United States v. Terrence Smith

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-7301

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TERRENCE SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:05-cr-00061-JFM-6; 1:11-cv-00953-JFM)

Argued: May 14, 2013 Decided: July 25, 2013

Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.

Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judge Floyd joined.

ARGUED: C. Justin Brown, LAW OFFICE OF C. JUSTIN BROWN,
Baltimore, Maryland, for Appellant. Albert David Copperthite,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore, Maryland, for Appellee.
NIEMEYER, Circuit Judge:

In his § 2255 motion, filed in the district court, Terrence

Smith challenged the jury instruction given in his underlying

trial for witness tampering as defined in 18 U.S.C. § 1512(a).

Specifically, Smith argued that the instruction misstated the

federal nexus required for the offense, given the Supreme

Court’s decision in Fowler v. United States, 131 S. Ct. 2045

(2011). Fowler, which was handed down after Smith’s conviction

became final, abrogated Fourth Circuit precedent on which the

jury instruction was based. The district court concluded that

the instruction did indeed violate Fowler and that Fowler

created a new substantive right that should be afforded to

Smith. But it found that the effect or influence of the error

was harmless and therefore denied Smith’s § 2255 motion.

In reviewing the district court’s order, we apply to this

§ 2255 case the same harmless-error standard that we do in

§ 2254 cases, as articulated in Brecht v. Abrahamson, 507 U.S.

619, 623 (1993) (holding that error is harmless if it did not

have a “substantial and injurious effect or influence in

determining the jury’s verdict” (internal quotation marks

omitted)), rather than the standard of review for harmless error

on direct appeal, see Chapman v. California, 386 U.S. 18, 24

(1967) (holding that on direct appeal, an error must be harmless

beyond a reasonable doubt). Under Brecht, we conclude that the

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instructional error did not have a substantial and injurious

effect or influence in determining the jury’s verdict. We

therefore find that the error was harmless and accordingly

affirm the district court’s order denying Smith’s § 2255 motion.

I

On January 15, 2005, members of the Bloods gang in the

Harwood neighborhood of Baltimore, Maryland, firebombed the home

of Edna McAbier, who was the president of the Harwood Community

Association. On the night of the attack, Terrence Smith, the

leader of the gang, called a meeting of the gang’s membership at

his house and told them that he wanted to firebomb McAbier’s

house in retaliation for her contacting the police about drug

activity in the neighborhood. McAbier had indeed been

contacting the Baltimore City Police Department “[p]ractically

every day” by telephone or email about drug-related activity in

her neighborhood and had provided the Department with a detailed

log of criminal activity in the community, complete with names

and addresses of suspected individuals. Following the gang’s

meeting, members carried out the attack, using gasoline-filled

beer bottles.

Smith and other gang members were indicted and convicted

for this conduct. Among the five counts on which Smith was

convicted, three involved witness tampering: two substantive

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counts for violations of 18 U.S.C. § 1512(a)(1)(C) and 18 U.S.C.

§ 1512(a)(2)(C), respectively, and one conspiracy count.

At the close of the government’s case, Smith filed a motion

for a judgment of acquittal, arguing that the government had

failed to establish the federal nexus required to convict him

under the witness tampering statutes because the government

failed to show that McAbier had contacted federal authorities or

was likely to do so. ∗ The government argued that the federal

nexus was established as a matter of law because drug

trafficking, about which McAbier complained, was a federal

offense. After an extended discussion, the district court

denied Smith’s motion for acquittal but granted a motion by the

government to reopen its case to present additional evidence

regarding the likelihood that McAbier’s complaints would have

been referred to federal authorities.

Special Agent Robert Brisolari of the Drug Enforcement

Administration (“DEA”) then testified that the Baltimore City

Police Department was the “biggest source” of referrals for drug

∗
Prescribing the federal nexus, § 1512(a)(1)(C) punishes
“[w]hoever . . . attempts to kill another person, with 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”; and § 1512(a)(2)(C) punishes “[w]hoever uses physical
force . . . 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.”

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cases to his field office and that it contributed the most

officers to local DEA task force groups. He stated that six of

the nine task force groups in the area were joint task forces,

“meaning that they’re comprised of [federal] agents as well as

sworn task force officers from other police departments.” He

also explained that the DEA accepts cases that “are considered

street level trafficking,” especially when “street level drug

organizations [are] involved in crack cocaine, heroin or

cocaine.”

