                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-11-2002

USA v. Tyler
Precedential or Non-Precedential:

Docket 1-1119




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Filed February 11, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1119

UNITED STATES OF AMERICA

v.

WILLIE TYLER, a/k/a "Little Man"
       Willie Tyler,
          Appellant

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

Argued: September 6, 2001

Before: SCIRICA, RENDELL and ALDISERT, Circuit    Judges

(Filed February 11, 2002)

       LORI J. ULRICH, ESQUIRE
        (ARGUED)
       Office of Federal Public Defender
       100 Chestnut Street, Suite 306
       Harrisburg, Pennsylvania 17101

        Attorney for Appellant
       THEODORE B. SMITH, III, ESQUIRE
        (ARGUED)
       GORDON A. D. ZUBROD, ESQUIRE
       Office of United States Attorney
       Federal Building, Suite 220
       228 Walnut Street
       P.O. Box 11754
       Harrisburg, Pennsylvania 17108

        Attorneys for Appellee

OPINION OF THE COURT

SCIRICA, Circuit Judge:

The central issue on appeal is the constitutionality of the
federal witness tampering statute, 18 U.S.C. S 1512. A jury
convicted Willie Tyler of violating the witness tampering
statute by murdering a potential federal witness. Tyler
claims error in the admission of a statement he submitted
in connection with a previous sentencing. He also
challenges several rulings of the trial court. We will affirm.

I.

Responding to continuing drug trafficking, state and local
law enforcement officers from Cumberland, Perry, and York
Counties formed the Tri-County Drug Force in central
Pennsylvania. In 1991, Doreen Proctor, a resident of
Cumberland County and an informant for the Tri-County
Drug Force, began buying narcotics undercover. On
February 1, 1991, she purchased several grams of cocaine
from David Tyler, the brother of Willie Tyler. In July 1991,
David Tyler was arrested for drug trafficking. Doreen
Proctor testified against David Tyler at his state preliminary
hearing. She was scheduled to testify as a prosecution
witness in David Tyler's trial on April 21, 1992. On that
date, Proctor's severely beaten, lifeless body was found
alongside a country road in neighboring Adams County,
Pennsylvania.

Evidence at trial demonstrated that on April 20, 1992,
the day of Proctor's murder, David Tyler told his brother

                                 2
Willie, "The bitch is going to die tonight," referring to
Doreen Proctor. Later the same evening, an eyewitness saw
Willie Tyler showing David how to cock a sawed-off
shotgun. Another eyewitness said the Tyler brothers tried to
abduct Doreen Proctor earlier that day but failed because
too many cars were in the vicinity. On the night of April 20,
Roberta Ronique Bell, David Tyler's girlfriend, asked Laura
Mae Barrett to babysit her children while she and David
Tyler left for the evening. The next morning, while Barrett
was doing laundry at Bell's house, Bell brought in an
armful of bloody clothing, telling Barrett that she was to
say Bell had been home all evening.

On April 21, 1992, Willie Tyler appeared at the home of
Mary Jane Hodge, where he announced, "It's over. She's
gone." David Tyler then arrived, stating, "[S]he's dead, and
I'll be at court, I'll be in court but that bitch won't." Shortly
after the murder, Barrett returned to Bell's apartment,
where she observed a fervent argument between Bell, Willie
Tyler, and David Tyler. During the argument, Bell told
Willie Tyler, "I shot Doreen, but you killed her." Willie Tyler
became angry, telling Bell to be quiet because someone
could be listening.

II.

On July 9, 1992, David Tyler, Willie Tyler, and Ronique
Bell were arrested by state authorities for the murder of
Doreen Proctor. On May 18, 1993, after a jury trial, Willie
Tyler was acquitted of the murder but convicted of
intimidating a witness.1 The state court ordered a
postconviction presentence investigation. Following an
invitation from the Adams County Probation Office, Tyler
voluntarily submitted a six-page handwritten letter to the
court. Tyler's first four pages described his childhood,
education, and work experiences. In the final two pages,
Tyler acknowledged he had driven his brother to the
murder scene but denied any intent on his part to kill
_________________________________________________________________

1. David Tyler was convicted of murder. Bell was acquitted of all charges,
but was later convicted for murder in a federal trial. We affirmed Bell's
federal conviction. United States v. Bell, 113 F.3d 1345 (3d Cir. 1997).

                               3
Proctor. On July 6, 1993, Tyler was sentenced to two to
four years in state prison.

Federal authorities launched their own investigation into
the death of Doreen Proctor. After his release from state
prison, Tyler was indicted by a federal grand jury on April
16, 1996. In his federal trial, the government introduced
two inculpatory statements by Tyler, one from July 9, 1992
and one from July 20, 1992.2 Tyler was convicted of
conspiracy to tamper with a witness (18 U.S.C. S 371),
tampering with a witness by murder (18 U.S.C.
S 1512(a)(1)(A)), tampering with a witness by intimidation
and threats (18 U.S.C. S 1512(b)(1)-(3)), and a related
firearms offense (18 U.S.C. S 924), and was sentenced to life
imprisonment.

On appeal, we suppressed Tyler's July 9, 1992
statement, finding the police failed to "scrupulously honor"
Tyler's right to remain silent. Tyler, 164 F.3d at 155. We
remanded to determine whether Tyler waived his Miranda
rights before making the July 20 statement. Id. at 159. The
District Court granted Tyler a new trial, finding his post-
arrest statements were obtained in violation of his Sixth
Amendment right to counsel.3 United States v. Tyler, No.
96-106 (M.D. Pa. Feb. 10, 2000).

