                                   PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
            ______________

            Nos. 17-2613 & 18-1319
               ______________

       UNITED STATES OF AMERICA,
                    Appellant in No. 18-1319

                       v.

               WILLIE TYLER,
                      Appellant in No. 17-2613

                ______________

  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
                ______________

              Appeal No. 17-2613
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
               February 4, 2020

              Appeal No. 18-1319
            Argued February 4, 2020
             _________________
      Before: SHWARTZ, SCIRICA, and RENDELL,
                   Circuit Judges.

                   (Filed: April 14, 2020)
                      ______________

                        OPINION
                     ______________


Stephen R. Cerutti, II
Carlo D. Marchioli [ARGUED]
Office of the United States Attorney
228 Walnut Street, P.O. Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

      Counsel for United States of America

Ronald A. Krauss
Quin M. Sorenson [ARGUED]
Office of the Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101

      Counsel for Willie Tyler


SHWARTZ, Circuit Judge.

      Doreen Proctor reported drug activity in her
neighborhood and decided to cooperate with law enforcement.




                             2
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

       1
         Section 1512(a)(1)(C) makes it a crime to “kill[] or
attempt[] to kill another person, with intent to . . . prevent the
communication by any person to a law enforcement officer . . .
of information relating to the commission or possible
commission of a Federal offense.”
       2
         Section 1512(b)(3) makes it a crime to “knowingly
use[] intimidation, threaten[], or corruptly persuade[] another
person, or attempt[] to do so, or engage[] in misleading conduct
toward another person, with intent to . . . hinder, delay, or
prevent the communication to a law enforcement officer . . . of
information relating to the commission or possible commission
of a Federal offense.”
       3
         Tyler’s first conviction was vacated on constitutional
grounds. See United States v. Tyler (Tyler I), 164 F.3d 150,
151 (3d Cir. 1998); United States v. Tyler, No. 1:CR-96-106,
2000 U.S. Dist. LEXIS 21891 (M.D. Pa. Feb. 10, 2000). He
was retried and convicted of two counts of witness tampering
by murder and intimidation and one count of using and
carrying a firearm in furtherance of a crime of violence, in
violation of 18 U.S.C. § 924(c), and we affirmed the
convictions on direct appeal. United States v. Tyler (Tyler II),
281 F.3d 84, 89, 101 (3d Cir. 2002). Tyler collaterally attacked
this second jury’s witness tampering verdicts based upon a
change in the law, and we directed the District Court to hold a
hearing on whether Tyler was now actually innocent of these




                                3
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.



crimes. United States v. Tyler (Tyler III), 732 F.3d 241, 243,
252-53 (3d Cir. 2013). On remand, the District Court held that
Tyler had established actual innocence of witness tampering
with intent to interfere with an official proceeding but not of
witness tampering with intent to prevent communication with
a law enforcement officer. United States v. Tyler, 35 F. Supp.
3d 650, 653-54 (M.D. Pa. 2014). Based upon this ruling, and
consistent with our instructions, see Tyler III, 732 F.3d at 253,
the District Court conducted a third trial on the witness
tampering to prevent a law enforcement communication
charges.




                                4
                              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.




                              5
                                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


       4
        Agent Diller had frequent contact with Proctor. He
met with her ten to fifteen times and used the information that
she provided to obtain permission to record her interactions
with suspected drug dealers. Agent Diller was also present for
her controlled purchases, and debriefed her before and after
each controlled buy, in part to determine whether she had




                                6
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.


obtained information concerning the sources of the drugs she
purchased.
       5
         Proctor was also scheduled to testify at two other trials.




                                7
       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.




       6
         Ola Woods, the mother of David T.’s children, said
that sometime after the murder, Bell asked her to tell David T.
that “[Bell] and her uncles,” David and Jerome King, who were
also present at Proctor’s murder, “have their story together, and
if worst comes to worst, to put it on Little Man,” a reference to
Tyler. App. 660.




                               8
                               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

       7
         Because we vacated, and Tyler was only retried on, the
witness tampering counts, his conviction following the second
trial for using and carrying a firearm during a crime of
violence, 18 U.S.C. § 924(c), was left undisturbed. Tyler has
cross-appealed his conviction for that crime, contending that
his conviction under § 924(c) following his second trial should
be reversed because the Rule 29 order overturned the predicate
crime of violence in which he allegedly used a firearm. We
will discuss the merits of that appeal infra note 17.




                               9
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 the crime[s] beyond a reasonable doubt.”
Jackson v. Virginia, 443 U.S. 307, 319 (1979). This review is
“highly deferential” to the factual findings of the jury, and we
“must be ever vigilant . . . not to usurp the role of the jury by
weighing credibility and assigning weight to the evidence, or
by substituting [our] judgment for that of the jury.” United
States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir.




         8
         The District Court had jurisdiction under 18 U.S.C.
§ 3231, and we have jurisdiction under 28 U.S.C. § 1291.




                               10
2013) (en banc) (alteration and omission in original) (quoting
United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005)).

       Thus, even if the evidence adduced is consistent
       with multiple possibilities, our role as a
       reviewing court is to uphold the jury verdict . . .
       as long as it passes the bare rationality test.
       Reversing the jury’s conclusion simply because
       another inference is possible—or even equally
       plausible—is inconsistent with the proper
       inquiry for review of sufficiency of the evidence
       challenges, which is that [t]he evidence does not
       need to be inconsistent with every conclusion
       save that of guilt if it does establish a case from
       which the jury can find the defendant guilty
       beyond a reasonable doubt. It is up to the jury—
       not the district court judge or our Court—to
       examine the evidence and draw inferences.
       Unless the jury’s conclusion is irrational, it must
       be upheld.

Id. at 433 (alteration in original) (internal quotation marks and
citation omitted).

