UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF COLUMBIA

____________________________________ ) UNI TED STATES OF AMERI CA, ) ) v. ) Criminal No. 09-0026 (PL F) ) RI CO RODRI GUS WI L L I AMS, ) ) Def endant. ) ____________________________________)

OPI NI ON This matter is befor e the Court on the motion of def endant Rico Rodrigus Wil liams for judg ment of ac quittal on Count Two of the I ndictment or, in the alter

native, for

a new tria l on that count. Upon consider ation of the pa rties’ pa pers, the r eleva

nt leg al authorities, and the e ntire re cord in this case , the Court will deny Mr. Will iams’ motion. 1

I . BA CKGROUND On Fe bruar

y 3, 2009, a g rand jury

returne d an Indictment char g ing de fenda nt Rico Rodrigus Williams with one count of second de g ree murder, in violation of 18 U.S.C. § 1111(a) , and thre e counts of w itness tampering , in violation of the Victim and Wit ness Protection Ac t, 18 U.S.C. § 1512(b)(3). A s alleg ed in the Indictment, on or about July 3, 2005, Mr. Will iams unlawfully

killed Serg eant Juwan J ohnson duringa g anginitiation by striking Ser g eant Johnson The pa pers r eviewe d in connec tion with the pending motion include: the r e-ty ped 1 indictment (“Indictment”) [Dkt. No. 128]; t he jury verdic t form (“ Ver dict For m”) [Dkt. No. 137]; the def endant’ s motion for judgme nt of ac quittal on Count Two or, in the a lternative, f or a ne w trial (“Mot.” ) [Dkt. Nos. 152, 153] ; the g overnme nt’s memorandum in opposition to the defe ndant’s motion for judg ment of ac quittal and motion for a new trial on Count Two (“Opp.” ) [Dkt. No. 155] ; and the def endant’ s reply

to the g overnme nt’s opposition t o his moti on for judgme nt of ac quittal and new tria l (“Reply”) [Dkt. No. 159].with his fists and kicking him with his feet. See Indictment ¶ 5. Mr. Willi ams then intimidated

and thre atene d, or attempted to intimidate and thre aten, other members of

his ga ng with the intent to prevent them fr om communicatinginformation about the e vents surrounding Serg eant J ohnson’s death to United States law enfor ceme nt authorities. See id. ¶ 7. B efor e trial, the g overnme nt dismi ssed one of the witness tamper ing c ounts. On Octobe r 25, 2010, trial beg an, and on N ovember 9, 2010, the Court instructed the jury . In acc ordanc e with the par ties’ joint proposed instructions, the Court g ave the following instruction to the jury

on the two re maining w itness tamperingcounts: Counts Two and Thre e of the indictment char g e Mr. Williams wit h tamperingwith a witness, which is a violation of f eder al law. In order to find the defe ndant guilty of these c harg es, or of

either of these c harg es — bec ause a g ain, you should consider Count Two and Count Three separ ately , but I ’m instructing y ou at once beca use the same elements a

pply in eac h case — y ou have to a pply the eleme nts to the facts that you find. In order to find the defe ndant guilty

of these c harg es, you must find that the g overnme nt proved e ach of the followingfour e lements beyond a rea sonable doubt: One, that the de fenda

nt knowingly

used intimidation and threats, or attempted to do so, or ca

used anothe r per son to do so; second, that the def endant a cted with the intent to hinder or delay or pre vent the individuals named in the indictment from communicating to law enfor ceme nt authorities information re lating to the c ommissi on or the possible commission of a crime; third, that the of fense , the underlying of

fense that he hinder ed the c ommunication with respe ct to, the under lying of fense , was a

fede ral off

ense. In other wor ds, the second e lement is that he ac ted with the intent to hinder, dela

y , or pre vent individuals from communicatingwith law enf orce ment authorities information re lating to the c ommissi on or possible commission of an offe nse; the third eleme nt is that [t he] particular

offe nse must have be en a f eder al offe nse. B ut the

2g overnme nt does not have to prove that the def endant kne w that the cr ime was a

fede ral off

ense. Four th, that the defe ndant believe d that these other persons mig ht communicate w ith feder al authorities re g ardingthe alleg ed off ense. Now, whe n y ou rea d the indictment — and you’ll have a copy of the indictment with y ou — this inst ruction may make more sense than in the abstra ct. B ut let me summarize briefly , just to remind y ou. What’s alleg ed in Count Two is that on or about J uly 4th, 2005, the def

endant knowing ly

committed the offe nse of tampe ring with a witness by

using intimidation and threats, and attemptingto do so toward the f

ollowing individuals: L atisha Ellis, Nicholas Sims , Rodney

Howell, and T err ance Norman. A nd the evidenc e y ou’ve g ot to look at is t he evide nce r elatingto that cookout or barbe que on Jul y

4th. Now, you the jury

must be unanimous — that is, y ou must all ag ree — as to which of the se individuals, if any , wer e the subjec t of such intimi dation or threa

ts. And Iwill remind y ou of that direc tive, and it will be ref

lected in the ve rdict for

m that I will be g iving you. Reg ardingCount Three of the indictment, it is allege d that in or about J uly

2005, the def

endant knowing ly

committed the offe nse of tamper ing w ith a witness by causingThemitrios Sarog lou to intimi date a

nd threaten Nicholas Sims. So thos e ar e the two tamperingchar g es. Nov. 9, 2010 Trial Tr . at 41-43. 2

On Novembe r 15, 2010, Mr. Willi ams was f ound g uilty

of Count One of the Indictment, second de g ree murder, in violation of 18 U.S.C. § 1111(a) ; and Count Two, witness

