MICHAEL P. STONE, ESQ.
ROBERT RABE, ESQ.
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]) 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.
PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.
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Dear PORAC Legal Defense Fund, This email has been weighing on my heart and should have been sent a long time ago. However, time seems to move fast even though your life has been put on hold. I have been on administrative leave since December of 2012. In April of 2013, I was arrested for the performance of my duties. Since the administrative side this case has not been resolved, I won't be getting into specific details regarding my case. However, I will say that I never thought that my life would turned upside down by doing the job that I love, and doing it in a way that I had been trained. I have been in Law Enforcement for 10 years, and I have been paying my monthly dues all along. I never really understood how important paying dues might be for me, I just thought it was the "cost of business". After being arrested, I understood the real worth of that investment. Because of politics, my case was given the "full court press". On January 3rd of 2014, the case against me was dismissed. It took no less than 5 experts to convince the Humboldt County District Attorney's Office to request dismissal. The time, effort, and money that this case cost couldn't have been endured by me as the sole provider of a family of four. LDF was there, big time. The panel attorney's under LDF were the best in the business. In the uncertain time during the criminal process, I couldn't have imagined how much help they could be. What a relief to know that LDF had my back. I am used to defending those who can't defend themselves. That's my job. When I was defenseless, LDF and the attorneys assigned to my case were my advocates and defenders. I thank you. My criminal attorney said it best at the conclusion of my criminal case: "Adam and his family are thankful that they can now move forward. The evidence showing Sgt. Laird was innocent was overwhelming. The expert EPD hired said that the suspect was rising up when Sgt. Laird pushed him back to the ground. The two experts that the DA’s office hired said that the force was reasonable and appropriate. The defensive tactics instructor who trained Adam said he acted consistent with his training in apprehending a high risk suspect in a dangerous situation. In total, five separate police practices experts reviewed the case and unanimously said Sgt. Laird acted appropriately". "It is hard to imagine what it must be like to risk your life apprehending a known gang member only to be charged with using excessive force when the suspect stated that he did not even feel the contact at issue. It is simply bizarre that Sgt. Laird was ever charged with a crime". Thank you. My family and I will forever be grateful for your service, Sergeant Adam Laird
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- Shandon Murphy San Mateo POA
Great work! Thank you so much!
- Gina Romines San Joaquin Co Corr POA
I couldn't have been more satisfied with the representative!
- Stacey Bonilla San Mateo County DSA
[My Represenative] is an excellent attorney. He is very professional yet personable and I would definitely use him again. Thank you!
- Anthony Alonzo South Gate POA
Very pleased with the way the process was explained to me. Received updated info faster than I expected. Overall a good experience in a not so good situation. Thanks to LDF.
- Evelyn Hooks Shasta CO PPOA
Thank God for the L.D.F.
- Jorge Garcia San Joaquin Co Corr Officers
No criticism to give. Very well.
- Brad Young Oakland POA
[My representative] is an excellent attorney and I am very happy he picks up the phone and answers my questions whenever possible.
- Marshall Henderson Vancouver Police Officers Guild
I have used LDF in 3 OIS's. Each time I have been very well taken care of. I highly recommend [ representative ] and the PORAC system. Well done and thank you.
- Alvaro Ancheta Glendora POA
I felt I was represented in a thorough and professional manner.
- Rachel Tyner Transit EOA of San Diego
All the LDF representatives were very courteous and attentive with a punctual response to all of my concerns, inquiries and appointment scheduling. My representative was very informative about the legalities and kept in contact with me regularly. He was also very patient and straight forward. I would definitely want to use the LDF again and felt more confident through my proceedings because I had representation!
- Allison Clark Twin Cities POA
[My representative] is the best attorney LDF has. Her attention to details, professionalism, and intelligence were off the charts. If I did not have her as a rep I would probably be out of a job. She is fair and she was honestly concerned about me, my family and my case.
- Stephen Woodward Palm Springs POA
Great job by my LDF lawyer. I have had to use them several times over my 20 year career and their service is invaluable.
- Katie Angermiller Tuolumne Co DSA
I was very satisfied with the work the LDF performed. The lawyers and clerical staff at [law firm] were all very kind, professional and they always assisted me when I called and never made me feel like I was a burden. Thank you LDF!
- Robert Glock Oakland POA
I am always satisfied with LDF and all their representatives.
