Opinion
Civil No. 3:16-CV-1122
05-09-2019
DENNIS A. CHAMPAGNE, JR., Petitioner v. DAVID EBBERT, WARDEN, Respondent
(Judge Mariani)
( ) REPORT AND RECOMMENDATION
I. Introduction
On November 3, 1993, Dennis Champagne murdered Brewster Bullard. At the time of this killing, Champagne, who was affiliated with the Huns Motorcycle gang, had been paid $25,000 by other former gang members to kill Bullard. Bullard's death was worth $25,000 to Champagne and those who hired him to kill Bullard because Bullard had become a witness in an on-going investigation of an interstate human trafficking ring operated by these men, who were affiliated with this violent motorcycle gang.
At the time that Champagne committed this calculated killing of Bullard, Bullard's status as a potential cooperating witness in the investigation was known to those who contracted his murder. Moreover, at the time of Bullard's death, there were several active federal components to this investigation, and the principals behind Bullard's murder were on actual notice of federal involvement in this investigation. In fact, the human trafficking investigation that Champagne and others tried to obstruct through the murder of Bullard ultimately became a federal case, and resulted in convictions in federal court.
Notwithstanding all of this evidence, which clearly underscored the complete, thorough and active involvement of federal authorities in the underlying investigation which Champagne attempted to stymie through murder, Champagne has now filed a petition for writ of habeas corpus that argues that he is actually innocent of the federal crime of witness murder under 18 U.S.C. § 1512. Champagne's actual innocence claim on this charges rests upon a single thin reed. Champagne does not dispute that he killed Bullard at the behest of fellow Huns Motorcycle gang members. Nor does he dispute that Bullard's cooperation with the authorities is what led Champagne to accept $25,000 in return for executing this potential witness. Instead, Champagne invites us to set aside his conviction because he contends that there was no reasonable likelihood that Bullard would have communicated the evidence that he had disclosed of these federal crimes to federal investigators at some time during the course of the investigation—an investigation that ultimately led to the federal indictment and conviction of these human traffickers.
Champagne can only succeed on this claim if he can show that the alleged federal involvement in this underlying investigation, which he tried to lethally obstruct, was "remote, outlandish, or simply hypothetical." Fowler v. United States, 563 U.S. 668, 678, 131 S. Ct. 2045, 2052, 179 L. Ed. 2d 1099 (2011). As discussed below, Champagne has not, and cannot, carry this heavy burden of proof and persuasion. Therefore, this petition should be denied.
II. Statement of Facts and of the Case
The factual background of this calculated murder-for-hire was detailed at Champagne's trial, a trial that led to the instant convictions. At trial, the government's evidence showed that on November 3, 1993, Dennis Champagne murdered Brewster Bullard at the behest of Robert Labak and Phillip Squillante, who wanted Bullard killed in order to prevent his on-going cooperation with federal and local authorities that were investigating a brutal interstate human trafficking ring run by these men.
At the time of Bullard's murder, Champagne, Labak, and Squillante were associated with one another through their mutual affiliation with a violent motorcycle gang, the Huns Motorcycle Club. Labak and Squillante were also involved in an interstate commercial human trafficking trade. Together, these men operated and controlled more than a dozen brothels disguised as legitimate businesses in Florida and Connecticut. (Doc. 8, Trial Transcript, hereinafter "Tr." 344-47, 355-57, 435-38, 478-79, 547-49, 712, 726-36.) Labak and Squillante profited handsomely from this human trafficking organization, earning tens of millions of dollars from the sexual exploitation of others. (Tr. 156, 172-76, 491-503, 743-46.)
In order to cloak and conceal their involvement in this illicit lucrative trade in human lives, Labak and Squillante paid other people to place their names on the occupational licenses and bank accounts for the purportedly legitimate businesses which masked these brothels. (Tr. 142-43, 151-53, 159-60, 192, 416-21, 437-38, 445, 548-58, 760-66.) One of these straw parties who helped Labak and Squillante hide their profits from the sexual exploitation of others was a man named Brewster Bullard. Labak recruited Bullard to serve as a straw party and paid Bullard to travel from Connecticut to Florida to place his name on the occupational license and bank account for Xanadu Thee Club ("Xanadu"), a brothel located in the Middle District of Florida. (Tr. 220-24, 241, 766.) Bullard received $100 per month from these human traffickers for his assistance in hiding their crimes. (Tr. 221-24.) Ultimately, Bullard would pay with his life for his involvement in this illicit activity when he began cooperating with investigators who were combatting this human trade.