The instructions g iven to the jury on the eleme nts of witness tamperingare 2 substantively

identical to the propose d instructions that the parties jointly filed with the Court on October 19, 2010. See Proposed Jury Instructions at 44, Oct. 19, 2010 [Dkt. No. 96]. The parties’ proposed instructions we re later re vised slightly pursuant to the par

ties’ re quests and without any

objection noted. See O rder ¶ 4, Nove mber 8, 2010 [Dkt. No. 124] (“The Court will g ive the tamper ing instruc tion sugg ested by the g overnme nt in a rec ent e- mail, and not objected to by the def ense, a s modified to include a una nimity instruction, as sug g ested by the def ense.” ). 3tampering , in violation of 18 U.S.C. § 1512(b)(3). See V erdic t Form at 1-2. The jury found him not guilty on Count Three, the second w itness tamperingchar g e. I d. at 2. As for Count Two, the Indictment stated:

On or a bout J uly 4, 2005, in the Fe dera l Republic of Ger many , the defe ndant, RICO RODRIG US WILL IAMS , did knowingly intimi date, a

ttempt to int imidate and thre aten, pe rsons known to the Gra nd J ury , and her ein identified a s L atisha Ellis, Nicholas Sims , Rodney

Howell and T err ence Norman w ith the intent to hinder, de lay

and pre vent the communication to a law enf orce ment office r of the United States of information re lating to the commission or possibl e commission of a fe dera l offense

. Indictment ¶ 7 (e mphasis in origina l).

Six months after the jury

rende red its ver dict in this case, the Supre me Court issued a dec ision in Fowler v. United States, 131 S. Ct. 2045 (2011). As Mr. Williams describes it, under F owler “ the instructions provided to the jury on the eleme nts of 18 U.S.C. § 1512 were clea rly incorre ct.” Mot. at 1. F urthermor e, Mr. Williams asserts that “appr opriate jury instructions under F owler w ould have r esulted in an a cquittal on Count Two.” I d. Consequently , Mr. Will iams reque sts that the Court vacate his conviction on Count Two or, in the alternative, g rant him a ne w trial on that count. See id. The g overnme nt opposes the motion.

I I . L EGAL

STANDARD Under Rule 29 of the F eder al Rules of Criminal Procedur e, the Court must enter judgme nt of ac quittal on any offe nse cha

rg ed for which the e vidence is insufficient to sustain a conviction. United States v. Safa vian, 644 F. Supp. 2d 1, 7-8 ( D.D.C. 2009). In ruling on a motion for judgme nt of ac quittal, the Court must “‘c onsider[] the evidenc e in the lig ht most favor able to the g overnme nt and deter min[ e] whether, so r ead, it is sufficie nt to permit a rational

4trier of

fac t to find all of the essential e lements of the c rime beyond a re asonable doubt.’” United States v. Kayode, 254 F .3d 204, 212-13 (D.C. Cir. 2001) ( quoting United States v. H arr ington, 108 F.3d 1460, 1464 ( D.C. Cir. 1997)). The Court must “a ccor d[] the g overnme nt the benef it of all leg itimate infere nces,” United States v. Weisz , 718 F.2d 413, 437 ( D.C. Cir. 1983), and ac cept the jury ’s ver dict of guilt if “ anyrational trier of fa ct could have found the e ssential elements of the cr ime beyond a re asonable doubt.” United States v. Arr ington, 309 F .3d 40, 48 (D.C. Cir. 2002) (e mphasis in origina l) (quotations omitted). Put another wa y , the Court may

g rant a motion for judgme nt of ac quittal only wher e “a rea sonable juror must nece ssarily have ha d a

rea sonable doubt as to the de fenda nt[ ’s] guilt.” United States v. Weisz, 718 F.2d at 437 (empha sis in original).

Rule 33(a) of the F eder al Rules of Criminal Procedur e provide s that “the c ourt may vacate any

judgme nt and g rant a

new tria l if the interest of justice so require s.” F E D . R. C R I M . P. 33(a). “ [A] ny

err or suffic ient to require a re versa l on appea l is an adequate ground for g rantinga new

trial.” 3 C H A R L E S A L A N W R I G H T & S A R A H N. W E L L I N G , F E D E R A L P R A C T I C E & P R O C E D U R E § 589 (4th ed. 2011). A new tria l should be g rante d only if the def endant ha s shown that “‘the err or wa s substantial, not harmless, and that the e rror ‘af fec ted the def

endant’ s substantial rig hts.’’” United States v. Safavian, 644 F . Supp. 2d at 8 (quoting United States v. Walker, 899 F . Supp. 14, 15 (D.D.C. 1995) and United States v. J ohnson, 769 F. Supp. 389, 395-96 (D.D .C. 1991)). Whether to g rant a motion for a new

trial is “a de cision committed to the Court’s sound discretion.” United States v. Neill, 964 F. Supp. 438, 441 (D.D.C. 1997).

Mr. Will iams challeng es the Court’s instructions to the jury on the eleme nts of witness tampering . See g ener ally Mot. But he did not object to those instructions at trial; to the

5contra

ry , the instructions provided to the jury wer e substantively

identical to those jointly proposed by

Mr. Will iams and the g overnme nt. Thus, where , as her e, a de fenda nt fails to object to a jury instruction before the jury retire s to deliberate , this Court’s review is only for “ plain

err or” in a ccor dance with Rule 52(b) of the F eder al Rules of Criminal Procedur e. United States v. Marc us, 130 S. Ct . 2159, 2164 (2010); see United States v. L aure y s, 653 F.3d 27, 32 (D .C. Cir. 2011) (citingUnited States v. Br y ant, 523 F.3d 349, 353 ( D.C. Cir. 2008)); United States v. Wil son, 605 F.3d 985, 1020 (D .C. Cir. 2010); United States v. Thompson, 279 F.3d 1043, 1049 (D.C. Cir. 2002); see a lso United States v. Bra ndao, 448 F . Supp. 2d 311, 318 (D. Mass. 2006) (applying “ the plain er

ror standa rd to an objec tion raised for the first time in a post-trial motion [before the trial court], beca use at that stag e, the c ourt ‘per forms something of an a ppellate role’” ) (quotingUnited States v. Washington, 263 F . Supp. 2d 413, 426 n.7 (D. Conn. 2003)); United States v. Clarke, 767 F . Supp. 2d 12, 24 (D.D.C. 2011).

