F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

C H R I S T O P H E R M I C H A E L J O H N S O N , Defendant-Appellant. N o. 16-50018

D.C. No. 2:14-cr-00208- B RO-1

OPI NI ON

A ppeal from the United States District Court for the Central District of California B everly Reid O’Connell, District J udg e, Presiding

Arg ued and Submitted March 10, 2017 Pasadena, California

F iled November 2, 2017

B efore: Richard A. Paez , Marsha S. B erz on, and Morg an Christen, Circuit J udg es.
Opinion by J udg e PaezU N I T E D S T A T E S V

. J O H N S O N 2

SUMMARY *

Crim inal Law

The panel reversed the district court’s denial o f the defendant’s motion for a j u d gm e nt of acquittal in a case in which the d e fendant w as c o n victed of o bstruction of justice under 18 U.S.C. § 1512(b)(3) for failing to i n clude 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 F

owl er v. United States
, 563 U.S. 668 (2011), applies to the federal nex us requirement o f § 1 5 12(b)(3). A p p ly ing the F

owler standard, the panel held that there wa s 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 (arg

ued), Muna B usailah, and Michael P. Stone, Stone B usailah L L P, Pasadena, California, for D efendantAppellant.

B ruce K. Riordan (arg

ued), Assistant United States Attorney
, P u b lic Corruption and Civil Rig hts Section; L a wrence S

.

* T h is su m m ary co n stitu

tes n o p art o f th e o pin io n o f th e co urt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. J O H N S O N 3

Middleton, Chief, Criminal Division; United States Attorney ’s Office, L os Ang eles, California; for PlaintiffAppellee.

OP INION

PAEZ , Circuit J udg e:

Defendant Christopher J ohnson (“J o hnson”) appeals his obstruction of justice c o n viction under 18 U .S.C. § 1512(b)(3). The basis for J ohnson’s prosecution wa s h is failure to include material information about the use of force
upon an inmate in several reports documenting the encounter with the inmate. O n appea l
, J ohnson arg ues that the Government failed to present sufficient e vidence of a federal

nex us for the alleg ed offense.

Reviewing de n o vo and apply ing t he federal nex us standard established in Fowler v. United Stat e s , we ag ree. More precisely , we hold that there was insufficient evidence for any rational juror to find that it was reasonably likely that J ohnson’s reports w ould have reached feder a l o f f icers. W e therefore reverse the d istrict court’s de n i a l of J ohnson’s motion f o r a judg ment of acquittal under F ederal Rule o f Criminal Procedure 29.

I.

O n J une 17, 2013, J o hnson was a custodial d e put y

w o r k i n g in the control room of the Santa B arbara Count y Main J a i l I nmate Reception Center (“I RC”). A pre-trial de t ainee, C.O., beg an using the e merg ency intercom sy stem to c ontact the control room with non-emerg ency calls. As aU N I T E D S T A T E S V

. J O H N S O N 4

r e sult, J ohnson enlisted Kirsch, another deputy
, to a ccomp a ny him to the detainee’s cell to “ counsel” him about proper

u sag e of the intercom sy stem. W hen C.O. respon d e d bellig erently
, J ohnson a n d Kirsch handcuffed the d etainee and proceeded to lead him to a more secure area. At the e nd

o f a hallway
, J ohnson and Kirsch were forced to pause in order to g et throug h a secure door.

Althoug h it is unclear what, ex a ctly
, prompted the following s e q u ence of e vents, J ohnson testified that, while waiting at the d oor, he instructed C.O. to stop talking and face the wall, but C.O. d i d n o t do so. T og ether, J ohnson a nd Kirsch then c o m p l eted a “ takedown” of C.O., forcing him
onto the floor, in order to “g ain control” of him. W hile C.O.

was on the floor, Kirs ch 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 J anette Rey

noso momentarily separated K i r s c h a n d C

. O., w ho

was soon lifted off the g r ound and led t hroug h the secure door to a “safety cell.” 1

