The opinion of the court was delivered by: Paul L. Friedman United States District Judge
This matter is before the Court on the motion of defendant Rico Rodrigus Williams for judgment of acquittal on Count Two of the Indictment or, in the alternative, for a new trial on that count. Upon consideration of the parties' papers, the relevant legal authorities, and the entire record in this case, the Court will deny Mr. Williams' motion.*fn1
On February 3, 2009, a grand jury returned an Indictment charging defendant Rico Rodrigus Williams with one count of second degree murder, in violation of 18 U.S.C. § 1111(a), and three counts of witness tampering, in violation of the Victim and Witness Protection Act, 18 U.S.C. § 1512(b)(3). As alleged in the Indictment, on or about July 3, 2005, Mr. Williams unlawfully killed Sergeant Juwan Johnson during a gang initiation by striking Sergeant Johnson with his fists and kicking him with his feet. See Indictment ¶ 5. Mr. Williams then intimidated and threatened, or attempted to intimidate and threaten, other members of his gang with the intent to prevent them from communicating information about the events surrounding Sergeant Johnson's death to United States law enforcement authorities. See id. ¶ 7. Before trial, the government dismissed one of the witness tampering counts.
On October 25, 2010, trial began, and on November 9, 2010, the Court instructed the jury. In accordance with the parties' joint proposed instructions, the Court gave the following instruction to the jury on the two remaining witness tampering counts:
Counts Two and Three of the indictment charge Mr. Williams with tampering with a witness, which is a violation of federal law. In order to find the defendant guilty of these charges, or of either of these charges - because again, you should consider Count Two and Count Three separately, but I'm instructing you at once because the same elements apply in each case - you have to apply the elements to the facts that you find. In order to find the defendant guilty of these charges, you must find that the government proved each of the following four elements beyond a reasonable doubt: One, that the defendant knowingly used intimidation and threats, or attempted to do so, or caused another person to do so; second, that the defendant acted with the intent to hinder or delay or prevent the individuals named in the indictment from communicating to law enforcement authorities information relating to the commission or the possible commission of a crime; third, that the offense, the underlying offense that he hindered the communication with respect to, the underlying offense, was a federal offense.
In other words, the second element is that he acted with the intent to hinder, delay, or prevent individuals from communicating with law enforcement authorities information relating to the commission or possible commission of an offense; the third element is that [the] particular offense must have been a federal offense. But the government does not have to prove that the defendant knew that the crime was a federal offense.
Fourth, that the defendant believed that these other persons might communicate with federal authorities regarding the alleged offense. Now, when you read the indictment - and you'll have a copy of the indictment with you - this instruction may make more sense than in the abstract. But let me summarize briefly, just to remind you. What's alleged in Count Two is that on or about July 4th, 2005, the defendant knowingly committed the offense of tampering with a witness by using intimidation and threats, and attempting to do so toward the following individuals: Latisha Ellis, Nicholas Sims, Rodney Howell, and Terrance Norman. And the evidence you've got to look at is the evidence relating to that cookout or barbeque on July 4th.
Now, you the jury must be unanimous - that is, you must all agree - as to which of these individuals, if any, were the subject of such intimidation or threats. And I will remind you of that directive, and it will be reflected in the verdict form that I will be giving you. Regarding Count Three of the indictment, it is alleged that in or about July 2005, the defendant knowingly committed the offense of tampering with a witness by causing Themitrios Saroglou to intimidate and threaten Nicholas Sims. So those are the two tampering charges.
Nov. 9, 2010 Trial Tr. at 41-43.*fn2
On November 15, 2010, Mr. Williams was found guilty of Count One of the Indictment, second degree murder, in violation of 18 U.S.C. § 1111(a); and Count Two, witness tampering, in violation of 18 U.S.C. § 1512(b)(3). See Verdict Form at 1-2. The jury found him not guilty on Count Three, the second witness tampering charge. Id. at 2. As for Count Two, the Indictment stated:
On or about July 4, 2005, in the Federal Republic of Germany, the defendant, RICO RODRIGUS WILLIAMS, did knowingly intimidate, attempt to intimidate and threaten, persons known to the Grand Jury, and herein identified as Latisha Ellis, Nicholas Sims, Rodney Howell and Terrence Norman with the intent to hinder, delay and prevent the communication to a law enforcement officer of the United States of information relating to the commission or possible commission of a federal offense.
