UNITED STATES of America v. Willie TYLER, Appellant.
No. 12-1975.
United States Court of Appeals, Third Circuit.
Argued May 13, 2013. Opinion Filed: Oct. 3, 2013.
241
Gordon A.D. Zubrod, Esq., Assistant United States Attorney, [argued], Office of United States Attorney, Harrisburg, PA, for Appellee United States of America.
Before: FUENTES, SHWARTZ, and ROTH, Circuit Judges.
OPINION OF THE COURT
FUENTES, Circuit Judge:
Willie Tyler was charged under state law for the murder of Doreen Proctor, a witness who was scheduled to testify at his brother‘s state trial. Tyler was acquitted of the murder charge but convicted of witness intimidation and served a term in state prison. After his release, federal prosecutors brought charges for witness tampering by murder and by intimidation in violation of
Tyler now argues that two recent Supreme Court decisions, Arthur Andersen LLP v. United States and Fowler v. United States, limited the scope of the witness tampering statute and have rendered non-criminal the acts for which he was convicted. We conclude that these intervening Supreme Court decisions along with the evidence in the record supports Tyler‘s actual innocence claim. For this reason, we will remand to the District Court to conduct an evidentiary hearing and provide Tyler an opportunity to present evidence in support of his actual innocence.
I. BACKGROUND
A. Factual History
Doreen Proctor‘s body was found on the side of a country road in Adams County, Pennsylvania on April 21, 1992, shot in the head and chest, badly beaten, and stabbed repeatedly. She had been scheduled to testify that day as a witness against David Tyler, Appellant Willie Tyler‘s brother, in Pennsylvania state court.1 In her role as a confidential informant for the Carlisle Police Department, Proctor had made four controlled buys of cocaine from Tyler and from three other individuals, Jerome “Butchie” Evans, Mary Jane Hodge and Cindy Brooks, in early 1991. Proctor had testified against the four individuals at their preliminary hearing, and in January 1992, she testified at Hodge‘s trial leading to a conviction. After Proctor‘s death, the remaining trials were halted.
Instead, in July 1992, Tyler, along with David and David‘s girlfriend Roberta Ronique Bell, were charged under state law with criminal homicide and witness intimidation in connection with Proctor‘s death. Tyler was acquitted of the murder but convicted of witness intimidation, David was convicted of murder, and Bell was
Federal law enforcement officers began a subsequent investigation into Proctor‘s death, and in June 1995, Bell was charged with witness tampering and intimidation. After a jury trial, Bell was convicted and sentenced to life imprisonment. United States v. Bell, 113 F.3d 1345, 1347 (3d Cir. 1997). In April 1996, after his release from state prison, Tyler was charged by federal authorities with murder and intimidation of a witness in connection with Proctor‘s death.
The evidence revealed that on April 20, 1992, following a meeting between David and Jerome Evans, David recounted the conversation to Tyler and then stated, “[t]hat bitch is going to die tonight.” App. 429. Shortly thereafter, David went to a shed outside of Hodge‘s house, returned with a sawed-off shotgun and asked Tyler whether he knew how to cock the gun, and Tyler demonstrated that he knew how to do so. That night, Roberta Bell asked a friend to babysit her kids. The next morning, Tyler and David returned to Mary Jane Hodge‘s home where Tyler said “It‘s over, she‘s gone,” and David reported, “she‘s dead, and I‘ll be at court ... and that bitch won‘t.” App. 435. That same morning, Bell returned home with an armful of bloody clothes and told her babysitting friend to say she had been home all night. The friend overheard an argument between Tyler, David, and Bell during which Bell told Tyler, “I shot Doreen but you killed her.” App. 521.