        Considering the evidence under this highly deferential
standard, we conclude that the evidence supported each
element of the offenses charged, that “the jury’s verdict did not
fall below the threshold of bare rationality,” and that the verdict
“should therefore be reinstated.” Id. at 432-33 (internal
quotation marks and citation omitted). We examine the
evidence supporting each element in turn.




                                11
                              B

       The Victim and Witness Protection Act of 1982, 18
U.S.C. §§ 1512-1515, 3663-3664, “was enacted to provide
protection to witnesses in federal cases,” Tyler III, 732 F.3d
241, 247 (3d Cir. 2013), and prohibits witness tampering by
murder and by threats or intimidation. To prove witness
tampering by murder, the Government must demonstrate that:

      (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) “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.”

Bruce v. Warden Lewisburg USP, 868 F.3d 170, 184 (3d Cir.
2017) (emphasis omitted) (citing Tyler III, 732 F.3d at 252).
Witness tampering by intimidation requires proof of the same
elements as witness tampering by murder, except that the first
element instead requires evidence that the defendant
intimidated, threatened, or corruptly persuaded the witness.
See § 1512(b)(3).

      Viewing the evidence in a light most favorable to the
Government, a rational juror could have concluded that the




                             12
evidence supported each element of the offenses charged
beyond a reasonable doubt, and thus the District Court erred by
entering a judgment of acquittal.

                               1

        As to the first element, we must determine whether the
evidence supports a finding that Tyler murdered or aided and
abetted Proctor’s murder. Section 1512 incorporates the
definition of murder in 18 U.S.C. § 1111, which requires proof
that Tyler: (1) unlawfully killed Proctor, (2) with malice
aforethought, and (3) with premeditation. See 18 U.S.C.
§ 1111(a). For the jury to have found Tyler guilty of murder
based on aiding and abetting, the Government had to prove
that: (a) someone murdered Proctor, (b) Tyler knew the murder
would be committed or was being committed by this actor,
(c) Tyler knowingly performed an act for the purpose of aiding,
assisting, soliciting, facilitating, or encouraging the actor and
with the intent that the actor commit the murder, and (d) Tyler
performed an act in furtherance of the murder. See United
States v. Nolan, 718 F.2d 589, 592 (3d Cir. 1983).

       The evidence provided a basis for a rational juror to
conclude that Tyler murdered Proctor or aided and abetted her
murder. The night before Proctor was scheduled to testify at
David T.’s trial, Tyler and David T. spotted Proctor on the
street but declined to do anything to her only because there
“were too many cars” around. App. 490. Tyler and David T.
thereafter went to the back of Hodge’s house where David T.
retrieved a gun and asked Tyler if Tyler knew how to cock it.
Tyler said he did and showed David T. how to cock the gun.
Hours later, Tyler drove David T. to the murder scene.
Afterwards, Tyler told Campbell “[t]he bitch is gone,” or




                               13
“she’s gone.” App. 507, 514. In discussing the murder, Bell
said to Tyler, “I shot Doreen but you killed her,” and Tyler
responded, “You don’t know who’s listening. You don’t know
who hears this.” App. 935. Proctor’s autopsy confirmed that
she was shot multiple times, with a shot to her body, followed
by a shot to her head after she was lying on the ground. This
evidence provided a basis for a rational juror to conclude that
Tyler knew about a desire to harm Proctor, knew how to use a
gun, drove with his brother to the murder scene, and played a
role in her murder. In short, a rational juror had a sufficient
basis to conclude beyond a reasonable doubt that Tyler killed
Proctor or aided and abetted her murder.9

                                2

        Sufficient evidence also establishes that Tyler killed or
intimidated Proctor, at least in part, with the intent to prevent
her communication with law enforcement. On direct appeal
from accomplice Roberta Bell’s conviction, we previously
considered whether a reasonable juror could infer, from the
facts adduced in Bell’s case, an intent to hinder Proctor’s future
communication with law enforcement. Our Court considered
and rejected the argument, accepted by the District Court here,
that the only permissible inference was that Bell acted solely
to prevent Proctor from testifying at David T’s trial. United
States v. Bell, 113 F.3d 1345, 1350 (3d Cir. 1997). Of course,

       9
         Tyler did not challenge the sufficiency of the evidence
on the jury’s finding that he intimidated or threatened Proctor.
Thus, he has waived any such argument. See Wood v. Milyard,
566 U.S. 463, 474 (2012); United States v. Dupree, 617 F.3d
724, 727 (3d Cir. 2010) (“[A]rguments not raised in the district
courts are waived on appeal.”).




                               14
the Bell trial transcript is not the transcript we are reviewing,
but as in Bell, “while the evidence may lend itself more
obviously to the theory that [Tyler] killed Proctor in order to
prevent her from testifying a few hours later at [David T.’s]
trial,” the record in Tyler’s trial “also supports the inference
that [Tyler] believed Proctor was going to continue to
communicate with the Task Force concerning drug crimes that
[Tyler] and others had committed.” Id. As we held in Tyler I,
and do so again today, we apply Bell’s reasoning to this record
and conclude that a reasonable juror could infer Tyler acted
with an intent to hinder Proctor from communicating with law
enforcement. See Tyler I, 164 F.3d at 153 (“We reject Tyler’s
argument . . . for the same reasons that we rejected the identical
arguments of Ms. Bell.”). The fact the evidence “may be
consistent with multiple possibilities” does not mean the
verdict fails the “‘bare rationality’ test.” Caraballo-Rodriguez,
726 F.3d at 432.

       The evidence adduced at Tyler’s third trial is sufficient
to support an inference that Tyler acted with intent to prevent
Proctor’s communication with law enforcement. Proctor’s
cooperation with law enforcement was well known. She
completed controlled drug buys from and testified against
individuals with close relationships with Tyler: his brother and
Hodge, a woman with whom he and his brother had lived.
Even after Proctor stopped making covert purchases, she
continued to provide information to Detective Fones and Agent
Diller about, among other things, David T.’s New York drug
supplier and his trips to Jamaica.