At the close of the evidence, the district court instructed

the jury that to establish the necessary mens rea for witness

tampering, the government must prove that Smith “acted knowingly

and with the unlawful intent to induce Mrs. McAbier to hinder,

delay, or prevent the communication of information to a law

enforcement officer of the United States.” The court continued:

In order to satisfy [the intent] element, it is not
necessary for the government to prove that the
defendant knew he was breaking any particular criminal
law nor need the government prove that the defendant
knew that the law enforcement officer is a federal law
enforcement officer. What the government must prove
is that there was a possibility or likelihood that the
information being provided by Ms. McAbier about drug
activities would be communicated to a law enforcement
officer of the United States, irrespective of the
governmental authority represented by the officers to
whom she personally communicated information.

(Emphasis added).

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 The jury convicted Smith on all counts, and the district

court sentenced him to 960 months’ imprisonment. On direct

appeal, Smith argued that the district court misinstructed the

jury on the witness tampering counts, and we rejected Smith’s

arguments, finding that the federal nexus required by the

offense was satisfied because “[a] portion of the potential

investigation that [the defendant] sought to prevent ‘happened

to be federal’ because drug trafficking is a federal offense.”

United States v. Harris, 498 F.3d 278, 286 (4th Cir. 2007). We

explained further, “So long as the information the defendant

[sought] to suppress actually relate[d] to the commission or

possible commission of a federal offense, the federal nexus

requirement [was] established.” Id. Responding to Smith’s

argument that the government failed to prove the “‘possibility’

that the information that McAbier would have provided would have

been communicated to federal authorities,” we stated that “the

federal nature of the offense at issue at least created the

possibility that she might have decided in the future to contact

federal authorities.” Id. at 286 n.5. Although we affirmed

Smith’s convictions, we remanded the case to correct a

sentencing error.

At resentencing, Smith again received a 960-month sentence,

and we thereafter affirmed. United States v. Smith, 344 F.

App’x 856 (4th Cir. 2009) (per curiam). The Supreme Court

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denied Smith’s petition for a writ of certiorari. Smith v.

United States, 130 S. Ct. 2417 (2010).

On April 12, 2011, Smith filed a motion under 28 U.S.C.

§ 2255, raising numerous issues regarding the effectiveness of

his trial counsel. Shortly thereafter, the Supreme Court

decided Fowler v. United States, 131 S. Ct. 2045 (2011)

(rejecting the “possibility” of a federal communication as the

appropriate standard for satisfying the federal nexus and

holding that the government had to prove a “reasonable

likelihood” of such communication). Smith then filed a

supplement to his § 2255 motion, challenging the witness

tampering instruction at his trial, inasmuch as the instruction

allowed the jury to find that the defendant interfered with the

mere “possibility” of the witness’ communication to federal

authorities.

The district court acknowledged the applicability of

Fowler’s holding to Smith’s trial but found that the

instructional error was harmless. It noted that “the evidence

at trial established that federal and local authorities worked

closely with one another through DEA task forces and that the

task forces targeted the very type of criminal

activity -- violent street drug trafficking.” The court

concluded that it was “virtually inevitable that the information

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provided by Ms. McAbier would eventually be communicated to

federal authorities and that federal prosecution would ensue.”

Smith filed a timely notice of appeal, and the district

court granted his motion for a certificate of appealability.

II

In instructing the jury at the underlying trial on federal

witness tampering, the district court stated, as relevant to the

required federal nexus of the conduct, that the government must

prove that “there was a possibility or likelihood that the

information being provided by Ms. McAbier about drug activities

would be communicated to a law enforcement officer of the United

States.” The instruction given was consistent with then-

existing Fourth Circuit precedent, as we recognized on Smith’s

direct appeal. See United States v. Harris, 498 F.3d 278, 284-

86 (4th Cir. 2007).

After Smith’s conviction became final and he had filed his

§ 2255 motion, the Supreme Court handed down its decision in

Fowler v. United States, 131 S. Ct. 2045 (2011), in effect

overruling Harris. Fowler held that the witness tampering

statute, 18 U.S.C. § 1512, requires the government to show a

“reasonable likelihood” that, had the victim communicated with

law enforcement officers, at least one of the communications

would have reached a federal officer. Id. at 2052. In defining

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the reasonable-likelihood standard, the Court explained that the

government “need not show that such a communication, had it

occurred, would have been federal beyond a reasonable doubt, nor

even that it [was] more likely than not.” Id. (emphasis added).

