United States v. Willie Tyler

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-1975

_____________

UNITED STATES OF AMERICA

v.

WILLIE TYLER,

Appellant

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1:96-cr-00106-001)

District Judge: Honorable William W. Caldwell

____________

Argued

May 13, 2013

Before: FUENTES, SHWARTZ, and ROTH, Circuit Judges

(Opinion Filed: October 3, 2013)

Ronald A. Krauss, Esq. [ARGUED]

Office of Federal Public Defender

100 Chestnut Street

Suite 306

Harrisburg, PA 17101

Counsel for Appellant Willie Tyler

Gordon A.D. Zubrod, Esq., Assistant United States Attorney

[ARGUED]

Office of United States Attorney

Ronald Reagan Federal Building

228 Walnut Street

P.O. Box 11754

Harrisburg, PA 17108

Counsel for Appellee United States of America

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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 18 U.S.C. § 1512. At

Tyler’s federal trial, the jury was instructed about two legal

theories by which the Government could prove its case—

tampering with a witness to prevent her testimony at an

official proceeding and tampering with a witness to prevent

her communication with law enforcement. Tyler was found

2

guilty and sentenced to life imprisonment, and his conviction

was affirmed on appeal. 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.

1

We will refer to Willie Tyler as “Tyler” and David

Tyler as “David.”

3

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 acquitted of all charges.

Willie Tyler was sentenced to two to four years in state

prison.

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

4

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

5

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 in Harrisburg and non-

local activity about David’s drug sources in New York and

Jamaica. Diller had also spoken on occasion with Proctor

during 1991 and 1992 during Fones’s investigation into

David and his co-conspirators. While Diller had spoken with

Proctor about the local drug activity, at the time of Proctor’s

death, Diller had not learned about Proctor’s non-local

information involving the New York and Jamaica drug

market. Diller planned, however, to fully debrief Proctor after

the conclusion of David’s investigation and trial, in

accordance with his general practice, and to then decide

whether to expand the investigation and involve federal

authorities. Diller later testified that had he known about

Proctor’s knowledge on David’s drug connections in New

York and Jamaica, the information would have been a

significant factor in developing a federal case, and a DEA

agent also contended that he would be interested in pursuing a

federal case that involved Jamaican and New York drug

connections. Nevertheless, at the time of Proctor’s death,

Diller had neither contacted any federal agency to discuss

developing a federal case involving Proctor nor planned to

use her as a witness in a federal proceeding. There was also

no ongoing state investigations involving Proctor at the time

of her death, and while Proctor had agreed to testify at the

6

remaining trials of David and the other defendants, she had

previously testified that she would no longer engage in

undercover drug operations.

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 18 U.S.C. §§ 1512(a)(1)(A) and (C) and 18 U.S.C. §§

1512(b)(1), (2), and (3), respectively. In August 1996,

following a jury trial, Tyler was convicted of witness

tampering, and on appeal, we reversed the conviction and

granted a new trial based on grounds not relevant here. United

States v. Tyler (Tyler I), 164 F.3d 150, 159 (3d Cir. 1998); see

also United States v. Tyler (Tyler II), 281 F.3d 84, 89 (3d Cir.

2002). Tyler was re-tried, and in August 2000, a jury found

Tyler guilty of two counts of tampering with a witness—by

murder and by intimidation. He was later sentenced to life

imprisonment, and on direct appeal, we affirmed the

conviction. Tyler II, 281 F.3d at 101.2

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 § 1512’s witness

2

Tyler’s conviction has survived several collateral

attacks, including a § 2255 motion and other motions

construed as successive § 2255 motions. United States v.

Tyler, 207 F. App’x 173, 177 (3d Cir. 2006).