       Moreover, Tyler himself was involved with drugs. The
jury heard evidence that he used drugs, and was involved in a
dispute with his brother and Bell about the fact that David T.




                               15
provided him drugs that were meant for Jerome King. During
the argument, Bell was heard saying that Tyler had killed
Proctor to which he retorted, “You don’t know who’s listening.
You don’t know who hears this.” App. 935. Tyler’s retort
gives rise to an inference that he was concerned about others
learning about his illegal activities, and “it was reasonable for
the jury to infer that [Tyler] feared that Proctor’s continued
cooperation with the Task Force would have resulted in
additional communications with law enforcement officers
concerning drug crimes committed by [him], among others,
and that at least part of [Tyler]’s motivation in killing Proctor
was to prevent such communications.”10 Bell, 113 F.3d at

       10
          Relying on United States v. Stansfield, 101 F.3d 909,
917-18 (3d Cir. 1996), the Dissent reasons that the evidence
showed “that [Tyler] acted to prevent Proctor’s testimony at
his brother’s trial or to retaliate for her past informant work,”
but that “there is no evidence from which a jury could infer that
he was motivated in any way by a desire to prevent . . .
Proctor’s future communication with law enforcement.”
Dissenting Op. at 2-3. In Stansfield, however, we reasoned
that evidence of the defendant’s questions to the victim about
why he had spoken to law enforcement was “sufficient for a
jury to conclude beyond a reasonable doubt that [defendant]
intended to prevent [the victim’s] future communications with
law enforcement officials, not merely that he intended to
retaliate against [him] for past communications,” and that
“inherent in” pointing a loaded gun at the victim’s throat “and
asking, in effect, ‘Why did you do it?’ is the implicit message,
‘Don’t ever do it again.’” 101 F.3d at 917-18. Evidence of
Proctor’s past communications to law enforcement about
David T. and Hodge, together with Tyler’s own illegal
activities, is sufficient for a rational juror to conclude that Tyler




                                 16
1350. Based on this evidence, a rational juror could have
found, beyond a reasonable doubt, that Tyler killed Proctor, at
least in part, to prevent her from communicating with law
enforcement.11

                                3

       Sufficient evidence also establishes the third element—
that the “offense” about which Proctor would have
communicated “was actually a federal offense.” Tyler III, 732
F.3d at 252 (quoting Stansfield, 101 F.3d at 918). The jury
heard that Proctor provided information about the distribution
of controlled substances, which is a federal crime. See 21


acted, at least in part, to prevent Proctor’s future
communications.
       11
          The Dissent’s conclusion that “if evidence that
[Tyler] knew Proctor had previously served as an informant
was enough to establish the necessary intent, any murder of a
known informant could become a federal crime,” Dissenting
Op. at 9, fails to account for the evidence that Tyler resided
with two of the individuals about whom Proctor was
communicating to law enforcement, that Tyler was involved
with drugs, and that shortly after the murder, Tyler argued with
his brother about receiving drugs meant for someone else.
Proctor’s known informant status was not the sole evidence
supporting Tyler’s intent, at least in part, to prevent Proctor’s
future communications. Instead, that evidence coupled with
the evidence about Tyler’s own illegal activities and his close
relationship to others against whom Proctor had acted as an
informant provided a basis for a rational juror to conclude that
Tyler intended to kill Proctor, at least in part, to prevent a law
enforcement communication.




                               17
U.S.C. § 841(a)(1). Indeed, federal authorities in the
Harrisburg area might have investigated and prosecuted the
activities about which Proctor had knowledge. In the
Harrisburg region, the DEA often made small controlled buys
to develop federal cases, and federal law does not set a
minimum amount of controlled substances that must be
involved for the conduct to violate federal law.

        Moreover, Proctor told Detective Fones that David T.’s
cocaine source was in New York and that he had travelled to
Jamaica. This evidence shows that drug offenses about which
Proctor had knowledge were federal, not “purely state in
nature.” Fowler, 563 U.S. at 677; see also United States v.
Veliz, 800 F.3d 63, 75 (2d Cir. 2015) (holding that the offense
was not “purely state in nature” and that sufficient evidence
supported a federal nexus under § 1512(b)(3) where defendant
“committed multiple related crimes across multiple states, with
multiple accomplices”). Thus, the evidence was sufficient to
satisfy the third element.

                              4

      The Government also presented sufficient evidence
upon which a rational juror could conclude that there was a
reasonable likelihood that one of Proctor’s communications
would have been to a qualifying law enforcement officer,
whether to Agent Diller or to a DEA agent.

       To convict a defendant under the investigation-related
provision of the witness tampering statute, the Government
must show that the defendant tampered with a witness to
hinder, delay, or prevent a communication from that witness to




                              18
a qualifying law enforcement officer.12 § 1512(a)(1)(C),
(b)(3). To satisfy this element, the Government must prove “a
reasonable likelihood that, had, e.g., the victim communicated
with law enforcement officers, at least one relevant
communication would have been made to a federal law
enforcement officer.” Fowler, 563 U.S. at 677 (emphasis
omitted). This standard “is a ‘relatively low bar.’” Bruce, 868
F.3d at 185 (quoting United States v. Smith, 723 F.3d 510, 518
(4th Cir. 2013)). Indeed, to establish reasonable likelihood,
“[t]he Government need not show that such a communication,
had it occurred, would have been federal beyond a reasonable
doubt, nor even that it is more likely than not.”13 Fowler, 563
U.S. at 678. Instead, it “must show that the likelihood of
communication to a federal officer was more than remote,
outlandish, or simply hypothetical.” Id.