Before Tyler's second federal trial, an Adams County
probation officer released Tyler's letter written to the state
trial judge to the Pennsylvania State Police, who forwarded
it to the United States Attorney. After the government gave
notice it would introduce the letter during its case-in-chief,
Tyler moved to suppress it on Fourth, Fifth, and Sixth
Amendment grounds. Denying Tyler's motion, the District
Court allowed the prosecution to introduce the letter.
_________________________________________________________________

2. On July 9, 1992, the night of his arrest, Tyler made an inculpatory
statement while in police custody and after being warned of his Miranda
rights. On July 20, 1992, Tyler made another inculpatory statement to
police.

3. The District Court found "glaring inconsistencies" between a report
written by one police trooper present and testimony elicited from another
detective at a later suppression hearing. United States v. Tyler, 164 F.3d
150, 153-54 (3d Cir. 1998).

                               4
Tyler was acquitted of conspiracy but found guilty of
tampering with a witness by murder (18 U.S.C.
S 1512(a)(1)(A)), tampering with a witness by intimidation
and threats (18 U.S.C. S 1512(b)(1)-(3)), and using a firearm
during and in relation to a crime of violence (18 U.S.C.
S 924(c)). On January 5, 2001, Tyler was sentenced to life
imprisonment.4 This appeal followed.

III.

The District Court had subject matter jurisdiction under
18 U.S.C. S 3231. We have jurisdiction under 28 U.S.C.
S 1291.

IV.

Initially, we consider the constitutionality of the Witness
Tampering Act, 18 U.S.C. S 1512. Tyler contends the
statute is unconstitutional because it is impermissibly
vague, exceeds Congress's constitutional authority under
the Necessary and Proper Clause, and violates due process
by eliminating the prosecutor's burden of proving scienter.
Exercising plenary review, United States v. Bishop, 66 F.3d
569, 576 (3d Cir. 1995), we find these arguments
unconvincing.

A.

18 U.S.C. S 1512, entitled "Tampering with a witness,
victim, or informant," provides:

       (a)(1) Whoever kills or attempts to kill another person,
       with intent to--

        (A) prevent the attendance or testimony of any
       person in an official proceeding;
_________________________________________________________________

4. Tyler received life imprisonment on the tampering-by-murder charge
and ten years' imprisonment on the tampering-by-intimidation charge, to
be served concurrently. Tyler was also sentenced to five years on the
firearm charge, served consecutively with the tampering-by-murder
charge, fined $5,000.00, and ordered to pay special assessments
amounting to $150.00.

                               5
        (B) prevent the production of a record, document, or
       other object, 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 as provided in paragraph (2).

       . . .

       (b) Whoever knowingly uses intimidation or physical
       force, 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;

         (C) evade legal process summoning that person to
       appear as a witness, or to produce a record, document,
       or other object, in an official proceeding; or

         (D) be absent from an official proceeding to which
       such person has been summoned by legal process; or

        (3) hinder, delay, or prevent the communication to a
       law enforcement officer or judge of the United States 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 fined under this title or imprisoned not more
than ten years, or both.

       . . .

                               6
       (e) For the purposes of this section--

        (1) an official proceeding need not be pending or
       about to be instituted at the time of the offense . . . .

       . . .

       (f) In a prosecution for an offense under this section,
       no state of mind need be proved with respect to the
       circumstance--

        (1) that the official proceeding before a judge, court,
       magistrate, grand jury, or government agency is before
       a judge or court of the United States, a United States
       magistrate, a bankruptcy judge, a Federal grand jury,
       or a Federal Government agency; or

        (2) that the judge is a judge of the United States or
       that the 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
       advisor or consultant.

Sections (a) and (b) of S 1512 each contain state-of-mind
requirements on the defendant's intent to obstruct justice.
But under the statute, the prosecution need not prove a
defendant's state of mind about the federal nature of the
proceeding (S 1512(f)(1)) or that the law enforcement officer
is acting on behalf of the federal government (S 1512(f)(2)).
Tyler contends the failure to include mens rea requirements
for those elements provides no guidance for conviction,
violating his due process rights under the Fifth Amendment
and rendering the statute void for vagueness. In his briefs
and at oral argument, Tyler supports this argument with
little more than a citation to Kolender v. Lawson, 461 U.S.
352 (1983).5
_________________________________________________________________

5. In Kolender, the Supreme Court held the void-for-vagueness doctrine
"requires that a penal statute define the criminal offense with sufficient
definiteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary and
discriminatory enforcement." Id. at 357 (quotations and citations
omitted). The Court also indicated the second element was more
"important," because without "minimal guidelines, a criminal statute
may permit a standardless sweep [that] allows policemen, prosecutors,
and juries to pursue their personal predilections." Id. at 358 (quotations
and citations omitted).

                               7
Tyler's argument is essentially a facial challenge to the
constitutionality of 18 U.S.C. S 1512. We will address it as
such.6 First, we note S 1512 is not bereft of scienter
requirements. Tyler was convicted under S 1512(a)
(tampering with a witness by murder) and S 1512(b)
(tampering with a witness by intimidation and threats),
both of which expressly contain "with intent to" provisions.
At issue is whether the scienter requirements apply to
S 1512(f), which addresses the defendant's knowledge that
the proceeding is a federal one (S 1512(f)(1)) and the
defendant's knowledge that the judge or law enforcement
officer is acting "for or on behalf of " the federal government
S 1512(f)(2)).

