                                                                                FILED
                                                                    United States Court of Appeals
                                      PUBLISH                               Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       March 16, 2020

                                                                        Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                           Clerk of Court
                        _________________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                         No. 19-5038

 JOHN TERRY CHATMAN, JR.,

       Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                       for the Northern District of Oklahoma
                          (D.C. No. 4:18-CR-00166-CVE-1)
                       _________________________________

William Lunn, Tulsa, Oklahoma, for Defendant - Appellant.

Leena Alam, Assistant United States Attorney (and R. Trent Shores, United States
Attorney, on the brief), Tulsa, Oklahoma, for Plaintiff - Appellee.
                         _________________________________

Before LUCERO, KELLY, and PHILLIPS, Circuit Judges.
                  _________________________________

KELLY, Circuit Judge.
                        _________________________________

      Petitioner-Appellant John Terry Chatman, Jr. was convicted by a jury of being

a felon in possession of a firearm and ammunition, 18 U.S.C. §§ 922(g)(1), 924(a)(2)

(Count One), obstruction of justice by attempting to kill a witness, 18 U.S.C.

§ 1512(a)(1)(C) & (a)(3) (Count Two), and using a firearm in furtherance of a crime
of violence, 18 U.S.C. § 924(c)(i)(A)(iii) (Count Three). He was sentenced to 480

months’ imprisonment and five years’ supervised release. On appeal, he challenges

the sufficiency of the evidence supporting Count Two arguing that the government

failed to provide sufficient evidence in accordance with Fowler v. United States, 563

U.S. 668 (2011). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we remand

with instructions to vacate and dismiss Mr. Chatman’s convictions on Counts Two

and Three and resentence on Count One.



                                        Background

      On July 3, 2018, Officers Michael Cawiezell and Danny Bean, members of the

Tulsa, Oklahoma Police Department (TPD), were conducting a routine patrol of the

Trade Winds Hotel when Officer Cawiezell spotted Mr. Chatman coming around a

corner of the hotel. Upon noticing the officers, Mr. Chatman changed direction,

piquing their interest. They approached Mr. Chatman and asked whether he had an

ID. He said no, asked if he was free to leave (to which the officers replied yes), got

into a van, and drove away. After running the van’s license plate, the officers

discovered that it did not match the vehicle and went looking for Mr. Chatman.

      They spotted the van parked at a gas pump outside of the QuikTrip

convenience store adjacent to the hotel. The officers first saw Mr. Chatman’s

girlfriend, who identified herself as “Chelsea,” coming out of the convenience store.

When asked about the mis-matched plates, she said they were from her mother’s Ford



                                           2
Escape, which the officers knew to be untrue. The officers also asked her where Mr.

Chatman was, and she pointed to the van.

      When the officers approached the van, they found Mr. Chatman in the back

seat. He told them that his name was “Junior” and repeatedly denied having an ID.

Eventually, the officers informed Mr. Chatman that he was under arrest and asked

him to step out of the van, which he refused to do. The officers radioed for

additional support and continued asking Mr. Chatman to cooperate.

      Sergeant Mike Parsons arrived on the scene awhile later. He was armed with a

pepper ball gun and, after repeated attempts to get Mr. Chatman to step out of the

van, shot Mr. Chatman with pepper balls. As the pepper balls began hitting Mr.

Chatman, Officer Cawiezell yelled “He’s got a gun!” and Mr. Chatman fired several

rounds at Sergeant Parsons, who was struck in the leg. Officer Cawiezell returned

fire and struck Mr. Chatman in the neck and stomach. Medics were called to the

scene and promptly addressed both Mr. Chatman’s and Sergeant Parsons’s injuries.

      Mr. Chatman did not contest Count One at trial and the parties agreed that if

the evidence was insufficient on Count Two, Count Three could not stand. III R.

217. After the government rested, counsel moved for a judgment of acquittal on

Count Two arguing that the government had not met its burden of showing that Mr.

Chatman shot Sergeant Parsons “with the intent to prevent information from being

conveyed to [federal] law enforcement officers generally.” III R. 216. Counsel

conceded that the government produced a large quantity of evidence suggesting that

the information would have been conveyed to law enforcement. Id. In closing

                                           3
argument, counsel argued that “the law itself doesn’t seem to make a lot of sense in

this context, and I think that’s because it’s not intended to be used in a case like this,”

III R. (II Tr.) 51, but conceded that it was “more than reasonably likely that an

officer--or that Sergeant Parson or somebody would have communicated to federal

authorities, because they did and we’re here. Right?” III R. 61.

