United States v. Byrne

United States Court of Appeals
For the First Circuit

No. 04-1052
UNITED STATES OF AMERICA,

Appellee,

v.

HARRY A. BYRNE, JR.,

Defendant, Appellant.

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

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Boudin, Chief Judge,
Lipez, Circuit Judge,
and Schwarzer,* Senior District Judge.

R. Matthew Rickman, with whom Frank A. Libby, Jr. and Kelly,
Libby & Hoopes, P.C. were on brief, for appellant.
Connor B. Dugan, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, S. Theodore Merritt,
Assistant United States Attorney, R. Alexander Acosta, Assistant
Attorney General, and Jessica Dunsay Silver and Linda F. Thome,
Attorneys, Department of Justice, Civil Rights Division, were on
brief, for appellee.

January 11, 2006

________________

*Of the Northern District of California, sitting by designation.
 LIPEZ, Circuit Judge. A jury convicted the defendant, a

former Boston police sergeant, of one count of deprivation of

constitutional rights and four counts of witness tampering. The

charges stem from the defendant's assault on a 21-year-old college

student and subsequent efforts to conceal that crime from

investigators. On appeal, the defendant seeks a new trial on the

ground that the district court improperly limited cross-examination

of police officers who testified for the government. He seeks

acquittal on the witness tampering charges because, he argues,

there was insufficient evidence to support his convictions under

Arthur Andersen LLP v. United States, 125 S.Ct. 2129 (2005), a case

that we examine closely in response to his claim. Finally, he

argues that United States v. Booker, 125 S.Ct. 738 (2005), requires

a remand for resentencing. We affirm the defendant's convictions

but vacate his sentence.

I.

We review the facts as a reasonable jury could have found

them, leaving certain details for discussion in connection with the

defendant's claims of error. Because the defendant challenges the

sufficiency of the evidence against him, we "eschew[] credibility

judgments and draw[] all reasonable inferences in favor of the

verdict." United States v. Sepulveda, 15 F.3d 1161, 1173 (1st Cir.

1993).

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 In September 2001, when the initial relevant acts

occurred, Garret Trombly had just started his junior year at

Harvard College. Trombly had grown up in Wilbraham, Massachusetts.

He often spent weekend evenings with his boyhood friend Tom Davis,

a Boston College junior. One Saturday night, September 9th, Davis

hosted a party for a group of his friends from Wilbraham at his

apartment on Commonwealth Avenue in Boston. Trombly arrived at

about eight o'clock. Another native of Wilbraham, Maureen Leahy --

a sophomore on the Boston College women's basketball team --

arrived shortly before midnight. Almost immediately after Leahy

arrived, the assembled friends left Davis's apartment to attend

another party.

That evening, the defendant was serving as a patrol

supervisor in Boston Police district fourteen, which included

residences owned by Boston College, Boston University, and Harvard.

The defendant and his subordinates, some of whom had been hired for

the evening by Boston College as a "paid detail," were on the

lookout for underage drinking.

As Trombly, Davis, and Leahy left Davis's apartment, the

defendant appeared in his police cruiser. Apparently recognizing

Leahy from the previous night, the defendant yelled at her from his

cruiser window. During a tirade that lasted nearly five minutes,

he called Leahy, who was not intoxicated at the time, a "stupid

B.C. girl," a "drunk," and, when she began to cry, a "bitch." He

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referred to her roommates, whom he had encountered the previous

night, as "drunken sluts." After a few minutes, Davis put his arm

around Leahy, who was crying hysterically, and attempted to walk

away with her.

The defendant's anger then turned to Davis. He yelled

"Don't turn your back on me, you fucking punk. Don't think I won't

beat your ass. Don't make me get out of this car." Then, without

any provocation, the defendant exited his cruiser. He approached

Davis, getting close enough to bump the student in the chest. He

asked Davis if he wanted to fight, and, when Davis declined, said

he would "kick [his] ass" and "BC kids [are] faggots and . . .

punks."

The three students began to walk away, down Commonwealth

Avenue. The defendant followed in his cruiser, driving slowly,

with the flashing lights on. Trombly, Davis, and Leahy soon were

surrounded by four or five other students, some of whom pleaded

loudly with the defendant to leave them alone. Trombly said to one

of his friends, perhaps loudly enough for the defendant to hear,

that it was not a police officer's job to make young women cry. At

no point, however, did Trombly address the defendant directly. Nor

did Trombly spit on the defendant, as the defendant later claimed.

