Lobbins v. United States, No. 15-6386 (6th Cir. 2018)
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Lobbins was detained at the Davidson County Criminal Justice Center, awaiting trial on federal charges related to his gang membership. Another gang member, Churchwell, was awaiting trial on state charges of murdering a Vanderbilt professor. Churchwell boasted about committing the murder. Inmate Boyd relayed that information to a state prosecutor. Churchwell heard about Boyd’s cooperation and said that he was “going to have Maurice f***ed up.” Lobbins entered Boyd’s cell with a shank and repeatedly stabbed him. The government added a federal charge for witness tampering, 18 U.S.C. 1512(a)(2)(A) and 1512(a)(2)(C). The Sixth Circuit affirmed Lobbins’s convictions. Lobbins then unsuccessfully moved to vacate his witness tampering sentence.
The Sixth Circuit reversed. The “reasonable likelihood” standard applies to section 1512(a)(2)(C) but the district court instructed the jury to apply a lower standard: whether, absent the attack, Boyd “might” have spoken to a federal officer. The Vanderbilt murders were investigated and prosecuted by the state. Boyd spoke to a state prosecutor, not a federal one; there was no evidence that Boyd was reasonably likely to talk to a federal official. The statute requires the likelihood of “communication” to a federal official about “the commission or possible commission of a Federal offense.” That Lobbins and Boyd were federal detainees does not support any inference that Boyd was likely to talk to a federal official about Churchwell. Had the jury been properly instructed, it would have probably voted to acquit. A defense lawyer’s failure to object to an erroneous jury instruction that materially lightens the government’s burden of proof is typically deficient performance.
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