7

intimidation subsection, § 1512(b)(2)(A) and (B), require that

the Government prove a “nexus” between the defendant’s

conduct and a particular federal proceeding. 544 U.S. at 707-

08. While his motion was pending, the Supreme Court

decided Fowler v. United States, 131 S. Ct. 2045, 2952

(2011), holding that an investigation-related communication

provision of § 1512’s witness murder subsection,

§ 1512(a)(1)(C), required that there be a reasonable likelihood

that a witness’s murder was intended to prevent

communication with a federal law enforcement officer or

judge. Tyler later supplemented his pro se motion to address

Fowler. The District Court construed his motions as a petition

for relief under 28 U.S.C. § 2241, which it denied in March

2012. Tyler appealed.

III. ANALYSIS3

A. Availability of Section 2241 Relief

Prior to the enactment of 28 U.S.C. § 2255, federal

prisoners could seek post-conviction relief through the writ of

habeas corpus, codified under 28 U.S.C. § 2241. Section

2255, however, was enacted as an alternative to the writ of

habeas corpus to allow prisoners to seek collateral review in

the trial court where the case was prosecuted. In re

3

Tyler, who is incarcerated in Lewisburg,

Pennsylvania, filed his pro se habeas petition in the District

Court for the Middle District of Pennsylvania pursuant to 28

U.S.C. § 2241. The District Court dismissed the petition for

lack of jurisdiction. We have jurisdiction to review the

District Court’s dismissal of a § 2241 petition under 28

U.S.C. § 1291.

8

Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); see also United

States v. Hayman, 342 U.S. 205, 213-14 (1952). Section 2255

was later amended to restrict the ability of prisoners to file

successive petitions. Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, § 106,

110 Stat. 1214 (1996).

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,” 28 U.S.C. § 2255(e), also

known as § 2255’s “safety valve.” We have held that a § 2255

petition is “inadequate” when a petitioner asserts a claim of

“actual innocence” on the theory that “he is being detained

for conduct that has subsequently been rendered non-criminal

by an intervening Supreme Court decision” and our own

precedent construing an intervening Supreme Court decision,

but is otherwise barred from challenging the legality of the

conviction under § 2255. Dorsainvil, 119 F.3d at 252. Such a

situation “presents exceptional circumstances where the need

for the remedy afforded by the writ of habeas corpus is

apparent.” Id. at 250 (internal quotation marks omitted).

Under those circumstances, we will remand to the district

court to consider the record and determine whether the

petitioner is actually innocent, that is whether the petitioner’s

conduct had been rendered non-criminal due to the Supreme

Court decision as well as our own precedent construing the

Supreme Court’s decision. Id. at 252. 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

9

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 18 U.S.C. § 1512 in Arthur Andersen and

Fowler and by our precedent construing those Supreme Court

decisions. If Tyler’s contention is correct, “the proper

procedure under Bousley is to remand to the district court to

determine whether a defendant is actually innocent of the

charged offense when the record supports such a claim.”

Garth, 188 F.3d at 109. Thus, we must evaluate whether the

record supports Tyler’s claim of actual innocence and if so

whether he is eligible for § 2241 relief.

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—

10

(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 . . . .

18 U.S.C. § 1512(a)(1) (emphasis added). The second

section addresses witness tampering through

intimidation or threats toward a witness:

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

11

(3) hinder, delay, or prevent the

communication to a law enforcement officer

or judge of the United States . . .

shall be [punished].

Id. § 1512(b) (emphasis added). As the text of the law shows,

both sections prohibit conduct targeted at official proceedings

and at investigation-related communication with law

enforcement officers. To constitute an “official proceeding”

under § 1512, the proceeding must be before “a judge or court

of the United States.” Id. § 1515(a)(1)(A). A law enforcement

officer includes “an officer or employee of the Federal

Government or a person authorized to act for or on behalf of

the Federal Government or serving the Federal Government

as an adviser or consultant.” Id. § 1515(a)(4).

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).

4

18 U.S.C. § 1512(a)(1)(A).

5

18 U.S.C. § 1512(a)(1)(C).

6

18 U.S.C. § 1512(b)(1) and (b)(2).

7

18 U.S.C. § 1512(b)(3).

12

C. Judicial Limitations on Use of Victim and Witness

Protection Act

The Supreme Court addressed certain provisions of §

1512 in Arthur Andersen and Fowler, and we recently

reconciled the Supreme Court’s holdings in those two cases in

United States v. Shavers, 693 F.3d 363 (3d Cir. 2012),

vacated on other grounds by Shavers v. United States, 133 S.

Ct. 2877 (2013).8 We will review these holdings to determine

whether they render Tyler’s conduct non-criminal.

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, § 1512(b)(2)(A) and (B), it must prove a

“nexus” between the defendant’s conduct and a foreseeable

particular proceeding. Arthur Andersen, 544 U.S. at 707-08.

