Opposition Brief — Willie Tyler, Petitioner v. United States

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No. 20-6484

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

WILLIE TYLER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

ELIZABETH B. PRELOGAR

Acting Solicitor General

Counsel of Record

NICHOLAS L. MCQUAID

Acting Assistant Attorney General

SANGITA K. RAO

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTION PRESENTED

Whether

sufficient

evidence

supported

petitioner’s

convictions for tampering with a witness by murder, in violation

of

18

U.S.C.

1512(a)(1)(C),

and

tampering

with

intimidation, in violation of 18 U.S.C. 1512(b)(3).

(I)

a

witness

by

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 20-6484

WILLIE TYLER, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-38a) is

reported at 956 F.3d 116.

39a-78a)

is

not

The opinion of the district court (Pet.

published

in

the

Federal

Supplement

but

is

available at 2018 WL 10322201.

JURISDICTION

The judgment of the court of appeals was entered on April 14,

2020.

A petition for rehearing was denied on July 2, 2020 (Pet.

App. 79a-80a).

The petition for a writ of certiorari was filed on

November 25, 2020. The jurisdiction of this Court is invoked under

28 U.S.C. 1254(1).

2

STATEMENT

Following a jury trial in the United States District Court

for

the

Middle

District

of

Pennsylvania,

vacatur

on

appeal,

retrial, vacatur on post-conviction review, and a second retrial,

petitioner was found guilty of tampering with a witness by murder,

in violation of 18 U.S.C. 1512(a)(1)(C) (1988), and tampering with

a witness by intimidation and threats, in violation of 18 U.S.C.

1512(b)(3) (1988).

Pet. App. 3a & n.3, 9a.

The district court

granted petitioner’s motion for judgment of acquittal on both

counts.

Id. at 39a-78a.

The court of appeals reversed the

judgment, reinstated the guilty verdicts, and remanded the case

for sentencing.

1.

Id. at 1a-38a.

The federal witness-tampering statute makes it a felony

to kill “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

1512(a)(1)(C).

of

a

Federal

offense.”

18

U.S.C.

The statute also makes it a felony to threaten or

intimidate “another person, with intent to

* * *

hinder, delay,

or prevent the communication to a law enforcement officer or judge

of the United States of information relating to the commission or

possible commission of a Federal offense.”

18 U.S.C. 1512(b)(3).

A separate provision defines the term “law enforcement officer” to

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

3

authorized to act for or on behalf of the Federal Government or

serving the Federal Government as an adviser or consultant.”

18 U.S.C. 1515(a)(4).

The statute also provides that, “[i]n a

prosecution for an offense under this section, no state of mind

need be proved with respect to the circumstance

* * *

that the

law enforcement officer is an officer or employee of the Federal

Government.”

18 U.S.C. 1512(g)(2).

In Fowler v. United States,

563 U.S. 668 (2011), this Court held that, “where the defendant

kills a person with an intent to prevent communication with law

enforcement

officers

conviction

under

generally,”

Section

1512

the

only

government

if

it

shows

may

obtain

that

“it

a

is

reasonably likely under the circumstances that (in the absence of

the killing) at least one of the relevant communications would

have been made to a federal officer.”

2.

Id. at 677-678.

Petitioner and his brother David Tyler were members of

a drug-trafficking ring in central Pennsylvania.

8a.

Pet. App. 5a-

A group of state and local law enforcement officers known as

the Tri-County Drug Task Force was responsible for investigating

drug trafficking in that area.

Id. at 5a.

“frequently

agencies,

worked

with

federal

Enforcement Administration (‘DEA’).”

Ibid.

The Task Force

including

the

Drug

The Task Force’s

coordinator met with DEA agents “multiple times a month, or more

frequently as needed, to discuss the DEA’s interest in the Task

Force’s cases.”

Ibid.

4

In 1990, Doreen Proctor became a confidential informant for

the Task Force.

Pet. App. 6a.

As relevant here, Proctor made

three controlled purchases of cocaine that led to the arrest of

multiple individuals, including petitioner’s brother.

Ibid.

She

was scheduled to testify against petitioner’s brother at his trial

on April 21, 1992.

Id. at 7a.

The day before the scheduled testimony, petitioner and his

brother “spotted Proctor” while driving.