B. Proctor‘s Involvement with Law Enforcement
The Tri-County Drug Task Force, a joint anti-drug effort by state and local law enforcement officers from Cumberland, York, and Perry Counties in Pennsylvania was coordinated by Special Agent Ronald Diller of the Pennsylvania Attorney General‘s Bureau of Narcotics Investigation. In early 1992, at the time of Proctor‘s death, no federal agent or agency was part of the Task Force. However, a Memorandum of Understanding stated that each Task Force coordinator should evaluate state and local cases to determine which should be referred to the federal Drug Enforcement Administration (DEA). While a Task Force officer was initially responsible for his or her own confidential informants, at the conclusion of an investigation and trial, Special Agent Diller would generally meet with the investigating officers to determine whether there was any potential to expand the investigation. If a case was under consideration for federal involvement, Diller would join the investigating officer in debriefing the informant, and at that point, Diller would decide whether to bring the case to the DEA. Diller estimated that he had brought to the DEA three to five of the Task Force‘s cases each year for federal prosecution.
Though Diller was neither paid by any federal agency nor authorized to seize drugs or get a search warrant on behalf of the DEA, for certain investigations in the past, he had been deputized to act on the DEA‘s behalf when he would be traveling outside of Pennsylvania with a federal agent. Diller later testified that he would advise and consult with the DEA but ultimately conceded that he had never previously used the terms “advisor” or “consultant” and instead had borrowed them from an Assistant U.S. Attorney‘s affidavit.
Doreen Proctor had worked as an informant for Carlisle Police Detective David Fones, an officer with the Tri-County Drug Task Force. At the time of her death, Proctor no longer engaged in undercover operations but had continued to provide Fones with information on the drug market, including local drug activity
II. PROCEDURAL HISTORY
Willie Tyler is no stranger to this Court. After Tyler‘s state trial in which he was acquitted of murdering a witness and convicted of intimidating a witness, Tyler was federally charged with witness tampering by murder and by intimidation in connection with Proctor‘s death, in violation of
In December 2009, Tyler filed a pro se motion, arguing that Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), had rendered his conduct non-criminal. The Supreme Court had held in Arthur Andersen that certain official proceeding provisions of
III. ANALYSIS3
A. Availability of Section 2241 Relief
Prior to the enactment of
However, even after § 2255 was enacted, a writ of habeas corpus under § 2241 remained available for prisoners under limited circumstances, including when § 2255 is “inadequate” or “ineffective,”
To support an actual innocence claim, the petitioner must “establish that ‘in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him.‘” United States v. Garth, 188 F.3d 99, 107 (3d Cir. 1999) (quoting Bousley v. United States, 523 U.S. 614, 623 (1998)). A petitioner can establish that no reasonable juror would have convicted him by demonstrating an intervening change in law that rendered his conduct non-criminal. See United States v. Davies, 394 F.3d 182, 191 (3d Cir. 2005) (citing Bousley, 523 U.S. at 620). While Bousley addressed the standard that a petitioner must meet for claims brought under § 2255, this standard applies equally to actual innocence claims brought under § 2241. See, e.g., Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006); Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 2003).
In the instant action, Tyler contends that he is actually innocent and being detained for conduct that has subsequently been rendered non-criminal due to the Supreme Court‘s interpretation of
B. The Victim and Witness Protection Act
The Victim and Witness Protection Act of 1982 (VWPA) was enacted to provide protection to witnesses in federal cases. The VWPA contains two key provisions, which follow. The first section addresses witness tampering by murder of a witness:
Whoever kills or attempts to kill another person, with intent to—
(A) prevent the attendance or testimony of any person in an official proceeding; ... or (C) 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 or a violation of conditions of probation, parole, or release pending judicial proceedings; shall be punished....
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—
(1) influence, delay, or prevent the testimony of any person in an official proceeding;
(2) cause or induce any person to—
(A) withhold testimony, or withhold a record, document, or other object, from an official proceeding;
(B) alter, destroy, mutilate, or conceal an object with intent to impair the object‘s integrity or availability for use in an official proceeding; ... or
(D) be absent from an official proceeding to which such person has been summoned by legal process; or
(3) hinder, delay, or prevent the communication to a law enforcement officer or judge of the United States ... shall be [punished].
