Charles Gray BRUCE, a/k/a Charles Gary Bruce, Appellant v. WARDEN LEWISBURG USP
No. 14-4284
United States Court of Appeals, Third Circuit
August 22, 2017
868 F.3d 170
C. Class Certification, Daubert, and Intervention Issues
Because we affirm the District Court‘s grant of summary judgment on the merits, we need not address those other issues on appeal.65 Cf. Bowen v. Owens, 476 U.S. 340, 344 n.4, 106 S.Ct. 1881, 90 L.Ed.2d 316 (1986) (“Because we reject the equal protection claim, we do not reach the class certification issue.“); Wilson v. Quadramed Corp., 225 F.3d 350, 353 n.3 (3d Cir. 2000) (“We do not reach the class certification issue raised by Wilson since we [will] affirm the District Court‘s dismissal of the complaint....“).
III. Conclusion
For the foregoing reasons, we will affirm the District Court‘s grant of summary judgment.
Edward L. Stanton III, Esq., John D. Fabian, Esq., Kevin G. Ritz, Esq. [ARGUED], Office of United States Attorney, 167 North Main Street, Suite 800, Memphis, TN 38103, Peter J. Smith, Esq., Carlo D. Marchioli, Esq., Mark E. Morrison, Esq., Office of United States Attorney, 228 Walnut Street, P.O. Box 11754, 220 Federal Building and Courthouse, Harrisburg, PA 17108, Anthony D. Scicchitano, Esq., Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee
Before: FISHER,* VANASKIE, and KRAUSE, Circuit Judges.
OPINION OF THE COURT
FISHER, Circuit Judge.
Some 26 years ago in a small town located in western Tennesseе, Danny Vine and Della Thornton were murdered. Vine‘s home-based business was robbed and burned down with his and Thornton‘s bodies inside. Not long after, state and local law enforcement began to suspect Charles Gary Bruce and three others. Federal authorities later became involved, leading to Bruce‘s 1996 conviction for various federal crimes, including two counts of witness tampering murder for killing Vine and Thornton. For his wrongdoing, Bruce received a sentence of life without parole plus ten years in prison.
Fifteen years later, the Supreme Court handed down Fowler v. United States, 563 U.S. 668, 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), a decision that interpreted the statute under which Bruce was convicted. That statute makes it a crime “to kill another person, with intent to ... prevent the communication by any person to a law enforcement officer ... of the United States ... of information relating to the ... possible commission of a Federal offense.”
Ordinarily, federal prisoners collaterally challenging their convictions or sentences must seek relief pursuant to the remedial framework set out in
The District Court read our Circuit precedent as permitting Bruce to pass*
I
A
In December 1990, Charles Gary Bruce (Gary Bruce or Bruce) was experiencing financial difficulty. Together with his brothers Jerry and Robert, Gary Bruce devised a scheme to rob a mussel shell camp in Camden, Tennessee operated by Danny Vine. The Bruces believed that Vine, a local mussel shell buyer, carried large amounts of cash and that his camp, being secluded in the woods, would be easy to rob.
Camden is located in Benton County, not far from the Kentucky Lake, a large artificial reservoir created by the impounding of the Tennessee River by the Kentucky Dam. During the 1990s, the harvesting, processing, and exportation of freshwater mussel shells was a thriving industry in Tennessee. Divers would take the shells from the Kentucky Lake or the Tennessee River and sell them to locаl buyers like Vine, who served as purchasing agents for large companies. The buyers then transported their shells to the company for which they worked, where the meat was removed and the shells shipped overseas, most often to Japan. There, producers used the white lining of the mussel shells to manufacture cultured pearls.
On January 15, 1991, joined by their friend David Riales, the Bruces agreed that they would rob Vine‘s camp. They decided to kill anyone who was there and do whatever it took to take the shells. The following day, the group purchased several cans of gasoline from a local gas station and carried out their plan. When they arrived, Vine was present at the camp with his fiancée, Della Thornton, and their puppy. Gary Bruce tied up Vine and Thornton, who were both shot in the head at point-blank range with Gary‘s gun—Gary shot Vine, and Jerry shot Thornton. The group then poured gasoline on Vine and Thornton‘s bodies and throughout the house. Finally, they set the house ablaze and drove away with Vine‘s truck full of mussel shells.
