United States of America v. Klawaun Lynell Sutton, a/k/a O.G.G.

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KLAWAUN LYNELL SUTTON,
a/k/a O.G.G.,
Defendant - Appellant.
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UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK CHRISTOPHER SEGUE,
Defendant - Appellant.
No. 20-7028
No. 20-7034
_______________________________________
Appeals from the United States District Court
for the Eastern District of Oklahoma
(D.C. Nos. 6:19-CR-00034-RAW-8 &
6:19-CR-00034-RAW-9)
________________________________________
Lynn C. Hartfield, Lynn C. Hartfield Law Offices, Denver, Colorado, and
John C. Arceci, Assistant Federal Public Defender, Office of the Federal
Public Defender, Districts of Colorado and Wyoming (Virginia L. Grady,
Federal Public Defender, with him on the briefs), Denver, Colorado, for
Defendants-Appellants.
FILED
United States Court of Appeals
Tenth Circuit
April 5, 2022
Christopher M. Wolpert
Clerk of Court
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E. Addison Gantt, Special Assistant United States Attorney, U.S.
Department of Justice, Executive Office for United States Attorneys,
National Advocacy Center, Columbia, South Carolina (Christopher J.
Wilson, Acting United States Attorney, Muskogee, Oklahoma, with him on
the briefs), for Plaintiff-Appellee.
__________________________________________
Before BACHARACH, MORITZ, and EID, Circuit Judges.
__________________________________________
BACHARACH, Circuit Judge.
__________________________________________
This case arises from a jail fight that started when an inmate learned
that another inmate had “snitched.” Based on the fight, the federal
government charged two inmates (Mr. Derrick Segue and Mr. Klawaun
Sutton) with conspiring to tamper with a witness in a federal proceeding.
18 U.S.C. §§ 1512(b)(1), 1512(k).
At trial, Mr. Sutton and Mr. Segue moved for acquittal, arguing that
insufficient evidence existed on their contemplation of a legal proceeding
that was likely to be federal. The motion was denied, and they were
convicted. In our view, the district court should have granted the motion
for acquittal. The evidence showed that Mr. Sutton and Mr. Segue had
intended to interfere with a state proceeding. But there was nothing to
suggest that Mr. Sutton or Mr. Segue had contemplated the witness’s
participation in
 a possible federal proceeding or
 a proceeding that was reasonably likely to become federal.
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1. The defendants instigate a fight with Mr. Bridges.
In January 2019, Mr. Brandon Bridges was arrested. Hoping to soften
any eventual sentence, he spoke to a police officer. Mr. Bridges said that
he had seen Mr. Cornelious Jones with firearms, a lot of cash, and
methamphetamine. This information led a state judge to issue a search
warrant for Mr. Jones’s house. With the warrant in hand, state law–
enforcement officers searched the house and found firearms and
methamphetamine. Mr. Jones was arrested on state charges and put in a
county jail.
Mr. Jones then learned that the police had obtained incriminating
information from Mr. Bridges, who was incarcerated at the same jail and
housed in an adjoining pod. Between the two pods, inmates could talk
through a “slider” door. Mr. Jones realized that he could get someone in
the adjoining pod to fight Mr. Bridges.
Mr. Jones spotted an inmate (Mr. Nikkie Fields) in Mr. Bridges’s
pod. Mr. Fields then left and reappeared with Mr. Bridges, Mr. Segue, and
Mr. Sutton. The four inmates approached the slider door, where Mr. Jones
remained on the other side. Mr. Jones then spoke, Mr. Sutton signaled, and
Mr. Segue and Mr. Bridges began fighting. Mr. Sutton quickly pulled the
two men apart and told Mr. Bridges that he was lucky to be pulled away.
Mr. Segue explained the fight this way:
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 Mr. Jones had said that Mr. Bridges was a snitch and needed to
be smacked,
 Mr. Segue had hit Mr. Bridges because he was a snitch and
stole food, and
 Mr. Segue thought that his jail time would go easier because he
had hit Mr. Bridges.
2. A jury finds Mr. Sutton and Mr. Segue guilty of conspiring to
tamper with a federal witness.
The federal government invoked 18 U.S.C. §§ 1512(b)(1), (j), and
(k), charging Mr. Sutton and Mr. Segue with conspiring to tamper with a
witness through threats or intimidation. This statute provides:
(b) Whoever knowingly uses intimidation, threatens, or
corruptly persuades another person, or attempts to do so, or
engages in misleading conduct toward another person, with
intent to—
(1) influence, delay, or prevent the testimony of any
person in an official proceeding;
. . . .
shall be fined under this title or imprisoned not more than 20
years, or both.
18 U.S.C. § 1512(b)(1). The jury found Mr. Sutton and Mr. Segue guilty.
3. Our review is de novo.
Mr. Sutton and Mr. Segue argue that the government lacked
sufficient evidence of conspiracy to tamper with a witness in an official
proceeding. In addressing this argument, we conduct de novo review.
