                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 12-7301


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

TERRENCE SMITH,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:05-cr-00061-JFM-6; 1:11-cv-00953-JFM)


Argued:   May 14, 2013                      Decided:   July 25, 2013


Before TRAXLER, Chief Judge, and NIEMEYER and FLOYD, Circuit
Judges.


Affirmed by published opinion.        Judge Niemeyer wrote the
opinion, in which Chief Judge Traxler and Judge Floyd joined.


ARGUED:      C. Justin Brown, LAW OFFICE OF C. JUSTIN BROWN,
Baltimore,    Maryland, for Appellant.  Albert David Copperthite,
OFFICE OF    THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.    ON BRIEF: Rod J. Rosenstein, United States Attorney,
Baltimore,   Maryland, for Appellee.
NIEMEYER, Circuit Judge:

       In his § 2255 motion, filed in the district court, Terrence

Smith challenged the jury instruction given in his underlying

trial for witness tampering as defined in 18 U.S.C. § 1512(a).

Specifically, Smith argued that the instruction misstated the

federal       nexus     required    for    the    offense,    given       the    Supreme

Court’s decision in Fowler v. United States, 131 S. Ct. 2045

(2011).       Fowler, which was handed down after Smith’s conviction

became final, abrogated Fourth Circuit precedent on which the

jury instruction was based.                The district court concluded that

the    instruction        did    indeed    violate       Fowler    and    that   Fowler

created       a   new   substantive       right   that    should    be    afforded     to

Smith.       But it found that the effect or influence of the error

was harmless and therefore denied Smith’s § 2255 motion.

       In reviewing the district court’s order, we apply to this

§ 2255       case   the   same     harmless-error    standard       that    we    do   in

§ 2254 cases, as articulated in Brecht v. Abrahamson, 507 U.S.

619, 623 (1993) (holding that error is harmless if it did not

have     a    “substantial       and    injurious    effect        or    influence     in

determining         the   jury’s       verdict”    (internal       quotation      marks

omitted)), rather than the standard of review for harmless error

on direct appeal, see Chapman v. California, 386 U.S. 18, 24

(1967) (holding that on direct appeal, an error must be harmless

beyond a reasonable doubt).               Under Brecht, we conclude that the

                                            2
instructional error did not have a substantial and injurious

effect   or    influence     in    determining     the   jury’s     verdict.     We

therefore     find   that    the    error   was    harmless    and    accordingly

affirm the district court’s order denying Smith’s § 2255 motion.


                                        I

     On January 15, 2005, members of the Bloods gang in the

Harwood neighborhood of Baltimore, Maryland, firebombed the home

of Edna McAbier, who was the president of the Harwood Community

Association.       On the night of the attack, Terrence Smith, the

leader of the gang, called a meeting of the gang’s membership at

his house and told them that he wanted to firebomb McAbier’s

house in retaliation for her contacting the police about drug

activity      in   the   neighborhood.            McAbier     had    indeed    been

contacting the Baltimore City Police Department “[p]ractically

every day” by telephone or email about drug-related activity in

her neighborhood and had provided the Department with a detailed

log of criminal activity in the community, complete with names

and addresses of suspected individuals.                  Following the gang’s

meeting, members carried out the attack, using gasoline-filled

beer bottles.

     Smith and other gang members were indicted and convicted

for this conduct.           Among the five counts on which Smith was

convicted, three involved witness tampering:                    two substantive


                                        3
counts for violations of 18 U.S.C. § 1512(a)(1)(C) and 18 U.S.C.

§ 1512(a)(2)(C), respectively, and one conspiracy count.

     At the close of the government’s case, Smith filed a motion

for a judgment of acquittal, arguing that the government had

failed to establish the federal nexus required to convict him

under       the   witness   tampering         statutes     because       the   government

failed to show that McAbier had contacted federal authorities or

was likely to do so. ∗             The government argued that the federal

nexus       was   established       as    a       matter    of     law    because     drug

trafficking,        about      which    McAbier      complained,         was   a   federal

offense.          After   an    extended      discussion,        the     district    court

denied Smith’s motion for acquittal but granted a motion by the

government to reopen its case to present additional evidence

regarding the likelihood that McAbier’s complaints would have

been referred to federal authorities.

