                                                                                                                           Opinions of the United
1996 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-2-1996

United States v. Stansfield
Precedential or Non-Precedential:

Docket 95-7529




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                  UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT



                           No. 95-7529


                     UNITED STATES OF AMERICA

                                  v.

                  MERRITT G. STANSFIELD, JR.,

                                       Appellant


         On Appeal from the United States District Court
             for the Middle District of Pennsylvania
                     (D.C. No. 94-cr-00138-1)


                    Argued September 11, 1996

                BEFORE:   COWEN, LEWIS and WEIS,
                          Circuit Judges

                     (Filed December 2, 1996)



Peter Goldberger, Esq. (argued)
Law Office of Peter Goldberger
50 Rittenhouse Place
Ardmore, PA 19003-2276

Thomas C. Carroll, Esq. (argued)
Carroll & Cedrone
750 Curtis Center
Independence Square West
Philadelphia, PA 19106

          COUNSEL FOR APPELLANT

Kim D. Daniel, Esq. (argued)
Office of United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108

          COUNSEL FOR APPELLEE
                             OPINION



COWEN, Circuit Judge.

     Merritt G. Stansfield appeals from a judgment rendered after
a jury trial convicting him of three counts of mail fraud in
violation of 18 U.S.C. § 1341, two counts of engaging in unlawful
monetary transactions (money laundering) in violation of 18 U.S.C.
§ 1957, one count of tampering with a witness in violation of 18
U.S.C. § 1512(a)(1)(C), and one count of criminal forfeiture
pursuant to 18 U.S.C. § 982. He was sentenced to, inter alia,
incarceration for a term of 306 months.
     Stansfield contends that his conviction on two of the three
mail fraud counts, the two money laundering counts, and the
criminal forfeiture count must be reversed and remanded for a new
trial by reason of irregularities occurring during jury
deliberations. He also argues that the conviction on witness
tampering must be vacated and remanded with instructions to enter
a judgment of acquittal on that count due to insufficient evidence.
Alternatively, he argues that the judgment of conviction on that
count must be reversed and remanded for a new trial on the ground
that the jury was not properly instructed. Finally, he contends
the district court erred in several respects in applying the
federal sentencing guidelines.
     We will affirm the judgment of conviction on all counts except
the witness tampering count. As to that count, we will reverse and
remand for a new trial. In light of this disposition, we need not
reach Stansfield's argument that his sentence was contrary to the
guidelines.
                                I.
                                A.
     We take the facts with regard to the counts upon which
Stansfield was convicted in the light most favorable to the
government, the verdict winner. In 1990 Stansfield's home was
destroyed by fire. Erie Insurance Company agreed to reimburse
Stansfield for the replacement cost of the insured items, as well
as the cost from the loss of the use of his house. In May of 1992,
Stansfield sent Erie a list of insured items he claimed were lost
in the fire. Some of these were later found intact at other
locations. By reason of the loss, Erie sent Stansfield checks
totalling approximately $225,000. Stansfield used some of these
funds to purchase a boat and trailer.
     Erie and state law enforcement officials began an
investigation of the fire in 1992. Although they determined that
arson caused the fire, Stansfield was never conclusively found to
be the arsonist. Investigators from Erie and Pennsylvania State
Police spoke with Dwight Hoffman, a friend of Stansfield's, several
times in 1992 and early 1993. Hoffman was quite knowledgeable
about Stansfield's home and its contents; he had stored many of
Stansfield's personal effects in his home prior to the fire.
     Hoffman's wife Dee was also a friend of Stansfield's. When
Hoffman and Dee ended their relationship in August of 1992,
Stansfield and Dee became romantically involved. Some evidence
suggests that Dee Hoffman was complicit in Stansfield's scheme.
     State troopers also communicated with Jack Love, whom
Stansfield had solicited to burn his home. Stansfield threatened
to kill Love if he told anyone of the solicitation. Love informed
Stansfield in May of 1993 that law enforcement officials had
contacted him about the fire.
     That September, Erie referred the matter to federal postal
inspectors. The Postal Inspector presented the case to the United
States Attorney's Office, which requested that the Postal
Inspection Service continue the investigation.
     The witness tampering charge stems from an incident that
occurred on October 7, 1993. On that date Stansfield entered
Dwight Hoffman's home uninvited. Hoffman's parents, Eugene and
Joyce, were present but Dwight Hoffman was not. When asked what he
was doing there, Stansfield replied that he was "sick and tired of
[Dwight] running down [Stansfield's] name and ruining [his]
business." App. at 43. Stansfield struck the Hoffmans, knocking
them to the ground. He repeatedly kicked Eugene Hoffman in the
head and body. When Eugene Hoffman attempted to get up, Stansfield
knocked him down again, kicking him in the head until Hoffman was
partially unconscious. Stansfield took both the Hoffmans to the
basement, where he bound their hands and feet. When Eugene Hoffman
tried to free himself, Stansfield kicked him in the head several
more times.
     Stansfield then went upstairs, returning shortly with a
shotgun and shells. He donned latex gloves, tinted "shooting"
glasses, and ear protectors that are worn on shooting ranges. He
loaded the gun and waited for Dwight Hoffman to arrive. When
Dwight Hoffman appeared, Stansfield took him to the basement, hit
him with the butt of the shotgun, and ordered him to sit next to
his parents. Stansfield then placed the shotgun on the throat of
Dwight Hoffman and stated, "I'm going to ask you some questions,
and I want the truth, because the gun is loaded, the safety is off,
and my finger is on the trigger, is that clear?" App. at 78.
     Stansfield first inquired why Dwight Hoffman had "sen[t] the
cops after [him] about [his] house," or why Dwight had "called the
police about his fire." App. at 54, 79. At some point Dwight
Hoffman lunged for the gun. It went off, firing a shot between
Dwight Hoffman's neck and Joyce Hoffman's head. A struggle ensued.
Eventually Dwight and Eugene Hoffman were able to subdue Stansfield
until a police officer arrived.
                                B.
     Stansfield was indicted on a twelve count indictment. Counts
I through IV charged mail fraud. Count V charged using fire to
commit mail fraud. Counts VI through X charged money laundering.
Count XI, stemming from the incident on October 7, 1993, charged
tampering with a witness. Count XII was criminal forfeiture
predicated on the money laundering counts.
     The instructions given to the jury on Count XI are one focus
of this appeal, and so we recite them at length:
                    The grand jury charged, with respect to count
                    11, that on or about October 7, 1993, in the
                   Middle District of Pennsylvania, the
                   defendant, Merritt G. Stansfield, Jr., did
                   assault and attempt to kill one Dwight E.
                   Hoffman with the intent to prevent Hoffman's
                   communication of information relating to
                   Stansfield's commission of federal offenses .
                   . . to a law enforcement officer, this being
                   in violation of Title 18, United States Code,
                   Section 1512(a)(1)(C).
                        The relevant statute on this subject is
                   Title 18, United States Code, Section 1512,
                   and provides as follows: Whoever knowingly
                   uses intimidation or physical force, with
                   intent to hinder, delay, or prevent the
                   communication to a law enforcement officer of
                   information relating to the commission or
                   possible commission of a federal offense shall
                   be guilty of a crime.
                        The statute is designed to protect
                   persons who may be called to testify or give
                   evidence in a federal proceeding, either civil
                   or criminal, and persons who have information
                   about federal crimes. The integrity of the
                   federal system of justice depends upon the
                   cooperation of such potential witnesses. If
                   persons with information do not come forward,
                   produce evidence and appear when summoned, the
                   criminal justice system will be significantly
                   impaired. This statute was devised to make it
                   unlawful for anyone to tamper with such a
                   witness in the manner described by the
                   statute.
                        In order to prove the defendant guilty of
                   the charge in the indictment, the government
                   must prove each of the following elements
                   beyond a reasonable doubt: First, that on or
                   about the date charged, the defendant used
                   intimidation, physical force, or threats, or
                   attempted to do so; and second, that the
                   defendant acted knowingly and with intent to
                   prevent the communication to a law enforcement
                   officer of information relating to the
                   commission or possible commission of a federal
                   offense.

