U.S. v. Bailey

• Decision Date: 03 May 2005
• Docket Number: No. 03-2632.,03-2632.
• Citation: 405 F.3d 102
• Parties: UNITED STATES of America, Appellee, v. Brian BAILEY, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

405 F.3d 102

UNITED STATES of America, Appellee, v. Brian BAILEY, Defendant, Appellant.

No. 03-2632.

United States Court of Appeals, First Circuit.

Heard September 14, 2004.

Decided May 3, 2005.

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Evan Slavitt, with whom Richard P. O'Neil and Bodoff & Slavitt LLP were on brief, for appellant.

Wan J. Kim, Deputy Assistant Attorney General, with whom R. Alexander Acosta, Assistant Attorney General, Michael J. Sullivan, United States Attorney, S. Theodore Merritt, Assistant United States Attorney, Jessica Dunsay Silver and Gregory B. Friel, Attorneys, Department of Justice, Civil Rights Division, were on brief, for appellee.

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Brian Bailey was one of seven jailers charged with federal offenses arising from five incidents at the Nashua Street Jail in Boston, Massachusetts, where guards employed excessive force against pretrial detainees and then acted to conceal their misconduct. The grand jury's superseding indictment charged all seven defendants with conspiracy to deprive pretrial detainees of their civil rights in violation of 18 U.S.C. § 241 (the "global conspiracy" charge). Bailey was also charged with assaulting and aiding and abetting the assault of a pretrial detainee, see 18 U.S.C. § 242; conspiring to obstruct and obstructing a federal criminal investigation, see 18 U.S.C. § 1512(b)(3) (the witness tampering statute); and perjury (for lying to a federal grand jury), see 18 U.S.C. § 1623.

Three of the defendants pleaded guilty to the global conspiracy charge and to their individual substantive charges, and the trial of the fourth defendant was severed. Bailey and the other two remaining defendants were tried together. Bailey's two co-defendants were acquitted on all counts. Bailey was acquitted of the global conspiracy charge, but was convicted of the other charges and sentenced to 41 months in prison. He now appeals his convictions and sentence.

I.

The following facts are either uncontested, or, if contested, are presented in the light most favorable to the verdicts. See United States v. McCann, 366 F.3d 46, 48 (1st Cir.2004).

Boston's Nashua Street Jail, operated by the Suffolk County Sheriff's Department, houses pretrial detainees. On September 24, 1999, Officer Bailey and Officer Michael Ross were assigned to work in the jail's psychiatric unit. On that day, the psychiatric unit housed a pretrial detainee who was on suicide watch. In accordance with jail policy, the detainee was stripped of his clothes and denied sheets and blankets to prevent their use in a suicide attempt. His only covering was a paper "johnny."

During the course of the afternoon, the detainee complained repeatedly that his cell was cold and that he needed a blanket. When Ross denied his request, the detainee began screaming, swearing, and punching and kicking his cell door. He persisted in this behavior for approximately three hours. At about 4 p.m., Bailey told Ross that "he had [had] enough" of the detainee and that he was going to "bang him out." Ross replied that they should wait until later that evening.

Bailey left the unit for dinner at about 5:30 p.m. While at dinner, he saw Officer Paul Davis, a member of the Sheriff's Emergency Response Team. The Team is summoned to jail emergencies by way of an electronic alarm that all officers carry. Bailey informed Davis that he was having a problem with an inmate and that Davis might hear his alarm go off later that night.

When Bailey returned from dinner, he and Ross discussed entering the detainee's cell to "slap him around." Since Ross and Bailey were not ordinarily authorized to enter a detainee's cell without permission from a superior, they fabricated a story to justify their actions. They initially agreed to report that the detainee had made a mess in his cell, that they had entered the cell to clean it, and that they were attacked upon entry.

At 6:30 p.m., Officer Brian Murphy arrived at the psychiatric unit to relieve Ross so that the latter could go to dinner. Ross notified Murphy of the plan to enter the detainee's cell. Murphy replied that he wanted no part of it and that they had "better write a good report." Undeterred, Ross and Bailey put on gloves and entered the detainee's cell. Ross approached the detainee and yelled at him to be quiet. When the detainee refused, Ross slapped his face several times and then delivered multiple "knee strikes," driving his knee into the victim's thigh. Bailey joined the attack by punching the detainee several times in the ribs and shoulder. As he was being struck, the detainee cried and complained of back pain. The detainee was then pushed down onto his bed, and Bailey and Ross attempted to handcuff him. At no point during the altercation did the detainee assault the officers or make any threatening gestures. He did not fight back other than to resist the handcuffing.