        Special     Agent      Robert    Brisolari     of    the    Drug       Enforcement

Administration (“DEA”) then testified that the Baltimore City

Police Department was the “biggest source” of referrals for drug

        ∗
       Prescribing the federal nexus, § 1512(a)(1)(C) punishes
“[w]hoever . . . attempts to kill another person, with intent to
. . . prevent the communication by any person to a law
enforcement officer or judge of the United States of information
relating to the commission or possible commission of a Federal
offense”; and § 1512(a)(2)(C) punishes “[w]hoever uses physical
force . . . 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.”


                                              4
cases    to   his   field   office   and    that   it   contributed    the       most

officers to local DEA task force groups.                He stated that six of

the nine task force groups in the area were joint task forces,

“meaning that they’re comprised of [federal] agents as well as

sworn task force officers from other police departments.”                         He

also explained that the DEA accepts cases that “are considered

street level trafficking,” especially when “street level drug

organizations       [are]   involved       in   crack    cocaine,     heroin      or

cocaine.”

     At the close of the evidence, the district court instructed

the jury that to establish the necessary mens rea for witness

tampering, the government must prove that Smith “acted knowingly

and with the unlawful intent to induce Mrs. McAbier to hinder,

delay,   or   prevent   the   communication        of   information   to     a   law

enforcement officer of the United States.”              The court continued:

     In order to satisfy [the intent] element, it is not
     necessary for the government to prove that the
     defendant knew he was breaking any particular criminal
     law nor need the government prove that the defendant
     knew that the law enforcement officer is a federal law
     enforcement officer.   What the government must prove
     is that there was a possibility or likelihood that the
     information being provided by Ms. McAbier about drug
     activities would be communicated to a law enforcement
     officer of the United States, irrespective of the
     governmental authority represented by the officers to
     whom she personally communicated information.

(Emphasis added).




                                       5
     The jury convicted Smith on all counts, and the district

court   sentenced     him    to    960       months’   imprisonment.           On    direct

appeal, Smith argued that the district court misinstructed the

jury on the witness tampering counts, and we rejected Smith’s

arguments,       finding    that       the    federal    nexus       required       by    the

offense    was    satisfied       because      “[a]    portion    of    the     potential

investigation that [the defendant] sought to prevent ‘happened

to be federal’ because drug trafficking is a federal offense.”

United States v. Harris, 498 F.3d 278, 286 (4th Cir. 2007).                                We

explained further, “So long as the information the defendant

[sought] to suppress actually relate[d] to the commission or

possible      commission     of    a    federal    offense,      the    federal          nexus

requirement      [was]     established.”          Id.        Responding       to    Smith’s

argument that the government failed to prove the “‘possibility’

that the information that McAbier would have provided would have

been communicated to federal authorities,” we stated that “the

federal nature of the offense at issue at least created the

possibility that she might have decided in the future to contact

federal authorities.”             Id. at 286 n.5.             Although we affirmed

Smith’s    convictions,           we    remanded       the    case     to     correct        a

sentencing error.

     At resentencing, Smith again received a 960-month sentence,

and we thereafter affirmed.                   United States v. Smith, 344 F.

App’x   856    (4th   Cir.    2009)      (per     curiam).       The    Supreme          Court

                                              6
denied Smith’s petition for a writ of certiorari.                                      Smith v.

United States, 130 S. Ct. 2417 (2010).

       On April 12, 2011, Smith filed a motion under 28 U.S.C.

§ 2255, raising numerous issues regarding the effectiveness of

his    trial    counsel.         Shortly       thereafter,           the     Supreme      Court

decided      Fowler    v.    United      States,        131     S.     Ct.     2045      (2011)

(rejecting the “possibility” of a federal communication as the

appropriate      standard        for    satisfying        the        federal      nexus        and

holding      that     the   government          had     to     prove       a      “reasonable

likelihood”      of    such      communication).               Smith       then        filed    a

supplement      to    his    §    2255    motion,        challenging           the      witness

tampering instruction at his trial, inasmuch as the instruction

allowed the jury to find that the defendant interfered with the

mere   “possibility”        of    the    witness’       communication             to    federal

authorities.