Due process requires that a penal statute give persons of
"common intelligence" fair notice about "what the State
commands or forbids." Lanzetta v. New Jersey , 306 U.S.
451, 453 (1939); Artway v. Attorney Gen., 81 F.3d 1235,
1269 (3d Cir. 1996). The plain language of S 1512 forbids a
person from preventing a potential witness from attending
or testifying at an "official proceeding" by killing or
intimidating the potential federal witness. Providing fair
notice regarding the conduct it prohibits, the statute
complies with the requirements of constitutional due
process.

Furthermore, the evidence presented at trial
demonstrated Tyler knew Doreen Proctor would be
testifying against his brother in a federal prosecution.
_________________________________________________________________

6. Because Tyler's conduct is so clearly prohibited by S 1512, we
question whether he has standing to challenge the statute's vagueness
in all its applications. Cf. Village of Hoffman Estates v. Flipside,
Hoffman
Estates, Inc., 455 U.S. 489, 495 (1982) ("A plaintiff who engages in some
conduct that is clearly proscribed cannot complain of the vagueness of
the law as applied to the conduct of others."); United States v. Loy, 237
F.3d 251, 259 (3d Cir. 2001) ("A typical vagueness challenge . . . can
only be raised by a defendant whose own conduct arguably did not fall
within the terms of the statute . . . .") (citing United States v. Nat'l
Dairy
Prods. Corp., 372 U.S. 29, 32-33 (1963)). But as we reject Tyler's facial
challenge to S 1512, so would we reject a challenge to the statute "as
applied" to Tyler. Of course, that Congress could have more precisely
drafted a criminal statute does not render the statute unconstitutional.
United States v. Powell, 423 U.S. 87, 94 (1975).

                               8
Unlawful conduct that obstructed her giving testimony was
directly proscribed by S 1512. The jury was charged that to
convict Tyler, they would have to find (1) he killed or
attempted to kill Doreen Proctor; (2) he was motivated by a
desire to prevent her from communicating with a law
enforcement officer about a federal offense; and (3) the
officers with whom Tyler believed Proctor might
communicate were federal officers. These instructions
complied with the elements of the statute. The defendant
need not know the law enforcement officers in the
proceeding are federally connected. Bell, 113 F.3d at 1348
("While the statute thus limits its reach to tampering that
affects a federal proceeding or investigation, it expressly
does not require that the defendant know or intend
anything with respect to this federal character."); United
States v. Porter, 977 F. Supp. 679, 681 (M.D. Pa. 1997).
The government proved Tyler's conduct constituted a
federal crime and that Tyler communicated with federal
officers. Therefore, it met the requirements for conviction
under S 1512. Tyler's vagueness challenge lacks merit.

B.

Tyler contends 18 U.S.C. S 1512 exceeds Congress's
scope of authority under the Necessary and Proper Clause,
Article I, Section 8, Clause 18 of the United States
Constitution.7 Specifically, Tyler claims the statute permits
convictions when no federal interest is implicated, i.e.,
when no federal proceeding is contemplated and when a
victim did not intend to cooperate with a federal officer. We
disagree.

Section 1512 is consistent with Congress's "necessary
and proper" power to regulate the dispensation of justice in
federal courts. Congress retains authority to "create, define,
and punish, crimes and offenses, whenever they shall deem
it necessary and proper by law to do so, for effectuating the
_________________________________________________________________

7. The Necessary and Proper Clause empowers Congress "[t]o make all
Laws which shall be necessary and proper for carrying into Execution
the foregoing Powers, and all other Powers vested by this Constitution in
the Government of the United States, or in any Department or Officer
thereof." U.S. CONST. art. I, S 8, cl. 18.

                               9
objects of the Government." United States v. Worrall, 2 U.S.
(1 Dall.) 384 (1798).8 The Court of Appeals for the Ninth
Circuit employed this rationale to find a similar
obstruction-of-justice statute constitutional. Catrino v.
United States, 176 F.2d 884, 887 (9th Cir. 1949) ("The . . .
statute is an outgrowth of Congressional recognition of the
variety of corrupt methods by which the proper
administration of justice may be impeded or thwarted
. . . .").9 Many provisions in the first federal crimes act,
including ones relating to perjury and bribery,"were plainly
necessary and proper to the operation of the federal
courts." DAVID P. CURRIE, THE CONSTITUTION IN CONGRESS: THE

FEDERALIST PERIOD, 1789-1801, at 96-97 (1997).
_________________________________________________________________

8. The parties did not address whether the Clause itself, or some other
constitutional provision undergirding the Clause, is the constitutional
justification for 18 U.S.C. S 1512. But on either basis the statute is
constitutional. The Necessary and Proper Clause has served as the
textual source for criminal laws dating to the time of M'Culloch v.
Maryland, 17 U.S. (4 Wheat.) 316 (1819). In that case, Chief Justice
Marshall declared constitutional "the punishment of the crimes of
stealing or falsifying a record or process of a court of the United
States,
or of perjury in such court," laws the Court found "certainly conducive
to the due administration of justice." Id. at 417. Alternatively, the
Witness Tampering Act could be seen as a manifestation of Congress's
constitutional authority to carry out its enumerated powers, including
the creation of "[t]ribunals inferior to the[S]upreme Court." U.S. CONST.
art. I, S 8, cl. 9. Congress began legislating in this area with the
Judiciary Act of 1789, Act of Sept. 24, 1789, ch. 20, 1 Stat. 73, and its
authority has not been called into doubt. See Hanna v. Plumer, 380 U.S.
460, 472 (1965) (Congress has "power to make rules governing the
practice and pleading" in federal courts); Sibbach v. Wilson & Co., 312
U.S. 1, 9 (1941) ("Congress has undoubted power to regulate the practice
and procedure of federal courts."); see also Cohens v. Virginia, 19 U.S.
(6
Wheat.) 264 (1824) ("Congress is not a local legislature . . . . The
American people thought it a necessary power . . . . Being so conferred,
it carries with it all those incidental powers which are necessary to its
complete and effectual execution.").

