Opposition Brief — Willie Tyler, Petitioner v. United States
Supreme Court briefApr 2, 2021
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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
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