United States v. Chatman ( 2020 )

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
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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
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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.
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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
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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
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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;
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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.
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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.
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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
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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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