holding arse police support because we're dealing with essentially the same facts situation and therefore we should come out the same way all three of the above your honor the prior decisions and mr tyler's appeal our law the case additionally the presidential opinion it was a pretty right what to say the decisions that the fouler applies or the decisions that there is a requisite showing sufficiency the evidence what what prior decisions are controlling power and that there's sufficient evidence to support the conviction so now the prior trials i have nothing to do with this truck we have to look at the evidence educed in this trial that's occurring in order to determine what the jury had to decide so we really not anything that was not brought forth in this trial is largely irrelevant from a sufficiency of evidence standard is it not it's a relevant to the extent that when the courts of i would in the sufficiency of the evidence that is looking at the two thousand and seventeen trial record ok that being said to the extent that the trial records between the two thousand and seventeen record in the earlier trials are materially the same this court's prior decisions do control materially santa i don't get that it seems to me that if i'm a juror and i hear evidence in the two thousand and seventeen trial and i make a decision based on that evidence the the court in deciding whether my decisions proper or not doesn't look at some how their trial looks at what was a deuced in this trial that's very prone i completely agree with that but in deciding the question of law which is why there was sufficient evidence the court would look to the prior decisions as it would look to any presidential decision of and are you saying that onder under very similar evidence similar inferences were drawn and so there is support for at least the reason least of the inference being drawn you're not asking us to draw the an exact inference based on the facts in the in the bell case you're asking us to draw an inference that was also deemed as reasonable in the bell case but based on this the denture record exactly not that and the records are very very similar and so one of the elements of issue willie tyler knew what dorian proctor was doing well there's no dispute that he knew that she had been an informant that she cooperated against multiple individuals with a memory i don't know that that's actually correct what evidence is there that he is evidence that he knew that she was going to testify against david tyler correct there are right and there's also evidence that during proctor had testified in the four plumeri hearings with the individuals that she had cooperated and had testified in prior hearings ok so let's assume and at the hige the hyde straunge exactly let's assume that willie tyler would have known what evidence is there that he had an intent any other ten intent other than killing her to prevent her testimony the fact that he had cooperated before supports the reasonable inference that she was that he was concerned that she would have cooperated again in the same way that the court held that her cooperation against david tyler and the others supported a reasonable inference it was what was he thinking she was going to communicate to law enforcement she basically was done in terms of the buy funds testified he was going to have her do anything more these were the four controlled by so that was it she wasn't she was she really done she was not really done she was done as far as the buys were concerned with detective phones testified that she was continuing to provide information about david tyler's well as other individuals up until the time of her death but what did really well this week i mean most of these cases going to somebody gets killed and they say well if you were going to rat on me i mean you know the person's rather than you have to prove beyond a reasonable doubt that part of his intent he was motivated by desire to keep her from communicating with law enforcement i just don't know what evidence is the support that i think it's even stronger here than hypothetical that you're on to raise that someone had cooperated and so the assailants worried that the person or the the witness had seen something and so these same assume is worried that the witness will say something to law enforcement brother's drug trafficking activities something that he hasn't disputed and the queues at least involved to some extent there was an argument between roberta bell david tyler in believe tyler about drugs that david tyler was going to provide that david tyler had a source in new york city and had made multiple trips to jamaica and another way i respond to judgment does question your honor is that we certainly believe there's sufficient evidence that  tyler participated in this murder so the question then becomes why would he have done that and certainly part of his motivation here from testify certainly that was part of his motivation as it was part of roberta bell's motivation in murdering her because continue to talk to law enforcement i think the jury probably confronted a commonsense question which is whether willie tyler david tyler roberta bell wanted miss proctor to continue communicating with on horsman certainly the answer to that is no miss proctors cooperation was added zenit she had been testified in the fact that she had been testifying and was scheduled to testify on the morning of her murder and david tyler's trial does not also preclude inference that she was continuing to cooperate and that the murders did not want her to continue to cooperate so if we took out the fact that she hadn't ever testified we have all the same facts instead of the testimony we have word on the street information that the suggest that she was cooperating would be your position that the same inference could be drawn absolutely and so that the presence or absence of her testimony is is one thing she did but i think one thing and i think it only makes her cooperation and continuing cooperation