- Miguel Suarez Monterey Co DSA
[My representative] was very knowledgeable and courteous. He knew his stuff, and I couldn't have asked for a better guy to be on my side on this matter. Thanks.
- RIchard Okeson Hesperia USD POA
I can't express how satisfying and comforting it was to have such a well qualified and pleasant attorney at my side. Thank you so much for everything you did for me, and if you can, please thank [ my representative] again for being there for me.
- Linda Mendez Imperial Co Prob and Corr
I'm very pleased with the services offered by the LDF. I feel so fortunate to enjoy the benefits of having the membership. The services provided by LDF to its members is simply 110% professional, supportive, great!! LDF care for its members is reflected by the quality of Best Law Firm offered, simply the best!
- Steven E. Lopez Santa Maria POA
Keep up the Good Work! Your service was extremely helpful to me. Thank you.
- Carlos Gonzalez Oakland POA
Very well informed group.
- Grace Castro AFGE Local 2455 – Laredo, TX
My representative was very kind and showed he cared when explaining what my legal rights were when dealing with an internal investigation.
- Paul Figueroa Oakland POA
LDF was there when I needed them!! In this litigious world, it's nice to know LDF has GREAT lawyers on our side who look out for us!! [My Representative] is a great attorney and a person I would trust in any circumstance!!!
- Melvarene Hayes LA Airport POA
They were there when I needed them and my whole case was handled on the phone. I met my representative after my case closed and he was at our union meeting when I had the pleasure to meet him and thank him in person.
- Scott Cox Tulare Co DSA
I just want to say [my representative] did a great job! Thank you.
- Greg Gladson LA Airport POA
[My representative] was very professional and helpful. She kept me informed with my options and the direction of the investigation.
- James Stephenson Petaluma POA
Outstanding service. Thanks.
- Cherie Rye Lyon Co SEA
I am very happy with the service I received from LDF. I am grateful that our association includes LDF as part of our dues.
- Patrick Beggs Fresno Co DSA
Good service. Thank you.
- Tia Dixione Inglewood POA
My representative was very helpful and informative.
- George Fierro El Monte POA
I am a firm believer that LDF serves an essential part in the assistance to protect an officer's POBR & in the integrity of an investigation or complaint. I highly recommend the law office of [My Represenative].
- Gerhard Wallace Santa Clara Co DSA
I think that [my representative] did a great job in presenting my case. I would recommend her to any deputy (officer) facing disciplinary action. My case was minor compared to other cases but [she] still did a professional job.
- James Walker Yakima Police Patrolsman Assn
This attorney and her legal team were one of the best I’ve seen and interacted with. I was always in the loop and constantly updated on the case status. I would use (my attorney) again if the need came and recommend her to anyone.
- Gary Silva East Bay Region Parks POA
Thank you for providing this service. My experience with LDF was very much to my satisfaction.
- Brad Young Oakland POA
[ My representative ] is an awesome attorney.
- John Tinder Chino POA
Having an LDF attorney who is experienced, knowledgeable and professional is an outstanding quality. [My representative ]exhibit all of these qualities and more. They are outstanding and I would not entrust my career to anyone else!
- Christopher Delaney Upland POA
Your rep was very personal. Even though my case involved something minor, your rep made me [feel] my case was his most important. I am very satisfied with my LDF team.
- Steven Moorehouse Redding POA
Thank you for your help.
- Caitlin Collins Tiburon POA
[My representative] made himself available 7 days a week understanding that those were my needs. He was very well informed and kept me on the right track and in the right frame of mind.
- Dennis Leach National City POA
[My Representative] is a knowledgeable attorney and I would highly recommend him to anyone needing representation.
- Dwayne Sue Oakland POA
[My representative was] great! She kept me informed and was very professional. She would be my choice if I should need her services in the future! (But I hope I won't) Thanks!
- Tigran Topadzhikyan Glendale POA
[My representative] is an excellent attorney. I would use him again. He communicates with his clients and is very competent.
- Juan Pascua, Jr. San Diego Co DSA
Very helpful and very informative!
- Jeff Stanley Upland POA
Excellent program, no one should be without this coverage.
