United States v. Terrence Smith
723 F.3d 510
4th Cir.2013Background
- Terrence Smith, leader of a Baltimore Bloods faction, organized a retaliatory firebombing of Edna McAbier’s home after she repeatedly reported local drug and gang activity to police; Smith was convicted on multiple counts including three witness-tampering counts under 18 U.S.C. § 1512(a).
- At trial the court instructed the jury that the government need only show a “possibility or likelihood” that McAbier’s information would be communicated to a federal law-enforcement officer; jury convicted and Smith was sentenced to 960 months.
- On direct appeal the Fourth Circuit upheld the conviction under then-controlling precedent (Harris) that allowed a “possibility” theory because drug trafficking is a federal offense; the Supreme Court denied certiorari.
- After finality, the Supreme Court decided Fowler v. United States, adopting a “reasonable likelihood” (more than remote or hypothetical) federal-nexus standard and rejecting a mere “possibility” standard.
- Smith filed a § 2255 motion arguing the jury instruction was erroneous under Fowler; the district court agreed the instruction was erroneous but held the error harmless and denied relief.
- The Fourth Circuit affirmed, holding (1) Fowler’s rule applied retroactively on collateral review, (2) the instructional error was not structural and thus subject to harmless-error review, (3) the Brecht standard governs harmlessness on § 2255 review, and (4) the evidence met Fowler’s “reasonable likelihood” standard so the error was harmless.
Issues
| Issue | Smith's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the jury instruction misstated the federal-nexus element under § 1512(a) post-Fowler | Instruction used "possibility," which Fowler rejects; new Fowler right applies retroactively | Instruction conformed to then-controlling precedent; but if erroneous, harmless on the record | Fowler applies retroactively; instruction was erroneous but harmless under Brecht |
| Whether the instructional error was structural (requiring automatic reversal) | Error was fundamental and not subject to harmless-error analysis | Error was not structural; trial framework intact so harmless-error review applies | Not structural; subject to harmless-error review |
| Which harmless-error standard applies on § 2255 collateral review: Chapman (direct appeal) or Brecht (habeas) | Chapman should apply because error surfaced after direct appeal | Brecht is appropriate because collateral review considerations favor a less onerous standard | Brecht governs § 2255 harmless-error review |
| Whether the error was harmless under Brecht given the trial evidence | Impossible to know if jury would have convicted under correct instruction; relief warranted | DEA cooperation evidence and facts of gang/drug activity made federal communication reasonably likely | Harmless: evidence (DEA testimony re: task forces, police referrals, gang violence) satisfied Fowler’s "reasonable likelihood" standard |
Key Cases Cited
- Fowler v. United States, 131 S. Ct. 2045 (Sup. Ct. 2011) (adopts “reasonable likelihood” federal-nexus standard for § 1512(a))
- Brecht v. Abrahamson, 507 U.S. 619 (Sup. Ct. 1993) (harmless-error standard for collateral habeas: "substantial and injurious effect or influence")
- Chapman v. California, 386 U.S. 18 (Sup. Ct. 1967) (harmless-beyond-a-reasonable-doubt standard on direct appeal)
- Teague v. Lane, 489 U.S. 288 (Sup. Ct. 1989) (framework on retroactivity of new rules on collateral review)
- Neder v. United States, 527 U.S. 1 (Sup. Ct. 1999) (an omitted element in jury instruction does not always require reversal)
- United States v. Harris, 498 F.3d 278 (4th Cir. 2007) (prior Fourth Circuit precedent allowing a “possibility” theory based on federal nature of offense)
- Bousley v. United States, 523 U.S. 614 (Sup. Ct. 1998) (new rule that places conduct beyond statute’s scope may be a substantive, retroactive right)