Specifically, the government must prove that the defendant

sought to interfere with evidence or a witness and acted “in

contemplation [of a] particular official proceeding.” Id. at

708. “[I]f the defendant lacks knowledge that his actions are

likely to affect the [official] proceeding,” then “he lacks the

requisite intent to obstruct.” Id. (internal quotation marks

8

Our judgment in Shavers was subsequently vacated

by the Supreme Court in light of Alleyne v. United States, 133

S. Ct. 2151 (2013). Shavers, 133 S. Ct. at 2877. Because

Alleyne involves an unrelated sentencing issue, the Supreme

Court’s vacatur does not affect our holding in Shavers with

regard to the extension of Arthur Andersen’s nexus

requirement and Fowler’s reasonable likelihood requirement

to other provisions in § 1512.

13

omitted). The “official proceeding” language is also

contained in § 1512(a)(1)(A), (b)(1), and (b)(2), the

provisions under which Tyler was convicted.

In 2011, the Supreme Court in Fowler analyzed the

investigation-related communication provision in the

VWPA’s witness murder section, § 1512(a)(1)(C), which

requires that the murder of a witness is intended to “prevent

the communication by any person to a law enforcement

officer.” The Court held that “in a case . . . where the

defendant does not have particular federal law enforcement

officers in mind[] the Government must show a reasonable

likelihood that, had . . . the victim communicated with law

enforcement officers, at least one relevant communication

would have been made to a federal law enforcement officer.”

Fowler, 131 S. Ct. at 2052. The Supreme Court noted that the

“reasonable likelihood” standard was necessary to prevent

“transform[ation of] a federally oriented statute into a statute

that would deal with crimes, investigations, and witness

tampering that, as a practical matter, are purely state in

nature.” Id. The Court emphasized that the Government must

show more than “a mere possibility that a communication

would have been with federal officials” and “that the

likelihood of communication to a federal officer was more

than remote, outlandish, or simply hypothetical.” Id. at 2051-

52.

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

14

the official proceeding provisions of § 1512(b)(2)(A) and (B),

we held that the analysis applies “with equal force to

§ 1512(b)(1),” which also was qualified by an official

proceeding. Id. at 378. Reasoning that “[c]onsistency

demand[ed] that we apply the Arthur Andersen nexus

requirement to § 1512(b)(1),” we held that the Government

was required to “prov[e] that the defendant contemplated a

particular ‘official proceeding’ that was foreseeable when he

or she engaged in the proscribed conduct.” Id. While we did

not address the other provisions in § 1512 that were also

qualified by an official proceeding, based on our view of what

“consistency demands,” we implied that Arthur Andersen’s

nexus requirement would apply to all § 1512 provisions

proscribing conduct intended to affect an official proceeding.

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, § 1512(b)(1). We concluded

that for the same reasons that Arthur Andersen’s nexus

requirement does not apply to the investigation-related

communication provisions, it would be “illogical” to apply

Fowler’s reasonable likelihood requirement in the context of

prosecutions under the official proceeding provisions. Id. at

379. Instead, we recognized that each of the § 1512 categories

was subject to a different set of requirements, concluding that

“there are at least two lines of jurisprudence developing

separately under the VWPA: one for the investigation-related

provisions, such as § 1512(b)(3) and (a)(1)(C), and one for

the ‘official proceeding’ provisions, such as § 1512(b)(1) and

(b)(2).” Id.

15

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 §

1512(a)(1)(A) and (C) and § 1512(b)(1) and (b)(3), because

“Arthur Andersen has not altered the legal landscape for all

section 1512 offenses.” Id., at *10.

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

§ 1512(b)(1) and implied that the nexus requirement would

16

apply likewise to other obstructive conduct involving an

official proceeding proscribed by § 1512. We similarly

conclude here that in any prosecution brought under a § 1512

provision charging obstruction of justice involving an

“official proceeding,” the government is required to prove a

nexus between the defendant’s conduct and a particular

official proceeding before a judge or court of the United

States that the defendant contemplated. Arthur Andersen, 544

U.S. at 708. This holding is in line with our sister Circuits that

have all concluded that the nexus requirement applies to other

§ 1512 provisions qualified by an official proceeding. See

United States v. Bennett, 664 F.3d 997, 1013 (5th Cir. 2011)

(applying nexus requirement to § 1512(c)(2)), vacated on

other grounds by 133 S. Ct. 71 (2012); United States v.