During the summer of 1993, the Brevard County (Florida) Sheriff's Office ("BCSO") launched an investigation in the Middle District of Florida into this human trafficking by Labak and Squillante at the Xanadu club. (Tr. 25-33, 206-07, 484, 697-701.) While the sheriff's office initially spearheaded this investigation, from its inception multiple federal agencies, including the IRS, the FBI, ATF and the United States Postal Service, actively assisted in this case. (Tr. 28-33, 51-52, 78-82, 476, 698-702, 1012.) Thus, from the earliest stages of this joint investigation, federal agencies were determining that federal crimes had been committed in the Middle District of Florida by these human traffickers, including potential tax evasion and racketeering offenses. (Tr. 32-33, 51- 75, 108-12, 116-17, 269-73.)
The active federal role in this human trafficking investigation was well established at the time that Dennis Champagne murdered Brewster Bullard in order to silence him as a witness. Thus, the sheriff's office first contacted the Postal Service in October 1992 to provide mail covers for the investigation. (Tr. 26.) In June of 1993, the sheriff also contacted the IRS about the potential tax fraud being committed by Labak and Squillante. (Tr. 51.) The IRS was actively conducting an audit of Labak, Squillante, and their business ventures at the time of Bullard's murder, and in December 1993, referred the matter to IRS Criminal Investigations to pursue tax evasion charges against these human traffickers. (Tr. 54-56, 476-77, 516-17.) Furthermore, in July and August 1993, Officer Evers of the sheriff's office contacted the FBI to assist in the investigation of this interstate human trafficking network linked to a violent motorcycle gang. (Tr. 699-700.) Thus, as Officer Evers testified, by August of 1993, "we were working a federal investigation for federal racketeering claims." (Tr. 701.)
In 1994, the FBI declined to pursue a racketeering case, (Tr. 82-84, 710), but another federal agency, the Bureau of Alcohol, Tobacco, and Firearms ("ATF") took over the investigation as the lead agency in this case. (Tr. 84, 1012.)
Labak and Squillante learned of the IRS's role in this investigation during the summer of 1993 after receiving written notice from the IRS that an income tax audit was underway. (Tr. 52-56, 769.) The federal involvement in this investigation raised immediate concerns for Labak and Squillante, who recognized that the federal government would be able to dismantle their criminal human trafficking organization. (Tr. 770.) These concerns were heightened when it became apparent that the investigation was focusing on the traffickers' reliance on straw parties like Bullard to conceal their criminal activities. By 1993, during the federal and state investigation, the sheriff's office obtained a copy of the occupational license for Xanadu, which Brewster Bullard had signed. Investigators then requested the assistance of the Fairfield Police Department ("FPD") in Connecticut to conduct an interview of Bullard about Xanadu. (Tr. 213, 701-02, 934-35.)
In late September 1993, two FPD officers interviewed Bullard as part of this joint state-federal investigation. (Tr. 215-19, 529-31.) During this interview, Bullard acknowledged his role as a straw party, telling police that Labak had asked him to travel from Connecticut to the Middle District of Florida in early 1993 to sign documents regarding Xanadu. (Tr. 220-22, 261-63.) According to Bullard, Labak paid Bullard, whom he had known for many years, $100 each month for signing the documents. (Tr. 220-24, 241.)
Even as Bullard provided this incriminating information against Labak and the other human traffickers, he expressed a concern for his own safety and voiced a fear of witness retaliation if his cooperation became known. Prophetically and tragically, Bullard stated that he would be killed if anyone found out that he had spoken with the police. (Tr. 256.) The FPD relayed the information acquired from Bullard to the investigators in Florida. (Tr. 229-30, 703.)
Bullard's fears soon bore lethal fruit. Labak, who lived in the same area of Connecticut, learned about Bullard's conversation with the authorities and, in September 1993, called Squillante, who was in the Middle District of Florida. (Tr. 309, 773.) Labak and Squillante were concerned about Bullard making statements to the police, and the first thing they did was replace his name on the occupational license for Xanadu. (Tr. 774-75.) Squillante then traveled from Florida to Connecticut and met with Labak to conduct "damage control" and to find out what Bullard had said or done. (Tr. 775.) Labak stated to Squillante that he needed to find the "ultimate solution" to the Bullard problem, (Tr. 779), showed Squillante a .22 caliber semi-automatic pistol with an attached silencer, (Tr. 780) and later reported to Squillante that Dennis Champagne, also a former Huns member, had agreed to kill Bullard in order to silence him. (Tr. 124-25, 721, 781.)