Under the plain er

ror standa rd, a de fenda

nt must establish “that (1) there is an

err or; (2) the err or is clea r or obvious, rather than subjec t to reasona ble dispute; (3) the e rror aff ecte d the [defenda

nt’s] subs tantial rig hts, which in the ordinar y case means it aff

ecte d the outcome of the district court proc eeding s; and (4) the err or ser iously aff ect[s] the fa irness, integ rity or public re putation of judicial proce eding s.” United States v. Mar cus, 130 S. Ct. at 2164 (quotations omitted); see United States v. L aure y s, 653 F.3d a t 32; United States v. Rawling s, 522 F.3d 403, 407 (D .C. Cir. 2008). As for the third pr ong of that standar d, the Supreme Court has state d that, “to meet this standar d an er ror must be ‘pr ejudicial,’ which means that there must be a re asonable probability that the er

ror a ffe cted the outc ome of the tria l.”

6United States v. Marc us, 130 S. Ct . at 2164. The burde n is on the defe ndant to prove “ eac h 3 element of

the plain er

ror standa rd.” United States v. Br own, 508 F.3d 1066, 1071 ( D.C. Cir. 2007) (c iting United States v. Ola no, 507 U.S. 724, 734 (1993)); see United States v. Clarke, 767 F. Supp. 2d at 24; see also United States v. J ohnson, 592 F.3d 164, 169 (D .C. Cir. 2010) (“I f the de fenda

nt did not object [ to an instructional er ror], it is t he def

endant’ s burden to show not only that the er

ror wa s obvious, but also that it prejudice d him.”).

I I I . DI SCUS SI ON Mr. Will iams was convic ted of one count of witness tampe ring , in violation of 18 U.S.C. § 1512(b)(3). Tha t statute provides that [w] hoever

knowing ly

uses intimidation, t hreatens, or cor ruptly persua des anothe r per son, or attempts to do so, or eng ag es in misleading conduct towa

rd anothe r per son, with intent to . . . hinder, de lay , or pre vent the communication to a law enf orce ment office r or judg e of the United States of information relatingto the commission or possibl e commission of a F eder al offe nse . . . shall be fine d under this title or imprisoned not more than 20 year s, or both. 18 U.S.C. § 1512(b)(3).

The pre judice re quirement of the plain err or standar d applies in the “or dinary 3 case .” United States v. Mar cus, 130 S. Ct. at 2164 (quotations omit ted). As the Supre me Court has noted, howe ver, c erta in error s, ref err ed to as “ structura l error s,” ar e exceptions that do not nece ssarily

require the def

endant to show a ctual pre judice. I d. (quotations omitted). Such err ors “mig ht affe ct substantial rig hts reg ardle ss of their ac tual impact on [a defe ndant’s] trial.” I d. (quotations omitted). But such struc tural er rors “ are a ver

y limit ed cla ss of err ors that af fec t the framework w ithin which the trial proce eds.” I d. (quotations omitted).

Mr. Will iams does not asser t that the alleg ed instructional er rors in this case fall within the structural e rror cate g ory . Nor c ould he. See United States v. Ma rcus, 130 S. Ct. at 2165 (notingty

pes of instructional e rror s held to be non-struc tural, including“omitting mention of an e lement of a n offe nse,” a

nd “er roneously instructing the jury

on an ele ment”). 7As discussed, Mr. Williams di d not object to the jury instruction on witness tampering . But he now ra ises the ar gument that under the Supreme Court’s de cision in Fowler v. United States, the instructions provided to the jury on the eleme nts of the witness tamper ing statute wer e cle arly

incorre ct, and that the pr oper jury instructions under F owler w ould have resulted in an a cquittal on Count Two.

Acc ordingto Mr. Wil liams, the jury instructions violated Fowle r on two grounds: First, the instruction did not require the jury to find that a re levant communication would have been ma de to a “ fede ral law enfor ceme nt office r” a s require d by Fowle r. Simply

ref err ing to “law e nforc ement author ities” or “f eder al authorities” in g ener al does not comport with the cle ar ma ndate of Fowle r that the rele vant communication must be made to a “f eder al law enfor ceme nt office r.” Second, the jury

was instructe d it could find Mr. Wil liams guilty of witness tamperingif a witness “ might” ha ve communicated with authorities. That is a sig nificantly lower ba r than the “ rea sonable likelihood” standard ma

ndated by Fowle r. Reply at 2. Mr. Will iams then contends that the e vidence in this case “suppor ts likely communications with only two kinds of law enf

orce ment office rs: (1) Ge rman a uthorities, and (2) De partment of Criminal I nvestig ative Servic es (‘ DCI S’ or ‘CI D’) spe cial ag ents.” Mot. at 6. Be cause , Mr. Will iams say s, neither of those law e nforc ement off icer s qualifies as f

eder al law enfor ceme nt office rs for pur poses of 18 U.S.C. § 1512, no proper ly instructed and r easona

ble jury could have found beyond a re asonable doubt that there e x isted a re asonable likelihood that a witness would communicate w ith a fede ral law enfor ceme nt office r. See Mot. at 6- 7.

8The g overnme nt disag ree s. As the g overnme nt sees it, the Court’s instructions

wer e not er

roneous, a

nd even if they wer e, the e vidence established at tria l “is of such stre ng th that the alleg ed er

ror in the jury

instructions does not rise to the level of plain err or.” O pp. at 13. The Court proc eeds f

irst with a discussion of Fowle r v. United States and the n addre sses the substance of Mr. Willi ams’ two assig nments of er ror.

A. Fowler v. United States In Fowle r v. United States, the Supre me Court examined the elements of 18 U.S.C. § 1512(a)(1) (C), a subse ction of the fe dera l witness tamperingstatute. See F owler v. United States, 131 S. Ct. at 2048. That subsec tion, in relevant pa rt, forbids the killing or 4 attempted killing of

another person with a c erta in “intent,” that is, an intent to “pre vent the communication by

any person to a la

w enf orce ment office r or judg e of the United States of information re lating to the c ommissi on or possible commission of a Fe dera l offense [.] ” 18 U.S.C. § 1512(a)(1) (C). A re lated subsec tion (also applicable to 18 U.S.C. § 1512(b)(3)) provides that no state of mind nee d be prove d with respec t to the circumstanc e

. . . that the judg e is a judg e of the United States or that the law enfor ceme nt office r is an off icer or employ ee of

the Fe dera l Gover nment or a pe rson authorized to ac t for or on be half of the Fe dera l Governme nt or serving the Fe dera l Governme nt as an adviser or consultant. 18 U.S.C. § 1512(g) (2).

