                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-22-1997

United States v. Bell
Precedential or Non-Precedential:

Docket 96-7654




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Filed May 22, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 96-7654

UNITED STATES OF AMERICA,

v.

ROBERTA RONIQUE BELL,
Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 95-163)

Argued: April 15, 1997

Before: GREENBERG, ALITO, and SEITZ, Circuit Judges

(Opinion Filed: May 22, 1997)

RICHARD K. RENN (Argued)
SNYDER & RENN
149 East Market Street
York, PA 17401

Attorney for Appellant

DAVID M. BARASCH
UNITED STATES ATTORNEY

GORDON A.D. ZUBROD (Argued)
Assistant U.S. Attorney
P.O. Box 11754
Harrisburg, PA 17108

Attorneys for Appellee
OPINION OF THE COURT

ALITO, Circuit Judge:

Appellant Roberta Ronique Bell was convicted following a
jury trial of conspiracy, in violation of 18 U.S.C. § 371;
murder of a witness, in violation of 18 U.S.C. § 1512(a)(1)(A)
and (C); use of physical force and threats against a witness,
in violation of 18 U.S.C. § 1512(b)(1), (2), and (3); and use
of a firearm during the commission of a crime of violence,
in violation of 18 U.S.C. § 924(c)(1). She was sentenced to
life imprisonment. These charges all relate to the killing of
Doreen Proctor, who had been acting as an informant for
the Tri-County Drug Task Force. Before Bell was indicted
on these federal charges in June 1995, she had been
acquitted in the Court of Common Pleas for Adams County
of murder and witness intimidation charges arising out of
the same events.

Bell's principal argument in this appeal is that her
convictions on the witness tampering charges must be
reversed because there was insufficient evidence that she
intended to interfere with a federal proceeding or to prevent
the communication of information to federal law
enforcement officers. We hold that the jury was entitled to
conclude (1) that Bell intended to prevent communications
by Proctor to law enforcement officers and (2) that under
United States v. Stansfield, 101 F.3d 909 (3d Cir. 1996), at
least one of those communications would have been to a
federal officer. Accordingly, we affirm.

I.

Doreen Proctor was an informant for the Tri-County Drug
Task Force ("the Task Force"), which was comprised of
local, state, and federal investigators operating in
Cumberland, Dauphin, and Franklin Counties in
Pennsylvania. The Task Force had developed federal as well
as state criminal cases. Based on an investigation by the
Task Force in which Proctor had provided information,
David Tyler (who was Bell's boyfriend and colleague in the

                    2
drug business) was on trial for drug offenses in state court.
Proctor was scheduled to testify against Tyler on April 21,
1992, in the Court of Common Pleas for Cumberland
County. In the early morning of April 21, at the direction of
David Tyler, Bell and several others kidnapped Proctor,
took her to an isolated location in Adams County, tortured
her, and killed her. Bell drove Proctor to the place where
she was killed, and fired the first shot, into Proctor's chest.
Willie Tyler, David Tyler's brother, then shot Proctor in the
head.

Several of Bell's co-conspirators were convicted in state
court of murder and/or witness intimidation. Bell, however,
was acquitted in April 1993. Federal authorities then began
their own investigation into Proctor's murder, which
culminated in the convictions that are the subject of this
appeal.1

Before trial, Bell moved to dismiss the indictment on
double jeopardy and related grounds. The district court
denied this motion in September 1995. Following trial, Bell
moved for judgment of acquittal or a new trial, renewing
her double jeopardy argument and contending that there
was insufficient evidence to sustain her convictions on the
witness tampering charges because Proctor was not a
federal witness. In addition to challenging the sufficiency of
the evidence, Bell contended that the court erred in its
charge to the jury on the issue of her intent to interfere
with a federal proceeding or investigation. She also
advanced the related argument that without a connection
between Proctor and a federal proceeding or a federal
investigation, the court lacked jurisdiction. The court
denied this motion in a memorandum opinion filed in June
1996. At her sentencing hearing, Bell argued that it was
error to use the first-degree murder guideline in computing
her sentence on the 18 U.S.C. § 1512(a) intimidation count
_________________________________________________________________

1. Willie Tyler is the only co-conspirator of Bell's to have been similarly
prosecuted in federal court after the state prosecution. He was acquitted
of murder and convicted of witness intimidation in the state trial, and
served two years in prison. He was then convicted of the same offenses
as Bell following a trial in the Middle District of Pennsylvania (No. 1:CR-
96-106).