       The     district     court       acknowledged          the      applicability           of

Fowler’s       holding      to    Smith’s        trial        but      found       that        the

instructional error was harmless.                     It noted that “the evidence

at trial established that federal and local authorities worked

closely with one another through DEA task forces and that the

task      forces       targeted          the      very          type         of        criminal

activity -- violent           street      drug        trafficking.”               The     court

concluded that it was “virtually inevitable that the information



                                            7
provided      by    Ms.    McAbier      would       eventually      be   communicated    to

federal authorities and that federal prosecution would ensue.”

     Smith filed a timely notice of appeal, and the district

court granted his motion for a certificate of appealability.


                                              II

     In instructing the jury at the underlying trial on federal

witness tampering, the district court stated, as relevant to the

required federal nexus of the conduct, that the government must

prove    that      “there     was   a   possibility          or   likelihood     that    the

information being provided by Ms. McAbier about drug activities

would be communicated to a law enforcement officer of the United

States.”           The    instruction      given       was    consistent       with   then-

existing Fourth Circuit precedent, as we recognized on Smith’s

direct appeal.            See United States v. Harris, 498 F.3d 278, 284-

86 (4th Cir. 2007).

     After Smith’s conviction became final and he had filed his

§ 2255 motion, the Supreme Court handed down its decision in

Fowler   v.     United       States,    131     S.    Ct.    2045    (2011),    in    effect

overruling         Harris.      Fowler     held       that    the    witness     tampering

statute, 18 U.S.C. § 1512, requires the government to show a

“reasonable likelihood” that, had the victim communicated with

law enforcement officers, at least one of the communications

would have reached a federal officer.                       Id. at 2052.       In defining


                                                8
the reasonable-likelihood standard, the Court explained that the

government    “need       not    show       that   such   a    communication,            had    it

occurred, would have been federal beyond a reasonable doubt, nor

even that it [was] more likely than not.”                          Id. (emphasis added).

But the government is required to show “that the likelihood of

communication        to   a     federal       officer        was     more       than     remote,

outlandish,     or    simply         hypothetical.”           Id.;        see    also     United

States   v.     Ramos-Cruz,          667     F.3d     487,     495       (4th     Cir.     2012)

(applying the Fowler standard).

     In considering Smith’s § 2255 motion, the district court

agreed   with    Smith     that       Fowler       created    a     new    right       that    was

applicable to Smith and that, under Fowler, the instruction that

it gave was now erroneous.                  But it concluded that the error was

harmless.

     Smith now contends either that the error was structural and

therefore not subject to harmless-error analysis or that it was,

in fact, not harmless.

     To begin with, we agree that the Fowler right has been

“newly   recognized”            by    the     Supreme     Court          and    that     it    is

retroactively applicable to cases on collateral review.                                  See 28

U.S.C. § 2255(f)(3); Teague v. Lane, 489 U.S. 288 (1989).                                      The

Fowler   right,      by    changing         the    standard        for    determining          the

federal nexus in witness tampering, placed the conduct covered

by the district court’s jury instruction beyond the scope of

                                               9
conduct made criminal by the statute.                See United States v.

Bousley, 523 U.S. 614, 620 (1998).

     That    brings    us   to   Smith’s     first   argument   --   that   the

instructional error was “not amenable to harmless error review,”

because it was “a fundamental error in the proceedings.”                    See

Sullivan v. Louisiana, 508 U.S. 275, 279-82 (1993).                  In short,

he argues that the error was structural and thus subject to

automatic reversal.

     It is true that structural errors “require reversal without

regard to the evidence in a particular case,” United States v.