Vine, Thornton, and their puppy‘s charred remains were discovered by the local sheriff‘s department three days later. Special Agent Alvin Daniel of the Tennessee Bureau of Investigation (TBI) was then assigned to the case. Through forensic evidence, state and local authorities identified Vine and Thornton as the victims and determined that the two had been shot in the head prior to the fire. The state fire marshal concluded that gasoline was used to set fire to the house and burn the bodies. Beyond that, investigators had limited physical evidence and no leads.
A few weeks after the murders, investigators learned of several suspicious sales of mussel shells by Gary Bruce‘s wife and brothers. At that point the Bruces became suspects. Ballistics testing, including a search warrant to recover bullets fired into a tree on Gary Bruce‘s property, led Special Agent Daniel to determine that Bruce‘s gun was used to shoot Vine and Thornton. The investigation became drawn out, however, by the unwillingness of witnesses to speak to state and local law enforcement.
Eventually Daniel approached the local United States Attorney‘s Office for assistance. A federal grand jury investigation
B
On November 1, 1993, a grand jury sitting in the Western District of Tennessee issued an indictment charging Gary, Jerry, and Robert Bruce, as well as David Riales, each with two counts of witness tampering murder, in violation of
Gary Bruce was detained at the McNary County, Tennessee jail pending trial. He escaped on July 27, 1994, and remained at large for 14 months. While a fugitive, a jury convicted Bruce‘s codefendants on all counts, except that Kathleen Bruce was acquitted of her witness tampering charge. The Sixth Circuit affirmed their convictions, United States v. Bruce, 100 F.3d 957, 1996 WL 640468 (6th Cir. Nov. 5, 1996) (unpublished table decision), and the Supreme Court denied certiorari, 520 U.S. 1128 (1997).
Gary Bruce‘s trial commenced on July 29, 1996. As to the witness tampering murder counts, the district court instructed the jury that, to convict, it must find beyond a reasonable doubt (1) that Bruce killed another person, (2) with the intent to prevent the communication of information to a lаw enforcement officer, and (3) that the information related to the commission of a federal crime. J.A. 1004-05. No instruction was given that the potential communication of information needed to be to a federal law enforcement officer. The jury convicted Bruce on all counts, including a separately-indicted charge of escape. The district court sentenced Bruce to life without parole, plus another ten years for his pre-trial escape. The Sixth Circuit affirmed Bruce‘s’ convictions, United States v. Bruce, 142 F.3d 437, 1998 WL 165144 (6th Cir. Mar. 31, 1998) (per curiam) (unpublished table decision), and the Supreme Court denied certiorari, 525 U.S. 882, 119 S.Ct. 190, 142 L.Ed.2d 155 (1998).
Since his convictions became final, Bruce has unsuccessfully sought post-conviction relief several times, proceeding pro se throughout. In June 2008, Bruce filed a motion under
On September 12, 2013, Bruce filed a pro se petition for a writ of habeas corpus under
The Magistrate Judge initially recommended that Bruce‘s petition be dismissed for lack of jurisdiction due to his failure to satisfy the gatekeeping requirements of
On remand, the Magistrate Judge found that jurisdiction under
Still proceeding pro se, Bruce timely filed a notice of appeal. The requirements for obtaining a certificate of appealability set forth in
III
It is appropriate to begin by addressing whether the District Court properly entertained Bruce‘s petition for a writ of habeas corpus under
A
Since the Judiciary Act of 1789, Congress has authorized federal сourts to
An increase in the number of federal habeas petitions produced serious administrative problems and overburdened the few district courts in the jurisdictions with major federal prisons. See United States v. Hayman, 342 U.S. 205, 210-19, 72 S.Ct. 263, 96 L.Ed. 232 (1952). Congress responded in 1948 by enacting
So it is that a federal prisoner‘s first (and most often only) route for collateral review of his conviction or sentence is under
With the passage of the Antiterrorism and Effective Death Penalty Act of 1996