       12
           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.
§ 1512(g)(2).
        13
           This is because “[t]he Government will already have
shown beyond a reasonable doubt that the defendant possessed
the relevant broad indefinite intent, namely, the intent to
prevent the victim from communicating with (unspecified) law
enforcement officers.” Fowler, 563 U.S. at 674. Thus, “where
the defendant kills a person with an intent to prevent
communication with law enforcement officers generally, that
intent includes an intent to prevent communications
with federal law enforcement officers only if it is reasonably
likely under the circumstances that (in the absence of the
killing) at least one of the relevant communications would have
been made to a federal officer.” Id. at 677-78 (emphasis
omitted).




                              19
       Before examining the proof concerning this element, we
will address the District Court’s incorrect view that this
“reasonable likelihood” standard is limited to circumstances
where the defendant does not have “some specific law
enforcement officer or set of officers” in mind as the recipient
of the witness’s communication. Tyler, 2018 WL 10322201,
at *12 (quoting Fowler, 563 U.S. at 672) (emphasis omitted).

                               a

        Fowler instructs that the reasonable likelihood standard
applies “where the defendant does not have particular federal
law enforcement officers in mind,” so long as “the Government
. . . show[s] a reasonable likelihood that, had, e.g., the victim
communicated with law enforcement officers, at least one
relevant communication would have been made to a federal
law enforcement officer.” 563 U.S. at 677. Pursuant to
Fowler, we held in Tyler III that the “reasonable likelihood”
standard applied in determining whether Proctor would
communicate with a qualifying federal officer, not a specific
person, and directed the District Court to evaluate the evidence
under this standard. Tyler III, 732 F.3d at 252-53. Later, in
Bruce, we applied the “reasonable likelihood” standard where
a defendant allegedly prevented witnesses from
communicating with state law enforcement about a defendant’s
robbery and arson. 868 F.3d at 175-76, 181. Applying the
“reasonable likelihood standard,” id. at 181, we held that the
Government must prove that there is “a reasonable likelihood
that the person whom the defendant believes may
communicate with law enforcement would in fact make a
relevant communication with a law enforcement officer,” id. at
184 (emphasis omitted). We observed that the statute “reaches
conduct that ‘takes place before the victim has engaged in any




                               20
communication at all with law enforcement officers—at a time
when the precise communication and nature of the officer who
may receive it are not yet known.’” Id. at 185 (quoting Fowler,
563 U.S. at 673).14

       As in Fowler, evidence was presented that Tyler “killed
[Proctor] with an intent to prevent [her] from communicating
with law enforcement officers in general” but that Tyler “did
not have federal law enforcement officers (or any specific
individuals) particularly in mind.” 563 U.S. at 670. Thus,
Fowler’s “reasonable likelihood” standard applies.15

       14
           Other Courts of Appeals have applied the “reasonable
likelihood” standard where there was evidence that witnesses
had already communicated with a specific law enforcement
officer. See, e.g., Dhinsa v. Krueger, 917 F.3d 70, 82-84 (2d
Cir. 2019) (applying the standard where defendant murdered
witnesses after one witness started questioning the
organization’s illegal activities and the other began
cooperating with state police); United States v. Johnson, 874
F.3d 1078, 1080-82 (9th Cir. 2017) (applying the standard
where correctional officer kept his report of a use of force from
reaching a specific prison sergeant allegedly to prevent the
report from reaching a federal officer); Smith, 723 F.3d at 512-
14 (applying the standard where defendant allegedly
firebombed a witness’s house in retaliation for her regular
reports to local police about drug activity).
        15
           Application of the “reasonable likelihood” standard
may not always be necessary. Where there is sufficient
evidence that a defendant intended to prevent a witness from
communicating with a specific federal law enforcement
officer, there would be no need to apply the “reasonable
likelihood” standard to determine whether, had the witness




                               21
                               b

       Applying the Fowler standard, the record shows that it
was “reasonably likely” that Proctor would have
communicated with a “law enforcement officer” as defined
under § 1515(a)(4)(A).       To satisfy this element, the
Government must prove two things: (1) it is reasonably likely
the witness would communicate information and (2) the person
to whom she would communicate the information would be a
“law enforcement officer” as defined under § 1515(a)(4)(A).
The statute defines a “law enforcement officer” as an “officer
or employee of the Federal Government, or a person . . . 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.”
§ 1515(a)(4)(A). We will examine whether Agent Diller and
Special Agent Humphreys qualify as § 1515(a)(4)(A) law
enforcement officers and whether it was reasonably likely that
Proctor would have communicated with them.

      Agent Diller was a qualifying law enforcement officer
because he advised and consulted with the DEA. Agent Diller
coordinated the Task Force, and in that capacity met with the
DEA frequently. Agent Diller referred up to ten cases per year


“communicated with [that officer], at least one relevant
communication would have been made to a federal law
enforcement officer.” Fowler, 563 U.S. at 677-78. This is
because the statute “fits like a glove” when the defendant has
a federal law enforcement officer in mind, since it would be
undisputed that that officer is federal and thus the Government
would not have to offer additional proof to establish the federal
nexus. See id. at 672.




                               22
to the DEA, often to Special Agent Humphreys. For certain
cases the DEA adopted, Agent Diller was deputized as a
federal agent or served as a co-case agent. See Bruce, 868 F.3d
at 186 (observing that state law enforcement officers who
“participated in the investigation after federal intervention . . .
would count as federal officers”). The evidence presented at
Tyler’s third trial again provided a basis for a rational juror to
conclude that Agent Diller was a qualifying “law enforcement
officer” under § 1515(a)(4)(A), as he worked closely with the
DEA to both personally participate in cases and to advise
whether a case should be pursued on the federal level. As we
have concluded in the past, these facts demonstrate that Agent
Diller was a “law enforcement officer” under 18 U.S.C.
§ 1515(a)(4). See Tyler II, 281 F.3d at 99.