                    3
(as the pre-sentence report recommended) because the jury
never determined that Bell committed first-degree murder.
The court rejected this argument. (App. 21A-30A)

On appeal, Bell raises these same contentions. In
evaluating Bell's sufficiency challenge, we must view the
evidence in the light most favorable to the government (the
verdict-winner) and ask "whether any rational trier of fact
could have found the essential elements of the crime
beyond a reasonable doubt." United States v. Price, 13 F.3d
711, 731 (3d Cir. 1994). Since the remainder of Bell's
contentions pose questions of law, our review as to them is
plenary.

II.

Subsection (a)(1) of 18 U.S.C. § 1512 ("Tampering with a
witness, victim, or an informant") makes it unlawful to kill
or attempt to kill another person "with intent to -- (A)
prevent the attendance or testimony of any person in an
official proceeding; [or] (C) 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 . . . ." Subsection
(b) of 18 U.S.C. § 1512 prohibits the knowing use of
intimidation, physical force, threats, and corrupt
persuasion to accomplish these ends.

Title 18 U.S.C. § 1515(a)(1) defines an "official
proceeding" as a federal proceeding, whether before a court,
a grand jury, Congress, or a government agency. Similarly,
18 U.S.C. § 1515(a)(4) defines a "law enforcement officer" as
"an officer or employee of the Federal Government, or a
person authorized to act for or on behalf of the Federal
Government . . . ." While the statute thus limits its reach
to tampering that affects a federal proceeding or
investigation, it expressly does not require that the
defendant know or intend anything with respect to this
federal character. Title 18 U.S.C. § 1512(f) provides: "no
state of mind need be proved with respect to the
circumstance -- (1) that the official proceeding before a
judge [or] court . . . is before a judge or court of the United
States . . . or (2) that the . . . law enforcement officer is an

                    4
officer or employee of the Federal Government or a person
authorized to act for or on behalf of the Federal
Government . . . ."

A. In the district court's view, the government was
required to prove only that "the Defendant intended to
interfere with a proceeding (that happened to be a federal
proceeding) or interfere with communication to a law
enforcement officer (who happened to be a federal law
enforcement officer)." Dist. Ct. Op. at 7. If the government
had presented evidence that it was contemplated that
Proctor would testify in a federal proceeding, the jury could
easily have inferred that at least one of the proceedings
with which Bell intended to interfere would have been
federal. But there was no federal proceeding contemplated
at the time of Proctor's murder.2 Similarly, if the
government had presented evidence that at the time of her
murder Proctor was cooperating in an ongoing federal
investigation, the jury could easily have inferred that at
least one of the law-enforcement-officer communications
that Bell intended to prevent would have been with a
federal officer. But, while federal officers were involved in
the Task Force investigation, there is no evidence that
Proctor had been providing information to a federal officer
or to an officer authorized to act on behalf of the federal
government.

Accordingly, in this case, as in United States v.
Stansfield, 101 F.3d 909 (3d Cir. 1996), we must rely on
circumstantial evidence to decide whether the jury could
have concluded that at least one of the law-enforcement-
officer communications that Bell intended to prevent would
have been with a federal officer. In Stansfield, the
defendant believed that one Hoffman had told the
authorities that Stansfield had burned down his
_________________________________________________________________

2. The government contends that "federal proceedings were, in fact,
contemplated as the result of the victim's discussions with Special Agent
Diller. (App. Vol. 2, pp. 45, 46)." Govt. Br. at 23. Diller's testimony does
not bear this characterization. He did not say anything that can be
construed to mean that the Task Force had already decided at the time
of Proctor's murder to make a federal case out of the drug trade in which
Tyler, Bell, and others were engaged, or that it had even thought about
doing so.

