                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,               No. 16-50018
                Plaintiff-Appellee,
                                           D.C. No.
                v.                      2:14-cr-00208-
                                            BRO-1
CHRISTOPHER MICHAEL JOHNSON,
             Defendant-Appellant.         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 Defendant-
Appellant.

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 Plaintiff-
Appellee.


                          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 momentarily separated Kirsch and C.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-of-
force 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.”2 Jackson 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.
