United States v. Smith, No. 12-7301

Decided:  July 25, 2013

The Fourth Circuit affirmed the order of the United States District Court of the District of Maryland denying Defendant Terrence Smith’s ineffective assistance of counsel motion finding that under a more lenient “harmless-error standard,” the error contained within the jury instruction in his underlying trial for witness tampering did not “have a substantial and injurious effect or influence in determining the jury’s verdict.”  As such, the Fourth Circuit agreed that the error was harmless and denied the motion.

In January 2005, Smith, a leader of the Bloods gang in the Harwood neighborhood of Baltimore, Maryland, called a meeting of the gang’s membership at his home and instructed them that he wanted to “firebomb” the victim’s house in retaliation for her repeated contacts with the police regarding drug activity in the neighborhood.  The members of the gang subsequently carried out the attack, using gasoline-filled beer bottles.  Smith and other gang members were later indicted and convicted for their roles in the attack.  Among the five counts on which Smith was convicted, three included federal witness tampering.  At the close of the prosecution’s case, Smith filed a motion for acquittal, arguing that the government had not established the federal nexus that was required to convict him under the federal witness tampering statutes because the government had failed to show that the victim contacted federal authorities or was likely to do so, as required by the statute.  The government argued that such drug trafficking, about which the victim had complained to the local authorities, was a federal offense and, thus, the nexus was established.  The district court denied Smith’s motion and allowed the government to reopen its case to present additional evidence on the matter.  The government offered evidence from the local Drug Enforcement Administration (“DEA”) field office that explained its close relationship with local law enforcement offices in the area and that through these associations, the victim’s reporting would have ultimately been provided to federal law enforcement agents through groups established by federal and local law enforcement agencies, identified as joint task forces, to combat trafficking narcotics.  At the close of the evidence, the district court instructed the jury on the intent element for witness tampering, indicating that the government had to prove that Smith “acted knowingly and with the unlawful intent to induce [the victim] to hinder, delay, or prevent the communication of information to a law enforcement officer of the United States.”  The court further instructed that the government needed only to show that there was “a possibility or likelihood” that the information provided by the victim would be communicated to federal law enforcement authorities to satisfy the intent element.  The jury convicted Smith on all counts and Smith appealed arguing that the court misinstructed the jury on the witness tampering counts.

The Fourth Circuit initially rejected Smith’s arguments and affirmed his convictions, but remanded the case to fix a sentencing error, which was later affirmed.  In April 2011, Smith filed a motion under 28 U.S.C. § 2255, raising several issues regarding the effectiveness of his trial counsel.  After his decision to file the § 2255 motion, the U.S. Supreme Court rejected the “possibility” of a federal communication as an appropriate standard for establishing the federal nexus element in Fowler v. United States, 131 S. Ct. 2045 (2011), and held that the government had to prove a “reasonable likelihood” of the communication.  Smith filed a supplement to his § 2255 motion.  The district court deciding the § 2255 motion concluded that even though the standard applied at trial was incorrect it was, nonetheless, harmless error.  Smith again filed a timely notice of appeal.

The Fourth Circuit began its opinion by agreeing with Smith and the district court that Fowler changed the standard upon which the government must prove federal nexus in witness tampering and that it was retroactively applicable to cases on collateral review.  As a result, the district court’s jury instruction at trial was erroneous.  Smith’s first argument was that this instruction error was not reviewable under the harmless error review doctrine because it was ‘a fundamental error in the proceedings,’ and warranted automatic reversal because it was, in essence, a structural error in the trial.  The Fourth Circuit rejected this argument holding that the instructional error “did not taint the trial ‘from beginning to end,’” as is required to show a structural error.  Smith also contended that even under the harmless error analysis, the district court should have applied the standard of review for direct appeals as provided in Chapman v. California, 386 U.S. 18 (1967), rather than the standard for collateral appeals as set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993).  The standard on direct appeal, under Chapman, requires the government to show the error was harmless only if it was “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.”  The standard for collateral appeals, under Brecht, only requires the government to show that error did not have a “substantial and injurious effect or influence in determining the jury’s verdict.”  The court indicated that the Brecht standard has been held to apply in § 2254 habeas petition cases, but the U.S. Supreme Court and the Fourth Circuit had yet to decide whether it applies to § 2255 cases.  Upon an analysis of the Brecht decision and review of other sister circuits, the Fourth Circuit held that because the structural nature of collateral review is the same for both § 2254 and § 2255 cases, society has the same interest in the finality of federal convictions as it does in state convictions, and “the risk of degradation of the write is present in both federal § 2255 cases as in state-habeas § 2254 cases,” the less stringent Brecht standard should apply to § 2255 cases.  After determining the applicable standard of review for Smith’s challenge, the court held, under a Brecht analysis, that the jury instructional error in this case did not have “substantial and injurious effect or influence in determining the jury’s verdict.”

Full Opinion

– John G. Tamasitis

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