all the more likely but if you separate out her testimony the reason i think it would be sufficient evidence still is because i point to the court to the stansfield case which was decided the year before roberta bell's case it's discussed at length in roberta bell's opinion and i'll be clear it was abrogated to a certain extent on the qualifying officer ohman abrogated by fowler but in that opinion the court also addressed the intent element so in that case the witness was a friend of the defendant i provided information to the police about a suspected arson after defendants how the defendant got wind of this went to the witnesses home held a gun to his gun to his parents said and asked him a few questions including why did you tell police about the fire at my home and from that the court held there was also the reasonable inference that in addition to wanting to know why the witness had cooperated the defendant also was saying don't ever cooperate again and so judge for doing that answers your hypothetical about why they would be sufficient evidence even without during proctors continuing cooperation because you're we h pennsylvania so i want to just draw your attention to that the question i have has to do with do we need to address both whether agent deal there was a qualifying federal officer or could we just rely on a special agent humphries you could just rely on special agent humphries certainly we think they are sufficient evidence under both theories and as they don't want to jump over the question your honor president taylor began have presidential support with very similar not identical evidence this court concluding that agent diller at least the jury can conclude that age until there was a qualifying officer under section fifteen which of that group of cases arising from these events do you say that inference can be supported by tyler to the decision after tyler's nd trial directly supports that and then the court's analysis and good schwartz analysis in tyler three with the to the smith's case of a four circuit which the defense seems to acknowledge that there is sufficient evidence in that case the th circuit characterize the evidence in that case as substantial when you compare that case to this case the evidence was much less significant to affirm or to a person excuse me the sufficiency rulings in this case but what i've heard on the opposite side is that there is evidence here that the evidence very presentation was so similar that the prior decisions of this court would somehow persuade this court to follow those decisions and i would say white the that was present in doubt certainly and now without going into the individual elements at this point in time i can point to at least four separate items of evidence or evidentiary presentations and that they can actually be culled from this court's prior decision so starting off or instance with bell bell at page dollars of the opinion refers to the fact that it was undisputed in that case that doreen proctor was continually deprived provide information presumably new information to law enforcement no such concession was made in this case again if you could and it to support the recent inference that she was continuing to provide information after her affirmative cooperation concluded that's ok well that that would be then we were talking about what the evidence is it wasn't destroyed it was certainly no concession and then the question is whether there was evidence that she was that she was continuing to provide information but he could provide no we can ample of what information she was providing and to get to your point judge rebell she had already been cooperating at that point for more than a year she'd been debriefed on numerous occasions and actually testified at the trial of the case and it is just inconceivable to prior to putting her on the stand prosecutors investigators would not have assured themselves that she already provided all the information she could have been so looking in the community so she would have gotten new information after she testified in the st case and she could have been providing it and we have evidence that said she was providing information i believe that's the case for all i will to push back on the hypothetical there for a little bit you certainly living in the community but at that point time she was known to have been working with law enforcement there was no doubt about it she was not working as an informant anymore she'd already been debriefed on her interactions with david tyler willing tyler elsewhere so there was no reason to assume or infer that she was continuing to provide information and move on to another difference in the evidence sherry presentations in tyler to prince and in this period at ninety two dollars the court referred to the know what you're talking about there the now and then i'll get back to that but embellish well if you go then just one thousand three hundred and fifty of the court's opinion you find that in fact in that case there was evidence or at least the court cited evidence that the task force investigating the one that involved agent ronald diller all state program in this case there was evidence quite the contrary that this task force with local in nature composed only up local officials and the degree of work with federal officials it did so merely in a matter of comity not opinion and that's a page ninety nine dollars and it goes to the fact that there there was testimony from local officials that not only did they intend to affirm this proctor to federal authorities to be debriefed to be questioned but the petrel agent humphries would have  any of that testimony in fact in this case there have been no evaluation of dorian proctor made at the point i'm saying that he said he would have talked i did say he did talk he said hypothetically if there was some individual that made that maybe seventy five certain criteria then i might be interested in doing so he didn't say that this in this case he would do so and that was