two thousand and eleven this case more specifically involves whether there is a reasonable likelihood under using the fowler standard that a run of the mill fellow in possession of firearm case which is overwhelmingly prosecuted in state courts could realistically be expected to cause a person to kill someone for fear that that someone would communicate to a federal official about the commission of that offense the appell mr chatman position is that the evidence in this case was insufficient to make that federal jurisdiction and his he takes a position that in fact that the federal prosecution in this simply hypotheticals that the question we have to answer now well what is the standard of review it what happens up in fall or is that fowler is quite specific in that it holds that initially when the case comes into the court in two thousand and eleven the it only required that there be a possibility that there might be a communication to a federal official and fowler quite expressly says that it's going to restrict that that type of holding and so it does so because that would transform a federal oriented statute to one that would deal with crimes that as a practical matter  purely state in nature and it says that congress specifically did not seek to change the federal state ballots so it set up a basically a framework that required that there yes and so and in doing so it says that we now are going to defer to the circuit courts to come up with the analytical framework for what they do is what are you looking at it it is to denote the no review giving the evidence of the of the case most favorable towards the government as to whether or not this should meet the federal jurisdictional standards snyder you know it it's a situation where are the six circuit court cases that have dealt with this or if you wanted to encapsulate what they have done you would probably could do it with two words one is debt where you have a systematic review in the sense that there's always going to be some type of federal official reviewing what's federal courts or radically where there is no systematic review then you don't have that situation and so snyder looks at it does a two part analysis snyders a seven it was not a reasonable probability that any communication would result that's right and that's very similar obviously to this case you have only in tulsa county we did present those figures to percent of those were prosecuted federally they were overwhelmingly prosecuted in state court we were is it fair that for instance in new mexico every firearm is prosecuted federally and case if you have that situation in new mexico and that they prosecute all felons in possession of firearms then that is a federal case but you know klahoma were the vast majority of cases are handled in state court is principally a state prosecution and so you have to go complete nd level of analysis in snyder because it's not federally federal in nature and you have to look at cases which are predominantly state in nature and see where they were not and that is the question isn't what's the percentage of filings and state or federal court the question is is there a community likelihood reasonable likelihood of communication with the federal law enforcement yes and you could communicate with federal law enforcement who declined the case yes now here's my question is and maybe the supreme court hasn't done us any pic with the way they laid this out but the jury was instructed to find this reasonable likelihood that is required that the united states must show that the likelihood of communications to a federal officer was not judged searle's language was more than simply or was more than remote outlandish or simply hypothetical so if one in ten cases there was a communication even not a prosecution just communication with federal official when that qualify that's more than remote it's not outlandish well i would say that is not more than i i i don't think it is and i don't think that you're dealing with the lowest parameter that we set out in our valorie in fact asked the circuit courts to come up with a good framework for analysis in a case like this  the lowest parameter so if the jury here said it's something more than remote there's more than a remote chance do we have to affirm you know you don't have to affirm because you can decide under the framework of snyder which i think is a good framework or johnson were you you have to have some policy or practice in place that result in the investigation of this specific type of criminal activity which and so there is a if you have that practice in place so you can have a situation where they're going to be fair there's a reasonable likelihood that federal officials w be some policy or practice in place and two good examples are the farm that the u s attorney that has the is going to charge federally all pharmacy robberies or the case in  you have corruption on a involving miami police officers and wherever you have a police officer that's charged with corruption there's a public corruption a civil rights squat that reviews all of those specific types of cases and so thereby you ensure that there is going to be a communication to a federal official if all you have which is what you have in this case are federal officers occasionally walking the halls of a police department in fact and snyder a federal officer even had an office in the police department that constitutes nothing but a sporadic situation where on one or two or three occasions a year you might get a federal prosecution out of those but there's nothing that reviews all of the cases in that subset to make sure that they are considered for federal prosecution and that's exactly what you have in this case you have six hundred and fifty cases a year that are a felon in possession cases in tulsa county and you have absolutely no policy not by the u s attorney's office not in any kind of state federal squad that reviews all of those cases they might do it in new mexico and i'd have a hard time i think if i were an attorney from new mexico if that's the case but i'm an attorney from the northern district of oklahoma where they don't have that and as a result of that the evidence is insufficient the judge's ruling in this case that the fact that there's this project safe neighborhoods or the fact that the police officers are given car doesn't make the case it you have to have this systematic policy in and this is what this case is doing doesn't matter the does a matter that the a t f officer had heard the radio traffic and was responding to the scene he responded to the scene only eat your sponson seen only after the shooting so the heard on the radio farda quadrille heard it every other policeman heard does that make it more than a possible a potential communication yes because he was going to the scene where issue here is whether at the time that the defendant that's had to to kill the officer who is saying within ten to prevent to prevent a communication to law enforcement in this case the guy was trying to prevent being hit b insufficient provided insufficient evidence of his intent to prevent communications with any law and we'll look at the whole package but the issue on appeal is different the issue on appeal is whether there was sufficient evidence of a reasonable likelihood  would not be natural however merely coincidental that this guy was not a use launch that he was or fish in some place and wouldn't hurt and mean it seems to me that you're you're you're reaching here that that every single crime where somebody is in the nick the good neighborhood association and federal officers are involved therefore it becomes it's a federal crime punishable by a lot of months that is not our  your honor in particular here argument is not based primarily on the a t f agents intention of