The defendant radioed for backup. Before the group of students had

traveled more than a block from Davis's apartment, another police

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cruiser arrived, driven by Boston Police officers Gregory Lynch and

Kevin Peckham.

On arriving, Lynch and Peckham observed a group of

students "just standing there" but no disorder or public drinking.

The defendant radioed orders for Lynch and Peckham to arrest "the

male with the Red Sox hat on." The two officers exited their

cruiser and arrested Trombly. Pursuant to the arrest, the officers

confiscated an unopened beer can and a cell phone from Trombly, who

had been carrying both items in the pockets of his trousers. The

officers noted that Trombly was not intoxicated. The defendant

arrested Davis. Lynch and Peckham drove Davis and Trombly to the

police station.

At the station, Lynch handcuffed Trombly and Davis to a

pole next to the guard room, as was standard practice. A short

time later, the defendant arrived at the station and ordered Lynch

to unhandcuff Trombly -- who was the smaller of the two students,

weighing about 150 pounds -- and bring him to the guard room.

Lynch did so and left Trombly's cell phone, which he had been

carrying, on a table in the guard room.

Only moments after being left alone in the guard room

with Trombly, the defendant began yelling. Before Trombely could

respond, the defendant punched him in the face. After Trombly

protested that he had done nothing wrong, the defendant "grabbed"

him by the throat and hit him again. Then the defendant shoved

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Trombly across the room, causing him to fall over a bench.

Startled by the resulting noise, Lynch looked back to see the

defendant standing over Trombly. Then, while Lynch looked on, the

defendant picked Trombly off the floor and "jamm[ed] him up against

the wall." He yelled at Trombly again, this time saying "You

little pussy. You fucking pussy. Your mother's a pussy, and your

father's a pussy for not teaching you better."

Hearing the commotion, two other police officers,

Jeremiah Harrigan and Kristine Straub, arrived in the guard room.

Then, according to Lynch's testimony, which was confirmed by

Harrigan and Straub, the defendant, who had both hands on

Trombly's chest, "removed his right hand and slapped Mr. Trombly

across the face." The defendant "then pushed [Trombly] backwards

. . . into a wooden table . . . . The table flipped over, and Mr.

Trombly fell to the floor." When the table flipped, Trombly's cell

phone landed on the floor as well. The defendant "began to stomp

on the cell phone," and "then picked [the phone up] and threw [it]"

across the room. Thereupon, the defendant left Trombly in the care

of the other three officers on the scene, each of whom would later

testify that they had seen Trombly do nothing to provoke the

defendant.

The officers booked Trombly and charged him, on the

defendant's instructions, with drinking in public, resisting

arrest, providing alcohol to minors, and assault and battery on a

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police officer. To cover himself, the defendant wrote an incident

report in which he stated, falsely, that he had arrested Trombly

himself, and that, as he was effecting the arrest, Trombly had "put

his hands on me."1

At about five o'clock on Sunday morning, Trombly posted

bail. Almost immediately after leaving the police station, Trombly

went to the hospital. The doctor who examined him noted that he

was unable to bite his teeth together and that he was having

difficulty talking. An X-ray revealed a severely fractured jaw, of

1
The defendant testified to a different set of interactions. He
said that he arrested Trombly himself, after the student had spit
on him, and that Trombly, in hostility to the arrest, "put his
hands on me," by "swat[ing] away" his handcuffs. At the station,
according to the defendant, Trombly, once uncuffed, reached into
his pocket for a "black object," which turned out to be his cell
phone. The defendant, "scared for [his] life" because he thought
the cell phone "could have been a gun," "hit [Trombly] with . . .
the heel of my hand . . . to get him under control" and then
"pinned" the student against a wall. While Trombly was restrained,
the defendant "pried [the cell phone] out of his hand and threw it
behind [himself], and it hit the wall." Then the defendant told
Trombly to "cut the shit," called Trombly and his father "pussies"
(but said nothing about Trombly's mother), and began "spewing
profanities" at the student because he had "just scared me."
The defendant admitted that he told Officer Straub that "there
was no vicious beating and nobody had a broken jaw" and not to
"talk about it in the station to just anybody." He said that he
told Officer Harrigan, "Just don't talk about it." But, the
defendant said, he told both officers to "tell the truth" if they
were approached by investigators. He testified that when he talked
to officers Peckham and Lynch, he "told them the same thing I told
Officer Straub and Officer Harrington." He denied ever telling
anyone to lie to or mislead investigators.
The jury was entitled, of course, to discredit all or part of
the defendant's testimony. See, e.g., United States v. Gomez-
Villamizar, 981 F.2d 621, 624 (1st Cir. 1992).

