Witness tampering conviction reversed for lack of evidence defendants contemplating a reasonably likely federal proceeding

United States v. Sutton, 2021 WL 1014359 (10th Cir. Apr. 5, 2022) (KS): The panel reverses the convictions of Sutton & Segue for conspiring to tamper with a witness in a federal proceeding in violation of 18 U.S.C. §§ 1512(b)(1), 1512(k). Both Sutton & Segue moved for an acquittal arguing that the government had not shown that they expected the contemplated legal proceeding was likely to be federal. The panel held the district court should have granted the acquittal motion. 18 U.S.C. § 1512(b)(1) requires proof that the individual knowingly used intimidation or threats to influence or prevent the testimony of any person in an official proceeding. The panel said that “official proceeding” refers to federal proceedings. It does not include state judicial proceedings or criminal investigations. Thus, the government had to prove that the proceeding contemplated by Sutton & Segue when they fought another man in the jail with them and whom they believed was an informant, was reasonably likely to be federal. A mere possibility the proceeding will be federal is not enough. Here, the government did not satisfy its burden. It presented no evidence Sutton & Segue contemplated a federal proceeding. Nor did it show it was reasonably likely that the contemplated proceeding would have been federal. Interference with a state proceeding was foreseeable because the man attacked had been arrested by state officials and was in a state jail on state charges. Even if Sutton & Segue knew that the man had spoken to a state police officer who used his information to get a state search warrant from a state judge, there was nothing “federal” about this man’s role. The panel dismissed the government’s argument that a parallel federal drug investigation was on-going. It questioned how Sutton & Segue could have contemplated this investigation. Further, the government did not present any evidence that federal agents knew of the man attacked, nor that anyone in the state jail knew about the federal investigation. One judge dissented.