J ohnson informed his supervi sor, Sg t. Ronald Osborne, that he and Kirsch had placed O wens in a safety c ell because he was being combative. At Sg t. Osborne’s instruction, J ohnson wrote and submitted a safety cell report about “20 o r 30 mi n utes” after the hallway incident. L ater that day
, C.O. complained of pain, which trig g ered two additional reporting requirements—an incident r e p ort and a duplicati v e use-offorce report. J ohnson apparently w rote an incident report at

1 A cco rd i n g to J o h n s o n ’ s testim o n y , saf ety c e l l s are u sed to h o u s e in m ates “ w

h o are a d an g er to th em s elv es, su i cid e w atch o r j u st h arm in g th em selv es in an y w ay , d a n ger t o staf f o r o th er in m ates, o r d am ag in g

co un ty p ro p erty .”U N I T E D S T A T E S V

. J O H N S O N 5

some point, but S gt

. O sborne never received it. N either the safety cell report nor the incident report mentioned a ny kicks or knee strikes.

On April 10, 2014, a g rand jury indicted K irs ch a nd J ohnson for assaulting C.O. in v iolation of 18 U.S.C. § 242. Additionally
, the g rand jury indicted J o hnson for obstructing justic e i n v iolation of 1 8 U.S.C. § 1512(b)(3). Section 1512(b)(3) provides, in relevant part:

W h oever knowing ly uses inti m idation, threatens, or corruptly persuades a nother
person, or attem p t s to do so, or eng ag es in misleading conduct t o ward another person, with in t e n t to

. . . . h inder, delay
, or prevent the communic ation to a law enforcement officer or judg e of the United States o f information relating to the c ommission o r possible commission of a F ederal offense

. . . . shall be fined

. . . or imprisoned not more than 20 y ears, or both. § 1512(b)(3) (emphasis added).

The first jury trial ended in a mistrial. A f t e r a second
t r i a l, a new jury found Kirsch and J ohnson not g uilty o f assault. Th e j u r y did find J ohnson g uilty of obstruction o f justice, h owever. J ohnson moved for a judg ment of a cquittal, for a new trial, and to dismiss the indictment. He arg ued that Fowler v

. United States
, 563 U .S. 668 ( 2011) applied to § 1512(b)(3), requiring the Go v e r nment to prove that there

was a “reasonable likelihood” that h e intended to hinder communication to an o fficer o f the United States
, specifically
, which h e arg u ed it failed to do. The district court denied all three motions. Althoug h the c o u r t ag reed that FowlerU N I T E D S T A T E S V

. J O H N S O N 6

applied, it ultimately concluded that the G overnment had met the “reasonable likelihood” standard. W e ag ree on the f ormer point, but not the latter.

II.

I n the contex t of a Rule 29(c) motion f or a judg ment o f acquittal, we review de novo the sufficiency of the evidence. See United S

tates v. Nevils
, 598 F .3d 1158, 1163–64 (9th Cir. 2010) (en banc). I n reviewing the constitutional sufficiency of the e vidence, we must determine whether, “af t e r viewing the evidence in the lig ht most f avorable to the prosecution,
any rational trier of f

act could h ave found the essential elements of the crime.” 2 Jackson v. Virgini a , 443 U.S. 307, 319 ( 1979); United States v. Katak i s , 800 F .3d 1 0 17, 1023 (9th Cir. 2015).

2 Un der Ja ckso n , in q u i ries in to th e s u f f icien cy o f ev id en ce p ro ceed in
tw o s tep s. Ja ckso n , 4 4 3 U.S. at 3 1 9

. “F i r st , a rev iew in g co urt m u st

co n sid er th e ev id en ce p resen t ed at trial in th e lig h t m o st f av o rab le to th e p ro secu tio n .” Nevils
, 5 9 8 F.3 d at 1 16 4 . A t th is step , “ a rev iew in g co urt

‘ m u st p resu m e—ev en i f it d o es n o t af f irm ativ ely ap p ear in t h e

reco rd —th at t h e t r i e r o f f

act reso lv ed an y

. . . co n f licts in f av or o f th e p ro secu tio n , an d m

u st d ef er to th at reso lu tio n .’ ” Un ite d S ta tes v. D el To ro -Ba rb o za , 6 73 F.3 d 1 13 6, 1 1 4 3 (9 th Ci r. 2 0 1 2 ) (q u o t in g Ja ckso n , 4 4 3 U.S. at 3 2 6 ).