-7-
the type caused by "significant impact to the face," such as a car

accident. Emergency oral surgery followed.

By the time Trombly appeared in court on Monday morning,

his jaw had been wired completely shut. For the next two weeks,

Trombly could not eat solid foods and could drink only through a

straw. For a month after that, Trombly's jaw was wired partially

shut, and he could eat only food that had been mashed.

The district attorney's office quickly dropped all of the

charges against Trombly. Soon, though, reports of Trombly's

treatment at the hands of the defendant appeared in the newspapers.

In short order, an investigation commenced. At first, the police

department's internal affairs and anti-corruption units handled the

inquiry. On September 24, roughly two weeks after the incident,

federal authorities began investigating the defendant's conduct.

In the weeks after the incident, the defendant directly

or impliedly asked the officers who had observed his interaction

with Trombly -- Peckham, Lynch, Straub, and Harrigan -- to lie to

investigators. The defendant also asked Peckham to tell Lynch to

say that "the incident never happened." Nonetheless, each of the

four officers testified before a grand jury and at trial about the

defendant's conduct and his attempts to cover it up.

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 II.

A. Limitations on Cross Examination

The government called Officer Lynch as its third witness,

after Trombly and Leahy. On cross examination, the defendant

sought to discredit Lynch's testimony by suggesting that the

officer had contrived his story to placate the federal authorities.

In this vein, defense counsel elicited testimony from Lynch that he

was not in court "voluntarily," and that he had been granted

immunity in exchange for his testimony. Defense counsel asked

Lynch several questions relating generally to: whether he felt

intimidated by the federal authorities -- Lynch said no; whether he

had been threatened with perjury charges -- Lynch denied that he

had been; and whether he was concerned that others might think him

untruthful -- he said that he was.

Defense counsel next asked Lynch, "Are you familiar with

an officer by the name of Kenny Connolly?" [sic] -- a reference to

a Boston Police officer who had been in the news recently and who

had testified, according to defense counsel, "in a way displeasing

to the government" before a grand jury and then was convicted of

perjury and obstruction of justice. See Conley v. United States,

415 F.3d 183 (1st Cir. 2005); United States v. Conley, 323 F.3d 7

(1st Cir. 2003). Defense counsel hoped to suggest to the jury that

Lynch and the other officers were testifying as the government

-9-
desired only because they feared that, if they did not, they might

meet the same fate as Conley.

The government objected immediately, and the district

court barred further "inquiry on this subject." Defense counsel

then asked questions on the general topic of whether Lynch felt

pressured by the government and whether he had been treated fairly.

During this questioning, defense counsel was able to elicit Lynch's

testimony that he had "in the back of his mind" a "concern[]" that

the government would think him untruthful after his testimony.

The defendant contends that the district court's refusal

to allow questioning about Conley deprived him of his Sixth

Amendment right to confront the witnesses against him "on the

fundamental issue of bias." "The Confrontation Clause . . .

secures a right to cross examination in order to test 'the

believability of a witness and the truth of his testimony.'"

United States v. Gonzalez-Vazquez, 219 F.3d 37, 45 (1st Cir. 2000)

(quoting United States v. Carty, 993 F.2d 1005, 1009 (1st Cir.

1993)). We evaluate preserved Confrontation Clause challenges to

limitations on cross-examination in two steps. Each step involves

a different standard of review. First, we review de novo the

district court's conclusion that, even though cross examination was

limited, the defendant was afforded "'sufficient leeway to

establish a reasonably complete picture of the witness' veracity,

bias, and motivation." Gonzalez-Vazquez, 219 F.3d at 45 (quoting

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United States v. Laboy-Delgado, 84 F.3d 22, 28 (1st Cir. 1996)).

If we determine that the defendant's "opportunity to impeach

adverse witnesses" met or exceeded this constitutionally-guaranteed

"threshold," we review for abuse of discretion the district court's

decision "'to impose reasonable limits' on cross-examination in

order to avoid confusion of the issues or extended discussion of

marginally relevant material." Gonzalez-Vazquez, 219 F.3d at 45

(quoting United States v. Twomey, 806 F.2d 1136, 1139 (1st Cir.

