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).
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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
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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).
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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
-25-
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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