Federal Obstruction Of Justice: A Trap For The Unwary Police Officer

MICHAEL P. STONE, ESQ.

Partner
ROBERT RABE, ESQ.
Attorney
Stone Busailah, LLP

How can an inaccurate use-of-force report constitute a federal crime?

You are a deputy with the county sheriff’s department. You are required to document uses of force in a variety of departmental reports.¹ We all know that such official reports must be accurate, true and complete, and that preparing a false or misleading report is a state crime.² But it must appear that the officer had the intent to mislead the reader. Where there is no knowledge that the report is false and no intent to deceive, the officer does not commit a crime, even though the report may be inaccurate.

State prosecutions of officers for false reports are fairly straightforward. But what happens when an arguably inaccurate or incomplete report of force becomes a focus of a federal grand jury or a federal prosecution? Does a local or state officer commit a federal crime if he or she prepares a false or misleading official report? Standing alone, no, because there is no “federal nexus”; i.e., a link between the state or local action and a federal interest. However, if the government can prove that such a state or local police report is “reasonably likely” to be officially reviewed by a federal law enforcement officer or judge of the United States, the author of the report can be prosecuted for the federal crime of obstruction of justice. See 18 U.S.C. § 1512 (b)(3), which 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.”

So how might a county deputy or city officer violate § 1512(b)(3) in the preparation of a police report? If the report is (1) false or misleading, (2) submission of the report to a supervisor, report reviewer, investigator, watch commander, court liaison officer, deputy district attorney, judge or any other person in the normal course of official business, is (3) “engaging in misleading conduct toward another person.” But § 1512 also requires (4) “intent to hinder, delay or prevent the communication to a federal officer or judge, of (5) information relating to the commission or possible commission of a federal offense.”

Let’s walk through this with a county deputy who allegedly used excessive force on an inmate. He reports the force to his sergeant, with an explanation. The sergeant tells the deputy to prepare a use-of-force report, “per policy.” The deputy does so, but (allegedly) falsely writes that the inmate was the aggressor and the deputy acted in self-defense, to defeat resistance and to control the inmate. He submits the report to the watch commander, who reviews the report and passes it on. Elements (1), (2) and (3) above are satisfied. Element (4), intent to hinder, delay or prevent communication to a federal officer or judge, is usually inferred or proved by circumstantial evidence. Element (5), “information relating to the commission … of a federal offense,” is shown by the fact that “use of excessive force on an inmate under color of law” is a federal crime (18 U.S.C. § 242); that is, it is a criminal violation of the inmate’s federal civil rights. Under this analysis, every state or local officer who uses excessive force on an inmate and then writes a false report about it would arguably be subject to federal prosecution for excessive force (assault under color of law) and obstruction of justice under 18 U.S.C. § 1512 (b)(3).

However, based on Fowler v. United States, 563 U.S. 668 (2011), there must be some “federal nexus”; i.e., the link between a county deputy’s report and a federal investigation, in order to prove the requisite intent. The government must show that at the time the deputy writes the report, there must be a “reasonable likelihood” that the report will reach federal officers. Otherwise, how can a judge or jury find the intent to hinder, delay or prevent communication to a federal officer or judge? It is a mandatory affirmative element of the government’s case at trial. Lacking that evidence, the hypothetical deputy cannot be convicted under § 1512(b)(3).

A case in point is the United States of America v. Christopher Johnson, ___ F. 3d ___ (9th Cir. No. 16-50018; mandate issued November 24, 2017). This case was handled by the authors of this paper, who represented Deputy Christopher Johnson in the federal jury trial and in the appeal in the Ninth Circuit Court of Appeals, following his conviction for obstruction of justice under § 1512 (b)(3).