Fowle r involved a diff

ere nt subsection of the fe dera l witness tamperingstatute 4 than the one at issue in this case , 18 U.S.C. § 1512(b)(3). B ut as courts re peate dly have acknow ledg ed, “the elements of subse ctions (b)(3) and (a )(1) (C) ar e . . . suff iciently simil ar.” United States v. L opez, 372 F.3d 86, 90 n.2 (2d Cir. 2004); se e also United States v. Ha rris, 498 F.3d 278, 284 n.4 ( 4th Cir. 2007), overr uled on other grounds by

Fowle r v. United States, 131 S. Ct . at 2048. Consequently , the Supreme Court’s r easoning and holding in Fowler reg ardingthe eleme nts of 18 U.S.C. § 1512(a)(1) (C) ar e equa lly applicable to 18 U.S.C. § 1512(b)( 3). 9As the Supreme Court state d, the languag e of 18 U .S.C. § 1512(a)(1) (C) make s

clea r that in a prose cution under this subsection, the g overnme nt must prove “(1) a killing or attempted killing, ( 2) committed with a par ticular intent, name ly , an intent (a ) to ‘pre vent’ a ‘communication’ (b) a

bout ‘the commission or possible commission of a Fe dera l offense ’ (c ) to a fede ral ‘la

w enf orce ment office r or judg e.’” Fowle r v. United States, 131 S. Ct. at 2049. The Supreme Court desc ribed the que stion presented in F owler a s follows:

We focus on instance s where a def endant killed a pe rson with an intent to prevent that pe rson from c ommunicating w ith law enfor ceme nt office rs in g ener al but wher e the de fenda nt did not have f eder al law e nforc ement off icer s (or a ny specific individuals) particula rly in mind. The question before us conce rns what, if any thing, the G overnme nt must show bey ond this broad indefinite intent in order to show that the de fenda nt more par

ticularly intended to pre vent communication with federal office rs as we ll. I d. at 2048 (e mphasis in origina l).

The Court held “ that, in such circ umstances, the G overnme nt must show that there was a reasonable likelihood that a re levant communication would have bee n made to a fede ral off

icer .” F owler v. United States, 131 S. Ct . at 2048 (e mphasis in origina l). In doing so, the Court expressly

reje cted the “ rea sonably

possible” standar d proposed by the g overnme nt, concludingthat wher e a f eder al cr ime is at issue, “communica tion with federa l law enf

orce ment office rs is alway s a possibili ty ,” and tha t such a standa

rd there fore would “we aken or eliminate the independe nt force of the sepa rate statutory

require ment that the def

endant, in killing the victim, must intend to preve nt communication with one who is ‘a la w enf orce ment office r or judge of the United States .’” I d. at 2051-52 (quoting 18 U.S.C. § 1512(a)(1) (C)) ( emphasis in orig inal). Instead, the Court a cce pted the def endant’ s proposed “ rea sonable likelihood” standa rd,

10stating that such a standa rd “is consistent with the statute’s la ng uag e and obje ctives.” I d. at 2052. In concludingits opini on, the Supreme Court re stated its holding:

[I ]n a case suc h as this one wher e the de fenda nt does not have particula r fe dera l law enf

orce ment office rs in mind[ ,] t he Gover nment must show a reasonable likelihood that, had, e.g. , the victim communicated with law e nforc ement off icer s, at least one rele vant communication would have been ma de to a f eder al law enfor ceme nt office r. That is to say , wher e the de fenda nt kills a person with an intent to pre vent communication with law enfor ceme nt office rs g ener ally , that intent includes an intent to preve nt communications with federal law enf orce ment office rs only if it is reasonably

likely under the circ umstances that ( in the absenc e of the killing) at least one of the rele vant communications would have be en made to a fe dera l office r. I d. at 2052 (e mphasis in origina l).

Consequently , as this Court understands F owler, to obtain a conviction under 18 U.S.C. § 1512(a)(1) (C), the g overnme nt now must prove

(1) a killing or attempted killing, (2) c ommitt ed with a pa

rticular intent, namely , an intent (a) to “pre vent” a

“communication” (b) a bout “the commission or possible commission of a Fe dera l offense ” (c) [ that was r easonably like ly to have be en madeto a person who was ] a feder al “law enfor ceme nt office r or judge .” Fowle r v. United States, 131 S. Ct. at 2049.

11B. Fede ral Law Enforceme nt Officer As discussed, Mr. Williams arg ues that the Court’s jury instructions on witness tamperingwer e incor

rec t for two re asons. As for the first re ason, Mr. Willi ams contends that the instructions “did not require the jury to find that the rele vant communication would have been made to a ‘

federal law enf orce ment office r’ a s require d by Fowle r.’” Reply

at 2 (e mphasis added) . Mr. Will iams asserts that the instruc tions sim ply ref err ed to “law

enfor ceme nt authorities” or

“fe dera l authorities” in g ener al, which “ does not comport with the cle ar ma ndate of F owler that the rele vant communication must be made to a ‘fe dera l law enf orce ment office r.’” I d. The Court conc ludes that this argument fails the first prong of the plain e rror

test beca use there was no e rror

in the jury

instructions on this poi nt. I n revie wingjury instructions for e rror , the Court examines the instructions “‘as a whole.’” United States v. J eff erson, No. 03-3062, 2004 WL1124941, at *1 (D.C. Cir. May 19, 2004) (quotingUnited States v. Washington, 106 F .3d 983, 1002 (D.C. Cir. 1997)); see United States v. Br axtonbrown-Smit h, 278 F.3d 1348, 1355 ( D.C. Cir. 2002) (“I nstructions must be viewed in the c ontext of the e ntire instructions to the jury [.] ”). Mor eover , in the case of ambiguity , the cour t of appe als has “long

rec og nized that one ambig uous part of a n instruction may

be made clea

r by another unambig uous part of the same instruction.” United States v. Gaviria, 116 F .3d 1498, 1510 (D.C. Cir. 1997).

