FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CHRISTOPHER MICHAEL JOHNSON,

Defendant-Appellant.

No. 16-50018

D.C. No.

2:14-cr-00208-

BRO-1

OPINION

Appeal from the United States District Court

for the Central District of California

Beverly Reid O’Connell, District Judge, Presiding

Argued and Submitted March 10, 2017

Pasadena, California

Filed November 2, 2017

Before: Richard A. Paez, Marsha S. Berzon,

and Morgan Christen, Circuit Judges.

Opinion by Judge Paez
2 UNITED STATES V. JOHNSON

SUMMARY*

Criminal Law

The panel reversed the district court’s denial of the

defendant’s motion for a judgment of acquittal in a case in

which the defendant was convicted of obstruction of justice

under 18 U.S.C. § 1512(b)(3) for failing to include material

information about the use of force upon an inmate in reports

documenting the encounter with the inmate.

The panel held that the “reasonable likelihood” standard

articulated in Fowler v. United States, 563 U.S. 668 (2011),

applies to the federal nexus requirement of § 1512(b)(3). 

Applying the Fowler standard, the panel held that there was

insufficient evidence for any rational juror to find that it was

reasonably likely that the defendant’s reports would have

reached federal officers.

COUNSEL

Robert Rabe (argued), Muna Busailah, and Michael P. Stone,

Stone Busailah LLP, Pasadena, California, for DefendantAppellant.

Bruce K. Riordan (argued), Assistant United States Attorney,

Public Corruption and Civil Rights Section; Lawrence S.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. JOHNSON 3

Middleton, Chief, Criminal Division; United States

Attorney’s Office, Los Angeles, California; for PlaintiffAppellee.

OPINION

PAEZ, Circuit Judge:

Defendant Christopher Johnson (“Johnson”) appeals his

obstruction of justice conviction under 18 U.S.C.

§ 1512(b)(3). The basis for Johnson’s prosecution was his

failure to include material information about the use of force

upon an inmate in several reports documenting the encounter

with the inmate. On appeal, Johnson argues that the

Government failed to present sufficient evidence of a federal

nexus for the alleged offense.

Reviewing de novo and applying the federal nexus

standard established in Fowler v. United States, we agree. 

More precisely, we hold that there was insufficient evidence

for any rational juror to find that it was reasonably likely that

Johnson’s reports would have reached federal officers. We

therefore reverse the district court’s denial of Johnson’s

motion for a judgment of acquittal under Federal Rule of

Criminal Procedure 29.

I.

On June 17, 2013, Johnson was a custodial deputy

working in the control room of the Santa Barbara County

Main Jail Inmate Reception Center (“IRC”). A pre-trial

detainee, C.O., began using the emergency intercom system

to contact the control room with non-emergency calls. As a
4 UNITED STATES V. JOHNSON

result, Johnson enlisted Kirsch, another deputy, to accompany

him to the detainee’s cell to “counsel” him about proper

usage of the intercom system. When C.O. responded

belligerently, Johnson and Kirsch handcuffed the detainee

and proceeded to lead him to a more secure area. At the end

of a hallway, Johnson and Kirsch were forced to pause in

order to get through a secure door.

Although it is unclear what, exactly, prompted the

following sequence of events, Johnson testified that, while

waiting at the door, he instructed C.O. to stop talking and face

the wall, but C.O. did not do so. Together, Johnson and

Kirsch then completed a “takedown” of C.O., forcing him

onto the floor, in order to “gain control” of him. While C.O.

was on the floor, Kirsch proceeded to strike him in the

stomach with his foot and knee multiple times. At the same

time, other officers were approaching the scene. Deputy

Janette Reynoso momentarilyseparated Kirsch andC.O., who

was soon lifted off the ground and led through the secure

door to a “safety cell.”1

Johnson informed his supervisor, Sgt. Ronald Osborne,

that he and Kirsch had placed Owens in a safety cell because

he was being combative. At Sgt. Osborne’s instruction,

Johnson wrote and submitted a safety cell report about “20 or

30 minutes” after the hallway incident. Later that day, C.O.

complained of pain, which triggered two additional reporting

requirements—an incident report and a duplicative use-offorce report. Johnson apparently wrote an incident report at

1 According to Johnson’s testimony, safety cells are used to house

inmates “who are a danger to themselves, suicide watch or just harming

themselves in any way, danger to staff or other inmates, or damaging

county property.”
UNITED STATES V. JOHNSON 5

some point, but Sgt. Osborne never received it. Neither the

safety cell report nor the incident report mentioned any kicks

or knee strikes.