Pet. App. 7a.

They said

that they “were going to do something to her then, but there were

too many cars.”

Ibid. (citation omitted).

Later that day,

petitioner’s brother retrieved a gun, and petitioner showed him

how to cock it.

Ibid.

Then, the following morning, one of

petitioner’s associates “lured Proctor from her house by offering

her

cocaine,”

“convinced

Proctor

to

take

a

ride

in

[the

associate’s] car,” and brought Proctor to petitioner and his

brother.

Ibid.

Proctor was “beaten, shot in the chest, and then

shot in the head while on the ground.”

Id. at 8a.

Following a jury trial in state court, petitioner’s brother

was convicted of murder.

See United States v. Tyler, 281 F.3d 84,

89 n.1 (3d Cir.), cert. denied, 537 U.S. 858 (2002).

was

acquitted

in

state

intimidating a witness.

court

of

murder

See id. at 88-89.

two to four years in state prison.

but

Petitioner

convicted

of

He was sentenced to

See id. at 89.

5

3.

In 1996, after petitioner’s release from state custody,

a federal grand jury indicted petitioner for conspiring to kill a

witness, in violation of 18 U.S.C. 371 (1988); tampering with a

witness by murder, in violation of 18 U.S.C. 1512(a)(1)(A) and (C)

(1988); tampering with a witness by intimidation and threats, in

violation of 18 U.S.C. 1512(b)(1)-(3) (1988); and using a firearm

during and in relation to a crime of violence, in violation of 18

U.S.C. 924(c)(1) and (2) (1988 & Supp. IV 1992).

90.

C.A. App. 77-

Petitioner was convicted on all counts and sentenced to

imprisonment for life.

See Tyler, 281 F.3d at 89.

The court of

appeals reversed and remanded on the ground that the district court

had erroneously admitted a statement petitioner made to state

police on the night of his arrest.

See United States v. Tyler,

164 F.3d 150, 151, 159 (3d Cir. 1998).

Following retrial, petitioner was acquitted of conspiring to

kill a witness, but convicted of tampering with a witness by

murder, tampering with a witness by intimidation and threats, and

using a firearm during and in relation to a crime of violence.

United States v. Tyler, 207 Fed. Appx. 173, 175 & n.1 (3d Cir.

2006).

The court of appeals affirmed, Tyler, 281 F.3d at 88, and

this Court denied certiorari, 537 U.S. 858 (2002).

On post-

conviction review, however, petitioner’s convictions for witness

tampering were vacated on the ground that one of the alternative

theories underlying petitioner’s prosecution for witness tampering

6

was invalid because of this Court’s intervening decision in Fowler.

See Pet. App. 3a-4a n.3.

In 2017, petitioner was retried again for tampering with a

witness by murder, in violation of 18 U.S.C. 1512(a)(1)(C) (1988),

and tampering with a witness by intimidation and threats, in

violation of 18 U.S.C. 1512(b)(3) (1988).

& n.2.

See Gov’t C.A. Br. 17

As relevant here, the district court instructed the jury

that it could find petitioner guilty of witness tampering by murder

only if it found (1) petitioner murdered Proctor; (2) petitioner

“acted with intent to hinder, delay, or prevent Doreen Proctor

from

communicating

to

law

enforcement

authorities

information

relating to the commission or possible commission of an offense”;

(3)

a

reasonable

communications

likelihood

would

have

that

been

at

least

made

to

one

a

of

Proctor’s

qualifying

law-

enforcement officer; and (4) the information Proctor would have

communicated related to the possible commission of a federal

offense.

C.A. App. 909.

counts.

Pet. App. 40a.

The jury found petitioner guilty on both

The district court, however, granted petitioner’s post-trial

motion for judgment of acquittal on both counts.

78a.

Pet. App. 39a-

The court found sufficient evidence as to the first and

fourth elements that it had conveyed to the jury as described in

the paragraph above, but insufficient evidence as to the second

and third elements.

See id. at 53a-55a, 66a-67a.

On the second

7

element, the court deemed the evidence insufficient to permit a

reasonable jury to find that petitioner intended to prevent a

communication from Proctor to a law-enforcement officer; in the

court’s view, the evidence instead proved only that petitioner

intended to prevent Proctor from testifying at his brother’s trial.

