crossing the morning your hours made please the court my name's ronald krauss son in the system federal public defender with the middle district of pennsylvania might represent the defendant willie tyler i'd like to reserve three minutes for rebuttal yes i'd like to start with the most what i think is the most difficult spot of issue in this case which is the weighing of the sufficiency of the evidence concerning the investigation related offenses under the found standard i think my brief did a disservice to the court because i don't think it fully analyzed the fowler standard properly as it applies to this case i would like to expand on that analysis morning in the courtroom mission although i chambers three seventy eight the court says the federal prosecution fower arose after charles fowler shot a police officer who caught him and his associates suiting up to rob a bank it was clear that fowler had shot the officer with the intent to prevent him from speaking to other law enforcement officers but that he did not have any specific law enforcement officer or set of officers in mind time to satisfy the federal nexus requirement in such as in such a situation the court held the government must demonstrate a reasonably likelihood and you know the rest of communicating with a federal law enforcement officer the problem in my brief is that i second part this is actually the second since i read the states that first part and it's that first part it's a threshold part of the fallacy entered that's critical in this case not the reasonable likelihood intended to prevent communications to federal officers first the relevant question concerns the defendant's intent the government will already have shown beyond a reasonable doubt that the defendant possessed the relevant broad who the defendant believed the victim might communicate with in fact the federal officers so the this is in in under the bell standard is who the victim might communicate with there's really not much emphasis ice was local sheriff came up to the car and they were sitting in the in cemetary around the car preparing to rob a national bank that they were shooting this officer with the intent of preventing him from communicating with other law enforcement officers because that's obviously what another law enforcement officer would do but that's really distinguishes the facts if our from this case and also would be the new emphasis in fower on defendants intent is what's really the difference here so what fowler instructs with this with this threshold standard is that you have to weigh the sufficiency of the evidence in this case under those two elements first that the government prove beyond a reasonable doubt that the defendant tyler possessed of broad indefinite intent to prevent the victim from communicating with law enforcement officers in general and then sure the reason i mean reasonable reasonable likelihood reasonable let me play should because that wasn't that the standard at the time was somewhat similar i did not really go into that because i think at this point in the litigation are twenty to forty one i don't think the jury instructions are something i can attack it's really a matter of establishing a life of criminal conduct at this point that is  there's not not only that standard but i would submit that this case really doesn't even get to the reasonable likelihood standard because it doesn't pass the fresh hold of but one of the instructions the district court gave to the jury was that there was that the x you know that the this is all force of the killing was motivated by a desire to prevent the victim from communicating with law enforcement so the jury was already told that had to be the motivation for the action and therefore this jury happened to have been instructed on that very point that you say was the first part of the fowler analysis right so that really isn't anything we need to be concerned about with federal offices what beyond this broad indefinite so intent was not really what they were focusing on this what god and then he goes and says we hold off with this says first the rope in question could concerns a defendant's intent and then talks about how the government has to show beyond a reasonable doubt that the defendant possessed a relevant broad indefinite intent to prevent the victim for speaking to law enforcement officers if you go immediately to the reasonable likelihood it's something i put this in my read you putting the rabbit in the had already what  case i don't believe so your honor and i can as an example let's look at three very bad facts that were in the government's bad acts against higher look at them in the white most of the most supports the inference that tyler acted with an intent to stop proctor from testifying in state trial but says nothing about whether or not he had an intent to prevent her from speaking to law enforcement in general during that wanted to prevent proctor from testifying at trial but it says nothing about preventing her from testifying from communicating with a law enforcement officer then a few days later after the de barrett testified that she overheard conversations between report of bell and tyler which went something like this bell says i shot her but will be filtered and tyler says keep your mouth shut because you don't know who's speaking to law enforcement officers but right had it but the but the entire record demonstrates that there was and that apparently these folks knew that she had begun to cooperate with law enforcement already found that there was sufficient evidence that there was communication with law enforcement that would have been federal had she survived to communicate so you know i mean i think well that's already been found and in any event on twenty three forty one we have to find no reasonable juror would have concluded the way that you say it should not begin i think when you read that closely what they were looking at was the reasonable likelihood standard they didn't to decide what we have to stop her from