In rele vant par

t, the Court instructed the jury on witness tamperingas follows: In order to find the defe ndant guilty of [Count s Two and Thr ee], y ou must find that the gove rnment prove d eac h of the following four e lements beyond a re asonable doubt:

12One, that the de fenda nt knowingly

used intimidation and threats, or attempted to do so, or ca

used anothe r per son to do so; second, that the def endant a cted with the intent to hinder or delay or pre vent the individuals named in the indictment from communicating to law enforceme nt authorit ies information re lating to the commission or the possible commissi on of a c rime; third, that the offe nse, the unde rlying of fense that he hinder ed the c ommunication with respec t to, the underlying of fense , was a

fede ral off

ense. In other wor ds, the second e lement is that he ac ted with the intent to hinder, dela

y , or pre vent individuals from communicatingwith law enforceme nt authorit ies information re lating to the commission or possibl e commission of an off ense; the third element is that [the] particula r off ense must have been a

fede ral offe nse. B ut the g overnme nt does not have to prove that the defe ndant knew that the crime w as a f eder al offe nse. Four th, that the defe ndant believe d that these other persons mig ht communicate w ith federal authorities reg ardingthe alleg ed offe nse. Nov. 9, 2010 Trial Tr . at 42-43 (e mphasis added) . Ex amining this instruction as a whole — espec ially in view of the discussion of the second a nd fourth ele ments of witness tamper ing — the Court conclude s that the jury was prope rly

instructed that the g overnme nt must prove that the defe ndant had a

n intent to prevent c ommunication to a federal law enf orce ment office r. Fur thermore , althoug h neither side r efe renc es it, the Court continued the instructions on witness tamperingas follows: “Now , when you rea d the indictment — and you’ll have a copy of the indictment with y ou — this [ witness tampering ] i nstruction may make more sense than in the a

bstract.” Nov. 9, 2010 Trial Tr . at 43. The Indictment, which ag ain was provided to the jury , mirrors the text of 18 U.S.C. § 1512(b)(3), statingthat Mr. Will iams “did knowing ly

intimi date, attempt to int imidate and thre aten, pe rsons known to the Gra nd J ury . . . with the intent to hinder, delay and pre vent the communication to a law enforceme nt officer of

13the United States of informa tion relatingto the commission or possibl e commission of a F eder al Offe nse.” I

ndictment ¶ 7 (e mphasis added) . There fore , even if the instruction wer e uncle ar reg ardingthe re quirement that the la w enf orce ment office r at issue be a federal law enf orce ment office r — which it wa s not — then any such problem wa s resolved by the express languag e in the Indictment. See United States v. Made oy , 912 F.2d 1486, 1492 ( D.C. Cir. 1990) (“[W] e find that, as a whole, the indictment, the evide nce, a nd the jury

instructions leave no doubt that the defe ndants wer e convic ted upon the basis of a proper leg al theory .”); id. at 1493; United States v. Rey es, 363 F ed. App’ x 192, 197 (3d Cir. 2010) (“ Both the indictment a nd the jury

instructions prese nt the rele vant law a ccur ately and, re ad tog ether , are consistent.”); see also United States v. Over my er, 899 F .2d 457, 465 (6th Cir. 1990) (“ I f re ad tog ether with the indictment, the g rand jury instructions adequately

informed the grand jury

of the e lements of the of fense .”). B eca

use Mr. Will iams has fa iled to meet his burden of provingthe first ele ment of the plain e rror standard — namely , that there was in fa ct an e rror — the Court need not r eac h the other thre e ele ments.

C. Reasonable Likelihood Next, Mr. W illiams arg ues that the Court er roneously instructed the jury

that “it could find Mr. Willi ams g uilty of witness tamper ing if

a witness ‘mig ht’ have communicated with authorities.” Reply

at 2. Acc ordingto Mr. Wil liams, that instruction presents “a signific antly

lower ba r than the ‘ rea sonable likelihood’ standa rd mandated by

Fowle r.” I d. Mr. Wil liams then argues — pre sumably addre ssing both the third prongof the plain e rror standard and the standa

rd for acquittal under

Rule 29 of the F eder al Rules of Criminal Procedur e — that this alleg ed er

ror wa s prejudicial be cause the g overnme nt did not prove that a re asonable

14likelihood ex isted that a witness would communicate with a fe dera l law enf orce ment office r. See Mot. at 6. The Court agree s with Mr. Wi lliams that the releva nt portion of the witness tamperinginstruction give n to the jury in this case wa s in error

in light of F owler. B ut the Court disag ree s that the err or wa s plain and fur ther disagree s that, on the evidenc e pre sented in this

case , a re asonable juror could not have found beyond a re asonable doubt that there w as a

rea sonable likelihood that a re levant communica tion would have bee n made to a f eder al law enfor ceme nt office r. Consequently , Mr. Will iams’ sec ond argument, alongwith its related reque st for a judg ment of ac quittal or, in the alterna tive, for a new tria l, also fails.