Id. at 59a-65a.

On the third element, the court deemed the

evidence insufficient

to

permit

a

reasonable

jury

to

find

a

reasonable likelihood that the communication would have been made

to a qualifying law-enforcement officer.

Id. at 70a-71a.

court

showed

concluded

that

the

trial

evidence

that

The

Proctor

reported only to state law-enforcement officers, who are not

qualifying law-enforcement officers for purposes of the witnesstampering statute.

4.

The

sentencing.

The

Ibid.

court

of

appeals

reversed

and

remanded

for

sufficient

evidence

that

Pet. App. 1a-39a.

court

of

appeals

found

petitioner “killed or intimidated Proctor, at least in part, with

the intent to prevent her communication with law enforcement.”

Pet.

App.

14a.

cooperation

with

petitioner

had

a

The

court

law

enforcement

close

emphasized

Proctor’s

against

relationship,

“well

people

“the

known”

with

whom

evidence

about

[petitioner’s] own illegal activities,” and Proctor’s continuing

provision of information to law-enforcement officials even after

she stopped making controlled drug purchases.

Id. at 15a-17a &

8

n.11.

The court acknowledged that “‘the evidence may lend itself

more obviously to the theory that [petitioner] killed Proctor in

order to prevent her from testifying a few hours later at [his

brother’s]

trial,’”

[petitioner’s]

trial

but

explained

‘also

that

supports

“the

the

record

inference

in

that

[petitioner] believed Proctor was going to continue to communicate

with the Task Force concerning drug crimes that [petitioner] and

others had committed.’”

Id. at 15a (citation omitted).

The court of appeals also found sufficient evidence of “a

reasonable likelihood that one of Proctor’s communications would

have been to a qualifying law enforcement officer.”

18a.

Pet. App.

The court determined that the qualifying law enforcement

officers here included both the Task Force coordinator (because he

advised

and

consulted

with

federal

(because they were federal officers).

1515(a)(4)(A).

officers)

and

DEA

agents

Id. at 22a; see 18 U.S.C.

And the court found sufficient evidence that it

was reasonably likely that petitioner would have communicated with

both the Task Force coordinator and DEA agents.

Pet. App. 22a-

25a.

Judge Rendell concurred in part and dissented in part.

App. 27a-38a.

Pet.

Judge Rendell found the evidence insufficient to

show that petitioner “acted with the intent to prevent Proctor

from communicating with law enforcement.”

Id. at 27a.

Judge

Rendell believed that, “[w]hile there is little doubt that the

9

evidence demonstrated that [petitioner] acted to prevent Proctor’s

testimony at his brother’s trial or to retaliate for her past

informant work, there is no evidence from which a jury could infer

that he was motivated in any way by a desire to prevent Doreen

Proctor’s future communication with law enforcement.”

Id. at 29a.

ARGUMENT

Petitioner contends (Pet. 5-19) that the court of appeals

misinterpreted the federal witness-tampering statutes, but does

not directly challenge the jury instructions or sufficiency of the

evidence.

The petition for a writ of certiorari arises in an

interlocutory

posture,

reason to deny it.

which

in

itself

provides

a

sufficient

In any event, the decision was correct and

does not conflict with any decision of this Court or any other

court of appeals.

This case also would be a poor vehicle for

reviewing the question that petitioner presents. No further review

is warranted.

1.

As

a

threshold

matter,

the

decision

below

is

interlocutory; the court of appeals reversed the district court’s

judgment and remanded the case for sentencing.

The interlocutory

posture of the case “alone furnishe[s] sufficient ground for the

denial of the application.”

Hamilton-Brown Shoe Co. v. Wolf Bros.

& Co., 240 U.S. 251, 258 (1916); see, e.g., National Football

League v. Ninth Inning, Inc., 141 S. Ct. 56, 57 (2020) (statement

of Kavanaugh, J., respecting the denial of certiorari); Abbott v.

10

Veasey, 137 S. Ct. 612, 613 (2017) (statement of Roberts, C.J.,

respecting the denial of certiorari).

The Court routinely denies

interlocutory petitions in criminal cases.

See Stephen M. Shapiro

et al., Supreme Court Practice 4-55 n.72 (11th ed. 2019).