Id.
Tyler was convicted of tampering with a witness by murder in violation of an official proceeding provision4 and an investigation-related communication provision5 (Count 2). He was also convicted of tampering with a witness by intimidation and threats in violation of two official proceeding provisions6 and an investigation-related communication provision7 (Count 3).
The Supreme Court addressed certain provisions of
1. Limitations from Arthur Andersen and Fowler
The Supreme Court‘s decision in Arthur Andersen required that for the government to satisfy the VWPA‘s witness intimidation section‘s “official proceeding” requirement,
In 2011, the Supreme Court in Fowler analyzed the investigation-related communication provision in the VWPA‘s witness murder section,
2. Reconciling These Limitations in Shavers
In United States v. Shavers, which we decided after the District Court‘s denial of Tyler‘s § 2241 petition, we reconciled the Supreme Court‘s holdings in Arthur Andersen and Fowler. 693 F.3d at 378-79. While the Arthur Andersen Court only specifically addressed the nexus requirement in the official proceeding provisions of
We also considered Fowler‘s “reasonable likelihood” requirement for the investigation-related communication provision and rejected the view that it would apply to an official proceeding provision,
D. Effect of Intervening Supreme Court Decisions on Tyler‘s Convictions
1. Official Proceeding: Nexus Requirement
Tyler contends that his conduct has been rendered non-criminal by the Supreme Court‘s decision in Arthur Andersen because there was no evidence from which the Government could establish a nexus with an official proceeding. The District Court, though, held that Arthur Andersen did not establish that Tyler was actually innocent of his witness tampering offenses. It recognized that other Circuits have held that Arthur Andersen‘s nexus requirement applies to other VWPA provisions containing the official proceedings language. United States v. Tyler, No. 1:96-CR-106, 2012 WL 951479, at *9 (M.D.Pa. Mar. 20, 2012) (citing United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir.2009) and United States v. Matthews, 505 F.3d 698, 707-08 (7th Cir.2007)). However, it reasoned that because the conduct at issue in Arthur Andersen was “by itself not inherently wrong,” a nexus requirement was necessary to ensure that “innocent conduct is not punished,” whereas Tyler‘s conduct involved “consciousness of wrongdoing” so no such nexus requirement was necessary. Id., at *9-10. Thus, it disagreed with the holdings of these Circuits and held that Arthur Andersen‘s nexus requirement does not apply to
The District Court‘s holding is in sharp contrast with our subsequent holding in Shavers. There we expressly held that the nexus requirement for official proceedings extends to
Having considered the effect of Arthur Andersen on the
In Shavers, we considered the evidence presented at trial and concluded that it was insufficient as a matter of law to satisfy the official proceedings requirement because the defendant‘s conduct was directed at preventing a witness from testifying in a state court proceeding and because there was no evidence that the defendant contemplated another proceeding. 693 F.3d at 379-80. Tyler‘s case is no different. Similar to Shavers, there was no evidence that Tyler‘s conduct was directed at preventing Proctor‘s testimony at anything other than as a witness to a state drug offense at Tyler‘s brother‘s state trial, or that Tyler contemplated a federal proceeding. Special Agent Diller conceded at Tyler‘s trial that at the time of Proctor‘s death he had not contacted any federal agency to discuss a federal case involving Proctor as a federal witness and there was no plan to use her in a federal proceeding. Indeed, in considering the appeal of Tyler‘s co-conspirator, we concluded that “there was no federal proceeding contemplated at the time of Proctor‘s murder.” Bell, 113 F.3d at 1348.9 Thus, based on our review of the record, we have uncovered no evidence to satisfy Arthur Andersen‘s requirement that the Govern-
2. Investigation-Related Communications: Reasonable Likelihood Test
Tyler also argues that Fowler has rendered his conduct non-criminal under
Our pre-Fowler interpretation of
Fowler thus calls into question Stansfield‘s requirement that the government only prove that the defendant believe the witness “might” communicate with federal law enforcement. First, our use of the term “might” permitted a mere possibility rather than a reasonable likelihood, which fails to comport with the Supreme Court‘s admonition that a reasonable likelihood requires more than “a mere possibility” or “that the likelihood of communication to a federal officer was more than remote, outlandish, or simply hypothetical.” Fowler, 563 U.S. at 677-78. Worse, that we permitted an inference of the element further violated Fowler by “transform[ing] a federally oriented statute into a statute that would deal with crimes, investigations, and witness tampering that, as a practical mat-
In Stansfield, we held that to establish a conviction under the investigation-related communication provision of the witness murder section of the VWPA, the government must 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) the defendant believed that the person in (2) above might communicate with the federal authorities.