But the government is required to show “that the likelihood of

communication to a federal officer was more than remote,

outlandish, or simply hypothetical.” Id.; see also United

States v. Ramos-Cruz, 667 F.3d 487, 495 (4th Cir. 2012)

(applying the Fowler standard).

In considering Smith’s § 2255 motion, the district court

agreed with Smith that Fowler created a new right that was

applicable to Smith and that, under Fowler, the instruction that

it gave was now erroneous. But it concluded that the error was

harmless.

Smith now contends either that the error was structural and

therefore not subject to harmless-error analysis or that it was,

in fact, not harmless.

To begin with, we agree that the Fowler right has been

“newly recognized” by the Supreme Court and that it is

retroactively applicable to cases on collateral review. See 28

U.S.C. § 2255(f)(3); Teague v. Lane, 489 U.S. 288 (1989). The

Fowler right, by changing the standard for determining the

federal nexus in witness tampering, placed the conduct covered

by the district court’s jury instruction beyond the scope of

9
conduct made criminal by the statute. See United States v.

Bousley, 523 U.S. 614, 620 (1998).

That brings us to Smith’s first argument -- that the

instructional error was “not amenable to harmless error review,”

because it was “a fundamental error in the proceedings.” See

Sullivan v. Louisiana, 508 U.S. 275, 279-82 (1993). In short,

he argues that the error was structural and thus subject to

automatic reversal.

It is true that structural errors “require reversal without

regard to the evidence in a particular case,” United States v.

Curbelo, 343 F.3d 273, 281 (4th Cir. 2003) (internal quotation

marks omitted), because they “affect[] the framework within

which the trial proceeds, rather than simply an error in the

trial process itself,” Arizona v. Fulminante, 499 U.S. 279, 310

(1991). But the Supreme Court has found errors to be structural

in only a “very limited class of cases.” Johnson v. United

States, 520 U.S. 461, 468 (1997). Thus, “if the defendant had

counsel and was tried by an impartial adjudicator, there is a

strong presumption that any other errors that may have occurred

are subject to harmless-error analysis.” Rose v. Clark, 478

U.S. 570, 579 (1986).

The instructional error in this case, which related only to

the federal nexus for witness tampering, did not taint the trial

“from beginning to end,” nor did it undermine “the framework

10
within which the trial proceed[ed].” Fulminante, 499 U.S. at

309-10. Indeed, the Supreme Court has noted that even a “jury

instruction that omits an element of the offense” does not

“necessarily render a trial fundamentally unfair.” Neder v.

United States, 527 U.S. 1, 8 (1999) (emphasis added) (internal

quotation marks omitted); see also United States v. Jefferson,

674 F.3d 332, 362-64 (4th Cir. 2012) (reviewing erroneous

honest-services wire fraud jury instruction for harmlessness).

Inasmuch as the district court misinstructed the jury on only an

element of the witness tampering offense, we conclude that the

error does not fall within that narrow category of structural

errors that are immune to harmless-error analysis.

Smith contends that even if we conduct a harmless-error

analysis, we should apply the standard of review for direct

appeals stated in Chapman v. California, 386 U.S. 18 (1967), and

not the standard of review for collateral appeals set forth in

Brecht v. Abrahamson, 507 U.S. 619 (1993). Under Chapman, an

error is harmless if it is “clear beyond a reasonable doubt that

a rational jury would have found the defendant guilty absent the

error.” Neder, 527 U.S. at 18 (interpreting Chapman, 386 U.S.

at 24). By contrast, under Brecht, “the standard for

determining whether habeas relief must be granted is whether the

. . . error ‘had substantial and injurious effect or influence

in determining the jury’s verdict.’” Brecht, 507 U.S. at 623

11
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

Smith argues that the Chapman standard “is more appropriate in

this case because the constitutional error was not revealed

until after the appeal was perfected, and therefore there exists

no need to defer to the decision below, as Brecht urges.”