Friske, 640 F.3d 1288, 1292 (11th Cir. 2011) (same);

Phillips, 583 F.3d at 1263-64 (same); United States v.

Carson, 560 F.3d 566, 584 (6th Cir. 2009) (same); Matthews,

505 F.3d at 707-08 (applying nexus requirement to §

1512(c)(1)); United States v. Kaplan, 490 F.3d 110, 126 (2d

Cir. 2007) (applying nexus requirement to § 1512(b)(1)).

Having considered the effect of Arthur Andersen on

the § 1512 official proceeding provisions, we now must

examine whether the evidence in the record is consistent with

Tyler’s claim that he is actually innocent of violating §

1512’s official proceeding provisions. We emphasize that our

review “does not amount to a determination of whether there

is sufficient evidence to convict,” but only considers whether

the evidence supports Tyler’s actual innocence claim “such

that remand is required to allow [him] an opportunity to

establish his actual innocence.” Garth, 188 F.3d at 110. We

believe that it does.

17

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

9

We also concluded that Diller’s testimony could not

“be construed to mean that the Task Force had already

decided at the time of Proctor’s murder to make a federal case

out of the drug trade in which Tyler, Bell, and others were

engaged, or that it had even thought about doing so.” United

States v. Bell, 113 F.3d at 1348 n.2. Nevertheless, we upheld

Bell’s conviction based on our then-existing interpretation of

18 U.S.C. § 1512. We found that “while the evidence may

lend itself more obviously to the theory that Bell killed

Proctor in order to prevent her from testifying a few hours

later at [David] Tyler’s trial, it also supports the inference that

Bell believed Proctor was going to continue to communicate

with the Task Force concerning drug crimes that Bell and

18

of the record, we have uncovered no evidence to satisfy

Arthur Andersen’s requirement that the Government prove a

nexus between Tyler’s conduct and a foreseeable particular

federal proceeding to establish a conviction under

§ 1512(a)(1)(A), (b)(1), and (b)(2). For this reason, we

conclude that there is not enough in the record to negate

Tyler’s claim that he is actually innocent of tampering with a

witness involved in an official proceeding. Accordingly, the

District Court has jurisdiction to consider Tyler’s § 2241

petition and provide him with an opportunity to establish his

actual innocence under the official proceeding provisions.

2. Investigation-Related Communications:

Reasonable Likelihood Test

Tyler also argues that Fowler has rendered his conduct

non-criminal under § 1512’s investigation-related

communication provisions because the Government failed to

establish that there was a reasonable likelihood that Proctor

would communicate with federal law enforcement officers.

The District Court, however, held that Fowler did not aid

Tyler in establishing his actual innocence. Because we had

affirmed Tyler’s conviction based on the sufficiency of the

evidence, the District Court presumed that the evidence must

others had committed.” Id. at 1350. In Tyler’s direct appeal,

we relied on our holding in Bell for the view that § 1512

“does not require that the defendant know or intend anything

with respect to this federal character,” Tyler II, 281 F.3d at 92

(quoting Bell, 113 F.3d at 1348), an interpretation that is no

longer correct under Arthur Andersen. As a result, we upheld

Tyler’s conviction, reasoning that “the evidence presented at

trial demonstrated Tyler knew Doreen Proctor would be

testifying against his brother in a federal prosecution.” Id.

19

also have satisfied Fowler’s “reasonable likelihood” test.

Tyler, 2012 WL 951479, at *12. However, the District Court

did not consider that our affirmance incorporated our pre-

Fowler interpretation of § 1512 that a conviction may be

based on “proof that the officers with whom [Tyler] believed

[Proctor] might communicate would in fact be federal

officers.” Tyler II, 281 F.3d at 100 (emphasis added) (internal

quotation marks omitted), and not whether a reasonable jury

could find that the evidence established a reasonable

likelihood that Proctor would communicate with federal

officers.

Our pre-Fowler interpretation of § 1512 comes from

United States v. Stansfield, where we held that the

investigation-related communication provision of the witness

murder section, § 1512(a)(1)(C), only required proof that “the

defendant believed that the [witness] might communicate

with the federal authorities.” 101 F.3d 909, 918 (3d Cir.

