Absent Federal Interest, Witness Intimidation Charges Cannot Stand/ Use of 42 U.S.C. §2241 to Attack Federal Convictions/ Remedies For Defendants Who Prove That Caselaw Their Actions Are No Longer Unlawful
In United States v. Willie Tyler, No. 12-1275 (3d Cir, October 3, 2013), the Third Circuit applying recent decisions of the United States Supreme Court, remanded a case challenging a 1995 conviction for witness tampering for a determination if the defendant should receive a new trial or be discharged.
Willie Tyler, his brother, David Tyler, and Roberta Bell were implicated in the 1992 murder of a witness against David in an Adams County, PA drug crime trial. The witness, who had made controlled buys from David, was found shot dead on the day she was to testify against him. The brothers and Bell were subsequently tried for murder in state court, with Willie being convicted of witness intimidation, David convicted of murder, and Bell acquitted of all charges. In 1995, the federal government charged her with witness tampering and intimidation, and she was convicted and sentenced to life imprisonment. When Willie was released from prison in 1996, he was similarly charged and convicted.
The witness had been cooperating with a tri-county task force as well as a local police force. At the time of her death she was no longer engaged in undercover operations, but she had been giving state and local authorities information about ongoing illegal drug activities. While the witness knew of David Tyler’s interstate and international drug activities, local authorities had planned to debrief her on her complete knowledge of his activities, and her information might have led to an investigation that involved federal authorities. There was no evidence that she been assisting in any other federal investigation or prosecution.
Willie Tyler (hereinafter “Tyler”) was convicted of witness tampering and intimidation in 1996, and after a direct appeal resulted in a new trial, convicted of witness tampering by murder and by intimidation in violation of 18 U.S.C. §1512. Several challenges, both on direct appeal and collateral attack, followed, none of them disturbing the conviction. In December, 2009, he filed a pro se petition attacking his conviction on the ground that the Supreme Court’s decision in Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) rendered his conduct non-criminal. That case held that that certain “official proceeding” provisions of §1512’s witness 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. While that petition 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. The District Court treated Tyler’s petition as if filed under 42 U.S.C. §2241. It dismissed the petition, and he appealed.
The Court began by discussing the applicability and availability of §2241 in this case. Since the enactment of 42 U.S.C. §2255, there has been little call for §2242 in the federal courts, but it remains available for limited cases where §2255 is inadequate or ineffective. Since the Third Circuit has “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,” §2241 was available in this case. To support a claim that under the new caselaw he is actually innocent, a defendant must show that in light of all of the evidence, it is more likely than not that no reasonable juror would convict him. The Court then went on to discuss, in light of the superceding Supreme Court cases, whether the evidence supported Tyler’s conviction.
First, the Court considered whether Tyler’s conviction for tampering with a witness could be sustained under §1521’s prohibition on killing a person who prevents the attendance, testimony or other participation of a person in an official proceeding— the “certain “official proceeding” provisions of §1512. Arthur Anderson required that there be a nexus between the defendant’s conduct and a foreseeable particular proceeding. A defendant who lacks knowledge that his actions will affect a foreseeable federal proceeding lacks intent to obstruct it. In this case, there was no evidence that there was a foreseeable federal proceeding. Federal authorities had not even been contacted about Tyler in connection with anything the murdered witness had been doing. A post-Anderson case, United States v. Shavers, 693 F.3d 363 (3d Cir. 2012), vacated on other grounds (i.e., sentencing grounds announced in Alleyne v. United States, 133 S. Ct. 2151 (2013)) by Shavers v. United States, 133 S. Ct. 2877 (2013), decided after the district court’s dismissal of Tyler’s §2241 petition, 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.” The Government did not prove that against Tyler, so the Third Circuit directed the district court to provide Tyler with an opportunity to establish his actual innocence of charges he interfered with an official proceeding.
The Court next discussed Tyler’s conviction for tampering with a witness who foreseeably would have communicated with federal law enforcement officers— “investigation-related communication” provision of §1512. The Court did not see such proof in the record before it. The Government had not established a reasonable likelihood that the witness had communicated with or was likely to communicate with Government officers. All it established was that the witness had communicated with a state law enforcement officer, who in turn was going to further debrief her and then determine whether he would contact federal authorities. The jury that convicted Tyler was told that to convict him it only had to find that the state official might contact federal officials— under Fowler, that was not enough.
Finally, the Court remanded the case with directions to the district court. On remand, the district court is to hold an evidentiary hearing at which Tyler can prove his innocence. If he wants, he can rest on the record, and the Government can present additional evidence to prove Tyler’s guilt under Arthur Anderson and Fowler. If Tyler establishes his innocence on both prongs of §1512, his conviction is to be vacated and he is to be discharged. If the district court concludes that Tyler established his innocence on either the official proceeding provisions or investigation related communication provisions, but not both, in light of the jury’s general verdict, it has to conduct a new trial based only on the legally valid theory still standing against Tyler.