                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 18a0179p.06

                    UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 JESSIE LOBBINS,                                         ┐
                                 Petitioner-Appellant,   │
                                                         │
                                                          >      No. 15-6386
        v.                                               │
                                                         │
                                                         │
 UNITED STATES OF AMERICA,                               │
                                Respondent-Appellee.     │
                                                         ┘

                         Appeal from the United States District Court
                       for the Middle District of Tennessee at Nashville.
        Nos. 3:09-cr-00244-2; 3:15-cv-00618—Todd J. Campbell, Chief District Judge.

                                     Argued: May 2, 2018

                              Decided and Filed: August 21, 2018

                Before: CLAY, KETHLEDGE, and STRANCH, Circuit Judges.

                                      _________________

                                          COUNSEL

ARGUED: Michael D. Lieberman, KIRKLAND & ELLIS LLP, Washington, D.C., for
Appellant. Cecil Woods VanDevender, UNITED STATES ATTORNEY’S OFFICE, Nashville,
Tennessee, for Appellee. ON BRIEF: Michael D. Lieberman, KIRKLAND & ELLIS LLP,
Washington, D.C., for Appellant. Cecil Woods VanDevender, Van Vincent, UNITED STATES
ATTORNEY’S OFFICE, Nashville, Tennessee, for Appellee. Jessie Lobbins, Bruceton Mills,
West Virginia, pro se.
                                      _________________

                                           OPINION
                                      _________________

       KETHLEDGE, Circuit Judge. Jessie 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
 No. 15-6386                         Lobbins v. United States                              Page 2


instruction that misstated an element of that offense. The district court denied Lobbins’s motion
on the ground that the instruction made no difference to the jury’s verdict. We respectfully
disagree and reverse.

       In 2009, Lobbins was detained at a state facility, the Davidson County Criminal Justice
Center in Nashville, while awaiting trial on federal charges for murder and other crimes related
to his membership in the “Vice Lords” gang. Another gang member, Lavonta Churchwell, was
in the same facility awaiting trial on state charges for murdering a Vanderbilt professor and the
professor’s sister. Churchwell boasted to some other inmates about committing the Vanderbilt
murders. One of those inmates, Maurice Boyd, relayed that information to a state prosecutor.
Churchwell soon heard about Boyd’s cooperation and said that he was “going to have Maurice
f***ed up.” Soon thereafter, Lobbins entered Boyd’s cell with a prison shank and repeatedly
slashed and stabbed him. Boyd survived, but needed more than 200 stitches.

       Based on that assault, the government tacked on to Lobbins’s indictment a charge for
witness tampering in violation of 18 U.S.C. § 1512(a)(2)(A) and § 1512(a)(2)(C). A jury
thereafter convicted Lobbins of all charges. The district court sentenced him to two consecutive
terms of life imprisonment for murder and a concurrent term (among several others) of 30 years’
imprisonment for witness tampering. We affirmed.

       Lobbins then moved in the district court to vacate his sentence for witness tampering. In
support, Lobbins argued that one of the 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 district court denied the motion. We
review that decision de novo. See United States v. Coleman, 835 F.3d 606, 612 (6th Cir. 2016).

       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. See Strickland
v. Washington, 466 U.S. 668, 687 (1984). To make either showing, Lobbins must first show that
the instruction was in fact erroneous.

       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
 No. 15-6386                           Lobbins v. United States                                 Page 3


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. Cf. Fowler v. United States, 563 U.S. 668, 672
(2011) (reciting the elements of 18 U.S.C. § 1512(a)(1)(C)). 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[.]”                 18 U.S.C.
§ 1512(a)(2)(C).

