UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KLAWAUN LYNELL SUTTON, a/k/a O.G.G., Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK CHRISTOPHER SEGUE, Defendant - Appellant.
No. 20-7028
No. 20-7034
United States Court of Appeals for the Tenth Circuit
April 5, 2022
PUBLISH. Christopher M. Wolpert, Clerk of Court. 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)
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.
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.
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:
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
(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.
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.
- 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.
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
- 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.”
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.
An official proceeding need not be pending or imminent in order to trigger the witness-tampering statute.
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
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).
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.
But that interpretation of Arthur Andersen is foreclosed by another provision of the witness-tampering statute:
- 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.
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.
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
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.
- 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
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,
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.
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
- A defendant contemplated a particular official proceeding.
- 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
If the defendants had been mistaken about the nature of that proceeding and it had turned out to be federal,
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
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
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
No. 20-7028, United States v. Sutton, et al.
EID, J., dissenting.
The majority interprets
I.
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
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
In Arthur Andersen, the defendant was charged under
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
The majority leans on Fowler to clear up the ambiguity under
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.”
On the other hand,
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
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, supra.
To be clear, I do not suggest that
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
Notes
[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 . . . .
- this provision addresses communications with law–enforcement and
- Arthur Andersen addressed a provision involving official proceedings.
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.
693 F.3d at 379 (citation omitted; emphasis in original).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.