          App. at 103-05. The district court then elaborated on both of
these elements and added: "The law does not require that a federal
proceeding be pending at the time or even that it was about to be
initiated when the intimidation, physical force or threats were
made." App. at 106. Stansfield took no objection to these
portions of the jury charge.
     The jury returned a partial verdict convicting Stansfield on
Counts I, II, III, VI, VII, and XI. As the jury was polled, juror
number two was excused from the jury box because she was not
feeling well. She eventually returned and, in the presence of the
other jurors, indicated her concurrence in the guilty verdicts.
During a subsequent recess, jurors number one, two, and nine
communicated to the deputy clerk that they wished to speak with the
court. They did not indicate the reasons for wanting to do so.
After consulting with counsel, the court declined to hear from the
jurors at that time.
     The jury was brought into the courtroom and directed to
deliberate on Count XII, which had not previously been submitted to
it. A mistrial was subsequently declared as to Counts IV, V, VIII,
IX, and X. The government later dismissed those counts subject to
reinstatement should any portion of the conviction be vacated.
Immediately after the jury returned to the jury room to commence
deliberations on Count XII, jurors number one, four, and nine
abruptly left the jury room and refused to return. The three
apparently were crying and were "emotionally distraught." App. at
143. They stated that "they had reasons for [initially] voting the
way they did" and had been told they were "stupid." App. at 143.
At this point, Stansfield waived his right to a jury trial with
regard to Count XII and the jury was discharged. The district
court found Stansfield guilty on Count XII.
     The district court thereafter met with the three jurors, first
as a group and later individually. All three were women who had
previously asked to speak with the district court. All three
stated they had been pressured into concurring with the guilty
verdicts by the jury foreman who, along with other jurors, had
used gender-based insults to intimidate them. The jurors stated as
an example that they were called "stupid female[s]" and were told
that they "didn't have minds" because they are women. App. at 169,
156. One of the jurors stated that a fourth juror, who had not
felt well during the jury poll, also had been affected by these
gender-based insults. All three indicated that, but for the
pressure that the other jurors exerted on them, they would have
voted for acquittal on Counts II, VI, and VII. Juror number one
related that she also would have voted for acquittal on Count I.
     Stansfield moved to vacate the convictions on those four
counts. The court denied the motion. The district court sentenced
Stansfield to, inter alia, 306 months incarceration. The sentence
was to run concurrently with a 7 1/2 to 15 year sentence imposed in
the Court of Common Pleas of Dauphin County, Pennsylvania, stemming
from the October 7, 1993, incident. This appeal followed.
                               II.
                                A.
     Stansfield contends that, based on the in camera questioning
of jurors number one, four, and nine, the verdict as to Counts I,
II, VI, and VII was not unanimous and the matter should be remanded
for a new trial on these counts. Moreover, he contends that
because the forfeiture count on which he was convicted, Count XII,
was predicated on the guilty verdict on Counts VI and VII, that
count should also be reversed and remanded. We hold that, pursuant
to Fed. R. Evid. 606(b), consideration of the testimony of those
jurors is not permitted. The judgment of conviction on those
counts will be affirmed.
     It is a common-law rule of ancient vintage that a jury's
verdict may not be impeached by the testimony of a juror concerning
any influences on the jury's deliberations that emanated from
within the jury room. See Tanner v. United States, 483 U.S. 107,
117, 107 S.Ct. 2739, 2745-46 (1987); McDonald v. Pless, 238 U.S.
264, 268, 35 S.Ct. 783, 784 (1915); Government of Virgin Islands v.
Gereau, 523 F.2d 140, 148 n.19 (3d Cir. 1975), cert. denied, 424
U.S. 917, 96 S.Ct. 1119 (1976). That precept has been codified in
the federal system as Fed. R. Evid. 606(b), which provides, in
relevant part:
                    Upon an inquiry into the validity of a verdict
                    or indictment, a juror may not testify as to
                    any matter or statement occurring during the
                    course of the jury's deliberations or to the
                    effect of anything upon that or any other
                    juror's mind or emotions as influencing the
                    juror to assent to or dissent from the verdict
                    or indictment or concerning the juror's mental
                    processes in connection therewith, except that
                    a juror may testify on the question whether
                    extraneous prejudicial information was
                    improperly brought to the jury's attention or
                    whether any outside influence was improperly
                    brought to bear upon any juror.