testimony from the prior crowds and again then the other part about the federal communication aspect that differed from this trial and the last two trials including tyler two and again this page at page ninety nine the court refers to the fact that in that case agent and twenty one through six hundred and twenty seven of the appendix in fact the only thing he could say in this case was that he was a coordinator of some sort that he coordinated with the federal government not that he served the federal government and that is the fundamental requirement of that that's the requirement of course that very low bar it may be that may be a low bar in certain cases but it is a bar and in this case it is not met and the distinction between this case and a case for instance such as commit such as bruce bruce is very stark so for instance in those cases  proved especially in this is something this court really focused upon it found a reasonable likelihood that there was a reason that there would be a communication with federal officials because in that case what the evidence showed was that there actually was a federal prosecution of the underlying crimes committed investigated and then the court inferred from that reason that hey if without the witnesses the federal government federal officials did investigate the crime then clearly they had an interest in doing so it would have done so and they would have questioned the witness in this case there is no evidence in the record whatsoever that the federal government ever brought a federal investigation or federal prosecution against david tyler willard tyler anybody for the underlying it only has to be a reasonable likelihood that such a communication would occur and you're describing it at a higher bar than that he had been fowler standard imposes i don't believe by enron what i am saying here is that if there was a federal interest in investigating the drug crimes at issue here the federal government certainly would have done so when it was investigating the mobile murder of dorian procter which they and two onward and began investigating the fact that they did not even though they had all of dorian proctor statements so yes not only suggest but to my mind shows that if they had dorian proctor available they still wouldn't have deemed a good federal interest in investigating the in the way that it articulated if our standard because it suggests that fowler only applies in one unique circumstance would you agree that that was in correct me not matter for the outcome that you're happy with but do you agree it was wrong i take your point that it doesn't matter for the upcoming and i'll tell you why but i do think that there can be  taken with the district court's analysis in that regard and i think that's because power can be read properly in my view not to say that the reasonable likelihood standard is going to be totally in applicable in a case such as this in which the evidence shows that only one specific the individual was in the mind of the defendant but rather fowler's does recognize quite clearly to my mind that that standard applies differently based on the circumstances and the real the distinction of the crucial distinction for these purposes is again whether the prosecution met burden of proving that the defendant had not only an individua well in mind but in fact law enforcement writ large law enforcement in general and ballmer makes this very clear for instance pitstop in sixty four that that is the predicate question whether the government has  burden of proving beyond reasonable doubt that at the time of in this case the murder the defendant tyler had in mind law enforcement in general as opposed to simply david phones because if you had just a specific individual in mind of the defendant the question really only is is that individual is that officer a federal official if not then by definition there is not a reasonable likelihood that the targeted communications with in a way it's in a way to destroy quite applied it you would agree is not accurate well i think it's now i think if you reach the same result essentially and specifically here again the predicate question being what did the prosecution prove that the defendant had much and in this case given back a little bit to judge from bell's question the only evidence of record is the only person that that were tyler could have formed an intent to prevent communications to was detected the phones he was the only person who would appear publicly who was known to be working publicly with the story and proctor at the time of the murder at the time of the trial he had appeared with her on numerous occasions testified at trial and he was set to case and that is getting back again to certain of gender and else questions and certain of the person's question which is to state that's a separate question as to whether it's trying to prevent communications but at that point he had been cooperating she had been cooperating with law enforcement for a year there was no indication that she had further information to convey to law enforcement no further information to convey to detective phones once she had already communicated all of the information she had to pack the phone she had no further information to communicate certainly willing tyler would have had but we really tyler know about that the fact that she did or didn't that's not the issue the issue is whether he had a motive he was motivated by a desire so it's really a question of what he knew about her maybe he didn't know she sees providing diddy what i think then we're talking about it now well and that's i think getting back to the you asked that question specifically and there is no evidence of what he knew the only evidence that he knew anything and it's an inference that could be taken from the trial record is that maybe he knew that she had testified to these facts at the trial at the preliminary hearings but at that point during that testimony she had already testified as to all the relevant essentially