talking law enforcement they had no idea she was talking law enforcement that she had or because somebody let me ask you another question about the procedure we're in right now if we should happen to agree with you on either ruling right should we then send it back to the district court to make a factual determination that there is actual innocence and if we do what is the standard i'm sorry it's there is a standard which we have used in related handiest which issues to determine if there is actual innocence well should we should refer to that in our in constructing that this report well i think the actual innocence would be that he did not violate the witness remembering statute right but that requires some factual determination and the facts of the case really haven't come before us as to what what was the intention what could the jury have decided so it would appear to me and i'm not saying that it would appear to my colleagues but that there are some factual determinations that still need to be made under the arthur andersen and our standards to determine if there is actual innocence because the law has been changing and what state what i think is the core issue that disposes of this natter i would suggest to the court that we begin with the fact that this court has already found that the facts of this case were sufficient under law to establish  legal and factual requirements and session tory requirements for it to establish the federal nexus if you find that the law enforcement prong has been satisfied since this was a general verdict under the united states versus griffin case the supreme court case that means that if one object of the statute that is being charged if they charge multiple objects if there's a general verdict then if one prong or object of the charge is legally sufficient you can ignore the other the other ones and we stand on the fact that under fowler the law enforcement prong was met with because of the  couldn't help focusing on proctor's testimony at hodges trial in january nine hundred ninety two issues unwilling to cooperate anymore the fact of phones is fons is testimony on multiple occasions that there were no plans at all to use proctor to testify in any federal privacy so i had a find a nexus well the nexus is when you look at the testimony of proctor and phones at the area hearing in the district in the state court and you look at fund his testimony at the federal court what proctor was saying was i'm not doing any undercover work anymore i'm no longer working and but it was clear from detective phones testimony that it wasn't his call where it went from there he was part of the federal joint task force a best testimony is that there were no plans at all to use or to testify he said the next step would have been to evaluate the information that proctor had provided in order to see if further investigation was warranted it was the duty of the task force coordinator agent diller to make that determination up from that i communicated to the federal officials because detective i mean agent diller was the representative and the advisor and counselor of the federal government and he had interviewed her prior to her being murdered and he had said that she had told him about multi genre stick tional involvement of this drug organization and that he had arranged that he was going to have her to and he was going to meet with her and de this and said we have salute lee we're taking this case and she would have been a witness and we are taken on this investigation so you're saying based upon that proffer set of facts from this trial record the trial record not only substantiated the conviction as already found to be sufficient as a matter that in tyler the second trial the second trial an appeal but also under fowler you're saying there's enough evidence here that the court could find that it would need to test to because there was not just a reasonable likelihood that's ever strong likelihood yes and remember i do jesuits but remember that the fowler said that when you talk about reason why kill her it's not beyond a reasonable doubt it's not even more likely than not it is more then remote or hypothetical and when you have as they found in the bell case they said she was already communicating with law enforcement officials in a partially federal drug task force it was reasonable to assume based upon the testimony that she's going to continue communicating with law enforcement officials the federal law enforcement official said he had already set up to meet with her and it said that a jury could have reasonably infer that at least one of those communications would have been to a federal proceeding prong of the indictment is our weaker argument but the arthur andersen case does not apply to time it appears doesn't apply first because it referred to official proceedings were going on of the law enforcement problem as the district to tampering with the witness by murder because arthur andersen was concert conf crn how does the defendant know that what he's doing is wrong under oath or enters a proceeding it has to be a federal official right under arthur andersen it has to be income to the if it's per se legal activities it has to be in contemplation of the language of the statue that you have right that's correct so are you conceding that prong of well we're certainly hanger spurs on the long law enforcement prong the i would say that that is our she said in the hans trial that she was not she'd been burned as a as an informant she was no longer to be working as an informant and frankly it's not her call but she was understood i am not going to cooperate anymore  well we don't we don't judge the presence of a potential communication with a law enforcement official by the seeds it is was the evidence was it whitely that there was sufficient yesterday that yes you are delicate so from your point of view arthur andersen really doesn't change that at all that the city evidence is what it is and whether it was a official proceeding at defined by author