        Almost verbatim the same phrase appears in an adjacent provision, namely 18 U.S.C.
§ 1512(a)(1)(C). (That provision applies when the defendant “kills or attempts to kill another
person,” rather than merely “uses physical force[,]” which is when § 1512(a)(2)(C) applies.) In
Fowler, the Supreme Court held that this same phrase—“prevent the communication by any
person to a law enforcement officer or judge of the United States”—as used in § 1512(a)(1)(C),
requires the government to “show a reasonable likelihood that,” absent the defendant’s actions,
the victim would have communicated with a federal (as opposed to state) “law enforcement
officer.”   563 U.S. at 677 (emphasis in original).          Meanwhile, absent good reason to do
otherwise, we give the same words the same meaning throughout the same statute. See Nat’l
Credit Union Admin. v. First Nat’l Bank & Tr. Co., 522 U.S. 479, 501-02 (1998). We did
precisely that, for example, in giving the phrase “designed in whole or in part . . . to conceal or
disguise[,]” the same meaning that the Supreme Court had given that phrase in a “neighboring
provision” of the federal money-laundering statute. See United States v. Faulkenberry, 614 F.3d
573, 585-86 (6th Cir. 2010) (construing 18 U.S.C. §§ 1956(a)(1)(B)(i) and 1956(a)(2)(B)(i)).
We see no good reason to do otherwise here, and the government offers none. Thus, we hold,
the Supreme Court’s “reasonable likelihood” standard applies to § 1512(a)(2)(C) of the federal
witness-tampering statute just as it does to § 1512(a)(1)(C).
 No. 15-6386                         Lobbins v. United States                              Page 4


       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.
Trial Tr. at 1846. To say that Boyd “might” have spoken to a federal officer is no different than
saying that such a communication was “possible.” See Webster’s Third New International
Dictionary 1432, 1771 (2002). And a “mere possibility” standard is precisely what the Supreme
Court rejected in Fowler. See 563 U.S. at 676. Hence the district court’s instruction was
erroneous.

       A separate question is whether Lobbins’s counsel was constitutionally “deficient” when
he failed to object to that instruction. Strickland, 466 U.S. at 687. A defense lawyer’s failure to
object to an erroneous jury instruction that, as here, materially lightens the government’s burden
of proof is typically deficient performance. See, e.g., Joseph v. Coyle, 469 F.3d 441, 460-62 (6th
Cir. 2006); Lucas v. O’Dea, 179 F.3d 412, 418 (6th Cir. 1999). The government argues that the
contrary is true here for two reasons. First, the government says, Lobbins’s counsel had “good
reasons” (Gov’t Br. at 18) not to anticipate that the Supreme Court’s construction of the phrase
“prevent the communication by any person to a law enforcement officer or judge of the United
States[,]” as used in § 1512(a)(1)(C), would extend to the (nearly identical) phrase “hinder,
delay, or prevent the communication to a law enforcement officer or judge of the United
States[,]” as used in § 1512(a)(2)(C). The putative “good reasons,” however, boil down to the
mere observation that § 1512(a)(2)(C) includes the words “hinder” and “delay,” whereas
§ 1512(a)(1)(C) does not. And the government offers no reason why those words would lead
anyone to think that the “reasonable likelihood” standard of § 1512(a)(1)(C) does not apply to
§ 1512(a)(2)(C).    To the contrary, for all the reasons stated above, Fowler “clearly
foreshadowed,” if not foretold, that the same standard applies to both provisions. Lucas, 179
F.3d at 420.

       Lobbins must also show a “reasonable probability” that a properly instructed jury would
have acquitted him of witness tampering. Strickland, 466 U.S. at 694. To have convicted him of
that offense, a properly instructed jury would have needed to find a “reasonable likelihood” that,
absent Lobbins’s attack, Boyd would have spoken to a federal (as opposed to state) official about
Churchwell’s boast that he murdered the Vanderbilt professor and the professor’s sister. See
 No. 15-6386                         Lobbins v. United States                            Page 5


Fowler, 563 U.S. at 677 (emphasis omitted).        But the murders were investigated by state
officials, prosecuted in state court, and—as punishment for them—a state judge sentenced
Churchwell to life imprisonment in a state penitentiary. See Churchwell v. State, No. M2015-
01567-CCA-R3-PC, 2016 WL 5253203 (Tenn. Crim. App. Sept. 21, 2016); State v. Churchwell,
No. M2011-00950-CCA-R3-CD, 2013 WL 430118 (Tenn. Crim. App. Feb. 4, 2013). Moreover,
Boyd spoke to a state prosecutor, not a federal one, about Churchwell’s boasts. Nothing about
the actual investigation or prosecution of those murders, therefore, would support a finding that
Boyd was reasonably likely to talk to a federal official about them.