The conspirators scheduled this witness murder for November 3, 1993. At about 1:30 a.m. on November 3, 1993, Labak drove Bullard to the boarding house where Bullard lived. (Tr. 574-76, 799.) Labak then handed the unsuspecting Bullard a Dunkin' Donuts bag containing some trash and asked Bullard to throw it away for him. (Tr. 574-76, 799.) As Bullard walked to the side of the boarding house, where the garbage dumpster was located, Champagne was lying in wait for him. (Tr. 799.) Champagne then executed Bullard, shooting him three times with a .22 caliber semi-automatic firearm. (Tr. 597-98, 649-51, 672-73, 679-80.)
The day after Bullard's murder, Labak called Squillante and reported that Bullard had been killed. (Tr. 784-85.) Later that same day, Squillante told another member of his organization that Labak had Bullard "whacked." (Tr.. 199-200, 786.) About three weeks after Bullard's murder, Labak met Squillante in Florida. (Tr. 787-88.) The two men discussed the execution of their erstwhile confederate, Bullard, who had begun cooperating in this human trafficking investigation. Labak said the murder could not have been avoided and told Squillante that he had paid Champagne $25,000 for the killing. (Tr. 787-88.) These criminal partners then agreed to split the cost of murdering this witness. Squillante promised to pay half of the amount, and he later paid Labak $12,500—his share of the witness murder fee. (Tr. 787-89.)
While Labak and Squillante hired Champagne to murder Bullard for the express purpose of silencing a potential witness in this joint state-federal human trafficking investigation, these efforts were unsuccessful in ultimately obstructing the investigation. Instead, Squillante and his criminal confederates were charged and convicted in federal court. United States v. Squillante, 120 F.3d 274 (11th Cir. 1997). In the course of this prosecution, Squillante began cooperating with the government and informed law enforcement that Champagne had murdered Bullard. (Tr. 800, 1012-13, 1020.) Champagne was then arrested for Bullard's murder in January 1996. (Tr. 906, 929.) While in custody, Champagne discussed Bullard's killing with two other inmates, Michael Kelly and James Neely, who later testified for the government at Champagne's trial. (Tr. 955, 988-89.) Champagne told Kelly that he was working on an alibi. (Tr. 967-73.) When Kelly asked Champagne whether he had killed Bullard, Champagne responded in a chilling fashion stating that only he and Bullard knew the answer to that question while smiling, winking, and forming his hand into the shape of a gun. (Tr. 971-73.) In turn, Champagne told Neely that he had been paid $25,000 to commit the murder, (Tr. 994-95, 1001), explaining that he killed Bullard because he had been speaking with the authorities. (Tr.. 999.)
It was against this factual backdrop that Champagne was indicted in 1996 on charges of conspiracy to commit murder, in violation of 18 U.S.C. § 371, causing the death of a federal witness, in violation of 18 U.S.C. § 1512(a)(1)(C), and retaliating against a federal witness, in violation of 18 U.S.C. § 1513(a)(2). Champagne was convicted of these offenses and was sentenced on February 19, 1997 to life imprisonment. U.S. v. Champagne, Case No. 96-00007-cr-ORL-18 (M.D. Fla. 1997). On direct appeal, this conviction was affirmed on appeal, but reversed and remanded with instructions for the district court to clarify the sentence with respect to each count. On remand, he was sentenced to concurrent terms of five years on Count I, and life on Counts II and III, respectively. U.S. v. Champagne, Case No. 96-00007-cr-ORL-18 at Doc. 138 (M.D. Fla. 1997). Champagne then filed a motion pursuant to 28 U.S.C. § 2255 in 1999, which was denied by the court on August 8, 2002. Champagne v. U.S., Case No. 99-00766-cv-6-ORL-18DAB (M.D. Fla. 2002). The appeal was dismissed on August 25, 2003. Case No. 03-11370-B (11th Cir. 2003).
Some thirteen years then elapsed before Champagne filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. In his petition, Champagne advances a novel claim of actual innocence. According to Champagne, he is actually innocent of this federal witness murder charge, not be cause he is innocent of murder, and not because he killed his victim for some reason other than to prevent the victim from testifying. Rather, Champagne argues that his actual innocence on this witness murder charge rests on the notion that it was not reasonably likely that Bullard would have become a witness in a federal case. Champagne makes this narrow jurisdictional argument even though the activities Bullard witnessed, and could have testified to had he lived, actually were the subject of a later federal prosecution.