          See also Tanner, 483 U.S. at 121, 107 S.Ct. at 2748; Gereau, 523
F.2d at 149 n.22. Testimony concerning "intimidation or harassment
of one juror by another" falls squarely within the core prohibition
of the Rule. Id. at 150.
     Recognizing the considerable obstacle this provision places in
his path, Stansfield attempts to clear the hurdle in two ways.
First, he contends that Rule 606(b) is implicated only after a jury
has been discharged. Because the district court was aware of an
irregularity before it discharged the jury, the argument goes, it
should have waited to discharge them until it had spoken to the
three jurors. Second, he argues, although Rule 606(b) bars members
of a jury from impeaching is own verdict, it does not bar the use
of jurors' testimony to impeach an allegedly defective jury poll.
We address these contentions in turn.
                                1.
     There is some support for Stansfield's argument that timing is
relevant in considering the implications of Rule 606(b). In
Tanner, 483 U.S. at 127, 107 S.Ct. at 2751, the Supreme Court
stated, in dicta, that jurors "may report inappropriate juror
behavior to the court before they render a verdict." In Government
of Virgin Islands v. Nicholas, 759 F.2d 1073, 1078 (3d Cir. 1985),
we wrote that "questions concerning the competency of a jury
ordinarily are not entertained once the jury has rendered its
verdict" (emphasis added). And in Gereau, 523 F.2d at 148, we
stated that "a juror may not impeach [her] own verdict once the
jury has been discharged" (emphasis added).
     Recognizing that the testimony of the three jurors here was
proffered after the verdict was read into the record, after the
jury was polled and indicated its unanimous consent, and after the
jury was discharged, Stansfield first contends that the district
court judge had a duty to meet with the three jurors as soon as
they first requested to speak with him. This request occurred
after the partial verdict was rendered and the jury was polled, but
before it commenced deliberations on Count XII.   Essentially, the
contention is that the district court abused its discretion in not
conferring with the three jurors when they first requested to speak
with him.
     It is apparent from the record, however, that at the time of
the first request, the district court had no indication of the
reason for the requested meeting. Moreover, even if the district
court had an idea of the reasons for the requested conference, it
enjoys considerable discretion in determining how to deal with
allegations of juror misconduct. See United States v. Resko, 3
F.3d 684, 690 (3d Cir. 1993); Government of Virgin Islands v.
Dowling, 814 F.2d 134, 137 (3d Cir. 1987). We cannot conclude that
the district court abused its discretion in declining to meet with
the three jurors when they first requested a meeting.
     Stansfield further contends that, at the very least, the
district court should have made inquiry immediately after the three
jurors bolted from the jury room, instead of first discharging the
jury. This contention would have merit only if there were a
relevant distinction between receiving juror testimony to impeach
a verdict before the jury is discharged and doing so after it is
discharged. If such a distinction is not relevant then the
district court could not have abused its discretion in first
discharging the jury and then questioning the three jurors.
Stansfield's argument is essentially that Rule 606(b) comes into
play only when the jury has been discharged and not at some earlier
point in the proceedings, such as when the verdict is rendered or
the jury polled.
     This contention was squarely addressed and rejected by the
Court of Appeals for the Second Circuit in United States v.
Hockridge, 573 F.2d 752, 758-60 (2d Cir.), cert. denied, 439 U.S.
821, 99 S.Ct. 85 (1978). In Hockridge, as in this case, a partial
verdict was rendered in a criminal case and the jury sent back for
further deliberations on the remainder of the verdict. See id. at
756-57. During those deliberations, two jurors spoke with the
district court in camera and expressed reservations about their
concurrence in the partial verdicts. See id. at 757. On appeal
the defendants argued that Rule 606(b) is inapplicable where a
partial verdict has been rendered but the jury has not yet been
discharged. See id. at 758.
     The Court of Appeals for the Second Circuit rejected this
argument. It reasoned that applying Rule 606(b) even before the
jury has been discharged furthers two important objectives:
verdict finality and enhancing the jury's freedom of deliberation.
See id. at 759. As for the first objective, the court recognized
that while "finality is not sought for its own sake," allowing a
partial verdict to be impeached while deliberations ensue on the
remainder of the verdict would essentially eviscerate the benefits
sought to be achieved by allowing partial verdicts in the first
place. Id. As for freedom of jury deliberations, the court noted
that "the legislative history of Rule 606(b), while perhaps not
determinative, reveals the strong congressional purpose of
protecting the jury deliberation process," and concluded that "the
policy against intrusion into internal deliberations remains the
same," irrespective of whether a partial verdict or a complete
verdict is at issue. Id. Thus, the court concluded, "where a
partial verdict has been recorded, we perceive no reasons of
sufficient magnitude to depart from the normal rule governing
impeachment of jury verdicts." Id. We agree.
     In Gereau, 523 F.2d at 148, we identified several objectives
that Rule 606(b) was designed to foster: "(1) discouraging
harassment of jurors by losing parties eager to have the verdict
set aside; (2) encouraging free and open discussion among jurors;
(3) reducing incentives for jury tampering; (4) promoting verdict
finality; [and] (5) maintaining the viability of the jury as a
judicial decision-making body." Of these goals, the first and
third would be unaffected by erecting the Rule 606(b) barrier at
some point prior to discharge of the jury.
     As explained at length by the Court of Appeals for the Second
Circuit in Hockridge, 573 F.2d at 759-60, employing the
prohibitions of Rule 606(b) even before the jury is discharged
serves to foster both the openness of jury deliberations and
verdict finality. It also serves to further the fifth goal we
identified in Gereau, which is intrinsically related to the goals
of free deliberation and finality: that of maintaining the jury's
integrity as an independent decision-making body within the
judicial branch of government. Thus, while only some of the
objectives of Rule 606(b) are fostered by applying that Rule before
jury discharge, we conclude that these considerations are
sufficient to make that Rule fully applicable at that point in
time.
     Finally, Stansfield cites United States v. Marinari, 32 F.3d
1209, 1214 (7th Cir. 1994), for the proposition that "[u]ntil the
jury is actually discharged by separating or dispersing (not merely
being declared discharged), the verdict remains subject to review"
and thus "finality of the verdict comes upon the separation and
dispersal of the jurors." Stansfield misconstrues the case. In
Marinari, the Court of Appeals for the Seventh Circuit was
addressing finality as it relates to "record[ation]" of a verdict
within the meaning of Fed. R. Crim. P. 31(d), not as it relates to
the triggering of the prohibition of Fed. R. Evid. 606(b). Marinaridid
not involve an application of Rule 606(b), nor did the court
have any reason to discuss the implications of that Rule. Although
the court held that a jury could be recalled before actual
dispersal for purposes of conducting a jury poll, it never
suggested that individual members of the jury were ever competent
to impeach the jury verdict. Marinari is useful only to the extent
that it recognizes that formal discharge is not as crucial as
