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United States v. Anhalt

United States District Court, M.D. Tennessee, Nashville Division

August 13, 2019

UNITED STATES OF AMERICA,
v.
GEORGE ANHALT, JR.

          MEMORANDUM AND ORDER

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE.

         George Anhalt, Jr. has filed a Motion to Dismiss Count One (Docket No. 141), to which the Government has filed a Response (Docket No. 144), and Anhalt has filed a Reply (Docket No. 154). For the reasons set out herein, that motion will be denied.

         Count One of Anhalt's Second Superseding Indictment charges him with the following:

Beginning not later than on or about May 24, 2018, through on or about June 10, 2018, in the Middle District of Tennessee, GEORGE ANHALT, JR., did attempt to kill another person, with intent to prevent the attendance and testimony of the person in an official proceeding, that being Case Number 3:17-cr-00220 in the Middle District of Tennessee, and to prevent the communication by the person to a law enforcement officer and judge of the United States of information relating to the commission and possible commission of a Federal offense, that being a conspiracy to distribute and possess with intent to distribute controlled substances.

         In violation of Title 18, United States Code, Sections 1512(a)(1)(A) and (C). (Docket No. 152 at 1.) Specifically, the Government anticipates putting on evidence that Anhalt participated in what appeared, to him, to be a plot to administer a lethal overdose to a witness cooperating in the federal prosecution of one of Anhalt's associates, Darrell Lockridge. But the witness did not exist, Lockridge himself had agreed to cooperate with the Government in obtaining evidence against Anhalt, and the third party serving as a facilitator and intermediary in the supposed killing was actually an undercover federal agent. Anhalt now asks the court to dismiss Count One on the ground that 18 U.S.C. § 1512(a)(1) does not reach attempts to kill a supposed witness who, unbeknownst to the defendant, is a fictional invention of law enforcement.

         Section 1512(a)(1)(A) and (C) make it a crime to kill[] or attempt[] to kill another person, with intent to-

(A) prevent the attendance or testimony of any person in an official proceeding; . . . or
(C) 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 or a violation of conditions of probation, parole, or release pending judicial proceedings . . . .

18 U.S.C. § 14(a)(1). The Supreme Court considered the boundaries of that language in Fowler v. United States, 563 U.S. 668, 670 (2011), the case on which Anhalt premises most of his argument. Fowler involved a defendant, prosecuted under 18 U.S.C. § 14(a)(1)(C), who “killed a person with an intent to prevent that person from communicating with law enforcement officers in general, ” but who “did not have federal law enforcement officers (or any specific individuals) particularly in mind.” Id. at 670. The court held that, “in such circumstances, the Government must show that there was a reasonable likelihood that a relevant communication would have been made to a federal officer.” Id. Anhalt argues that the rule set forth in Fowler also precludes a conviction in a case such as his, because a nonexistent witness, by definition, has no reasonable likelihood of saying anything to anyone.

         Fowler was, in a sense, about the converse of Anhalt's situation. In Fowler, the victim was real, but there was an open question with regard to whether the witness tampering that occurred- specifically, the killing of a local police officer who had witnessed the preparations for a planned bank robbery, 563 U.S. at 670-fell within the scope of § 1512(a)(1). Here, the Government cannot produce a flesh-and-blood victim, but there is no question that the witness tampering plot that Anhalt allegedly believed he was joining, if it had been real, would have been the type of plot reached by the statute. In terms of the provisions of § 1512(a)(1) itself, that means that Fowler involved the first of the two ways a defendant can satisfy the first element of the offense-a killing-whereas this case involves the second way one can satisfy that element-an attempt to kill. This case is, therefore, facially outside the scope of the holding in Fowler. See Fowler, 563 U.S. at 677 (explaining that its rule applies “where the defendant kills a person with an intent to prevent communication with law enforcement officers generally” (emphasis added)); see also Stuckey v. United States, 603 Fed.Appx. 461, 462 (6th Cir. 2015) (stating that the “proper place” for the Fowler analysis is in a case where the relationship between the witness tampering and a federal case is “unclear”). The question remains, however, whether some aspect of Fowler's reasoning would necessarily dictate the interpretation of the statute endorsed by Anhalt.

         In Fowler, the Court acknowledged, first, that, under the express terms of the witness-tampering statute, “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 . . . .” Id. at 671-72 (quoting 18 U.S.C. § 1512(g)(2)). Nevertheless, the Court noted, the statute does require, at least, the “intent to prevent the victim from communicating with (unspecified) law enforcement officers.” Id. at 674. That requirement led the Court to contemplate what it means to “intend” something that may or may not happen, as with a witness who might or might not speak to federal authorities:

[O]ne can possess an intent (i.e., one can act in order to bring about a certain state of affairs) even if there is considerable doubt whether the event that the intent contemplates will in fact occur. One can, for example, put up shutters with the intent of protecting the furniture from hurricane damage even if there is considerable doubt that any hurricane will actually occur. One can drive to Fenway Park with the intent of seeing the Red Sox play that afternoon even if a mistake about the date means the stadium is empty. One can blow up a bridge with the intent of stopping an advancing army, even if the army advances regardless, along a different route. And, similarly, a defendant can kill a victim with an intent to prevent the victim from communicating with federal law enforcement officers even if there is some considerable doubt that any such communication would otherwise have taken place.

Id. at 674. Accordingly, the Court held that the Government, in prosecuting a § 1512(a)(1) case, is not required to show, beyond a reasonable doubt, that the victim or intended victim actually would have cooperated with federal authorities. Nevertheless, the Court concluded that § 1512(a)(1) requires the government to “show more than the broad indefinite intent . . . to prevent communications to law enforcement officers in general.” Id.

         The Court provided two reasons for its conclusion. First, the Court observed that construing § 1512(a)(1) broadly “would bring within the scope of this 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. That concern is not present in this case, where an identifiable federal proceeding was implicated. The Supreme Court's other ...


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