For the reasons set forth below, Champagne's argument is completely meritless and his petition should be denied.
We note that in addition to its merits argument, the respondents have also asserted that Champagne's petition only attacks his conviction for causing the death of a federal witness, in violation of 18 U.S.C. § 1512(a)(1)(C), and does not separately attack his conviction for retaliating against a federal witness, in violation of 18 U.S.C. § 1513(a)(2). Since Champagne received two concurrent life sentences on these two charges, the respondents argue that "a federal court may decline to review an alleged error where concurrent sentences were imposed on separate counts, where the alleged error is associated with only one count, and where the remaining sentences are unassailable." Nosov v. Schuylkill, 634 F. App'x 379, 380 (3d Cir. 2016) (citing United States v. McKie, 112 F.3d 626, 628 n. 4 (3d Cir. 1997). Because "the defendant remains sentenced in any event, reviewing the concurrently sentenced counts is of no utility. The practice is eminently practical and conserves judicial resources for more pressing needs." Jones v. Zimmerman, 805 F.2d 1125, 1128 (3d Cir. 1986) (citations omitted); (Doc. 8, at 8.) If respondents are correct in their narrow reading of Champagne's petition, then the concurrent sentence doctrine also defeats this petition. But even if we adopt a broader reading of this petition, we ultimately conclude that that the evidence of the likelihood of federal involvement in the investigation in which Bullard, a witness, was killed is overwhelming. Therefore, this petition fails on its merits. --------
II. Discussion
A. Legal Standards Governing §2241 Actual Innocence Claims
This case, which challenges a federal criminal conviction, comes before the court in an unusual procedural posture, as a federal habeas corpus petition brought pursuant to 28 U.S.C. § 2241. Section 2241 is not the typical vehicle for challenging the sufficiency of the evidence in a federal criminal case. Instead, it is well-settled that: "[T]he usual avenue for federal prisoners seeking to challenge the legality of their confinement," including a challenge to the validity of a sentence, is by way of a motion filed under 28 U.S.C. § 2255. In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). See also United States v. Miller, 197 F.3d 644, 648 n.2 (3d Cir. 1999) (stating that § 2255 provides federal prisoners a means by which to bring collateral attacks challenging the validity of their judgment and sentence); Snead v. Warden, F.C.I. Allenwood, 110 F. Supp. 2d 350, 352 (M.D. Pa. 2000) (finding that challenges to a federal sentence should be brought in a motion filed under 28 U.S.C. § 2255). Indeed, it is now clearly established that Section 2255 specifically provides the remedy to federally-sentenced prisoners that is the equivalent to the relief historically available under the habeas writ. See Hill v. United States, 368 U.S. 424, 427 (1962) (stating, "it conclusively appears from the historic context in which § 2255 was enacted that the legislation was intended simply to provide in the sentencing court a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined").
Therefore, as a general rule, a § 2255 motion "supersedes habeas corpus and provides the exclusive remedy" to one in custody pursuant to a federal court conviction. Strollo v. Alldredge, 463 F.2d 1194, 1195 (3d Cir. 1972). Indeed, it is clear that "Section 2241 'is not an additional, alternative or supplemental remedy to 28 U.S.C. § 2255.'" Gomez v. Miner, No. 3:CV-06-1552, 2006 WL 2471586, at *1 (M.D. Pa. Aug. 24, 2006) (quoting Myers v. Booker, 232 F.3d 902 (10th Cir. 2000)) Instead, Section 2255 motions are now the exclusive means by which a federal prisoner can challenge a conviction or sentence that allegedly is in violation of the Constitution or federal laws or that is otherwise subject to collateral attack. See Davis v. United States, 417 U.S. 333, 343 (1974). Thus, federal inmates who wish to challenge the lawfulness of their sentences must typically file motions with the sentencing court under § 2255.