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United States v. LaVallee, 439 F.3d 670, 697 (10th Cir. 2006). Conducting
this review, we
 consider the evidence in the light most favorable to the
government and
 determine whether a reasonable jury could have found guilt
beyond a reasonable doubt.
Id.
4. The government needed to prove that Mr. Sutton and Mr. Segue
had contemplated that Mr. Bridges would testify at a particular
proceeding that was reasonably likely to be federal.
To obtain a conviction, the government needed to prove a conspiracy
to commit witness-tampering under 18 U.S.C. § 1512(b)(1). See United
States v. Hill, 786 F.3d 1254, 1269 (10th Cir. 2015). For each defendant,
the outcome turned on whether he
 had agreed with another person to commit witness-tampering
under § 1512(b)(1),
 had known the essential objectives of the conspiracy,
 had knowingly and voluntarily involved himself in the
conspiracy, and
 had been interdependent with another conspirator.
Id. at 1270. On the element of intent, the government needed to show that
the defendants had “knowingly” conspired to use intimidation, threats, or
corrupt persuasion “with intent to . . . influence, delay, or prevent the
testimony of [another] person in an official proceeding.” 18 U.S.C.
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§ 1512(b)(1); see United States v. Wardell, 591 F.3d 1279, 1287 (10th Cir.
2009).
A. The government needed to prove that Mr. Sutton and Mr.
Segue had contemplated a particular proceeding.
The term “official proceeding” refers to federal proceedings and
proceedings before an insurance regulator. 18 U.S.C. § 1515(a)(1)(A). 1 So
an official proceeding couldn’t consist of a state judicial proceeding or
criminal investigation. See United States v. Petruk, 781 F.3d 438, 445 (8th
Cir. 2015) (“An ‘official proceeding’ includes a proceeding before a
federal judge, court, or grand jury, but not a state proceeding.”); Deck v.
Engineered Laminates, 349 F.3d 1253, 1257 (10th Cir. 2003) (state judicial
proceedings not included); United States v. Young, 916 F.3d 368, 384 (4th
Cir. 2019) (FBI investigation not included); United States v. Ermoian, 752
F.3d 1165, 1171–72 (9th Cir. 2013) (FBI investigation not included).
An official proceeding need not be pending or imminent in order to
trigger the witness-tampering statute. 18 U.S.C. § 1512(f)(1). But the
1 The relevant portion of the statutory definition of an “official
proceeding” is
[a] proceeding before a judge or court of the United States, a
United States magistrate judge, a bankruptcy judge, a judge of
the United States Tax Court, a special trial judge of the Tax
Court, a judge of the United States Court of Federal Claims, or
a Federal grand jury . . . .
18 U.S.C. § 1515(a)(1)(A).
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government must prove that an official proceeding was reasonably
foreseeable to the defendant. United States v. Tyler, 732 F.3d 241, 248–49
(3d Cir. 2013).
This burden was crystallized in Arthur Andersen LLP v. United
States, 544 U.S. 696 (2005), which involved witness-tampering charges
against an accounting firm that had audited a corporation. There the federal
government invoked 18 U.S.C. §§ 1512(b)(2)(A) and (B), alleging that the
auditing firm had encouraged employees to destroy documents relating to
its representation of the corporation. 544 U.S. at 698. The Supreme Court
recognized that the government had needed to show the auditing firm’s
contemplation of a “particular official proceeding in which those
documents might be material.” Id. at 708. Given this burden, the Court
held that the intent element would be satisfied only if the auditing firm had
recognized a likely effect on the proceeding. Id.2
2 The dissent argues that Arthur Andersen established a foreseeability
standard without incorporating the likely–effect standard from United
States v. Aguilar, 515 U.S. 593 (1995). But the Supreme Court in Arthur
Andersen relied on Aguilar’s likely–effect standard when fleshing out the
test for criminal intent. Arthur Andersen, 544 U.S. at 708. And we have
treated Arthur Andersen’s foreseeability requirement and Aguilar’s likely–
effect standard as interchangeable. See United States v. Phillips, 583 F.3d
1261, 1264 (10th Cir. 2009) (“In Arthur Andersen . . . , the Court extended
the Aguilar nexus requirement to prosecutions under § 1512(b) . . . .”);
United States v. Smalls, 752 F.3d 1227, 1249 n.10 (10th Cir. 2014) (noting
that in Arthur Andersen, the Supreme Court applied Aguilar’s likely–effect
standard to the intent element under 18 U.S.C. § 1512(b)).