1986)).

We conclude that the district court's prohibition on

questioning about the Conley case did not deprive the defendant of

his confrontation rights. By the time the court rebuffed his

effort to ask Lynch about the Conley case, defense counsel already

had probed the witness's "concern about liability." After the

government's objection to questioning on the Conley case, the court

allowed defense counsel to explore the issue of Lynch's fear of the

government "one more time," with questioning that consumed several

transcript pages. In all, questioning on the topic of Lynch's

interactions with and fear of the government filled more than

eleven transcript pages. Similar, if not as lengthy, questioning

was repeated during the testimony of the other officers testifying

for the government. (Defense counsel did not seek specifically to

ask the other officers about the Conley case, maintaining that any

such request would have been futile.) Once defense counsel had

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explored the area sufficiently "to establish a reasonably complete

picture of the witness' veracity, bias, and motivation" and had

ensured that the jury understood his concerns about the witness,

the district court was entitled to move the trial forward. Laboy-

Delgado, 84 F.3d at 28 (internal citations omitted). See also

United States v. Innamorati, 996 F.2d 456, 478 (1st Cir. 1993)

("Since a reasonable opportunity to test [the witnesses'] veracity

and motive was offered, no Confrontation Clause issue is

presented.").

Having rejected the defendant's constitutional claim, we

must now determine whether the court's decision to bar questioning

on the Conley case constituted an abuse of discretion. We conclude

that it did not. We long have recognized that trial courts retain

"'wide latitude to impose reasonable limits' on cross examination

in order to avoid confusion of the issues or extended discussion of

marginally relevant material." Gonzalez-Vazquez, 219 F.3d at 45

(quoting Twomey, 806 F.2d at 1139). Here, any discussion of the

Conley case was at best marginally relevant, and easily could have

confused the jury.

B. Sufficiency of the Evidence on Witness Tampering

Contending that the evidence was insufficient to support

his convictions for witness tampering, the defendant preserved this

challenge with a motion for a judgment of acquittal. Fed. R. Crim.

P. 29(a). We review de novo the district court's denial of a Rule

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29 motion. United States v. Hernandez, 146 F.3d 30, 32 (1st Cir.

1998). But, because it is the jury's job to determine what the

defendant actually did, knew, and intended, we will conclude that

the evidence was sufficient to sustain the conviction as long as a

rational jury, making permissible inferences, could find beyond a

reasonable doubt that the elements of the counts were satisfied.

United States v. Carucci, 364 F.3d 339, 343 (1st Cir. 2004).

The defendant's argument rests, in large part, on his

insistence that Arthur Andersen LLP v. United States, 125 S.Ct.

2129 (2005), imposes new evidentiary requirements on prosecutions

under 18 U.S.C. § 1512(b)(3), which he was convicted of violating.

We review the Supreme Court's holding in Arthur Andersen, evaluate

the defendant's arguments, and then turn to the evidence.

1. Arthur Andersen

In Arthur Andersen, the Supreme Court reversed a

corporation's conviction for obstruction of justice, obtained under

18 U.S.C. § 1512(b)(2), and in so doing clarified some of the

evidentiary requirements of that statute.2 Arthur Andersen

established two things about § 1512(b)(2). First, the Court

concluded that in the statutory phrase

Whoever knowingly uses intimidation . . . or
corruptly persuades another person, or

2
The defendant raises no challenge to the jury instructions (which
were the issue in Arthur Andersen), nor does he contest the
sufficiency of the evidence on the civil rights count.

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 attempts to do so, or engages in misleading
conduct toward another person with intent to—

"knowingly" modifies "corruptly persuades." Arthur Andersen, 125

S.Ct. at 2136.

Second, the Court held that a "'knowingly . . . corrup[t]

persuade[r]' cannot be someone who persuades others to shred

documents when he does not have in contemplation any particular

official proceeding in which those documents might be material."

Arthur Andersen, 125 S.Ct. at 2137. Consequently, in a prosecution

under subsection (b)(2), the government cannot succeed if it fails

to show a "nexus between the 'persua[sion]' to destroy documents

and any particular proceeding." Id. at 2136. The Supreme Court

recognized in Andersen that pursuant to 18 U.S.C. § 1512(f)(1)

(2002)3, "an official proceeding 'need not be pending or about to

be instituted at the time of the offense.'" Nonetheless, as the

Supreme Court cautioned, "It is . . . one thing to say that a

proceeding 'need not be pending or about to be instituted at the

time of the offense,' and quite another to say that a proceeding

need not even be foreseen." Arthur Anderson, 125 S.Ct. at 2137.