Although the Brecht standard clearly applies in § 2254

habeas cases, the Supreme Court has not directly addressed

whether it applies in § 2255 cases. Nor have we addressed that

question. See United States v. Owen, 407 F.3d 222, 229 (4th

Cir. 2005) (“In the context of a section 2255 motion alleging

constitutional error, such as Owen’s, the Fourth Circuit has not

decided whether the harmless-beyond-a-reasonable-doubt standard

of Chapman applies, as it would on direct appeal, or whether the

less stringent test of Brecht v. Abrahamson applies, as it would

on review of a section 2254 petition” (internal citations

omitted)). After a careful reading of both Brecht and Chapman,

we now conclude that the standard set forth in Brecht applies to

§ 2255 cases.

In Brecht, the defendant challenged his state conviction

pursuant to 28 U.S.C. § 2254 on the grounds that the State used

his post-Miranda silence for impeachment. Brecht, 507 U.S. at

626. The Court rejected Chapman’s beyond-a-reasonable-doubt

standard, noting that the “substantial and injurious effect”

standard is “better tailored to the nature and purpose of

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collateral review . . . and application of a less onerous

harmless-error standard on habeas promotes the considerations

underlying our habeas jurisprudence.” Id. at 623. The Court

then identified several reasons for distinguishing between

direct and collateral review, including: (1) structural

differences between the two forms of review; (2) the “finality

of convictions that have survived direct review within the state

court system”; (3) “comity and federalism”; and (4) the notion

that “liberal allowance of the writ . . . degrades the

prominence of the trial itself.” Id. at 633-35 (internal

quotation marks omitted).

To be sure, Brecht is distinguishable from this case

because in Brecht the state court system had evaluated the

claimed error on direct appeal. A § 2255 case, on the other

hand, originates in federal court and therefore does not

implicate the comity and federalism factor that the Court

considered in Brecht; there is no risk of “[f]ederal intrusions

into state criminal trials” because state courts are not

involved. Brecht, 507 U.S. at 635 (internal quotation marks

omitted).

The other three factors identified in Brecht, however, are

fully and directly applicable to collateral review under § 2255.

First, the structural nature of collateral review is the same

for both § 2254 and § 2255 cases -- in both, the court must

13
decide whether a defendant is in custody “in violation of the

Constitution or laws of the United States.” 28 U.S.C. §

2255(a); 28 U.S.C. § 2254(a). Second, society has the same

interest in the finality of federal convictions as it does in

state convictions. See United States v. Frady, 456 U.S. 152,

166 (1982) (“But the Federal Government, no less than the

States, has an interest in the finality of its criminal

judgments”). And finally, the risk of degradation of the writ

is present in both federal § 2255 cases as in state-habeas §

2254 cases.

Moreover, the fact that the Fowler issue was not addressed

by the district court in the first place and by the court of

appeals on direct review under Chapman does not preclude the

application of Brecht. The Supreme Court has applied the Brecht

standard to a § 2254 case even when no lower court has conducted

a Chapman review of the alleged error. See Penry v. Johnson,

532 U.S. 782, 791, 795 (2001) (applying Brecht’s “substantial

and injurious effect” test where the state court did not conduct

a harmlessness review under Chapman because the state court

determined that no constitutional error had occurred); see also

Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir. 2002) (“Even

though no party in Penry asserted that Brecht was an

inappropriate standard, we are not inclined to disregard this

clear signal from the Court that Brecht applies to an AEDPA case

14
even when no proper harmless error assessment occurred in state

court”).

We conclude, therefore, that the Brecht standard of review

for harmlessness is better suited to § 2255 cases than is the

Chapman standard applicable to direct appeals.

In applying Brecht to § 2255 cases, we join other courts of

appeals that have done so. See, e.g., United States Dago, 441

F.3d 1238, 1246 (10th Cir. 2006) (“[W]e hold that the Brecht

standard applies when conducting a harmless-error review of a §

2255 petitioner's claim that the jury in his or her trial was

[improperly] instructed”); United States v. Montalvo, 331 F.3d

1052, 1058 (9th Cir. 2003) (per curiam) (same); Ross v. United

States, 289 F.3d 677, 682 (11th Cir. 2002) (“[A]pplication of

the Brecht standard to [an instructional] error on collateral

appeal is the appropriate approach”); Murr v. United States, 200

F.3d 895, 906 (6th Cir. 2000) (noting that “for purposes of

federal habeas corpus review, a constitutional error that

implicates trial procedures shall be considered harmless unless

it had a ‘substantial and injurious effect or influence in

determining the jury's verdict’”); see also Santana-Madera v.