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Arthur Andersen addressed a different subsection of § 1512—
subsection (b)(2). In contrast, our case involves subsection (b)(1). But
(b)(1) and (b)(2) contain the same mens rea requirement: the “knowing[]”
use of intimidation, threats, or corrupt persuasion of another “with intent
to [affect] an official proceeding.” 18 U.S.C. §§ 1512(b)(1)–(2). Given the
existence of the same mens rea requirement, every circuit to consider the
issue has applied Arthur Andersen to cases involving (b)(1). United States
v. Tyler, 732 F.3d 241, 249–50 (3d Cir. 2013); United States v. Kaplan,
490 F.3d 110, 125–27 (2d Cir. 2007); United States v. Darif, 446 F.3d 701,
711–12 (7th Cir. 2006). We join these circuits and conclude that the
government needed to prove contemplation of a particular “official
proceeding.”
The dissent states that Arthur Andersen doesn’t require
contemplation of a particular “official proceeding” because the Court
sometimes referred to an “official proceeding” and other times referred
more broadly to a “proceeding.” But the Court’s decision to sometimes use
the shorthand proceeding does not detract from the unambiguous statement
requiring a nexus to a “particular official proceeding”: “A ‘knowingly . . .
corrupt[] persuade[r]’ cannot be someone who persuades others to shred
documents under a document retention policy when he does not have in
contemplation any particular official proceeding in which these documents
might be material.” Arthur Andersen, 544 U.S. at 708 (emphasis added).
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We don’t lightly disregard the Supreme Court’s articulation of the test, for
“a good rule of thumb for reading [the Supreme Court’s] decisions is that
what they say and what they mean are one and the same.” Mathis v. United
States, 579 U.S. 500, 136 S. Ct. 2243, 2256 (2016).
Though Arthur Andersen clarified the need to prove contemplation of
a particular proceeding, the Supreme Court did not say whether the
defendants had to know that the official proceeding was federal. But
Arthur Andersen requires proof of an intent to influence an “official
proceeding.” See pp. 7–8, above. And the statute defines an “official
proceeding” as a proceeding that’s federal. 18 U.S.C.§ 1515(a)(1); see p. 6,
above. So Arthur Andersen could be interpreted to require actual
knowledge that the proceeding was federal.
But that interpretation of Arthur Andersen is foreclosed by another
provision of the witness-tampering statute: § 1512(g). This provision
relieves the government of a need to prove actual knowledge that the
proceeding is federal. 18 U.S.C. § 1512(g)(1). So a conviction may be
appropriate if the defendant had
 targeted a specific proceeding but didn’t know whether it was
state or federal or
 mistakenly believed that a federal proceeding had been a state
proceeding.
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Our case doesn’t involve either scenario. We have ongoing, parallel
proceedings by the state and the federal governments. Mr. Sutton and Mr.
Segue knew of the state proceedings, but had no way of knowing that their
actions could also disrupt a potential federal proceeding. What happens
then?
B. The government also needed to prove that the proceeding
contemplated by Mr. Sutton and Mr. Segue had been
reasonably likely to be federal.
The Supreme Court addressed an analogous situation in Fowler v.
United States, 563 U.S. 668 (2011). There the Court again addressed the
intent requirement for the witness-tampering statute. Id. at 672. In Fowler,
the Court was considering a conviction under a provision that criminalizes
the killing or attempted killing of another person to prevent communication
with a federal law–enforcement officer. 18 U.S.C. § 1512(a)(1)(C). But a
separate provision relieved the government of a need to prove the
defendant’s knowledge that the law–enforcement officer was federal (rather
than state). 18 U.S.C. § 1512(g)(2).
The Fowler Court addressed the combination of these provisions,
concluding that when the defendant had no particular federal law–
enforcement officer in mind, the intent requirement is satisfied if
 the defendant generally contemplated the involvement of law
enforcement and
 it was reasonably likely that if the person had communicated
with law–enforcement officers, “at least one relevant
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communication would have been made to a federal” (rather than
state) officer.
563 U.S. at 677–78; see id. at 672. Any looser requirement, the Court
reasoned, “would bring within the scope of th[e] statute many instances of
witness-tampering in purely state investigations and proceedings, thus
extending the scope of this federal statute well beyond the primarily
federal area that Congress had in mind.” Id. at 675.
Fowler addressed a provision of the witness-tampering statute that
covered communications with federal officers rather than testimony in
official proceedings. But Fowler’s reasoning applies equally here. 3 In
requiring a reasonable likelihood that the tampering prevented
communication with a federal officer, the Fowler Court relied on
 the dictionary definition of “prevent” and
 a concern that broadly interpreting the statute to cover
tampering with all witnesses would “extend[] the scope of” the
statute to cover all witnesses when federal and state
jurisdictions overlap.
Id. at 674–78.
3 The Third Circuit applies Fowler only to the statutory provisions
governing “federal officials” and applies Arthur Andersen to the provisions
governing “official proceedings.” United States v. Shavers, 693 F.3d 363,
378–79 (3d Cir. 2012), vacated on other grounds, 570 U.S. 913 (2013). But
the Third Circuit already applies a stricter intent requirement under Arthur
Andersen, requiring the government to prove that (1) the defendant had in
mind a particular proceeding and (2) this proceeding was federal. Id. We
do not read Arthur Andersen this way.