actual dispersal. One cannot infer from the court's language that
Rule 606(b) is implicated only upon discharge, dispersal, or
separation of the jury, as opposed to some earlier point in the
proceedings.
     In fact, Marinari supports our conclusion. The Court of
Appeals for the Seventh Circuit held that recordation of the
verdict takes place upon actual dispersal or separation of the jury
only when the jury has not been polled. See id. at 1213. On the
other hand, "[w]here a poll is taken, the verdict becomes final and
`recorded,' when the twelfth juror's assent to that verdict is made
on the record." Id. Here, the jury was polled and, according to
Marinari, the partial verdict became final when juror number twelve
concurred with the verdict on the record.
     Moreover, the reasons the Court of Appeals for the Seventh
Circuit gave for establishing actual separation or dispersal as the
"point of no return" for purposes of conducting a jury poll are
inapposite to the issue of where that point is located for purposes
of inquiry into internal influences on the jurors. The court
reasoned that, before dispersal of the jury, individual jurors
continue to be isolated from contact with the outside world and,
therefore, their answers to a jury poll would not be tainted by
external influences until dispersal. See id. at 1214. As noted
above, while several of the policies underlying the prohibition
embodied in Rule 606(b) assume that there will have been contact
with the outside world, and therefore those policies are not
implicated if the Rule were to apply before discharge, the other
rationales behind Rule 606(b) apply with full force even before the
jury is discharged. Marinari is fully consistent with our ruling.
     We need not address definitively the point at which Fed. R.
Evid. 606(b) comes into play. We hold only that its prohibition on
using juror testimony to impeach the jury's verdict applies at some
point prior to the discharge of the jury. Had the district court
here questioned the three jurors prior to the jury's discharge, the
jurors still would have been incompetent by virtue of Rule 606(b)
to impeach the jury's verdict. Stansfield's contention that the
district court abused its discretion by questioning the jurors only
after it discharged the jury is without merit.
                                2.
     Stansfield also seeks to avoid the Rule 606(b) hurdle by
characterizing the juror's testimony as tending to impeach the
integrity of the jury poll rather than the verdict itself.
Stansfield does not contend that any irregularity occurred during
the polling process itself that would have alerted the court to the
true nature of the problem. Although juror number two excused
herself because she was not feeling well, it did not become
apparent until much later that this juror's health may have been
affected by something that occurred in the jury room. Moreover,
the three jurors who eventually spoke with the court in camerarequested to
do so only after the polling process was completed.
     Stansfield's argument at bottom is the contention that the
jury poll can be attacked by subsequent juror recantation even
though the verdict itself cannot. This distinction is unavailing.
The jury poll is not a distinct entity that exists separate and
apart from the verdict. Rather, the jury poll is a mere reflection
of the verdict. To attempt to impeach the poll by reference to
intimidation that the jurors claim they felt during deliberations,
or that they feared they would again feel when they resumed their
deliberations, is no different than attacking the verdict directly.
Rule 606(b) forbids this.
     Moreover, adopting Stansfield's position would mean that no
jury poll following the rendering of a partial verdict would be
beyond attack through the use of juror testimony, at least not
until the time that a complete verdict is rendered or a partial
mistrial declared. Since taking a jury poll at that time would
thus become a futile gesture, juries would not be polled (and the
partial verdict would not be validated) until it became certain
that they would deliberate no longer. Congress could not have
intended Fed. R. Evid. 606(b) to so fully diminish the beneficial
effects of partial verdicts. See Hockridge, 573 F.2d at 759.
     We conclude that Fed. R. Evid. 606(b) embodies a decision that
the costs of making an inquiry into possible juror misbehavior in
circumstances such as these outweigh the potential benefits.
Accordingly, the judgment of conviction with respect to Counts I,
II, VI, VII, and XII will be affirmed.
                                B.
     Stansfield asks us to reverse his conviction on Count XI, the
tampering with a witness count, and remand with directions to enter
a judgment of acquittal on that count on the grounds that the
evidence was insufficient to support a conviction. Specifically,
he argues that the evidence was deficient in two respects: it did
not prove that he intended to hinder Dwight Hoffman's futurecommunication
with law enforcement officials, and it did not prove
that he intended to prevent Hoffman's communications with a federallaw
enforcement officer. Alternatively, he contends that the jury
was not properly instructed either on the "attempt to kill" element
of the statute pursuant to which he was convicted or on the
"federal officer" element. Accordingly, he argues, his conviction
must be reversed and the matter remanded for a new trial on Count
XI. We address each contention in turn.
                                1.
     Count XI of the indictment charged that, on or about October
7, 1993, Stansfield "did assault and attempt to kill one Dwight E.
Hoffman with the intent to prevent Hoffman's communication of
information relating to STANSFIELD'S commission of federal offenses
. . . to a law enforcement officer" in violation of 18 U.S.C. §
1512(a)(1)(C). App. at 35. Title 18 U.S.C. § 1512(a)(1)(C)
provides, in pertinent part: "Whoever kills or attempts to kill
another person, with intent to prevent the communication by any
person to a law enforcement officer . . . of information relating
to the commission or possible commission of a Federal offense"
shall be imprisoned for up to twenty years.
     The term "law enforcement officer" is defined as "an officer
or employee of the Federal Government, or a person authorized to
act for or on behalf of the Federal Government or serving the
Federal Government as an adviser or consultant authorized under law
to engage in or supervise the prevention, detection, investigation,
or prosecution of an offense." Id. § 1515(a)(4). However, the
government need not prove that Stansfield knew or intended "that
the law enforcement officer is an officer or employee of the
Federal Government or a person authorized to act for or on behalf
of the Federal Government." Id. § 1512(f).
     As we stated in United States v. Carr, 25 F.3d 1194, 1201 (3d
Cir.) (quoting United States v. Casper, 956 F.2d 416, 421 (3d Cir.
1992)), cert. denied, ___ U.S. ___, 115 S.Ct. 341 (1994), we
                    "must sustain the verdict of a jury if there
                    is substantial evidence, viewed in the light
                    most favorable to the Government, to uphold
                    the jury's decision. In determining whether
                    evidence is sufficient, we will not weigh
                    evidence or determine the credibility of
                    witnesses. Appellate reversal on the grounds
                    of insufficient evidence should be confined to
                    cases where the failure of the prosecution is
                    clear. The evidence need not be inconsistent
                    with every conclusion save that of guilt, so
                    long as it establishes a case from which a
                    jury could find the defendant guilty beyond a
                    reasonable doubt."

