U.S. v. Baldyga, 99-2008

• Decision Date: 14 August 2000
• Docket Number: No. 99-2008,99-2008
• Parties: (1st Cir. 2000) UNITED STATES OF AMERICA, Appellee, v. GERALD BALDYGA, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 674

233 F.3d 674 (1st Cir. 2000)

UNITED STATES OF AMERICA, Appellee, v. GERALD BALDYGA, Defendant, Appellant.

No. 99-2008.

United States Court of Appeals, For the First Circuit.

Heard August 14, 2000.

Decided December 7, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS.

Hon. Nathaniel M. Gorton, U.S. District Judge.

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Benjamin S. Albert, with whom Jeffrey H. Cramer and Brown, Rudnick, Freed & Gesmer, P.C. were on brief, for appellant.

Jennifer H. Zacks, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, was on brief, for appellee.

Before Torruella, Chief Judge, Wallace^*, Senior Circuit Judge, and Lipez, Circuit Judge.

LIPEZ, Circuit Judge.

In March, 1999, a jury convicted Gerald Baldyga of four counts of possession of cocaine with intent to distribute and distribution of cocaine, in violation of 21 U.S.C. 841(a)(1), one count of being a felon in possession of firearms and ammunition, in violation of 18 U.S.C. 922(g)(1), and one count of tampering with a witness, in violation of 18 U.S.C. 1512(b)(3). Focusing on the witness tampering conviction, Baldyga argues on appeal that the evidence was insufficient to support that conviction and that the district court erred in its instructions to the jury. As the ensuing discussion reveals, Baldyga's case does not involve witness tampering in the classic sense of a defendant, prior to trial, approaching a potential witness and attempting, through threats or other means, to prevent that witness from testifying against him. Baldyga also raises issues we have not addressed before relating to the "communication with federal officials" element of the witness tampering statute. Despite the unusual facts and unaddressed issues, federal circuit courts have consistently interpreted 1512(b)(3) to include the kind of conduct Baldyga engaged in here.

Baldyga further contends unpersuasively that one of the search warrants authorizing a search of his property was defective, and that the district court made an improper evidentiary ruling at trial. Accordingly, we affirm his conviction on all counts.

I. Background

We recount briefly the contours of this case, deferring a more detailed recitation for the sufficiency of the evidence discussion. Baldyga's convictions arise from an investigation begun by state and local authorities in Webster, Massachusetts, in January, 1998. The federal Drug Enforcement Administration (DEA) joined the investigation in February, 1998. Richard Chenevert, a regular drug customer of Baldyga's, was a cooperating witness throughout the investigation who agreed to buy cocaine from Baldyga in a "controlled purchase." For each transaction, the government gave Chenevert money for the purchase and equipped him with a listening device so they could monitor his safety. During January and February, 1998, Chenevert successfully made three controlled purchases of cocaine from Baldyga.

On March 1, 1998, Chenevert attempted to make a fourth controlled purchase of cocaine at Baldyga's home. When he arrived, however, Baldyga gave him a note instructing him to remain silent and to put his hands on the wall. Baldyga found the listening device Chenevert was wearing, disabled it, and instructed him to leave the premises. When the listening device went dead, the law enforcement officers monitoring the transaction approached the property. Although Baldyga fled the house through a rear exit, he was apprehended by authorities approximately 50 yards from his home.

II. Sufficiency of the Evidence

Baldyga contends that the district court erred in not granting his motion for acquittal because there was insufficient evidence to support his conviction for witness tampering in connection with his confrontation with Chenevert. We review the district's court ruling on the Rule 29 motion de novo. See United States v. Hernandez, 146 F.3d 30, 32 (1st Cir. 1998). In considering whether the evidence was sufficient to convict Baldyga, we view the facts and draw reasonable inferences in favor of the government. See United States v. Freeman, 208 F. 3d 332, 337 (1st Cir. 2000). The evidence is legally sufficient so long as, taken as a whole, it warrants a judgment of conviction. See id. at 338. We consider both direct and circumstantial evidence as part of this inquiry. See United States v. Duclos, 214 F.3d 27, 32 (1st Cir. 2000). To affirm Baldyga's conviction for witness tampering under 18 U.S.C. 1512(b)(3), we must find that the evidence was sufficient for the jury to conclude beyond a reasonable doubt that Baldyga knowingly intimidated or threatened Chenevert with the intent to hinder Chenevert's communication with federal law enforcement officials.¹

