                                        PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 12-1975
                     _____________

            UNITED STATES OF AMERICA

                            v.

                    WILLIE TYLER,
                               Appellant
                     ____________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                (D.C. No. 1:96-cr-00106-001)
      District Judge: Honorable William W. Caldwell
                       ____________

                        Argued
                      May 13, 2013

Before: FUENTES, SHWARTZ, and ROTH, Circuit Judges

             (Opinion Filed: October 3, 2013)

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

       Counsel for Appellant Willie Tyler

Gordon A.D. Zubrod, Esq., Assistant United States Attorney
[ARGUED]
Office of United States Attorney
Ronald Reagan Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108

       Counsel for Appellee United States of America
                          ____________

                    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




                                  2
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 Fowler 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.1 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.

      1
         We will refer to Willie Tyler as “Tyler” and David
Tyler as “David.”



                                  3
        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




                                  4
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




                                  5
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




                                  6
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 101.2

        In December 2009, Tyler filed a pro se motion,
arguing that Arthur Andersen LLP v. United States, 544 U.S.
696 (2005), had rendered his conduct non-criminal. The
Supreme Court had held in Arthur Andersen that certain
official proceeding provisions of § 1512’s witness
       2
         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 F. App’x 173, 177 (3d Cir. 2006).



                                  7
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. While his motion was pending, the Supreme Court
decided Fowler v. United States, 131 S. Ct. 2045, 2952
(2011), holding that an investigation-related communication
provision of § 1512’s witness murder subsection,
§ 1512(a)(1)(C), required that there be a reasonable likelihood
that a witness’s murder was intended to prevent
communication with a federal law enforcement officer or
judge. 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.   ANALYSIS3

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. § 2241. 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

       3
          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.



                                  8
Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997); see also United
States v. Hayman, 342 U.S. 205, 213-14 (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 non-criminal 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 (1998)). A petitioner can




                                   9
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). 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—




                                  10
          (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




                                   11
           (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 provision4 and
an investigation-related communication provision5 (Count 2).
He was also convicted of tampering with a witness by
intimidation and threats in violation of two official
proceeding provisions6 and an investigation-related
communication provision7 (Count 3).




       4
         18 U.S.C. § 1512(a)(1)(A).
       5
         18 U.S.C. § 1512(a)(1)(C).
       6
         18 U.S.C. § 1512(b)(1) and (b)(2).
       7
         18 U.S.C. § 1512(b)(3).



                                 12
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, 133 S.
Ct. 2877 (2013).8 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.
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. “[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

      8
         Our judgment in Shavers was subsequently vacated
by the Supreme Court in light of Alleyne v. United States, 133
S. Ct. 2151 (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.



                                 13
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




                                  14
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 “[c]onsistency
demand[ed] 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.




                                 15
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
Arthur 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




                                 16
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. 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 133 S. Ct. 71 (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.




                                   17
        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 1348.9 Thus, based on our review

       9
          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



                                   18
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

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.



                                  19
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 pre-
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 pre-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




                                  20
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 “transform[ing] 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) the defendant
      believed that the person in (2) above might
      communicate with the federal authorities.



                                 21
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.10 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 125 S. Ct. 1613. 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

       10
          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).



                                  22
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 DEA, 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



                                  23
“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 (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



                                  24
56). 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). 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.

                    IV.    CONCLUSION

      In light of the foregoing, we remand for further
proceedings consistent with this opinion.




                                  25
SHWARTZ, Circuit Judge, dissenting:

       The Majority and I agree that if Willie Tyler can meet
the “actual innocence” standard to invoke § 2255’s “safety
valve,” then he would be permitted to file a petition under §
2241. Maj. Typescript at 8-9. I depart from the Majority,
however, because I understand the actual innocence standard
to require us to consider whether a reasonable, properly
instructed juror would have convicted Tyler and applying this
standard to the present record supports a conclusion that Tyler
has not met the actual innocence standard and that the order
of the District Court should be affirmed. Further, unlike my
colleagues, I conclude that the general verdict in this case
does not impact our ability on habeas review to evaluate
whether a reasonable, properly instructed juror would have
convicted Tyler.

