UNITED STATES of America v. Willie TYLER, Appellant, 732 F.3d 241

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 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 Foivler 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. In 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. 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 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 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 non-local 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 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. In December 2009, Tyler filed a pro se motion, arguing that Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005), had rendered his conduct non-criminal. The Supreme Court had held in Arthur Andersen 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. 544 U.S. at 707-08, 125 S.Ct. 2129. While his motion was pending, the Supreme Court decided Fowler v. United States, — U.S. -, 131 S.Ct. 2045, 2052, 179 L.Ed.2d 1099 (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. ANALYSIS 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. §

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 Dorsainvil, 119 F.3d 245, 249 (3d Cir.1997); see also United States v. Hayman, 342 U.S. 205, 213-14, 72 S.Ct. 263, 96 L.Ed. 232 (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 noncriminal 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, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)). A petitioner can 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, 118 S.Ct. 1604).

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— (

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 (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 provision and an investigation-related communication provision (Count 2). He was also convicted of tampering with a witness by intimidation and threats in violation of two official proceeding provisions and an investigation-related communication provision (Count 3). 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, — U.S. —, 133 S.Ct. 2877, 186 L.Ed.2d 902 (2013). 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, 125 S.Ct. 2129. 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, 125 S.Ct. 2129. “[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 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 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 “[Consistency demanded] 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. 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-CR-106, 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 ArtI J,r 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 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, 125 S.Ct. 2129. 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 — U.S. —, 133 S.Ct. 71, 183 L.Ed.2d 708 (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.

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. Thus, based on our review 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 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 pr e-Fowler

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 pr e-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 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 “transforming] 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)"'$e defendant believed that the person in (2) above might communicate with the federal authorities. 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. 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 544 U.S. 902, 125 S.Ct. 1613, 161 L.Ed.2d 273. 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 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 DÉA, 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 “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, 112 S.Ct. 466, 116 L.Ed.2d 371 (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 56, 112 S.Ct. 466).

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, 112 S.Ct. 466). 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. IY. CONCLUSION In light of the foregoing, we remand for further proceedings consistent with this opinion. . We will refer to Willie Tyler as "Tyler” and David Tyler as "David.” .

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 Fed.Appx. 173, 177 (3d Cir.2006). . 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. . 18 U.S.C. § 1512(a)(1)(A). . 18 U.S.C. § 1512(a)(1)(C). . 18 U.S.C. § 1512(b)(1) and (b)(2). . 18 U.S.C. § 1512(b)(3). . Our judgment in Shavers was subsequently vacated by the Supreme Court in light of Alleyne v. United States, - U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (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. . 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 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. . 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).