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`[PUBLISH]
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`In the
`United States Court of Appeals
`For the Eleventh Circuit
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`____________________
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`No. 19-14969
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`____________________
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`UNITED STATES OF AMERICA,
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`versus
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`JASON GATLIN,
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` Plaintiff-Appellee,
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` Defendant-Appellant.
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`____________________
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`Appeals from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:19-cr-20163-RS-1
`____________________
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`____________________
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`[PUBLISH]
`
`
`In the
`United States Court of Appeals
`For the Eleventh Circuit
`
`____________________
`
`No. 19-14969
`
`____________________
`
`
`UNITED STATES OF AMERICA,
`
`versus
`
`JASON GATLIN,
`
`
` Plaintiff-Appellee,
`
` Defendant-Appellant.
`
`
`____________________
`
`Appeals from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:19-cr-20163-RS-1
`____________________
`
`____________________
`
`
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`2
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`Opinion of the Court
`
`19-14969
`
`No. 20-14149
`
`____________________
`
`
`UNITED STATES OF AMERICA,
`
`versus
`
`JASON GATLIN,
`
`
` Plaintiff-Appellee,
`
` Defendants-Appellants.
`
`
`____________________
`
`Appeals from the United States District Court
`for the Southern District of Florida
`D.C. Docket No. 1:19-cr-20163-RS-1
`____________________
`
`Before JORDAN, LUCK, and LAGOA, Circuit Judges.
`
`LAGOA, Circuit Judge:
`
`Jason Gatlin appeals his convictions and sentences for sex
`trafficking of a minor, production of child pornography, and wit-
`ness tampering. On appeal, Gatlin raises several arguments in chal-
`lenging his convictions and sentences. After careful review, and
`with the benefit of oral argument, we affirm Gatlin’s convictions
`and sentences as to Counts 1 and 2 but reverse his conviction and
`
`
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`Opinion of the Court
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`3
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`sentence as to Count 3. We also affirm the district court’s restitu-
`tion order.
`I.
`FACTUAL AND PROCEDURAL BACKGROUND
`A. Gatlin’s Relationship with and Trafficking of E.H.
`E.H.1 ran away from home when she was sixteen years old.
`She began using drugs, starting with marijuana and escalating to
`MDMA. According to E.H., she was unable to get a job, so she
`traded sex for money and drugs.
`
`In October 2018, J.C., E.H.’s friend at the time, introduced
`E.H. to Gatlin. Gatlin and E.H. first interacted by talking on the
`phone and eventually began a sexual relationship. When they first
`met in person, Gatlin picked up E.H. and took her to a hotel in
`Florida City, where he paid her about $40 and gave her some drugs
`in exchange for sex. When E.H. first met Gatlin, she told him that
`she was seventeen years old.
`
`Subsequently, the two stayed in contact, and E.H. believed
`that they were in a romantic relationship. E.H. began saying that
`she was eighteen years old, despite being seventeen years old, be-
`cause she wanted to protect their relationship. Gatlin and E.H.
`took at least two trips to Key West, where they stayed together in
`a house that Gatlin was working on. Throughout this relationship,
`Gatlin took at least one photograph of them having sex.
`
`
`1 The names of the minors in this case have been omitted to preserve their
`anonymity.
`
`
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`Opinion of the Court
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`During this time, Gatlin became E.H.’s de facto pimp. Gat-
`lin told at least one customer that he was E.H.’s “manager.” Gatlin
`booked hotel rooms for E.H. so that she could engage in sex with
`customers. He also paid for E.H.’s food, supplied her with MDMA,
`drove her to the Florida Keys where she would prostitute herself,
`and allowed her to stay in the house that he was working on there.
`Additionally, Gatlin coached E.H. to charge more money in the
`Florida Keys than in Miami given the high presence of tourists and
`taught her sexual “tricks” so that she could continue to engage in
`prostitution. In return, Gatlin expected a cut of E.H.’s earnings.
`
`The relationship between Gatlin and E.H. soured quickly.
`Gatlin became angry that E.H. was having sex with other men.
`Similarly, E.H. was irate to learn that Gatlin was having sex with
`other women.
`
`Things came to a head on November 30, 2018. While the
`two were staying together in the Florida Keys, E.H. threatened to
`call the police on Gatlin. The situation became violent. As a result
`of her fight with Gatlin, E.H. suffered injuries to her nose and
`mouth. On the way back to Miami after their physical altercation,
`Gatlin threatened E.H. She became scared and asked Gatlin to pull
`over at a convenience store so that she could use the bathroom.