That

practice

promotes

judicial

efficiency,

because

the

proceedings on remand may affect the consideration of the issues

presented

in

a

petition.

It

also

enables

issues

raised

at

different stages of lower-court proceedings to be consolidated in

a single petition for a writ of certiorari.

See Major League

Baseball Players Ass’n v. Garvey, 532 U.S. 504, 508 n.1 (2001)

(per

curiam)

(“[W]e

have

authority

to

consider

questions

determined in earlier stages of the litigation where certiorari is

sought from the most recent of the judgments of the Court of

Appeals.”).

This case presents no occasion for this Court to

depart from its usual practice.

2.

In any event, the decision below was correct.

The

federal witness-tampering statute makes it a felony to kill or

intimidate “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.”

18

U.S.C.

1512(a)(1)(C); see 18 U.S.C. 1512(b)(3).

The statute provides

that

with

“no

state

of

mind

need

be

proved

respect

to

the

11

circumstance

* * *

that the law enforcement officer is an officer

or employee of the Federal Government.”

18 U.S.C. 1512(g)(2).

In Fowler v. United States, 563 U.S. 668 (2011), this Court

considered how the statute would apply to a defendant who “was not

thinking specifically about federal officers” when he tampered

with the witness, but who “would nonetheless have wanted to prevent

communication with federal officers from taking place (had he

considered the matter).”

Id. at 672.

The Court recognized that

it could not “insist that the defendant have had some general

thought about federal officers in mind because the statute says

that ‘no state of mind need be proved’ in respect to the federal

nature of the communication’s recipient.”

U.S.C. 1512(g)(2)).

Id. at 673 (quoting 18

The Court concluded, however, that “where the

defendant kills a person with an intent to prevent communication

with

law

enforcement

officers

generally,”

the

government

may

obtain a conviction “only if it is reasonably likely under the

circumstances that (in the absence of the [tampering]) at least

one of the relevant communications would have been made to a

federal officer.”

Id. at 677-678.

The Court explained that this

reasonable-likelihood standard does not require proof “beyond a

reasonable doubt (or even that it is more likely than not) that

the

hypothetical

officer.”

communication

Id. at 674.

would

have

been

to

a

federal

Rather, the evidence need only show that

12

“the likelihood of communication to a federal officer was more

than remote, outlandish, or simply hypothetical.”

Id. at 678.

The court of appeals applied the standard set out in Fowler.

The court found that, “[a]s in Fowler, evidence was presented that

[petitioner] ‘killed [Proctor] with an intent to prevent [her]

from communicating with law enforcement officers in general’ but

that [petitioner] ‘did not have federal law enforcement officers

(or any specific individuals) particularly in mind.’”

21a (quoting Fowler, 563 U.S. at 670).

Pet. App.

“Applying the Fowler

standard,” the court then found “that it was ‘reasonably likely’

that Proctor would have communicated with a [qualifying] ‘law

enforcement officer.’”

Id. at 22a; see id. at 22a-25a.

Petitioner’s contentions rely on a mistaken view of the court

of appeals’ analysis.

Petitioner characterizes the decision below

as holding that the witness-tampering statute “encompass[es] any

case in which there exists a ‘reasonable likelihood’ that the

witness might have communicated with a federal official -- even

when the defendant had only state officials in mind.”

(emphasis added).

Pet. 6

The court of appeals, however, did not conclude

that petitioner “had only state officials in mind,” Pet. 6, and

this case accordingly does not implicate Fowler’s suggestion that

a

different

inquiry

might

apply

when

the

defendant

had

“a

particular individual in mind” as the recipient of the victim’s

communication, 563 U.S. at 673.

To the contrary, the court found

13

sufficient evidence that petitioner “killed Proctor with an intent

to prevent her from communicating with law enforcement officers in

general” and that petitioner “did not have

individuals

* * *

particularly in mind.”

* * *

any specific

Pet. App. 21a (quoting

Fowler, 563 U.S. at 670) (emphasis added; brackets omitted).

Petitioner has not sought review of that fact-bound evidentiary

determination, and in any event, that determination would not

warrant this Court’s review.

See Sup. Ct. R. 10 (“A petition for

a writ of certiorari is rarely granted when the asserted error

consists

of

erroneous

factual

findings.”);

United

States

v.