“ Seco n d
, . . . th e rev iew in g co urt m u st d eterm in e w

h eth er th is

ev id en ce, so v iew ed
, is ad eq u ate to allo w ‘ a n y ratio n al trier o f f

act to f in d th e essen tial elem en ts o f th e crim e

. . . .’ ” Nevils
, 5 9 8 F

. 3 d at 1 1 6 4 (in t ern al alteratio n

o m itted ). “ A t th is seco n d step , h o w ev er, a rev i ew in g

c o u r t m ay n o t ask itself w h eth er i t b eliev es th at th e ev id en ce at th e t r i a l estab lish ed g u ilt[,]

. . . o n ly w h eth er a n y ratio n al trier o f f

act co u ld h av e

m ad e th at f

in din g .” De l T

o ro -Ba rb o za , 6 7 3 F.3 d at 1 1 4 3 –4 4 (in tern al
q u o tatio n m ark s o m itted ).U N I T E D S T A T E S V

. J O H N S O N 7

III.

As a threshold matter, we ag r ee with J ohnso n a n d the district court that Fowler ’ s reasonable likelihood standard applies to 18 U.S.C. § 1512(b)(3). The defendant in Fowler challeng ed a witness tamp e r i n g conviction under 18 U .S.C. § 1512(a)(1)(c), a similar investig ation-related provision o f the same statute at issue here. Fowler , 563 U.S. at 670–71. 3 Acknowledg ing that the statute ex pressly states that “no state of mind need be proved” to establish the federal status of the officer, see 18 U.S.C. § 15 1 2 ( g) ( 2), the Supreme Court first held that the Government was not required to s how that the defendant had particular federal o fficers in m i n d
, Fowler
, 563 U .S. at 672–7 3

. The Court ex plained that “any such limitation would conflict with the statute’s basic purpose” o f preventing witness tampering

. Id. at 673.

B u t the Court concluded that “more t h an the broad indefinite i n t e nt” to prevent communication with law enforcement officers, g enerally
, was re q uired. Id. at 674. The Court reasoned that requiring only a broad intent without

a federal nex u s would “ ex tend[ ] the scope o f this federal
statute well bey ond the pri m a r i l y federal area that Cong ress had in mind.” Id. at 6 7 5

. The Court then looked closely at the lang uag e of § 1512(a)(1)(c). E x am i ning the dictionary definition of the word “prevent, ” i d

. at 674–77, the Court conclud e d that the Government had to demonstrate a

3 Sectio n 1 5 1 2 (a)(1 )(c) pun ish es “ [w ]h o ev er k ills o r attem p ts to k i l l

an o th er p erso n , w ith in ten t to

. . . . p r e v e n t t h e co m m un icatio n b y an y p e r s o n to a law en f

o rcem en t of

f icer o r j u d g e o

f th e Un ited S ta te s o f in f o rm atio n relatin g to th e co m m issio n o r p o ssib le co m m issio n of a Fed eral o f

f en se.” 1 8 U.S.C. § 1 5 1 2 (a)(1 )(c) (em p h asis ad d ed ).U N I T E D S T A T E S V

. J O H N S O N 8

“reason a b l e likelihood” that the information would have reached federal officers, id. at 677–78.