`Once inside, she locked herself in the bathroom and called the po-
`lice. Gatlin then left her there.
`
`Officers from the local sheriff’s office responded to E.H.’s
`call, and after interviewing her, brought her to a hospital, where
`
`
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`Opinion of the Court
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`she spoke with additional officers. Gatlin was arrested three days
`later.
`
`B. Gatlin’s Pretrial Tampering with E.H.
`Before trial, Gatlin made two attempts to tamper with E.H.’s
`testimony. First, in the period after E.H. spoke with law enforce-
`ment but prior to his arrest, Gatlin gave E.H. money and food and
`told her to recant her statements to the police.
`
`Second, after he was arrested, Gatlin told his mother to con-
`vince E.H. to recant. In a prison call, Gatlin told his mother that
`he would “get out immediately” if E.H. said she was lying and that
`it would take “[o]ne thousand dollars,” because “[p]eople will do
`all kinds of stuff for that.” Gatlin’s mother said that she understood
`and that she would “try and do the best [she] can to get [Gatlin] out
`of there.” At the time, E.H. did not have permanent housing and
`was living with Gatlin’s mother. In a later call, Gatlin told E.H.
`directly that all she had to do was go into court and change her
`statements in a sworn affidavit. Sometime later, Gatlin’s mother
`drove E.H. to the public defender’s office, where E.H. tried to re-
`cant her statements to Gatlin’s public defender, who eventually re-
`layed her recantation to the Federal Bureau of Investigation
`(“FBI”). E.H. continued living with Gatlin’s mother following that
`encounter. At trial, E.H. said she tried to recant her statements be-
`cause she “needed a place to stay.”
`C. Indictment and Trial
`A grand jury charged Gatlin via a superseding indictment
`with one count of sex trafficking of a minor, in violation of 18
`
`
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`Opinion of the Court
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`U.S.C. § 1591 (“Count 1”); one count of production of child por-
`nography, in violation of 18 U.S.C. § 2251 (“Count 2”); and one
`count of witness tampering, in violation of 18 U.S.C. § 1512(b)(3)
`(“Count 3”).
`
`Gatlin’s trial began on September 5, 2019, and lasted eight
`days. At the close of evidence, the district court instructed the jury.
`Regarding Count 1, the district court instructed the jury that the
`government was required to prove that Gatlin trafficked E.H. ei-
`ther:
`
`(a) knowing or in reckless disregard of the fact that
`means of force, threats of force, or coercion will be
`used to cause the person to engage in a commercial
`sex act, or (b) in reckless disregard of the fact that the
`person has not attained the age of 18 years, or having
`had a reasonable opportunity to observe the person,
`and knowing or in reckless disregard of the fact that
`the person will be caused to engage in a commercial
`sex act.
`In other words, the district court instructed the jurors that to find
`Gatlin guilty of sex trafficking, they had to find that Gatlin either
`acted: (a) by means of force, threats of force, or coercion; or (b) in
`reckless disregard of the fact that E.H. was a minor. The district
`court and the parties agreed to an interrogatory verdict form for
`Count 1. That verdict form first asked whether the jury found Gat-
`lin guilty and, if so, whether it was by use of force or by reckless
`disregard of the fact that the victim was a minor.
`
`
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`At first, the jury found Gatlin guilty on all counts. However,
`on the interrogatory verdict form, the jury did not find either of
`the conditions necessary to trigger liability, i.e., use of force or reck-
`less disregard of the fact that the victim was a minor. Because of
`this inconsistency, defense counsel asked the district court to “di-
`rect a verdict of not guilty . . . as to Count 1,” but defense counsel
`did not specify the grounds for doing so. The district court de-
`clined. Instead, reasoning that the jury had returned an incon-
`sistent verdict and “the verdict [had not] been discharged,” the dis-
`trict court clarified the instructions for the jury and directed them
`to continue deliberating. After further deliberations, the jury
`found Gatlin guilty under the second condition, i.e., that Gatlin
`acted in reckless disregard of the fact that E.H. was a minor.