Curbelo, 343 F.3d 273, 281 (4th Cir. 2003) (internal quotation

marks   omitted),     because    they   “affect[]    the    framework   within

which the trial proceeds, rather than simply an error in the

trial process itself,” Arizona v. Fulminante, 499 U.S. 279, 310

(1991).     But the Supreme Court has found errors to be structural

in only a “very limited class of cases.”                   Johnson v. United

States, 520 U.S. 461, 468 (1997).             Thus, “if the defendant had

counsel and was tried by an impartial adjudicator, there is a

strong presumption that any other errors that may have occurred

are subject to harmless-error analysis.”                Rose v. Clark, 478

U.S. 570, 579 (1986).

     The instructional error in this case, which related only to

the federal nexus for witness tampering, did not taint the trial

“from beginning to end,” nor did it undermine “the framework

                                        10
within which the trial proceed[ed].”                     Fulminante, 499 U.S. at

309-10.      Indeed, the Supreme Court has noted that even a “jury

instruction        that    omits   an     element   of    the     offense”   does   not

“necessarily render a trial fundamentally unfair.”                           Neder v.

United States, 527 U.S. 1, 8 (1999) (emphasis added) (internal

quotation marks omitted); see also United States v. Jefferson,

674   F.3d    332,        362-64   (4th    Cir.     2012)    (reviewing      erroneous

honest-services wire fraud jury instruction for harmlessness).

Inasmuch as the district court misinstructed the jury on only an

element of the witness tampering offense, we conclude that the

error does not fall within that narrow category of structural

errors that are immune to harmless-error analysis.

      Smith contends that even if we conduct a harmless-error

analysis,     we    should     apply    the   standard      of    review   for   direct

appeals stated in Chapman v. California, 386 U.S. 18 (1967), and

not the standard of review for collateral appeals set forth in

Brecht v. Abrahamson, 507 U.S. 619 (1993).                        Under Chapman, an

error is harmless if it is “clear beyond a reasonable doubt that

a rational jury would have found the defendant guilty absent the

error.”      Neder, 527 U.S. at 18 (interpreting Chapman, 386 U.S.

at    24).         By     contrast,     under     Brecht,        “the   standard    for

determining whether habeas relief must be granted is whether the

. . . error ‘had substantial and injurious effect or influence

in determining the jury’s verdict.’”                     Brecht, 507 U.S. at 623

                                            11
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).

Smith argues that the Chapman standard “is more appropriate in

this   case    because         the     constitutional         error     was    not    revealed

until after the appeal was perfected, and therefore there exists

no need to defer to the decision below, as Brecht urges.”

       Although         the    Brecht       standard    clearly       applies    in    §   2254

habeas   cases,         the     Supreme       Court     has    not    directly       addressed

whether it applies in § 2255 cases.                      Nor have we addressed that

question.          See United States v. Owen, 407 F.3d 222, 229 (4th

Cir. 2005) (“In the context of a section 2255 motion alleging

constitutional error, such as Owen’s, the Fourth Circuit has not

decided whether the harmless-beyond-a-reasonable-doubt standard

of Chapman applies, as it would on direct appeal, or whether the

less stringent test of Brecht v. Abrahamson applies, as it would

on   review        of    a    section       2254     petition”       (internal       citations

omitted)).         After a careful reading of both Brecht and Chapman,

we now conclude that the standard set forth in Brecht applies to

§ 2255 cases.

       In Brecht, the defendant challenged his state conviction

pursuant to 28 U.S.C. § 2254 on the grounds that the State used

his post-Miranda silence for impeachment.                            Brecht, 507 U.S. at

626.     The       Court      rejected       Chapman’s        beyond-a-reasonable-doubt

standard,      noting         that    the    “substantial       and    injurious       effect”

standard      is    “better          tailored      to   the    nature    and     purpose    of

                                                12
collateral         review     .    .    .    and    application         of        a    less    onerous

harmless-error          standard        on    habeas      promotes          the       considerations

underlying our habeas jurisprudence.”                            Id. at 623.              The Court

then     identified         several          reasons      for    distinguishing                between

direct       and    collateral            review,        including:               (1)    structural

differences between the two forms of review; (2) the “finality

of convictions that have survived direct review within the state

court system”; (3) “comity and federalism”; and (4) the notion

that     “liberal       allowance            of    the    writ     .    .     .       degrades       the

prominence         of   the       trial      itself.”        Id.       at    633-35        (internal

quotation marks omitted).