9. Because the Constitution enumerates so few criminal proscriptions,
"almost the entirety of the federal criminal justice system is built upon
a Necessary and Proper Clause foundation." Evan H. Caminker,
"Appropriate" Means-Ends Constraints on Section 5 Powers, 53 STAN. L.
REV. 1127, 1140 (2001).

                               10
Printz v. United States, 521 U.S. 898 (1997), on which
Tyler relies, does not support the argument thatS 1512 is
unconstitutional. In Printz, the Supreme Court declared
that portions of the Brady Handgun Law requiring state
officers to conduct federally mandated background checks
violated principles of state sovereignty. Id. at 923-24. In
contrast, S 1512 implicates no principles of state
sovereignty, focusing instead on private conduct
substantially affecting federal law enforcement. The statute,
like other federal criminal statutes found constitutional,
"involve[s] an assertion of authority, duly guarded, auxiliary
to incontestable national power." Greenwood v. United
States, 350 U.S. 366, 375 (1956).10

C.

Citing United States v. X-Citement Video, Inc. , 513 U.S. 64
(1994), Tyler contends S 1512 violates the Due Process
Clause of the Fifth Amendment by relieving the
government's burden of proving scienter. Sections
1512(e)(1), 1512(f)(1), and 1512(f)(2), according to Tyler,
unconstitutionally permitted conviction even if the
government failed to prove he interfered with a federal
proceeding, intended to affect a federal proceeding, or
intended to prevent communication to a federally
authorized law enforcement officer. We disagree.

As stated, we have upheld S 1512's scienter
requirements. Bell, 113 F.3d at 1351 ("the government need
not prove any state of mind on the part of the defendant
with respect to the federal character of the proceeding or
law-enforcement-officer communication that it alleges [the
defendant] intended to interfere with or prevent"). In X-
Citement Video, the Supreme Court considered a situation
in which a statute criminalizes "otherwise innocent
conduct." 513 U.S. at 72-73. In that context, the Court
found scienter requirements should be applied broadly. Id.11
_________________________________________________________________

10. We likewise dismiss Tyler's "alternative" contention that the statute
is constitutional as applied only to conduct with a"substantial" effect on
a federal officer or proceeding. Tyler's conduct meets even this putative
test.
11. "Criminal intent serves to separate those who understand the
wrongful nature of their act from those who do not, but does not require
knowledge of the precise consequences that may flow from that act once
aware that the act is wrongful." Id. at 73 n.3.

                               11
Tyler cannot reasonably allege his participation in the
intimidation and murder of Doreen Proctor was "otherwise
innocent." There is no constitutional rationale for applying
scienter requirements to S 1512(e), S 1512(f)(1), and
S 1512(f)(2). Congress plainly intended to omit a state-of-
mind requirement with regard to the federal connection. We
see no constitutional infirmity here.

V.

Tyler contends the District Court violated his Fourth,
Fifth, and Sixth Amendment rights by admitting into
evidence a letter written to his state court judge in
anticipation of sentencing. Before resting its case, the
government read parts of it into the record. Thereafter,
Tyler's attorney read different portions of his letter into the
record -- those describing Tyler's personal background.
Both counsel referred to the letter in closing arguments.

We exercise plenary review over alleged constitutional
errors. United States v. Leggett, 162 F.3d 237, 245 (3d Cir.
1998).

A.

Tyler contends the government obtained his letter in
violation of the Fourth Amendment. Tyler claims he had a
"legitimate expectation of privacy," violated by the
government's "seizing" the presentence letter without a
warrant or court order. But Tyler had no reasonable
expectation of privacy in a letter he voluntarily drafted for
his state court judge.

After a request from the federal prosecutor, Tyler's state
sentencing judge turned over the letter on March 22, 2000.
The court order states the letter is to be delivered"for
purposes of a handwriting analysis." No further explanation
was given. But the Assistant United States Attorney
testified he "requested and received permission" from the
judge "to take possession of the original letter for
fingerprinting, handwriting analysis, and use at the retrial
of Willie Tyler." A letter bearing Tyler's signature would
require authentication before use at trial.

                               12
Tyler could not reasonably expect a cloak of
confidentiality. He knew the letter would be considered by
the state court judge in sentencing, an open proceeding.
Nothing prevented the sentencing judge from referring to
the letter's contents from the bench. Furthermore, Tyler
desired its consideration. He had no reasonable expectation
that the letter would not become public. Therefore, we find
no search or seizure by the government in requesting and
receiving the letter.12 Regardless, Tyler consented to any
"search" or "seizure." We reject Tyler's Fourth Amendment
claim.

B.

Tyler contends he wrote the letter without knowing it
could be used against him in future proceedings, violating
his Fifth Amendment right against self-incrimination. Citing
Estelle v. Smith, 451 U.S. 454, 469-71 (1981), Tyler
contends at least he should have been advised of his
Miranda rights before writing his letter.