On April 10, 2014, a grand jury indicted Kirsch and

Johnson for assaulting C.O. in violation of 18 U.S.C. § 242. 

Additionally, the grand jury indicted Johnson for obstructing

justice in violation of 18 U.S.C. § 1512(b)(3). Section

1512(b)(3) provides, in relevant part:

Whoever knowingly uses intimidation,

threatens, or corruptly persuades another

person, or attempts to do so, or engages in

misleading conduct toward another person,

with intent to . . . . hinder, delay, or prevent

the communication to a law enforcement

officer or judge of the United States of

information relating to the commission or

possible commission of a Federal offense . . . .

shall be fined . . . or imprisoned not more than

20 years, or both. § 1512(b)(3) (emphasis

added).

The first jury trial ended in a mistrial. After a second

trial, a new jury found Kirsch and Johnson not guilty of

assault. The jury did find Johnson guilty of obstruction of

justice, however. Johnson moved for a judgment of acquittal,

for a new trial, and to dismiss the indictment. He argued that

Fowler v. United States, 563 U.S. 668 (2011) applied to

§ 1512(b)(3), requiring the Government to prove that there

was a “reasonable likelihood” that he intended to hinder

communication to an officer of the United States, specifically,

which he argued it failed to do. The district court denied all

three motions. Although the court agreed that Fowler
6 UNITED STATES V. JOHNSON

applied, it ultimately concluded that the Government had met

the “reasonable likelihood” standard. We agree on the former

point, but not the latter.

II.

In the context of a Rule 29(c) motion for a judgment of

acquittal, we review de novo the sufficiency of the evidence. 

See United States v. Nevils, 598 F.3d 1158, 1163–64 (9th Cir.

2010) (en banc). In reviewing the constitutional sufficiency

of the evidence, we must determine whether, “after viewing

the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential

elements of the crime.”2Jackson v. Virginia, 443 U.S. 307,

319 (1979); United States v. Katakis, 800 F.3d 1017, 1023

(9th Cir. 2015).

2 Under Jackson, inquiries into the sufficiency of evidence proceed in

two steps. Jackson, 443 U.S. at 319. “First, a reviewing court must

consider the evidence presented at trial in the light most favorable to the

prosecution.” Nevils, 598 F.3d at 1164. At this step, “a reviewing court

‘must presume—even if it does not affirmatively appear in the

record—that the trier of fact resolved any . . . conflicts in favor of the

prosecution, and must defer to that resolution.’” United States v. Del

Toro-Barboza, 673 F.3d 1136, 1143 (9th Cir. 2012) (quoting Jackson,

443 U.S. at 326).

“Second, . . . the reviewing court must determine whether this

evidence, so viewed, is adequate to allow ‘any rational trier of fact to find

the essential elements of the crime . . . .’” Nevils, 598 F.3d at 1164

(internal alteration omitted). “At this second step, however, a reviewing

court may not ask itself whether it believes that the evidence at the trial

established guilt[,] . . . only whether any rational trier of fact could have

made that finding.” Del Toro-Barboza, 673 F.3d at 1143–44 (internal

quotation marks omitted).
UNITED STATES V. JOHNSON 7

III.

As a threshold matter, we agree with Johnson and the

district court that Fowler’s reasonable likelihood standard

applies to 18 U.S.C. § 1512(b)(3). The defendant in Fowler

challenged a witness tampering conviction under 18 U.S.C.