`D. Sentencing
`The case proceeded to sentencing. Prior to sentencing, a
`Presentence Investigation Report (“PSI”) was prepared for Gatlin’s
`case. For Count 1, sex trafficking of a minor, the PSI noted that the
`base offense level was 30. The PSI recommended a total increase
`of ten points, for an adjusted total level of 40, based on the follow-
`ing reasons: (1) E.H. had been in Gatlin’s custody, care, or supervi-
`sory control; (2) Gatlin had influenced E.H. to engage in prohibited
`sexual conduct; (3) the offense involved the use of a computer;
`(4) the offense involved the commission of a sex act; and (5) Gatlin
`
`
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`Opinion of the Court
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`19-14969
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`had obstructed justice.2 For Count 2, production of child pornog-
`raphy, the PSI noted that the base offense level was 32. It adjusted
`this offense level by eight points, reaching a total adjusted offense
`level of 40, reasoning as follows: (1) a two-point increase because
`E.H. was in Gatlin’s custody, care, or supervisory control; (2) a two-
`point increase because the offense involved a sexual act; and (3) a
`four-point increase because the material produced portrayed sadis-
`tic or masochistic conduct or other depictions of violence. Based
`on the number of offenses and their levels, the PSI calculated that
`the total combined offense level was 42, to which it added a five-
`point increase because Gatlin qualified as a repeat offender. The
`PSI thus defaulted to the maximum offense level for the relevant
`offenses, which was 43. Next, in light of Gatlin’s record, the PSI
`found that his criminal history category was IV. Based on Gatlin’s
`total offense level and criminal history category, the PSI found that,
`under the United States Sentencing Guidelines, he should be sen-
`tenced to a term of life imprisonment.
`
`The district court sentenced Gatlin to a term of life impris-
`onment—a term of life as to Count 1, 260 months as to Count 2,
`and 240 months as to Count 3, all to be served concurrently. The
`district court considered a multitude of factors, including the PSI,
`Gatlin’s “extensive” criminal history, Gatlin’s mental health issues,
`
`
`2 The adjustments to the offense level of Count 1 incorporated the sentence
`for Count 3 (witness tampering). Together, they are referred to as count
`group one in the PSI.
`
`
`
`
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`Gatlin’s likelihood to reoffend and the need to protect the public,
`and Gatlin’s prior violations of probation. After a separate hearing,
`the district court also ordered Gatlin to pay $1,700 in restitution.
`
`Gatlin timely filed this appeal.3
`II.
`STANDARDS OF REVIEW
`“We review questions of constitutional law de novo.” United
`States v. Brown, 364 F.3d 1266, 1268 (11th Cir. 2004). Similarly,
`whether a jury instruction properly states the law is a legal question
`that we review de novo. United States v. Stone, 9 F.3d 934, 937 (11th
`Cir. 1993).
`
`“We review the sufficiency of evidence to support a convic-
`tion de novo, viewing the evidence in the light most favorable to the
`government and drawing all reasonable inferences and credibility
`choices in favor of the jury’s verdict.” United States v. Taylor, 480
`F.3d 1025, 1026 (11th Cir. 2007). “We review the district court’s ap-
`plication of the Sentencing Guidelines de novo, and its findings of
`fact for clear error.” United States v. Trujillo, 146 F.3d 838, 847 (11th
`Cir. 1998). And “[w]e review de novo the legality of an order of
`restitution, but we review factual findings underlying a restitution
`order for clear error.” United States v. Washington, 434 F.3d 1265,
`1267 (11th Cir. 2006). “For a finding to be clearly erroneous, [we]
`
`
`3 We note that Gatlin first appealed the finding of guilt as well as the sentenc-
`ing order. Gatlin then appealed in a separate notice of appeal the district
`court’s restitution order. The government moved to consolidate the appeals,
`which we granted.
`
`
`
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`‘must be left with a definite and firm conviction that a mistake has
`been committed.’” United States v. Rothenberg, 610 F.3d 621, 624
`(11th Cir. 2010) (quoting United States v. Rodriguez-Lopez, 363 F.3d
`1134, 1137 (11th Cir. 2004)); accord United States v. U.S. Gypsum Co.,
`333 U.S. 364, 395 (1948). Further, we review the reasonableness of
`a sentence “under a deferential abuse-of-discretion standard.” Gall
`v. United States, 552 U.S. 38, 41 (2007).