                                           a.
     The evidence proved that Stansfield held a shotgun at Dwight
Hoffman's throat and asked him a number of questions, including why
Hoffman had told law enforcement officials about the fire at
Stansfield's house. This evidence is sufficient for a jury to
conclude beyond a reasonable doubt that Stansfield intended to
prevent Hoffman's future communications with law enforcement
officials, not merely that he intended to retaliate against Hoffman
for past communications with law enforcement officials. The jury
in its opinion could reasonably conclude that inherent in the
action of pointing a loaded firearm at another's throat and asking,
in effect, "Why did you do it?" is the implicit message, "Don't
ever do it again." We conclude that the evidence was sufficient to
prove that Stansfield intended to foreclose future communications
by Hoffman with law enforcement officials.
                                b.
     We also find the evidence sufficed to satisfy the "federal
officer" element of 18 U.S.C. §§ 1512(a)(1)(C) and 1515(a)(4). The
parties dispute what the government has to prove in order to
satisfy this requirement. Stansfield urges that the government
must prove "an intent to prevent the communication of information
to some particular law enforcement officer, or at least to any
agent involved in a particular, actual federal investigation," as
long as that officer is federal. Appellant's Brief at 16. The
government argues that it need only prove that the offense about
which the defendant wishes to prevent communications is actually a
federal offense.
     The case law from our sister circuits does not support
Stansfield's view. The Court of Appeals for the Second Circuit in
United States v. Romero, 54 F.3d 56, 62 (2d Cir. 1995), cert.
denied, ___ U.S. ___, 116 S.Ct. 1449 (1996) wrote: "There need not
be an ongoing investigation or even any intent to investigate.
Rather, the killing of an individual with the intent to frustrate
the individual's possible cooperation with federal authorities is
implicated by the statute" (emphasis added). The Court of Appeals
for the Seventh Circuit in United States v. Edwards, 36 F.3d 639,
645 (7th Cir. 1994), held that what is essential is that "the
defendant believed that a person might furnish information to
federal officials and that he killed or attempted to kill that
person in order to prevent such disclosure" (second emphasis
added). Accord United States v. Galvan, 949 F.2d 777, 783 (5th
Cir. 1991) ("[T]he statute focuses on the defendant's intent:
whether she thought she might be preventing [the witness'] future
communication of information.") (emphasis added); United States v.
Leisure, 844 F.2d 1347, 1364 (8th Cir.), cert. denied, 488 U.S.
932, 109 S.Ct. 324 (1988) ("[I]t is only necessary for a defendant
to have believed that a witness might give information to federal
officials, and to have prevented this communication, to violate 18
U.S.C. § 1510.").
     This is not to say that the position of the government is
without problems. Were we to require only that the government
prove that the underlying offense is federal and that the defendant
intended to prevent the witness from communicating with law
enforcement officials in general, without also proving the
defendant's knowledge of or belief in the possibility that the
witness would communicate with federal authorities, we would
essentially vitiate an important facet of the intent requirement of
the statute.
     Accordingly, we hold that, in order to obtain a conviction
pursuant to § 1512(a)(1)(C), the government must prove: (1) the
defendant killed or attempted to kill a person; (2) the defendant
was motivated by a desire to prevent the communication between any
person and law enforcement authorities concerning the commission or
possible commission of an offense; (3) that offense was actually a
federal offense; and (4) the defendant believed that the person in
(2) above might communicate with the federal authorities. This
last element may be inferred by the jury from the fact that the
offense was federal in nature, plus additional appropriate
evidence. For example, it is sufficient (but not necessary) that
the government prove that the defendant had actual knowledge of the
federal nature of the offense in order for the jury to infer the
last element.