going to the scene but it is based on officer parsons testimony that in fact he had a coordinate pocket that he would maybe she talked to people about safety in the neighborhood that was not his testimony his testimony was that he had referred numerous cases of this variety to his numerous contacts in the a t f and on this particular occasion had mr chapman gotten out of the car when they wanted him to what would have happened they would have searched the car they would have found the gun they would have checked his criminal history and officer parsons actually testified on page one hundred and seventy eight a volume three of the record that communication and as judge egan found in her order denying a defendant's motion for a new trial whether a case was ultimately prosecuted at the federal level or at the state level is immaterial to whether the there was a likelihood essentially a federal offense but they identify a nd part of that test which i think is satisfied here which is even if this was a case that wasn't necessarily going to be prosecuted federally whether there was a reasona likelihood that a communication would take place and in this case unlike snyder the victim was not one thousand year old girl who drove the getaway car the victim was a cheapie officer who had served as a task force officer at the a t f and who injure instructions that our deemed incorrect and therefore the analysis in all of those cases went to whether those convictions could stand in light of power because the circuit precedent proceeding power had required a much lower is was a deprivation shovel rights where there was a squad permanently working all of those cases and this oklahoma is a collaborative effort of the police department like a neighborhood situation yes it would that results in every case then because they could have a possibility of going into that one of the violation is that there be a part of a that the information be related to the commission or possible commission of a federal offense that is required but that doesn't meet the rd element of fire a feller which is a reasonable likelihood that the yes and what it means is if you look at johnson where they the cases would be reviewed by the feds for possible opening of a case working this exact type of crime and that's what the p s n program in the northern district about one is not in this case that's that's a very louche organizational collaboration in fact it the testimony was bat these types of cases in particular  traffic stops resulted in her felons are we violent criminal histories are found with firearms are precisely the cases that are referred to the northern district of oklahoma to the federal authorities for consideration for prosecution the fact that not all of those cases are prosecuted federally doesn't diminish the reasonable likelihood that that communication will occur in the st look at just this one big picture just getting away from the new show detail of or what is the principle that the court was trying to pronounce and how does this this case fit under that principle just the big picture is the princip that the court was concerned that every tensional federal case provide a basis for add this kind obstruction charge however the way the court addressed that was  requiring something more than the fact that the case could be the basis of federal charges which under the senate it could you broke up there i'm sorry to julie could be what that that every case that could possibly potentially be charged in federal court could be the basis of an obstruction charge if someone was killed or attempted to be killed for that so what the court the supreme court solution for that was to require something more than the mere possibility of federal prosecution but that specific evidence be required to show that reasonable likelihood that the communication would take place in the st instance in this case there is ample testimony that established in this case that that communication would have taken place not just was reasonably likely but was almost certain i'd like to let me and let me tell you what's bothering me and maybe you can respond to that you say that the rule twenty nine argument was not that that's not on appeal but as i look at page eighteen a see that's what i see is that very argument that's made which is the sesame street thing which one of these things is not like the other this case is totally different it's a misfit as compared to the other circuit cases fall or solve they shoot a policeman who comes across to a prospective bank robbers in the graveyard as they're plotting their scheme gang member who they think might tell the nineteen year old getaway driver from the bank they're afraid might tell a shoot there it's very clear to me that they're intimidating a witness by keeping that witness from being able to be involved in the proceedings this one as the trial counsel noted and really his whole closing argument was  if i shoot officer persons then this will probably do nobody will prosecute me for being a felon in possession it's just totally different from those others and we're talking forty years of imprisonment on that byers this whole prosecution not a complete misfit what's intended by that statute the key that i want to draw the court's attention to is that was the basis for the rule twenty nine motion that was in fact trial counsel's best argument in his closing argument and that is not the issue that has been raised in this appeal i referred you to page eighteen where i think that issue is raised i thought the issue in this case was if i understood at is that the question is whether there was a reasonable likelihood of communication to a federal officer that's an issue to what is your response to that this case is not like the others that  there were a jury found and that under a sufficiency of the evidence review that there was sufficient evidence to explain it to me than how did this gentleman who fires a shot after being  he how is he intimidating a witness from being able to talk to law enforcement when there are other law enforcement ensures he not only does diminishes he's not trying to diminish the chance that there is going to be a communication with law enforcement who by firing a gun at a number of law enforcement officer standing outside the minivan with firearms his intent need not have been rational talk and sufficient evidence and there was sufficient evidence that  his concurring opinion did talk about what congress wanted to do with the statute it was congress that it was concerned with preserving the integrity and effectiveness the federal prosecution so that talks about making sure that witnesses who are going to be witnesses in federal trials or who might be involved in federal investigations or imminent federal investigations are not intimidated and this is a case where none of and the answer is they shouldn't have as justice scalia said this case this type of case is one that has only at ten gentle federal interest when you have a thirteen to one prosecution ratio in favor or against does not matter is it isn't the question not whether the likelihood that it's going to be prosecuted federally but that's going to be reported to and review federal ye for consideration for process question and there's virtually no evidence while there isn't any you know understand but i mean isn't that just the question for us not whether it was prosecuted whether for the likelihood that it would be but whether it's the likelihood that it would be reported in review yes there is there is no evidence that any practice was in place to review these federal a felon in possession of firearms cases in the northern district of oklahoma thank you counsel it's a submitted counselor to some we sure to the last case this morning united states versus brown that's case number