`
`And finally, we review errors that were forfeited because
`they were not timely raised in the district court for plain error. See
`Greer v. United States, 141 S. Ct. 2090, 2096 (2021). “To establish eli-
`gibility for plain-error relief, a defendant must satisfy three thresh-
`old requirements. First, there must be an error. Second, the error
`must be plain. Third, the error must affect substantial rights, which
`generally means that there must be a reasonable probability that,
`but for the error, the outcome of the proceeding would have been
`different.” Id. at 2096 (internal quotation marks omitted). If a de-
`fendant establishes that these three requirements are met, we then
`may exercise our discretion to notice the forfeited error but only if
`we determine that “the error had a serious effect on ‘the fairness,
`integrity[,] or public reputation of judicial proceedings.’” Id. at
`2096–97 (quoting Rosales-Mireles v. United States, 138 S. Ct. 1897,
`1904–05 (2018)); accord United States v. Coats, 8 F.4th 1228, 1240 (11th
`Cir. 2021).
`
`III. ANALYSIS
`On appeal, Gatlin raises four arguments challenging his con-
`victions and sentences. Specifically, Gatlin contends that: (1) there
`
`
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`was insufficient evidence to sustain the jury’s guilty verdicts; (2) the
`district court violated his rights by directing the jury to continue
`deliberating after they reached an inconsistent verdict; (3) the dis-
`trict court improperly applied sentencing enhancements and im-
`posed an unreasonable sentence; and (4) the order of restitution vi-
`olated his constitutional rights. We address these arguments in
`turn.
`A. Whether There Was Sufficient Evidence to Sustain the
`Jury’s Guilty Verdicts.
`Gatlin argues that there was insufficient evidence to sustain
`each of his three convictions.
`1. Sex Trafficking of a Minor (Count 1)
`We begin our analysis with Gatlin’s conviction for sex traf-
`ficking of a minor. A person is guilty of sex trafficking of a minor
`under 18 U.S.C. § 1591(a)(1) when he (1) “recruits, entices, harbors,
`transports, provides, obtains, advertises, maintains, patronizes, or
`solicits by any means a person,” (2) “knowing, or . . . in reckless
`disregard of the fact, . . . that the person has not attained the age of
`18 years,” and (3) “knowing, or . . . in reckless disregard of the
`fact,” that the person “will be caused to engage in a commercial sex
`act.” As to the second element, where “the defendant had a rea-
`sonable opportunity to observe the person so recruited, enticed,
`harbored, transported, provided, obtained, maintained, patron-
`ized, or solicited, the [g]overnment need not prove that the defend-
`ant knew, or recklessly disregarded the fact, that the person had not
`attained the age of 18 years.” Id. § 1591(c).
`
`
`
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`Reviewing the record, we conclude that the elements of sex
`trafficking of a minor are met here. First, there was substantial
`evidence presented at trial that showed Gatlin was E.H.’s pimp,
`thereby satisfying the first element. According to E.H.’s trial testi-
`mony, Gatlin rented a room for E.H. at a Motel 6 and drove her
`there knowing that she was going to prostitute herself in the room
`(which she then did); coached her on pricing and sexual techniques;
`and drove her to the Florida Keys, allowed her to stay with him,
`and gave her food and drugs “[w]henever [she] asked.” At the very
`least,
`these
`facts demonstrate
`that Gatlin
`“harbor[ed],
`transport[ed], provide[d],” and “maintain[ed]” E.H.
`
`Id.
`§ 1591(a)(1); see United States v. Mozie, 752 F.3d 1271, 1286 (11th Cir.
`2014) (“[Section 1591] applies to anyone who ‘harbors’ a minor
`who ‘will be caused to engage in a commercial sex act.’ B.H. testi-
`fied that she stayed at Mozie’s house for five days and four nights
`while she worked as a prostitute for him. That evidence is sufficient
`to convict Mozie . . . .” (citation omitted)).
`
`As to the second element, the evidence presented at trial
`showed that Gatlin knew that E.H. was underage. E.H. testified
`that, when she first met Gatlin, she told him she was seventeen.
`That testimony is sufficient to lead a reasonable juror to conclude
`that Gatlin knew or had reckless disregard for the fact that E.H. was
`underage.
`
`As to the third element, the evidence showed that Gatlin
`knew that E.H. would be “cause[d] to engage in commercial sex
`acts.” See 18 U.S.C. § 1591(a). In addition to the enabling actions
`
`
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`Gatlin took as E.H.’s pimp discussed above, E.H. testified that Gat-
`lin expected a cut of the money she made from her prostitution.