The government's cooperating witness, Richard Chenevert, testified that on March 1, 1998, he agreed with local and federal law enforcement authorities to do a fourth controlled buy of cocaine from Baldyga. Following the typical procedure, the government searched Chenevert, removed his personal effects from his pockets, provided him with cash for the transaction, and equipped him with a listening device. Although Chenevert had successfully obtained cocaine from Baldyga during controlled buys on three previous occasions, the transaction on March 1 did not go well. When he arrived at Baldyga's residence, Baldyga handed Chenevert the note instructing him not to talk, and to put his hands on the wall. When he finished reading the note and looked up, Baldyga was pointing a gold-colored double-barreled gun at his face.

When Chenevert turned around to face the wall, Baldyga told him he had heard he would be wearing a wire. Baldyga then searched him for the listening device and disabled it after finding it in Chenevert's coat pocket. Baldyga asked Chenevert what was happening, and Chenevert told him the police had not followed him to Baldyga's house. At that point, Baldyga told Chenevert to leave the premises and never return. Chenevert's testimony about this exchange was substantiated at trial by Stephen Rock, another government witness, who was at Baldyga's home that evening to purchase cocaine.

A. Hindering Communication

Baldyga argues first that he "never threatened [Chenevert] with physical harm should [Chenevert] inform federal authorities in the future." Indeed, Chenevert did not testify that Baldyga explicitly threatened to harm him should he contact federal authorities. Nevertheless, the jury in this case could readily and reasonably infer that Baldyga's brandishing of the gun, and holding it to Chenevert's head, reflected an intent to deter Chenevert from discussing the cocaine deals with federal authorities. Additionally, the jury could have concluded that Baldyga revealed an awareness of Chenevert's cooperation with law enforcement authorities by telling him he heard he would be wearing a wire, and by searching for the listening device. The jury also could have concluded that Baldyga intended to prevent or discourage such cooperation when he ripped the wire away from the transmitter.² See, e.g., United States v. Black, 78 F.3d 1, 6-7 (1st Cir. 1996) (finding evidence sufficient under 1512(b)(3) where the defendant, accompanied by a co-defendant who commented on the witness's cooperation with law enforcement, said nothing to the witness about her cooperation with federal officials but displayed a leather holster on his ankle); United States v. Victor, 973 F.2d 975, 978 (1st Cir. 1992) (finding "abundant proof from which the jury could have determined that [the defendant] was aware of [the witness's] cooperation with the federal authorities" where the defendant made an "unannounced visit" and "intrusive search" of the witness's apartment and stated only that the witness "talked too much in federal court").

B. Status of the Officers

Baldyga also contends that he did not violate the witness tampering statute because no federal authorities were listening to his conversation with Chenevert when he disconnected the wire. Because the officers monitoring Chenevert were local police only, Baldyga argues, he did not interrupt Chenevert's communication with any federal official. This argument fails for two reasons.³

First, the definition of "federal officials" under 1512 includes not only federal law enforcement officials acting in their federal capacity, but also any officer or employee acting for or on behalf of the federal government as an adviser or consultant. See 18 U.S.C. 1515(a)(4).⁴ Because the local police officers monitoring the transaction between Chenevert and Baldyga were acting with the DEA as part of a joint investigation, they may be considered federal officials for the purposes of 1512(b)(3). See United States v. Veal, 153 F.3d 1233, 1251 n.25 (11th Cir. 1998) (stating that "[b]ecause of the concurrent jurisdiction of state and federal authorities in such areas as drug interdiction . . . we recognize that state police officers can serve as advisors or consultants to federal agents in the 'prevention, detection, investigation, or prosecution' of various federal crimes" (quoting 18 U.S.C. 1515(a)(4)(A))).

Baldyga argues that the requirements of 1512(b)(3) are "noticeably absent in the instant matter" because "there were no federal authorities listening to the communication device worn by [Chenevert]." We reject this claim because 1512 does not require that the witness's communication with federal officers be as imminent as Baldyga suggests. Instead, other circuits have read the statute to require only a possibility that the conduct will interfere with communication to a federal agent.⁵ For example, in Veal, where the appellant was accused of transmitting misleading information to federal officials, the court found sufficient a "possibility or likelihood that [the defendants'] false and misleading information would be transferred to federal authorities irrespective of the governmental...