We first addressed that scenario one year after AEDPA‘s enactment. In re Dorsainvil, 119 F.3d 245 (3d Cir. 1997), involved a prisoner convictеd of using a firearm during the commission of a drug trafficking crime, in violation of
Dorsainvil argued in the alternative, however, that if AEDPA prevented him from pursuing his Bailey argument, then he should be able to resort to the writ of habeas corpus under
The issue we confronted in Dorsainvil has since been addressed by every regional circuit. Nine of our sister circuits agree, though based on widely divergent rationales, that the saving clause permits a prisoner to challenge his detention when a change in statutory interpretation raises the potential that he was convicted of conduct that the law does not make criminal. See Trenkler v. United States, 536 F.3d 85, 99 (1st Cir. 2008); Poindexter v. Nash, 333 F.3d 372, 378 (2d Cir. 2003); In re Jones, 226 F.3d 328, 333-34 (4th Cir. 2000); Reyes-Requena v. United States, 243 F.3d 893, 903-04 (5th Cir. 2001); Wooten v. Cau-
Even within the circuits that permit actual innocence claims based on changes in statutory interpretation, there is a deep divide as to when
This Court‘s precedent does not contain a similar limitation. Our Circuit permits access to
While differences in the law amongst the circuits is a feature, not a bug, of our federal judicial system, the disparate treatment of Gary and Robert Bruce should not be overlooked. When it comes to their actual innocence claims, the two Bruce
B
Against this background, we now consider whether the District Court properly exercised jurisdiction under
The witness tampering murder statute prohibits the “kill[ing] or attempt[ed] kill[ing]” of “another person, with intent to ... prevent the communication by any person to a law enforcement officer or judge of the United States of information relating to the commission or possible commission of a Federal offense.”
As this Court recognized in Tyler, the Supreme Court‘s Fowler decision interpreted the witness tampering murder statute in a manner that gave the statute a narrower reach than that previously pеrmitted by our Circuit precedent. 732 F.3d at 251-52. Prior to Fowler, this Court held that
We further conclude that the change in the law brought about by Fowler applies retroactively in cases on collateral review. The established framework for determining the retroactive effect of new rules was set forth in the plurality opinion in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). That framework applies as much in a federal collateral challenge to a federal conviction as it does in a federal collateral challenge to a state conviction. United States v. Reyes, 755 F.3d 210, 213 (3d Cir. 2014). But cf. Welch v. United States, — U.S. —, 136 S.Ct. 1257, 1264, 194 L.Ed.2d 387 (2016) (assuming without deciding that Teague applies to federal collateral review of federal convictions). Teague concluded that, as a general matter, new constitutional rules of criminal procedure do not apply retroactively to convictions that are already final. Two categories of new rules fall outside this general bar. First are “[n]ew substantive rules.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004); see Teague, 489
It is quite clear that the rule set forth in Fowler is new. “A case announces a new rule if the result was not dictated by precedent existing at the time the defendant‘s conviction became final.” Teague, 489 U.S. at 301, 109 S.Ct. 1060. It is equally clear that the rule announced in Fowler is a substantive one. “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Schriro, 542 U.S. at 353, 124 S.Ct. 2519. “This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State‘s power to punish.” Id. at 351-52, 124 S.Ct. 2519 (citation omitted). In such circumstances, “where the conviction or sentence is not in fact authorized by substantive law, then finality interests are at their weakest.” Welch, 136 S.Ct. at 1266. By interpreting the witness tampering murder statute, Fowler narrowed its scope. Fowler therefore announced a new rule of substantive law that aрplies retroactively in cases on collateral review. Accord United States v. Smith, 723 F.3d 510, 515 (4th Cir. 2013).
