The opinion of the court was delivered by: William W. Caldwell United States District Judge
Willie Tyler ("Tyler" or "Defendant"), is serving a life sentence on an August 2000 obstruction-of-justice conviction for tampering with a witness by murder. He was also convicted of obstructing justice by tampering with a witness by intimidation and threats. He has on several occasions sought collateral relief from the convictions, including the filing of a motion under 28 U.S.C. § 2255. His most recent effort began with two pro se motions.
In the first motion (Doc. 310), he argues that Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), rendered insufficient the evidence to convict him in light of the federal "nexus" standard the Court employed for the obstruction-of-justice offense at issue there. In the second motion (Doc. 312), relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and its progeny, he argues that the sentence of life imprisonment is unconstitutional because it is based on a finding of premeditation made by the court at sentencing rather than by the jury. Defendant invokes Fed. R. Civ. P. 60(b) and the All Writs Act, 28 U.S.C. § 1651, as authority for filing both motions.
Our review of the Arthur Andersen claim indicated that Defendant might be able to pursue it by way of 28 U.S.C. § 2241 because Defendant was essentially arguing that Arthur Andersen establishes that he was convicted for conduct that was not criminal. We appointed the Federal Public Defender to represent Tyler on this claim and to supplement his arguments.
During the course of the briefing on the Arthur Andersen claim, Defendant's counsel suggested that the Supreme Court's then upcoming decision in Fowler v. United States, U.S. , 131 S.Ct. 2045, 179 L.Ed.2d 1099 (2011), would also be relevant to whether the government had established a nexus sufficient to support his two obstruction-of-justice convictions. We agreed to consider Fowler, and the parties briefed the relevance of Fowler after the case was decided by the Supreme Court.
The issues have been forcefully and comprehensively argued on both sides. With the benefit of those arguments, we conclude as follows. The only way we can exercise jurisdiction over Defendant's first motion is under 28 U.S.C. § 2241. To establish jurisdiction, Defendant would have to show that either Arthur Andersen or Fowler decriminalized the conduct upon which his convictions were based. Defendant asserts that they do because they show that the evidence the government relied on to establish a federal nexus was insufficient. However, we believe that neither of these cases does that. We must therefore dismiss the first motion for lack of jurisdiction.
Defendant's second motion must also be dismissed, also for lack of jurisdiction. This motion presents a challenge to Defendant's sentence, which makes it a 2255 motion, but because Defendant has already had a 2255 motion adjudicated, we lack jurisdiction to entertain this second 2255 motion without the Third Circuit's prior approval, 28 U.S.C. § 2255(h), which Defendant did not obtain. In any event, the Third Circuit already rejected the argument on Defendant's appeal of our denial of his 2255 motion.
On April 21, 1992, Doreen Proctor was murdered in Adams County,
Pennsylvania. "Proctor's severely beaten, lifeless body was found alongside a country road" the day she was murdered. United States v. Tyler, 281 F.3d 84, 88 (3d Cir. 2002). Proctor was to be a witness later that day in a state-court drug trial against David Tyler, Defendant's brother. In July 1992, Defendant was arrested and charged under state law with Proctor's murder. Others charged and arrested were David Tyler, Roberta Ronique Bell, Jerome King, David King and Mary Hodge.
Tyler was tried in Adams County for criminal homicide and lesser charges. In May 1993, he was found not guilty of criminal homicide but guilty of conspiracy to intimidate a witness. He received two to four years in prison. In state court, David Tyler was found guilty of murder, and Bell was acquitted of all charges but, like Tyler, Bell was later convicted in federal court of tampering with a witness by murder and tampering with a witness by intimidation and threats. See United States v. Bell, 113 F.3d 1345 (3d Cir. 1997)(affirming Bell's conviction).
Defendant served his state time, but on April 16, 1996, a federal grand jury handed up a four-count indictment. At issue here are the offenses charged in Count II, tampering with a witness by murder in violation of 18 U.S.C. § 1512(a)(1)(A) and (C), and Count III, tampering with a witness by intimidation and threats in violation of 18 U.S.C. § 1512(b)(1), (b)(2)(D) and (b)(3).*fn1 At the time of the offense, in pertinent part, 18 U.S.C. § 1512(a)(1), dealing with tampering with a witness by murder, provided criminal sanctions for:
(a)(1) Whoever kills or attempts to kill another person, with intent to--
(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 . . . of the United States of information relating to the commission or possible commission of a Federal offense . . .
In pertinent part, 18 U.S.C. § 1512(b), dealing with tampering with a witness by intimidation and threats, provided criminal sanctions for:
(b) Whoever knowingly uses intimidation or physical force, threatens . . . 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-- . . . .
(D) be absent from an official proceeding to which such person has been summoned by legal process; or
(3) hinder, delay, or prevent the communication to a law enforcement officer . . . of the United States of information relating to the commission or possible commission of a Federal offense . . .
