2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-3-2013

USA v. Willie Tyler

Precedential or Non-Precedential: Precedential

Docket No. 12-1975

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-1975

_____________

UNITED STATES OF AMERICA

v.

WILLIE TYLER,

 Appellant

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

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

District Judge: Honorable William W. Caldwell

____________

Argued 

May 13, 2013

Before: FUENTES, SHWARTZ, and ROTH, Circuit Judges

(Opinion Filed: October 3, 2013)

Ronald A. Krauss, Esq. [ARGUED]

Office of Federal Public Defender

100 Chestnut Street
2

Suite 306

Harrisburg, PA 17101

Counsel for Appellant Willie Tyler

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

[ARGUED]

Office of United States Attorney

Ronald Reagan Federal Building

228 Walnut Street

P.O. Box 11754

Harrisburg, PA 17108

Counsel for Appellee United States of America

____________

OPINION OF THE COURT

____________

FUENTES, Circuit Judge:

Willie Tyler was charged under state law for the 

murder of Doreen Proctor, a witness who was scheduled to 

testify at his brother’s state trial. Tyler was acquitted of the 

murder charge but convicted of witness intimidation and 

served a term in state prison. After his release, federal 

prosecutors brought charges for witness tampering by murder 

and by intimidation in violation of 18 U.S.C. § 1512. At 

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

theories by which the Government could prove its case—

tampering with a witness to prevent her testimony at an 

official proceeding and tampering with a witness to prevent 

her communication with law enforcement. Tyler was found 
3

guilty and sentenced to life imprisonment, and his conviction 

was affirmed on appeal. Tyler now argues that two recent 

Supreme Court decisions, Arthur Andersen LLP v. United 

States and Fowler v. United States, limited the scope of the 

witness tampering statute and have rendered non-criminal the 

acts for which he was convicted. We conclude that these

intervening Supreme Court decisions along with the evidence 

in the record supports Tyler’s actual innocence claim. For this 

reason, we will remand to the District Court to conduct an 

evidentiary hearing and provide Tyler an opportunity to 

present evidence in support of his actual innocence. 

I. BACKGROUND

A. Factual History

Doreen Proctor’s body was found on the side of a 

country road in Adams County, Pennsylvania on April 21, 

1992, shot in the head and chest, badly beaten, and stabbed 

repeatedly. She had been scheduled to testify that day as a 

witness against David Tyler, Appellant Willie Tyler’s brother, 

in Pennsylvania state court.1In her role as a confidential 

informant for the Carlisle Police Department, Proctor had 

made four controlled buys of cocaine from Tyler and from 

three other individuals, Jerome “Butchie” Evans, Mary Jane 

Hodge and Cindy Brooks, in early 1991. Proctor had testified 

against the four individuals at their preliminary hearing, and 

in January 1992, she testified at Hodge’s trial leading to a 

conviction. After Proctor’s death, the remaining trials were 

halted. 

 

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

Tyler as “David.”
4

Instead, in July 1992, Tyler, along with David and 

David’s girlfriend Roberta Ronique Bell, were charged under 

state law with criminal homicide and witness intimidation in 

connection with Proctor’s death. Tyler was acquitted of the 

murder but convicted of witness intimidation, David was 

convicted of murder, and Bell was acquitted of all charges. 

Willie Tyler was sentenced to two to four years in state 

prison. 

Federal law enforcement officers began a subsequent

investigation into Proctor’s death, and in June 1995, Bell was 

charged with witness tampering and intimidation. After a jury 

trial, Bell was convicted and sentenced to life imprisonment. 

United States v. Bell, 113 F.3d 1345, 1347 (3d Cir. 1997). In 

April 1996, after his release from state prison, Tyler was 

charged by federal authorities with murder and intimidation 

of a witness in connection with Proctor’s death. 

The evidence revealed that on April 20, 1992, 

following a meeting between David and Jerome Evans, David 

recounted the conversation to Tyler and then stated, “[t]hat 

bitch is going to die tonight.” App. 429. Shortly thereafter, 

David went to a shed outside of Hodge’s house, returned with 

a sawed-off shotgun and asked Tyler whether he knew how to 

cock the gun, and Tyler demonstrated that he knew how to do 

so. That night, Roberta Bell asked a friend to babysit her kids.

The next morning, Tyler and David returned to Mary Jane 

Hodge’s home where Tyler said “It’s over, she’s gone,” and 

David reported, “she’s dead, and I’ll be at court . . . and that 

bitch won’t.” App. 435. That same morning, Bell returned 

home with an armful of bloody clothes and told her 

babysitting friend to say she had been home all night. The

friend overheard an argument between Tyler, David, and Bell 
5

during which Bell told Tyler, “I shot Doreen but you killed 

her.” App. 521. 

