United States v. Baugh

• Decision Date: 11 April 2022
• Docket Number: Criminal Action No. 20-10263-PBS
• Citation: 597 F.Supp.3d 502
• Parties: UNITED STATES of America, v. Jim BAUGH and David Harville, Defendants.
• Court: U.S. District Court — District of Massachusetts

597 F.Supp.3d 502

UNITED STATES of America,

v.Jim BAUGH and David Harville, Defendants.

Criminal Action No. 20-10263-PBS

United States District Court, D. Massachusetts.

Filed April 11, 2022

Seth B. Kosto, Assistant US Attorney, United States Attorney's Office, Boston, MA, for United States of America.

William W. Fick, Amy Barsky, Daniel N. Marx, Fick & Marx LLP, Boston, MA, for DefendantJim Baugh.

Daniel K. Gelb, Gelb & Gelb, LLP, Beverly, MA, Peter K. Levitt, Donnelly, Conroy & Gelhaar, LLP, Boston, MA, Jonathan M. McDougall, Pro Hac Vice, The Law Office of Jonathan D. McDougall, San Carlos, CA, for DefendantDavid Harville.

MEMORANDUM AND ORDER

Saris, D.J.

INTRODUCTION

Two former senior employees at eBay, Jim Baugh and David Harville, have been charged in a fifteen-count indictment for their alleged roles in an interstate campaign to harass and intimidate two Massachusetts residents and the ensuing cover up.As relevant here, Baugh has been charged with witness tampering under 18 U.S.C. §§ 1512(b)(3)and2 as to an eBay investigator (Count 11); destruction, alteration, or falsification of records under 18 U.S.C. §§ 1519and2 by falsifying "Bay Area POIs_August 2019.docx"(Count 13); and destroying the contents of his eBay-issued cell phone (Count 14).Harville has been charged with witness tampering under 18 U.S.C. §§ 1512(b)(3)and2 as to an eBay investigator (Count 12) and with the destruction, alteration, and falsification of records in a federal investigation under 18 U.S.C. §§ 1519and2 by destroying the contents of his eBay-issued cell phone (Count 15).

Defendants have moved to dismiss for lack of venue on the ground that the indictment charges conduct that did not occur in Massachusetts.After hearing, the CourtDENIES the motions to dismiss for lack of venue.(Dkt. 114 and 116).

FACTUAL BACKGROUND

The indictment alleges the following facts.

Baugh was the Senior Director of Safety and Security at eBay, and Harville was the Director of Global Resiliency.In 2019, eBay's senior leadership became aware of an online newsletter (the "Newsletter") that it perceived as a threat to eBay's image.From August 5, 2019, through September 6, 2019, Baugh, Harville, and five other eBay employees¹ began harassing Victim 1 and Victim 2, a married couple living in Natick, Massachusetts who disseminated the Newsletter.Their goals were to distract the Victims from publishing the Newsletter, to change how the Victims covered eBay in the Newsletter, and to gather information to discredit the Victims.

The intimidation began with a series of online messages and home deliveries.On August 6, 2019, Popp created a Twitter profile named "@Tue_Elei" with a skeleton mask as its avatar.Popp used the account to send a direct message to Victim 1's Twitter account, depicting @Tue_Elei as an angry eBay user who wrote, "whats your problem w/ebay?You know that's how we pay rent."Dkt. 33, ¶ 16e.When Victim 1 did not respond, Popp used the @Tue_Elei account to send her a series of obscene messages on August 9, 2019, that included, "I guess im goin to have to get ur attention another way bitch."Id., ¶ 16g.The conspirators then began sending harassing deliveries to the Victims’ home on August 9–10, 2019, including live spiders, fly larvae, and a Halloween pig mask.They also purchased subscriptions for pornographic magazines in Victim 2's name and had them delivered to the Victims’ neighbors.On August 10, 2019, Victim 1 received a direct Twitter message from the @Tue_Elei account saying, "DO I HAVE UR ATTENTION NOW????"Id., ¶ 161.

On August 11, 2019, Baugh directed Harville to travel with him to Boston for an "op" targeting the Victims, writing to Harville that "I won't send the bosses texts, but I've been ordered to find and destroy."Id., ¶¶ 16n–o.Harville replied, "Copy.Totally black[.]I'm deleting this now."Id., ¶ 16o.Before traveling to Boston, on August 12, 2019, Baugh directed his co-conspirators to increase the harassing deliveries and messages.From August 12-14, the group sent the Victims a book about grieving the loss of a spouse, a funeral wreath, and live cockroaches.The @Tue_Elei account posted angry public messages to Victim 1's Twitter account, including "UR stupid idiot comments r pushin buyers away from ebay and hurtin families!!!STOP IT NOW!!" and "[name of Victim 1] wen u hurt our bizness u hurt our familys ... Ppl will do ANYTHING 2 protect family!!!!"Id., ¶¶ 16s–v.