This general rule admits of only one, narrowly-tailored, exception. A defendant is permitted to pursue relief under 28 U.S.C. § 2241 only where he shows that the remedy under § 2255 would be "inadequate or ineffective to test the legality of his detention." 28 U.S.C. § 2255(e); see also United States v. Brooks, 230 F.3d 643, 647 (3d Cir. 2000) (recognizing availability of § 2241 in cases where petitioners have no other means of having claims heard). The inadequacy or ineffectiveness must be "a limitation of scope or procedure . . . prevent[ing] a § 2255 proceeding from affording . . . a full hearing and adjudication of [a] wrongful detention claim." Okereke v. United States, 307 F.3d 120 (3d Cir. 2002) (citing Cradle v. United States, 290 F.3d 536, 538 (3d Cir. 2002) (per curiam)). "It is the inefficacy of the remedy, not the personal inability to use it, that is determinative." Cradle, 290 F.3d at 538-39 (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C. Cir. 1986)). Accordingly, "[s]ection 2255 is not inadequate or ineffective merely because the sentencing court does not grant relief, the one-year statute of limitations has expired, or the petitioner is unable to meet the stringent gatekeeping requirements of the amended § 2255." Cradle, 290 F.3d at 539. Furthermore, if a petitioner improperly challenges a federal conviction or sentence under § 2241, the petition must be dismissed for lack of jurisdiction. Application of Galante, 437 F.2d 1164, 1165 (3d Cir. 1971).
In practice, this court recognizes a single narrow exception in which § 2241 relief could be available in lieu of a motion under 28 U.S.C. § 2255. In In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997), the Third Circuit held that § 2241 relief was available only in very narrow instances to a petitioner who had no earlier opportunity to challenge his conviction for conduct that an intervening change in substantive law made no longer criminal. Dorsainvil, 119 F.3d at 251. In this regard, the Supreme Court of the United States has stated, "[i]t is important to note in this regard that "actual innocence" means factual innocence, not mere legal insufficiency." Bousley v. United States, 523 U.S. 614, 623-24(1998) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). "To establish actual innocence, petitioner must demonstrate that, ' " 'in light of all the evidence," ' 'it is more likely than not that no reasonable juror would have convicted him.'" Bousley, 523 U.S. at 623 (quoting Schlup v. Delo, 513 U.S. 298, 327-328 (1995) (internal citations omitted)). Applying this principle to claims made under Dorsainvil:
[T]his Court would have jurisdiction over Petitioner's petition if, and only if, Petitioner demonstrates: (1) his "actual innocence," (2) as a result of a retroactive change in substantive law that negates the criminality of his conduct, (3) for which he had no other opportunity to seek judicial review. See Dorsainvil, 119 F.3d at 251-52; Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 539 (3d Cir. 2002); Okereke v. United States, 307 F.3d 117, 120 (3d Cir. 2002). A claim of "actual innocence" relates to innocence in fact, not innocence based on a legal, procedural defect. A litigant must present evidence of innocence so compelling that it undermines the court's confidence in the trial's outcome of conviction; thus, permitting him to argue the merits of his claim. A claim of actual innocence requires a petitioner to show: (a) new reliable
evidence not available for presentation at the time of the challenged trial; and (b) that it is more likely than not that no reasonable juror would have convicted the petitioner in the light of the new evidence. See House v. Bell, 547 U.S. 518, 126 S. Ct. 2064, 165 L.Ed.2d 1 (2006); Schlup v. Delo, 513 U.S. 298, 324, 327, 115 S. Ct. 851, 130 L.Ed.2d 808 (1995). Furthermore, the Supreme Court, In House, emphasized that the gateway standard for habeas review in claims asserting actual innocence is extremely demanding and permits review only in the "extraordinary" case. See House, 547 U.S. at 536-37 (citing Schlup, 513 U.S. at 327).White v. Zickefoose, CIV 10-0548 (RMB), 2010 WL 1050171 (D.N.J. Mar. 19, 2010).
Simply put, to prevail on this § 2241 actual innocence claim, Champagne must:
[E]stablish that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. Thus, in habeas jurisprudence, " 'actual innocence' means factual innocence, not mere legal insufficiency." Id. Accordingly, "the Government is not limited to the existing record to rebut any showing that petitioner might make." Bousley, 118 S.Ct. at 1611-12. Simply stated, " 'actual' innocence ... means that the person did not commit the crime." Johnson v. Hargett, 978 F.2d 855, 860 (5th Cir.1992).United States v. Garth, 188 F.3d 99, 107 (3d Cir. 1999).