`The evidence presented at trial also showed that Gatlin knew E.H.
`was having sex for money and that he expected to reap some of the
`benefit by taking a cut of the money.
`
`Gatlin argues, however, that “cause,” as used in § 1591(a),
`means “something that produces an effect, result, or consequence”
`and that the “logical reading” of the statute’s language of “know-
`ing . . . the person . . . will be caused to engage in a commercial sex
`act” describes acts that the defendant intends to take, i.e., the de-
`fendant “means to ‘cause’ the minor to engage in commercial sex
`acts.” According to Gatlin, § 1591 “does not criminalize commer-
`cial sex acts with a minor in general, but makes criminal only those
`instances where a minor will be caused to engage in commercial sex
`acts through the defendant’s specific actions.” And Gatlin argues
`that any of the acts of “assistance” he purportedly provided do not
`satisfy § 1591.
`
`We conclude that Gatlin’s argument as to this point is with-
`out merit. Section 1591(a) criminalizes certain actions by a defend-
`ant—recruiting, enticing, harboring, transporting, providing, ob-
`taining, advertising, maintaining, patronizing, or soliciting by any
`means a person—if the defendant knows that the minor “will be
`caused to engage in a commercial sex act.” § 1591(a)(1) (Emphasis
`added). As an initial matter, we have held that criminal liability un-
`der § 1591 is not conditioned on the actual occurrence of any com-
`mercial sex act. See United States v. Blake, 868 F.3d 960, 977 (11th Cir.
`
`
`
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`2017) (“[T]he commission of a sex act is not an element of § 1591.”
`(emphasis in original)). Rather, “a defendant need only put the vic-
`tim in a position where a sex act could occur, regardless of whether
`a sex act eventually did occur.” Id. (emphasis in original).
`
`Again, on this record, we conclude that there was sufficient
`evidence to support the third element of § 1591, i.e., the evidence
`was more than sufficient for a jury to find that Gatlin knew that
`E.H. was a minor and knew that she would be caused to engage in
`commercial sex acts through his conduct. At trial, E.H. testified to
`the following. Gatlin knew E.H. was seventeen years old. Gatlin
`helped E.H. place online advertisements for prostitution and told
`her to charge higher prices in the Florida Keys. Gatlin took E.H. to
`a Motel 6 and paid for her room, knowing that E.H. would have sex
`for money with customers, and E.H. gave Gatlin money from pros-
`titution so that he could pay for extra nights at the Motel 6. Gatlin
`would not stay at the hotels he rented for E.H., but, on at least one
`occasion, kept a key to her room. Gatlin bought E.H. food, gave
`her money and drugs while she stayed at various motels and ex-
`pected E.H. to give him some of the money she earned from pros-
`titution. E.H. also testified that various statements she made to the
`police were truthful.
`
`We thus conclude that the evidence presented at trial was
`sufficient for a reasonable jury to find that Gatlin knew E.H. was a
`minor and that Gatlin knew that E.H. would be caused to engage
`in commercial sex acts through his conduct. Accordingly, we af-
`firm Gatlin’s conviction under § 1591 as to Count 1.
`
`
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`2. Production of Child Pornography (Count 2)
`We now turn to Gatlin’s conviction for production of child
`pornography under 18 U.S.C. § 2251. As relevant here, a person is
`guilty of violating § 2251 if he “employs, uses, persuades, induces,
`entices, or coerces any minor to engage in . . . any sexually explicit
`conduct for the purpose of producing any visual depiction of such
`conduct or for the purpose of transmitting a live visual depiction
`of such conduct.” § 2251(a).
`
`Only the intent element—“for the purpose of producing any
`visual depiction of such conduct”—is at issue here. Gatlin con-
`tends that § 2251 requires a specific intent to produce child pornog-
`raphy and that child pornography produced incidentally to a sexual
`encounter is insufficient. Gatlin also argues that “[t]he undisputed
`evidence showed that [he] engaged in sexual activity with E.H. and
`took a photo, not that he engaged in sexual activity with E.H. to
`take a photo.” (Emphasis in original).
`
`Based on the evidence presented at trial, we conclude that
`the intent element was met here. Specific intent does not require
`that the defendant be “single-minded in his purpose. . . . [A person]
`‘is no less a child pornographer simply because he is also a pedo-
`phile.’” See United States v. Lebowitz, 676 F.3d 1000, 1013 (11th Cir.