       Mr. Chatman then moved for a new trial based on statistical evidence

concerning state and federal prosecutions of felon-in-possession cases and ineffective

assistance of counsel. I R. 70–76. He also asked the district court to reconsider its

denial of the Rule 29 motion at trial. Id. at 74. Without a response, three days later,

the district court denied relief on the merits of the new trial motion and denied

reconsideration of the Rule 29 motion as untimely. Id. at 100–05. The district court

explained that the governing legal standard was Fowler, not the cases counsel relied

upon. Id. at 103. Acknowledging the possibility of plain error review on appeal, Mr.

Chatman then objected to the district court’s order in an effort to preserve his

position that neither Fowler nor its progeny supported the conviction on Count Two.

Id. at 106–15. Two days later and without a response, the district court “ordered”

that Mr. Chatman had preserved his objection. Id. at 117. We deem the objection to

have been denied.

       On appeal, Mr. Chatman contends that the facts do not fit the crime charged,

Aplt. Br. at 18, and that the government failed to present sufficient evidence to show

there was a reasonable likelihood that Sergeant Parsons would have communicated

with a federal law enforcement officer regarding Mr. Chatman’s firearm possession.

                                            4
If that is correct, he maintains that the companion count (Count Three) of using a

firearm in furtherance of a crime of violence must also be vacated. For its part, the

government contends that Mr. Chatman waived or forfeited his sufficiency challenge

without arguing for plain error on appeal, but in any event, the evidence was

sufficient.



                                      Discussion

       We review de novo whether there was sufficient evidence to support a

defendant’s convictions viewing all the evidence and any reasonable inferences

drawn therefrom in the light most favorable to the government. United States v. Poe,

556 F.3d 1113, 1124 (10th Cir. 2009). We will reverse a conviction for insufficient

evidence only when no reasonable jury could find the defendant guilty beyond a

reasonable doubt. See United States v. Anaya, 727 F.3d 1043, 1050 (10th Cir. 2013).

But we will not uphold a conviction “that was obtained by nothing more than piling

inference upon inference . . . or where the evidence raises no more than a mere

suspicion of guilt.” United States v. Rufai, 732 F.3d 1175, 1188 (10th Cir. 2013)

(quotations omitted). “A jury will not be allowed to engage in a degree of

speculation and conjecture that renders its finding a guess or mere possibility.” Id.

(quotations and internal alterations omitted).

       The government first argues that because Mr. Chatman’s Rule 29 motion was

not raised on the grounds that the government failed to show a reasonable likelihood

that Sergeant Parsons would have communicated Mr. Chatman’s commission of the

                                           5
felony to a federal officer, he has waived (or at the very least forfeited) this argument

on appeal. As discussed below, however, we find that the government failed to prove

Mr. Chatman’s general intent to prevent a communication to any law enforcement

officer –– an issue which was sufficiently preserved below and reiterated in the

appellate brief –– and thus we do not address the government’s waiver argument.

      Mr. Chatman argues that the district court’s misapplication of Fowler led to an

erroneous denial of his sufficiency of the evidence challenge as to Count 2. Under

§ 1512(a)(1)(C), “the [g]overnment must prove (1) a killing or attempted killing, (2)

committed with a particular intent, namely, an intent (a) to ‘prevent’ a

‘communication’ (b) about ‘the commission or possible commission of a Federal

offense’ (c) to a federal ‘law enforcement officer or judge.’” Fowler, 563 U.S. at 672

(quoting 18 U.S.C. § 1512(a)(1)(C)).1



      1
          The district court instructed the jury as follows on Count Two:

             Defendant is charged in Count Two with a violation of 18 U.S.C.
      § 1512(a)(1)(C). This law makes it a crime for anyone to obstruct
      justice by attempting to kill a witness.

             To find defendant guilty of this crime you must be convinced that
      the United States has proved each of the following beyond a reasonable
      doubt:

               First: Defendant attempted to kill Sergeant Mike Parsons;

            Second: Defendant acted with intent to prevent Sergeant Mike
      Parsons from communicating to a law enforcement officer or a judge
      information relating to the commission or possible commission of an
      offense, namely, being a felon in possession of a firearm or ammunition;

                                            6
      In Fowler, the Court discussed two different types of intent required under

§ 1512(a)(1)(C). The first is the “relevant broad indefinite intent” included in the

statutory language, which the Court defines as “the intent to prevent the victim from

communicating with (unspecified) law enforcement officers.” Id. at 674. Here, there

are several facts that prevent drawing even a reasonable inference that Mr. Chatman

shot Sergeant Parsons with the intent to prevent him from communicating with other



             Third: There was a reasonable likelihood that at least one of the
      communications targeted by Defendant would have been made to a
      federal officer; and

             Fourth: The information that would have been communicated
      related to the commission or possible commission of a federal offense.