                    5
(Stansfield's) house to collect the insurance money.
Stansfield threatened, beat up, and attempted to kill
Hoffman and Hoffman's parents. On appeal, Stansfield
argued that his conviction for witness tampering could not
stand because there was insufficient evidence that he had
intended to hinder Hoffman's communications with a
federal law enforcement officer. Id. at 917.

Stansfield argued that the government was required to
prove "an intent to prevent the communication of
information to some particular law enforcement officer" who
was, in fact, a federal officer. Id. at 918. The government
countered that all it had to prove was that "the offense
about which the defendant wishe[d] to prevent
communications [was] actually a federal offense." Id. We
rejected Stansfield's interpretation, but noted as well that
"the position of the government [was not] without
problems." Id. We expressed concern that if we demanded
"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 officers
in general . . . we would essentially vitiate an important
facet of the intent requirement of the statute." Id. We set
forth the following formulation of the elements of
§ 1512(a)(1)(C):

[T]he 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.

Id. (emphasis added).

In view of the statute's clear command that the
government need not prove any "state of mind" on the part
of the defendant with respect to the federal character of the
proceeding or officer, 18 U.S.C. § 1512(f), we do not read
the italicized passage as requiring proof that the defendant
believed the victim might communicate with law

                    6
enforcement officers whom the defendant knew or believed
to be federal officers. Rather, we read this sentence as
recognizing that what the statute mandates is proof that
the officers with whom the defendant believed the victim
might communicate would in fact be federal officers.3

Our interpretation is buttressed by the Stansfield court's
explanation that "[t]his last element may be inferred by the
jury from the fact that the offense was federal in nature,
plus additional appropriate evidence." Id. If an offense
constitutes a federal crime, it is more likely that an officer
investigating it would be a federal officer, but an offense's
status as a federal crime has no relationship with the
defendant's subjective belief about the individual
investigating it. Our reading of Stansfield is further
confirmed by an examination of the dissent in that case.
The dissent would have ordered the entry of a judgment of
acquittal because the evidence revealed "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." Id. at 924
(Lewis, J., dissenting). The dissent thus clearly framed the
issue as whether the defendant must know or intend that
the law-enforcement-officer communications which he
seeks to prevent would be with federal officers. Because of
the majority's conclusion that such federal-specific
knowledge or intent was not required, the dissent charged
that the majority had "essentially eviscerate[d] the intent
element of the statute." Id. at 923 (Lewis, J., dissenting).

Accordingly, we believe that the law of this circuit after
Stansfield is that the government must prove that at least
one of the law-enforcement-officer communications which
the defendant sought to prevent would have been with a
_________________________________________________________________

3. We do not mean to imply that the victim and the witness or informant
-- the person murdered and the person whom the murderer intended to
prevent from communicating with the authorities -- must be one and the
same. 18 U.S.C. § 1512(a)(1)(C) seems to apply as well to a situation
where the defendant kills one person at least in part to set an
intimidating example to dissuade another person or persons from
communicating to the authorities. See id. ("Whoever kills or attempts to
kill another person, with intent to . . . prevent the communication by any
person to a law enforcement officer . . . .") (emphases added).

                    7
federal officer, but that the government is not obligated to
prove that the defendant knew or intended anything with
respect to this federal involvement. As Stansfield explained,
the government may carry this burden by showing that the
conduct which the defendant believed would be discussed
in these communications constitutes a federal offense, so
long as the government also presents "additional
appropriate evidence." Id. at 918.

B. The questions upon which the disposition of this
appeal turns, then, are: (1) whether the jury could have
concluded that at least part of Bell's motivation in killing
Proctor was to prevent Proctor from communicating further
with the Task Force; and (2) if so, whether the jury could
have concluded that at least one of Proctor's further
communications with the Task Force would have been with
a federal officer.