W e h old that the Court’s reasoning applies with equal force to § 1512(b)(3). As an investig ation-related provision of the sam e statute, subsection ( b)(3) enjoy s the same fundamental purpose and scope as subsection (a)(1)(c). A nd its similarly -worded tex t compels the same conclusion, a s our si s t e r circuits have recog niz e d

. See U nited States v. Veliz
, 800 F .3d 63, 74 (2d Cir. 2015) (ex plaining that, even before Fowler
, the Second Circuit “applied the same fe deral nex us test to both subsectio n s ‘b ecause the elements of subsection (b)(3) are similar to the elements of subsection (a)(1)(C)’”) (quoting United States v

. D i a z , 176 F .3d 52, 91 (2d Cir. 1999)); United States v. Chafin
, 808 F .3d 1 2 63, 1274 (11th Cir. 2015) (vacating a § 1512(b)(3) conviction beca u s e “ t he district court should have analy z ed the evidence under Fowler ’s reasonable likelihood standard”); U n i t e d States v

. Shavers
, 693 F .3d 363, 378–79 (3d Cir. 2012) (gr o u p i n g tog ether §§ 1512(b)(3) a

nd (a)(1)(C) as “investig ation-related provision[ s] ”), vacated on other grounds, Shavers v. United States , 133 S. Ct. 2877 (2013) (mem.).

The Government protests that Fowler i s inapplicable b e c ause it involved “a hy pothetical communication, ” whereas, here, an actual communication must have made its
way to federal officers f

or J ohnson to be prosecuted. At b est, th is arg ument amounts to a distinction without a difference. At worst, it is a limitation that swallows th e r ule. I ndeed,
every fed e r ally prosecuted case must necessarily involve an actual c o m munication to f ederal officers at some point. T o arg ue, therefore, that an a c tu a l communication renders Fowler inapposite is to make Fowler a nullity

. W e decline toU N I T E D S T A T E S V

. J O H N S O N 9

read F o w l e r in this nonsensical way

. Fowler ’s standard applies to the federal nexus requirement of § 1512(b)(3).

IV.

Apply ing the Fowler standard, we conclude t h a t the Government f

ailed to present sufficient evidence to show that there w a s a reasonable likelihood that the communication would reach a federal office r

. The Government’s evidence established nothing “more tha n [ a] remote, outlandish, o r simply h y pothetical” possibility that J o hnson’s reports could have reached a federal officer. F owler
, 563 U.S. at 678. Viewing the e v i dence in the lig ht most f avorable to the Government, no rational trier of fact could h ave found the federal nex us element of the crime.

A.

As the Supreme Court m a d e clear in Fowler
, the “reasonable likelihood” standard requires neith e r proof “bey ond a r easonable doubt, n or e v e n

. . . more likely than not.” Fowler
, 563 U.S. at 678. B ut the Governm e nt must demonstrate that the l i k e l ihood was “more than remote, outlandish, or simply hy

p othetical.” Id. B ey ond these basic parameters, the Court essentially left “it to the lower courts to determine whether, and how, the standard applies.” Id.

Our sister c ircuits’ approaches have diverg ed in the wake

o f Fowler

. Prior to Fowler
, the Third Circuit held that t h e federal nex us element “ may be inferred by the jury from the fact that the offense was federal in n ature, p l u s additional appropriate evidence.” United States v. Bell
, 113 F

. 3d 1345, 13 4 9 (3d Cir. 1 997) (internal quotation marks omitted); United States v. Stansfield
, 101 F .3d 909, 918 (3d Cir. 1996).U N I T E D S T A T E S V

. J O H N S O N 10

As the district court recog n iz ed, the T hird Circuit identified “(1) p roof that ‘there was a federal investig ation in p rog ress’
at the time

. . . or (2) proof that the defe n d a nt had ‘ actual knowledg e of the federal nature o f the offense’” as ex amples of “ a dditional appropriate evidence.” (quoting Stansfield
, 101 F .3d at 9 18 & n.4). After Fowler
, however, the T hird Circuit abandoned the “additional appropriate evidence” approach in favor of a test requiring “evidence–not merely argu ment o f the witness’s cooperation with law enforcement” to establish “a reasonable likelihood that the person whom the defendant believes may communicate with law enforcement w o u l d in fact make a relevant communication with a fe d er a l law enforcement officer.” Bruce v. W arden Lewisburg U

SP
, 868 F .3d 170, 185 (3d Cir. 2017) (internal q u o t a tion marks omitted ) ; U

n ited States v. Tyler
, 732 F .3d 241, 252 (3d Cir. 2013). 4 Nonetheless, the Second and F ourth Circu i t s have carried forward the Third Circuit’s p re- F owler approach but require that the “additional appropriate e v idence” 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).