B. Proctor’s Involvement with Law Enforcement

The Tri-County Drug Task Force, a joint anti-drug 

effort by state and local law enforcement officers from 

Cumberland, York, and Perry Counties in Pennsylvania was 

coordinated by Special Agent Ronald Diller of the 

Pennsylvania Attorney General’s Bureau of Narcotics 

Investigation. In early 1992, at the time of Proctor’s death, no 

federal agent or agency was part of the Task Force. However, 

a Memorandum of Understanding stated that each Task Force 

coordinator should evaluate state and local cases to determine 

which should be referred to the federal Drug Enforcement 

Administration (DEA). While a Task Force officer was 

initially responsible for his or her own confidential 

informants, at the conclusion of an investigation and trial, 

Special Agent Diller would generally meet with the 

investigating officers to determine whether there was any 

potential to expand the investigation. If a case was under 

consideration for federal involvement, Diller would join the 

investigating officer in debriefing the informant, and at that 

point, Diller would decide whether to bring the case to the 

DEA. Diller estimated that he had brought to the DEA three 

to five of the Task Force’s cases each year for federal 

prosecution. 

Though Diller was neither paid by any federal agency 

nor authorized to seize drugs or get a search warrant on behalf 

of the DEA, for certain investigations in the past, he had been 

deputized to act on the DEA’s behalf when he would be 

traveling outside of Pennsylvania with a federal agent. Diller 

later testified that he would advise and consult with the DEA
6

but ultimately conceded that he had never previously used the 

terms “advisor” or “consultant” and instead had borrowed 

them from an Assistant U.S. Attorney’s affidavit. 

Doreen Proctor had worked as an informant for 

Carlisle Police Detective David Fones, an officer with the 

Tri-County Drug Task Force. At the time of her death, 

Proctor no longer engaged in undercover operations but had 

continued to provide Fones with information on the drug 

market, including local drug activity in Harrisburg and nonlocal activity about David’s drug sources in New York and 

Jamaica. Diller had also spoken on occasion with Proctor 

during 1991 and 1992 during Fones’s investigation into 

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

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

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

information involving the New York and Jamaica drug 

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

the conclusion of David’s investigation and trial, in 

accordance with his general practice, and to then decide 

whether to expand the investigation and involve federal 

authorities. Diller later testified that had he known about 

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

York and Jamaica, the information would have been a 

significant factor in developing a federal case, and a DEA 

agent also contended that he would be interested in pursuing a 

federal case that involved Jamaican and New York drug 

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

Diller had neither contacted any federal agency to discuss 

developing a federal case involving Proctor nor planned to 

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

no ongoing state investigations involving Proctor at the time 

of her death, and while Proctor had agreed to testify at the 
7

remaining trials of David and the other defendants, she had 

previously testified that she would no longer engage in 

undercover drug operations. 

II. PROCEDURAL HISTORY

Willie Tyler is no stranger to this Court. After Tyler’s 

state trial in which he was acquitted of murdering a witness 

and convicted of intimidating a witness, Tyler was federally 

charged with witness tampering by murder and by 

intimidation in connection with Proctor’s death, in violation 

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

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

following a jury trial, Tyler was convicted of witness 

tampering, and on appeal, we reversed the conviction and 

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

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

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

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

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

murder and by intimidation. He was later sentenced to life 

imprisonment, and on direct appeal, we affirmed the 

conviction. Tyler II, 281 F.3d at 101.

2

In December 2009, Tyler filed a pro se motion, 

arguing that Arthur Andersen LLP v. United States, 544 U.S. 

696 (2005), had rendered his conduct non-criminal. The 

Supreme Court had held in Arthur Andersen that certain 

official proceeding provisions of § 1512’s witness 

 

2

Tyler’s conviction has survived several collateral 

attacks, including a § 2255 motion and other motions 

construed as successive § 2255 motions. United States v. 

Tyler, 207 F. App’x 173, 177 (3d Cir. 2006). 
8

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

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

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

08. While his motion was pending, the Supreme Court 

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

(2011), holding that an investigation-related communication 

provision of § 1512’s witness murder subsection, 

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

that a witness’s murder was intended to prevent 

communication with a federal law enforcement officer or 

judge. Tyler later supplemented his pro se motion to address 

Fowler. The District Court construed his motions as a petition

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

2012. Tyler appealed.

III. ANALYSIS3

A. Availability of Section 2241 Relief

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

prisoners could seek post-conviction relief through the writ of 

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

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

habeas corpus to allow prisoners to seek collateral review in 

the trial court where the case was prosecuted. In re 

 

3

Tyler, who is incarcerated in Lewisburg, 

Pennsylvania, filed his pro se habeas petition in the District 

Court for the Middle District of Pennsylvania pursuant to 28 

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

lack of jurisdiction. We have jurisdiction to review the 

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

U.S.C. § 1291.
9

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

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

was later amended to restrict the ability of prisoners to file 

successive petitions. Antiterrorism and Effective Death 

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

110 Stat. 1214 (1996).

However, even after § 2255 was enacted, a writ of 

habeas corpus under § 2241 remained available for prisoners 

under limited circumstances, including when § 2255 is 

“inadequate” or “ineffective,” 28 U.S.C. § 2255(e), also 

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

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

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

for conduct that has subsequently been rendered non-criminal 

by an intervening Supreme Court decision” and our own 

precedent construing an intervening Supreme Court decision, 

but is otherwise barred from challenging the legality of the 

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

situation “presents exceptional circumstances where the need 

for the remedy afforded by the writ of habeas corpus is 

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

Under those circumstances, we will remand to the district 

court to consider the record and determine whether the 

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

conduct had been rendered non-criminal due to the Supreme 

Court decision as well as our own precedent construing the 

Supreme Court’s decision. Id. at 252. To support an actual 

innocence claim, the petitioner must “establish that ‘in light 

of all the evidence, it is more likely than not that no 

reasonable juror would have convicted him.’” United States v. 