The District Court found that Tyler knew of his Fifth
Amendment rights before voluntarily writing his state
sentencing judge. The Fifth Amendment right against self-
incrimination must be claimed when self-incrimination is
threatened. Ordinarily, it cannot be reserved for future
constitutional battles. Minnesota v. Murphy, 465 U.S. 420,
427-28 (1984) (observing an individual may lose the benefit
of the privilege even absent a knowing waiver). As the
Supreme Court noted in Murphy, "a witness confronted
with questions that the government should reasonably
expect to elicit incriminating evidence ordinarily must
assert the privilege rather than answer if he desires not to
incriminate himself." Id. at 429. Tyler voluntarily chose to
provide information he believed would benefit him at
sentencing. Therefore, assuming a Fifth Amendment
privilege existed, Tyler waived and forfeited its benefits.
_________________________________________________________________

12. Nor did the prosecution's reading the letter constitute a "search" or
"seizure." Accord United States v. Snowadzki, 723 F.2d 1427, 1430 (9th
Cir. 1984) ("The courts have never indicated that the government
conducts a `search' by reading documents in its possession.").

                               13
Of course, the general rule prohibiting Tyler from
reserving his Fifth Amendment right against self-
incrimination would not apply to statements obtained
through "inherently coercive custodial interrogations," if
there was "some identifiable factor [denying] the individual
a free choice to admit, to deny, or to refuse to answer." Id.
at 429. Although Tyler composed his letter in custody,
there was no "inherently coercive custodial interrogation."
The District Court found:

       First . . . Tyler knew about his Fifth Amendment rights
       before the interview. Second, he does not assert that he
       was compelled to participate. Indeed, he was advised
       that the letter was voluntary and could focus on
       anything he wanted to say, not necessarily the crime.
       Third, the probation officer is not a police officer. He
       does not interrogate; he gathers information for the
       court's sentencing decision. Additionally, Tyler does not
       aver that he would have been penalized if he did not
       write the letter.

Tyler, No. 96-106, at 16-17. Nor was the letter a response
to interrogation. Put simply, there was no interrogation
under the Fifth Amendment. We have never held a
probation officer must administer Miranda warnings before
conducting presentence interviews. See United States v.
Frierson, 945 F.2d 650, 660 n.5 (3d Cir. 1991) (observing
this position is consistent with those in other circuits).

Tyler also contends the probation office's disclosure of his
letter to federal prosecutors violated the Fifth Amendment.
Claiming the nature of his presentence "interview" had
changed, exposing him to future federal prosecution, Tyler
maintains he should have been warned his letter could be
used against him. But there is no evidence the probation
officer believed the letter might some day be used in a
future federal proceeding. The probation officer had no
obligation to provide Miranda warnings to Tyler solely
because of the possibility of federal prosecution. See
Frierson, 945 F.2d at 662 (contrasting cases in which
defendants voluntarily respond to questions, "deny[ing] a
portion of criminal conduct that the court found to have
taken place," with those in which defendants"consistently
rel[y] on [their] privilege[s] when questioned about related

                                14
conduct beyond the offense of conviction").13 Moreover, as
previously stated, the Fifth Amendment does not apply to
the facts here, where Tyler voluntarily submitted a letter as
part of a presentence interview by a probation officer. We
reject both of Tyler's contentions based on alleged Fifth
Amendment violations.

C.

Tyler suggests the probation officer violated his Sixth
Amendment right to counsel by failing to notify his state
court attorney when it invited him to write his sentencing
judge. As noted, Tyler voluntarily wrote his state court
judge, hoping to reduce his impending sentence. 14 Tyler's
decision to contact his judge was entirely elective, and for
purposes of the Sixth Amendment, the probation office did
not need to inform Tyler's state court counsel.

Though not dispositive, we also observe no court has
found the Sixth Amendment right to counsel applies to
routine presentence interviews. E.g., Castro v. Ward, 138
F.3d 810, 821-22 (10th Cir. 1998) (no Sixth Amendment
violation where a convicted murderer voluntarily offered an
inculpatory statement after receiving his Miranda rights);
United States v. Washington, 11 F.3d 1510, 1517 (10th Cir.
1993) ("Routine presentence interviews generally do not
require Miranda warnings, even if the defendant is in
custody facing serious punishment."); United States v.
Tisdale, 952 F.2d 934, 939-40 (6th Cir. 1992) ("Because the
_________________________________________________________________

13. We also reject Tyler's argument that after Mitchell v. United States,
526 U.S. 314, 328-29 (1999), decisions refusing to find the Fifth
Amendment applies in the context of presentence interviews "should be
reconsidered." Mitchell held a sentencing court could not draw adverse
inferences from a convict's silence in determining facts related to the
crime. Id. That situation is quite removed from one in which a convict
voluntarily provides the sentencing judge with information. The Fifth
Amendment provides "[n]o person . . . shall be compelled in any criminal
case to be a witness against himself." U.S. CONST. amend. V. Even the
most generous interpretation of "compelled" testimony would not include
Tyler's presentence letter.

14. The record does not indicate Tyler requested and was denied the
assistance of counsel in drafting the letter.

                               15
probation officer does not act on behalf of the prosecution
. . . a presentence interview in a non-capital case is not a
`critical stage' . . . ."); United States v. Hicks, 948 F.2d 877,
885-86 (4th Cir. 1991) (sentencing judges exercise
"independent discretion and judgment in determining a
defendant's sentence" and the denial of counsel in this
context is "constitutionally insignificant"); Baumann v.
United States, 692 F.2d 565, 578 (9th Cir. 1982)
(presentence interview not a "critical stage" given the
sentencing judge's "wide discretion" in sentencing);15 United
States v. Woods, 907 F.2d 1540, 1543 (5th Cir. 1990)
(same); United States v. Jackson, 886 F.2d 838, 844-45 (7th
Cir. 1989) (same).