`2012) (quoting parenthetically United States v. Sirois, 87 F.3d 34, 39
`(2d Cir. 1996)). Accordingly, “[t]he government was not required
`to prove that making explicit photographs was [Gatlin’s] sole or pri-
`mary purpose” for engaging in sexual activity with E.H.; instead,
`“it was enough to show that it was ‘a purpose’ for doing so.” Cf.
`
`
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`United States v. Miller, 819 F.3d 1314, 1316 (11th Cir. 2016). Moreo-
`ver, “because specific intent . . . can be difficult to prove[,] . . . often
`circumstantial evidence must be introduced to allow the jury to in-
`fer intent.” See United States v. Foshee, 578 F.2d 629, 632 (5th Cir.
`1978).4
`
`Here, the evidence shows that Gatlin (1) intentionally had
`sex with a minor and (2) intentionally made a recording of that act
`by using his camera phone. The jury first could reasonably infer
`that Gatlin, during sexual intercourse with E.H., reached for his
`camera phone, unlocked the phone, and accessed the phone’s cam-
`era. Additionally, the jury could reasonably infer, based on the an-
`gle of the “live photo” in question, that Gatlin had to hold his cam-
`era phone in front of him using at least one of his hands while he
`was having sexual intercourse with E.H. Moreover, the short video
`contained in the “live photo” makes evident that Gatlin and E.H.
`“posed” for the photo by remaining still during sexual intercourse.
`In other words, for Gatlin to make the recording of the sexual act,
`he had to engage in a sexual act with E.H. and intentionally pause
`in the middle of that act to take the “live photo.” A jury could rea-
`sonably infer from that pause that, for at least some fraction of
`time, Gatlin was engaged in sexual conduct with E.H. partly for the
`purpose of recording it. Cf. Lebowitz, 676 F.3d at 1013 (“This is not
`a case of a security camera mechanically picking up a random act.”
`
`
`4 In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc),
`this Court adopted as binding precedent all decisions of the former Fifth Cir-
`cuit handed down prior to October 1, 1981.
`
`
`
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`17
`
`(quoting parenthetically United States v. Ortiz-Graulau, 526 F.3d 16,
`19 (1st Cir. 2008))). And we have previously rejected the incidental-
`pornographer argument that Gatlin raises here. See id. (“Whether
`some other sexual encounter would have occurred even without
`recording equipment is irrelevant. A reasonable jury could con-
`clude [the defendant] violated 18 U.S.C. § 2251(a).”).
`
`We thus conclude that there was sufficient evidence to sus-
`tain Gatlin’s conviction for production of child pornography and
`affirm Gatlin’s conviction as to Count 2.
`3. Witness Tampering (Count 3)
`We next address Gatlin’s conviction for witness tampering.
`As relevant to Gatlin’s case, a person violates 18 U.S.C. § 1512(b) if
`he “[(1)] knowingly uses intimidation, threatens, or corruptly per-
`suades another person, . . . or engages in misleading conduct to-
`ward another person, with intent to . . . [(2)] hinder, delay, or pre-
`vent the communication . . . of information relating to the com-
`mission or possible commission of a Federal offense” “[(3)] to a law
`enforcement officer or judge of the United States.” Where a de-
`fendant acts to prevent a “person from communicating with law
`enforcement officers in general,” the intent element is satisfied
`where there is “a reasonable likelihood that a relevant communica-
`tion would have been made to a federal officer.” Fowler v. United
`States, 563 U.S. 668, 670 (2011) (emphasis in original) (interpreting
`18 U.S.C. § 1512(a)(1), a nearly identical provision); see also United
`States v. Chafin, 808 F.3d 1263, 1274–75 (11th Cir. 2015) (finding plain
`error where a district court failed to apply the Fowler reasonable-
`
`
`
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`18
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`19-14969
`
`possibility standard to § 1512(b)(3)). Thus, the intent element pre-
`sents a two-step framework. First, we must determine whether the
`defendant had the intent to mislead law enforcement in general.
`Fowler, 563 U.S. at 673. If he did, we then must ask whether there
`was a reasonable likelihood that a relevant communication would
`have been made to a federal officer. Id. at 677. The intent element
`is satisfied only if both prongs are met. And the government “must
`show that the likelihood of communication to a federal officer was
`more than remote, outlandish, or simply hypothetical.” Id. at 678.
