if please the court my name is robert ray but i represent the appellant christopher johnson the follower case requires probability over possibility when it comes to prove the federal nexus in witness tampering cases the jury had to decide whether there was a reasonable likelihood at the time christopher johnson turned in his misleading report about the assault on the i assault on the inmate that's the possible federal offense the would it have come to the attention of federal law enforcement officers would that assault have come to the attention of federal law enforcement officers and the element of the offense the federal nexus is required to be proven in this case at that time the defendant contends there was insufficient evidence that the assault that there  is a reasonable likelihood that the assault would have come to the attention of the jury has to answer the question you know they have to find was there a reasonable likelihood that the salt would have been investigated by federal law enforcement officers in this case the government suggest basically two reasons why  is that mean there was a reasonable likelihood that law enforcement officers at the time would have  that just means that the prosecutor gave his use of force expert all the material the other suggestion by the government in this case that there is a reasonable likelihood is the defendant answered question a question in a test years before on the  standard that's applicable to all that's been demonstrated in you is a crime demonstration he knew it was unconstitutional or should have known that but that doesn't have anything to do with whether he realizes there was a federal crime so well and even if he you know there  a federal crime that shows knowledge and it only shows there's a possibility the fact that this the assault could be a federal crime only means there's a possibility that federal investigators could investigate doesn't mean it would have happened in this case we show the court in our briefs cases where it's been demonstrated there's a reasonable possibility we say lopez in that case there was a current in federal investigation going on that's one of the factors that fall or states but we also have united states versus mason part of the evidence that the f b i would regularly monitor local around contact local authorities when they were proactive in searching out these kind of cases that was given to the jury there's nothing similar in this case  r put in i mean for example there might be evidence available and as to how many of these kinds of prosecutions were brought nationally over the past ten years i soon it's pretty miniscule right right so why wouldn't but why wouldn't they put it in the report i mean why wouldn't they include that why wouldn't include that information in his report this testimony as he didn't see it he didn't see the incident he didn't see because he's holding down the high rise that he obviously lost that he lost that the point is not why they went put it federal as opposed to state authorities it just has to be that there is a reasonable likelihood that there will eventually end up with federal authorities if his his intent could have been i did i didn't want to tell my supervisor because i didn't want to be he was supposed to do the report i mean it's the first of all the glaring omission but it was repeated it's not and it's all good on film and surely that he was aware that and the jury was aware that it was all captured on film as occurred in a jail in a detention facility right the rationale that he might not have been misleading since everybody knows it's captured it's not three reports there's a  it's the incident report that the whole lot when you say accurate enough it's that nothing about the kicking right now does it doesn't have to that one doesn't have to answer the question is it didn't write it did not ok so then what's the second report call that's the incident report when somebody reports that they have suffered pain christopher johnson once he learned that from the nurse immediately reported that to his jail a brutal beating where hospitalization occurs broken bones loss teeth loss of sight it's merely pain in this case all that well i'm not sure you want to go down that path because that's very concerning response to me but what's the third report i think it's the one that wasn't followed up on right it's the use of force report that contains the same information that's in the incident report it's an identical report it's for internal  how many of these type of incidents are internal in santa barbara right but it's contains the same information but a report that's not prepared can be misleading so the only misleading report is the real is the incident report a report that's not prepared can't be misleading he was ordered to prepare the report he was supposed to prepare the report according to policy and he didn't hit  it it's surely i sure read it as an as yet another attempt to try to find that this incident took place and i'm missing something what we're missing is how the report you not challenging the evidence as to whether or not it was i don't see you don't agree with him but there was a conviction saying that this was in fact misleading and corrupt only element of the statute that's an somewhat successful particularly in argument section and the final footnote to point out that we are not contesting follows application to be three case even though b three cases are scorpios somewhat different than the a one to use a filed a little broader a little more language misleading conduct versus other there's a different language we are challenging although we don't think it's in this essential challenge the court as the district court did can take and we in applying fall or we just don't think follow applies here because fowler and this is something that's overlooked by our friend and opposing counsel is follows the hypothetical communication situation the case of the witness who's killed the police officer in that case before he or she can communicate and for that hypothetical communication situation fowler comes up with a test that seems to be very workable in the federal courts in the several years that it's  been used although not frequently addressed in this court night circuit we have an actual transmission and that goes back to some of the questions by this court judge kristen the incident report the safety cell report are both an issue things that were raised in the papers and again this morning fowler clearly rejects and in fact one of the cases the fed it relies on smith from the fourth circuit articulate how follow clearly rejects a probabilistic