No. 23-1179 ___________________________

United States of America

Plaintiff - Appellee

v.

Roylee Richardson

Defendant - Appellant ____________

Appeal from United States District Court for the Southern District of Iowa - Eastern ____________

Submitted: October 20, 2023 Filed: February 7, 2024 ____________ Before GRUENDER, STRAS, and KOBES, Circuit Judges. ____________ STRAS, Circuit Judge.

A jury found Roylee Richardson guilty of witness tampering, 18 U.S.C. § 1512(b), and possessing a firearm as a felon, id. § 922(g)(1). Although he argues that the district court1 should have acquitted him of the former and prevented the jury from hearing about so many of his prior felony convictions, we affirm.

I.

Richardson’s problems began after his then-girlfriend reported that he had “pistol-whipped” her and shot at her would-be rescuer’s van. The harassment continued after his arrest. In a series of recorded jailhouse calls, he tried to get her to recant or refuse to testify, both directly and through others. After the jury heard the recordings, it found him guilty of two counts of witness tampering.

II.

Sufficient evidence supported the verdict on both counts. Witness tampering has two elements. See United States v. Craft, 478 F.3d 899, 900 (8th Cir. 2007). First, the defendant must “knowingly use[] intimidation, threaten[], or corruptly persuade[] another person,” such as a victim. 18 U.S.C. § 1512(b). Second, he must intend to “influence, delay, or prevent” another’s testimony “in an official proceeding” or “cause or induce” the person to “withhold” it from one. Id. § 1512(b)(1), (2)(A); see also United States v. Little Bird, 76 F.4th 758, 762 (8th Cir. 2023) (setting out the elements for a conviction under § 1512(b)(1)); United States v. Crippen, 627 F.3d 1056, 1065 (8th Cir. 2010) (describing the elements under § 1512(b)(2)(A)). In evaluating the sufficiency of the evidence, our review is de novo, but we must view the evidence in the light most favorable to the verdict and draw all inferences in favor of the government. See United States v. Water, 413 F.3d 812, 816 (8th Cir. 2005).

1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for the Southern District of Iowa. -2- A.

Richardson’s first witness-tampering conviction arose out of a flurry of calls just days after his arrest. No federal prosecution existed yet, so the question is whether it is possible to “influence, delay, or prevent” someone’s testimony in a not-yet-pending “official proceeding.” 18 U.S.C. § 1512(b)(1).

Not just any proceeding will do. It must be federal, such as one “before a judge or court of the United States” or “a [f]ederal grand jury.” Id. § 1515(a)(1). State proceedings do not count. See United States v. Petruk, 781 F.3d 438, 444 (8th Cir. 2015).

The “official proceeding,” although it has to be federal, does not have to “be pending or about to be instituted at the time of the offense.” 18 U.S.C. § 1512(f)(1). As long as a “particular, foreseeable” federal proceeding was “contemplated,” Petruk, 781 F.3d at 445 (emphasis added), at the time the “intimidation, threat[], or corrupt[] persua[sion]” took place, 18 U.S.C. § 1512(b), the crime is complete.

Proving this type of “nexus” to a not-yet-pending proceeding can be a challenge. Petruk, 781 F.3d at 445. In Petruk, we consider