We have no hesitation in answering the first question in
the affirmative. In Stansfield, the government's case
appears to have been based solely on the law-enforcement-
officer-communication part of the statute. Here, in contrast,
the government has emphasized the official-proceeding
subsection (despite the fact that § 1512 clearly would not
apply if Bell's sole motivation in killing Proctor was to
prevent her from testifying at Tyler's trial, because that
state-court trial does not qualify as an "official proceeding").
Nevertheless, the government also alleged in the indictment
and submitted to the jury the theory that Bell killed Proctor
to prevent her from communicating with law enforcement
officers. (App. 62A, 70A, 72A-73A; 561-62, 565-66, 586-87)

We are satisfied that, while the evidence may lend itself
more obviously to the theory that Bell killed Proctor in
order to prevent her from testifying a few hours later at
Tyler's trial, it also supports the inference that Bell believed
Proctor was going to continue to communicate with the
Task Force concerning drug crimes that Bell and others
had committed. It is undisputed that, as a result of
Proctor's information and testimony, an individual named
Mary Jane Hodge had been convicted of drug offenses, and
that at the time of her murder Proctor was scheduled to
testify against two other drug defendants besides Tyler.
(App. 54-57) The Task Force had not at that point begun an

                     8
investigation of Bell, but it is undisputed that Proctor "was
still providing information about the drug trade in the
Carlisle area at the time and also Harrisburg," a drug trade
in which Bell was personally and heavily involved. (App. 57)

We hold that it was reasonable for the jury to infer that
Bell feared that Proctor's continued cooperation with the
Task Force would have resulted in additional
communications with law enforcement officers concerning
drug crimes committed by Bell, among others, and that at
least part of Bell's motivation in killing Proctor was to
prevent such communications. The evidence is thus
sufficient to support a finding that Bell killed Proctor not
only to protect her boyfriend, Tyler, but also to protect
herself, because there is evidence that Bell was at least as
heavily implicated as Tyler in the drug trade for which Tyler
was on trial. (App. 300, 435-36, 451)

We also believe that the second question requires an
affirmative answer. The government clearly presented
sufficient evidence to entitle the jury to conclude that Bell
killed Proctor; we have held that the jury could have found
that Bell was motivated at least in part by a desire to
prevent Proctor from communicating with the Task Force
concerning the commission or possible commission of
offenses; and those offenses (drug crimes) are clearly
federal offenses. See Stansfield, 101 F.3d at 918. Bell, like
Stansfield, "had knowledge of [Proctor's] past cooperation
and was aware that some investigation, though not
necessarily a federal one, was underway." Id. at 919. The
Stansfield court noted that it was unclear whether
Stansfield knew that a federal investigation had been
opened. Id. Similarly, it is unclear whether Bell knew that
the Task Force was a joint federal-state effort, but it is clear
that it in fact was. As in Stansfield, the evidence does not
indicate that Bell intended to prevent Proctor from
communicating with a particular officer or officers, but
rather with the Task Force generally.

We hold that it was reasonable for the jury to infer that
if Proctor had continued to cooperate with a partially
federal law enforcement body regarding conduct
constituting federal crimes, at least one of her
communications would have been to a federal officer or to

                     9
an officer authorized to act on behalf of the federal
government.4 The jury thus could reasonably have found
that Bell killed Proctor "with intent to . . . prevent the
communication by [Proctor] to a law enforcement officer . . .
of the United States of information relating to the
commission or possible commission of a Federal offense."
18 U.S.C. § 1512(a)(1)(C). Contrary to the criticism
expressed by the dissent in Stansfield, this conclusion does
not render the defendant's intent "irrelevant." See 101 F.3d
at 922 (Lewis, J., dissenting). Rather, it respects fully the
statute's requirement that the defendant intend to prevent
a communication to a law enforcement officer, as well as its
requirement that such officer be, in fact, a federal officer.
What our analysis renders irrelevant is the defendant's
"mental state" regarding the fact that the officer is a federal
officer -- a fact which § 1512(f)(2) by its terms declares
irrelevant.5

III.

We next address Bell's challenge to the district court's
jury charge with respect to the intent requirement of the
tampering counts. The court gave the jury a supplemental
instruction stating that the government was required to
prove that:
_________________________________________________________________

4. Beyond stating our conclusion that the additional evidence presented
in this case (in particular, that the Task Force was a joint federal-state
effort that had developed federal cases in the past) constitutes
"additional appropriate evidence" of the sort mandated by Stansfield, 101
F.3d at 918, we express no opinion as to what types and what quantum
of evidence satisfy that standard, which by its nature will require careful,
case-by-case analysis.