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On the first consideration, the Court observed that the dictionary
definition of “prevent” could suggest either that the aborted
communication
 would possibly have been with a federal law–enforcement
officer or
 would likely have been with a federal law–enforcement officer.
Id. at 676–77. The Court embraced the second interpretation in light of the
statute’s federal scope and the overlap between state and federal
jurisdictions. Id. at 675–78. Given that overlap, the government needed to
prove a reasonable likelihood of federal involvement; the first
interpretation would “transform a federally oriented statute into a statute
that would deal with crimes, investigations, and witness-tampering that, as
a practical matter are purely state in nature.” Id. at 677. Before upending
the federal-state balance in prosecutions, the Court required a clear
statement of congressional intent. Id.; see Jones v. United States, 529 U.S.
848, 858 (2000) (“‘[U]nless Congress conveys its purpose clearly, it will
not be deemed to have significantly changed the federal-state balance’ in
the prosecution of crimes.” (quoting United States v. Bass, 404 U.S. 336,
349 (1971))).
Fowler’s reasoning applies here. In § 1512(b), Congress didn’t
clearly express its intent to federalize state witness tampering that
incidentally interfered with federal proceedings. Like the subsection at
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issue in Fowler, § 1512(b) criminalizes action intended to “prevent”
potential witnesses from communicating. Compare 18 U.S.C.
§ 1512(a)(1)(C) (requiring an “intent to . . . prevent the communication by
any person to a [federal officer] of information relating to the commission
or possible commission of a Federal offense”) (emphasis added), with 18
U.S.C. § 1512(b)(1) (requiring an “intent to . . . influence, delay, or
prevent the testimony of any person in an official proceeding”) (emphasis
added). Given Congress’s use of the statutory term “prevent” in both
subsections, the dictionary definition is equally applicable here. And our
case implicates Fowler’s concerns about the breadth of the criminal statute
when the state and federal government are simultaneously conducting
proceedings.
The dissent would not rely on Fowler because it addressed
communications to law enforcement and our case addresses official
proceedings. But Fowler’s reasoning doesn’t support a distinction between
 witness-tampering aimed at official proceedings and
 witness-tampering aimed at communications with law
enforcement.
Regardless of whether the witness would testify in court or communicate
with a law–enforcement officer, § 1512 is a federal witness-tampering
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statute and governs only if there is a reasonable likelihood of federal
involvement. 4
Even if Fowler’s holding hadn’t dictated the outcome here, “we
[would be] bound to follow both the holding and the reasoning, even if
dicta, of the Supreme Court.” Navajo Nation v. Dalley, 896 F.3d 1196,
1208 n.6 (10th Cir. 2018) (emphasis in original). The reasoning of Fowler
applies equally here.
4 The dissent cites United States v. Byrne, 435 F.3d 16 (1st Cir. 2006),
to distinguish between provisions involving communications with law
enforcement and official proceedings. In Byrne, the First Circuit expressed
doubt about applying Arthur Anderson’s nexus requirement to 18 U.S.C.
§ 1512(b)(3) because
 this provision addresses communications with law–enforcement
and
 Arthur Andersen addressed a provision involving official
proceedings.
Byrne, 435 F.3d 1 at 25. But the court didn’t decide the applicability of
Arthur Andersen. In dicta, the court just observed that a defendant would
not be “beyond the purview of subsection (b)(3) merely because he
expected the witness he tampered with to be interviewed by State Officer X
in particular, but the witness actually was contacted by Federal Agent Y.”
Id.
This observation doesn’t apply here, for the government presented no
evidence of any contact between a federal agent and the potential witness
(Mr. Bridges). So we can draw no guidance from the Byrne court’s dicta.
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So we apply both Fowler and Arthur Andersen, requiring the government to
prove that the defendant contemplated a proceeding that was reasonably
likely to be federal.
The government argues that the Tenth Circuit requires only a
possibility (not a reasonable likelihood) that the defendant’s actions would
influence an official (federal) proceeding. But the Supreme Court rejected
this argument in Fowler, requiring instead a general intent to prevent
communications with law enforcement, combined with a reasonable
likelihood that one of the law–enforcement officers would have been
federal. 563 U.S. at 672, 677; see pp. 10–11, above. Under Fowler, a mere
possibility is not enough. The government needed to go further, proving
that Mr. Sutton and Mr. Segue had contemplated a proceeding that was
reasonably likely to be federal. See pp. 10–11, above.