The constitutional foundation for the retroactive application of new substantive rules lends further support to Dorsainvil‘s interpretation of
In light of these principles, the significant constitutional concerns we expressed in Dorsainvil are manifest. The Constitution dictates that “[a] conviction and sentence imposed in violation of a substantive rule is not just erroneous but contrary to law and, as a result, void.” Id. at 731 (citing Ex parte Siebold, 100 U.S. 371, 376, 25 L.Ed. 717 (1879)). “It follows, as a general principle, that a court has no authority to leave in place a conviction or sentence that violates a substantive rule, regardless of whether the conviction or sentence became final before the rule was announced.” Id. Of signal importance, it is “uncontroversial ... that the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” Boumediene, 553 U.S. at 779, 128 S.Ct. 2229 (quoting INS v. St. Cyr, 533 U.S. 289, 302, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001)). Foreclosing a prison-
We therefore hold that the District Court properly exercised jurisdiction under
C
Having assured ourselves of the District Court‘s jurisdiction, we shall proceed to consider the merits of this appeal. We have jurisdiсtion to do so under
IV
This leads to the question whether Gary Bruce was convicted of conduct that is not a crime in light of Fowler. It should be observed that we are venturing into something of a habeas corpus frontier, this being the first case in which this Court has considered the merits of an actual innocence claim under
A
The Supreme Court has yet to decide whether a prisoner can obtain habeas relief based on a freestanding claim of actual innocence, having left the matter open time and again. Herrera v. Collins, 506 U.S. 390, 404-05, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); House v. Bell, 547 U.S. 518, 554-55, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006); District Attorney‘s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 71-72, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009). That does not mean, however, that innocence is irrelevant: a prisoner‘s proof of actual innocence may provide a gateway for federal habeas review of procedurally defaulted or untimely claims of constitutional error. See McQuiggin v. Perkins, 569 U.S. 383, 133 S.Ct. 1924, 1931-32, 185 L.Ed.2d 1019 (2013). Bruce‘s actual innocence claim does not come to us as a gateway issue. He is not seeking to demonstrate his innocence so as to proceed with some otherwise defaulted or untimely claim, but to obtain full habeas relief. If Bruce were indeed asserting a freestanding actual innocence claim, “the threshold showing for such an assumed right would necessarily be extraordinarily high.” Herrera, 506 U.S. at 417, 113 S.Ct. 853.
Because “‘actual innocence’ means factual innocence, not mere legal insufficiency,” the Government “is not limited to the existing record to rebut any showing that [the] petitioner may make.” Bousley, 523 U.S. at 623-24, 118 S.Ct. 1604. A habeas court is therefore “not bound by the rules of admissibility that would govern at trial,” but must instead “make its determination ‘in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.‘” Schlup, 513 U.S. at 327-28, 115 S.Ct. 851 (quoting Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 160 (1970)). With this broader array of evidence in view, the district court does not exercise its “independent judgement as to whether reasonable doubt exists“; rather, the actual innocence standard “requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do.” Id. at 329, 115 S.Ct. 851. And it must be presumed, moreover, that a reasonable juror “would consider fairly all of the evidence presented” and “conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt.” Id.
After Fowler, a conviction for witness tampering murder requires the Government to prove: (1) the defendant killed or attempted to kill a person; (2) the defendant was motivated by a desire to prevent the communication between any person and law enforcement authorities concerning the commission or possible commission of an offense; (3) that offense was actually a federal offense; and (4) a reasonable likelihood that the person whom the defendant believes may communicate with law enforcement would in fact make a relevant communication with a federal law enforcement officer. Tyler, 732 F.3d at 252. Bruce‘s actual innocence claim focuses solely on the reasonable likelihood element.
Of course, the bar is low for the Government at trial. “Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.” Herrera, 506 U.S. at 399, 113 S.Ct. 853; see also Schlup, 513 U.S. at 326 n.42, 115 S.Ct. 851 (A habeas petition asserting an actual innocence claim “comes before the habeas court with a strong—and in the vast majority of the cases conclusive—presumption of guilt.“). So the Government‘s low bar is instead a high hurdle for Bruce. Compounded with the extraordinary showing needed to establish his innocence, Bruce‘s burden of proof is a heavy one.
B
Applying these principles, we now address whether it is more likely than not that any reasonable juror would have reasonable doubt that Gary Bruce killed Danny Vine and Della Thornton to prevent them from communicating with a federal law enforcement officer. Three sets of considerations to be discussed demonstrate why, in our view, Bruce cannot make this extraordinary showing.