The Supreme Court analogized the situation in Arthur Andersen to

the situation it had faced in United States v. Aguilar, 515 U.S.

593 (1995), where it found a similar "nexus" requirement in

prosecutions for "corruptly endeavoring to influence, obstruct, and

3
Formerly 18 U.S.C. § 1512 (e)(1).

-14-
impede a . . . grand jury investigation under [18 U.S.C.] § 1503."

Arthur Andersen, 125 S.Ct. at 2137 (internal quotations and

brackets omitted). In Aguilar, the Court said that, under § 1503,

"if the defendant lacks knowledge that his actions are likely to

affect the judicial proceeding, he lacks the requisite intent to

obstruct." 515 U.S. at 599.

2. Application of Arthur Andersen to § 1512(b)(3)

The defendant insists that everything the Supreme Court

said about 18 U.S.C. § 1512(b)(2) in Arthur Andersen applies with

equal force to his prosecution under 18 U.S.C. § 1512(b)(3). He

says that Arthur Andersen requires that the government "establish

a link between the specific intent of the defendant at the time of

the [witness tampering] and a particular federal proceeding or

investigation." The defendant also argues that Arthur Andersen

adds, by reference to Aguilar, a requirement that "the government

must prove . . . that [the defendant] was conscious that the

individuals he is alleged to have persuaded were likely to

communicate with . . . . officials who happened to be federal"

(emphasis in original).4 On the basis of this argument, he

4
We previously have held that a defendant need not "specifically
know that the underlying conduct could constitute a federal
offense." Bailey, 405 F.3d at 109 n.3 (citing Baldyga, 233 F.3d at
681). See also United States v. Veal, 153 F.3d 1233, 1252 (11th
Cir. 1998). Here, the defendant did not contend that he lacked
knowledge that his conduct might constitute a federal offense. In
fact, the defendant testified that he knew that his assault on
Trombly could "be a criminal matter . . . a federal civil rights
matter."

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insists that Arthur Andersen requires us to reassess our holding in

United States v. Baldyga that "the requirements of [§ 1512(b)(3)]"

are "satisfied" where "the possibility existed that [the witness's]

communication would eventually occur with federal officials," 233

F.3d 674, 680 (1st Cir. 2000), and our holding in Bailey that "a

federal investigation" need not be "imminent or underway at the

time of the actus reus," 405 F.3d at 108.

In evaluating these contentions, we start with a review

of the two subsections at issue. Subsections (b)(2) and (b)(3)

share the state of mind language that the Arthur Andersen court

interpreted:

Whoever knowingly uses intimidation . . . or
corruptly persuades another person, or
attempts to do so, or engages in misleading
conduct toward another person with intent to—

18 U.S.C. § 1512(b). Subsections (b)(2)(A) and (b)(2)(B), at issue

in Arthur Andersen, prohibit engaging in the above-quoted conduct

"with intent to—"

cause or induce any person to . . . withhold
testimony, or withhold a record, document, or
other object, from an official proceeding [or]
alter, destroy, mutilate, or conceal an object
with intent to impair the object's integrity
or availability for use in an official
proceeding . . .

18 U.S.C. §§ 1512(b)(2)(A); 1512(b)(2)(B)). Subsection (b)(3),

which the defendant is accused of violating, makes it a crime to

engage in the above-quoted conduct "with intent to—"

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 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 . . .

18 U.S.C. § 1512(b)(3). See also id. § 1515 (defining terms used

in obstruction of justice statutes).

The first holding in Arthur Andersen -- that "knowingly"

modifies "corruptly persuades" -- clearly interprets the common

wording applicable to the two subsections and applies to a

prosecution pursuant to subsection (b)(3). In interpreting the

language shared by the two subsections, the Arthur Andersen court

referred to the section generally, see Arthur Andersen, 125 S.Ct.

at 2135 ("Section 1512(b) punishes. . ."), and explicitly

referenced subsection (3) in a footnote. Arthur Andersen, 125

S.Ct. at 2135 n.8. The defendant correctly observes that Arthur

Andersen mandates -- to prove the mens rea required by § 1512(b)(2)

and § 1512(b)(3) -- a showing of "consciousness of wrongdoing."

Arthur Andersen, 125 S.Ct. at 2136.