                               I.

       Under Bousley v. United States, 523 U.S. 614 (1998),
and Schlup v. Delo, 513 U.S. 298 (1995), to demonstrate
“actual innocence,” a habeas petitioner must show that, in
light of all the evidence, it is more likely than not that no
reasonable, properly instructed juror would have convicted
him.1 Bousley, 523 U.S. at 623; Schlup, 513 U.S. at 327-29.


       1
           This strict standard is appropriate. The actual
innocence standard seeks to “balance the societal interests in
finality . . . and conservation of scarce judicial resources with
the individual interest in justice that arises in the
extraordinary case.” Schlup, 513 U.S. at 324. To reflect this
balance, the actual innocence standard is therefore
purposefully “demanding” and was formulated to ensure that




                               1
         Tyler was convicted of violating the Victim and
Witness Protection Act (“VWPA”), 18 U.S.C. § 1512, which
makes it unlawful to, among other things, tamper with a
person, by murder or intimidation, with the intent to prevent
that person from participating in an “official proceeding” or
to tamper with a person, by murder or intimidation, with the
intent to prevent that person from communicating with a “law
enforcement officer.”2 As the Majority notes, after Tyler’s
trial, the Supreme Court clarified the VWPA’s federal nexus
requirement under both the official proceeding provisions and
the law enforcement investigation-related provisions in
Arthur Andersen LLP v. United States, 544 U.S. 696 (2005),
and Fowler v. United States, 131 S. Ct. 2045 (2011),
respectively. Maj. Typescript at 10-14. Because the jury was
instructed before these cases were decided, the District
Court’s instructions were based on an interpretation of the
VWPA that, though correct at the time, was ultimately


a successful petitioner’s case is “truly extraordinary.” House
v. Bell, 547 U.S. 518, 537-38 (2006) (quotation marks and
citations omitted); see also McQuiggin v. Perkins, 133 S. Ct.
1924, 1928 (2013) (noting that a showing of actual innocence
may “serve[] as a gateway” through an “impediment” that
otherwise bars consideration of a petitioner’s claim).
        2
          Because § 1512 is written in the disjunctive, the
official proceeding provisions and the law enforcement
investigation-related provisions are alternative ways of
committing the same offense. 18 U.S.C. § 1512; see also
United States v. Rigas, 605 F.3d 194, 208 (3d Cir. 2010) (en
banc) (noting that Congress’s “use of disjunctive language
creates alternative ways of violating a statute” and that such
language “created a single offense that may be committed in
alternative ways”).




                              2
rendered erroneous. Accordingly, the jury was instructed
under theories that are now “legally invalid.” See United
States v. Syme, 276 F.3d 131, 145 (3d Cir. 2002) (noting that
a legal theory is invalid where “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.”). As I understand the Supreme Court’s cases on actual
innocence, however, that is just the beginning of our inquiry.
To apply the actual innocence standard, we must also identify
the proper instructions for the crime charged and evaluate the
record in light of these instructions to determine if a
reasonable, properly instructed juror would have convicted
Tyler.3

       Because “‘[a]ctual innocence’ means factual
innocence, not mere legal insufficiency,” a showing that the
jury was instructed on a legally invalid theory alone does not
satisfy the actual innocence standard. Bousley, 523 U.S. at

      3
         The Majority cites United States v. Davies, 394 F.3d
182, 191 (3d Cir. 2005), for the proposition that “[a]
petitioner can establish that no reasonable juror would have
convicted him by demonstrating an intervening change in law
that rendered his conduct noncriminal,” Maj. Typescript at
10. While this is a correct statement, I part company with the
Majority as its analysis does not include consideration of
whether the change in the law here, as applied to the facts of
our case, demonstrates that no reasonable juror could find that
Tyler did not violate the law. A court analyzing a petitioner’s
actual innocence claim must apply the holding of the
intervening Supreme Court decision to the record to
determine if a reasonable juror applying such law would have
convicted him. See id. at 192-96.




