In United States v. Johnson, --- F.3d ---, No. 16-50018 (9th Cir. 2017), the Court vacated the defendant's obstruction-of-justice conviction 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.
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).
The Court held that, under Fowler v. United States, 563 U.S. 668 (2011), the government had to prove a “reasonable likelihood” that the omitted information would have
reached federal officers.
And, "[a]pplying 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."