        The evidence also showed that it was reasonably likely
that Proctor would have communicated with Agent Diller. Part
of Agent Diller’s role as the Task Force coordinator was to
interview confidential informants. Not only did Agent Diller
meet with Proctor more than ten times, he was also present for
each of her controlled purchases and debriefed her before and
after each buy. Even after the Task Force no longer used her
to make controlled purchases, Proctor continued to provide
information to the Task Force. Over the course of the
investigation, Proctor also told Detective Fones that David T.’s
cocaine supplier was in New York and that David T. made trips
to Jamaica. Detective Fones relayed this information to Agent
Diller to determine how it could be used and how Proctor could
assist. Given how often Proctor met with Agent Diller, the
information Proctor had concerning interstate drug activity,
and the fact that she was continuing to provide information to
law enforcement, it was far from “remote, outlandish, or
simply hypothetical” that she would communicate with him




                                23
about David T.’s interstate drug connection and that Agent
Diller would share that information with the DEA. Fowler,
563 U.S. at 678.

        The jury also heard evidence from which it could
conclude that Proctor was “reasonably likely” to communicate
with a DEA agent such as Special Agent Humphreys, who is a
qualifying law enforcement officer. Agent Diller and Special
Agent Humphreys had regular contact. Among the criteria
Agent Diller would have considered in determining whether to
refer a case to the DEA was whether “the source was outside
Pennsylvania.” App. 596. Because the Task Force could only
investigate crimes occurring in Pennsylvania, and the DEA has
an interest in pursuing interstate drug activity, a reasonable
juror could conclude that Proctor’s information about David
T.’s New York source and trips to Jamaica would have been
relayed to the DEA. Special Agent Humphreys testified that
had Agent Diller approached him with information from a
confidential informant, it “would be required almost” that
Special Agent Humphreys would interview the informant.
App. 670. From this evidence, a juror could infer that Proctor
was reasonably likely to communicate with Special Agent
Humphreys or another DEA agent about the out-of-state drug
activity.16 See United States v. Johnson, 874 F.3d 1078, 1083

      16
          The likelihood of such communication is further
corroborated by how often the DEA and local law enforcement
worked together. The jury heard evidence that 65% of the
investigations that the Harrisburg DEA office initiated from
1984 to 1996, were worked jointly with state and local law
enforcement. Over 50% of the time, the DEA worked with
informants obtained from state and local task forces.
Furthermore, federal authorities regularly prosecuted cases




                             24
(9th Cir. 2017) (suggesting that the reasonable likelihood
standard would be fulfilled by evidence that federal officials
were in contact with the county jail, had a policy or practice of
investigating similar incidents, or assisted or shared
information with state and local officials); Aguero v. United
States, 580 F. App’x 748, 753 (11th Cir. 2014) (per curiam)
(holding, in a police-related shooting, the reasonable likelihood
standard satisfied where police had a working relationship with
the federal government, investigations occurred after each
police shooting, and there was a standard practice of
forwarding information from shootings to the FBI); Smith, 723
F.3d at 518 (holding the reasonable likelihood standard
satisfied where victim complained of gang activity and drug
trafficking, and evidence showed that the DEA worked closely
with the city police and that the police were its “biggest source
of information”). Therefore, a rational juror had a basis to
conclude it was reasonably likely that Proctor would have
spoken to a qualifying law enforcement officer and that Tyler
murdered or aided in her murder to prevent her from doing so.17


involving small amounts of drugs, and such cases were often
of interest even without evidence of an interstate source.
        17
           We will also affirm the order denying Tyler’s motion
to dismiss his § 924(c) conviction. Tyler contends that because
the commission of an underlying predicate is a necessary
element of a § 924(c) conviction, and because this Court
vacated his predicate witness tampering charges, dismissal of
his § 924(c) conviction was required.
        Tyler’s argument fails for two reasons. First, because
we direct the reinstatement of his witness tampering
convictions, the basis for Tyler’s argument challenging his
§ 924(c) conviction evaporates. Second, and in any event, our
precedent forecloses Tyler’s argument. A conviction under




                               25
                                   III

       For the foregoing reasons, we will reverse the District
Court’s order granting Tyler’s motion for judgment of acquittal
on the witness tampering charges, direct that the jury’s verdict
be reinstated, affirm the judgment on the firearms conviction,
and remand for sentencing.




§ 924(c) “requires that the government prove the defendant
committed a qualifying offense but does not require that the
defendant be charged or convicted of such an offense.” United
States v. Galati, 844 F.3d 152, 155 (3d Cir. 2016); see also
United States v. Haywood, 363 F.3d 200, 211 (3d Cir. 2004)
(holding that § 924(c) “requires only that the defendant have
committed a violent crime for which he may be prosecuted in
federal court” and “does not even require that the crime be
charged; a fortiori, it does not require that he be convicted”
(emphasis and citations omitted)).




                              26
RENDELL, Circuit Judge, concurring in part and dissenting
in part:

       I disagree with the Majority on one essential issue—
Willie Tyler’s intent. Judge Jones, an experienced trial judge,
vacated the jury’s verdict based on this issue, concluding that
it was mere speculation that Willie acted with the intent to
prevent Proctor from communicating with law enforcement. I
was initially skeptical that this rejection of the jury’s verdict
was warranted, but upon further reflection have come to
believe that it was entirely correct. Judge Jones stated:

       Based on the evidence presented, an inference
       that Willie acted with the distinct intent to
       prevent an investigation-related communication
       is far too speculative to withstand judicial
       review. At the end of the day, it is clear that
       Proctor was murdered because she was going to
       testify the next morning against [David] Tyler.
       Though an atrocious crime, it is one that falls
       under the purview of state charges unless the
       evidence can satisfy the specific intent element
       that brings it under the ambit of the federal
       witness tampering statute. Even in the face of
       the incredibly high standard of review for a Rule
       29 post-trial motion for judgment of acquittal,
       we cannot hold that this evidence was sufficient
       to support any rational trier of fact to find guilt
       beyond a reasonable doubt for this element. This
       finding of intent was a necessary element for
       each of Willie’s convictions under § 1512. We
       therefore must grant the Motion on this basis and
       vacate both of his convictions.