       To    be     sure,     Brecht         is    distinguishable            from       this       case

because      in    Brecht      the      state      court    system          had       evaluated      the

claimed error on direct appeal.                          A § 2255 case, on the other

hand,       originates        in     federal        court     and      therefore          does       not

implicate         the   comity         and    federalism         factor       that       the        Court

considered in Brecht; there is no risk of “[f]ederal intrusions

into     state      criminal         trials”        because      state        courts          are    not

involved.          Brecht, 507 U.S. at 635 (internal quotation marks

omitted).

       The other three factors identified in Brecht, however, are

fully and directly applicable to collateral review under § 2255.

First, the structural nature of collateral review is the same

for both § 2254 and § 2255 cases -- in both, the court must

                                                   13
decide whether a defendant is in custody “in violation of the

Constitution     or     laws   of   the    United     States.”          28    U.S.C.   §

2255(a); 28     U.S.C.     § 2254(a).          Second,   society        has   the    same

interest in the finality of federal convictions as it does in

state convictions.         See United States v. Frady, 456 U.S. 152,

166   (1982)    (“But    the   Federal      Government,      no      less     than   the

States,   has    an     interest    in     the    finality      of      its   criminal

judgments”).     And finally, the risk of degradation of the writ

is present in both federal § 2255 cases as in state-habeas §

2254 cases.

      Moreover, the fact that the Fowler issue was not addressed

by the district court in the first place and by the court of

appeals on direct review under Chapman does not preclude the

application of Brecht.         The Supreme Court has applied the Brecht

standard to a § 2254 case even when no lower court has conducted

a Chapman review of the alleged error.                   See Penry v. Johnson,

532 U.S. 782, 791, 795 (2001) (applying Brecht’s “substantial

and injurious effect” test where the state court did not conduct

a   harmlessness      review   under      Chapman   because       the    state      court

determined that no constitutional error had occurred); see also

Herrera v. Lemaster, 301 F.3d 1192, 1200 (10th Cir. 2002) (“Even

though    no    party     in    Penry      asserted      that     Brecht       was     an

inappropriate standard, we are not inclined to disregard this

clear signal from the Court that Brecht applies to an AEDPA case

                                          14
even when no proper harmless error assessment occurred in state

court”).

       We conclude, therefore, that the Brecht standard of review

for harmlessness is better suited to § 2255 cases than is the

Chapman standard applicable to direct appeals.

       In applying Brecht to § 2255 cases, we join other courts of

appeals that have done so.           See, e.g., United States Dago, 441

F.3d 1238, 1246 (10th Cir. 2006) (“[W]e hold that the Brecht

standard applies when conducting a harmless-error review of a §

2255 petitioner's claim that the jury in his or her trial was

[improperly] instructed”); United States v. Montalvo, 331 F.3d

1052, 1058 (9th Cir. 2003) (per curiam) (same); Ross v. United

States, 289 F.3d 677, 682 (11th Cir. 2002) (“[A]pplication of

the Brecht standard to [an instructional] error on collateral

appeal is the appropriate approach”); Murr v. United States, 200

F.3d 895, 906 (6th Cir. 2000) (noting that “for purposes of

federal     habeas   corpus      review,    a   constitutional          error   that

implicates trial procedures shall be considered harmless unless

it    had   a   ‘substantial   and   injurious     effect     or    influence     in

determining the jury's verdict’”); see also Santana-Madera v.

United States, 260 F.3d 133, 140 (2d Cir. 2001) (concluding that

an instructional error was harmless under either the Brecht or

the    Chapman     standard    but    noting     that   “[g]enerally,           when

evaluating       presumptively     correct      convictions        on    collateral

                                       15
habeas      review,    the     harmless         error     inquiry        for    errors       of   a

constitutional dimension is whether the error had substantial

and    injurious      effect    or    influence          in   determining            the    jury's

verdict” (internal quotation marks omitted)).                            But see Lanier v.

United      States,    220    F.3d       833,     839    (7th    Cir.     2000)       (applying

Chapman on § 2255 review).