anderson or official proceeding is defined by as applied by bell it doesn't matter the evidence for me seen in the state of the evidence points to law enforcement communication problem and that's that's where we stand and i would emphasize to the court as well that we're looking at this under the twenty to forty one standard one of three things has to be established by the defense to carry the day in this one actual innocence to the statute was decriminalised of the conduct was decriminalised on the law enforcement  it wasn't because as the defense conceded before you as my colleague conceded before you he did commit the murder there's plenty there to show that he put the gun to her head and killed her and three he was he was acquitted beyond a reasonable doubt none of those things have been shown in this case judge roth asked your colleague about reunion do you think that's necessary and if not why no i do not first of all the district court addressed fowler and addressed arthur andersen and said under both of those first of all our arthur andersen doesn't apply but our the reasonable likelihood when you look at all of the evidence and there are i think nine nine key points cited by the court when you look at all of the evidence there was a reasonable likelihood that she would have communicated at least once with a what i fed a law enforcement officer that is agent diller who met the standard under fifteen twelve and she would a person authorized to act for or on behalf of the federal government or serving the federal government as an advisor or consultant both the head of the pennsylvania grosvenor conics investigation for the pennsylvania attorney general's office and the representative of d e a testified this was our advisor this was our consultant he decided what cases went federally and this matter of fact diller testified that he was the case agent in in the federal trials i tried cases with mr diller before retired he was a federal agent under the statute as the advisor consultant and da when for instance he makes a decision as to whether or not we take the case for federal prosecution so the answer is yes and dealer said i interviewed her beforehand and she told me a multi genre sexual involvement and i intended in and phones confirms that i intended the interviewer after her testimony when they had finished the state case is that relevant i believe about as the standard is relevant your honor when we come to actual innocence though remember that the court is not to consider jury instructions or anything else i actual innocence and when they when they represented of the defendant helen stand before you and acknowledges that the evidence was sufficient on murder then it is to look at all of the evidence for this court to consider all the evidence the case as the district court did blow and say based on all of the evidence there was a reasonable likelihood that at least one communication with a federal law enforcement officer would have occurred had she not been murdered and one of the reasons he said that in the bell case they pointed out and the court followed up on bell when you these people were well aware that their involvement went far beyond carlisle where the prosecution was taking place for sales that took place within cumberland county they were well aware that it went far beyond that it went beyond the bounds of the jurisdiction it went beyond the bounds of the state went beyond the bounds of the united states they were aware that if she continued to cooperate or communicate with law enforcement that would come out and the court said that there was plenty of evidence in there in bell that there was going that it was a partially federal law enforcement task force that it was that was involved and if she had done any more communication with them the reasonable likelihood is that at least one of those communications would be with with a federal law enforcement officer and phone said if you already even plan that i was going to turn the case over to detective diller and he would continue the interview and dillard had already begun the interview before she had been killed that's you you have to find that no reasonable juror could have found that evidence was sufficient beyond a reasonable doubt on those facts and we submit that the evidence is there and that that there is no clear error in terms of that those are reasonable inferences times it was only in the last trial where all of a sudden mr diller decides that he is an advisor and consultant with the federal government and when asked where he got that phrase i believe he says something like well i think i got it off of understanding was it was it was a tri county task force the roster is part of the appendix you see no federal names in it you'll see no federal agencies in it  yano says there was no federal involvement in it basically what it was was mr biller who it's this real b s on with the e p a and other federal agencies he had the phone number on the on his rolodex that was basically his connection to the federal government and when occasionally case that he thought might introduce the federal government would come up he called them up and then and then they would think about it but one of the things that significant in this case is  and yet he didn't do anything about it this was january ninety ninety one he didn't do anything but he didn't call up the da he didn't call up mr super rod and tell them hey i have something here i think there's a monkey jurisdictional issue they say they were going to wait for the state court proceedings to end does that make any sense when the if the federal does if there was some matter that the federal government would be interested the federal government would step in the state would norcross a prosecution rudd would step in and he take over and he would have gotten the convictions the the idea that this was any really federal interest doesn't come up and it never came up until after bell was seems to me that we have to have guilt on each element of the of the charge