     This framework is an appropriate reconciliation between the
constraint that the government must prove the defendant's specific
intent to hinder a federal investigation and the fact that, by
virtue of § 1512(f), it need not prove that the defendant knew the
federal status of any particular law enforcement officer involved
in an investigation. Cf. United States v. Gonzalez, 922 F.2d 1044,
1054 (2d Cir.), cert. denied, 502 U.S. 1014, 112 S.Ct. 660 (1991);
United States v. Scaife, 749 F.2d 338, 348 (6th Cir. 1984).
     In this matter, the underlying offense clearly was a federal
offense. The evidence reflected that Hoffman had already
cooperated several times with state authorities and with Erie.
Stansfield had knowledge of Hoffman's past cooperation and was
aware that some investigation, though not necessarily a federal
one, was underway. Moreover, though it is unclear whether
Stansfield was aware of it, the evidence also showed that federal
authorities had begun an investigation approximately one month
prior to the conduct in question. Given that Stansfield violated
several federal laws and based on the actions he took thereafter,
a jury could reasonably find beyond a reasonable doubt that the
attack was motivated, at least in part, by Stansfield's belief that
Hoffman might cooperate with federal authorities. See Gonzalez,
922 F.2d at 1054. We conclude that the evidence was sufficient to
support a conviction under 18 U.S.C. § 1512(a)(1)(C).
                                2.
                                a.
     Although Stansfield was indicted under 18 U.S.C. §
1512(a)(1)(C), the district court, without objection from counsel,
instructed the jury on a different but related offense, 18 U.S.C.
§ 1512(b)(3). After reading count XI of the indictment verbatim,
the district court instructed the jury: "Whoever knowingly uses
intimidation or physical force, with intent to hinder, delay, or
prevent the communication to a law enforcement officer of
information relating to the commission or possible commission of a
federal offense shall be guilty of a crime." App. at 104 (emphasis
added). This reflects the language of § 1512(b)(3), which
provides, in relevant part: "Whoever knowingly uses intimidation
or physical force [or] threatens . . . another person, or attempts
to do so, . . . 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" is guilty of a crime. The
district court proceeded to set forth and explain the elements of
a violation of § 1512(b)(3), not § 1512(a)(1)(C).
     Because there was no objection to the charge, Fed. R. Crim. P.52(b)
is implicated. The Rule provides: "Plain errors or defects
affecting substantial rights may be noticed although they were not
brought to the attention of the court." The concept of "plain
error" comprises four elements: (1) there must be an error, seeUnited
States v. Olano, 507 U.S. 725, 733-34, 113 S.Ct. 1770, 1777-
78 (1993); (2) the error must be "plain," meaning "clear" or
"obvious," id.; (3) the plain error must be one "affecting
substantial rights," i.e., "it must have been prejudicial: It must
have affected the outcome of the District Court proceedings," id.;
and (4) because "Rule 52(b) is permissive, not mandatory," the
court should correct plain error affecting substantial rights only
where the error (a) "causes the conviction or sentencing of an
actually innocent defendant," or (b) "`seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.'"
Id. at 735-36, 113 S.Ct. at 1778-79 (quoting United States v.
Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392 (1936)) (alteration
added).
     For our purposes the difference between § 1512(a)(1)(C) and §
1512(b)(3) is that the former includes an "attempt to kill" element
while the latter includes only a "uses intimidation or physical
force" element. The question we face, then, is whether the
omission of the "attempt to kill" element constituted plain error
and requires us to reverse Stansfield's conviction on Count XI. We
hold it does.
     This Court has declined to adopt a per se rule that the
omission of an essential element of an offense from jury
instructions constitutes plain error. See United States v. Xavier,
2 F.3d 1281, 1287 (3d Cir. 1993). However, we have also stated
that such an omission "`ordinarily constitutes plain error.'" Id.(quoting
Government of Virgin Islands v. Brown, 685 F.2d 834, 839
(3d Cir. 1982)) (emphasis in Xavier). See also United States v.
Retos, 25 F.3d 1220, 1231 (3d Cir. 1994); United States v.
Anderson, 859 F.2d 1171, 1176 (3d Cir. 1988); United States v.
Small, 472 F.2d 818, 819 (3d Cir. 1972). This "general rule . . .
is consistent with the Supreme Court's instruction that due process
requires `proof beyond a reasonable doubt of every fact necessary
to constitute the crime with which [the defendant] is charged.'"
Xavier, 2 F.3d at 1287 (quoting In re Winship, 397 U.S. 358, 364,
90 S.Ct. 1068, 1073 (1970)) (alteration added).
     The omission of an essential element of an offense from the
jury instructions usually will be obvious error, and therefore
ordinarily satisfies the first and second requirements of Olano,
507 U.S. at 733-34, 113 S.Ct. at 1777. We have little trouble in
concluding that the omission of the attempt to kill element in this
case satisfies those first two requirements. See generally Retos,
25 F.3d at 1229-30. We therefore turn to the cases that have
discussed the third and fourth steps of Olano.
     In Xavier, 2 F.3d at 1286, the defendant was convicted of
aiding and abetting the possession of a firearm by a convicted
felon. The jury was never instructed that knowledge of the status
of the primary wrongdoer (defendant's brother) as a felon was an
essential element of the crime. Concluding that the omission
constituted plain error, the court wrote that "there can be no
question that the failure to instruct had an impact on the jury's
deliberations, because the jury could not have been expected to
make a finding beyond a reasonable doubt as to [defendant's]
knowledge of his brother's status as a felon in the absence of an
instruction to do so." Id. at 1287. Thus, the third Olano step
was satisfied. The consequent effect on defendant's due process
rights were such that the error "seriously affected the fairness,