The Sixth Amendment does not apply in this case. Tyler
voluntarily participated in the presentence investigation.
Furthermore, there is no evidence that Tyler's counsel was
excluded from the presentence process or that Tyler was
forced to proceed without assistance of counsel. The Court
of Appeals for the Second Circuit's rationale in United
States v. Colon, 905 F.2d 580, 588 (2d Cir. 1990), is
instructive:

       Counsel was surely aware that [the defendant] had to
       be interviewed before sentencing, and counsel made no
       objection. He was also aware at sentencing of the
       damaging admissions made by [the defendant] in the
       interview and still raised no [Sixth Amendment]
       objection. Even if we assume that it was error for the
       court to receive the statements, the error was not so
       "plain" that the trial judge and prosecutor were derelict
       in countenancing it, even absent the defendant's timely
       assistance in detecting it.16
_________________________________________________________________

15. In United States v. Herrera-Figueroa, 918 F.2d 1430, 1433 (9th Cir.
1990), the Court of Appeals for the Ninth Circuit reserved the question
of whether after the imposition of the federal Sentencing Guidelines, the
presentence interview represented a "critical stage" in federal courts
given the reduced discretion in sentencing. The court held probation
officers must permit defendants, if they request, to have attorneys
present at such interviews as "an exercise of our supervisory power over
the orderly administration of justice in the Ninth Circuit." Id.

16. Though this case concerns Tyler's letter, not his presentence
interview, the rationale in Colon remains persuasive. Because a

                                16
We also reject Tyler's analogy between his letter and a
pretrial psychiatric interview. The Supreme Court declared
the latter a "critical stage" of criminal proceedings, directly
implicating the accused's Sixth Amendment rights. Estelle,
451 U.S. at 469-71. But as the Court of Appeals for the
Ninth Circuit held, Estelle's holding is properly limited to its
facts, where the state neither informs defense counsel of its
mental examination of the defendant during capital murder
proceedings nor allows the defendant assistance of counsel.
Baumann, 692 F.2d at 577-78 (contrasting "critical"
determinations in capital-case mental examinations with
usual sentencing phases). As in Baumann, and unlike in
Estelle, Tyler's state court sentencing judge did not need to
find aggravating factors beyond a reasonable doubt. Id. at
576. Tyler's written submission was a lawful practice in
Pennsylvania, providing information the sentencing court,
at its discretion, could consider when imposing sentence.
The Sixth Amendment does not attach to this voluntary
practice.17

Nor did federal prosecutors obtain the letter in violation
of Tyler's Sixth Amendment right to counsel. The Sixth
Amendment is ordinarily "offense specific." McNeil v.
Wisconsin, 501 U.S. 171, 175 (1991). Although Sixth
Amendment guarantees may apply to uncharged crimes
factually related to charged offenses, Texas v. Cobb, 532
U.S. 162 (2001) (citing Blockburger v. United States, 284
U.S. 299 (1932)),18 we do not find the Sixth Amendment
barred use of Tyler's letter at his later federal trial.
_________________________________________________________________

sentencing judge may constitutionally question a convicted defendant
appearing without counsel before sentencing, so can the judge consider
a letter submitted voluntarily by the convicted defendant without
violating the Sixth Amendment, even if the letter is sent without
counsel's knowledge.
17. For the reasons stated, we also reject Tyler's passing argument,
presented in a footnote, that the United States violated his "additional"
right to counsel found in the Fifth Amendment and based on the right
against self-incrimination.

18. On April 2, 2001, three days after Tyler submitted his briefs, the
Supreme Court issued the Cobb opinion, which abrogated our holding in
United States v. Arnold, 106 F.3d 37 (3d Cir. 1997). Arnold had
established a limited exception to the offense-specific rule where two
prosecutions are "closely related." We will employ the "factually related"
language and analysis from Cobb in our resolution of Tyler's appeal.

                               17
As noted, Tyler's Sixth Amendment rights were not
violated by the probation officer's solicitation or receipt of
the letter. Had the events giving rise to Tyler's state and
federal trials met the Blockburger test, 19 Tyler's Sixth
Amendment rights never attached in the first instance. We
also find unpersuasive Tyler's suggestion that the
presentence investigation was the "halfway point" between
successive state and federal prosecutions. As the District
Court found, the government had not initiated its
prosecution of Tyler when he wrote the letter. Tyler, No. 96-
106, at 13. Almost three years passed between Tyler's
drafting his presentence letter and his first federal
indictment. This interlude demonstrates the probation
office acted as a neutral factfinder for Tyler's state
sentencing judge, not as an agent for federal prosecutors.
Accord Jackson, 886 F.2d at 844 ("The probation officer
does not have an adversarial role in the sentencing
proceedings. . . . [T]he probation officer serves as a neutral
information gatherer for the sentencing judge."). 20 We reject
both of Tyler's Sixth Amendment claims.

D.