Garth, 188 F.3d 99, 107 (3d Cir. 1999) (quoting Bousley v. 

United States, 523 U.S. 614, 623 (1998)). A petitioner can 
10

establish that no reasonable juror would have convicted him 

by demonstrating an intervening change in law that rendered 

his conduct non-criminal. See United States v. Davies, 394 

F.3d 182, 191 (3d Cir. 2005) (citing Bousley, 523 U.S. at 

620). While Bousley addressed the standard that a petitioner 

must meet for claims brought under § 2255, this standard 

applies equally to actual innocence claims brought under § 

2241. See, e.g., Stephens v. Herrera, 464 F.3d 895, 898 (9th 

Cir. 2006); Martin v. Perez, 319 F.3d 799, 804 (6th Cir. 

2003). 

In the instant action, Tyler contends that he is actually 

innocent and being detained for conduct that has subsequently 

been rendered non-criminal due to the Supreme Court’s 

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

Fowler and by our precedent construing those Supreme Court 

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

procedure under Bousley is to remand to the district court to 

determine whether a defendant is actually innocent of the 

charged offense when the record supports such a claim.” 

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

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

whether he is eligible for § 2241 relief. 

B. The Victim and Witness Protection Act

The Victim and Witness Protection Act of 1982 

(VWPA) was enacted to provide protection to witnesses in 

federal cases. The VWPA contains two key provisions, which 

follow. The first section addresses witness tampering by 

murder of a witness:

Whoever kills or attempts to kill another person, 

with intent to—
11

(A) prevent the attendance or testimony of 

any person in an official proceeding; . . . or

(C) prevent the communication by any 

person to a law enforcement officer or judge 

of the United States of information relating 

to the commission or possible commission 

of a Federal offense or a violation of 

conditions of probation, parole, or release 

pending judicial proceedings;

shall be punished . . . . 

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

section addresses witness tampering through 

intimidation or threats toward a witness:

Whoever knowingly uses intimidation, 

threatens, or corruptly persuades another 

person, or attempts to do so, or engages in 

misleading conduct toward another person, with 

intent to—

(1) influence, delay, or prevent the 

testimony of any person in an official 

proceeding;

(2) cause or induce any person to—

(A) withhold testimony, or withhold a 

record, document, or other object, from 

an official proceeding;

(B) alter, destroy, mutilate, or conceal an 

object with intent to impair the object’s 

integrity or availability for use in an 

official proceeding; . . . or

(D) be absent from an official proceeding

to which such person has been 

summoned by legal process; or
12

(3) hinder, delay, or prevent the 

communication to a law enforcement officer

or judge of the United States . . .

 shall be [punished].

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

both sections prohibit conduct targeted at official proceedings 

and at investigation-related communication with law 

enforcement officers. To constitute an “official proceeding” 

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

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

officer includes “an officer or employee of the Federal 

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

the Federal Government or serving the Federal Government 

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

Tyler was convicted of tampering with a witness by 

murder in violation of an official proceeding provision4and 

an investigation-related communication provision5(Count 2). 

He was also convicted of tampering with a witness by 

intimidation and threats in violation of two official 

proceeding provisions6and an investigation-related 

communication provision7(Count 3). 

 

4

18 U.S.C. § 1512(a)(1)(A).

5

18 U.S.C. § 1512(a)(1)(C).

6

18 U.S.C. § 1512(b)(1) and (b)(2).

7

18 U.S.C. § 1512(b)(3).
13

C. Judicial Limitations on Use of Victim and Witness 

Protection Act

The Supreme Court addressed certain provisions of § 

1512 in Arthur Andersen and Fowler, and we recently 

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

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

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

Ct. 2877 (2013).

8 We will review these holdings to determine 

whether they render Tyler’s conduct non-criminal. 

1. Limitations from Arthur Andersen and Fowler

The Supreme Court’s decision in Arthur Andersen 

required that for the government to satisfy the VWPA’s 

witness intimidation section’s “official proceeding” 

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

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

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

Specifically, the government must prove that the defendant 

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

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

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

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

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

 

8 Our judgment in Shavers was subsequently vacated 

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

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

Alleyne involves an unrelated sentencing issue, the Supreme 

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

regard to the extension of Arthur Andersen’s nexus 

requirement and Fowler’s reasonable likelihood requirement 

to other provisions in § 1512. 
14

omitted). The “official proceeding” language is also 

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

provisions under which Tyler was convicted. 

In 2011, the Supreme Court in Fowler analyzed the 

investigation-related communication provision in the 

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

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

the communication by any person to a law enforcement 

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

defendant does not have particular federal law enforcement 

officers in mind[] the Government must show a reasonable 

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

enforcement officers, at least one relevant communication 

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

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

“reasonable likelihood” standard was necessary to prevent 

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

that would deal with crimes, investigations, and witness 

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

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

show more than “a mere possibility that a communication 

would have been with federal officials” and “that the 

likelihood of communication to a federal officer was more 

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

52.

2. Reconciling These Limitations in Shavers 

In United States v. Shavers, which we decided after the 

District Court’s denial of Tyler’s § 2241 petition, we 

reconciled the Supreme Court’s holdings in Arthur Andersen 

and Fowler. 693 F.3d at 378-79. While the Arthur Andersen

Court only specifically addressed the nexus requirement in 
15

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

we held that the analysis applies “with equal force to 

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

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

demand[ed] that we apply the Arthur Andersen nexus 

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

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

particular ‘official proceeding’ that was foreseeable when he 

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

not address the other provisions in § 1512 that were also 

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

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

nexus requirement would apply to all § 1512 provisions 

proscribing conduct intended to affect an official proceeding. 

We also considered Fowler’s “reasonable likelihood” 

requirement for the investigation-related communication 

provision and rejected the view that it would apply to an 

official proceeding provision, § 1512(b)(1). We concluded 

that for the same reasons that Arthur Andersen’s nexus 

requirement does not apply to the investigation-related 

communication provisions, it would be “illogical” to apply

Fowler’s reasonable likelihood requirement in the context of 

prosecutions under the official proceeding provisions. Id. at 

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

was subject to a different set of requirements, concluding that 

“there are at least two lines of jurisprudence developing 

separately under the VWPA: one for the investigation-related 

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

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

(b)(2).” Id.
16

D. Effect of Intervening Supreme Court Decisions on 

Tyler’s Convictions

1. Official Proceeding: Nexus Requirement

Tyler contends that his conduct has been rendered 

non-criminal by the Supreme Court’s decision in Arthur 

Andersen because there was no evidence from which the 

Government could establish a nexus with an official 

proceeding. The District Court, though, held that Arthur 

Andersen did not establish that Tyler was actually innocent of 

his witness tampering offenses. It recognized that other 

Circuits have held that Arthur Andersen’s nexus requirement 

applies to other VWPA provisions containing the official 

proceedings language. United States v. Tyler, No. 1:96-CR106, 2012 WL 951479, at *9 (M.D. Pa. Mar. 20, 2012) (citing 

United States v. Phillips, 583 F.3d 1261, 1263-64 (10th Cir. 

2009) and United States v. Matthews, 505 F.3d 698, 707-08

(7th Cir. 2007)). However, it reasoned that because the 

conduct at issue in Arthur Andersen was “by itself not 

inherently wrong,” a nexus requirement was necessary to 

ensure that “innocent conduct is not punished,” whereas 

Tyler’s conduct involved “consciousness of wrongdoing” so 

no such nexus requirement was necessary. Id., at *9-10. Thus, 

it disagreed with the holdings of these Circuits and held that 

Arthur Andersen’s nexus requirement does not apply to § 

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

“Arthur Andersen has not altered the legal landscape for all 

section 1512 offenses.” Id., at *10. 

The District Court’s holding is in sharp contrast with

our subsequent holding in Shavers. There we expressly held 

that the nexus requirement for official proceedings extends to 

§ 1512(b)(1) and implied that the nexus requirement would 
17

apply likewise to other obstructive conduct involving an 

official proceeding proscribed by § 1512. We similarly 

conclude here that in any prosecution brought under a § 1512 

provision charging obstruction of justice involving an 

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

nexus between the defendant’s conduct and a particular 

official proceeding before a judge or court of the United 

States that the defendant contemplated. Arthur Andersen, 544 

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

have all concluded that the nexus requirement applies to other 

§ 1512 provisions qualified by an official proceeding. See 

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

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

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

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

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

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

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

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

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

Having considered the effect of Arthur Andersen on 

the § 1512 official proceeding provisions, we now must 

examine whether the evidence in the record is consistent with 

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

1512’s official proceeding provisions. We emphasize that our 

review “does not amount to a determination of whether there 

is sufficient evidence to convict,” but only considers whether 

the evidence supports Tyler’s actual innocence claim “such 

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

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

believe that it does. 
18

In Shavers, we considered the evidence presented at 

trial and concluded that it was insufficient as a matter of law 

to satisfy the official proceedings requirement because the 

defendant’s conduct was directed at preventing a witness 

from testifying in a state court proceeding and because there 

was no evidence that the defendant contemplated another 

proceeding. 693 F.3d at 379-80. Tyler’s case is no different. 

Similar to Shavers, there was no evidence that Tyler’s 

conduct was directed at preventing Proctor’s testimony at 

anything other than as a witness to a state drug offense at 

Tyler’s brother’s state trial, or that Tyler contemplated a 

federal proceeding. Special Agent Diller conceded at Tyler’s 

trial that at the time of Proctor’s death he had not contacted 

any federal agency to discuss a federal case involving Proctor 

as a federal witness and there was no plan to use her in a 

federal proceeding. Indeed, in considering the appeal of 

Tyler’s co-conspirator, we concluded that “there was no 

federal proceeding contemplated at the time of Proctor’s 

murder.” Bell, 113 F.3d at 1348.

9

Thus, based on our review 

 

9 We also concluded that Diller’s testimony could not 

“be construed to mean that the Task Force had already 

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

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

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

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

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

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

lend itself more obviously to the theory that Bell killed 

Proctor in order to prevent her from testifying a few hours 

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

Bell believed Proctor was going to continue to communicate 

with the Task Force concerning drug crimes that Bell and 
19

of the record, we have uncovered no evidence to satisfy 

Arthur Andersen’s requirement that the Government prove a 

nexus between Tyler’s conduct and a foreseeable particular 

federal proceeding to establish a conviction under 

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

conclude that there is not enough in the record to negate 

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

witness involved in an official proceeding. Accordingly, the 

District Court has jurisdiction to consider Tyler’s § 2241 

petition and provide him with an opportunity to establish his 

actual innocence under the official proceeding provisions.

2. Investigation-Related Communications: 

Reasonable Likelihood Test

Tyler also argues that Fowler has rendered his conduct 

non-criminal under § 1512’s investigation-related 

communication provisions because the Government failed to 

establish that there was a reasonable likelihood that Proctor 

would communicate with federal law enforcement officers. 

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

Tyler in establishing his actual innocence. Because we had 

affirmed Tyler’s conviction based on the sufficiency of the 

evidence, the District Court presumed that the evidence must 

 

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

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

“does not require that the defendant know or intend anything 

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

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

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

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

trial demonstrated Tyler knew Doreen Proctor would be 

testifying against his brother in a federal prosecution.” Id. 
20

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

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

did not consider that our affirmance incorporated our preFowler interpretation of § 1512 that a conviction may be 

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

[Proctor] might communicate would in fact be federal 

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

quotation marks omitted), and not whether a reasonable jury 

could find that the evidence established a reasonable 

likelihood that Proctor would communicate with federal 

officers. 

Our pre-Fowler interpretation of § 1512 comes from 

United States v. Stansfield, where we held that the 

investigation-related communication provision of the witness 

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

defendant believed that the [witness] might communicate 

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

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

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

appropriate evidence.” Id. We found our framework an 

appropriate balance between the requirement that the 

government must prove the “defendant’s specific intent to

hinder a federal investigation” without imposing an 

unnecessary hurdle by proving “the defendant knew the 

federal status of any particular law enforcement officer 

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

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

Tyler did not have a particular federal law enforcement 

officer in mind, then the Government must establish “a 

reasonable likelihood” that had Proctor “communicated with 

law enforcement officers, at least one relevant 
21

communication would have been made to a federal law 

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

Fowler thus calls into question Stansfield’s 

requirement that the government only prove that the 

defendant believe the witness “might” communicate with 

federal law enforcement. First, our use of the term “might” 

permitted a mere possibility rather than a reasonable

likelihood, which fails to comport with the Supreme Court’s 

admonition that a reasonable likelihood requires more than “a 

mere possibility” or “that the likelihood of communication to 

a federal officer was more than remote, outlandish, or simply 

hypothetical.” Fowler, 131 S. Ct. at 2051-52. Worse, that we 

permitted an inference of the element further violated Fowler 

by “transform[ing] a federally oriented statute into a statute 

that would deal with crimes, investigations, and witness 

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

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

necessary for us to revise the elements for a § 1512 

investigation-related communication offense. 

In Stansfield, we held that to establish a conviction 

under the investigation-related communication provision of 

the witness murder section of the VWPA, the government 

must prove:

(1) the defendant killed or attempted to kill a 

person; (2) the defendant was motivated by a 

desire to prevent the communication between 

any person and law enforcement authorities 

concerning the commission or possible 

commission of an offense; (3) that offense was 

actually a federal offense; and (4) the defendant 

believed that the person in (2) above might 

communicate with the federal authorities. 
22

101 F.3d at 918. We now hold that in addition to the first 

three Stansfield elements as applied to the murder or 

intimidation of a witness, the government must establish a 

reasonable likelihood that the person whom the defendant 

believes may communicate with law enforcement would in 

fact make a relevant communication with a federal law 

enforcement officer.10 To establish this reasonable likelihood, 

“there must be evidence—not merely argument” of the 

witness’s cooperation with law enforcement, United States v. 

Lopez, 372 F.3d 86, 92 (2d Cir. 2004) (emphasis omitted), 

vacated on other grounds by 125 S. Ct. 1613. Nevertheless, 

just as Fowler specifically noted that § 1512 reaches conduct 

that occurs before the victim had any communications with 

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

emphasize that “the government need not prove that a federal 

investigation was in progress at the time the defendant 

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

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

Having concluded that the intervening change in law 

again supports Tyler’s claim of actual innocence of violating 

the investigation-related communication provisions, we will 

consider the evidence that the Government presented to 

satisfy the reasonable likelihood test. If the Government 

failed to establish a reasonable likelihood that at least one of 

Proctor’s communications with law enforcement would have 

 

10 Although this panel lacks the authority to overrule 

precedential opinions from a prior panel, we may reevaluate 

our precedent in light of an intervening Supreme Court 

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

n.50 (3d Cir. 2009).
23

been with a federal law enforcement officer, then we must 

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

(noting that it would “leave . . . to the lower courts to 

determine whether, and how, the [reasonable likelihood] 

standard applies”). In this case, the Government introduced 

evidence that Proctor had communicated with Pennsylvania 

Special Agent Diller, that Diller would advise and consult

with the DEA, and that he planned to fully debrief Proctor 

after David Tyler’s trial concluded to determine whether to 

expand the investigation. Yet, in violation of Fowler and 

based on our prior erroneous interpretation of § 1512, the jury 

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

believed [Proctor] might communicate would be in fact 

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

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

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

innocent of violating § 1512’s investigation-related 

communication provisions. 

E. Procedure on Remand

Having concluded that the record supports Tyler’s 

claim of actual innocence on both the official proceedings 

legal theory and the investigation-related communication 

legal theory, we hold that the District Court erred in 

concluding that it lacked jurisdiction to consider Tyler’s § 

2241 petition rather than providing him with an opportunity 

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

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

district court after concluding that petitioner’s § 2241 claim 

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

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

evidentiary hearing, in accordance with Bousley, to allow 

Tyler to prove his claim of actual innocence. Tyler is free to 
24

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

may present additional admissible evidence to refute Tyler’s 

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

If the District Court concludes that Tyler has met his 

burden of establishing his actual innocence as to both 

theories, then it must issue the writ of habeas corpus and 

vacate Tyler’s convictions, pursuant to § 2241. If, however, 

the District Court concludes that Tyler has met his burden of 

establishing his actual innocence based on either the official 

proceeding provisions or the investigation-related 

communication provisions, but not both, then it must fashion 

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

The jury was instructed that the Government could prove its 

case on each of the witness tampering counts based on either 

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

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

prevent the person’s communication to a law enforcement

officer. Because the jury returned a general verdict on both 

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

it based its verdict. 

Generally, when a jury returns a general verdict and 

the evidence is insufficient to support a conviction on one 

legal theory but sufficient to convict on another theory, then 

the reviewing court should let the verdict stand, assuming that 

the jury convicted on the factually sufficient theory. United 

States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002) (citing 

Griffin v. United States, 502 U.S. 46, 49-50 (1991)).

However, when “one of two or more alternative theories 

supporting a count of conviction is either (1) unconstitutional, 

or (2) legally invalid, then the reviewing court should vacate 

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

or unconstitutional theory.” Id. (citing Griffin, 502 U.S. at 
25

56). This is because “a jury is presumed to be able to 

distinguish factually sufficient evidence from factually 

insufficient evidence,” but “is not presumed, however, to be 

able to distinguish accurate statements of law from inaccurate 

statements.” Id. (citing Griffin, 502 U.S. at 59). A legal theory 

is invalid when, as here, “the indictment or the district court’s 

jury instructions are based on an erroneous interpretation of 

law or contain a mistaken description of the law.” Id. at 145. 

Thus, if the District Court concludes that Tyler has failed to 

establish his actual innocence based on one but not both legal 

theories, then it may not let the verdict stand, and instead it 

must order a new trial based only on the legally valid theory. 

IV. CONCLUSION

In light of the foregoing, we remand for further 

proceedings consistent with this opinion. 
1

SHWARTZ, Circuit Judge, dissenting:

The Majority and I agree that if Willie Tyler can meet 

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

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

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

however, because I understand the actual innocence standard 

to require us to consider whether a reasonable, properly 

instructed juror would have convicted Tyler and applying this 

standard to the present record supports a conclusion that Tyler 

has not met the actual innocence standard and that the order 

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

colleagues, I conclude that the general verdict in this case 

does not impact our ability on habeas review to evaluate 

whether a reasonable, properly instructed juror would have 

convicted Tyler.

I.

Under Bousley v. United States, 523 U.S. 614 (1998),

and Schlup v. Delo, 513 U.S. 298 (1995), to demonstrate 

“actual innocence,” a habeas petitioner must show that, in 

light of all the evidence, it is more likely than not that no 

reasonable, properly instructed juror would have convicted 

him.1 Bousley, 523 U.S. at 623; Schlup, 513 U.S. at 327-29. 

 

1

This strict standard is appropriate. The actual 

innocence standard seeks to “balance the societal interests in 

finality . . . and conservation of scarce judicial resources with 

the individual interest in justice that arises in the 

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

balance, the actual innocence standard is therefore 

purposefully “demanding” and was formulated to ensure that 
2

Tyler was convicted of violating the Victim and 

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

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

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

that person from participating in an “official proceeding” or 

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

intent to prevent that person from communicating with a “law 

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

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

requirement under both the official proceeding provisions and 

the law enforcement investigation-related provisions in 

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

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

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

instructed before these cases were decided, the District 

Court’s instructions were based on an interpretation of the 

VWPA that, though correct at the time, was ultimately 

 

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

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

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

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

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

otherwise bars consideration of a petitioner’s claim).

2 Because § 1512 is written in the disjunctive, the 

official proceeding provisions and the law enforcement 

investigation-related provisions are alternative ways of 

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

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

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

creates alternative ways of violating a statute” and that such 

language “created a single offense that may be committed in 

alternative ways”). 
3

rendered erroneous. Accordingly, the jury was instructed 

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

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

a legal theory is invalid where “the indictment or the district 

court’s jury instructions are based on an erroneous 

interpretation of law or contain a mistaken description of the 

law.”). As I understand the Supreme Court’s cases on actual 

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

To apply the actual innocence standard, we must also identify 

the proper instructions for the crime charged and evaluate the 

record in light of these instructions to determine if a 

reasonable, properly instructed juror would have convicted 

Tyler.3 

Because “‘[a]ctual innocence’ means factual 

innocence, not mere legal insufficiency,” a showing that the 

jury was instructed on a legally invalid theory alone does not 

satisfy the actual innocence standard. Bousley, 523 U.S. at 

 

3

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

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

petitioner can establish that no reasonable juror would have 

convicted him by demonstrating an intervening change in law 

that rendered his conduct noncriminal,” Maj. Typescript at 

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

Majority as its analysis does not include consideration of 

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

our case, demonstrates that no reasonable juror could find that 

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

actual innocence claim must apply the holding of the 

intervening Supreme Court decision to the record to 

determine if a reasonable juror applying such law would have 

convicted him. See id. at 192-96.
4

623. Bousley and Schlup require the Court to ask what a

reasonable, properly instructed juror “would do” when 

considering the evidence presented. Schlup, 513 U.S. at 329

(emphasis added); see also Bousley, 523 U.S. at 623. Unlike 

the direct appeal cases on which the Majority relies, Bousley

and Schlup require us to ignore what the improperly 

instructed jury at Tyler’s trial actually did and direct that we 

examine the record under the current law. As a result, legally 

invalid jury instructions given at trial alone cannot render a 

petitioner actually innocent because Bousley and Schlup

require us to review the facts from the perspective of a 

reasonable, properly instructed juror.

4

 

 

4

Several of our sister circuits have held similarly. 

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

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

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

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

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

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

instruction is not sufficient to meet the test for actual 

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

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

court to ‘make a probabilistic determination about what 

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

Schlup, 513 U.S. at 329).

Moreover, at oral argument, both Tyler and the 

Government acknowledged this very point. Oral Arg. at 

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

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

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

13, 2013); Oral Arg. at 32:23-32:34 (“When we come to 
5

In Schlup, the Supreme Court set forth certain 

attributes of such a reasonable juror. First, such a “reasonable 

juror would consider fairly all of the evidence presented.” 

Schlup, 513 U.S. at 329. Second, “such a juror would 

conscientiously obey the instructions of the trial court 

requiring proof beyond a reasonable doubt.” Id. Finally, and 

most importantly here, courts must presume that such a juror 

has been “properly instructed.” Id. A “properly instructed” 

juror is a juror who has been given “completely accurate” 

instructions. See Goldblum v. Klem, 510 F.3d 204, 240 (3d 

Cir. 2007); Davies, 394 F.3d at 196 (reviewing an actual 

innocence claim and considering the perspective of a properly 

instructed juror). Accordingly, if an instruction was 

erroneous when it was given, a court evaluating a claim of

actual innocence must determine whether a correct 

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

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

II.

Under this standard, the analysis is straightforward. 

As the Majority correctly points out, Arthur Andersen and 

Fowler clarified the federal nexus requirement under both the 

official proceeding provisions and the law enforcement

investigation-related provisions. Maj. Typescript at 10-14. 

Thus, under Bousley and Schlup, we must apply the law as it 

currently stands to the record and determine whether “it is 

more likely than not that no reasonable juror would have 

convicted [Tyler].” Bousley, 523 U.S. at 623 (quotation 

marks and citations omitted); see also Ryan, 645 F.3d at 918 

 

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

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

13, 2013).
6

(noting that Bousley requires a court to ask “whether, 

applying current legal standards to the trial record, [a 

petitioner] is entitled to a judgment of acquittal.”). 

To convict on the official proceeding provisions after 

Arthur Andersen, the Government must “prov[e] that the 

defendant contemplated a particular ‘official proceeding’ that 

was foreseeable when he or she engaged in the proscribed 

conduct.” United States v. Shavers, 693 F.3d 363, 378 (3d 

Cir. 2012). Here, I agree with the Majority, and every court 

that has reviewed the facts surrounding Proctor’s murder, that

there is a total absence of proof of an “official proceeding,” as 

defined by the statute, of any kind, whether particular, 

foreseeable, or otherwise. Maj. Typescript at 16-19; see also

United States v. Bell, 113 F.3d 1345, 1348 (3d Cir. 1997) 

(noting, on the appeal of Tyler’s co-defendant, that “there was 

no federal proceeding contemplated at the time of Proctor’s 

murder”); United States v. Tyler, Crim. No. 96-106, 2012 WL 

951479, at *5 (M.D. Pa. Mar. 20, 2012) (“There was no 

evidence presented to show that a federal proceeding had 

been instituted, about to be instituted, or even contemplated at 

the time that Proctor was murdered.”). As a result, under the 

law both before and after Arthur Andersen, a reasonable juror 

could not find that Tyler engaged in tampering activity with 

the intent to interfere with an official proceeding as defined 

under the VWPA.5

 

5 While the Majority ostensibly remands to the District 

Court to conduct an evidentiary hearing, the directions the 

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

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

because the Majority instructs the District Court to vacate the 

jury’s verdict if Tyler can establish his actual innocence on 
7

This is not the case, however, for the law enforcement

investigation-related provisions. To convict a defendant 

under these provisions, the Government must prove that the 

defendant tampered with a witness to interfere with a 

communication from that witness to a law enforcement 

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

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

communicated with law enforcement officers, at least one 

relevant communication would have been made to a federal 

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

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

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

authorized to act for or on behalf of the Federal Government 

or serving the Federal Government as an adviser or consultant

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

prevention, detection, investigation, or prosecution of an 

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

need not prove that the defendant knew that the law 

enforcement officer was federal or acting as an advisor or 

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

1512(g)(2).

The record shows that a reasonable juror could have 

found that it was publicly known that Proctor had been 

cooperating with law enforcement and that it was reasonably 

likely, based upon the type of information she had and with 

 

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

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

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

Government can produce new evidence of an official 

proceeding on remand, the Majority’s instructions to the 

District Court would likely require vacatur on this ground.
8

whom she was speaking, that Proctor would have 

communicated with federal officers. According to the trial 

record, Proctor was an informant for the Tri-County Drug 

Task Force (the “Task Force”), which was comprised of state 

and local law enforcement officers. Richard Diller, an agent 

with the Pennsylvania Office of Attorney General, Bureau of 

Narcotics Investigation, was the Task Force coordinator. 

Diller worked closely with, and referred cases to, federal 

agencies, including the Drug Enforcement Administration 

(“DEA”). Diller regularly advised and consulted with the 

DEA, determined whether a case should be brought to federal 

law enforcement, and, although not formally deputized, was 

authorized to develop cases on behalf of the DEA. 

When Proctor was murdered, she was an informant for 

David Fones, a local narcotics detective who worked with the 

Task Force. Sometime before her murder, Proctor provided

Fones with information concerning David Tyler’s source for 

cocaine in New York City and his ties to Jamaican drug 

distributors. According to Fones, the Task Force protocol 

required Diller to evaluate information Proctor provided to 

determine if it could be used in other investigations, and, to 

this end, Fones testified that he would have met with Diller to 

discuss a further role for Proctor. Although Diller was not 

aware of Proctor’s statements to Fones before her death, 

Diller testified that Proctor’s statements to Fones would have 

been significant in deciding whether Proctor would have been 

a federal witness, and that he intended to refer Proctor to the 

DEA as a witness. DEA Special Agent Keith Humphreys 

testified that, had he been provided with Proctor’s statements 

to Fones, the DEA would have been interested in pursuing 

this information and Proctor would have likely been a DEA 

witness. Based on this record, and as this Court has already 
9

concluded, United States v. Tyler, 281 F.3d 84, 99 (3d Cir. 

2002), a reasonable juror could find that Diller was a federal 

“law enforcement officer” for purposes of the VWPA, who

advised and consulted with the DEA on a regular basis, 

frequently referred cases from the Task Force to federal law 

enforcement agencies, including the DEA, was the intended 

recipient of drug trafficking information from Proctor 

concerning multistate and multinational drug dealers, and 

intended to refer Proctor to the DEA. Accordingly, a 

reasonable juror, properly instructed in accordance with

Fowler, could find that Proctor would have communicated 

with law enforcement about drug trafficking and that there 

was a reasonable likelihood that one of these communications 

would have been made to a federal law enforcement officer. 

Because the record belies Tyler’s claim of actual innocence, I 

would affirm the District Court’s order dismissing Tyler’s 

petition for lack of jurisdiction.

III.

The fact that the jury returned a general verdict does 

not impact our ability to evaluate Tyler’s actual innocence 

claim. First, the general verdict precedents upon which the 

Majority relies, Griffin v. United States, 502 U.S. 46 (1991), 

and Syme, 276 F.3d 131, are direct appeal cases that apply a 

different and less demanding standard. As direct appeal 

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

Under the “actual innocence” standard applicable at this 

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

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

Applying the perspective set forth under Griffin and Syme

both ignores the actual innocence standard and effectively 

lessens the burden Tyler must carry to invoke § 2255(e)’s 
10

safety valve,

6

upsetting the balance the Supreme Court 

carefully struck when it formulated the demanding actual 

innocence standard. 

Second, even assuming Griffin and Syme apply, they 

do not require a different result. Griffin states that if the 

record shows that there is sufficient evidence to support one 

theory but insufficient evidence to support another, then the 

jury is presumed to have convicted on the theory that the 

evidence supports. Griffin, 502 U.S. at 59-60. Here, there 

was no evidence of an official proceeding and thus a 

reasonable juror’s verdict would not have been based upon 

this theory. This leaves one other basis, the law enforcement 

investigation-related provisions, for a reasonable juror to have 

returned a guilty verdict. While the verdict was based on an

improper jury instruction, the actual innocence standard 

requires that we examine the record in light of a proper 

instruction.

7

 As set forth above, there is sufficient evidence 

 

6

Further, the Majority’s application of Griffin and 

Syme here appears even more relaxed than it would be on 

direct appeal. Indeed, in general verdict cases on direct 

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

theory, the verdict need not be vacated if the instructional 

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

2896, 2934 (2010). 

7

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

more alternative theories supporting a count of conviction is . 

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

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

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

omitted), but the delivery of erroneous jury instructions alone 
11

from which such a reasonable, properly instructed juror could 

have returned a guilty verdict. Because Tyler cannot 

demonstrate that he is actually innocent on both theories of 

guilt,8he cannot satisfy the actual innocence test and thus, I 

would conclude that the District Court properly dismissed his 

petition. 

For these reasons, I respectfully dissent. 

 

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

4.

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

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

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

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

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

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

2255, invoking the actual innocence exception to the 

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

majority found that the record supported the petitioner’s 

actual innocence claim only after reviewing the evidence on 

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

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

actually innocent of a criminal statute with alternative means 

of committing an offense, such a petitioner must be actually 

innocent under each of the alternative theories. The Garth

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

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

actually innocent of all four alternative theories in order to be 

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

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

the theories).