`
`Following Fowler, our sister circuits that have considered this
`issue have diverged in their approaches to the reasonable likelihood
`standard. See United States v. Johnson, 874 F.3d 1078, 1082 (9th Cir.
`2017). In United States v. Tyler, 732 F.3d 241 (3d Cir. 2013), the Third
`Circuit held that, to establish a “reasonable likelihood,” “there must
`be evidence—not merely argument”—“of the witness’s coopera-
`tion with law enforcement.” Id. at 252 (quoting United States v.
`Lopez, 372 F.3d 86, 92 (2d Cir. 2004)). The court explained that “‘the
`government need not prove that a federal investigation was in pro-
`gress at the time the defendant committed [a] witness-tampering’
`offense” in § 1512. Id. (alteration in original) (quoting United States
`v. Ramos-Cruz, 667 F.3d 487, 498 (4th Cir. 2012)). The Third Circuit
`has also held that the reasonable likelihood standard is a “relatively
`low bar,” as the government, under Fowler, “need only show that
`‘the likelihood of communication to a federal officer was more
`than remote, outlandish, or simply hypothetical.’” Bruce v. Warden
`Lewisburg USP, 868 F.3d 170, 185 (3d Cir. 2017) (first quoting United
`
`
`
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`19
`
`States v. Smith, 723 F.3d 510, 518 (4th Cir. 2013); then quoting Fowler,
`563 U.S. at 678).
`
`By contrast, the Fourth Circuit held that the federal nexus
`element of § 1512 “may be inferred by the jury from the fact that
`the offense was federal in nature, plus additional appropriate evi-
`dence.” Ramos-Cruz, 667 F.3d at 497. In Ramos-Cruz, the court did
`not focus solely on the fact that the murder at issue was eventually
`prosecuted as a federal crime but also considered uncontested evi-
`dence, including (1) a state task force was formed shortly after the
`murder, which investigated the gang the defendant was a member
`of, (2) a detective’s communication with federal authorities regard-
`ing the murder, and (3) informants testifying they had spoken with
`federal law enforcement officers. See id. And, in United States v.
`Veliz, 800 F.3d 63 (2d Cir. 2015), the Second Circuit adopted the
`Fourth Circuit’s approach and found that sufficient evidence sup-
`ported the jury’s finding that the defendant had violated the wit-
`ness tampering statute. Id. at 74–75.
`
`Here, Gatlin asserts that he lacked the requisite intent to vi-
`olate § 1512(b) because the evidence established that he asked E.H.
`to lie only to Gatlin’s public defender, not a federal officer. In ad-
`dressing this issue, we need not decide whether adopt the “addi-
`tional appropriate evidence” approach of the Second and Fourth
`Circuits, see Ramos-Cruz, 667 F.3d at 497; Veliz, 800 F.3d at 74–75,
`because we conclude that the evidence presented by the govern-
`ment in this case established only a “remote, outlandish, or simply
`hypothetical” possibility that E.H.’s recantation statements would
`
`
`
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`reach federal officers, see Fowler, 563 U.S. at 673. Thus, viewing the
`evidence in the light most favorable to the government, no rational
`trier of fact could have found the federal nexus element of the
`crime to be met.
`
`As an initial matter, we agree that the record evidence
`demonstrates Gatlin’s intent to have E.H. lie by recanting her pre-
`vious statements to state law enforcement. For example, E.H. tes-
`tified that Gatlin’s mother contacted her and told her to “recant
`[her] statements to say that everything that [she] had previously
`told law enforcement was untrue.” E.H. also testified as to Gatlin’s
`attempts to persuade her to hinder the investigation. Indeed, be-
`fore Gatlin was arrested, he dropped off food and money to E.H.
`and told her to “tell them it wasn’t true.” A jury could reasonably
`infer that “them” was referring to law enforcement. And jail calls
`between Gatlin and E.H., as well as between Gatlin and Gatlin’s
`mother, further demonstrate this intent.
`
`But, to prove a violation of § 1512(b), the government must
`also show that there was a reasonable likelihood that a relevant
`communication would have been made to a federal officer. Fowler,
`563 U.S. at 677. And here, while the issue is admittedly a close call,
`we conclude that the government’s evidence does not establish
`more than a “remote” or “simply hypo
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