§ 1512(a)(1)(c), a similar investigation-related provision of

the same statute at issue here. Fowler, 563 U.S. at 670–71.3

Acknowledging that the statute expressly states that “no state

of mind need be proved” to establish the federal status of the

officer, see 18 U.S.C. § 1512(g)(2), the Supreme Court first

held that the Government was not required to show that the

defendant had particular federal officers in mind, Fowler,

563 U.S. at 672–73. The Court explained that “any such

limitation would conflict with the statute’s basic purpose” of

preventing witness tampering. Id. at 673.

But the Court concluded that “more than the broad

indefinite intent” to prevent communication with law

enforcement officers, generally, was required. Id. at 674. 

The Court reasoned that requiring only a broad intent without

a federal nexus would “extend[] the scope of this federal

statute well beyond the primarily federal area that Congress

had in mind.” Id. at 675. The Court then looked closely at

the language of § 1512(a)(1)(c). Examining the dictionary

definition of the word “prevent,” id. at 674–77, the Court

concluded that the Government had to demonstrate a

3

 Section 1512(a)(1)(c) punishes “[w]hoever kills or attempts to kill

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) (emphasis added).
8 UNITED STATES V. JOHNSON

“reasonable likelihood” that the information would have

reached federal officers, id. at 677–78.

We hold that the Court’s reasoning applies with equal

force to § 1512(b)(3). As an investigation-related provision

of the same statute, subsection (b)(3) enjoys the same

fundamental purpose and scope as subsection (a)(1)(c). And

its similarly-worded text compels the same conclusion, as our

sister circuits have recognized. See United States v. Veliz,

800 F.3d 63, 74 (2d Cir. 2015) (explaining that, even before

Fowler, the Second Circuit “applied the same federal nexus

test to both subsections ‘because the elements of subsection

(b)(3) are similar to the elements of subsection (a)(1)(C)’”)

(quoting United States v. Diaz, 176 F.3d 52, 91 (2d Cir.

1999)); United States v. Chafin, 808 F.3d 1263, 1274 (11th

Cir. 2015) (vacating a § 1512(b)(3) conviction because “the

district court should have analyzed the evidence under

Fowler’s reasonable likelihood standard”); United States v.

Shavers, 693 F.3d 363, 378–79 (3d Cir. 2012) (grouping

together §§ 1512(b)(3) and (a)(1)(C) as “investigation-related

provision[s]”), vacated on other grounds, Shavers v. United

States, 133 S. Ct. 2877 (2013) (mem.).

The Government protests that Fowler is inapplicable

because it involved “a hypothetical communication,”

whereas, here, an actual communication must have made its

way to federal officers for Johnson to be prosecuted. At best,

this argument amounts to a distinction without a difference. 

At worst, it is a limitation that swallows the rule. Indeed,

every federally prosecuted case must necessarily involve an

actual communication to federal officers at some point. To

argue, therefore, that an actual communication renders

Fowler inapposite is to make Fowler a nullity. We decline to
UNITED STATES V. JOHNSON 9

read Fowler in this nonsensical way. Fowler’s standard

applies to the federal nexus requirement of § 1512(b)(3).

IV.

Applying the Fowler standard, we conclude that the

Government failed to present sufficient evidence to show that

there was a reasonable likelihood that the communication

would reach a federal officer. The Government’s evidence

established nothing “more than [a] remote, outlandish, or

simply hypothetical” possibility that Johnson’s reports could

have reached a federal officer. Fowler, 563 U.S. at 678. 

Viewing the evidence in the light most favorable to the

Government, no rational trier of fact could have found the

federal nexus element of the crime.

A.

As the Supreme Court made clear in Fowler, the

“reasonable likelihood” standard requires neither proof

“beyond a reasonable doubt, nor even . . . more likely than

not.” Fowler, 563 U.S. at 678. But the Government must

demonstrate that the likelihood was “more than remote,

outlandish, or simply hypothetical.” Id. Beyond these basic

parameters, the Court essentially left “it to the lower courts to

determine whether, and how, the standard applies.” Id.