                              3
623. Bousley and Schlup require the Court to ask what a
reasonable, properly instructed juror “would do” when
considering the evidence presented. Schlup, 513 U.S. at 329
(emphasis added); see also Bousley, 523 U.S. at 623. Unlike
the direct appeal cases on which the Majority relies, Bousley
and Schlup require us to ignore what the improperly
instructed jury at Tyler’s trial actually did and direct that we
examine the record under the current law. As a result, legally
invalid jury instructions given at trial alone cannot render a
petitioner actually innocent because Bousley and Schlup
require us to review the facts from the perspective of a
reasonable, properly instructed juror.4


       4
          Several of our sister circuits have held similarly.
See, e.g., Ryan v. United States, 645 F.3d 913, 917 (7th Cir.
2011) (“[The actual innocence] standard depends on the
content of the trial record, not the content of the jury
instructions.”) vacated on other grounds by Ryan v. United
States, 132 S. Ct. 2099 (2012); Stephens v. Herrera, 464 F.3d
895, 899 (9th Cir. 2006) (“[T]he mere fact of an improper
instruction is not sufficient to meet the test for actual
innocence.”); Bosley v. Cain, 409 F.3d 657, 662 (5th Cir.
2005) (“[T]he [actual innocence] standard requires the district
court to ‘make a probabilistic determination about what
reasonable, properly instructed jurors would do.’”) (quoting
Schlup, 513 U.S. at 329).
       Moreover, at oral argument, both Tyler and the
Government acknowledged this very point. Oral Arg. at
8:04-8:20 (“At this point in the litigation . . . I don’t think jury
instructions are something I can attack. It’s really a matter of
establishing a lack of criminal conduct at this point.”) (May
13, 2013); Oral Arg. at 32:23-32:34 (“When we come to




                                 4
        In Schlup, the Supreme Court set forth certain
attributes of such a reasonable juror. First, such a “reasonable
juror would consider fairly all of the evidence presented.”
Schlup, 513 U.S. at 329. Second, “such a juror would
conscientiously obey the instructions of the trial court
requiring proof beyond a reasonable doubt.” Id. Finally, and
most importantly here, courts must presume that such a juror
has been “properly instructed.” Id. A “properly instructed”
juror is a juror who has been given “completely accurate”
instructions. See Goldblum v. Klem, 510 F.3d 204, 240 (3d
Cir. 2007); Davies, 394 F.3d at 196 (reviewing an actual
innocence claim and considering the perspective of a properly
instructed juror).       Accordingly, if an instruction was
erroneous when it was given, a court evaluating a claim of
actual innocence must determine whether a correct
instruction, in light of the record, “would change the jurors’
minds as to . . . guilt.” Goldblum, 510 F.3d at 235.

                              II.

        Under this standard, the analysis is straightforward.
As the Majority correctly points out, Arthur Andersen and
Fowler clarified the federal nexus requirement under both the
official proceeding provisions and the law enforcement
investigation-related provisions. Maj. Typescript at 10-14.
Thus, under Bousley and Schlup, we must apply the law as it
currently stands to the record and determine whether “it is
more likely than not that no reasonable juror would have
convicted [Tyler].” Bousley, 523 U.S. at 623 (quotation
marks and citations omitted); see also Ryan, 645 F.3d at 918

actual innocence . . . the Court is not to consider jury
instructions or anything else. It is actual innocence.”) (May
13, 2013).




                               5
(noting that Bousley requires a court to ask “whether,
applying current legal standards to the trial record, [a
petitioner] is entitled to a judgment of acquittal.”).

        To convict on the official proceeding provisions after
Arthur Andersen, the Government must “prov[e] that the
defendant contemplated a particular ‘official proceeding’ that
was foreseeable when he or she engaged in the proscribed
conduct.” United States v. Shavers, 693 F.3d 363, 378 (3d
Cir. 2012). Here, I agree with the Majority, and every court
that has reviewed the facts surrounding Proctor’s murder, that
there is a total absence of proof of an “official proceeding,” as
defined by the statute, of any kind, whether particular,
foreseeable, or otherwise. Maj. Typescript at 16-19; see also
United States v. Bell, 113 F.3d 1345, 1348 (3d Cir. 1997)
(noting, on the appeal of Tyler’s co-defendant, that “there was
no federal proceeding contemplated at the time of Proctor’s
murder”); United States v. Tyler, Crim. No. 96-106, 2012 WL
951479, at *5 (M.D. Pa. Mar. 20, 2012) (“There was no
evidence presented to show that a federal proceeding had
been instituted, about to be instituted, or even contemplated at
the time that Proctor was murdered.”). As a result, under the
law both before and after Arthur Andersen, a reasonable juror
could not find that Tyler engaged in tampering activity with
the intent to interfere with an official proceeding as defined
under the VWPA.5