At oral argument, the government took a different approach, arguing
that Fowler had dispensed with the need for contemplation of a proceeding
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that was reasonably likely to become federal. We disagree with this
approach. In addressing a separate provision of the witness-tampering
statute (§ 1512(a)(1)(C)), Fowler didn’t diminish the burden that Arthur
Andersen had established for cases involving § 1512(b): proof of the
defendant’s contemplation of a particular “official proceeding.” 544 U.S. at
708; see p. 7, above. And Fowler did not mention Arthur Andersen—much
less overturn it. See Shalala v. Ill. Council on Long Term Care, Inc., 529
U.S. 1, 18 (2000) (“Th[e Supreme] Court does not normally overturn, or so
dramatically limit, earlier authority sub silentio . . . .”). So Fowler does
not abrogate Arthur Andersen’s requirement that the defendant contemplate
a particular proceeding. See United States v. Shavers, 693 F.3d 363, 379
(3d Cir. 2012), vacated on other grounds, 570 U.S. 913 (2013). 5
5 In Shavers, the Third Circuit explained:
The Fowler decision addressed a situation in which the defendant
did not have in contemplation a particular group of law
enforcement officers. Thus, if applied to § 1512(b)(1), the rule
set forth in Fowler would directly contradict the Arthur Andersen
pronouncement . . . . It is telling that the Fowler opinion does
not mention Arthur Andersen. If the Supreme Court intended to
overrule Arthur Andersen and for all of the [Victim and Witness
Protection Act of 1982] to be governed by Fowler, it presumably
would have mentioned Arthur Andersen and explained why.
693 F.3d at 379 (citation omitted; emphasis in original).
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We thus conclude that under Arthur Andersen and Fowler, the
government bore the burden to prove two elements at the time of the
conduct:
1. A defendant contemplated a particular official proceeding.
2. A reasonable likelihood existed that the proceeding would be
federal. 6
5. The government did not present sufficient evidence of the
defendants’ contemplation of a particular proceeding that was
reasonably likely to be federal.
The government did not satisfy its burden. Interference with a state
proceeding was foreseeable because Mr. Jones had been
 arrested by state law–enforcement officers executing a state
court’s search warrant and
 housed in a state jail on state charges.
But even if Mr. Jones had shared everything that he knew about Mr.
Bridges’ role—that Mr. Bridges had spoken to a state police officer, who
used the information to obtain a state search warrant from a state judge—
there was nothing “federal” about Mr. Bridges’ role. So all of the evidence
6 The Third Circuit uses a stricter standard, requiring the government
to prove “that the defendant contemplated a particular, foreseeable
proceeding, and that the contemplated proceeding constituted an ‘official
proceeding,’ as defined by [18 U.S.C.] § 1515(a)(1)(A).” United States v.
Shavers, 693 F.3d 363, 379 (3d Cir. 2012) (emphasis added), vacated on
other grounds, 570 U.S. 913 (2013); see United States v. Tyler, 732 F.3d
241, 249 (3d Cir. 2013) (applying the Shavers test after the Supreme
Court’s vacatur).
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shows that if the defendants had intended to interfere with a specific
judicial proceeding, that proceeding would have been state—not federal.
If the defendants had been mistaken about the nature of that
proceeding and it had turned out to be federal, § 1512(g)(1) would still
permit a conviction. But the relevant proceeding here involved state
criminal charges against Mr. Jones, and the government presented no
evidence that Mr. Sutton and Mr. Segue had contemplated any other
proceeding that was federal or reasonably likely to evolve into a federal
proceeding.
In oral argument, the government pointed to its evidence that federal
agents had been investigating a conspiracy to distribute drugs. But how
could Mr. Sutton or Mr. Segue have contemplated that parallel federal
investigation? After all, the government did not present evidence that
 any of the federal agents had been aware of Mr. Bridges or
 anyone in the jail had known of a federal investigation.
Mr. Bridges had given information about Mr. Jones to a state officer,
who obtained a state search warrant and arrested Mr. Jones on state
charges. That information contained nothing to suggest the possibility of
proceedings that were likely to be federal. See United States v. Petruk, 781
F.3d 438, 445–46 (8th Cir. 2015) (vacating a § 1512(c)(2) conviction when
the evidence showed only that the defendant had intended to obstruct state
proceedings and there was no evidence that the defendant had been “aware
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of [a federal] investigation”); United States v. Shavers, 693 F.3d 363, 379–
80 (3d Cir. 2012) (vacating convictions based on § 1512(b)(1) when the
defendants had contemplated obstruction with state trial testimony despite
knowledge of a federal investigation), vacated on other grounds, 570 U.S.
913 (2013); see also Lobbins v. United States, 900 F.3d 799, 802–05 (6th
Cir. 2018) (vacating a conviction based on § 1512(a)(2) because the person
that the victim might have testified against was in jail on state charges). So
the mere existence of a parallel federal investigation is not enough for a
conviction under § 1512(b)(1) when the defendant intended to obstruct a
state proceeding.
In oral argument, the government argued for the first time that the
federal proceeding was foreseeable to Mr. Sutton and Mr. Segue because of
the magnitude of the drug conspiracy. But the government didn’t make this
argument in its response brief, and oral argument was too late. See United
States v. Gaines, 918 F.3d 793, 800–01 (10th Cir. 2019) (“We typically
decline to consider an appellee’s contentions raised for the first time in
oral argument.”).