1. Error , but Not Plain Mr. Will iams’ ar g ument focuse s on the Court’s instruction on the fourth e lement of witness tamper ing: “ Four th, that the defe ndant believe d that these other persons might communicate w ith feder al authorities re g ardingthe alleg ed off ense.” Nov. 9, 2010 Trial Tr

. at 42-43 (e mphasis added) . As discussed, Mr. Williams raised no objection to this inst ruction — indeed, this instruction is substantively identical to the one that was jointly proposed by

Mr. Wil liams and the g overnme nt. See Proposed Jury Instructions at 44, Oct. 10, 2010 (“ Four th: That def endant be lieved that these persons might communicate w ith feder al authorities re g arding the alleg ed off

ense.” ) (e mphasis added)

. In Fowle r, the Supreme Court held that a jury must find that a communication to a fede ral lawenfor ceme nt office r wa s “re asonably likely .” F owler v. United States, 131 S. Ct

. at 2052. The Court a g ree s with Mr. Wi lliams that Fowler se ts forth a higher standa rd than the

15one on which the jury was instructe d in this case, see id. at 2051 (re jectingthe g overnme nt’s proposed “ rea sonably

possible” standar d), thoug h not by much. See id. at 2052 ( “The Gover nment need not show that such a c ommunication, had it occur red, w ould have be en fe dera l beyond a re asonable doubt, nor eve n that it is m ore likely than not. . . . But the G overnme nt must show that the likelihood of communication to a f eder al offic er w as more tha n remote, outlandish, or simply hy pothetical.”) . Compare id. at 2055 ( Scalia, J., concurringin the judgme nt) (“[T]he Court’s standard is hope lessly indeterminate . The Gove rnment must show that a communication to a fe dera l office r is ‘re asonably likely ,’ which is less likely than ‘more likely

than not,’ but more likely

that ‘re asonably

possible.’”). T his error , howeve r, wa s not plain. Neither Mr. Will iams nor the g overnme nt discusses the standar d for de termining whether the er ror in the Court’s jury

instruction was plain in a c ase suc h as this. As the Supreme Court held in J ohnson v. United States, 520 U.S. 461, 468 (1997), “where the law at the time of trial was se ttled and clea

rly contra ry to the law at the time of

appea l . . . it is enoug h that an er ror be ‘pla in’ at the time of a ppellate c onsideration.” B y contra st, as our cour

t of appe als rec ently held, wher e — as he re — “ the law wa s unsettled at the time of trial but bec ame se ttled” af ter the jury rende red its ver dict, the Court assesses “ err or as of the time of trial.” United States v. Mouling, 557 F .3d 658, 664 (D.C. Cir. 2009); see United States v. Anderson, 632 F .3d 1264, 1270 (D.C. Cir. 2011) (a

pplying United States v. Mouling). As of the time of tria l in this case , the law on what courts have ref err ed to as the fede ral ne x us require ment in the witness tamperingstatute — that is, “what, if a ny thing, the Gover nment must show bey ond th[ e] broad indef inite intent in order to show that the de fenda nt more pa rticularly intended to pre vent communication with federal office rs as we ll,” Fowle r v. 16United States, 131 S. Ct. at 2048 (emphasis in origina l) — was unse ttled. The text of the witness

tamperingstatute is itself unclear on the answe r to that question. See 18 U.S.C. §§ 1512(a) (1)( C), (b)( 3). Compare Fowle r v. United States, 131 S. Ct. at 2051-52 (finding

“ possible answers to this question i n the dictionary definition of the wor d ‘pre vent,’” and ultimately

concludingthat the “r easona ble likelihood” standar d is “ consistent with the statute’s languag e and obje ctives”) (empha sis added), w ith id. at 2053 (Scalia, J., concurringin the judgme nt) (statingthat the “‘ rea sonable likelihood’ standa rd has no ba sis in the statutory text ”). And, as the Supre me Court stated in Fow ler, the c ircuits split i n their answe rs to that question:

[B]ecause the Circuits have disag ree d about this . . . matter, [the Court] g rante d . . . cer

tiorari. Compare United States v. Har ris, 498 F.3d 278, 286 ( 4th Cir. 2007) (“So long as the infor mation the defe ndant see ks to suppress ac tually relates to the commission or possible commission of a fede ral off ense, the fede ral ne x us require ment is established[.] ”), w ith United States v. L opez, 372 F.3d 86, 91- 92 (2d Cir. 2004), vac ated a nd rema nded on other g rounds, 544 U.S. 902 (2005) ( requiringGover nment to show fede ral c rime alongwith “‘a dditional appropriate evidenc e’” that “the victim plausibly might have turned to fe dera l officials” ); see also United States v. B ell, 113 F.3d 1345, 1349 ( 3d Cir. 1997); United States v. Causey , 185 F.3d 407, 422- 23 (5th Cir. 1999); United States v. Wright, 536 F .3d 819, 824-825 (8th Cir. 2008). Fowle r v. United States, 131 S. Ct. at 2048-49 (empha sis in original). T he United States Court of Appe als for the District of Columbia Circuit has never addre ssed the issue. 5 “[W ]here the law

is unsettled at trial, objections ar e fa r fr om pointless — they

serve a valua

ble func tion, alertingthe district court to potential er ror at a moment when the c ourt

On its own review

of the law , the Court found one district c ourt dec ision in t his 5 jurisdiction holding that “[a] violation of § 1512(b)(3) r equire s only ‘the possibili ty

or likelihood that [a defenda

nt’s] false and misleadinginformation would be tra nsfer red to fe dera l authorities[.] ” United States v. Ring , 628 F. Supp. 2d 195, 222 (D.D .C. 2009) (quoting United States v. Vea l, 153 F.3d 1233, 1251-52 ( 11th Cir. 1998)) (e mphasis in origina l). 17can ta

ke re medial ac tion.” United States v. Mouling, 557 F .3d at 664. Yet de spite the unclea r statutory text , the split in t he cir cuits, and the lac k of authority on point from the D.C. Circuit, Mr. Will iams prese nted no objection to the instruction provided to the jury ; to the contrar y , he jointly proposed it with the g overnme nt, and expressly stated at trial that the instruc tion on the “[witness tampering ] elements [ is] fine.” Nov. 8, 2010 a.m. Tria l Tr. at 17. Consequently , beca use at the time of Mr . Wil liams’ trial the statutory text was unc lear

and “no c lear

circ uit prec edent e stablished the impropriety of [the jury

instruction on witness tampering ], any err or in employing [this inst ruction] cannot have been pla in.” United States v. Mouling, 557 F .3d at 664; see United States v. Anderson, 632 F .3d at 1270; see a lso United States v. Perry , 479 F.3d 885, 893 n.8 (D.C. Cir. 2007) (de clar ing that “abse nt prec edent f rom either the Supreme Court or this court . . . , [an] asserted e rror . . . falls fa

r short of plain e rror ” unless it violates a leg al norm that is “absolutely

clea r (f or example, bec ause of

the clar ity

of a statutory

provision or court r

ule)” ) (quotations omitted) (alter ation in orig inal); United States v. Merlos, 8 F .3d 48, 51 (D.C. Cir. 1993). Compare In re Sea led Case, 573 F .3d 844, 852 (D.C. Cir. 2009) (c oncluding that err or was plain de spite circuit split in view of the “c lear statutory languag e at issue” ).