Johnston, 268 U.S. 220, 227 (1925) (“We do not grant a certiorari

to review evidence and discuss specific facts.”).

3.

Petitioner

errs

in

contending

(Pet.

7-9)

that

the

decision below conflicts with the decisions of other courts of

appeals.

Petitioner’s contention rests on his mistaken premise

(Pet. 8) that the record established that petitioner “intended to

prevent communications only to state officials.”

As just shown,

the

evidence

court

of

appeals

instead

found

sufficient

that

petitioner “‘killed Proctor with an intent to prevent her from

communicating with law enforcement officers in general.’”

Pet.

App. 21a (quoting Fowler, 563 U.S. at 670) (emphasis added).

Petitioner likewise errs in arguing (Pet. 8) that, in United

States v. Smith, 723 F.3d 510 (2013), cert. denied, 572 U.S. 1043

(2014),

the

Fourth

Circuit

held

that

Fowler’s

reasonable-

14

likelihood standard applies “even when

* * *

the defendant

intended to prevent communications only to state officials.”

Fourth

Circuit

in

Smith

did

not

directly

consider

contention of the sort petitioner asserts here.

question

in

Smith

was

merely

whether

a

a

The

legal

Rather, the

defendant

suffered

prejudicial error as a result of pre-Fowler jury instructions that

required the government to prove that “there was a possibility or

likelihood” that the communication would reach a federal officer.

723 F.3d at 513, 517-518 (emphases omitted).

The court determined

that, on the facts of the case, any error was harmless.

Id. at

517-518.

In any event, any conflict involving the Fourth Circuit would

not warrant certiorari in this case.

Furthermore, the decisions

that petitioner cites on the opposite side of the claimed conflict

stand

only

for

the

unremarkable

proposition

that

Fowler’s

reasonable-likelihood standard applies “when the defendant acts

with an intent to prevent communication to law enforcement officers

in general.”

Stuckey v. United States, 603 Fed. Appx. 461, 462

(6th Cir.), cert. denied, 577 U.S. 886 (2015); see United States

v. Snyder, 865 F.3d 490, 496 (7th Cir. 2017); United States v.

Smalls, 752 F.3d 1227, 1249 (10th Cir. 2014); United States v.

Kostopoulos, 766 Fed. Appx. 875, 882 (11th Cir.), cert. denied,

140 S. Ct. 203 (2019).

None of those decisions directly addresses

15

whether the government could obtain a conviction when the defendant

“had only state officials in mind.”

4.

Petitioner

separately

Pet. 6.

contends

(Pet.

9-14)

that

the

courts of appeals disagree about other aspects of the reasonablelikelihood standard.

Petitioner, however, has not sought a writ

of certiorari as to those additional issues.

See Pet. i.

This

case presents no occasion for the Court to consider those issues.

See Sup. Ct. R. 14.1(a) (“Only the questions set out in the

petition, or fairly included therein, will be considered by the

Court.”); Yee v. City of Escondido, 503 U.S. 519, 535 (1992) (“The

framing of the question presented has significant consequences.”).

In any event, petitioner fails to identify any disagreement

among the circuits warranting this Court’s review.

To start,

petitioner errs in asserting (Pet. 10) that the Second and Fourth

Circuits adhere to what he calls the “additional appropriate

evidence”

conflicting

test,

but

approach

that

the

Third

“recogniz[ing]

Circuit

that

has

this

adopted

a

‘additional

appropriate evidence’ test

* * *

and can no longer govern.”

The disagreement petitioner identifies

is

purely

terminological;

as

is inconsistent with [Fowler]

another

court

explained, “the Second and Fourth Circuits

of

* * *

appeals

has

require that

the ‘additional appropriate evidence’ satisfy Fowler’s reasonable

likelihood standard.”

United States v. Johnson, 874 F.3d 1078,

1082

(citation

(9th

Cir.

2017)

omitted).

In

addition,

even

16

assuming the existence of a circuit conflict, petitioner explains

(Pet. 10-11) that he agrees with the Third Circuit’s position and

disagrees with the Second and Fourth Circuit’s asserted position.

Because the Third Circuit applied the very test that petitioner

advocates, petitioner has no sound basis to seek review of its

decision here.