                               1
App. 29.

        Noting the importance of evidence of such intent to
federalize an otherwise state crime, Judge Jones observed that
finding the evidence here sufficient “would essentially
eviscerate any intent requirement at all and would allow federal
witness tampering convictions against virtually all homicides
of state and local police informants.” Id. The federal statute
has two distinct elements. The Government need only
establish that there is a reasonable likelihood that any alleged
communication would be made to a qualifying federal officer.
That bar is quite low. The low bar of that element stands in
contrast to the standard of proof beyond a reasonable doubt for
the element of intent to prevent a communication. In fact, the
Supreme Court found the low threshold of the reasonable
likelihood standard permissible precisely because “[t]he
Government will already have shown beyond a reasonable
doubt that the defendant possessed the relevant broad
indefinite intent, namely, the intent to prevent the victim from
communicating with (unspecified) law enforcement.” Fowler
v. United States, 563 U.S. 668, 674 (2011) (emphasis added).
The Supreme Court has cautioned against “bring[ing] within
the scope of [§ 1512] many instances of witness tampering in
purely state investigations and proceedings, thus extending the
scope of this federal statute well beyond the primarily federal
area that Congress had in mind.” Id. at 675. We would engage
in just this sort of expansion of the statute if we were to allow
a conviction to stand where the evidence cannot establish
beyond a reasonable doubt the intent element necessary to
make the offense a federal crime.

      In order to convict Willie Tyler, the jury had to find
beyond a reasonable doubt that he acted with intent to prevent




                               2
Doreen Proctor from communicating information to law
enforcement.         Importantly, the intent to prevent a
communication differs from the intent to prevent a person’s
appearance in an official proceeding, which is an element of
separate 18 U.S.C. § 1512 offenses, see 18 U.S.C.
§ 1512(a)(1)(A), (a)(1)(B), (b)(1), (b)(2),1 and from the intent
to retaliate for past communications with law enforcement.
See United States v. Stansfield, 101 F.3d 909, 917–18 (3d Cir.
1996), abrogated in part by Fowler, 563 U.S. 668. While there
is little doubt that the evidence demonstrated that Willie acted
to prevent Proctor’s testimony at his brother’s trial or to
retaliate for her past informant work, there is no evidence from
which a jury could infer that he was motivated in any way by
a desire to prevent Doreen Proctor’s future communication
with law enforcement.2

1
  Following the Supreme Court’s decision in Arthur Andersen
LLP v. United States, the evidence in this case could not
establish guilt under § 1512’s official proceeding provisions,
which require a nexus between the alleged conduct and a
federal proceeding. United States v. Tyler (Tyler III), 732 F.3d
241, 245, 250–51 (3d Cir. 2013) (citing Arthur Andersen LLP
v. United States, 544 U.S. 696, 707–08 (2005)). The official
proceeding charges therefore were not advanced at the trial
below.
2
  As the Majority points out, in Stansfield, we held that the
evidence was “sufficient for a jury to conclude beyond a
reasonable doubt that [the defendant] intended to prevent [the
victim’s] future communications with law enforcement
officials, not merely that he intended to retaliate against [him]
for past communications.” Id. We reasoned that the
defendant’s questions to the victim about why he had spoken
to law enforcement demonstrated the necessary intent because




                               3
       The narrative that played out at Willie Tyler’s trial—
perhaps unlike evidence at previous trials—had very little to
do with Willie Tyler. He was a peripheral player, while the
evidence focused on Doreen Proctor and her relationships with
David Tyler’s cronies and with law enforcement. Willie’s only
drug activities were that he used to get high with Gwanda
Campbell and, after the murder, his brother made Roberta Bell
angry by giving Willie drugs. Much was made of Doreen
Proctor’s role in the state, and potentially federal,
investigations and trials in order to satisfy the necessary
element of a reasonable likelihood that, if she did make a
communication to law enforcement, it would have been to a
federal officer. The nature of her continued role was disputed,
but it was never even urged that Willie knew of any such
ongoing role, let alone that he had reason to care about or fear
any future communication by her. In most cases in which the


“inherent in . . . asking, in effect, ‘Why did you do it?’” while
pointing a loaded gun at the victim’s throat “is the implicit
message, ‘Don’t ever do it again.’” Id. at 918. In Stansfield,
the defendant knew the victim had been communicating
information to law enforcement regarding a pending
investigation into the defendant’s insurance fraud scheme. Id.
at 911. The facts in Stansfield showed that the defendant was
not merely retaliating for cooperation in a past investigation
but attempting to prevent communication that would further
law enforcement’s ongoing investigation into his own illegal
activity. Here, there was no investigation into Willie Tyler’s
activities, and no evidence that Willie Tyler knew of any
ongoing investigation into his friends. I therefore disagree
with the Majority’s suggestion that the facts in Stansfield are
analogous to the facts before us. See Maj. Op. at 16 n.10.