Tyler contends the presentence statement was provided
by the probation office to the Pennsylvania State Police in
violation of his rights to confidentiality and privacy. We
have already rejected Tyler's constitutional claims in this
context. We will not consider the application of state law --
specifically S 9733 of the Pennsylvania Judicial Code21 --
where no federal constitutional principles are implicated.
Having rejected Tyler's constitutional arguments regarding
_________________________________________________________________

19. In Blockburger v. United States, 284 U.S. 299 (1932), the Supreme
Court explained that "where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether each
provision requires proof of a fact which the other does not." Id. at 304.
At least arguably, the same standards that would have convicted Tyler
in state court would result in a federal court conviction.

20. This language from Jackson concerned federal probation officers, but
the rationale relating to the role of state probation officers is the
same.

21. 42 PA. CONS. STAT. ANN. S 9733 (West 2001).

                               18
the use of his letter in the federal proceeding, no further
federal issues relating to the letter remain. On the facts
here, we will not supervise the state courts' application of
state law.

VI.

Tyler also challenges several District Court trial rulings.

A.

Tyler contends certain statements made at trial by
Carlisle Detective David Fones were inadmissible hearsay.
Fones testified that Doreen Proctor, while working
undercover for the Tri-County Drug Force, told him Tyler's
brother David had traveled outside of Pennsylvania to
obtain drugs, providing statutory jurisdiction for
prosecuting Willie Tyler and David Tyler for federal witness
tampering. We review for abuse of discretion. United States
v. Saada, 212 F.3d 210, 220 (3d Cir. 2000).

The statements were offered only to demonstrate that
federal officials had jurisdiction to initiate a federal drug
investigation. The hearsay rule excludes "verbal acts,"
statements which themselves "affect[ ] the legal rights of the
parties or [are] circumstance[s] bearing on conduct affecting
their rights." FED. R. EVID. 801(c) advisory committee's note.
In this sense, the veracity of Proctor's statement to Fones
was irrelevant. Even if David Tyler did not actually operate
his drug business outside of Pennsylvania, as Proctor
indicated, Proctor's statement provided a jurisdictional
basis for initiating a federal investigation into Tyler's
activities. As such, the statements were not hearsay. Cf.
Kulick v. Pocono Downs Racing Ass'n, Inc., 816 F.2d 895,
897 n.3 (3d Cir. 1987) (testimony of track president's
statement not hearsay where not offered to prove truth of
its assertions but simply to demonstrate state action). The
District Court properly allowed the testimony.

B.

Tyler contends the government, at closing argument,
impermissibly referred to evidence outside the record,

                               19
specifically the trials of Ronique Bell and David Tyler. We
see no error.22 With respect to the prosecution's references
to Bell's trial, Tyler's counsel invited those references on
cross-examination by asking questions of Laura Mae
Barrett about her involvement in Bell's federal trial.
Regardless, the District Court properly instructed the jury:

       What may have been said or happened in other cases
       is not evidence that you can consider against Mr. Tyler.
       You must rely on the evidence and only the evidence
       that you heard in this courtroom in determining the
       guilt or innocence of Mr. Tyler, and you should not be
       -- you should not credit or use as a factual -- as a
       basis for finding any facts what might have occurred in
       another case involving other parties.

Tyler's counsel expressed satisfaction with the instruction.

Moreover, the record contained several references to
Willie Tyler's participation in his brother's drug trade.
Ronique Bell's involvement in David Tyler's drug trade also
provided Bell a motive to murder Proctor. Bell, 113 F.3d at
1350. Whether or not Willie Tyler sold narcotics himself,
the evidence demonstrated he faced federal prosecution for
Proctor's murder. The District Court, at Tyler's request,
properly instructed the jury:

       First of all, I want to emphasize that this case is not
       about selling narcotics, and there has been no
       contention and there is no evidence that Mr. Tyler was
       engaged in the sale of narcotics. So if that got into this
       case in any way, the government is not arguing that
       that occurred at all . . . .

Tyler's counsel expressed satisfaction with the instruction.
We see no error.
_________________________________________________________________

22. The record is ambiguous regarding the objections made by Tyler's
attorney during the prosecutor's closing argument. Tyler's attorney
seems to have objected to a reference to Bell's trial. She did not object
to the mention of Willie Tyler's trial. But earlier in the prosecutor's
closing argument, the District Court granted Tyler's attorney a
"continuing objection" to the prosecutor's argument and asked Tyler's
attorney "not to interrupt" further. Given the District Court's
instruction,
we will review statements made by the prosecutor for error, not plain
error.

                                20
C.

Tyler contends the evidence was insufficient to prove
Doreen Proctor would communicate with a federal law
enforcement officer. Reviewing a claim of insufficiency, we
"view the evidence in the light most favorable to the
government and must sustain a jury's verdict if`a
reasonable jury believing the government's evidence could
find beyond a reasonable doubt that the government proved
all the elements of the offenses.' " United States v. Rosario,
118 F.3d 160, 163 (3d Cir. 1997) (quoting United States v.
Salmon, 944 F.2d 1106, 1113 (3d Cir. 1991)). Tyler cannot
meet this "heavy burden." Id.

The evidence showed Ronald Diller, who coordinated the
Tri-County Drug Force, served the federal government as a
"law enforcement officer" under 18 U.S.C.S 1515(a)(4).23
Diller "would advise and consult" with the federal Drug
Enforcement Agency (DEA) "on a regular basis," and he had
authority to develop cases. Indeed, Diller intended to refer
Doreen Proctor to the DEA as a potential federal witness.
The government need not have demonstrated Tyler believed
Proctor would communicate with persons whom Tyler
"knew or believed to be federal officers." Bell, 113 F.3d at
1349. Section 1512 requires "proof that the officers with
whom the defendant believed the victim might
communicate would in fact be federal officers." Id. Viewing
the evidence in the light most favorable to the government,
we reject Tyler's contention.