On August 14, 2019, Baugh, Harville, Zea, Gilbert, and Popp met to plan the trip to Boston to surveil the Victims and install a GPS tracking device on their car.Baugh ordered the deliveries to stop to prevent interference with the operation.On August 15, 2019, Baugh, Harville, and Zea flew to Boston.That same day, Harville visited a website that could be used to monitor the Natick Police Department's ("NPD") live audio feed.Baugh, Harville, Popp, and Zea dialed into a conference call to communicate with each other and to monitor the NPD dispatch.

Baugh, Harville, and Zea drove to the Victims’ home, but were unable to install the GPS device because the Victims’ car was locked in their garage.On August 16, 2019, Harville purchased tools for the purpose of breaking into the Victims’ garage.²Baugh, Harville, and Zea continued their surveillance and followed in a rental car as Victim 2 drove around Natick, stopping when they came to believe he had spotted them.Baugh returned the rental car.

On August 17, 2019, Baugh (in Massachusetts) directed Stockwell (in California) to prepare a "Person of Interest" report ("POI Report") falsely listing the Victims as eBay's top persons of interest and told Stockwell, "In the narrative I need you to write that they have made direct threats to ebay, [eBay's CEO], and our employees (make it up.)"Id., ¶ 16dd.Baugh then directed that the harassing deliveries resume.The conspirators ordered a pizza to be delivered to the Victims’ home at 4:30am for payment upon delivery.The @Tue_Elei account posted Victim 1's name, age, address, and telephone number publicly and continued sending threatening and obscene messages taking credit for the deliveries.Some of the conspirators also posted an advertisement on Craigslist claiming to be a married couple seeking sexual partners at the Victims’ home address.Later, on August 17, 2019, Harville returned to California and was replaced in Boston by Popp.

On August 18, 2019, Victim 2 was able to take a picture of the surveillance team's license plate as Baugh, Popp, and Zea followed him around Natick.The conspirators began taking steps to cover their tracks.Baugh forwarded Gilbert the POI Report and wrote in a WhatsApp message, "Just sent poi doc with [Victims] included.I had GIC send this to me last week in case we got stopped ... that way would at least have something to show to PD."Id., ¶ 16ss. Baugh and Zea lied to an NPD detective who came to their hotel in Massachusetts and attempted to call Zea; as Baugh described the encounter in a text message, "Detective called her cell.I answered just now as her husband and played dumb."Id., ¶ 16ww.The conspirators also began compiling dossiers on the Victims that they could give to the NPD to make the Victims "look crazy."Id., ¶ 16xx.On August 21, 2019, to disrupt an NPD investigation into Zea's prepaid debit card, Baugh and Popp instructed Stockwell to create another list of eBay "persons of interest" in the San Francisco area.Baugh and Popp forwarded the document Stockwell created, named "Bay Area POIs_August 2019.docx" to Gilbert for use in a meeting with the NPD.

On August 22, 2019, Gilbert met with NPD officers and falsely told them that Zea and Harville had come to Boston to attend a conference, that Popp was Zea's supervisor, and that Zea had driven to Natick on her own to conduct a Person of Interest investigation regarding the victims³ .Harville and Baugh each also told similar falsehoods to eBay's internal investigators.For example, on August 23, 2019, Harville told them that he had travelled to Boston to attend a conference, that he had not gone to Natick, and that he had not interacted with the Victims or the NPD.That same day, Baugh told eBay's internal investigators that his team was not responsible for the messages and deliveries and that they had gone to Natick to investigate the threats against the Victims.On August 26, 2019, Harville falsely told eBay investigators that he did not know whether Zea had gone to Natick and that he had not worked on a matter involving the Victims.Beginning on August 26, 2019, Baugh, Harville, and others deleted and attempted to delete data from their mobile phones in California that contained evidence of their alleged wrongdoing, including WhatsApp messages.On August 30, 2019, after receiving an email from an eBay investigator directing him to preserve relevant information and to turn in his eBay-issued cell phone, Harville messaged Baugh, asking, "Want me wipe it[?]"Id., ¶ 16ppp.That day, Harville turned in his eBay-issued phone, from which significant data related to his trip to Natick had been deleted.

Additionally, the indictment alleges that Defendants’ conduct for each count at issue took place "in the District of Massachusetts and elsewhere."Dkt. 33, ¶¶ 28, 30, 32, 34.

DISCUSSION

I.Legal Standard

A.Motion to Dismiss Standard

On a motion to dismiss an indictment, "the allegations of the indictment and the unchallenged statement of proof of the prosecutor must be accepted as true."United States v. Ferris, 807 F.2d 269, 271(1st Cir.1986)(citingUnited States v. Sampson, 371 U.S. 75, 78–79, 83 S.Ct. 173, 9 L.Ed.2d 136(1962) )."A court considering a pretrial motion to dismiss for improper venue must take as true the allegations in the indictment."United States v. Abbas, No. CR 20-10016-LTS, 2021 WL 784095, at *2(D. Mass.Mar. 1, 2021)(citingUnited States v. Jensen, 93 F.3d 667, 669(9th Cir.1996) ).

B.Foundational Venue Principles

Article III of the...