Bailey's alarm was activated at some point during the melee. The Emergency Response Team, including Davis and Deputy Anthony Nuzzo, arrived shortly thereafter. They placed handcuffs on the detainee and strapped him in a restraint chair. While secured in the chair, the detainee cried and complained of back pain. Bailey informed Ross later that night that he had slapped the detainee while he was restrained in the chair. Bailey also bragged to Davis that he and Ross had "beat the fuck out of" the detainee.

Shortly after the incident, Bailey consulted with Nuzzo, who told him that the story about entering the detainee's cell to clean up a mess was not adequate cover for the beating. Nuzzo advised Bailey to report that he and Ross had entered the detainee's cell because of an apparent medical emergency, only to be attacked upon their entrance. After further discussion, Bailey and Ross decided to go with this revised "medical emergency" fabrication in their incident reports. They stood by this story when subsequently questioned by Sheriff's Department investigators who were conducting an internal inquiry. Relying in part on what they were told by Bailey and Ross, the investigators filed a report concluding that the officers had acted appropriately. This report, containing the false statements, was subsequently obtained by the FBI in connection with an investigation of a separate incident of excessive force at the Nashua Street Jail.

In October 2000, Bailey was summoned to testify before a federal grand jury about the September 24, 1999 incident. He testified that he had entered the detainee's cell because he thought the detainee was having a seizure, that the detainee jumped up and attacked him, and that no one struck the detainee during the incident. At trial, however, Bailey admitted that he had intentionally lied to the grand jury in an effort to protect himself and Ross.

II.

A. Obstruction of Justice

As set forth above, Bailey was convicted of violating and conspiring to violate the federal witness tampering statute by knowingly engaging in misleading conduct with the intent to prevent the communication of information concerning the commission of a federal crime to a federal law enforcement officer. See 18 U.S.C. § 1512(b)(3). Bailey argues that the prosecution failed to prove the intent element of this crime, and that the jury was improperly instructed on this point. Underlying Bailey's argument is the premise, rejected by the district court, that the intent required by the statute cannot be found when there was no federal investigation extant or imminent at the time of the alleged misleading conduct.¹

Bailey's interpretation of § 1512(b)(3) is not consistent with its plain language, which reads:

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... 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... shall be fined under this title or imprisoned not more than ten years, or both.

18 U.S.C. § 1512(b)(3). Nothing in this provision implies that a federal investigation must be imminent or underway at the time of the actus reus. To the contrary, and as several circuits have recognized, the statutory language suggests that Congress intended § 1512(b)(3) not merely to safeguard the integrity of ongoing or imminent federal investigations, but more broadly to facilitate federal law enforcement's ability to gather information about possible federal crimes — including federal crimes that are not yet under investigation at the time of the offense. See, e.g., United States v. Guadalupe, 402 F.3d 409, 411 (3d Cir.2005) ("[P]roving a violation of 18 U.S.C. § 1512(b)(3) does not depend on the existence or imminency of a federal investigation but rather on the possible existence of a federal crime and a defendant's intention to thwart an inquiry into that crime by officials who happen to be federal."); United States v. Perry, 335 F.3d 316, 321 (4th Cir.2003) (finding a violation of § 1512(b)(3) where the defendant provided false information to local police intending to prevent the initiation of a federal investigation into his status as a felon in possession of a firearm), cert. denied, 540 U.S. 1185, 124 S.Ct. 1408, 158 L.Ed.2d 91 (2004); United States v. Veal, 153 F.3d 1233, 1250 (11th Cir.1998) ("By its wording, § 1512(b)(3) does not depend on the existence or imminency of a federal case or investigation but rather on the possible existence of a federal crime and a defendant's intention to thwart an inquiry into that crime.").² Accordingly, we reject Bailey's argument that § 1512(b)(3) requires an existing or imminent federal investigation at the time of the defendant's misleading conduct.

In reaching this conclusion, we acknowledge Bailey's argument that 18 U.S.C §...