101 F.3d at 918. We now hold that in addition to the first three Stansfield elements as applied to the murder or intimidation of a witness, the government must establish 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.10 To establish this reasonable likelihood, “there must be evidence—not merely argument” of the witness‘s cooperation with law enforcement, United States v. Lopez, 372 F.3d 86, 92 (2d Cir. 2004) (emphasis omitted), vacated on other grounds by Lopez v. United States, 544 U.S. 902 (2005). Nevertheless, just as Fowler specifically noted that
Having concluded that the intervening change in law again supports Tyler‘s claim of actual innocence of violating the investigation-related communication provisions, we will consider the evidence that the Government presented to satisfy the reasonable likelihood test. If the Government failed to establish a reasonable likelihood that at least one of Proctor‘s communications with law enforcement would have been with a federal law enforcement officer, then we must remand to the District Court. See Fowler, 563 U.S. at 678 (noting that it would “leave ... to the lower courts to determine whether, and how, the [reasonable likelihood] standard applies“). In this case, the Government introduced evidence that Proctor had communicated with Pennsylvania Special Agent Diller, that Diller would advise and consult with the DEA, and that he planned to fully debrief Proctor after David Tyler‘s trial concluded to determine whether to expand the investigation. Yet, in violation of Fowler and based on our prior erroneous interpretation of
E. Procedure on Remand
Having concluded that the record supports Tyler‘s claim of actual innocence on
If the District Court concludes that Tyler has met his burden of establishing his actual innocence as to both theories, then it must issue the writ of habeas corpus and vacate Tyler‘s convictions, pursuant to
Generally, when a jury returns a general verdict and the evidence is insuf-ficient to support a conviction on one legal theory but sufficient to convict on another theory, then the reviewing court should let the verdict stand, assuming that the jury convicted on the factually sufficient theory. United States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002) (citing Griffin v. United States, 502 U.S. 46, 49-50 (1991)). However, when “one of two or more alternative theories supporting a count of conviction is either (1) unconstitutional, or (2) legally invalid, then the reviewing court should vacate the jury verdict and remand for a new trial without the invalid or unconstitutional theory.” Id. (citing Griffin, 502 U.S. at 56). This is because “a jury is presumed to be able to distinguish factually sufficient evidence from factually insufficient evidence,” but “is not presumed, however, to be able to distinguish accurate statements of law from inaccurate statements.” Id. (citing Griffin, 502 U.S. at 59). A legal theory is invalid when, as here, “the indictment or the district court‘s jury instructions are based on an erroneous interpretation of law or contain a mistaken description of the law.” Id. at 145. Thus, if the District Court concludes that Tyler has failed to establish his actual innocence based on one but not both legal theories, then it may not let the verdict stand, and instead it must order a new trial based only on the legally valid theory.
IV. CONCLUSION
In light of the foregoing, we remand for further proceedings consistent with this opinion.
SHWARTZ, Circuit Judge, dissenting:
The Majority and I agree that if Willie Tyler can meet the “actual innocence” standard to invoke
I.