integrity or public reputation of judicial proceedings," which
satisfied Olano's fourth and final step. Id. (internal quotation
marks omitted).
     Similarly, in Retos, 25 F.3d at 1229-30, the district court
failed to instruct the jury that, to convict the defendant for
currency structuring in violation of 31 U.S.C. §§ 5322 and 5324(3),
it was required to find that he actually knew that such structuring
was unlawful, pursuant to the Supreme Court's decision in Ratzlaf
v. United States, 510 U.S. 135, ___, 114 S.Ct. 655, 663 (1994).
With respect to the third Olano step, we wrote that, because "the
evidence presented by the government on [the defendant's]
structuring count, while sufficient, was not conclusive . . . we
cannot be certain that the jury found beyond a reasonable doubt
that Retos knew his actions were unlawful, absent a specific
instruction from the district court judge." Id. at 1232. We then
concluded that, inasmuch as the defendant suffered "severe
prejudice," which is "a hallmark of manifest injustice," the
omission in the jury charge "`seriously affect[ed] the fairness'"
of the trial and satisfied the fourth Olano step. Id. at 1232
(quoting Olano, 507 U.S at 736, 113 S.Ct. at 1779) (alteration in
Retos).
     By contrast, in Anderson, 859 F.2d at 1176, the district court
had failed to instruct the jury that to find the defendant guilty
of a continuing criminal enterprise ("CCE"), it was required to
unanimously agree that he committed three violations of the federal
drug laws. However, the jury convicted the defendant of three
counts of heroin distribution and one count of conspiracy to
possess with intent to distribute heroin and cocaine, as well as
the CCE count. See id.. Thus, the jury necessarily made the
determination of guilt that was a predicate to conviction on the
CCE count even though it was not properly instructed. We refused
to find plain error because it was not possible that the jury did
not find the omitted element of the offense beyond a reasonable
doubt. See id.
     Such is not the case here. As in Xavier and Retos, the
omission of the "attempt to kill" instruction satisfies both the
third and fourth steps of the Olano analysis and constitutes plain
error. As for the third step, while there was overwhelming
evidence that Stansfield "use[d] intimidation or physical force"
against Dwight Hoffman, the evidence that he attempted to kill
Hoffman, while perhaps sufficient to support a conviction by a
properly instructed jury, was more sketchy and circumstantial in
nature. It is quite likely that the outcome on Count XI would have
been different given a proper charge. Even if we conclude that the
jury found beyond a reasonable doubt that Stansfield violated 18
U.S.C. § 1512(b)(3), that is a less serious offense, with a
statutory maximum sentence of ten years, as opposed to the twenty
year maximum provided for by § 1512(a)(1)(C). We conclude that the
error was not harmless.
     We also conclude that the fourth Olano step, that the error
"seriously affect[ed] the fairness, integrity or public reputation
of judicial proceedings," is satisfied by the failure to instruct
a jury that in order to convict a defendant of attempting to kill
another to achieve a desired result, the jury must find he actually
attempted to kill that person. Instructing a jury essentially that
this element may be satisfied by showing the defendant "merely"
intimidated or used physical force, and then adjudging him guilty
of the more serious crime, is the type of error that would impugn
the judicial system and bring it into disrepute.
     The government contends that the error was harmless and did
not "seriously affect the fairness, integrity or public reputation
of judicial proceedings." It argues that Stansfield never disputed
he attempted to kill Dwight Hoffman and the evidence was
overwhelming that he did. This argument is not persuasive. First,
the evidence was far from overwhelming or conclusive that
Stansfield attempted to kill Hoffman. Second, the government cites
only Stansfield's closing argument, in which his attorney conceded
that Stansfield "may well have intended to kill" the Hoffmans,
Supp. App. at 29, for the proposition that he did not dispute that
element of the offense. Even if this language were truly a
stipulation, which it is not, it concedes only that Stansfield
intended to kill Dwight Hoffman, not that he attempted to kill
Dwight Hoffman. Moreover, arguments of counsel are not evidence
but are merely comments on evidence. Stansfield's closing argument
did not relieve the government of its burden of proving beyond a
reasonable doubt that Stansfield attempted to kill Dwight Hoffman.
     We conclude that the omission of the "intent to kill" element
from the instructions given the jury constituted plain error.
Accordingly, Stansfield's conviction on Count XI for violating 18
U.S.C. § 1512(a)(1)(C) must be reversed and remanded for a new
trial.
                                b.
     Stansfield also argues that the district court erred by
failing to instruct the jury that the "law enforcement officer"
referred to in § 1512 be an existing federal officer actually
investigating the federal offense pursuant to 18 U.S.C. §
1515(a)(4). Stansfield did not contemporaneously object to the
instructions. The instruction given the jury was not in accord
with what we have held regarding this element of the offense. Seesupra at
22.
     On remand, the jury should be instructed that in order to find
Stansfield guilty of a violation of 18 U.S.C. § 1512(a)(1)(C), it
must find in addition to the other elements of the offense both
that he was motivated by a belief that the victim might communicate
with federal authorities concerning the commission or possible
commission of an offense, and that the offense in question is in
fact a federal offense. Given appropriate evidence, if the jury
finds the latter fact to exist, it may find the former to exist as
well.
                               III.
     The judgment of conviction entered September 15, 1995, is
affirmed as to Counts I, II, III, VI, VII, and XII. The judgment
of conviction on Count XI is reversed. The judgment of sentencing
on all counts is vacated. The case is remanded to the district
court for further proceedings consistent with this opinion.