             You are instructed that the United States need not prove that
      Defendant knew that the information related to a federal offense or
      knew that the communications were reasonably likely to reach a federal
      officer.

              You are further instructed that if you find that the Defendant
      attempted to kill Sergeant Mike Parsons with the intent to prevent
      communication with law enforcement officers generally, that intent
      includes an intent to prevent communications with federal law
      enforcement officers only if it reasonably likely under the circumstances
      that at least one of the relevant communications would have been made
      to a federal officer. To that end, the United States must show that the
      likelihood of communication to a federal officer was more that remote,
      outlandish, or simply hypothetical.

             You are further instructed that the United States does not need to
      prove that an official proceeding was actually pending or about to be
      instituted at the time of the alleged offense.

      I R. 52–54.


                                           7
law enforcement officers. First, Mr. Chatman’s altercation with the TPD began as a

routine traffic stop. He was not stopped as part of a broader investigation or during

the planning or commission of a crime. Second, Mr. Chatman was in the backseat of

the van at the time the altercation occurred, thereby lessening his chances of making

a meaningful escape attempt. Third, Mr. Chatman shot Sergeant Parsons only after

he himself was struck with pepper balls. Fourth, the shooting occurred in broad

daylight while Mr. Chatman was surrounded by police officers. And, finally, there is

ample evidence that Mr. Chatman acted with the intent of provoking Sergeant

Parsons as he stated “Y’all are going to have to kill me,” instructed officers to shoot

him, and shared a tearful goodbye with his girlfriend. Taken together, these facts

may show that Mr. Chatman shot Sergeant Parsons out of frustration and retaliation,

or perhaps to sufficiently provoke the officers into shooting him thereby committing

“suicide-by-cop.” But these facts in no way indicate that Mr. Chatman intended to

prevent Sergeant Parsons from communicating the fact that Mr. Chatman was a felon

in possession of a firearm to other law enforcement officers (a fact which was evident

to the numerous law enforcement officers present at the scene). The statute simply

does not fit the crime.

      A review of § 1512 (a)(1)(C) convictions in our sister circuits bolsters this

conclusion. In United States v. Bell, the Third Circuit found that the government

presented sufficient evidence for the jury to infer that the defendant killed a witness

hours before trial to both prevent her from testifying and put an end to her

cooperation with a drug-offense task force staffed with law enforcement officers.

                                           8
113 F.3d 1345, 1350 (3d Cir. 1997). The Fifth Circuit similarly upheld an intent-

based sufficiency of the evidence challenge after finding that a jury could reasonably

infer that the defendant shot the victim with the “inten[t] to prevent [the victim] from

revealing any additional information about their prior drug negotiations” where the

victim had previously been a government informant. United States v. Galvan, 949

F.2d 777, 783 (5th Cir. 1991). And the same is true of the Seventh Circuit, which

found that, even though the victim was not cooperating with law enforcement at the

time of his murder, “[i]t was reasonable to conclude from the testimonies provided by

various persons that [the defendant and accomplice] killed [the victim] because they

feared he was informing the DEA about their operations.” United States v. Edwards,

36 F.3d 639, 645 (7th Cir. 1994).

      The record here does not support a similar inference. Mr. Chatman was not

under investigation for another crime and there is no evidence to support the idea that

he shot Sergeant Parsons because he believed he had or would serve as a government

informant. Rather, Mr. Chatman shot Sergeant Parsons in the middle of the day in

front of at least five other law enforcement officers after expressly instructing the

officers to shoot him and saying goodbye to his girlfriend. At the time of the

shooting, he was sitting in the backseat of a van while police officers had firearms

trained on him. And while we agree with the government’s point at oral argument

that an individual’s intent need not be perfectly rational, a showing of intent cannot

be completely divorced from the facts. Here, the facts do not support a reasonable

inference that Mr. Chatman shot Sergeant Parsons with the intent of preventing him

                                            9
from communicating the fact that Mr. Chatman was a felon in possession of a firearm

to law enforcement officers generally. We thus find that the government failed to

provide sufficient evidence to support the intent element of § 1512(a)(1)(C).

         As we find the government failed to prove intent, we need not reach the

question of whether the government had shown that it was “reasonably likely under

the circumstances that (in the absence of the [attempted] killing) at least one of the

relevant communications would have been made to a federal officer.” Fowler, 562

U.S. at 677–78.

         We remand this case to the district court to vacate and dismiss Mr. Chatman’s

convictions under both Counts Two and Three and resentence him under Count One

alone.

         REMANDED.




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