Indictment ¶ 7 (emphasis in original).
Six months after the jury rendered its verdict in this case, the Supreme Court issued a decision in Fowler v. United States, 131 S. Ct. 2045 (2011). As Mr. Williams describes it, under Fowler "the instructions provided to the jury on the elements of 18 U.S.C. § 1512 were clearly incorrect." Mot. at 1. Furthermore, Mr. Williams asserts that "appropriate jury instructions under Fowler would have resulted in an acquittal on Count Two." Id. Consequently, Mr. Williams requests that the Court vacate his conviction on Count Two or, in the alternative, grant him a new trial on that count. See id. The government opposes the motion.
Under Rule 29 of the Federal Rules of Criminal Procedure, the Court must enter judgment of acquittal on any offense charged for which the evidence is insufficient to sustain a conviction. United States v. Safavian, 644 F. Supp. 2d 1, 7-8 (D.D.C. 2009). In ruling on a motion for judgment of acquittal, the Court must "'consider the evidence in the light most favorable to the government and determin[e] whether, so read, it is sufficient to permit a rational trier of fact to find all of the essential elements of the crime beyond a reasonable doubt.'" United States v. Kayode, 254 F.3d 204, 212-13 (D.C. Cir. 2001) (quoting United States v. Harrington, 108 F.3d 1460, 1464 (D.C. Cir. 1997)). The Court must "accord the government the benefit of all legitimate inferences," United States v. Weisz, 718 F.2d 413, 437 (D.C. Cir. 1983), and accept the jury's verdict of guilt if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Arrington, 309 F.3d 40, 48 (D.C. Cir. 2002) (emphasis in original) (quotations omitted). Put another way, the Court may grant a motion for judgment of acquittal only where "a reasonable juror must necessarily have had a reasonable doubt as to the defendant['s] guilt." United States v. Weisz, 718 F.2d at 437 (emphasis in original).
Rule 33(a) of the Federal Rules of Criminal Procedure provides that "the court may vacate any judgment and grant a new trial if the interest of justice so requires." FED. R. CRIM. P. 33(a). "[A]ny error sufficient to require a reversal on appeal is an adequate ground for granting a new trial." 3 CHARLES ALAN WRIGHT & SARAH N. WELLING, FEDERAL PRACTICE & PROCEDURE § 589 (4th ed. 2011). A new trial should be granted only if the defendant has shown that "'the error was substantial, not harmless, and that the error 'affected the defendant's substantial rights."" 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. Johnson, 769 F. Supp. 389, 395-96 (D.D.C. 1991)). Whether to grant a motion for a new trial is "a decision committed to the Court's sound discretion." United States v. Neill, 964 F. Supp. 438, 441 (D.D.C. 1997).
Mr. Williams challenges the Court's instructions to the jury on the elements of witness tampering. See generally Mot. But he did not object to those instructions at trial; to the contrary, the instructions provided to the jury were substantively identical to those jointly proposed by Mr. Williams and the government. Thus, where, as here, a defendant fails to object to a jury instruction before the jury retires to deliberate, this Court's review is only for "plain error" in accordance with Rule 52(b) of the Federal Rules of Criminal Procedure. United States v. Marcus, 130 S. Ct. 2159, 2164 (2010); see United States v. Laureys, 653 F.3d 27, 32 (D.C. Cir. 2011) (citing United States v. Bryant, 523 F.3d 349, 353 (D.C. Cir. 2008)); United States v. Wilson, 605 F.3d 985, 1020 (D.C. Cir. 2010); United States v. Thompson, 279 F.3d 1043, 1049 (D.C. Cir. 2002); see also United States v. Brandao, 448 F. Supp. 2d 311, 318 (D. Mass. 2006) (applying "the plain error standard to an objection raised for the first time in a post-trial motion [before the trial court], because at that stage, the court 'performs something of an appellate role'") (quoting United 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 error standard, a defendant must establish "that (1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the [defendant's] substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." United States v. Marcus, 130 S. Ct. at 2164 (quotations omitted); see United States v. Laureys, 653 F.3d at 32; United States v. Rawlings, 522 F.3d 403, 407 (D.C. Cir. 2008). As for the third prong of that standard, the Supreme Court has stated that, "to meet this standard an error must be 'prejudicial,' which means that there must be a reasonable probability that the error affected the outcome of the trial."