1996). We also permitted the jury to infer this element “from

the fact that the offense was federal in nature, plus additional

appropriate evidence.” Id. We found our framework an

appropriate balance between the requirement that the

government must prove the “defendant’s specific intent to

hinder a federal investigation” without imposing an

unnecessary hurdle by proving “the defendant knew the

federal status of any particular law enforcement officer

involved in an investigation.” Id. at 919. But Fowler reached

a different balance, requiring instead that the jury find that if

Tyler did not have a particular federal law enforcement

officer in mind, then the Government must establish “a

reasonable likelihood” that had Proctor “communicated with

law enforcement officers, at least one relevant

20

communication would have been made to a federal law

enforcement officer.” 131 S. Ct. at 2052 (emphasis omitted).

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, 131 S. Ct. at 2051-52. 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 matter, are purely state in

nature.” Fowler, 131 S. Ct. at 2052. In light of this, it is

necessary for us to revise the elements for a § 1512

investigation-related communication offense.

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.

21

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 125 S. Ct. 1613. Nevertheless,

just as Fowler specifically noted that § 1512 reaches conduct

that occurs before the victim had any communications with

law enforcement officers, 131 S. Ct. at 2049, here, too, we

emphasize that “the government need not prove that a federal

investigation was in progress at the time the defendant

committed [a] witness-tampering” offense. United States v.

Ramos-Cruz, 667 F.3d 487, 498 (4th Cir. 2012).

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

10

Although this panel lacks the authority to overrule

precedential opinions from a prior panel, we may reevaluate

our precedent in light of an intervening Supreme Court

decision. Inst. Inv. Grp. v. Avaya, Inc., 564 F.3d 242, 276

n.50 (3d Cir. 2009).

22

been with a federal law enforcement officer, then we must

remand to the District Court. See Fowler, 131 S. Ct. at 2053

(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 § 1512, the jury

was only required to find “that the officers with whom [Tyler]

believed [Proctor] might communicate would be in fact

federal officers.” App. 687 (emphasis added). Having

reviewed the record as it now stands, we conclude that there

is enough evidence to support Tyler’s claim that he is actually

innocent of violating § 1512’s investigation-related

communication provisions.

E. Procedure on Remand

Having concluded that the record supports Tyler’s

claim of actual innocence on both the official proceedings

legal theory and the investigation-related communication

legal theory, we hold that the District Court erred in

concluding that it lacked jurisdiction to consider Tyler’s §

2241 petition rather than providing him with an opportunity

to demonstrate his actual innocence. See Garth, 188 F.3d at

109, 114; see also Dorsainvil, 119 F.3d at 252 (remanding to

district court after concluding that petitioner’s § 2241 claim

“is not so devoid of merit that it should be foreclosed by us at

this stage”). On remand, the District Court shall conduct an

evidentiary hearing, in accordance with Bousley, to allow

Tyler to prove his claim of actual innocence. Tyler is free to

23

“rest on the record as it now stands,” and the Government

may present additional admissible evidence to refute Tyler’s

actual innocence claim. Garth, 188 F.3d at 110 n.13, 114.

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 § 2241. If, however,

the District Court concludes that Tyler has met his burden of

establishing his actual innocence based on either the official

proceeding provisions or the investigation-related

communication provisions, but not both, then it must fashion

a remedy in light of the general verdict reached in this case.

The jury was instructed that the Government could prove its

case on each of the witness tampering counts based on either

of two legal theories: (1) tampering to prevent the person’s

testimony in an official proceeding; or (2) tampering to

prevent the person’s communication to a law enforcement

officer. Because the jury returned a general verdict on both

counts, we are unable to determine the legal theory on which

it based its verdict.

Generally, when a jury returns a general verdict and

the evidence is insufficient 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

24

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.

25

SHWARTZ, Circuit Judge, dissenting:

The Majority and I agree that if Willie Tyler can meet

the “actual innocence” standard to invoke § 2255’s “safety

valve,” then he would be permitted to file a petition under §

2241. Maj. Typescript at 8-9. I depart from the Majority,

however, because I understand the actual innocence standard

to require us to consider whether a reasonable, properly

instructed juror would have convicted Tyler and applying this

standard to the present record supports a conclusion that Tyler

has not met the actual innocence standard and that the order

of the District Court should be affirmed. Further, unlike my

colleagues, I conclude that the general verdict in this case

does not impact our ability on habeas review to evaluate

whether a reasonable, properly instructed juror would have

convicted Tyler.