The second holding, concerning the "nexus" requirement,

does not translate so easily to a prosecution under subsection

(b)(3). While the Arthur Andersen court required a "nexus between

the 'persua[sion]' to destroy documents" and some "particular

official proceeding in which those documents might be material,"

id. at 2136-37, subsection (b)(3) does not refer to an "official

proceeding." Instead, it refers to a defendant intending to

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hinder, delay, or prevent communication to a "law enforcement

officer or judge of the United States." The defendant does not

explain how subsection (b)(3) might sensibly be read to require a

defendant to "contemplate" -- to use the term in Arthur Andersen --

a "particular" "law enforcement officer or judge of the United

States" in the same way that one might "contemplate" "any

particular official proceeding." Arthur Andersen, 125 S.Ct. at

2137.

While perhaps one might argue that the inclusion in

subsection (b)(3) of "the communication to a . . . judge" may

refer to a judge hearing evidence in some kind of official

proceeding -- we certainly do not decide the issue -- "the

communication to a law enforcement officer" easily encompasses an

earlier and less formal investigation than that contemplated by

subsection (b)(2). Unlike subsection (b)(2) and 18 U.S.C. § 1503,

which protect particular "official proceedings," see Aguilar, 515

U.S. at 599-600, subsection (b)(3) protects the general ability of

law enforcement agents to gather information relating to federal

crimes (and the witnesses who desire to speak truthfully to law

enforcement agents about those crimes). As one of our sister

circuits has concluded, subsection (b)(3) "does not connect the

federal interest with an ongoing or imminent judicial proceeding,"

United States v. Veal, 153 F.3d 1233, 1249 (11th Cir. 1998), but

rather "'speaks more broadly'" to "the character of the affected

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activity, the transmission of information to federal law

enforcement agents," id. at 1251 (11th Cir. 1998) (quoting United

States v. Shively, 927 F.2d 804, 812 (5th Cir. 1991)) (rejecting as

"misguided" an argument that the nexus requirement articulated in

Aguilar applies to subsection (b)(3)).

Also, the statute explicitly disclaims any requirement

that the defendant knew that the "communication . . . of

information relating to the commission or possible commission of a

Federal offense" would be made to a federal official. 18 U.S.C. §

1512(g)(2).5 See Baldyga, 233 F.3d at 680 ("We also want to dispel

any notion that the defendant's intent . . . must include an

awareness of the possible involvement of federal officials."). In

light of the disclaimer in subsection (g)(2), a defendant may be

held strictly liable under subsection (b)(3) for the happenstance

that a federal law enforcement agent rather than, say, a local

police officer or internal affairs specialist investigated his

conduct. See United States v. Applewhaite, 195 F.3d 679, 687 (3d

Cir. 1999) ("One who attempts to corruptly influence an

investigation takes his or her witnesses and investigation as he or

she finds them."). Given the statutory language, we doubt that a

defendant is beyond the purview of subsection (b)(3) merely because

he expected the witness he tampered with to be interviewed by State

5
Formerly 18 U.S.C. § 1512 (f)(2).

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Officer X in particular, but the witness actually was contacted by

Federal Agent Y. See Veal, 153 F.3d at 1252-53 & n.27.

In the end, we need not resolve the exact contours of any

nexus requirement in subsection (b)(3). Indeed, the Arthur

Andersen court did not elaborate on the particularity required by

the nexus requirement in subsection (b)(2). There is simply

nothing in Arthur Andersen that helps the defendant, who

specifically and by his own words linked his intent to tamper with

all four witnesses to the particular federal inquiry into his

commission of a federal offense that eventually resulted in his

prosecution. If the defendant's contention is that the government

must prove "'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,'" Bailey, 405 F.3d at 108

(quoting United States v. Perry, 335 F.3d 316, 321 (4th Cir.

2003)), we continue to agree.6 If the defendant suggests that

Arthur Andersen requires a heightened showing of a nexus in a

§ 1512(b)(3) prosecution, between the intent to hinder

communication and a particular law enforcement agency, we express

our doubts but defer any final judgment for a future case that

requires resolution of that issue.

6
Like our sister circuits, we have referred in our discussions of
§ 1512(b)(3) to "investigations," although the statute does not
include that word. See Bailey, 405 F.3d at 108; Baldyga, 233 F.3d
at 681. See also Perry, 335 F.3d at 321; Applewhaite, 195 F.3d at
687; Veal, 153 F.3d at 1254-55.