Indeed, the United States Court of Appeals for the Third Circuit has aptly described the daunting thresholds that must be met to sustain a habeas corpus challenge to a witness murder charge under 18 U.S.C. § 1512 in the following terms:
This Court's precedent instructs that actual innocence claims under § 2241 are to be initially tested against the more relaxed (but still
stringent) actual innocence gateway standard. Tyler, 732 F.3d at 246. To succeed under that standard, a petitioner must "demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Bousley, 523 U.S. at 623, 118 S. Ct. 1604 (internal quotation marks omitted). In order "to balance the societal interests in finality ... and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case," Schlup v. Delo, 513 U.S. 298, 324, 115 S. Ct. 851, 130 L.Ed.2d 808 (1995), the gateway standard is purposefully "demanding" and was formulated to ensure that a successful petitioner's case is "truly extraordinary." House, 547 U.S. at 537-38, 126 S. Ct. 2064 (internal quotation marks omitted); see also McQuiggin, 133 S. Ct. at 1928 (cautioning that "tenable actual-innocence gateway pleas are rare"). A petitioner can meet this standard "by demonstrating an intervening change in law that rendered his conduct non-criminal." Tyler, 732 F.3d at 246. Failure to meet the gateway standard is sufficient to reject any hypothetical freestanding actual innocence claim. Albrecht v. Horn, 485 F.3d 103, 126 (3d Cir. 2007); see also House, 547 U.S. at 555, 126 S. Ct. 2064 (noting that a freestanding actual innocence claim would require "more convincing proof of innocence" than that needed to meet the gateway standard).
Because " 'actual innocence' means factual innocence, not mere legal insufficiency," the Government "is not limited to the existing record to rebut any showing that [the] petitioner may make." Bousley, 523 U.S. at 623-24, 118 S.Ct. 1604. A habeas court is therefore "not bound by the rules of admissibility that would govern at trial," but must instead "make its determination 'in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.' " Schlup, 513 U.S. at 327-28, 115 S. Ct. 851 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). With this broader array of evidence in view, the district court does not exercise its "independent judgement as to whether reasonable doubt exists"; rather, the actual innocence standard "requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do." Id. at 329, 115
S. Ct. 851. And it must be presumed, moreover, that a reasonable juror "would consider fairly all of the evidence presented" and "conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt." Id.Bruce v. Warden Lewisburg USP, 868 F.3d 170, 184 (3d Cir. 2017).
It is against this exacting legal benchmark that we now assess Champagne's claim that he is actually innocent of the federal witness murder charges leveled against him, not because he is innocent of murdering a witness, but because proof of the federal character of the investigation in which he killed a potential witness was lacking.
B. Witness Murder Under Federal Law , The Elements of Proof
In this petition, Champagne challenges his conviction for violating the federal witness murder statute, 18 U.S.C. § 1512, which "prohibits the 'kill[ing] or attempt[ed] kill[ing]' of '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.' 18 U.S.C. § 1512(a)(1)(C)." Bruce, 868 F.3d at 181. As initially enacted by Congress, two aspects of § 1512 gave this statute potentially sweeping application. First, "(f) For the purposes of this section-- (1) an official proceeding need not be pending or about to be instituted at the time of the offense; and (2) the testimony, or the record, document, or other object need not be admissible in evidence or free of a claim of privilege." 18 U.S.C. § 1512(f). In addition, "[w]ith regard to the defendant's intent, a related subsection of the statute provides that 'no state of mind need be proved with respect to the circumstance ... that the law enforcement officer is an officer or employee of the Federal Government.'" Bruce, 868 F.3d at 181 (quoting § 1512(g)(2)). By permitting federal witness tampering murder charges in a setting where there was not pending federal proceeding, and where the defendant need have no knowledge of a potential federal proceeding, § 1512 could be construed to permit federal prosecution of witness tampering in instances where the federal involvement in a case was largely conjectural or hypothetical.
The potential breadth of the statute raised concerns in the courts, which were eventually resolved by the United States Supreme Court in Fowler v. United States, 563 U.S. 668, 678, 131 S. Ct. 2045, 2052, 179 L. Ed. 2d 1099 (2011). In Fowler, the Court held that to satisfy the federal jurisdictional elements of § 1512, "the Government must show that the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical." Fowler, 563 U.S. at 678. Instead, in order to meet this jurisdictional nexus, the Court held that:
[T]he Government must show a reasonable likelihood that, had, e.g., the victim communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer. That is to say, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with
federal law enforcement officers only if it is reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer.Id., at 677-78 (emphasis in original). Construed in this fashion:
After Fowler, a conviction for witness tampering murder requires the Government to 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) a reasonable likelihood that the person whom the defendant believes may communicate with law enforcement would in fact make a relevant communication with a federal law enforcement officer. Tyler, 732 F.3d at 252Bruce, 868 F.3d at 184 (emphasis in original). In this setting, the courts have also prescribed what must be shown to demonstrate a reasonable likelihood of the communication of information to federal law enforcement officials. On this score:
Establishing a reasonable likelihood requires "evidence—not merely argument of the witness's cooperation with law enforcement." Id. (internal quotation marks omitted). The statute nevertheless reaches conduct that "takes place before the victim has engaged in any communication at all with law enforcement officers—at a time when the precise communication and nature of the officer who may receive it are not yet known." Fowler, 563 U.S. at 673, 131 S.Ct. 2045. And in this regard, the Government "need not prove that a federal investigation was in progress at the time the defendant committed a witness-tampering offense." Tyler, 732 F.3d at 252 (brackets and internal quotation marks omitted). Nor must the Government show that such a communication, "had it occurred, would have been federal beyond a reasonable doubt." Fowler, 563 U.S. at 678, 131 S.Ct. 2045. The Government need only show that "the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical." Id. This is a "relatively low bar." Smith, 723 F.3d at 518.Bruce, 868 F.3d at 185. Of course, this relatively "low bar" for the government presents a "high hurdle" for a petitioner like Champagne, who must carry a "heavy" burden of proof and make an "extraordinary showing" of innocence to successfully attack the jurisdictional element of this offense. Id.
