Background
In August 2020, Joshua Brooks and companions confronted a family in Fargo, North Dakota. During the confrontation, companion Jesse Burnett fired a gun that killed someone. The case went cold until July 2022, when Andeus Smith agreed to a proffer interview with federal agents regarding a drug trafficking conspiracy. This led to Brooks’s September 2022 arrest on state murder charges and, in October 2022, Brooks provided a federal/state law enforcement interview disclosing where Burnett had purchased the firearm, resulting in Burnett’s arrest on state murder charges.
While in custody at Cass County Jail, both Brooks and Burnett encountered co-defendant Shaquiel Mendez. After Mendez was moved to Brooks’s unit, he learned from Burnett that Brooks was “snitching” about the shooting and the guns Burnett purchased. During a one-day transfer back to Burnett’s unit, Burnett gave Mendez pages of his discovery materials. Mendez then distributed these pages to fellow inmates Daniel Cisse and Ahmed Hassan, and the three planned to assault Brooks and confront him about his federal cooperation.
During recreation, Cisse physically assaulted Brooks for approximately five minutes while Mendez and Hassan distracted guards. Guards recovered the discovery pages, which included a police report describing Brooks’s proffer interview. Mendez was indicted and convicted of conspiracy to tamper with a witness under 18 U.S.C. § 1512(k), specifically under subsection (a)(2)(C), which targets intent to prevent communication to federal law enforcement about a federal offense.
The Court’s Holding
The Eighth Circuit affirmed Mendez’s conviction, holding that the government presented sufficient evidence of a requisite “federal nexus” under 18 U.S.C. § 1512(a)(2)(C). The court applied the Supreme Court’s standard from Fowler v. United States, which requires that when a defendant acts with intent to prevent communication with law enforcement generally, the government must show it was “reasonably likely” that at least one communication would have been made to a federal officer absent the tampering. Critically, the government need not prove this would happen beyond a reasonable doubt or even that it was more likely than not—only that the likelihood was more than “remote, outlandish, or simply hypothetical.”
Here, Brooks had already participated in a federal proffer interview before the assault and had not withdrawn from federal cooperation. The court found it reasonably likely that Brooks would have continued communicating with federal law enforcement, particularly because the case had not yet proceeded to trial. The jury heard testimony that one purpose of the assault was to prevent Brooks from communicating with law enforcement about a possible federal criminal offense. Under these circumstances, the government satisfied its burden to establish the federal nexus requirement.
Key Takeaways
- Prior communication with federal law enforcement can establish that future federal communication is “reasonably likely,” satisfying the federal nexus requirement for § 1512(a)(2)(C) witness tampering charges.
- The government need not prove future communication was more likely than not, only that it was more than remote or hypothetical, applying the Fowler standard.
- Witness tampering occurring in state custody (county jail) can constitute federal criminal conspiracy when motivated by silencing federal cooperators.
- The verdict need not specify which charged subsection the jury relied upon; conviction stands if evidence supports at least one subsection.
Why It Matters
This decision clarifies application of the Fowler “reasonable likelihood” standard in the Eighth Circuit and establishes that a witness’s prior engagement with federal authorities provides a concrete foundation for finding future federal communications reasonably likely. This protects witnesses in federal investigations even during state prosecutions and custody, reinforcing federal law enforcement’s ability to pursue conspiracy charges against inmates who attempt to silence witnesses cooperating in federal cases.
The decision also confirms that witness tampering charges require only a reasonable (not probable) likelihood that future federal communication would occur absent the tampering—a standard that can be met by demonstrating an ongoing pattern of cooperation with federal authorities, even if that cooperation had not yet reached the trial stage at the time of the tampering.