       5
         While the Majority ostensibly remands to the District
Court to conduct an evidentiary hearing, the directions the
District Court must follow, Maj. Typescript at 23-25, will
almost certainly result in a new trial for Tyler. This is
because the Majority instructs the District Court to vacate the
jury’s verdict if Tyler can establish his actual innocence on




                               6
       This is not the case, however, for the law enforcement
investigation-related provisions. To convict a defendant
under these provisions, the Government must prove that the
defendant tampered with a witness to interfere with a
communication from that witness to a law enforcement
officer, 18 U.S.C. § 1512(a)(1)(C) and (b)(3), and that there
was “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
(emphasis in original). A “law enforcement officer” is an
“officer or employee of the Federal Government, or a person
authorized to act for or on behalf of the Federal Government
or serving the Federal Government as an adviser or consultant
. . . authorized under law to engage in or supervise the
prevention, detection, investigation, or prosecution of an
offense . . . .” 18 U.S.C. § 1515(a)(4)(A). 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.           18 U.S.C. §
1512(g)(2).

        The record shows that a reasonable juror could have
found that it was publicly known that Proctor had been
cooperating with law enforcement and that it was reasonably
likely, based upon the type of information she had and with


just one of the two theories. Maj. Typescript at 25. The
Majority has found that there is “no evidence” of an official
proceeding. Maj. Typescript at 18. Thus, unless the
Government can produce new evidence of an official
proceeding on remand, the Majority’s instructions to the
District Court would likely require vacatur on this ground.




                             7
whom she was speaking, that Proctor would have
communicated with federal officers. According to the trial
record, Proctor was an informant for the Tri-County Drug
Task Force (the “Task Force”), which was comprised of state
and local law enforcement officers. Richard Diller, an agent
with the Pennsylvania Office of Attorney General, Bureau of
Narcotics Investigation, was the Task Force coordinator.
Diller worked closely with, and referred cases to, federal
agencies, including the Drug Enforcement Administration
(“DEA”). Diller regularly advised and consulted with the
DEA, determined whether a case should be brought to federal
law enforcement, and, although not formally deputized, was
authorized to develop cases on behalf of the DEA.

        When Proctor was murdered, she was an informant for
David Fones, a local narcotics detective who worked with the
Task Force. Sometime before her murder, Proctor provided
Fones with information concerning David Tyler’s source for
cocaine in New York City and his ties to Jamaican drug
distributors. According to Fones, the Task Force protocol
required Diller to evaluate information Proctor provided to
determine if it could be used in other investigations, and, to
this end, Fones testified that he would have met with Diller to
discuss a further role for Proctor. Although Diller was not
aware of Proctor’s statements to Fones before her death,
Diller testified that Proctor’s statements to Fones would have
been significant in deciding whether Proctor would have been
a federal witness, and that he intended to refer Proctor to the
DEA as a witness. DEA Special Agent Keith Humphreys
testified that, had he been provided with Proctor’s statements
to Fones, the DEA would have been interested in pursuing
this information and Proctor would have likely been a DEA
witness. Based on this record, and as this Court has already




                              8
concluded, United States v. Tyler, 281 F.3d 84, 99 (3d Cir.
2002), a reasonable juror could find that Diller was a federal
“law enforcement officer” for purposes of the VWPA, who
advised and consulted with the DEA on a regular basis,
frequently referred cases from the Task Force to federal law
enforcement agencies, including the DEA, was the intended
recipient of drug trafficking information from Proctor
concerning multistate and multinational drug dealers, and
intended to refer Proctor to the DEA. Accordingly, a
reasonable juror, properly instructed in accordance with
Fowler, could find that Proctor would have communicated
with law enforcement about drug trafficking and that there
was a reasonable likelihood that one of these communications
would have been made to a federal law enforcement officer.
Because the record belies Tyler’s claim of actual innocence, I
would affirm the District Court’s order dismissing Tyler’s
petition for lack of jurisdiction.