United States v. Marcus, 130 S. Ct. at 2164.*fn3 The burden is on the defendant to prove "each element of the plain error standard." United States v. Brown, 508 F.3d 1066, 1071 (D.C. Cir. 2007) (citing United States v. Olano, 507 U.S. 724, 734 (1993)); see United States v. Clarke, 767 F. Supp. 2d at 24; see also United States v. Johnson, 592 F.3d 164, 169 (D.C. Cir. 2010) ("If the defendant did not object [to an instructional error], it is the defendant's burden to show not only that the error was obvious, but also that it prejudiced him.").
Mr. Williams was convicted of one count of witness tampering, in violation of 18 U.S.C. § 1512(b)(3). That statute provides that [w]hoever 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 . . . hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense . . . shall be fined under this title or imprisoned not more than 20 years, or both.
As discussed, Mr. Williams did not object to the jury instruction on witness tampering. But he now raises the argument that under the Supreme Court's decision in Fowler v. United States, the instructions provided to the jury on the elements of the witness tampering statute were clearly incorrect, and that the proper jury instructions under Fowler would have resulted in an acquittal on Count Two.
According to Mr. Williams, the jury instructions violated Fowler on two grounds: First, the instruction did not require the jury to find that a relevant communication would have been made to a "federal law enforcement officer" as required by Fowler. Simply referring to "law enforcement authorities" or "federal authorities" in general does not comport with the clear mandate of Fowler that the relevant communication must be made to a "federal law enforcement officer."
Second, the jury was instructed it could find Mr. Williams guilty of witness tampering if a witness "might" have communicated with authorities. That is a significantly lower bar than the "reasonable likelihood" standard mandated by Fowler.
Mr. Williams then contends that the evidence in this case "supports likely communications with only two kinds of law enforcement officers: (1) German authorities, and (2) Department of Criminal Investigative Services ('DCIS' or 'CID') special agents." Mot. at 6. Because, Mr. Williams says, neither of those law enforcement officers qualifies as federal law enforcement officers for purposes of 18 U.S.C. § 1512, no properly instructed and reasonable jury could have found beyond a reasonable doubt that there existed a reasonable likelihood that a witness would communicate with a federal law enforcement officer. See Mot. at 6-7.
The government disagrees. As the government sees it, the Court's instructions were not erroneous, and even if they were, the evidence established at trial "is of such strength that the alleged error in the jury instructions does not rise to the level of plain error." Opp. at 13.
The Court proceeds first with a discussion of Fowler v. United States and then addresses the substance of Mr. Williams' two assignments of error.
A. Fowler v. United States
In Fowler v. United States, the Supreme Court examined the elements of 18 U.S.C. § 1512(a)(1)(C), a subsection of the federal witness tampering statute. See Fowler v. United States, 131 S. Ct. at 2048.*fn4 That subsection, in relevant part, forbids the killing or attempted killing of another person with a certain "intent," that is, an intent to "prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense[.]"
18 U.S.C. § 1512(a)(1)(C). A related subsection (also applicable to 18 U.S.C. § 1512(b)(3)) provides that no state of mind need be proved with respect to the circumstance . . . that the judge is a judge of the United States or that the law enforcement officer is an officer or employee of the Federal Government or a person authorized to act for or on ...