Under Bousley v. United States, 523 U.S. 614 (1998), and Schlup v. Delo, 513 U.S. 298 (1995), to demonstrate “actual innocence,” a habeas petitioner must show that, in light of all the evidence, it is more likely than not that no reasonable, properly instructed juror would have convicted him.1 Bousley, 523 U.S. at 623; Schlup, 513 U.S. at 327-29.
Tyler was convicted of violating the Victim and Witness Protection Act (“VWPA“),
Because “‘actual innocence’ means factual innocence, not mere legal insufficiency,” a showing that the jury was instructed on a legally invalid theory alone does not satisfy the actual innocence standard. Bousley, 523 U.S. at 623. Bousley and Schlup require the Court to ask what a reasonable, properly instructed juror “would do” when considering the evidence presented. Schlup, 513 U.S. at 329 (emphasis added); see also Bousley, 523 U.S. at 623. Unlike the direct appeal cases on which the Majority relies, Bousley and Schlup require us to ignore what the improperly instructed jury at Tyler‘s trial actually did and direct that we examine the record under the current law. As a result, legally invalid jury instructions given at trial alone cannot render a petitioner actually innocent because Bousley and Schlup require us to review the facts from the perspective of a reasonable, properly instructed juror.4
In Schlup, the Supreme Court set forth certain attributes of such a reasonable juror. First, such a “reasonable juror would consider fairly all of the evidence presented.” Schlup, 513 U.S. at 329. Second, “such a juror would conscientiously obey the instructions of the trial court requiring proof beyond a reasonable doubt.” Id. Finally, and most importantly here, courts must presume that such a juror has been “properly instructed.” Id. A “properly instructed” juror is a juror who has been given “completely accurate” instructions. See Goldblum v. Klem, 510 F.3d 204, 240 (3d Cir. 2007); Davies, 394 F.3d at 196 (reviewing an actual innocence claim and considering the perspective of a properly instructed juror). Accordingly, if an instruction was erroneous when it was given, a court evaluating a claim of actual innocence must determine whether a cor-
II.
Under this standard, the analysis is straightforward. As the Majority correctly points out, Arthur Andersen and Fowler clarified the federal nexus requirement under both the official proceeding provisions and the law enforcement investigation-related provisions. Maj. Typescript at 246-48. Thus, under Bousley and Schlup, we must apply the law as it currently stands to the record and determine whether “it is more likely than not that no reasonable juror would have convicted [Tyler].” Bousley, 523 U.S. at 623 (quotation marks and citations omitted); see also Ryan, 645 F.3d at 918 (noting that Bousley requires a court to ask “whether, applying current legal standards to the trial record, [a petitioner] is entitled to a judgment of acquittal.“).
To convict on the official proceeding provisions after Arthur Andersen, the Government must “prov[e] that the defendant contemplated a particular ‘official proceeding’ that was foreseeable when he or she engaged in the proscribed conduct.” United States v. Shavers, 693 F.3d 363, 378 (3d Cir. 2012). Here, I agree with the Majority, and every court that has reviewed the facts surrounding Proctor‘s murder, that there is a total absence of proof of an “official proceeding,” as defined by the statute, of any kind, whether particular, foreseeable, or otherwise. Maj. Typescript at 249-51; see also United States v. Bell, 113 F.3d 1345, 1348 (3d Cir. 1997) (noting, on the appeal of Tyler‘s co-defendant, that “there was no federal proceeding contemplated at the time of Proctor‘s murder“); United States v. Tyler, No. 96-106, 2012 WL 951479, at *5 (M.D.Pa. Mar. 20, 2012) (“There was no evidence presented to show that a federal proceeding had been instituted, about to be instituted, or even contemplated at the time that Proctor was murdered.“). As a result, under the law both before and after Arthur Andersen, a reasonable juror could not find that Tyler engaged in tampering activity with the intent to interfere with an official proceeding as defined under the VWPA.5
This is not the case, however, for the law enforcement investigation-related provisions. To convict a defendant under these provisions, the Government must prove that the defendant tampered with a witness to interfere with a communication from that witness to a law enforcement officer,
The record shows that a reasonable juror could have found that it was publicly known that Proctor had been cooperating with law enforcement and that it was reasonably likely, based upon the type of information she had and with whom she was speaking, that Proctor would have communicated with federal officers. According to the trial record, Proctor was an informant for the Tri-County Drug Task Force (the “Task Force“), which was comprised of state and local law enforcement officers. Richard Diller, an agent with the Pennsylvania Office of Attorney General, Bureau of Narcotics Investigation, was the Task Force coordinator. Diller worked closely with, and referred cases to, federal agencies, including the Drug Enforcement Administration (“DEA“). Diller regularly advised and consulted with the DEA, determined whether a case should be brought to federal law enforcement, and, although not formally deputized, was authorized to develop cases on behalf of the DEA.