relevant facts for these purposes and the only reasonable assumption really tyler anybody else is that while she was cooperating with law enforcement over the course of a year she would have provided all further information she had there would be no reason whatever willie tyler knew or did not know there certainly wouldn't been any reason to suspect took part as i can tell that she would have suspected that she had further information to convey that it helps you said has to be new information why can't it be information that she might have shared and she wanted to share again to get to the proper authorities who could do something about it say the interstate connection information that's been reported in the record i think there's two responses to that your honor if i may and i think they go to a little bit different but if we're talking only about communications with detective phones communication of information that's that the phrase used in the statute that necessarily means a transfer of information so in other words once information has been transferred once she provided the information to information that's already been communicated it is not a communication of new information and you get passed but i think it's a matter of never say it has to be new information a fellow does not get to this point and had no reason to address it but i think that's a necessary reading of the statute and i think even if you go beyond that the question again getting back to trend point is that the question here is not really whether there could have been a communication of information it's whether willy tyler would have known about it suspected it intended to prevent it and there was no evidence whatsoever that he had any reason to suspect that she had information to convey  and again to getting to the point if it wasn't new information then why would he be motivated to kill her to stop him her from communicating it it had already been out there he had every reason to suspect everybody at the police department knew about it so that would take away his intent entirely and i don't think at that point in time you can find that he had any intent to prevent a communication whatsoever and i think that's what the record clearly ship to get to judgment dealt quite with my question and then again if you could past that if you can here and that says judge jones found it you cannot find that she in the defendant had any intent to prevent dorian procter from further communications and then if you get past that point you cannot find that will tyler would have suspected that she was working with anybody other than detective phones so the only question further is whether detective phones could be classified as a federal law enforcement officer which he clearly could not and then if you even if you get past that if you somehow find that the government had met its burden of proof beyond a reasonable doubt that we're tyler intended to  prevent communications with law enforcement more generally for the reasons i support before you can up on that because ronald diller does not qualify he was not serving the federal government he was serving as a state official exclusively and there was no indication that federal officials would have taken any interest in the about those differences and i think that's indicative of the fact that those differences are in material that did not make any difference whatsoever in evaluating the sufficiency of the evidence and evaluating the validity of the jury's verdict mr sorenson said that in bell it was undisputed that ms proctor was continuing to provide information to law enforcement i don't know whether the defense disputed that in the bell trial but what i do know is that there was evidence in the most recent trial record from david phones that ms proctor was continuing to provide information up until her murder that's at the appendix pages three hundred and eighty seven through three hundred and eighty nine it was information about david tyler and others and she was also providing information about individuals outside of the task forces jurisdiction specifically in harrisburg in doffing county detectaphone also wanted to try to develop new information from miss proctor he wanted to develop additional information about her source on the issue of new versus old information that design matter even whether miss proctor had new information the record supports the fact that she did have new information but it does not matter the crime could be completely come over and done with that's what the that's that was the case and stansfield the fire had been committed the witness was providing information about the fire there was no ongoing criminal activity until the defendant tried to murder the witness here there's actually an ongoing drug conspiracy and this proctor was providing information about that conspiracy d but we don't know really tyler knew anything about that what does it matter so  really knew anything other than that she was going to testify the next day maybe you didn't even know that everest you know i think david was trying to push her up a safe none of your business and got him to cock the gun but we don't know that really telling you anything about what she was doing other than she was going to testify doing well i think we at least know that he knew that she was going to testify and actually think that she did have information ok that i think is clear from the record and i think that's enough to support the inference that he wanted to prevent her further communication with law enforcement to prevent her continuing cooperation both at david tyler's trial and ongoing cooperation as to david tyler and you dish and cooperation that she could provide from whereas if you were to tell that he was getting drugs at least from david tyler was involved in an argument about drugs following the murder with david tyler and roberta bell he was wrapped up in this not a minimum he wanted to prevent her ongoing communications to prevent her cooperation against his brother