5. Bell's argument that the federal government lacks jurisdiction to try
her for these crimes is founded upon her contention that the evidence
reveals no nexus between her charged conduct and any federal interest.
In light of our conclusion that the evidence is sufficient to sustain Bell's
convictions for tampering with a federal informant, we reject her
jurisdictional argument. Similarly, Bell's sufficiency argument as to the
conspiracy and gun charges depends upon the success of her sufficiency
challenge to the tampering counts. We therefore find this argument as
well to be meritless.

                    10
defendant intended to frustrate a future judicial
proceeding, and in parentheses that would turn out to
be a federal proceeding . . . .

[Y]ou would have to find beyond a reasonable doubt
that the defendant intended to frustrate a future
judicial proceeding. You would also have to conclude
that that proceeding would be a federal proceeding, but
you don't have to find that the defendant knew that it
would be a federal proceeding.

(App. 586) Bell argues that this charge "watered down" the
intent requirement by "shift[ing] the jury's focus to deciding
whether it was possible that the victim could relay
information to federal law enforcement, rather than to the
proper inquiry -- the intent of the Defendant . . . ." Bell Br.
at 29 (emphasis in original).

This argument is meritless. The quoted instruction did
nothing more than explain 18 U.S.C. § 1512(f)(1) and (2)'s
express provision that the government need not prove any
state of mind on the part of the defendant with respect to
the federal character of the proceeding or law-enforcement-
officer communication that it alleges she intended to
interfere with or prevent.

IV.

In sentencing Bell to life imprisonment, the district court
followed the pre-sentence report's recommendation and
applied U.S.S.G. § 2A1.1(a), the guideline for first-degree
murder. Bell contends that since the jury did not find that
her killing of Proctor constituted first-degree murder, it was
error for the district court to sentence her based on the
first-degree murder guideline rather than the second-degree
guideline.

The provision under which Bell was sentenced, 18 U.S.C.
§ 1512(a)(2)(A), incorporates 18 U.S.C. § 1111's definition of
murder, and provides that a conviction for tampering-by-
killing shall be punished by death or life imprisonment if
the killing constitutes murder under § 1111, and shall be
punished in accordance with § 1112 (the manslaughter
statute) if it is any other kind of killing. Here the district

                    11
court found by a preponderance of the evidence that Bell's
conduct fit the definition of first-degree murder set forth in
18 U.S.C. § 1111(a). (App. 21A-30A) Bell argues that it was
a violation of due process for the district court, as opposed
to the jury, to make this determination.

We are unpersuaded by this argument, but we need not
resolve it definitively. Even if Bell should have been found
to have committed second-degree rather than first-degree
murder, it would not affect her sentence. Title 18 U.S.C.
§ 1512(a)(2)(A) provides that the punishment shall be death
or life imprisonment where the "killing" constitutes murder,
regardless of whether it is first-degree or second-degree
murder. Bell does not argue that the "killing" here should
have been found to be manslaughter.6

V.

For the foregoing reasons, we affirm the judgment of
conviction and sentence entered by the district court.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

6. Bell also reiterates the double jeopardy, collateral estoppel, and
selective prosecution arguments that were rejected by the district court.
The dual sovereigns doctrine has long foreclosed Bell's argument that the
federal government may not prosecute her for the same conduct of which
she was acquitted in state court, and Bell fails in her attempt to fit this
case into the "Bartkus exception" to that doctrine. See Bartkus v. Illinois,
359 U.S. 121 (1959). The same defect -- no identity of parties -- dooms
Bell's collateral estoppel argument. Finally, Bell's selective prosecution
argument is frivolous. No such claim lies unless Bell can make out a
difficult prima facie showing that she was selected for prosecution for an
invidious reason such as her race, her religion, or her exercise of
constitutional rights. See, e.g., Wayte v. United States, 470 U.S. 598,
608 (1985). The only motive so much as hinted at here -- that the
federal government chose to prosecute Bell after her state court acquittal
because it did not want her to get away with murder -- is far from
invidious.

                    12