Apply ing the Third Circuit’s pre- Fowl e r a pproach, the district court determined the Government ha d s u fficiently shown that “ [ t ] h e c i vil r ig hts at issue h ere [ we] re, in fact, predominantly federal. ” The court also stated that the Government had provided “additional appropriate evidence” demons t r a t ing (1) that J o hnson “had actual knowledg e reg arding the federal n ature o f t h e crime,” and (2) that a

4 Still, th e T h ird Circu it “ em p h asize[d ] th at th e g o v ern m en t n eed n o t p ro v e th at a f

ed eral in v estig atio n w as in p ro g ress at th e tim e th e d ef en d an t

co m m itted [a] w itn ess- tam

p erin g o f f en se.” Tyler
, 7 3 2 F.3 d at 2 5 2 (seco n d alteratio n ino rig in al) (in t ern al q u o tatio n m ark s o m itted ).U N I T E D S T A T E S V

. J O H N S O N 11

federal investig ation into the use-of-force incident involving Deputies Kirsch and J o h n s o n d id, in fact, occur. B ut the Government disagr e e s with this approach, arg u ing that

“ Fowler set forth a dequate parameters to permit this C o u rt and the district courts to eng ag e in case-by -case analy sis.”

W e n eed n ot d ecide w h e t her to adopt the “ additional appropriate evid e n c e ” approach to r esolve this case. As we

ex p lain below, we conclude that the Government’s evidence established only a “remote, outlandish, or simp l y hy pothetical” possibility t hat J ohnson’s reports would reach federal o fficers. J ohnson’s motion for a judg ment of acquittal therefore should have been g ranted.

B.

At trial, the Government p r esente d minimal evidence o f

a federal nex u s. F irst, the Government presented evidence
t hat the Santa B arbara county sheriff’s u se of force p o l i ci e s incorporated G raham v. Connor
, 490 U.S. 386 (1989), which established that the ex c essive u se of force by law enforcement officers v iolates the Constituti o n

. The Government showed that J o h n son received training on Graham
, that he k

n ew o f Graham
, and that he took an oath o f office to uphold the Constitution. Second, the G overnment’s

ex p ert witne s s t e s t ified that he reviewed a statement of the incident that C.O. g ave to his public defender. F inally
, as the district court hig hlig hted, the same ex p ert testifie d t h a t he reviewed one o f J ohnson’s r eports as well a s transcripts o f witness interviews conducted by an F B I ag ent.

T a k e n tog ether or separately
, this evidence does n o t demonstrate that J ohnson’s reports w ere reasonably likely to reach a federal officer. Even i f J ohnson knew he wasU N I T E D S T A T E S V

. J O H N S O N 12

covering up a constitutional v iolation, an ex pert witness’s passing mention of files he reviewed in p reparation to testify
at the second trial do es n o t b ear o n whether, at the time J ohnson wrote the reports, there was “more than [ a] remote, outlandish, or simply hy p othetical” possibility that those reports would reach a federal officer.

The Government could have met the Fowler stand ard in

a variety of way s, and likely w ithout much difficulty

. Evidence sugge s ting
, for ex ample, that federal officials (1) w ere in contact with the county jail, (2) had investig ated similar incidents at the jail in the past, or (3) had e stablished

a policy or practice o f investig ating similar incidents i n the
area, o f assisting state and local officials with investig ations into such incidents, o r o f sharing information w ith state a nd local o fficials, would like l y all aid the Government in satisfy ing the federal nex us requirement. B ut, in this c ase, the Government’s evidence was too remote.

The judg ment is REVERSED

.