2. Evidence Offe red at Trial on the F ourth Element of the Wit ness Tampe ringCharg e Havingconclude d that the er ror r eg ardingthe jury

instructions on the fede ral nexus requirement wa s not plain, the Court normally would not need to g o further to determine how, if at a ll, this err or af fec ted Mr. Willi ams’ trial. See United States v. Mouling, 557 F .3d at 664. Such a f

actua l analy sis falls under the third pr ong of the plain e rror test: whether “ the

err or af fec ted the [defenda

nt’s] subs tantial rig hts,” which mea ns “that there must be a re asonable

18probability that the er

ror a ffe cted the outc ome of the tria l.” United States v. Mar cus, 130 S. Ct. at 2164 (quotations omitted). But in his motion, Mr. W illiams goes f urther tha n arguing that the

err or af fec ted the outcome of

his trial. Mr. Wil liams argues he in fa ct is entitled to judgment of acquittal under

Rule 29 of the F eder al Rules of Criminal Procedur e bec ause, unde r the more demandingstandard se t forth in Fowle r, “a rea sonable jury

could not have f

ound beyond a

rea sonable doubt that there was a ‘re asonable likelihood’ [t hat] a releva nt communication would have be en made to a fe dera l law enf orce ment office r.” Reply at 3. The Court disag ree s with Mr. Wi lliams. The g overnme nt presente d the following evidenc e at tria l: On the night of J uly 3, 2005, near

the Ramstein Air F orce Ba se in Ger many , Mr. Will iams and others initiated Serg eant Johnson int o their g ang , the Gang ster Disciples, by striking a nd kicking Serg eant Johnson for more than six mi nutes. See Oc t. 25, 2010 p.m. Trial Tr. at 26- 33; see a lso Oct. 25, 2010 a.m. Tria l Tr. at 109, 115. The participa nts in thi s g ang initiation, which was ref

err ed to as a

“jump-in,” Oc t. 25, 2010 a.m. Trial Tr. a t 109, included milit ary service members of

the United States Air F orce and the United States A rmy , as we ll as Mr. Will iams, who had be en in the Air F orce for e ight year s, but was honora bly discharg ed on May 3, 2005. See id. at 91-94, 98- 107; Oct. 25, 2010 p.m. Trial Tr. a t 5-6; Def. E x . 23a at 1, Certificate of Relea se or Disc harg e fr om Active Duty

.

Serg eant Johnson died on the morning of J uly 4, 2005 from injuries sustained duringthe jump-in. See Oc t. 28, 2010 a.m. Trial Tr. a t 73 (expert opinion concluding that Serg eant Johnson “died of multiple blunt force injuries, w ith particular ha rm done by

blows to the hea d”). L ater

that day , afte r lea

rningof Serg eant Johnson’s death, Mr. Willi ams and c erta in members of

the Gang ster Disciples — includingNicholas Sims, L atisha Ellis, Rodney Howell,

19and Te rre nce N orman — ha d a mee ting a t a cookout in which they discussed “a

cover -up.” O ct. 25, 2010 p.m. Trial Tr. at 36. Nicholas Sims, one of the par ticipants in the jump-in, testified about the mee ting a s follows:

Q. What did y ou all discuss at this meeting? A. A cove r-up. Q. And who talked a bout a cove r-up? A. Rico. Q. What did he say ? A. He sa id a Turkish people jumped him. Q. And when you say “a T urkish people jumped him”, wha t did he [say ] t hat you should say y ou about Turkish people jumping him? A. That he jumped Johnson. Q. Well, who was supposed to say that? A. All of us if we’ ve beingquestioned any thing a bout J ohnson’s dea

th. . . . Q. Did he say

any thing to you all about talking to the authorities? A. Yes. Q. What did he say ? A. One to say

that story ; and two, if anybody tells, they are basically done for. Q. And what doe s that mean? What does that mean to you? A. That he’ll kill us. Oct. 25, 2010 p.m. Trial Tr . at 36-37 (e mphasis added)

.

The g overnme nt then offe red the testimony of F lorentino Charris, a

nother membe r of the Ga ng ster Disciples. See Oct. 26, 2010 p.m. Trial Tr . at 49, 51-52. Mr. Char ris was not prese nt at Serg eant Johnson’s jump-in. I d. at 55. Afte r the jump-in, howeve r, whe n Serg eant J ohnson was re turned to his barr acks, Mr . Wil liams assigne d Mr. Charr is the task of “w atch[ing] Serg eant Johnson” throug hout the night. I d. at 59; see a lso id. at 60-65, 69-71. At some point, Mr. Charr is went to sleep; when Mr . Charris aw oke on Jul y 4, 2005, he said that Serg eant J ohnson “fe lt sti ff, he was purple , and his ey es we re c losed.” I d. at 72. So Mr. Charris ale rted

20the military staff me mber on duty , and that staff member c alled an a

mbulance. I d. The ambulance arr ived about ten minutes later , and, af ter unsucc essfully

attempting to r evive Serg eant Johnson, medical personne l pronounce d him dead. See id. at 73.