Even if we were to consider the merits of the government’s new
argument, we would reject it. The government failed to cite any supporting
authority, and any relationship between the size of a drug conspiracy and
the likelihood of a federal prosecution is simply speculative. We would
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thus reject the government’s argument even if it had preceded the oral
argument.
6. Conclusion
The government needed to show that Mr. Sutton and Mr. Segue had
contemplated Mr. Bridges’ testimony in a particular federal proceeding or
a proceeding that was reasonably likely to evolve into a federal
proceeding. But the evidence showed only that
 Mr. Bridges had given information to a state police officer,
who obtained a search warrant in state court, and
 Mr. Jones had been arrested on state charges.
Even if we assume that Mr. Sutton and Mr. Segue were aware of these
facts, the government presented no evidence that
 they had contemplated a federal proceeding or
 it was reasonably likely that the contemplated proceeding would
have been federal.
We thus conclude that no rational trier of fact could find that Mr. Sutton or
Mr. Segue had contemplated a proceeding that was reasonably likely to be
federal. So we vacate the convictions of Mr. Sutton and Mr. Segue for
conspiring to violate 18 U.S.C. § 1512(b)(1). 7
7 Because we vacate the convictions on this ground, we do not address
the defendants’ other arguments involving the sufficiency of the evidence,
existence of instructional error, and admissibility of testimony about
prison culture. For the same reason, we do not address Mr. Segue’s
challenge to the denial of his motion to discharge his attorney.
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The mandate shall issue forthwith.
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No. 20-7028, United States v. Sutton, et al.
EID, J., dissenting.
The majority interprets § 1512(b)(1) to require proof that (1) “[a] defendant
contemplated a particular official proceeding,” and (2) “[a] reasonable likelihood existed
that the proceeding would be federal.” Maj. op. at 17. While I agree that the statute
requires a nexus between the defendant’s mental state and a proceeding, I do not find the
existence of a nexus between the mental state and a federal proceeding. Instead,
§ 1512(b)(1) still requires a connection to a federal element, but not one connected to a
mens rea element; it simply requires that the testimony would have been, or simply was,
used in a federal proceeding. This leads to my conclusion that a rational jury could have
found Sutton and Segue guilty of witness tampering under 18 U.S.C. § 1512(b)(1).
Accordingly, I dissent.
I.
18 U.S.C. § 1512(b)(1) requires the government to prove knowledge and intent to
“influence, delay, or prevent the testimony of [another] person in an official proceeding.”
Id. (emphasis added). In part, “official proceeding” is defined as “a proceeding before a
judge or court of the United States.” Id. § 1515(a)(1)(A). Despite these two sections
suggesting the existence of a specific intent requirement—that a defendant knowingly
impacted an official or federal proceeding—§ 1512(g)(1) specifies that “no mental state
need be proved with respect to the circumstance . . . that the official proceeding . . . is
before a judge or court of the United States.” Id. This provision is the crux of my
dissent.
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2
Interpreting these provisions together, it is initially unclear what the government is
required to prove as to the defendant’s mental state and its connection to the federal
nature of the proceeding. While the definition of “official proceeding” seemingly injects
a federal nature requirement into the mens rea of the general statutory provision, that
requirement is explicitly removed by a subsequent, more specific provision. See
18 U.S.C. § 1512(g)(1). Since requiring any mental state as to the federal nature of the
proceeding runs contrary to this specific provision, requiring such would directly nullify
that provision. See Duncan v. Walker, 533 U.S. 167, 174 (2001) (normally we must give
effect “to every clause and word of a statute” (internal quotation marks omitted)).
On the other hand, requiring a more general mental state—that a defendant
contemplated or reasonably foresaw a proceeding—still gives force to the “official
proceeding” phrase under § 1512(b)(1). In isolation, before the (g)(1) exception,
§ 1512(b)(1) seemingly requires both actus reus and mens rea elements of the federal
nature requirement: (1) that the defendant had knowledge and intent to influence a federal
proceeding, and (2) that the testimony was or would have been used in a federal
proceeding. The (g)(1) exception does not remove both elements; it only removes the
mens rea from the federal nature requirement. So, despite this removal of the mens rea
element, we are still left with the actus reus—the government must still prove that the
testimony was or would have been used in a federal proceeding. Thus, in order to give
force to both § 1512(b)(1) and (g)(1), I do not read the statute to require a mental state as
to the federal nature of the proceeding; I read it to require an actus reus relating to the
existence of that proceeding.