In practice, when considering a post-conviction challenge to the jurisdictional aspects of a witness murder conviction under § 1512, we are enjoined to examine a number of factors in determining whether this jurisdictional nexus is satisfied. First, courts consider whether the underlying crimes under investigation included offenses that were undisputed federal offenses. Bruce, 868 F.3d at 185. Furthermore, "the fact that a federal investigation ultimately occurred after [the witness'] murder is probative evidence of the likelihood that they would have eventually communicated with a federal officer." Id. at 186. In addition, courts ask whether the circumstances of the underlying state case include elements of witness intimidation that make "federal intervention essential." Id. Finally, courts will consider whether any "additional evidence outside of [the] trial record confirms that federal involvement was necessary and inevitable." Id. at 187-88.
C. Champagne's Petition for Writ of Habeas Corpus Should Be Denied.
Judged by these standards, Champagne's petition for writ of habeas corpus fails as a matter of law. As we have observed, the Third Circuit has stated:
After Fowler, a conviction for witness tampering murder requires the Government to 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) a reasonable likelihood that the person whom the defendant believes may communicate with law enforcement would in fact make a relevant communication with a federal law enforcement officer. Tyler, 732 F.3d at 252Bruce, 868 F.3d at 184 (emphasis in original). In this case, Champagne does not dispute that he killed the victim in this case, Brewster Bullard, and that he murdered Bullard at the behest of other members of the Huns Motorcycle gang in order to silence Bullard, who had begun cooperating in an investigation of interstate human trafficking. Instead, Champagne simply insists that there is a fatal failure of proof on those elements of the offense that require a showing of the likely federal character of the investigation in which this witness was murdered.
In order to satisfy this jurisdictional nexus under § 1512, "the Government must show that the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical." Fowler, 563 U.S. at 678. The Government meets this burden if the evidence demonstrates "a reasonable likelihood that, had, e.g., the victim communicated with law enforcement officers, at least one relevant communication would have been made to a federal law enforcement officer. That is to say, where the defendant kills a person with an intent to prevent communication with law enforcement officers generally, that intent includes an intent to prevent communications with federal law enforcement officers only if it is reasonably likely under the circumstances that (in the absence of the killing) at least one of the relevant communications would have been made to a federal officer." Fowler v. United States, 563 U.S. 668, 677-78, 131 S. Ct. 2045, 2052, 179 L. Ed. 2d 1099 (2011)(emphasis in original).
In the instant case, we find that the evidence amply satisfies the jurisdictional prerequisites for a conviction under § 1512. That evidence reveals that federal involvement in this investigation was not merely a reasonable likelihood; rather, at the time that Champagne executed Bullard, federal authorities were actively involved in this human trafficking investigation. Moreover, Labak and Squillante—two of the principals in this human trafficking network linked to the Huns Motorcycle gang—were well aware of this investigation when they contracted the murder of Bullard. In fact, the subjects of this investigation were specifically aware of the federal involvement in the investigation at the time they hired Champagne to execute Bullard, as they had received a notice from the IRS that it was conducting an inquiry into this matter. Further, Bullard was clearly seen by the principals behind this gang-related human trafficking network as a potential witness in this on-going state and federal investigation. In fact, it was Bullard's cooperation with the authorities that directly led to his execution-style slaying. Furthermore, this human trafficking network was actually prosecuted by federal authorities, notwithstanding the efforts of Labak, Squillante, and Champagne to obstruct that investigation through the murder of Brewster Bullard, a potential witness in this case.