                             III.

       The fact that the jury returned a general verdict does
not impact our ability to evaluate Tyler’s actual innocence
claim. First, the general verdict precedents upon which the
Majority relies, Griffin v. United States, 502 U.S. 46 (1991),
and Syme, 276 F.3d 131, are direct appeal cases that apply a
different and less demanding standard. As direct appeal
cases, Griffin and Syme focus on the actions of the jury.
Under the “actual innocence” standard applicable at this
stage, Bousley and Schlup mandate that the focus be on proof
of Tyler’s actual innocence and not the actions of the jury.
Applying the perspective set forth under Griffin and Syme
both ignores the actual innocence standard and effectively
lessens the burden Tyler must carry to invoke § 2255(e)’s




                              9
safety valve,6 upsetting the balance the Supreme Court
carefully struck when it formulated the demanding actual
innocence standard.

        Second, even assuming Griffin and Syme apply, they
do not require a different result. Griffin states that if the
record shows that there is sufficient evidence to support one
theory but insufficient evidence to support another, then the
jury is presumed to have convicted on the theory that the
evidence supports. Griffin, 502 U.S. at 59-60. Here, there
was no evidence of an official proceeding and thus a
reasonable juror’s verdict would not have been based upon
this theory. This leaves one other basis, the law enforcement
investigation-related provisions, for a reasonable juror to have
returned a guilty verdict. While the verdict was based on an
improper jury instruction, the actual innocence standard
requires that we examine the record in light of a proper
instruction.7 As set forth above, there is sufficient evidence



       6
           Further, the Majority’s application of Griffin and
Syme here appears even more relaxed than it would be on
direct appeal. Indeed, in general verdict cases on direct
appeal, even if a jury was instructed on a legally invalid
theory, the verdict need not be vacated if the instructional
error was harmless. See Skilling v. United States, 130 S. Ct.
2896, 2934 (2010).
        7
          It is true that Syme holds that when “one of two or
more alternative theories supporting a count of conviction is .
. . legally invalid, then the reviewing court should vacate the
jury verdict and remand for a new trial without the invalid or
unconstitutional theory,” Syme, 276 F.3d at 144 (citation
omitted), but the delivery of erroneous jury instructions alone




                              10
from which such a reasonable, properly instructed juror could
have returned a guilty verdict.         Because Tyler cannot
demonstrate that he is actually innocent on both theories of
guilt,8 he cannot satisfy the actual innocence test and thus, I
would conclude that the District Court properly dismissed his
petition.

       For these reasons, I respectfully dissent.



does not satisfy the actual innocence standard. See infra at 3-
4.
       8
         Our decision in United States v. Garth, 188 F.3d 99
(3d Cir. 1999), supports this conclusion. In Garth, the habeas
petitioner had pled guilty to an offense under 18 U.S.C. §
924(c), which could be violated in one of four alternative
ways. Id. at 110. After his conviction, the Supreme Court
narrowed § 924(c) and the petitioner sought relief under §
2255, invoking the actual innocence exception to the
procedural default bar. Id. at 103-05, 107-09. The Garth
majority found that the record supported the petitioner’s
actual innocence claim only after reviewing the evidence on
each of the four possible theories. Id. at 109-114. Thus, the
Garth majority recognized that, in order for a petitioner to be
actually innocent of a criminal statute with alternative means
of committing an offense, such a petitioner must be actually
innocent under each of the alternative theories. The Garth
dissent agreed with the majority on this point. Id. at 114
(Roth, J., dissenting) (agreeing that a petitioner must be
actually innocent of all four alternative theories in order to be
actually innocent of the offense charged, but, upon review of
the record, finding that he was not actually innocent on one of
the theories).




                               11