First, Bruce‘s robbery and arson were undisputed federal offenses. Vine ran an interstate shell buying business out of his home. The mussel shells that Bruce and his cohorts stole were later sold in Kentucky. And the ATF has authority to investigate suspicious fires at commercial locations, see
To be sure, “when a defendant acts in ways that violate state criminal law, some or all of those acts will violate federal criminal law as well.” Fowler, 563 U.S. at 676, 131 S.Ct. 2045. Fowler gave the enforcement of marijuana offenses as an example of federal-state overlap. Id. at 677, 131 S.Ct. 2045. But the armed robbery and arson of an interstate business is a far cry from a marijuana offense and even further afield from being a crime that would raise significant federalism concerns. The Fowler Court “certainly did not suggest that, when other evidence demonstrated a reasonable likelihood of communication with a federal officer, the fact that the underlying crime could have been prosecuted under both state and federal law precluded prosecution under” the witness tampering murder statute. United States v. Ramos-Cruz, 667 F.3d 487, 498 (4th Cir. 2012); see also United States v. Veliz, 800 F.3d 63, 75 (2d Cir. 2015) (noting in the context of
Furthermore, the fact that a federal investigation ultimately occurred after Vine and Thornton‘s murder is probative evidence of the likelihood that they would have eventually communicated with a federal officer. Had either survived, it is scarcely remote, outlandish, or simply hypothetical that they would have communicated with one of the FBI or ATF agents assigned to the investigation. And to the extent TBI Special Agent Daniel and other Tennessee officers participated in the investigation after federal intervention, they too would count as federal officers. See
Bruce makes much of the two-year gap between the crime and the involvement of federal authorities. He argues that Fowler requires “objective proof that federal involvement was reasonably likely at the time of the victim‘s death,” and that this proof must be “particular to the victim.” Bruce Br. 17 (emphasis deleted). But under Fowler temporal remoteness has to do with the degree of likelihood of federal involvement. Congress intended the statute to apply “where the defendant killed the victim before the victim had decided to communicate to law enforcement officers.” Fowler, 563 U.S. at 676, 133 S.Ct. 1391. And here, the very reason for the two-year interval is exactly why federal involvement became necessary.
That leads to the second consideration to be discussed. The record from Bruce‘s trial confirms that, consistent with the Bruce family‘s long-held history of violence, their campaign of fear and witness intimidation stymied the state investigation, making federal intervention essential. Indeed, Bruce admitted as much while detained pre-trial at the McNary County, Tennessee jail. There, Gary and Jerry Bruce got to know a fellow inmate named James McGrogan. The two brothers expressed to McGrogan their belief that they owned and ran Benton County and that “nobody was supposed to interfere with them [or] their family.” J.A. 694. Were any witnesses to testify against the Bruces “they would be sorry.” Id. The brothers also explained how they hoped that “other members of their family would be able to frighten some people” so their case “would never come to trial.” J.A. 701. And just before Gary Bruce began his escape from the jail, “his last words were that there wouldn‘t be any witnesses or their fucking families.” J.A. 708.
Several key witnesses testified at Bruce‘s trial that they were too scared to cooperate until the federal investigation began. Ralph Sentell, Jr. owned the gas station where Gary, Jerry, and Robert Bruce filled several containers of gasoline the night of the murders. Sentell initially did not cooperate with state investigators because, having known Gary Bruce for twenty years, he was scared of the Bruces’ “reputation and what they were capable of doing.” J.A. 649-50. After Sentell testified to the federal grand jury, Gary Bruce tried to intimidate Sentell by lingering around the gas station. This scared Sentell, who began carrying a pistol and asked the FBI and TBI at least twenty times if he could be placed in a witness protection program.
Patricia Odham hosted a party at her trailer the day before the murders. It was there that Bruce and others agreed they would rob Vine‘s shell camp. Odham knew the Bruce family well and was afraid she would be killed if she cooperated with the
Ira Travis is a first cousin of the Bruces who has known the family his entire life. He was present when the robbery was planned at Odham‘s trailer, but declined to participate in its execution. Travis initially told Special Agent Daniel that he knew nothing. Due to his familiarity with the Bruces and “what they do,” Travis feared for his and his family‘s safety. J.A. 544. He eventually fled Tennessee for nearly five years, and did not cooperate with authorities until he met with federal investigators in January 1996.
Tammy Rayburn was offered money from Robert Bruce to supply an alibi for the murders. Rayburn, who had previously dated Robert, did not come forward with this information for several years because she was sсared of the Bruces. Rayburn‘s fear was due in part to stalking by Kathleen Bruce, who would park her car next door to Rayburn‘s house and stare at Rayburn.