test or being of interest to a federal prosecutor is pretty minuscule well that's a wild guess a lot even if nothing in the record allowed me to retort on that we do have a civil rights section in my office and i'm a part of that the agent in this case was a civil rights minuscule i don't know but if it's not whether it's miniscule or as a miniscule is nothing in the record of let me give you what's in the record if i may we have both experts martin and there were talking about receiving f b i reports and santa barbara county investigation reports martin that the government's expert i think it's at four thirty four talks also about the fact that this inmate c e o as he's known reported his injury to his public defender  on johnson's what he knew i don't know what relevance it is what that what his training was about grammar or anything else what relevance is that training goes to the reasonable likelihood that when he with this officer did prepare the glaring omissions because this was a brutal by the defendant is a case for maryland district court case it doesn't have a published opinion but it's memorandum of disposition from march twenty fifth two thousand and fourteen is instructive it's a case where the district court in that case and i know it's a district court not in any way binding on this court says that the glaring just distinction between what an officer reports and incident can also give rise to the reasonable inference that the officer when that officer is intentionally misleading when the conduct is happen dispute about the me the evidence on every other point it's only at this juncture really are you are that that that the glaring omission the difference between what we see on the video what we see in the reports is one additional in disha that this person was seeking all is a report that's used to gather all statistics about this type of thing was there anything in trial or or through the expert testimony about that fact there was no there there was nothing at in trial about statistics there was nothing trial specifically about the court's point that the third report was not prepared it should have been but was not an investigation was by sergeant osborn sergeant osborn testify that he was told by his lieutenant to stand down after a few days and he wasn't sure how to take that whether there was an suggestive of the fact that there was some kind of federal investigation that the fact that matt made it to the feds there was further evidence that this individual mr johnson had taken the oath to the constitution certain that is a constitution as both federal and state it's not limited in other words the limiting principle that we would object to that opposing counsel is asking for would be that it's only for state investigation or local investigation when  dept i believe was probably four to six years but i could be wrong and an opposing counsel would would know better than me on that what was the scope of the evidence on their training that they get relatively a balance scope we had sergeant dickey testify in regards to the training that the officers receive both generally and specifically in this case santa barbara county sheriff's department separates its custodial involved in a beating if a pretrial detainee the feds might come in investigate well i will add that there is no reference to the feds in the trial you know to be perfectly clear on the record that the feds will come  investigate language like that was not there but also point to the court to the use of force policy i would point the court first to the government's excerpts of record which we believe from the incident reports which were not in the excerpt of record through the use of force policy three hundred point five which talks about the need for an investigation when there's a use of force again it's the need for an investigation could someone say oh that's only a state best acacias possibly but this now at this stage is could no reasonable trial or fact find that there was no reasonable likelihood and we would submit your honor that that's a threshold that can't be met here that no reasonable trier of fact could find that there was no reasonable likelihood we think the district court got it right somebody actually does get prosecuted by the federal by the feds for a civil rights violation where you can see how is it anything in this record that distinguishes it from any other case  is a crazy maybe it's just crazy statute but there seems to be an element here that seems to be independent of the fact that there was in fact a federal prosecution with a federal crime foller and it's progeny make i think clear that it's not element and i suspect the court was using that term colloquially i am if you're asking about the indictment problem no i'm not saying that it is an element of the sense of the jury had a fight it's an aspect and while the jury had to fight the jury certainly and they were properly instructed and that's at yard ten fifty eight by the way the court asked the jury was properly instructed we believe the quantum of proof was out of just briefly what is what what if if this record is sufficient what is there any chance that there's any prosecution of this kind in which the i won't be fun but your honor there is i mean you take you back out martin cameron's testimony without investigators without thank you very much matter we'll hear from minute rebuttal to put points fall or says the fact that there is a prosecution doesn't mean that there's a likelihood at all that it means it's there's a possibility you can't take the fact that the case is being tried and say we ended up here there must have been the possibility the fact that expert witnesses are called during the trial and report on what they've received doesn't mean there's a reasonable likelihood quoting  referencing hum or the case that was just talked about in that case they called the f b i agent which was not done here the f b i agent said we prosecute local law enforcement attacks on inmates this is part of our jurisdiction the f b i officer testified that incident before this case we've received reports from our local law enforcement officers about such cases the local law enforcement officer testified i've worked with the f b i in the past i've given the f b i such investigative reports as i did in this case that the evidence and hummer that shows the reasonable likelihood that the evidence that's missing here that's they have that's similar evidence was  given in all the other cases that i cited showing the real nexus showing how a case gets from local law enforcement to federal law enforcement there's no there's a gap here