       In     sum,    we     hold    that        Brecht’s       harmless-error              review

standard,       applicable     to    §    2254       cases,     is   also      applicable         to

§ 2255 cases.         Accordingly, we review error for harmlessness in

§    2255    cases    for    whether        the      error    had    a    substantial          and

injurious effect or influence in determining the jury’s verdict.


                                             III

       In arguing that the instructional error was not harmless,

Smith observes that it is “impossible to say” whether he would

have     been    convicted      of       witness        tampering        had    the        correct

“reasonable likelihood” instruction been given.                                But the issue

is    more    refined.         We    must       determine       whether        the    erroneous

instruction had a substantial and injurious effect or influence

on the jury’s verdict, and to resolve this, we consider the

effect or influence that the erroneous instruction had in light

of the evidence presented.

       Here, the jury was instructed that to prove the federal

nexus    of     witness      tampering,         the     government       must        prove   that


                                                16
“there    was    a     possibility         or    likelihood       that      the       information

being    provided       by      Ms.      McAbier       would    be    communicated           to     a

[federal] law enforcement officer.”                          Fowler rejected the use of

the     word    “possibility”            but     approved       the   use        of    the        word

“likelihood.”          Because the district court used the words in the

disjunctive, the jury was left to consider the “possibility”

standard, which Fowler rejected.

      Nonetheless,            in    approving          the     use    of     a        “reasonable

likelihood” standard, the Fowler Court constricted a dictionary

definition of likelihood -- meaning a “probability,” Merriam-

Webster’s       Collegiate         Dictionary          721    (11th   ed.     2007)         --     and

stated explicitly that in using the word likelihood, it did not

mean “more likely than not.”                     Fowler, 131 S. Ct. at 2052.                       The

Court’s standard demands much less, requiring the government to

show only that “the likelihood of communication to a federal

officer        was     more        than         remote,        outlandish,            or     simply

hypothetical,” id., a relatively low bar.

      Properly understood, therefore, the “reasonable likelihood”

standard in Fowler requires that the government establish the

federal        nexus       by      presenting           evidence       showing             that     a

communication with a federal officer was more than a possibility

but   less     than    a   probability,           so    long     as   the    chance         of     the

communication           was        not      remote,           outlandish,         or         simply

hypothetical.

                                                 17
       In applying this standard to the record in this case, we

conclude that the instructional error did not have “substantial

and    injurious       effect   or     influence      in   determining          the    jury’s

verdict.”        Brecht, 507 U.S. at 623.             The evidence satisfying the

“reasonable likelihood” standard was substantial.                            McAbier was

complaining about large scale gang activity and drug trafficking

in     her   neighborhood.           To     be     sure,    the     presence      of    drug

trafficking alone might not be enough to satisfy the “reasonable

likelihood”        standard,         but     the     federal        nature        of    drug

trafficking,       plus    “additional       appropriate          evidence”      does    meet

the standard.          United States v. Bell, 113 F.3d 1345, 1349 (3d

Cir. 1997) (noting that federal nexus in § 1512(a)(1) “may be

inferred by the jury from the fact that the offense was federal

in     nature,     plus    additional        appropriate          evidence”      (internal

citation omitted)); see also United States v. Ramos-Cruz, 667

F.3d    487,     497    (4th    Cir.      2012)    (adopting       the    Third       Circuit

standard).

       Here, the government did put forth “additional appropriate

evidence”        showing    the      reasonable       likelihood         that    McAbier’s

reports would have been brought to the attention of federal law

enforcement       officers.       DEA      Special    Agent       Brisolari       testified

that the DEA field office’s “biggest source of information” was

the Baltimore City Police Department and that the DEA worked in

close    cooperation       with   the      Baltimore       City    Police       Department,

                                             18
specifically mentioning its participation in six of nine task

forces.   Agent Brisolari also noted that even street level drug

cases come to the attention of the DEA.   This case also involved

gang activity, elevating the profile of the drug trafficking.

     In short, we conclude that the instructional error in this

case was harmless as defined in Brecht.     The district court’s

denial of Smith’s § 2255 motion is accordingly

                                                        AFFIRMED.




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