       The district court held to the contrary because of a simple mistake. Specifically, the
district court held that the instructional error was harmless because, at Lobbins’s trial, Boyd
testified that he “had been providing information to . . . the ATF” about the murders. Op. at 21.
Respectfully, however, Boyd did not so testify. Instead, notwithstanding two leading questions
that sought to elicit precisely that testimony, Boyd testified only that he spoke to a state
prosecutor and that “several people [were] in the room.” Trial Tr. at 1409.

       The government, for its part, now argues that the Vanderbilt murders had a sufficient
“federal nexus” to support Lobbins’s conviction for witness tampering.         Gov’t Br. at 29.
Specifically, the government says that Lobbins was a “federal detainee” who “assaulted another
federal detainee [i.e., Boyd] to prevent him from telling law enforcement about a double murder”
that could have been charged federally because it was gang-related. Gov’t Br. at 29-30. But that
argument only underscores the importance of focusing on the words of the statute rather than on
a vague paraphrase once removed. The statute says nothing about a “federal nexus.” What the
statute requires, rather, is the likelihood of a “communication” to a federal official about “the
commission or possible commission of a Federal offense.” 18 U.S.C. § 1512(a)(2)(C). That
Lobbins and Boyd happened to be federal detainees does not, on this record, support any
inference that Boyd was likely to talk to a federal official about Churchwell’s boasts. Even the
government does not argue otherwise. Nor could the jury at Lobbins’s trial have drawn that
inference from the possibility that the Vanderbilt murders could have been charged federally.
Indeed the jury was not even told about that possibility. Moreover, “because of the frequent
overlap between state and federal crimes,” the government’s argument “would transform a
 No. 15-6386                         Lobbins v. United States                              Page 6


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.” Fowler, 563 U.S. at 677. Such
was the case here.

        The government also argues that the instructional error was harmless because Boyd in
fact talked to federal officials about the Vanderbilt murders—albeit after Lobbins assaulted him.
But that conversation—which of course happened as a result of the assault itself—tells us
nothing about whether, “in the absence of the” assault, Boyd would have talked to federal
officials about the murders. Fowler, 563 U.S. at 678 (emphasis added). Simply stated, that an
assault resulted in conversations with federal officials hardly means that the defendant engaged
in the assault to prevent them. See United States v. Johnson, 874 F.3d 1078, 1082 (9th Cir.
2017) (rejecting a similar argument as “nonsensical”). In sum, had the jury been properly
instructed, it would have probably—if not necessarily—voted to acquit. (That same conclusion
dispenses with the government’s argument that counsel had good strategic reasons for failing to
object to the instruction.)

        Finally, the government argues that the jury could have found Lobbins guilty under the
other witness-tampering provision listed in his indictment: namely, § 1512(a)(2)(A), which
makes it a crime to use force with the intent to prevent someone from testifying in a federal
proceeding. The government’s theory here is that Lobbins assaulted Boyd to prevent Boyd from
testifying at his own sentencing hearing.      Suffice it to say that the government lacks any
evidence for that theory as well.

        Lobbins separately asks us to vacate his other convictions or to order the district court to
allow him to relitigate his other § 2255 claims. But we considered those claims when he sought
a certificate of appealability, and found it undebatable that none entitles him to relief. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000). We therefore limit our decision to his Fowler claim.
See 28 U.S.C. § 2253(c)(1).

        The district court’s December 4, 2015 order is reversed as to Lobbins’s Fowler claim,
and the case is remanded with instructions to vacate Lobbins’s conviction on Count 66 of the
indictment and for any further proceedings consistent with this opinion.