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 3. Application to the facts

Peckham testified that, within a week of the incident,

the defendant approached him to say that "he talked to the captain

and everything's all set, that he did the prebooking and the

booking. And then he said 'don't worry about it. You guys don't

know nothing.'" When Peckham noted that his own name was on

Trombly's booking sheet, the defendant responded, "'Okay, then just

say I did the prebooking and started the booking, and you came in

halfway through the booking and finished the booking and put him in

his cell." Peckham testified further that the defendant "told us

to say nothing" to investigators. Finally, Peckham testified that,

on the defendant's instruction, he relayed the same information to

Lynch.

Lynch testified that he was given "a message" from the

defendant by Peckham "that we had to say that nothing happened, the

incident never happened." Lynch testified that on another occasion

the defendant told him "that the feds were in the station earlier

today and not to talk about it in our car." Lynch was not able to

remember when either of these conversations occurred.

Harrigan testified that, some days or weeks after the

incident with Trombly on September 9th, the defendant told him that

"the FBI was investigating the incident" and that "nothing

happened."

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 Straub testified that sometime before October 3rd, the

defendant "came up to me and stated that Internal Affairs was

investigating the thing that happened with the kid that night.

They found nothing, but it's being investigated by the feds or the

FBI, and nothing — nothing happened that night." Straub also

testified that the defendant told her that the US Attorney's Office

was involved, and that "all you know is that you were on the street

that night."

The evidence was sufficient to warrant all four of the

convictions for witness tampering. Peckham testified that the

defendant asked him to lie to investigators, and the evidence

allowed the jury to find that the defendant persuaded Peckham "in

contemplation" of a likely federal investigation into his criminal

conduct.7 The evidence allowed the jury to find that the defendant

7
The defendant argues at length that, under his reading of the
subsection (b)(3) nexus requirement, the evidence could not have
supported a conviction for tampering with Peckham, because the
defendant's conversations with Peckham occurred within a week of
the assault on Trombly -- before the federal investigation into the
defendant's conduct commenced. To the contrary, even though the
defendant did not refer to the federal authorities in his
conversations with Peckham, there was evidence that allowed the
jury to conclude that he tampered with Peckham because he feared a
federal investigation in particular. The defendant testified that
he knew within a few days after the incident that there had been a
well-publicized complaint against him for using excessive force on
an arrestee, which he knew could be a federal crime. Additionally,
because an officer in the Police Department's anti-corruption unit
testified that "it's generally understood within the [Boston
Police] Department" that the federal government may become involved
in investigating allegations of excessive force by a police
officer, the jury could have found that the defendant specifically
contemplated that the investigation into his conduct likely would

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corruptly attempted to persuade Lynch, Straub, and Harrigan to lie

to or withhold information from federal investigators that he knew

were probing his assault on Trombly. The jury also could find that

the defendant knew that his assault on Trombly could "be a criminal

. . . federal civil rights matter." This evidence was sufficient

to warrant a conviction under any conceivable reading of the

statute.

The defendant contends that Lynch's testimony that the

defendant said "the feds were in the station earlier today" is "not

credible as a matter of law" because there was "undisputed"

evidence that the federal authorities did not visit the station

house until October 3, after the defendant had been reassigned to

another location. The defendant was entitled to make such an

argument to the jury. But the jury was entitled to find that the

defendant actually did make the comment and that it was indicative

of his state of mind, even though he was wrong about the presence

of federal agents in the police station before October 3.

C. Sentencing

Before the district court, the defendant made a number of

objections about that court's understanding and application of the

sentencing guidelines. The defendant also asks that his sentence

be vacated in light of Booker, noting that the district court made

include federal agents, even before the FBI actually became
involved. The defendant does not argue that the government was
required to prove more.

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comments at sentencing indicating that he might have ordered a

different sentence in the absence of a mandatory sentencing

guidelines regime.

1. Interpretation of the Guidelines

We doubt that Byrne has preserved on appeal his

objections to the guideline calculations, but out of an abundance

of caution and because it does not change the result, we have

addressed his arguments. The district court ruled that the base

offense level for a civil rights violation involving force,

committed by one person acting alone, is the greater of ten or the

base offense level for the underlying crime. U.S.S.G §2H1.1(a).