United States v. Merritt G. Stansfield, Jr.
No. 95-7529


LEWIS, Circuit Judge, concurring and dissenting.
     I agree with the majority's analysis and conclusions in all
respects but one. As to Count XI of the indictment, which charged
Stansfield with witness tampering, I cannot agree with the
majority's conclusion that "the evidence was sufficient to support
a conviction under 18 U.S.C. § 1512(a)(1)(C)." Maj. Op. at 26. In
my view, this result rests upon an erroneous application of 18
U.S.C. § 1512(a)(1)(C), one which is not supported by either the
case law on which the majority relies or the language of the
statute itself. And our disagreement is significant not only
because of the effect the majority's application will have on the
government's burden of proof in future cases brought under this
statute, but because if the majority is correct Stansfield will in
all likelihood be retried on this twenty-year count, whereas if my
understanding is correct the appropriate disposition is a judgment
of acquittal due to the government's failure to introduce evidence
to sustain a conviction on this count.
     The majority purportedly rejects the government's argument
that it "need only prove that the offense about which the defendant
wishes to prevent communications is actually a federal offense."
Maj. Op. at 20 (emphasis added). Here, the majority and I are in
agreement, for the government's argument essentially asks that it
be required to prove nothing. Instead, the majority offers a four-
part construction of the statute, which requires the government to
prove, inter alia, that the defendant believed that the victim
might communicate with federal authorities. Id. at 22.
Unfortunately, the majority fails to apply its own construction of
the statute, finding Stansfield's conviction supportable based
solely on the federal nature of his offense and evidence showing
that a file had been opened by federal authorities. Stansfield's
intent is irrelevant under the majority's analysis. Contending
that Stansfield's intent "may be inferred," id., from the mere fact
that the underlying offense happened to be a federal offense, even
though the government offered absolutely no evidence to show that
Stansfield had any knowledge, awareness or belief that he had
committed a federal offense or was the subject of a federal
investigation, the majority essentially eviscerates the intent
element of the statute. I cannot agree with this analysis.
Instead, I believe the government must demonstrate, through direct
or circumstantial evidence -- but beyond a reasonable doubt -- that
Stansfield believed that the underlying offense was federal or was
being investigated by federal authorities with whom the victim of
the threats might communicate. It is this important element --
some evidence of the defendant's awareness of the federal nature of
his crime, which in turn could form the basis for his intent to
prevent a communication about it to a federal official -- that is
missing from both the majority's analysis and the government's
proof in this case. And while the majority concedes that proof of
either of these things would be sufficient to establish a
defendant's intent, it offers no explanation as to how else a
defendant's intent could possibly be established.
     Moreover, the majority's reliance on case law from other
circuits to support its conclusion is misguided. The question
presented in Romero, Edwards, and Leisure was whether § 1512
required the presence of an ongoing federal investigation to
support a conviction for witness tampering under the statute. SeeUnited
States v. Romero, 54 F.3d 56 (2d Cir. 1995), cert. denied,
___ U.S. ___, 116 S. Ct. 1449 (1996); United States v Edwards, 36
F.3d 639 (7th Cir. 1994); United States v. Leisure, 844 F.2d 1347
(8th Cir. 1988). While it is true that these cases rejected the
requirement of an ongoing investigation, they do not support the
majority's conclusion here that a defendant's intent can be
inferred, without more, by the mere fact that the defendant
committed a federal crime. On the contrary, in each of these cases
the defendant had knowledge of the federal nature of the crime and
of the consequent potential of a federal investigation. In
Romero, for example, the court noted that "members of [the
defendant's] organization had become suspicious that [the witness]
was cooperating with federal authorities." Romero, 54 F.3d at 59.
And in Edwards, the government presented testimony which indicated
that the defendants killed the victim "because they feared he was
informing the DEA about their operations." Edwards, 36 F.3d at 645
(emphasis added). Thus, although the government need not prove the
presence of an ongoing federal investigation, it must at least
prove "that the defendant believed that a person might furnish
information to federal officials and that he killed or attempted to
kill that person in order to prevent such disclosure." Id.(emphasis
added) (citing Leisure, 844 F.2d at 1364).
     Title 18 U.S.C. § 1512(a)(1)(C) provides: "Whoever kills or
attempts to kill another person with intent to prevent the
communication by any person to a law enforcement officer . . . of
the United States of information relating to the commission or
possible commission of a Federal offense" shall be imprisoned for
up to twenty years. As the majority notes, "law enforcement
officer" is defined as "an officer or employee of the Federal
government, or a person authorized to act for or on behalf of the
Federal government . . . ." 18 U.S.C. § 1515(a)(4)(A). Thus, at
a minimum, the government must prove that the defendant believed
that there was a possibility of a federal investigation.
     The majority is overly generous to the government, however, in
stating that Stansfield "was aware that some investigation, though
not necessarily a federal one, was under way," and concluding that
this is enough to support his conviction. Maj. Op. at 25-26. In
fact, the government did not introduce any evidence to suggest that
Stansfield could have known of the possibility of a federalinvestigation.
The evidence only established that Stansfield knew
that the Pennsylvania State Police and Erie Insurance Company were
interviewing potential witnesses and pursuing an investigation, and
that Hoffman had been interviewed by both. It is obvious from the
evidence that he was angry that Hoffman might be cooperating with
a state official (who happened to be the only law enforcement
officer conducting any investigation at that time), not a federal
official. We don't know, and the government has not shown, that he
even had any reason to believe that his offenses were federal in
nature, or that the victims might communicate with federal
authorities. In light of the total lack of evidence in this
respect, I am perplexed by the majority's conclusion that a jury
could have concluded beyond a reasonable doubt that Stansfield
believed that Hoffman might cooperate with federal authorities.
There is simply no basis in the record to justify this conclusion.
     Moreover, while the majority states that "the evidence also
showed that federal authorities had begun an investigation
approximately one month prior to the conduct in question[,]" id. at
26, in fact, the evidence showed that Postal Inspectors had merely
opened a file on the case and had done nothing more. But unless he
had a mole inside the Postal Inspection Service or was clairvoyant,
Stansfield surely was not aware that a file had been opened. And
since nothing else of a federal investigative nature had occurred,
Stansfield could not have known that a federal investigation (if
that's what opening a file is) was in the works.
     On the record before us, therefore, there is simply no way to
conclude that Stansfield either believed that a federal
investigation was underway or could possibly have been aware of the
potential for a federal investigation. While it is easy for those
of us versed in the federal law to conclude, as the majority does,
that "the underlying offense clearly was a federal offense[,]" id.at 25,
Stansfield is neither a lawyer nor a judge, and the
government has yet to demonstrate, even remotely, that Stansfield
had reason to believe that the underlying offense was federal in
nature, or had reason to believe that Hoffman might have talked to
"an officer or employee of the federal government" (which he had
not), or might do so in the future. He could not possibly have
intended to frustrate a communication he had no reason to believe
might occur, to a person he had no reason to believe existed.
     Despite the majority's protestations to the contrary, the
effect of the majority's construction and application of this
important statute is not only to diminish, but as a practical
matter to remove, the government's burden of proof. Unlike the
cases on which the majority relies, here the government did not
prove that Stansfield believed or was aware of the possibility or
existence of a federal investigation, yet the majority finds that
lack of proof irrelevant because, once again, it can be "inferred"
from the fact that Stansfield's underlying offense just happened to
be a federal offense. To relieve the government of its burden of
proving an important element of a criminal offense is a serious
step, and I believe the majority's approach here is seriously out
of step with both the case law and the statute.
     I would enter a judgment of acquittal on Count XI. I concur
in the remainder of the majority opinion.