In pertinent part, Count II charged Tyler with knowingly killing Doreen Proctor on or about April 21, 1992, to prevent her attendance at any future criminal proceedings brought by the Tri-County Drug Task Force (a violation of section 1512(a)(1)(A)) and to prevent her from making a communication to a law enforcement officer of information relating to the possible commission of a federal offense, the distribution of cocaine or the possession with intent to distribute cocaine (a violation of section 1512(a)(1)(C)).
In pertinent part, Count III charged Tyler with intimidating Proctor, using physical force against her and threatening her, all done knowingly to prevent her attendance at any future criminal proceedings brought by the Tri-County Drug Task Force (a violation of section 1512(b)(1)), to cause her to be absent from any future criminal proceedings brought by the Tri-County Drug Task Force (a violation of section 1512(b)(2)(D)) and to prevent her from making a communication to a law enforcement officer of information relating to the possible commission of a federal offense, the distribution of cocaine or the possession with intent to distribute cocaine (a violation of section 1512(b)(3)).
An "official proceeding" is "a proceeding before a judge or court of the United States." 18 U.S.C. § 1515(a)(1)(A). 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 . . . ." Id. § 1515(a)(4)(A). The official proceeding did not have to "be pending or about to be instituted at the time of the offense." Id. § 1512(f)(1)(formerly codified at subsection (e)(1)). Nor did the government have to prove that the defendant knew that the official proceeding was a federal one or that the law enforcement officer was a federal one or acting as an advisor or consultant to the federal government. Id. § 1512(g)(1) and (2)(formerly codified at subsections (f)(1) and (2)).
In his first trial, Tyler was found guilty on all counts.*fn2
In his second trial, in August 2000, the jury acquitted him
of the conspiracy charge but found him guilty of the other charges. In
January 2001, we sentenced him to life in prison on count II
concluding at the sentencing hearing that the guideline section
applicable to the offense was U.S.S.G. § 2A1.1, first-degree murder.
We also sentenced him to a concurrent sentence of ten years on count
III and a sentence of five years on count IV to run consecutively to
the sentence on count III.
The following evidence at the second trial is pertinent to Defendant's claim that no federal nexus was proven. The Tri-County Drug Task Force was composed of Cumberland, Perry and York Counties. (Doc. 337-1, trial transcript, CM/ECF p. 5).*fn3
Ronald Diller, employed by the Pennsylvania Office of Attorney General, Bureau of Narcotics Investigation (BNI), was the Task Force's coordinator. (Id.). As its coordinator, Diller was responsible for developing the local and state-level cases up to the national level. (Doc. 337-3, CM/ECF p. 53). Diller would meet with the local officers and review their cases for "potential multi-jurisdictional involvement." (Doc. 337-1, CM/ECF p. 7). Diller testified that when it appeared that a case would go multi-jurisdictional, he would make the appropriate contacts with the DEA, the FBI and the IRS. (Id., CM/ECF p. 6). Diller's practice was to review the evidence with the local investigator, debrief the witness, and, if the evidence so indicated, bring in federal investigators for the follow-up investigation. (Id., CM/ECF pp. 12-13).
Diller acted as an adviser and consultant with the DEA. (Doc. 337-1, CM/ECF pp. 6; Doc. 337-3, CM/ECF p. 43). Between three and five cases are referred annually from the Tri-County Drug Task Force to DEA for prosecution. (Doc. 337-1, CM/ECF p. 8). According to a DEA agent, the DEA regularly adopted cases from state and local task forces, including the Tri-County Drug Task Force. (Doc. 337-3, CM/ECF pp. 56-57). The agent also testified that of the 246 DEA cases initiated in the Middle District of Pennsylvania between 1984 and 1996, 159 (65 percent) of those cases were worked jointly with state and local task forces. (Id., CM/ECF pp. 59-60).
At the time of her death, Doreen Proctor was an informant for David Fones, a narcotics detective for the Borough of Carlisle Police Department who was also working with the Tri-County Drug Task Force. (Doc. 337-3, CM/ECF pp. 2, 5).*fn4
According to Fones, Proctor was providing him with information about "individuals she knew in Harrisburg." She also supplied him with information about David Tyler's source for cocaine in New York City and about David Tyler's ties to "various Jamaicans in the Carlisle and Adams County area and said that [David Tyler] also went to Jamaica himself." (Id., CM/ECF pp. 8-9). Fones testified that the next step was evaluation of the information Proctor had provided to see if further investigation was warranted, and this was Diller's duty. (Id., CM/ECF p. 9).
According to Fones, Diller was aware of Doreen Proctor; he had worked with her, being present when she made some controlled buys in Carlisle and on one occasion had placed a body wire on her. (Id., CM/ECF p. 10). Detective Fones testified that he would have met ...