John Norrell saw David Riales speed away from Vine‘s house in Vine‘s truck the night of the murders. Due to hearing “rumors of people being murdered and threatened,” Norrell did not approach the authorities with this information for a year and a half. J.A. 751. When Norrell learned of Gary Bruce‘s pre-trial escape from jail, he feared for his life and considered entering a witness protection program. He was instead given $4,000 from the FBI to move out of state.
Other testimony from Bruce‘s trial detailed the Bruce family‘s efforts to intimidate witnesses. Shannon Irwin was dating Robert Bruce at the time of the murders and later married Jerry Bruce. After Special Agent Daniel interviewed Irwin, Kathleen Bruce began to follow her around town. Later, Gary Bruce told Irwin that “he could kill [Irwin] and his momma right there and it would never be on his conscience.” J.A. 789-90.
Wayne Deсker spoke with Special Agent Daniel after the federal grand jury investigation started. Decker had known the Bruces for more than thirty years. After observing Daniel serve Decker with a subpoena, Gary and Robert Bruce confronted Decker. Knowing “the way [the Bruces] operate and the way they live,” Decker lied to the Bruces about what he had told Daniel so as to not “put [himself] in danger.” J.A. 818, 822.
Danny Vine‘s father Larry Vine was also subject to the Bruces’ intimidation. A couple months after the murders, Gary and Jerry Bruce ran Larry Vine off the road with their truck. Another time, Jerry Bruce cut Larry Vine off at an intersection and stared him down. Other members of the Bruce family would make obscene gestures at Larry Vine anytime they saw him around Camden.
Gary Bruce even threatened Special Agent Daniel. Prior to federal intervention, when Tennessee authorities executed a search warrant on Bruce‘s property, Bruce made several violent taunts threatening to kill Daniel. Among other things, Bruce told Daniel: “Had I known you were coming, I would have met you down the road with a rifle, and you would have never made it up on the property.” J.A. 837.
Third and finally, additional evidence outside of Bruce‘s trial record confirms that federal involvement was necessary
At Jerry Bruce‘s September 1994 bond hearing, Benton County sheriff‘s deputy Robert Weller testified about the Bruce family‘s reputation. He detailed how the Bruces attempted to intimidate Special Agent Daniel to “slow up the possibility of gaining new evidence.” J.A. 181. Weller also explained that “[i]t‘s hard to investigate the family” because sheriff‘s deputies were “scared of them.” J.A. 194, 201. For local law enforcement, the approach was: “If you‘re going to stop a Bruce, make sure you have backup. If you‘re going to call, make sure you have somebody else with you. And, generally, if you don‘t have to mess with them, don‘t mess with them.” J.A. 176.
The federal nature of Bruce‘s crimes, the evidence produced by the Government at his trial, and additional record evidence all clearly establish that the Bruce family had a long-standing history of violence that was well-known to members of the community before the murders. Thе Bruces’ reputation manifested itself later as witnesses were intimidated from cooperating until after federal authorities became involved. Much of the evidence in this case consists of post-offense acts of Gary Bruce and his codefendants that demonstrate a continuous plan to avoid prosecution for the events of January 16, 1991. These facts defeat Bruce‘s present assertion that the two-year interval between the murders and the involvement of federal authorities undermines the reasonable likelihood that Vine and Thornton would have made a “relevant communication with a federal law enforcement officer.” Tyler, 732 F.3d at 252. It should be noted, however, that post-offense acts are appropriately considered here given the wide-open evidentiary universe that attends this actual innocence proceeding. While evidence of post-offense acts can certainly be relevant to any reasonable likelihood determination, the weight of such evidence may present a different question at trial, when constraints on the admissibility of evidence are in play. That question is not considered in this case.
In sum, the Court holds that any reasonable juror faced with “all the evidence,” Schlup, 513 U.S. at 328, 115 S.Ct. 851 (quoting Friendly, 38 U. Chi. L. Rev. at 160), would conclude that, had Danny Vine and Della Thornton survived, the likelihood that they would have communicated with a federal officer was more than remote, outlandish, or simply hypothetical. It therefore follows that any reasonable juror would convict Bruce of witness tampering murder.
* * *
Charles Gary Bruce has now been afforded a meaningful opportunity to demonstrate his innocence in light of the Supreme Court‘s decision in Fowler. For the reasons stated, that is an extraordinary
D. MICHAEL FISHER
UNITED STATES CIRCUIT JUDGE