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.

1

This strict standard is appropriate. The actual

innocence standard seeks to “balance the societal interests in

finality . . . and conservation of scarce judicial resources with

the individual interest in justice that arises in the

extraordinary case.” Schlup, 513 U.S. at 324. To reflect this

balance, the actual innocence standard is therefore

purposefully “demanding” and was formulated to ensure that

1

Tyler was convicted of violating the Victim and

Witness Protection Act (“VWPA”), 18 U.S.C. § 1512, which

makes it unlawful to, among other things, tamper with a

person, by murder or intimidation, with the intent to prevent

that person from participating in an “official proceeding” or

to tamper with a person, by murder or intimidation, with the

intent to prevent that person from communicating with a “law

enforcement officer.”2 As the Majority notes, after Tyler’s

trial, the Supreme Court clarified the VWPA’s federal nexus

requirement under both the official proceeding provisions and

the law enforcement investigation-related provisions in

Arthur Andersen LLP v. United States, 544 U.S. 696 (2005),

and Fowler v. United States, 131 S. Ct. 2045 (2011),

respectively. Maj. Typescript at 10-14. Because the jury was

instructed before these cases were decided, the District

Court’s instructions were based on an interpretation of the

VWPA that, though correct at the time, was ultimately

a successful petitioner’s case is “truly extraordinary.” House

v. Bell, 547 U.S. 518, 537-38 (2006) (quotation marks and

citations omitted); see also McQuiggin v. Perkins, 133 S. Ct.

1924, 1928 (2013) (noting that a showing of actual innocence

may “serve[] as a gateway” through an “impediment” that

otherwise bars consideration of a petitioner’s claim).

2

Because § 1512 is written in the disjunctive, the

official proceeding provisions and the law enforcement

investigation-related provisions are alternative ways of

committing the same offense. 18 U.S.C. § 1512; see also

United States v. Rigas, 605 F.3d 194, 208 (3d Cir. 2010) (en

banc) (noting that Congress’s “use of disjunctive language

creates alternative ways of violating a statute” and that such

language “created a single offense that may be committed in

alternative ways”).

2

rendered erroneous. Accordingly, the jury was instructed

under theories that are now “legally invalid.” See United

States v. Syme, 276 F.3d 131, 145 (3d Cir. 2002) (noting that

a legal theory is invalid where “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.”). As I understand the Supreme Court’s cases on actual

innocence, however, that is just the beginning of our inquiry.

To apply the actual innocence standard, we must also identify

the proper instructions for the crime charged and evaluate the

record in light of these instructions to determine if a

reasonable, properly instructed juror would have convicted

Tyler.3

Because “‘[a]ctual 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

3

The Majority cites United States v. Davies, 394 F.3d

182, 191 (3d Cir. 2005), for the proposition that “[a]

petitioner can establish that no reasonable juror would have

convicted him by demonstrating an intervening change in law

that rendered his conduct noncriminal,” Maj. Typescript at

10. While this is a correct statement, I part company with the

Majority as its analysis does not include consideration of

whether the change in the law here, as applied to the facts of

our case, demonstrates that no reasonable juror could find that

Tyler did not violate the law. A court analyzing a petitioner’s

actual innocence claim must apply the holding of the

intervening Supreme Court decision to the record to

determine if a reasonable juror applying such law would have

convicted him. See id. at 192-96.

3

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

4

Several of our sister circuits have held similarly.

See, e.g., Ryan v. United States, 645 F.3d 913, 917 (7th Cir.

2011) (“[The actual innocence] standard depends on the

content of the trial record, not the content of the jury

instructions.”) vacated on other grounds by Ryan v. United

States, 132 S. Ct. 2099 (2012); Stephens v. Herrera, 464 F.3d

895, 899 (9th Cir. 2006) (“[T]he mere fact of an improper

instruction is not sufficient to meet the test for actual

innocence.”); Bosley v. Cain, 409 F.3d 657, 662 (5th Cir.

2005) (“[T]he [actual innocence] standard requires the district

court to ‘make a probabilistic determination about what

reasonable, properly instructed jurors would do.’”) (quoting

Schlup, 513 U.S. at 329).