- Gary J. Foppiano Oakland POA
[My representative] has been in my corner for 28 years. I have been represented by this firm probably 6 times in my career from minor to major discipline cases with a great outcome for me. They're batting 100%
- Jason Walters Claremont POA
LDF was very informative and provided me with the direction on how to handle my case. I was very happy with LDF and their staff.
- Michael Sexton Manteca POA
[My representative] was awesome.
- Brendan Tinney UC Berkeley POA
[My representative] has represented me twice now and both times I have been very pleased with his thoroughness with handling my cases. I appreciate all what LDF and [my representative] have done for me.
- David Baker Placerville POA
My experience through dealing with this matter was horrific. Without the efforts of the LDF and more specifically [my representative], I would most certainly have fallen victim to a corrupt and unethical administration. The LDF has saved my career and brought me justice.
- Christopher Boyd Carlsbad POA
[My representative] was an outstanding attorney to work with. Even though I did not receive a desirable outcome entirely, I was exceptionally satisfied with his representation. Thank you.
- Michelle Foerder Pinole PEA
I thank God for the support of LDF and my attorney. I had a letter of intent to be fired and he helped me turn it all around. I still have my job and I'm so grateful.
- Jay Garacochea Culver City POA
[My representative] not only did he do a great job but he listened to my concerns. He did not force his views or game plan and we worked well w/ each other. We agreed on a goal and achieved it.
- Sean Tinney Berkeley PA
[My representative] was very attentive to my case and thorough with his investigation. I would request [him] again in the future.
- Patrick Davis Oakland POA
Very knowledgeable and thorough and would use the rep again.
- Eric White Emeryville POA
Very satisfied with the LDF services provided. Thank you.
- Robyn Delaney Mono County PSOA
[My Representative] truly is an exceptional attorney. He has always represented me with honesty and compassion. Well Done.
- Malcolm Norrington LA School PA
I am very pleased with LDF and would use and recommend them again and again and again.
- Oliver Sansen Concord POA
In 14 years I have never had to deal with an "IA." [My representative] was wonderful & put my mind at ease throughout the entire process. Thank you!
- William Pryor Statewide University PA
Very helpful program. Helped keep department personnel focused on the issue regardless of their personal issues.
- Anthony Zack Vernon POA
This was the first time in my twenty-five year career that I had to use the services of my legal defense fund. My LDF Representative was extremely courteous, informative and professional.. She addressed all of my concerns and answered all of my questions. She did an overall outstanding job of representing me and handling my case. I could not have been any more pleased or satisfied with the job she did! I would definitely request her to represent me in the future if I needed representation.
- William Jackson Santa Maria POA
Keep up the great work.
- Larry Fitch Shasta Co DSA
My LDF rep was great, always returned my calls quickly and kept me up to date with what was going on with the case. Thank you.
- Jason Kearsing Elk Grove POA
Very happy with LDF.
- Albert Contreas Imperial Co. DSA
Thank you for your services.
- Yvonne Heuston ERS/SPPOA Supervisors
My representative was outstanding and knew what to lookout for and how to handle situations as they appeared. He told me what to expect and how he proposed to handle the hurdles. Just telling what to expect helped put me at ease as the situation was so foreign to me, and intimidating.
- Jeff Griffin Downey POA
My experience with the LDF, and in particular my attorney, was extremely positive. [ My attorney ] worked very hard and kept me informed along the way.
- Kerry Carlson Midpeninsula Ranger POA
I have held leadership positions in our POA most of my career. Because of my role as President and Vice President I have been a target to management. I feel that if it were not for LDF I wouldn't have a job
- Billy Aldridge Chico POA
[My representative] was awesome! He provided an excellent explanation of the process and was very professional. This was my first IA in 11 years of LE and [my representative] did a great job of reassuring me that I had nothing to worry about. Thank you so much for all your help.
- Robert Morales Rialto PBA
I was very pleased with the service I received
- Richard Salcido Brea PA
LDF is a great organization that not only helps their clients but many of those around them such as coworkers and family members.
- Heather Fontes San Joaquin Co POA
I appreciated the thorough follow up by LDF staff. Many thanks and blessings for the work by LDF.
- William DeWitt CPPA
Everything was awesome...could not be happier!
- Greg Harman Kensington POA
[My representative] is the best!!
- Brian Schopf Elk Grove POA
Keep up the good work.
- Paul Hernandez LA Gen Services POA Inc.
[My Representative] was very helpful in my situation and I can't thank him enough.