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3
In other words, while I agree with the majority that the statute requires a nexus
between the defendant’s mental state and a proceeding, I do not find the existence of a
nexus between the mental state and a federal proceeding. Of course, I still find a federal
element in the actus reus of the statute—requiring proof that the testimony would have
been, or was, used in a federal proceeding. But, inasmuch as the majority’s opinion
requires knowledge, or any other mental state, of the proceeding’s federal nature, I do not
agree because this would run contrary to the text of the statute. See maj. op. at 17
(interpreting § 1512(b)(1) to require that a “defendant contemplated a particular official
proceeding,” and that a “reasonable likelihood existed that the proceeding would be
federal”); but see 18 U.S.C. § 1512(g)(1) (providing that “no mental state need be proved
with respect to the circumstance . . . that the official proceeding . . . is before a judge or
court of the United States”).
In support of its standard, the majority turns to two cases: Arthur Andersen and
Fowler. The majority finds that Arthur Andersen “could be interpreted to require
knowledge that the proceeding was federal.” 1 Maj. op. at 9 (citing Arthur Andersen LLP
1 The majority also finds that Arthur Andersen “held that the intent element was
satisfied only if the [defendant] had recognized a likely effect on the proceeding.” Maj.
op. at 7 (citing Arthur Andersen, 544 U.S. at 708) (emphasis added). This seems to
conflate two different standards: the foreseeability standard provided by Arthur
Andersen, and a “likely effect” standard provided inside of the Court’s case analogy. But
likelihood is not the same as the foreseeability standard provided by Arthur Andersen.
Considering the context, “likely effect” was not an extension or a restatement of the
Arthur Andersen legal standard; the phrase merely arose in the Court’s use of a case
analogy illustrating the necessity of requiring something more than mere possibility. The
Court called the analogized case “a similar situation”; it did not reference it as the same.
See Arthur Andersen, 544 U.S. at 708 (“We faced a similar situation in Aguilar, supra.
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4
v. United States, 544 U.S. 696 (2005)). However, Arthur Andersen merely stands for the
proposition that there must be some connection between the mental state and a
proceeding.
In Arthur Andersen, the defendant was charged under § 1512(b)(2), which makes
it a crime to “knowingly . . . corruptly persuade[] . . . with intent to . . . cause or induce
any person to . . . withhold testimony, or withhold a record, document, or other object,
from an official proceeding.” 2 544 U.S. at 707. Interpreting this statute, the government
“resist[ed] any type of nexus element” between the persuasion to destroy documents and
a proceeding, “rel[ying] heavily on § 1512(e)(1), which states that an official proceeding
‘need not be pending.’” Id. In turn, the Court considered whether the statute required
“any nexus between the ‘persua[sion]’ to destroy documents and any particular
proceeding.” Id.(emphasis in original).
The Court held that the statute did, in fact, require a nexus between the
defendant’s mens rea and a proceeding—a defendant must “contemplate” or reasonably
“foresee” a particular proceeding. Id. at 707–08 (“It is . . . one thing to say that a
proceeding ‘need not be pending,’” “and quite another to say a proceeding need not even
be foreseen.”). Arthur Andersen did not, however, require that the mens rea be connected
to the federal nature of a proceeding. In fact, the Court used “proceeding” and “official
. . . We held that § 1503 required something more—specifically, a ‘nexus’ between the
obstructive act and the proceeding.”).
2 I agree with the majority that the statute addressed in Arthur Andersen,
§ 1512(b)(2), is sufficiently similar to the relevant statute here. See maj. op. at 8.
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5
proceeding” interchangeably throughout the relevant portion of its opinion.3 While the
majority contends that the use of “proceeding” was simply shorthand for “official
proceeding,” maj. op. at 8, I do not read Arthur Andersen to require intent to influence a
federal proceeding. This is because, in addition to the Court’s seemingly interchangeable
use of these terms, the Court did not actually address the issue of whether a mental state
could be equally attached to state proceedings. It also failed to mention § 1512(g), which
removes the mens rea element from the official proceeding, and it failed to mention
§ 1512(a)(1)(A), which would have specifically defined the term “official.” See Arthur
Andersen, 544 U.S. at 707–08.
The majority leans on Fowler to clear up the ambiguity under § 1512(b)(1),
finding that Fowler’s interpretation of § 1512(a)(1)(C) equally applies to § 1512(b)(1).
See maj. op. at 10–17 (citing Fowler v. United States, 563 U.S. 668 (2011)). The relevant
provision in Fowler makes it a crime “to kill another person, with intent to . . . prevent
the communication by any person to a law enforcement officer . . . of the United States”
of “information relating to the . . . possible commission of a Federal offense.” 18 U.S.C.
3 In its discussion on whether the statute required any nexus, the Court used the
term “proceeding” nine times. Of those nine instances, the Court failed to include the
“official” modifier six times. See Arthur Andersen, 544 U.S. at 707 (“They led the jury
to believe that it did not have to find any nexus between the ‘persua[sion]’ to destroy
documents and any particular proceeding.”); id. at 707 n.10 (finding that the court of
appeals “recognized that petitioner was challenging ‘the concreteness of the defendant’s
expectation[s] of a proceeding”); id. at 707–08 (“It is, however, one thing to say that a
proceeding ‘need not be pending . . . ,’ and quite another to say a proceeding need not be
foreseen.”); id. at 708 (“a ‘nexus’ between the obstructive act and the proceeding”); id.
