Sixth Circuit Vacates a Witness Tampering Conviction, Principally on the Ground that the District Court Erroneously Instructed the Jury on the Intent Element of Witness Tampering
By Punch & Jurists
In a rare reversal of a witness tampering conviction, the Sixth Circuit, in Lobbins, held that the district court had given an erroneous jury instruction that misstated an essential element of the witness-tampering charge and that trial counsel had been ineffective when he failed to object to that instruction. As a result of those errors, the Court concluded that the evidence was insufficient as a matter of law to support a witness tampering conviction under 18 U.S.C. §§1512(a)(2)(A) and 1512(a)(2)(C).
Lobbins v. U.S., 900 F.3d 799 (6th Cir. May 2, 2018) (Judge Raymond M. Kethledge)
In 2009, the Appellant in this case, Jessie Lobbins, was detained in a Tennessee state prison while awaiting trial on Federal charges for murder and other crimes related to his membership in the “Vice Lords” gang. While in prison, he attacked another inmate, one Maurice Boyd, with a prison shank and repeatedly slashed and stabbed him. The reason for the attack was that Boyd was suspected of giving evidence to a state prosecutor in a different case against another member of the Vice Lords. Boyd survived the attack, but required more than 200 stitches.
Based on that attack, the Government added two witness tampering charges to its indictment against Boyd in violation of 18 U.S.C. §§1512(a)(2)(A) and 1512(a)(2)(C). A jury thereafter convicted Lobbins of all the charges against him; and he was sentenced to two consecutive terms of life imprisonment, and a concurrent term of 30 years for the witness tampering charges.
After his convictions and sentence were affirmed on appeal, Lobbins moved under 28 U.S.C. § 2255 to set aside his sentence for witness tampering, arguing that his trial counsel had failed to object to a jury instruction that misstated an element of that offense. The district court denied Lobbins’ motion on the ground that the instruction made no difference to the jury’s verdict. The Sixth Circuit disagreed and vacated Lobbins’ conviction and sentence for witness tampering.
In support for his § 2255 motion, Lobbins argued that one of the district court’s jury instructions had misstated an element of the witness-tampering charge and that his trial counsel had provided constitutionally ineffective assistance when he failed to object to that instruction. The Court then explained that “to obtain relief, Lobbins must show that his counsel’s failure to object to the jury instruction was constitutionally ‘deficient’ and that he was prejudiced as a result. . . .To make either showing, Lobbins must first show that the instruction was in fact erroneous.” (Id., at 801). The Court then continued:
“The instruction at issue concerned the intent necessary to commit the offense. The relevant provision of the federal witness-tampering statute provides in relevant part: ‘Whoever uses physical force or the threat of physical force against any 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 punished” as described elsewhere in the statute. 18 U.S.C. § 1512(a)(2)(C). To show that Lobbins violated this provision, therefore, the government was required to prove that he (1) used or threatened physical force against a person (2) with an intent to ‘hinder, delay, or prevent’ a ‘communication’ to a federal law enforcement officer or judge’ (3) about the ‘commission or possible commission’ of a federal offense. The instruction here concerned the second element, namely that the defendant intended to ‘hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States.’. . .
“But here the district court instructed the jury to apply a notably lower standard: namely, whether, absent the attack, Boyd ‘might’ have spoken to a federal law enforcement officer. . . . To say that Boyd ‘might’ have spoken to a federal officer is no different than saying that such a communication was ‘possible’. . . . And a mere possibility” standard is precisely what the Supreme Court [has previously] rejected.” Hence the district court’s instruction was erroneous.” (Id., at 801-02) (Internal citations omitted.)
The Court also separately concluded that Lobbins’ counsel had been constitutionally “deficient,” within the meaning of the Supreme Court’s seminal decision in Strickland v. Washington, 466 U.S. 668 (1984), when he failed to object to the district court’s erroneous instruction. In so ruling, the Court specifically rejected several last minute and highly creative but not supported arguments by the Government to preserve the witness tampering conviction.
For example, the Court summarily rejected the Government’s argument that the instructional error was harmless because Boyd had in fact talked with Federal officials after Lobbins assaulted him. It wrote: “Simply stated, that an assault resulted in conversations with federal officials hardly means that the defendant engaged in the assault to prevent them. . . . In sum, had the jury been properly instructed, it would have probably—if not necessarily—voted to acquit.” (Id., at 804).
In sum, this decision proves that there are meritorious defenses that can be made to defeat a charge of witness tampering—and they can be raised on appeal even in cases where trial counsel fails to timely object to an erroneous jury instruction.
This article originally appeared in the December 2018 issue of Punch & Jurists and is reprinted with permission, with minor edits. Copyright, Punch & Jurists
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