See Camreta v. Greene, 563 U.S. 692, 704 (2011)

(“Our practice reflects a ‘settled refusal’ to entertain an appeal

by a party on an issue as to which he prevailed.”) (brackets and

citation omitted).

Petitioner also errs in asserting (Pet. 12-13) that, in

conflict

with

the

decisions

of

other

courts

of

appeals,

the

decision below upheld his conviction “based solely on evidence

that the offense at issue was ‘federal’ in nature.”

The court of

appeals’ finding of sufficient evidence of a reasonable likelihood

that Proctor would have communicated with a qualifying federal

officer rested on far more than the federal nature of the offense.

The court relied on Proctor’s extensive prior contacts with a

qualifying officer; Proctor’s continuing provision of information

about

petitioner’s

brother’s

interstate

drug

activities

in

particular, which would have been outside the jurisdiction of the

Task Force; and evidence demonstrating close coordination between

the Task Force and the DEA.

See Pet. App. 22a-25a; see also

Snyder, 865 F.3d at 499 & n.1 (collecting cases relying on similar

factors).

The court’s fact-bound application of the reasonable-

17

likelihood standard neither conflicts with the decision of any

other court of appeals nor warrants this Court’s review.

See Sup.

Ct. R. 10; Johnston, 268 U.S. at 227. *

5.

The

petition

should,

moreover,

be

denied

for

the

additional reason that this case would be a poor vehicle for

reviewing petitioner’s contentions.

The jury instructions in this

case made clear to the jury that the government bore the burden of

proving that “there was a reasonable likelihood that at least one

of the communications

* * *

made to a federal officer.”

by Doreen Proctor would have been

C.A. App. 909.

Petitioner did not

contest that instruction in the district court or court of appeals.

To the contrary, in the district court, petitioner affirmatively

requested an instruction that “the Government must establish a

reasonable likelihood that [Proctor] would in fact make a relevant

communication with a federal law enforcement officer.”

D. Ct.

Petitioner contends that, in an earlier case, the court

of appeals “approved convictions based on evidence that the witness

might have communicated with federal officials in light of future

events, although there was no reason for the witness to do so when

the offense was committed.”

Pet. 13; see id. at 13-14 (citing

Bruce v. Warden Lewisburg USP, 868 F.3d 170 (3d Cir. 2017)). This

case does not present that issue, because petitioner does not

contend that the court of appeals considered such evidence here.

Moreover, the case that petitioner cites arose in a materially

different procedural posture:

it involved a habeas corpus

proceeding in which a defendant was required to prove actual

innocence in order to prevail. Bruce, 868 F.3d at 188. The court

in

that

case

concluded

that

“post-offense

acts”

were

“appropriately considered here given the wide-open evidentiary

universe that attends this actual innocence proceeding.” Ibid.

*

18

Doc. 513, at 2 (July 12, 2017).

And in the court of appeals,

petitioner acknowledged the applicability of Fowler’s reasonablelikelihood standard in the circumstances of this case.

See Pet.

C.A. Br. 30, 54. In addition, at an earlier stage of these criminal

proceedings, petitioner obtained habeas corpus relief by arguing

that “Fowler is on all fours, and so the Fowler standard of

reasonable likelihood applies to [petitioner’s] case.”

D. Ct.

Doc. 336, at 13 (June 30, 2011); see United States v. Tyler, 732

F.3d 241, 251-252 (3d Cir. 2013).

Under a number of doctrines,

petitioner’s

of

previous

acceptance

the

reasonable-likelihood

standard precludes him from obtaining relief on the ground that

the standard should not have been applied at all.

See, e.g.,

United States v. Olano, 507 U.S. 725, 733 (1993) (waiver and

forfeiture); United States v. Wells, 519 U.S. 482, 488 (1997)

(invited error); New Hampshire v. Maine, 532 U.S. 742, 749 (2001)

(judicial estoppel); City of Springfield v. Kebbe, 480 U.S. 257,

259-260

(1987)

(per

curiam)

(prudential

concerns

about

entertaining arguments inconsistent with a party’s proposed jury

instructions).

19

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELIZABETH B. PRELOGAR

Acting Solicitor General

NICHOLAS L. MCQUAID

Acting Assistant Attorney General

SANGITA K. RAO

Attorney

APRIL 2021

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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