A correctional deputy assigned to the Santa Barbara County Jail, Christopher, along with another deputy, executed a trained “takedown” technique on an unruly inmate who physically resisted control techniques. The inmate claimed injury, so procedures required certain reports in addition to a force report. This department presented a case for criminal prosecution of both deputies to the district attorney for Penal Code § 149 (assault under color of authority), which, charged as a felony, the district attorney filed in due course. Then, local authorities invited review by the FBI. While the § 149 charges were pending in Santa Barbara County Superior Court, the United States attorney for the Central District of California presented the case to the federal grand jury in Los Angeles, which indicted the deputies, each for one count of assault under color of law (18 U.S.C. § 242) and one count of obstruction of justice (18 U.S.C. § 1512[b][3]) against Christopher, alleging that his reports “covered up” force applied to the inmate by the other deputy.

The first federal jury trial resulted in a mistrial — the jury deadlocked 9–3 for acquittal. The United States attorney pursued a second trial against both deputies.3 The deputies were acquitted by the jury of the assault counts, but the jury inexplicably found Christopher guilty of obstruction of justice because the reports he wrote did not contain information about Deputy Kirsch’s (objectively reasonable) use of force.

We filed three post-trial motions for judgment of acquittal, dismissal of the indictment and a new trial. The trial judge denied all three motions. Christopher was sentenced to three years of supervised probation with a six-month period of home detention. Only then did the Santa Barbara County district attorney move to dismiss the § 149 charges against the deputies.

Keep in mind that on the federal § 1512(b)(3) charge, the government must prove that there is a “reasonable likelihood” that the defendant intended to hinder communication to a federal officer. There must, therefore, be a “reasonable likelihood” that the report in question would, in the normal course of business, reach federal officers. In Christopher’s trial, the government failed to prove that there was a “reasonable likelihood” that Christopher’s report would “land in the hands of the FBI.” Indeed, the Ninth Circuit panel wrote, “We conclude that the government’s evidence (at Christopher’s trial) established only a remote, outlandish or simply hypothetical possibility that Johnson’s reports would reach federal officers” (Slip Opinion, page 11).4

Moreover, the court wrote that the government’s evidence at trial was “insufficient … for any rational juror to find that it was reasonably likely that Johnson’s reports would have reached federal officers” (Slip Opinion, at page 3). The court found that United States District Judge Beverly Reid O’Connell should have granted our motion for judgment of acquittal under Federal Rules of Criminal Procedure, Rule 29. The judgment of conviction was reversed by the Court of Appeals, its mandate issued on November 24, 2017.
Learning Points for Deputies and Officers About Federal Obstruction of Justice

The Johnson case contains important learning points for deputies and officers in the quest to avoid an indictment in federal criminal court for obstruction of justice under 18 U.S.C. § 1512(b)(3). Recall that the gravamen of the obstruction of justice offense in the Johnson indictment was “engag(ing) in misleading conduct toward another person (by means of presenting misleading official report), with intent to hinder, delay or prevent communication to a federal officer or federal judge, of information relating to the (possible) commission of a federal crime.”
Recognize that a careless, incomplete or inaccurate report, in addition to those that directly contain false and misleading statements, can constitute “misleading conduct toward another person” with intent to hinder, delay or prevent relevant information getting to the government. Maybe — it’s a stretch, but that is what federal prosecutors are supposed to do: Stretch the evidence to capture the conviction. We promised early on in this paper to illustrate how internal rules like LAPD’s rule on “false and misleading” get in front of the jury in a federal prosecution like Johnson. After all, we cannot have lay jurors applying the standards in rules like 3/828 to decide whether to convict officers of obstruction of justice. Clearly, Volume 3, § 828 comprehensively regulates police reporting. How can such an administrative regulation get before a jury in a criminal case? Let’s say the prosecution wants to admit evidence of department standards and training regarding the duty to report accurately and completely, to rebut defense argument that reasonable officers do not necessarily know or appreciate that they have a clear duty to be thoroughly accurate and perfectly complete in official reports. It would be permissible to show how the officers are trained, regulated and compelled to meet such high and unforgiving standards. These points can be most powerfully illustrated by admitting regulations such as Vol. 3, § 828 to rebut defense claims of ambiguous institutional standards.

Christopher Johnson and his defense team want to acknowledge and thank PORAC LDF for its unfailing support throughout the federal trial and the appeal of his unjustified conviction.