Moreover, at oral argument, both Tyler and the

Government acknowledged this very point. Oral Arg. at

8:04-8:20 (“At this point in the litigation . . . I don’t think jury

instructions are something I can attack. It’s really a matter of

establishing a lack of criminal conduct at this point.”) (May

13, 2013); Oral Arg. at 32:23-32:34 (“When we come to

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 correct

instruction, in light of the record, “would change the jurors’

minds as to . . . guilt.” Goldblum, 510 F.3d at 235.

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 10-14.

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

actual innocence . . . the Court is not to consider jury

instructions or anything else. It is actual innocence.”) (May

13, 2013).

5

(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 16-19; 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, Crim. 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

5

While the Majority ostensibly remands to the District

Court to conduct an evidentiary hearing, the directions the

District Court must follow, Maj. Typescript at 23-25, will

almost certainly result in a new trial for Tyler. This is

because the Majority instructs the District Court to vacate the

jury’s verdict if Tyler can establish his actual innocence on

6

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, 18 U.S.C. § 1512(a)(1)(C) and (b)(3), and that there

was “a reasonable likelihood that, had . . . the victim

communicated with law enforcement officers, at least one

relevant communication would have been made to a federal

law enforcement officer.” Fowler, 131 S. Ct. at 2052

(emphasis in original). A “law enforcement officer” is an

“officer or employee of the Federal Government, or a person

authorized to act for or on behalf of the Federal Government

or serving the Federal Government as an adviser or consultant

. . . authorized under law to engage in or supervise the

prevention, detection, investigation, or prosecution of an

offense . . . .” 18 U.S.C. § 1515(a)(4)(A). The Government

need not prove that the defendant knew that the law

enforcement officer was federal or acting as an advisor or

consultant to the federal government. 18 U.S.C. §

1512(g)(2).

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

just one of the two theories. Maj. Typescript at 25. The

Majority has found that there is “no evidence” of an official

proceeding. Maj. Typescript at 18. Thus, unless the

Government can produce new evidence of an official

proceeding on remand, the Majority’s instructions to the

District Court would likely require vacatur on this ground.

7

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

8

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. As direct appeal

cases, Griffin and Syme focus on the actions of the jury.

Under the “actual innocence” standard applicable at this

stage, Bousley and Schlup mandate that the focus be on proof

of Tyler’s actual innocence and not the actions of the jury.

Applying the perspective set forth under Griffin and Syme

both ignores the actual innocence standard and effectively

lessens the burden Tyler must carry to invoke § 2255(e)’s

9

safety valve,6 upsetting the balance the Supreme Court

carefully struck when it formulated the demanding actual

innocence 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

6

Further, the Majority’s application of Griffin and

Syme here appears even more relaxed than it would be on

direct appeal. Indeed, in general verdict cases on direct

appeal, even if a jury was instructed on a legally invalid

theory, the verdict need not be vacated if the instructional

error was harmless. See Skilling v. United States, 130 S. Ct.

2896, 2934 (2010).

7

It is true that Syme holds that when “one of two or

more alternative theories supporting a count of conviction is .

. . legally invalid, then the reviewing court should vacate the

jury verdict and remand for a new trial without the invalid or

unconstitutional theory,” Syme, 276 F.3d at 144 (citation

omitted), but the delivery of erroneous jury instructions alone

10

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.

does not satisfy the actual innocence standard. See infra at 3-

4.

8

Our decision in United States v. Garth, 188 F.3d 99

(3d Cir. 1999), supports this conclusion. In Garth, the habeas

petitioner had pled guilty to an offense under 18 U.S.C. §

924(c), which could be violated in one of four alternative

ways. Id. at 110. After his conviction, the Supreme Court

narrowed § 924(c) and the petitioner sought relief under §

2255, invoking the actual innocence exception to the

procedural default bar. Id. at 103-05, 107-09. The Garth

majority found that the record supported the petitioner’s

actual innocence claim only after reviewing the evidence on

each of the four possible theories. Id. at 109-114. Thus, the

Garth majority recognized that, in order for a petitioner to be

actually innocent of a criminal statute with alternative means

of committing an offense, such a petitioner must be actually

innocent under each of the alternative theories. The Garth

dissent agreed with the majority on this point. Id. at 114

(Roth, J., dissenting) (agreeing that a petitioner must be

actually innocent of all four alternative theories in order to be

actually innocent of the offense charged, but, upon review of

the record, finding that he was not actually innocent on one of

the theories).

11