D.

Tyler suggests the District Court violated his
constitutional right to confront witnesses by admitting
testimony from Laura May Barrett that she heard Ronique
Bell say to Tyler, "I shot Doreen, but you killed her." At
trial, Tyler's counsel objected to this statement on reliability
grounds but conceded it was otherwise admissible under
_________________________________________________________________

23. That statute provides, "[T]he term`law enforcement officer' means 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 . . . ."

                               21
the co-conspirator exception to the hearsay rule. 24 On
appeal, Tyler raises Confrontation Clause concerns about
the statement for the first time. The failure to object on
those grounds at trial means the Confrontation Clause
issue was not preserved for appeal. United States v. Gibbs,
739 F.2d 838, 847-50 (3d Cir. 1984) (en banc) (rejecting
analogous arguments -- that the government failed to
demonstrate the reliability of a co-conspirator's statement
or the unavailability of the declarant -- where no objection
was made at trial). As in Gibbs, the absence of evidence to
show Bell's "unavailability" to testify is attributable to
Tyler's failure to put the government on notice of its
necessity. Id.

Given Tyler's failure to object, we review only for plain
error. See United States v. Olano, 507 U.S. 725, 734 (1993)
(plain error must be "obvious" and have "affected the
outcome of the district court proceedings"). We do not find
the statement resulted in a "miscarriage of justice" or was
otherwise "highly prejudicial." Virgin Islands v. Charleswell,
24 F.3d 571, 576 (3d Cir. 1994). Provided an out-of-court
statement qualifies under Rule 801(d)(2)(E), the
Confrontation Clause does not require the proponent of the
statement to prove the declarant is unavailable. United
States v. Inadi, 475 U.S. 387, 399-400 (1986). 25 And in
_________________________________________________________________

24. Fed. R. Evid. 801(d)(2)(E) provides in part,"A statement is not
hearsay if . . . [it] is offered against a party and is . . . a statement
by
a co-conspirator of a party during the course and in furtherance of the
conspiracy."

25. In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court said the
"general approach" required the government to demonstrate the
unavailability of the declarant whose statement the government wished
to use against the defendant. Id. at 65. Six years later, Inadi clarified
that Roberts does not stand for a blanket proposition that "no out-of-
court statement can be introduced . . . without a showing that the
declarant is unavailable." 475 U.S. at 394. Specifically, the Inadi Court
found the Confrontation Clause does not require a showing of
unavailability as a prerequisite to the admission of a co-conspirator's
statement under Rule 801(d)(2)(E). Id. at 399-400. Tyler contends Idaho
v. Wright, 497 U.S. 805 (1990), re-established that the government must
demonstrate unavailability in such circumstances. But Idaho did not
explicitly overrule Inadi; indeed, Idaho cited Inadi's holding. Id. at
815.

                               22
Bourjaily v. United States, 483 U.S. 171 (1987), the
Supreme Court held the co-conspirator exception is"firmly
rooted in our jurisprudence" so that a court"need not
independently inquire into the reliability of such
statements." Id. at 483. Therefore, the District Court need
not have independently analyzed the reliability of Barrett's
statement. We see no plain error.

E.

Tyler challenges the District Court's failure to conduct a
charge conference under Fed. R. Crim. P. 30. But there is
no error if the defense made specific objections to the
charge or the failure to charge on particular points. United
States v. Pelullo, 964 F.2d 193, 220-21 (3d Cir. 1992). The
District Court heard objections outside the jury's hearing.
The Court gave additional instructions requested by
counsel. Tyler's counsel expressed satisfaction with the
final instructions to the jury. We see no error.

The government did not misstate the law in closing
argument by using the phrase "potential federal witness,"
which was consistent with the District Court's instructions
and was clarified in response to a jury inquiry. Nor did the
prosecutor's comment regarding Tyler's response to the Bell
accusation constitute reversible error, as the evidence
showed Tyler responded with an admonition to remain
silent.26
_________________________________________________________________

Moreover, Idaho did not concern the statement of a co-conspirator, but
the statement of a three-year-old. Id. at 810-12. Under the current
formulation of the Rules of Evidence, "unavailability" is only required if
the particular hearsay exception requires it. White v. Illinois, 502 U.S.
346, 356-57 (1992); see also 2 MCCORMICK ON EVIDENCES 246, at 124
(John W. Strong ed., 5th ed. 1999). Rule 801(d)(2)(E) contains no such
requirement.

26. Furthermore, our review of the record demonstrates there was
sufficient evidence to convict Tyler absent the letter, rendering its
admission, at most, harmless error. A non-constitutional error
committed at trial does not warrant reversal in circumstances where "it
is highly probable that the error did not contribute to the judgment."
United States v. Helbling, 209 F.3d 226, 241 (3d Cir. 2000). We may be

                               23
VII.

For the foregoing reasons we will affirm the judgment of
conviction and sentence.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

_________________________________________________________________

firmly convinced that the alleged error was "harmless" without disproving
every "reasonable possibility" of prejudice, United States v. Jannotti,
729
F.2d 213, 220 n.2 (3d Cir. 1984), and we may affirm on any ground
supported by the record, Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.
2000) (en banc). The testimonial evidence against Tyler was sufficient to
convict him of intimidating and killing Doreen Proctor, conspiring to
tamper with a witness, and using a firearm during the commission of a
crime of violence.


                               24