                               4
element of intent to prevent an investigation-related
communication can be inferred, it is clear that the perpetrator
had reason to fear that, had the victim lived, he or she would
have gone to the police to tell them of the perpetrator’s
activities.3 Here, there was no speculation, let alone evidence,

3
  Indeed, in each of the cases on which the Majority relies, the
perpetrator had a clear reason to want to prevent the victim’s
communication with law enforcement, most often the victim’s
knowledge of the defendant’s own criminal activity. See
Fowler, 563 U.S. at 670 (defendant killed officer who
witnessed defendant and others planning a robbery); Dhinsa v.
Krueger, 917 F.3d 70, 82–83 (2d Cir. 2019) (defendant ordered
murders of witnesses who confronted associates about
defendant’s racketeering organization or cooperated with
police investigation into defendant’s illegal activities); Bruce
v. Warden Lewisburg USP, 868 F.3d 170, 175–76 (3d Cir.
2017) (defendant killed owner of the business he robbed, along
with owner’s fiancée who was present); United States v. Veliz,
800 F.3d 63, 67–68 (2d Cir. 2015) (defendant solicited murder
of co-conspirator whom he feared would talk to police about
defendant’s role in two murders); Aguero v. United States, 580
F. App’x 748, 753 (11th Cir. 2014) (defendant, a police officer,
planted weapons at scenes of shootings in which he was
involved and provided misleading statements to investigators
who would relay information to federal law enforcement);
United States v. Smith, 723 F.3d 510, 512 (4th Cir. 2013)
(defendant, a gang leader, orchestrated an attack on a witness
who was communicating with police on a near-daily basis
about the gang’s drug activity in her neighborhood); Stansfield,
101 F.3d at 917–18 (defendant killed witness who was sharing
information with law enforcement about defendant’s insurance
fraud scheme); see also United States v. Johnson, 874 F.3d




                               5
that Doreen Proctor posed any threat at all to Willie, or that
Willie knew of any such threat to himself or others. Allowing
the jury to infer that Proctor would have a future role in a
federal investigation is a far cry from allowing them to
conclude that Willie Tyler knew this and acted with an intent
to prevent it.

        If Willie was portrayed as part of David’s group,
perhaps the result would be different. But Willie was not a
drug dealer, and he had to be asked by his brother if he knew
how to cock a gun. At one point, he had to be told his brother
was in town, and at the time of the murder, when he asked his
brother what was going on, he was told that it was not his
business. The most damning evidence of Willie’s involvement
was his accompanying his brother to the murder, his
declaration that “the bitch is gone” or “she’s gone” the
following morning, App. 507, 514, and Bell’s statement,
purportedly to Willie, that “you killed her,” App. 935. But,
again, that proves nothing as to his fear of Proctor’s
prospective communications, only his desire that she not be
alive to testify against his brother.

       The intent element requires a showing that the
defendant “was motivated by a desire to prevent the
communication” between the victim and law enforcement.
Stansfield, 101 F.3d at 918. Such motivation is impossible


1078, 1079–80, 1083 (9th Cir. 2017) (defendant allegedly
withheld information from supervisor about an assault in
which defendant was purportedly involved, but evidence was
insufficient to demonstrate reasonable likelihood of
communication to a federal officer); see also United States v.
Bell, 113 F.3d 1345, 1350 (3d Cir. 1997) discussed infra.




                              6
unless the defendant knew or believed that the victim would,
in fact, communicate with law enforcement. See United States
v. Kozak, 438 F.2d 1062, 1065–66 (3d Cir. 1971). There is
simply no evidence from which this intent on Willie’s part can
be inferred. At most, there is evidence to allow two inferences:
(a) Willie knew that Proctor had provided information about
his brother and others, that she had testified against Hodge, and
that she was going to testify the next morning against his
brother; and (b) Proctor had continued to communicate
information to Detective Fones despite the apparent end to the
investigation. Lacking, however, is evidence that Willie knew
or believed Proctor was going to have any future
communication with law enforcement or acted to prevent it.4

4
  If anything, the evidence shows that Willie had reason to
believe Proctor was finished working as an informant. Proctor
testified publicly at Hodge’s trial that she was “out of this
business.” App. 462. There is no suggestion in her
testimony—of which the Government asks us to assume Willie
was aware—that she still worked with law enforcement.
Further, the preliminary hearings, where Proctor’s identity as
an informant was revealed, occurred in late July and early
August 1991, but the murder did not occur until April 1992,
after Proctor had testified against Hodge and just before she
was expected to testify against David Tyler. Although the
timing shows that Willie and others sought to prevent the
testimony against David, it cuts against the idea that they
wanted to prevent investigation-related communications by
Proctor. Such a motive would have warranted earlier timing of
the murder to prevent law enforcement building a case against
Hodge and David. By the time of the murder, the evidence
indicates that, from Willie Tyler’s perspective, Doreen Proctor
was a trial witness who was done serving as an informant.




                               7
        The evidence similarly fails to support the Majority’s
inference that Willie Tyler sought to prevent Proctor from
communicating with law enforcement about his own drug
activity. Nothing in the record suggests that Willie knew
Proctor or was familiar with her other than through her
testimony against his brother and Hodge. The record thus
contains zero evidence that Proctor knew about any drug
activity in which Willie was involved. The only evidence of
Willie engaging in drug activity at all before Proctor’s death is
Campbell’s testimony that she “used to get high with him.”
App. 484. There is no evidence that Proctor was present for or
aware of this drug use or that Willie believed she knew about
it. The same can be said of Willie’s receipt of drugs from his
brother after Proctor’s death, when Proctor could neither have
known nor communicated about the drug possession. Given
the lack of evidence that Willie Tyler had anything to fear from
Proctor’s communications to law enforcement, it would be
irrational to conclude on this record that his participation in
Proctor’s murder was motivated by a desire to prevent such
communications.