When Proctor was murdered, she was an informant for David Fones, a local narcotics detective who worked with the Task Force. Sometime before her murder, Proctor provided Fones with information concerning David Tyler‘s source for cocaine in New York City and his ties to Jamaican drug distributors. According to Fones, the Task Force protocol required Diller to evaluate information Proctor provided to determine if it could be used in other investigations, and, to this end, Fones testified that he would have met with Diller to discuss a further role for Proctor. Although Diller was not aware of Proctor‘s statements to Fones before her death, Diller testified that Proctor‘s statements to Fones would have been significant in deciding whether Proctor would have been a federal witness, and that he intended to refer Proctor to the DEA as a witness. DEA Special Agent Keith Humphreys testified that, had he been provided with Proctor‘s statements to Fones, the DEA would have been interested in pursuing this information and Proctor would have likely been a DEA witness. Based on this record, and as this Court has already concluded, United States v. Tyler, 281 F.3d 84, 99 (3d Cir. 2002), a reasonable juror could find that Diller was a federal “law enforcement officer” for purposes of the VWPA, who advised and consulted with the DEA on a regular basis, frequently referred cases from the Task Force to federal law enforcement agencies, including the DEA, was the intended recipient of drug trafficking information from Proctor concerning multistate and multinational drug dealers, and intended to refer Proctor to the DEA. Accordingly, a reasonable juror, properly instructed in accordance with Fowler, could find that Proctor would have communicated with law enforcement about drug trafficking and that there was a reasonable likelihood that one of these communications would have been made to a federal law enforcement officer. Because the record belies Tyler‘s claim of actual innocence, I would affirm the District Court‘s order dismissing Tyler‘s petition for lack of jurisdiction.
III.
The fact that the jury returned a general verdict does not impact our ability to evaluate Tyler‘s actual innocence claim. First, the general verdict precedents upon which the Majority relies, Griffin v. United States, 502 U.S. 46 (1991), and Syme, 276 F.3d 131, are direct appeal cases that apply a different and less demanding standard.
Second, even assuming Griffin and Syme apply, they do not require a different result. Griffin states that if the record shows that there is sufficient evidence to support one theory but insufficient evidence to support another, then the jury is presumed to have convicted on the theory that the evidence supports. Griffin, 502 U.S. at 59-60. Here, there was no evidence of an official proceeding and thus a reasonable juror‘s verdict would not have been based upon this theory. This leaves one other basis, the law enforcement investigation-related provisions, for a reasonable juror to have returned a guilty verdict. While the verdict was based on an improper jury instruction, the actual innocence standard requires that we examine the record in light of a proper instruction.7 As set forth above, there is sufficient evidence from which such a reasonable, properly instructed juror could have returned a guilty verdict. Because Tyler cannot demonstrate that he is actually innocent on both theories of guilt,8 he cannot satisfy the actual innocence test and thus, I would conclude that the District Court properly dismissed his petition.
For these reasons, I respectfully dissent.