Our sister circuits’ approaches have diverged in the wake

of Fowler. Prior to Fowler, the Third Circuit held that the

federal nexus element “may be inferred by the jury from the

fact that the offense was federal in nature, plus additional

appropriate evidence.” United States v. Bell, 113 F.3d 1345,

1349 (3d Cir. 1997) (internal quotation marks omitted);

United States v. Stansfield, 101 F.3d 909, 918 (3d Cir. 1996). 
10 UNITED STATES V. JOHNSON

As the district court recognized, the Third Circuit identified

“(1) proof that ‘there was a federal investigation in progress’

at the time . . . or (2) proof that the defendant had ‘actual

knowledge of the federal nature of the offense’” as examples

of “additional appropriate evidence.” (quoting Stansfield, 101

F.3d at 918 & n.4). After Fowler, however, the Third Circuit

abandoned the “additional appropriate evidence” approach in

favor of a test requiring “evidence–not merely argument of

the witness’s cooperation with law enforcement” to establish

“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.” Bruce v. Warden Lewisburg USP,

868 F.3d 170, 185 (3d Cir. 2017) (internal quotation marks

omitted); United States v. Tyler, 732 F.3d 241, 252 (3d Cir.

2013).4 Nonetheless, the Second and Fourth Circuits have

carried forward the Third Circuit’s pre-Fowler approach but

require that the “additional appropriate evidence” satisfy

Fowler’s reasonable likelihood standard. Veliz, 800 F.3d at

74; United States v. Ramos-Cruz, 667 F.3d 487, 497 (4th Cir.

2012).

Applying the Third Circuit’s pre-Fowler approach, the

district court determined the Government had sufficiently

shown that “[t]he civil rights at issue here [we]re, in fact,

predominantly federal.” The court also stated that the

Government had provided “additional appropriate evidence”

demonstrating (1) that Johnson “had actual knowledge

regarding the federal nature of the crime,” and (2) that a

4 Still, the Third Circuit “emphasize[d] that 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 (second

alteration in original) (internal quotation marks omitted).
UNITED STATES V. JOHNSON 11

federal investigation into the use-of-force incident involving

Deputies Kirsch and Johnson did, in fact, occur. But the

Government disagrees with this approach, arguing that

“Fowler set forth adequate parameters to permit this Court

and the district courts to engage in case-by-case analysis.”

We need not decide whether to adopt the “additional

appropriate evidence” approach to resolve this case. As we

explain below, we conclude that the Government’s evidence

established only a “remote, outlandish, or simply

hypothetical” possibility that Johnson’s reports would reach

federal officers. Johnson’s motion for a judgment of acquittal

therefore should have been granted.

B.

At trial, the Government presented minimal evidence of

a federal nexus. First, the Government presented evidence

that the Santa Barbara county sheriff’s use of force policies

incorporated Graham v. Connor, 490 U.S. 386 (1989), which

established that the excessive use of force by law

enforcement officers violates the Constitution. The

Government showed that Johnson received training on

Graham, that he knew of Graham, and that he took an oath of

office to uphold the Constitution. Second, the Government’s

expert witness testified that he reviewed a statement of the

incident that C.O. gave to his public defender. Finally, as the

district court highlighted, the same expert testified that he

reviewed one of Johnson’s reports as well as transcripts of

witness interviews conducted by an FBI agent.

Taken together or separately, this evidence does not

demonstrate that Johnson’s reports were reasonably likely to

reach a federal officer. Even if Johnson knew he was
12 UNITED STATES V. JOHNSON

covering up a constitutional violation, an expert witness’s

passing mention of files he reviewed in preparation to testify

at the second trial does not bear on whether, at the time

Johnson wrote the reports, there was “more than [a] remote,

outlandish, or simply hypothetical” possibility that those

reports would reach a federal officer.

The Government could have met the Fowler standard in

a variety of ways, and likely without much difficulty. 

Evidence suggesting, for example, that federal officials

(1) were in contact with the county jail, (2) had investigated

similar incidents at the jail in the past, or (3) had established

a policy or practice of investigating similar incidents in the

area, of assisting state and local officials with investigations

into such incidents, or of sharing information with state and

local officials, would likely all aid the Government in

satisfying the federal nexus requirement. But, in this case,

the Government’s evidence was too remote.

The judgment is REVERSED.