfy that standard, which by its nat ure will require careful, case-by-case analysis.

5. Bell's argument that the federal government lack s jurisdiction to try her for these crimes is founded upon her contention that the evidence reveals no nexus between her charged conduct and an y federal interest. In light of our conclusion that the evidence is suf ficient to sustain Bell's convictions for tampering with a federal informant, we reject her jurisdictional argument. Similarly, Bell's sufficie ncy argument as to the conspiracy and gun charges depends upon the success of her sufficiency challenge to the tampering counts. We therefore fin d this argument as
well to be meritless.

10defendant intended to frustrate a future judicial

proceeding, and in parentheses that would turn out to be a federal proceeding . . . .

[Y]ou would have to find beyond a reasonable doubt
that the defendant intended to frustrate a future judicial proceeding. You would also have to conclud e that that proceeding would be a federal proceeding, but you don't have to find that the defendant knew that it would be a federal proceeding.

(App. 586) Bell argues that this charge "watered do wn" the intent requirement by "shift[ing] the jury's focus to deciding whether it was possible that the victim could relay information to federal law enforcement, rather than to the proper inquiry -- the intent of the Defendant . . . ." Bell Br. at 29 (emphasis in original).

This argument is meritless. The quoted instruction did nothing more than explain 18 U.S.C. § 1512(f)(1) an d (2)'s express provision that the government need not prov e any state of mind on the part of the defendant with res pect to the federal character of the proceeding or law-enfo rcementofficer communication that it alleges she intended to interfere with or prevent.

IV.

In sentencing Bell to life imprisonment, the distri ct court followed the pre-sentence report's recommendation a nd applied U.S.S.G. § 2A1.1(a), the guideline for firs t-degree murder. Bell contends that since the jury did not f ind that her killing of Proctor constituted first-degree mur der, it was
error for the district court to sentence her based on the first-degree murder guideline rather than the secon d-degree guideline.

The provision under which Bell was sentenced, 18 U. S.C. § 1512(a)(2)(A), incorporates 18 U.S.C. § 1111's de finition of murder, and provides that a conviction for tamperin g-bykilling shall be punished by death or life imprison ment if the killing constitutes murder under § 1111, and sh all be punished in accordance with § 1112 (the manslaughte r statute) if it is any other kind of killing. Here t he district

11court found by a preponderance of the evidence that Bell's conduct fit the definition of first-degree murder s et forth in 18 U.S.C. § 1111(a). (App. 21A-30A) Bell argues tha t it was a violation of due process for the district court, as opposed to the jury, to make this determination.

We are unpersuaded by this argument, but we need no t resolve it definitively. Even if Bell should have b een found to have committed second-degree rather than first-d egree murder, it would not affect her sentence. Title 18 U.S.C. § 1512(a)(2)(A) provides that the punishment shall be death or life imprisonment where the "killing" constitute s murder

, regardless of whether it is first-degree or second- degree murder. Bell does not argue that the "killing" here should have been found to be manslaughter.6

V.

For the foregoing reasons, we affirm the judgment o f conviction and sentence entered by the district cou rt.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

___________________________________________________ ______________

6. Bell also reiterates the double jeopardy, collat eral estoppel, and selective prosecution arguments that were rejected by the district court. The dual sovereigns doctrine has long foreclosed Be ll's argument that the federal government may not prosecute her for the sa me conduct of which she was acquitted in state court, and Bell fails in her attempt to fit this
case into the "Bartkus exception" to that doctrine. See Bartkus v. Illino is

, 359 U.S. 121 (1959). The same defect -- no identity of parties -- dooms Bell's collateral estoppel argument. Finally, Bell' s selective prosecution argument is frivolous. No such claim lies unless Be ll can make out a difficult prima facie showing that she was selected for prosecution for an invidious reason such as her race, her religion, or her exercise of constitutional rights. See , e.g. , Wayte v. United States , 470 U.S. 598, 608 (1985). The only motive so much as hinted at he re -- that the federal government chose to prosecute Bell after he r state court acquittal because it did not want her to get away with murder -- is far from
invidious.

12