(“defendant lacks knowledge that his actions are likely to affect the judicial proceeding”).
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6
§ 1512(a)(1)(C). The question in Fowler was “what, if anything, the Government must
show beyond this broad in-definite intent in order to show that the defendant more
particularly intended to prevent communication with federal officers as well.” 563 U.S.
at 670. The Court held that § 1512(a)(1)(C) required proof of “a reasonable likelihood
that, had, e.g., the victim communicated with [police] officers, at least one relevant
communication would have been made to a federal [police] officer.” Id. at 677.
While there are some considerations in Fowler that compare to our case, I would
not apply Fowler here for a few reasons. First, Fowler applied an investigation-related
provision that makes it a crime to “knowingly . . . kill another, with intent to . . . prevent
the communication by any person to a law enforcement officer or judge of the United
States.” 18 U.S.C. § 1512(a)(1)(C). Aside from the fact that this provision is aimed at
protecting the communication of information to law enforcement, it makes no mention of
an “official proceeding,” and its elements do not require that conduct relate in any way to
a proceeding. See id. § 1512(b)(3); see also United States v. Byrne, 435 F.3d 16, 24
(1st Cir. 2006).
On the other hand, § 1512(b)(1) is a proceeding-related provision aimed at
protecting anticipated testimony in a proceeding, making it a crime “to knowingly use []
intimidation, threat[s], or corrupt[] persua[sion] [of] another . . . , with intent to . . .
influence, delay, or prevent the testimony of any person in an official proceeding[.]” By
its very nature, Fowler’s “reasonable likelihood” standard is fashioned for the analysis of
a materially different offense than § 1512(b)(1). See Byrne, 435 F.3d at 24 (“Unlike
[§ 1512](b)(2) . . . which protect[s] particular ‘official proceedings,’ [§ 1512](b)(3)
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protects the general ability of law enforcement agents to gather information relating to
federal crimes. . . .” (citation omitted)); see also United States v. Shavers, 693 F.3d 363,
379 (3d Cir. 2012), judgment vacated on other grounds, 570 U.S. 913 (2013).
Second, the Fowler standard does not seamlessly mesh with the standard in Arthur
Andersen. While Fowler’s “likelihood” standard puts the inquiry in terms of the
probability of a fact occurring, Arthur Andersen’s “foreseeability” test seemingly zooms
in on the defendant’s mental state. In this sense, it is entirely possible that a proceeding
is foreseeable to a defendant, but still not reasonably likely to happen. Conversely, it is
also possible that a proceeding is reasonably likely to happen but not foreseeable to a
given defendant. Thus, inserting “likelihood” into the standard could require more or
even less proof than is currently required under the statute. See United States v. Ronda,
455 F.3d 1273, 1288 (11th Cir. 2006) (observing that the link to a federal proceeding in
the investigation-related provisions is less strict than the “official proceeding”
requirement in § 1512(b)(1) and (2)).
The majority applies Fowler’s likelihood standard under the assumption that two
of its recited rationales equally apply here. See maj. op. at 12–15. But, although I do not
find this reasoning wholly unpersuasive, those rationales do not change the fact that
Fowler simply did not address the proceeding-related provisions relevant to our case
here, nor does it change the fact that its standard fails to fit within the holding of Arthur
Andersen. Additionally, even though Fowler was decided just six years after Arthur
Andersen, Fowler entirely failed to reference it. If the Fowler Court actually intended to
alter the standard in Arthur Andersen, I believe it would have done so. See Shalala v. Ill.
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8
Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“The Court does not normally
overturn, or so dramatically limit, earlier authority sub silentio.”).
To be clear, I do not suggest that § 1512(b)(1) merely requires a possibility of a
federal proceeding, nor do I suggest that the statute removes the mens rea element
entirely from its nexus to a proceeding. But § 1512(g)(1) specifically removes any
requirement to prove a mental state as to the federal nature of the proceeding. What
remains after that exception is the actus reus of the federal nature requirement—that the
testimony would have been, or was, made in a federal proceeding—and the mens rea
nexus to a proceeding (i.e., Arthur Andersen’s foreseeability standard).
II.
Turning to the sufficiency of the evidence, the majority holds that a rational jury
could not have found that defendants “had no way of knowing that their actions could
also disrupt a potential federal proceeding,” and thus, the government did not satisfy its
burden under § 1512(b)(1). Maj. op. at 10. Of course, this analysis almost entirely
depends on the legal standard. As explained above, I read § 1512(b)(1) to require: (1) a
nexus between the defendant’s mental state and a particular proceeding, and that (2) the
testimony would have been, or was, used in a federal proceeding. In this case, there was
sufficient evidence to show that a rational jury could have found that these two
requirements were met. Accordingly, I would affirm the district court’s order denying
judgment of acquittal for insufficiency of the evidence.
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