United States, 260 F.3d 133, 140 (2d Cir. 2001) (concluding that

an instructional error was harmless under either the Brecht or

the Chapman standard but noting that “[g]enerally, when

evaluating presumptively correct convictions on collateral

15
habeas review, the harmless error inquiry for errors of a

constitutional dimension is whether the error had substantial

and injurious effect or influence in determining the jury's

verdict” (internal quotation marks omitted)). But see Lanier v.

United States, 220 F.3d 833, 839 (7th Cir. 2000) (applying

Chapman on § 2255 review).

In sum, we hold that Brecht’s harmless-error review

standard, applicable to § 2254 cases, is also applicable to

§ 2255 cases. Accordingly, we review error for harmlessness in

§ 2255 cases for whether the error had a substantial and

injurious effect or influence in determining the jury’s verdict.

III

In arguing that the instructional error was not harmless,

Smith observes that it is “impossible to say” whether he would

have been convicted of witness tampering had the correct

“reasonable likelihood” instruction been given. But the issue

is more refined. We must determine whether the erroneous

instruction had a substantial and injurious effect or influence

on the jury’s verdict, and to resolve this, we consider the

effect or influence that the erroneous instruction had in light

of the evidence presented.

Here, the jury was instructed that to prove the federal

nexus of witness tampering, the government must prove that

16
“there was a possibility or likelihood that the information

being provided by Ms. McAbier would be communicated to a

[federal] law enforcement officer.” Fowler rejected the use of

the word “possibility” but approved the use of the word

“likelihood.” Because the district court used the words in the

disjunctive, the jury was left to consider the “possibility”

standard, which Fowler rejected.

Nonetheless, in approving the use of a “reasonable

likelihood” standard, the Fowler Court constricted a dictionary

definition of likelihood -- meaning a “probability,” Merriam-

Webster’s Collegiate Dictionary 721 (11th ed. 2007) -- and

stated explicitly that in using the word likelihood, it did not

mean “more likely than not.” Fowler, 131 S. Ct. at 2052. The

Court’s standard demands much less, requiring the government to

show only that “the likelihood of communication to a federal

officer was more than remote, outlandish, or simply

hypothetical,” id., a relatively low bar.

Properly understood, therefore, the “reasonable likelihood”

standard in Fowler requires that the government establish the

federal nexus by presenting evidence showing that a

communication with a federal officer was more than a possibility

but less than a probability, so long as the chance of the

communication was not remote, outlandish, or simply

hypothetical.

17
 In applying this standard to the record in this case, we

conclude that the instructional error did not have “substantial

and injurious effect or influence in determining the jury’s

verdict.” Brecht, 507 U.S. at 623. The evidence satisfying the

“reasonable likelihood” standard was substantial. McAbier was

complaining about large scale gang activity and drug trafficking

in her neighborhood. To be sure, the presence of drug

trafficking alone might not be enough to satisfy the “reasonable

likelihood” standard, but the federal nature of drug

trafficking, plus “additional appropriate evidence” does meet

the standard. United States v. Bell, 113 F.3d 1345, 1349 (3d

Cir. 1997) (noting that federal nexus in § 1512(a)(1) “may be

inferred by the jury from the fact that the offense was federal

in nature, plus additional appropriate evidence” (internal

citation omitted)); see also United States v. Ramos-Cruz, 667

F.3d 487, 497 (4th Cir. 2012) (adopting the Third Circuit

standard).

Here, the government did put forth “additional appropriate

evidence” showing the reasonable likelihood that McAbier’s

reports would have been brought to the attention of federal law

enforcement officers. DEA Special Agent Brisolari testified

that the DEA field office’s “biggest source of information” was

the Baltimore City Police Department and that the DEA worked in

close cooperation with the Baltimore City Police Department,

18
specifically mentioning its participation in six of nine task

forces. Agent Brisolari also noted that even street level drug

cases come to the attention of the DEA. This case also involved

gang activity, elevating the profile of the drug trafficking.

In short, we conclude that the instructional error in this

case was harmless as defined in Brecht. The district court’s

denial of Smith’s § 2255 motion is accordingly

AFFIRMED.

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