US v. Johnson, No. 16-50018 (11-2-17)(Paez w/Berzon & Christen).

The 9th reverses the denial of a judgment of acquittal in an obstruction of justice prosecution under 18 U.S.C. § 1512(b)(3).  The prosecution, and conviction, was for failing to include material information about the use of force against a county inmate in the Santa Barbara Jail. (The jury acquitted on the assault charge).   The 9th held that the government failed to show a nexus with a federal prosecution, or that the information would have reasonably reached federal officers. In so holding, the 9th applied the standard of Fowler v. United States, 563 US 668 (2011).  Although Fowler concerned 1512(a)(1), witness tampering, it is applicable to obstruction.  Fowler requires a "reasonable likelihood" of tampering, and that standard should be used here.  In this matter, the prosecution only presented evidence that the defendant (a corrections officer) knew of the constitutional prohibition against excessive force, and that an expert witness had reviewed FBI witness interviews.  The prosecution did not present evidence that federal officers were in contact with the county; had investigated similar incidents in the past; or had established a policy of investigating such beating or striking incidents, assisting the state and county, or sharing such information.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/11/02/16-50018.pdf