On these facts, there was not simply a reasonable likelihood that, had he survived, Bullard would have communicated with federal authorities. Rather, if he had lived, Bullard's communications with federal officials would have inevitably occurred, as they prosecuted this gang-related human trafficking network in which he had participated for the federal crimes they had committed. Such proof is more than sufficient to satisfy this jurisdictional element under § 1512.
Further, when we consider this case in light of the criteria outlined by the court of appeals in Bruce, 868 F.3d 170, the sufficiency of the proof on this federal jurisdictional nexus is self-evident. In Bruce, the court observed that when determining whether this jurisdictional requirement is met, courts should first consider whether the underlying crimes under investigation included offenses that were undisputed federal offenses. Id., at 185. In addition, "the fact that a federal investigation ultimately occurred after [the witness'] murder is probative evidence of the likelihood that they would have eventually communicated with a federal officer." Id. at 186.
The proof here more than meets these two elements. Interstate human trafficking by members of a violent motorcycle gang undoubtedly violates multiple federal statutes and, in fact, the principals behind this criminal activity were charged and convicted in federal court for their roles in this corrupt, criminal trade in human lives. Further, the federal involvement in this investigation was current, active, and on-going at the very time that Bullard, a potential witness who had begun to cooperate with authorities, was executed by Champagne at the behest of other gang members. It is difficult to imagine a more highly probative form of proof of murder of a witness to prevent the communication of information to federal authorities than the actual killing of a potential witness in a case being actively investigated by state and federal authorities.
As for the remaining relevant factors identified by the appellate court in Bruce—whether the circumstances of the underlying state case include elements of witness intimidation that make "federal intervention essential" and whether any "additional evidence outside of [the] trial record confirms that federal involvement was necessary and inevitable"—the evidence clearly confirms the necessity of federal involvement in this case. The underlying human trafficking investigation and prosecution, which led Bullard's former confederates to murder him when he began cooperating with law enforcement, involved the commercial sexual exploitation of women by men affiliated with a violent motorcycle gang. The scope and nature of the offenses under investigation, as well as the brutal character of the criminal defendants—who relied upon fear and intimidation to compel compliance with criminal acts and ensure silence about those acts through fear of harm—plainly made federal involvement essential, necessary, and inevitable.
Indeed, the savage nature of these human traffickers was set forth by the government in chilling detail during Squillante's sex trafficking sentencing, where the United States presented evidence that trafficked women were kidnapped, locked in car trunks, handcuffed to bed posts, threatened with murder or with being burned alive, stripped, and beaten. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Phillip A. SQUILLANTE, Defendant-Appellant., 1997 WL 33627901, 6-12 (C.A.11). The purpose of this savagery was to intimidate and obstruct disclosure of these crimes since this brutality was designed to serve "as an example to others in [t]his organization; the message was that if they 'crossed him,' something would happen to them." Id., at 6. Given the conspirators' history of brutality, it is hardly surprising that Brewster Bullard voiced a fear for his life when he broke this code of silence and intimidation by cooperating with investigators, and the tragic reality that Bullard's fears proved prophetically true are graphic proof that witness intimidation made "federal intervention essential" in this case and that "federal involvement was necessary and inevitable." Bruce, 868 F.3d at 186-88.
In sum, in order to defeat Champagne's claims in this petition, "[t]he Government need only show that 'the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical.' Id. This is a 'relatively low bar.' Smith, 723 F.3d at 518." Bruce, 868 F.3d at 185. In contrast, Champagne faces a "high hurdle" when he invites us to set aside his conviction for his role in execution-style murder of a potential federal witness based upon a claim that, while he killed a potential witness, it was not reasonably likely that this witness would have been involved in a federal investigation and prosecution. In order to set aside this conviction, Champagne would have to persuade us that he has carried his "heavy" burden of proof and made an "extraordinary showing" of innocence. Id.
Champagne has made no such showing here, nor can he. This is not a case where the federal involvement in the investigation that Champagne obstructed through murder was conjectural, hypothetical or outlandish. Quite the contrary, the proof of the federal involvement in this investigation is extensive, persuasive, clear, and compelling. Accordingly for the foregoing reasons, we recommend that this petition for writ of habeas corpus be denied.
III. Recommendation
For the reasons set forth above, it is RECOMMENDED that the Court deny Champagne's petition for a writ of habeas corpus. (Doc. 1).
The parties are placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 9th day of May 2019.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge