United States v. Tyler, 041420 FED3, 17-2613

Docket Nº:17-2613, 18-1319
Opinion Judge:SHWARTZ, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Appellant in No. 18-1319 v. WILLIE TYLER, Appellant in No. 17-2613
Attorney:Stephen R. Cerutti, II Carlo D. Marchioli [ARGUED] Office of the United States Attorney Counsel for United States of America Ronald A. Krauss Quin M. Sorenson [ARGUED] Office of the Federal Public Defender Counsel for Willie Tyler
Judge Panel:Before: SHWARTZ, SCIRICA, and RENDELL, Circuit Judges RENDELL, Circuit Judge, concurring in part and dissenting in part:
Case Date:April 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA, Appellant in No. 18-1319

v.

WILLIE TYLER, Appellant in No. 17-2613

Nos. 17-2613, 18-1319

United States Court of Appeals, Third Circuit

April 14, 2020

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) February 4, 2020

Argued February 4, 2020

Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 1-96-cr-00106-001) District Judge: Hon. John E. Jones, III

Stephen R. Cerutti, II Carlo D. Marchioli [ARGUED] Office of the United States Attorney Counsel for United States of America

Ronald A. Krauss Quin M. Sorenson [ARGUED] Office of the Federal Public Defender Counsel for Willie Tyler

Before: SHWARTZ, SCIRICA, and RENDELL, Circuit Judges

OPINION

SHWARTZ, Circuit Judge.

Doreen Proctor reported drug activity in her neighborhood and decided to cooperate with law enforcement. She was murdered. Willie Tyler was charged in state court with her murder. He was acquitted.

A federal grand jury thereafter charged Tyler with, among other things, witness tampering by murder, in violation of 18 U.S.C. § 1512(a)(1)(C), 1 and witness tampering by intimidation, in violation of 18 U.S.C. § 1512(b)(3).2 Tyler has been tried three times on these charges.3 Each jury returned a guilty verdict. The first two verdicts were overturned due to legal errors. The District Court set aside the third jury's guilty verdict pursuant to Federal Rule of Criminal Procedure 29, concluding that there was insufficient evidence for a reasonable juror to conclude that Tyler had the intent to murder or intimidate Proctor to prevent her from communicating with a qualifying officer.

Because (1) the District Court erred in ruling that Fowler v. United States, 563 U.S. 668 (2011), applies only to situations where a defendant does not know the identity of a specific law enforcement officer to whom the witness would have communicated; and (2) there was sufficient evidence upon which a rational juror could conclude that (a) Tyler acted with intent to prevent Proctor from communicating with law enforcement, and (b) there was a "reasonable likelihood" that she would have communicated with a qualifying law enforcement officer had she not been murdered, we will reverse and direct the District Court to reinstate the verdict and proceed to sentencing.

I

A

Proctor was a confidential informant for the Tri County Task Force ("Task Force"), which focused on drug crimes and was staffed with law enforcement officers from Pennsylvania's Cumberland, York, and Perry Counties. Agent Ronald Diller of the Pennsylvania Attorney General's Office coordinated the Task Force's activities. Detective David Fones, a Carlisle Police Officer, was a Task Force member.

The Task Force frequently worked with federal agencies, including the Drug Enforcement Administration ("DEA"). Agent Diller met with the DEA multiple times a month, or more frequently as needed, to discuss the DEA's interest in the Task Force's cases. If the DEA adopted a Task Force case, Agent Diller often became a co-case agent and had been deputized to handle specific cases. In any given year, Agent Diller referred between five and ten cases to the DEA.

DEA Special Agent David Keith Humphreys was the DEA's liaison to the Task Force and had regular contact with Agent Diller. Special Agent Humphreys testified that if Agent Diller approached him with information from a confidential informant, it "would be required almost" for Special Agent Humphreys to interview that informant. App. 670.

From 1984 to 1996, 65% of the 246 investigations that the Harrisburg, Pennsylvania DEA office initiated were jointly worked with state and local law enforcement.

B

In 1990, Proctor called a drug hotline in Carlisle, Pennsylvania to express concern about drug trafficking in her neighborhood. After speaking with Detective Fones, Proctor began working as a confidential informant for the Task Force. As a confidential informant, Proctor provided information, made controlled purchases, and testified in court. Specifically, Proctor made three controlled purchases of cocaine in Carlisle, leading to the arrests of four individuals, including David Tyler ("David T."), Tyler's brother, and Mary Jane Hodge, a woman with whom Tyler and his brother resided. All four were charged in state court, and Proctor testified at their preliminary hearings. Proctor also testified at Hodge's state jury trial. At Hodge's January 1992 trial, Proctor testified that she was "out of this business now," App. 118, which meant that she was no longer making covert drug purchases.

Proctor nonetheless continued to provide information about illegal drug activity to Detective Fones and Agent Diller. Among other things, over the course of the investigation, Proctor told Detective Fones that David T.'s cocaine supplier was in New York City and that David T. made trips to Jamaica. Detective Fones relayed this out-of-state drug activity to Agent Diller so that they could determine how to proceed.4 This information, however, was not conveyed to the DEA before Proctor's death, and Special Agent Humphreys had not heard Proctor's name before her murder.

C

Proctor was murdered in the early morning hours of April 21, 1992, the day she was scheduled to testify at David T.'s trial.5 The following events preceded her murder. On the day before Proctor was set to testify, Tyler was driving with David T. and Gwanda Campbell, a friend of Hodge's. Campbell testified that she knew Tyler because she "used to get high with him." App. 484. While they were driving, Tyler and David T. spotted Proctor and said that they "were going to do something to her then, but there were too many cars." App. 490. Campbell, Tyler, and David T. then drove to Hodge's house, where David T. and Tyler were living. There, David T. retrieved a gun and Tyler showed him how to cock it.

Early the next morning, Roberta Bell (David T.'s girlfriend) lured Proctor from her house by offering her cocaine. Eventually, Bell convinced Proctor to take a ride in Bell's car. David T. and Tyler were in a separate car. Bell and Tyler eventually pulled their cars over, and Bell exited her car, approached the Tylers, and told them, "I have her." App. 719. In a 1993 letter Tyler wrote, Tyler stated that he asked David T. what was going on, and David T. told Tyler that Bell "had a surprise for him." App. 719. Tyler claims that he then "hear[d] a shot." App. 719.

Proctor's body was found on the side of a rural road. She had been beaten, shot in the chest, and then shot in the head while on the ground. After the murder, Tyler returned to Hodge's house and said, "[t]he bitch is gone" or "she's gone." App. 507, 514. Later that morning, David T. came to the house dressed for court and said, "I'll be at court and that bitch won't." App. 507.

Laura Barrett, who stayed with Bell's children while Bell was with the Tylers the night of the murder, said that Bell returned home carrying bloody clothes and told Barrett that, if anyone asked, Barrett should say Bell was home all night. Barrett testified that sometime later, Tyler, Bell, and David T. were at Bell's house arguing about drugs. She heard the three of them discussing that David T. gave Tyler drugs that were supposed to be given to Jerome King, Bell's uncle. During this argument, Barrett heard Bell say to Tyler that she (Bell) shot Proctor, but that "you killed her." App. 935. Tyler responded "You don't know who's listening. You don't know who hears this." App. 935. Tyler then said, "I'm leaving," and left. App. 935.6 Hodge testified that Proctor was killed because she was set to testify against David T.

D

Based upon this evidence, the jury found Tyler guilty on both witness tampering counts.7 The District Court granted Tyler's post-trial motion for judgment of acquittal under Rule 29. The Court held that: (1) the evidence supported a finding that Tyler was guilty of murder under accomplice liability, United States v. Tyler, Case No. 1:96-cr-106, 2018 WL 10322201, at *6-7 (M.D. Pa. Feb. 14, 2018); (2) the evidence supported a finding that Proctor was murdered to prevent her from testifying at David T.'s trial but did not support a finding that Tyler acted with intent to prevent an investigation-related communication, id. at *10; (3) although the evidence supported a finding that any communication concerned the possible commission of a federal offense, id. at *11, the "reasonable likelihood" standard set forth in Fowler, 563 U.S. at 677, for determining whether such a communication would be made to a federal officer did not apply because it was known that Proctor served as an informant for Detective Fones, so any act of witness intimidation was directed at preventing a communication to a specific known person, Tyler, 2018 WL 10322201, at *13-14, and the

Fowler standard only applies when the defendant did not have in mind "some specific law enforcement officer or set of officers," id. at *12 (emphasis omitted), with whom the witness would communicate; and (4) the Government did not introduce any evidence from which a rational trier of fact could conclude that Detective Fones was a federal law enforcement officer, id. at *14.

The Government appeals the District Court's Rule 29 order.

II8

A

We exercise plenary review over the District Court's order granting a motion for judgment of acquittal based on the sufficiency of the evidence, United States v. Willis, 844 F.3d 155, 164 n.21 (3d Cir. 2016), and apply the same standard as the district court, United States v. Freeman, 763 F.3d 322, 343 (3d Cir. 2014). This standard requires that we view the evidence "in the light most favorable to the prosecution" to determine whether a "rational trier of fact could have found the essential elements of...

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