Sunday, November 05, 2017

Case o' The Week: Ninth Cries Fowl(er) on Nexus-less Obstruction - Federal Nexus for witness tampering and obstruction

 How light is the government's burden? The Feds had to prove a nexus that is "more than remote, outlandish, or simply hypothetical." 
  (And they still managed to come up short!)
 United States v. Christopher Johnson, 2017 WL 4974579 (9th Cir. Nov. 2, 2017), decision available here.

Players: Decision by Judge Paez, joined by Judges Berzon and Christen.

Facts: Johnson was a (county) jail deputy. Id. When an inmate used an emergency intercom inappropriately, Johnson and another deputy, Kirsch, responded. The confrontation ended with a violent attack on the inmate. Id.  Johnson wrote several reports about the incident that day. Id.
  Johnson and Kirsch were federally indicted for assault, and Johnson also charged with obstruction under 18 USC § 1512(b)(3). Id. at *2. That statute criminalizes hindering the investigation of a judge or officer of the United States. Id. (quoting Section 1512(b)(3)) (emphasis in opinion).
  The first trial ended in a mistrial: the deputies were acquitted of assault in the second trial. Id. Johnson, however, was convicted of obstruction. Id. In his Rule 29 and new trial motions Johnson argued that Fowler v. United States, 563 U.S. 668 (2011) required proof of a reasonable likelihood that his actions hindered communications to an officer of the United States. Those motions were denied.

Issue(s): “On appeal, Johnson argues that the Government failed to present sufficient evidence of a federal nexus for the alleged offense.” Id. at *1.

Held: “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 judgement of acquittal under Federal Rule of Criminal Procedure 29.” Id. at *1.

Of Note: In a decision of first impression, Judge Paez holds that the holding of Fowler, decided in the context of § 1512(a)(1)(c), applies with equal force to a different subsection of the statute: § 1512(b)(3). In so doing, the Court gives a bit of a smack down to the government’s protests, characterizing the government’s argument as “a distinction without a difference,” and an argument that would “make Fowler a nullity.” The Court accordingly declined the government’s invitation “to read Fowler in this nonsensical way.” Id. at *3.
  The punchline? Both of these subsections of the federal obstruction statute now require “a reasonable likelihood that [the obstructive] communication would reach a federal officer.” Id.

How to Use: What exactly is “reasonable likelihood” proof of nexus that is required in a criminal trial? Judge Paez mulls this conundrum in Johnson. It ain’t beyond a reasonable doubt – indeed, the government doesn’t have to even prove “more likely than not.” Id. at *4. The government, however, must “demonstrate that the likelihood was ‘more than remote, outlandish, or simply hypothetical.’” Id. (citing Fowler, 563 U.S. at 678).
  The Second and Fourth Circuits have built on a Third Circuit test, and require “additional appropriate evidence” (whatever that is) to satisfy Fowler’s “reasonable probability” test. Id. at *4.
  In Johnson, Judge Paez dodges the final question of whether (or what) “additional appropriate evidence” is a proof requirement – under any analysis, there was insufficient proof of a nexus here for conviction. Id. at *4-*5. The precise jury instructions required for the federal nexus component of this offense remain a fight for another day in the Ninth. If facing these charges, push the boundaries for the highest standard of proof you can muster. Johnson has a very thoughtful discussion of three circuits’ treatment of this issue at *4: start the battle with this Johnson’s helpful review of the current state of the law.
For Further Reading: The author of Johnson, the Honorable Judge Richard
The Hon. Judge Richard Paez
Paez, waited 1,506 days from his nomination by President Clinton until his confirmation in the senate: over four years. See article here. At the time, Judge Paez held the record for the longest Senate wait for federal robes.
 Things have changed.
  Last week, four Circuit judges were confirmed in just one week (with a DJ thrown in for good measure). See article here . The speed and volume of Senate confirmations last week came close to setting new records.
  Early suspicions are being, well, confirmed: the venerable Senatorial blue slip (or lack thereof) is becoming less of a factor in the pace of a judicial confirmation. See generally here; see also Memorandum of the Honorable Senator Feinstein of September 25, 2017, available here.
  As for the Ninth?  There is one nominee thus far, in Oregon, to replace Judge O’Scannlain. See judicial nomination report here; and press release here
   Three additional spots remain open in the Circuit: the seats of the Honorable Judges Harry Pregerson, Barry Silverman, and Richard Clifton. See United States Courts, Current Judicial Vacancies, available here.  

Image of “Obstruction of Justice” from

Image of a blue slip by US Congress -, Public Domain,

Steven Kalar, Federal Public Defender, Northern District of California. Website available at


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