Here, the district court concluded that the underlying crime was

aggravated assault — assault causing serious bodily injury — a base

level fifteen offense. U.S.S.G §2A2.2(a). The district court then

applied twelve levels of enhancements: four because the aggravated

assault involved serious bodily injury, U.S.S.G. §2A2.2(b)(3)(B),

see United States v. Newman, 982 F.2d 665, 671-675 (1st Cir. 1992),

six because the defendant was a public official or acted under

color of law, U.S.S.G. §2H1.1(b), and two because the defendant

obstructed justice, U.S.S.G. §3C1.1. These calculations netted a

base offense level of 27 and, given the defendant's lack of a

criminal record, a guideline range of 70 to 87 months of

imprisonment. The court imposed the shortest sentence within that

range.

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 The defendant objected to the guideline calculations on

three principal grounds. Two of these are easily dispensed. The

defendant's suggestion that the assault on Trombly did not cause

serious bodily injury is preposterous. As a result of the

defendant's assault on him, Trombly required emergency surgery and

then had his jaw wired shut. Similarly unavailing is the

defendant's argument that the evidence did not support the two-

level enhancement for obstruction of justice because the guidelines

require that the obstruction occur "in the course of" an

investigation, rather than, as the obstruction statute allows, "in

contemplation" of a "communication." We doubt that there can be a

situation in which the evidence is sufficient to support an

obstruction of justice conviction but not an obstruction of justice

enhancement. Even so, there was plentiful evidence that an

investigation into the defendant's conduct commenced before he

obstructed justice.

The defendant is also incorrect that the "cross-

referencing" provision of U.S.S.G. §2H1.1(a)(1), which fixes the

base offense level at the higher of ten or the base offense level

for the underlying crime, should not apply in cases where U.S.S.G.

§2H1.1(a)(3), which governs civil right violations involving "the

use or threat of force," might be applicable. Section 2H1.1(a)(3)

provides a floor, not a ceiling. The logic of the provision can be

inferred from civil rights violations involving underlying offenses

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such as sexual assault and murder, which the "cross-referencing"

provision ensures carry far higher base offense levels than civil

rights violations involving only minor force or the threat thereof.

The Sentencing Commission intended that crimes like the defendant's

be punished at least as severely as if they had occurred under

federal jurisdiction but not during a civil rights violation.8

Courts of appeals have applied §2H1.1(a)(1) accordingly. See,

e.g., United States v. Allen, 341 F.3d 870, 894-95 (9th Cir. 2003)

(approving cross reference to aggravated assault for base offense

level); United States v. Webb, 252 F.3d 1006, 1010 n.6 (8th Cir.

2001) (concluding that it would be an error of law to fail to apply

higher base level of cross-referenced offense); United States v.

Velazquez, 246 F.3d 204, 209 (2d Cir. 2001) (discussing cross-

referencing to homicide offenses in civil rights sentencing of

prison guard who killed inmate).

2. Booker error

The defendant made no timely Sixth Amendment objection to

his sentence. Accordingly, we review his Booker claims pursuant to

United States v. Antonakopoulos. 399 F.3d 68, 79-80 (1st Cir.

2005). We examine whether the defendant can show that he might

have received a lesser penalty if the guidelines had been deemed

advisory at the time he was sentenced. Id. at 78-79. Our inquiry

8
When, as here, civil rights violations are committed under color
of law, by a public official, U.S.S.G. §2H1.1(b)(1) advises a
separate and distinct enhancement.

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into the defendant's prospects for a lesser sentence is not

"overly demanding." United States v. Heldeman, 402 F.3d 220, 224

(1st Cir 2005). We will allow the district court the opportunity

to reevaluate the defendant's case as long as "there is reasonable

indication that the district judge might well have reached a

different result under advisory guidelines." Id.

In this case, the district court expressed hesitations

about sentencing the defendant within the guideline range and

sentenced the defendant to the shortest permissible term within

that range. The court noted twice that it took "no pleasure" in

the sentence and took pains to express misgivings that "I do not

have the discretion that a state judge does." And, while the court

condemned the defendant's conduct as "unprovoked" and unjustified,

the sentencing colloquy also expressed sympathy for the "unique"

position of police officers. It is unclear to us just what

circumstances may have provoked the district court's sympathy. But

there may be circumstances of which we are unaware, and in any

event, the main question right now is the likelihood that the

district court may be inclined to give a lower sentence. Given all

of the circumstances here, we vacate the sentence and remand for

resentencing.

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 III.

For the reasons stated above, we affirm the defendant's

convictions. We vacate the defendant's sentence and remand for

resentencing.

So ordered.

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