Shortly there afte r, ag ents of the Ar my ’s Criminal I nvestig ation Division attempted to talk to Mr. Charris about Serg eant Johnson’s death. Oct. 26, 2010 p.m. Tria l Tr. at 73. B ut Mr. Charr is was “she ll shocked,” a nd could not speak w ith CI D at that time. I d. L ater that day , around 1:00 p.m. or 2:00 p.m., Mr. Charr is did in fact speak with CI D, stating to CI D that he “ g ot

a ca ll from Serg eant Johnson say ing that he didn’t fee l well, that he — if it would be a ll right if [Mr. Charris] came over

and wa tched him.” I d. at 74. Mr. Charr is admitted at trial that this was not the truth, and that he w as trying to “ [c] over up” the fa cts surroundingSerg eant Johnson’s death. I d. After

Mr. Charr is finished speakingwith CI D ag ents, he we nt back to his barr acks. H e then spoke with Mr. Wil liams, who was at the c ookout, over the te lephone. Mr. Charris desc ribed his conve rsation with Mr. Will iams as follows:

Q. What did [ Mr. Will iams] s ay to y ou? A. He tried to tell me a story that I ne eded to tell CID. Q. What was the story y ou wer e supposed to tell CI D? A. Serg eant Johnson had got jumped downtown. Q. Did he say

who you wer e supposed to say jumped him downtown? A. I ’m not sure who he said at this point. Q. Did he say

any thing e lse to y ou? A. And if I

told any body the truth, that Icould ca

ncel Christmas. . . . Q. What did that mean to y ou? A. That I

could end up de ad.

21Oct. 26, 2010 p.m. Trial Tr . at 75-76 (e mphasis added) . Mr. Charr is then told Mr. W illiams t hat

he alr eady

had spoken w ith CI D ag ents. I d. at 77. Mr. Willi ams told Mr. Charris that he “ neede d to go ba ck”; Mr. Cha

rris did as he w as told, returningto speak with CI D later that night a

nd telling them that “ Serg eant Johnson had got jumped downtown, a nd that was ba sically

it.” I d. at 78. Mr. Will iams conce des, as he must, that thi s testimony “indicate s that Mr. Wil liams was conc erne d about communications to investigators from the military ’s Criminal Investig ative Divisions . . . in particular.” Mot. at 4; see also Reply at 4 n.2 (statingthat “a

rea sonable pe rson in Mr. Will iams’ position would only have ha d CI D ag ents in mind”). B ut Mr. Wil liams argues that such a g ents do not qualify as fe dera l law enf

orce ment office rs for pur

poses of 18 U.S.C. § 1512. Accor ding to Mr. Williams, because such CI D ag ents do not qualify as fede ral lawenfor ceme nt office rs and be cause the g overnme nt introduced no other evidenc e reg ardingthe involvement of fe dera l law enf orce ment office rs, he is entitled to judg ment of acquittal on Count Two.

Under the witness tamper ing statute, 18 U.S.C. § 1512, a fede ral lawenfor ceme nt office r

means a

n office r or e mploy ee of

the Fe dera l Governme nt, or a person a uthorized to act for or

on behalf of the F eder al Gover nment or ser

ving the Fe dera l Governme nt as an a dviser or consultant . . . authorized under law to engage in or superv ise the preve ntion, detection, investigation, or prosecution of an offense. 18 U.S.C. § 1515(a)(4) (A) ( emphasis adde d).

22As Mr. Will iams acknow ledg es, under 10 U.S.C. § 1585(a), the Sec reta ry of Def ense ha s the authority

to authorize any

CI D spec ial ag ent (1) to execute a

nd serve any

war rant or othe r proc ess issued under the authority

of the United States; and (2) to make arr ests without a war rant — (A) f or any offe nse ag ainst the United States committed in the pre sence of that ag ent; and (B ) for any felony cog nizable under the la

ws of the United States if the ag ent has proba ble ca use to believe that the person to be a

rre sted has committed or is committing the felony

. 18 U.S.C. § 1585(a). The Secre tary has promulg ated r

ules to this effec t, providing that “[m] ilitary

and civil spec ial ag ents assig ned to the De fense Criminal I nvestig ative Or g anizations

are . . . authorized . . . to make a n arr est, outside the United States, of a person who ha s committed an offe nse under section 3261(a ) of the [Military Ex trater ritorial J urisdiction] Act.” 32 C.F.R. § 153.5(b)( 4)(iv). Mor eover , as the g overnme nt points out , CI D itself is authorized to

serve as the “ lead investig ative org anization” in MEJ A ca ses. I d. § 153.5(b)( 1)(iii); see O pp. at 14-17. The Court theref ore c oncludes that CI D ag ents fall within the def inition of feder al law enfor ceme nt office rs for pur poses of 18 U.S.C. § 1512. The Court fur

ther c oncludes — a

nd Mr. Will iams himself conce des — that there was spec ific evide nce introduc ed at tria l from which a rea sonable juror

could infer

that Mr. Wil liams had CI D ag ents in mind when he intimidated or thre atene d either L atisha Ellis, Nicholas Sims, Rodney

Howell, or Te rre nce N orman at the cookout on J uly 4, 2005, as alleg ed in the Indictment. See Indictment ¶ 7; see a lso Mot. at 4; R eply at 4 n.2. Mr. Willi ams has fa iled to

23meet his burden of provingthat a re asonable juror “ must nece ssarily have ha d a re asonable doubt as to the def

endant[’s] guilt.” United States v. Weisz, 718 F.2d at 437 (empha sis in original). H e there fore is not entitl ed to judg ment of ac quittal. Nor is Mr. Wil liams entitled to a new trial, a s he has f ailed to ra ise any

err or suffic ient to require reve rsal on appe al. See 3 C H A R L E S A L A N W R I G H T & S A R A H N. W E L L I N G , F E D E R A L P R A C T I C E & P R O C E D U R E § 589 (4th ed. 2011).

I V. CONCLUSI ON For the fore g oing r easons, Mr. Williams’ motion for judgment of acquittal on Count Two or, in the alterna tive, for a new tria l [ Dkt. Nos. 152, 153] will be DEN I ED. An Or der consistent with this Opini on shall issue this same day

.

SO ORDERED.

/s/ PAULL . FRI EDMAN DATE: Nove mber 17, 2011 United States District J udg e

24