       The Majority makes much of Willie’s response to Bell’s
statement that he killed Proctor, suggesting that his reaction
“gives rise to an inference that he was concerned about others
learning about his illegal activities.” Maj. Op. at 16. In
response to Bell saying, about Proctor, “you killed her,” Willie
said, “You don’t know who’s listening. You don’t know who
hears this.” App. 935. This certainly gives rise to an inference
that Willie was concerned about others learning of his
involvement in Proctor’s murder, but no greater inference
follows from the exchange. Notably, Willie did not try to
silence Bell during the preceding argument that revealed his
possession of unlawful drugs. Willie’s response to the murder




                               8
accusation does not show that he believed Proctor had
continued to cooperate with the Task Force or had any
information about drug crimes committed by him. One
therefore cannot rationally infer from Willie’s exchange with
Bell that he “feared that Proctor’s continued cooperation with
the Task Force would have resulted in additional
communications with law enforcement officers concerning
drug crimes committed by [him]” and that such a fear
motivated the killing. Maj. Op. at 16 (alteration in original)
(quoting United States v. Bell, 113 F.3d 1345, 1350 (3d Cir.
1997)).

        The Majority makes that inference largely by importing
our analysis from United States v. Bell, but the factual records
of the two cases differ in dispositive ways.5 In Bell, we found
that “it was reasonable for the jury to infer that Bell feared that
Proctor’s continued cooperation with the Task Force would
have resulted in additional communications with law
enforcement officers concerning drug crimes committed by

5
  The Majority contends otherwise, claiming that we applied
the Bell reasoning in Willie Tyler’s first direct appeal and
should do so here. Maj. Op. at 15. I disagree. In Tyler I, we
rejected Willie “Tyler’s argument that the evidence did not
establish federal jurisdiction under [18 U.S.C. § 1512] for the
same reasons that we rejected the identical arguments of Ms.
Bell.” United States v. Tyler (Tyler I), 164 F.3d 150, 153 (3d
Cir. 1998). We did not discuss Willie’s sufficiency of the
evidence arguments, and we did not describe the evidence
introduced at the trial at all. In my view, our scant reasoning
in Tyler I does not provide a basis from which we can conclude
that Bell’s reasoning with respect to intent to prevent a
communication should apply to the record before us.




                                9
Bell.” 113 F.3d at 1350. We reached that conclusion based in
part on evidence that Bell was involved in the drug trade with
David Tyler, about whom Proctor had provided information
and against whom she planned to testify. Id.6 The evidence in
Bell showed that “Bell was personally and heavily involved”
in the drug trade in Carlisle and Harrisburg about which
Proctor had provided information. Id. Indeed, we noted that
there was “evidence that Bell was at least as heavily implicated
as [David] Tyler in the drug trade for which Tyler was on trial.”
Id. Even on the current record in Willie’s case, we have
evidence that Bell engaged in drug distribution and specifically
distributed drugs to Proctor. Bell knew that Proctor had
information about her that Bell would not want communicated
to law enforcement. In contrast, the evidence presented at
Willie’s trial offered no reason to believe Willie was involved
in his brother’s drug trade, knew Proctor, or had reason to

6
  Our emphasis in Bell on Bell’s involvement in the drug trade
was consistent with our case law, which has held evidence
sufficient to support a conviction for witness tampering with
intent to prevent a communication under § 1512 when the
defendant was the subject of the information he feared the
victim would communicate. See, e.g., Stansfield, 101 F.3d at
917–19 (holding evidence sufficient where defendant sought to
prevent informant from communicating information about
defendant’s insurance fraud scheme). Even the Government
argues that the implication that an informant was murdered to
prevent a communication with law enforcement arises “[i]f a
known informant is murdered by the subjects of her
information.” Appellant’s Br. at 33 (emphasis added). Here,
there is no evidence that Willie Tyler would have been the
subject of any information Proctor possessed.




                               10
believe she had information about him. Unlike Bell, Willie had
nothing to fear from Proctor’s potential communications with
law enforcement that would allow us to infer a motive to
prevent them.7

        We also cannot rationally infer from knowledge of
Proctor’s past informant activities and plans to testify in state
court proceedings that Willie sought to prevent Proctor’s future
communications with law enforcement. Rational inferences
require “a logical and convincing connection between the facts
established and the conclusion inferred.” United States v.
Bycer, 593 F.2d 549, 550 (3d Cir. 1979). Here, the admittedly
rational inference that Willie knew of Proctor’s past informant
activities concerning his brother and associates does not
logically or convincingly lead to the further conclusions that
Willie believed Proctor had additional information, believed
she would continue to communicate with law enforcement
months after the investigation had apparently ended, and acted
to prevent such communications. Those inferences are not
rational and would not allow a jury to conclude beyond a
reasonable doubt that Willie intended to prevent Proctor’s
future communications.


7
  The Majority emphasizes Willie’s “illegal activities” as
evidence of his intent to prevent Proctor from communicating
with law enforcement. Maj. Op. at 16, 16 n.10, 17 n.11. But,
as discussed supra, the only illegal activity that could have
contributed to his intent to participate in the murder was his
personal drug use, and there is no evidence that Proctor knew
anything about that use. Such illicit use is a far cry from Bell’s
heavy involvement in David Tyler’s drug trade. See Bell, 113
F.3d at 1350.




                               11
       As the District Court noted, if evidence that Willie knew
Proctor had previously served as an informant was enough to
establish the necessary intent, any murder of a known
informant could become a federal crime. That approach would
allow the Government to circumvent the federal nexus
requirement of the official proceeding provisions, permitting
federal prosecution of a murder intended only to prevent state
court testimony. The District Court was correct in vacating
Willie Tyler’s conviction due to the absence of proof necessary
for the jury to find the essential element of intent. I therefore
respectfully dissent and would affirm.8




8
  I concur in the judgment as to Willie Tyler’s cross appeal,
case number 17-2613. Although I would not find the basis for
the appeal moot, I agree with the Majority that our precedent
forecloses his argument.




                               12
