United States v. Baldyga

United States Court of Appeals
For the First Circuit

No. 99-2008

UNITED STATES OF AMERICA,

Appellee,

v.

GERALD BALDYGA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Torruella, Chief Judge,

Wallace*, Senior Circuit Judge,

and Lipez, Circuit Judge.

Benjamin S. Albert, with whom Jeffrey H. Cramer and
Brown, Rudnick, Freed & Gesmer, P.C. were on brief, for
appellant.
Jennifer H. Zacks, Assistant United States Attorney, with
whom Donald K. Stern, United States Attorney, was on brief,
for appellee.

* Of the Ninth Circuit, sitting by designation.
 December 7, 2000

LIPEZ, Circuit Judge. In March, 1999, a jury convicted

Gerald Baldyga of four counts of possession of cocaine with

intent to distribute and distribution of cocaine, in violation

of 21 U.S.C. § 841(a)(1), one count of being a felon in

possession of firearms and ammunition, in violation of 18 U.S.C.

§ 922(g)(1), and one count of tampering with a witness, in

violation of 18 U.S.C. § 1512(b)(3). Focusing on the witness

tampering conviction, Baldyga argues on appeal that the evidence

was insufficient to support that conviction and that the

district court erred in its instructions to the jury. As the

ensuing discussion reveals, Baldyga's case does not involve

witness tampering in the classic sense of a defendant, prior to

trial, approaching a potential witness and attempting, through

threats or other means, to prevent that witness from testifying

against him. Baldyga also raises issues we have not addressed

before relating to the "communication with federal officials"

element of the witness tampering statute. Despite the unusual

facts and unaddressed issues, federal circuit courts have

consistently interpreted § 1512(b)(3) to include the kind of

conduct Baldyga engaged in here.

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 Baldyga further contends unpersuasively that one of the

search warrants authorizing a search of his property was

defective, and that the district court made an improper

evidentiary ruling at trial. Accordingly, we affirm his

conviction on all counts.

I. Background

We recount briefly the contours of this case, deferring

a more detailed recitation for the sufficiency of the evidence

discussion. Baldyga's convictions arise from an investigation

begun by state and local authorities in Webster, Massachusetts,

in January, 1998. The federal Drug Enforcement Administration

(DEA) joined the investigation in February, 1998. Richard

Chenevert, a regular drug customer of Baldyga's, was a

cooperating witness throughout the investigation who agreed to

buy cocaine from Baldyga in a "controlled purchase." For each

transaction, the government gave Chenevert money for the

purchase and equipped him with a listening device so they could

monitor his safety. During January and February, 1998,

Chenevert successfully made three controlled purchases of

cocaine from Baldyga.

On March 1, 1998, Chenevert attempted to make a fourth

controlled purchase of cocaine at Baldyga's home. When he

arrived, however, Baldyga gave him a note instructing him to

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remain silent and to put his hands on the wall. Baldyga found

the listening device Chenevert was wearing, disabled it, and

instructed him to leave the premises. When the listening device

went dead, the law enforcement officers monitoring the

transaction approached the property. Although Baldyga fled the

house through a rear exit, he was apprehended by authorities

approximately 50 yards from his home.

II. Sufficiency of the Evidence

Baldyga contends that the district court erred in not

granting his motion for acquittal because there was insufficient

evidence to support his conviction for witness tampering in

connection with his confrontation with Chenevert. We review the

district's court ruling on the Rule 29 motion de novo. See

United States v. Hernandez, 146 F.3d 30, 32 (1st Cir. 1998). In

considering whether the evidence was sufficient to convict

Baldyga, we view the facts and draw reasonable inferences in

favor of the government. See United States v. Freeman, 208 F.

3d 332, 337 (1st Cir. 2000). The evidence is legally sufficient

so long as, taken as a whole, it warrants a judgment of

conviction. See id. at 338. We consider both direct and

circumstantial evidence as part of this inquiry. See United

States v. Duclos, 214 F.3d 27, 32 (1st Cir. 2000). To affirm

Baldyga's conviction for witness tampering under 18 U.S.C. §

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1512(b)(3), we must find that the evidence was sufficient for

the jury to conclude beyond a reasonable doubt that Baldyga

knowingly intimidated or threatened Chenevert with the intent to

hinder Chenevert's communication with federal law enforcement

officials.1

The government's cooperating witness, Richard

Chenevert, testified that on March 1, 1998, he agreed with local

and federal law enforcement authorities to do a fourth

controlled buy of cocaine from Baldyga. Following the typical

procedure, the government searched Chenevert, removed his

personal effects from his pockets, provided him with cash for

the transaction, and equipped him with a listening device.

Although Chenevert had successfully obtained cocaine from

Baldyga during controlled buys on three previous occasions, the

transaction on March 1 did not go well. When he arrived at

1The witness tampering statute, 18 U.S.C. § 1512(b)(3),
provides, in relevant part:

Whoever knowingly uses intimidation or physical force,
threatens, or corruptly persuades another person, or
attempts to do so, or engages in misleading conduct
toward another person, with intent to . . . hinder,
delay, or prevent the communication to a law
enforcement officer or judge of the United States of
information relating to the commission or possible
commission of a Federal offense or a violation of
conditions of probation, parole, or release pending
judicial proceedings . . . shall be fined under this
title or imprisoned not more than ten years, or both.

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Baldyga's residence, Baldyga handed Chenevert the note

instructing him not to talk, and to put his hands on the wall.

When he finished reading the note and looked up, Baldyga was

pointing a gold-colored double-barreled gun at his face.

When Chenevert turned around to face the wall, Baldyga

told him he had heard he would be wearing a wire. Baldyga then

searched him for the listening device and disabled it after

finding it in Chenevert's coat pocket. Baldyga asked Chenevert

what was happening, and Chenevert told him the police had not

followed him to Baldyga's house. At that point, Baldyga told

Chenevert to leave the premises and never return. Chenevert's

testimony about this exchange was substantiated at trial by

Stephen Rock, another government witness, who was at Baldyga's

home that evening to purchase cocaine.

A. Hindering Communication

Baldyga argues first that he "never threatened

[Chenevert] with physical harm should [Chenevert] inform federal

authorities in the future." Indeed, Chenevert did not testify

that Baldyga explicitly threatened to harm him should he contact

federal authorities. Nevertheless, the jury in this case could

readily and reasonably infer that Baldyga's brandishing of the

gun, and holding it to Chenevert's head, reflected an intent to

deter Chenevert from discussing the cocaine deals with federal

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authorities. Additionally, the jury could have concluded that

Baldyga revealed an awareness of Chenevert's cooperation with

law enforcement authorities by telling him he heard he would be

wearing a wire, and by searching for the listening device. The

jury also could have concluded that Baldyga intended to prevent

or discourage such cooperation when he ripped the wire away from

the transmitter.2 See, e.g., United States v. Black, 78 F.3d 1,

6-7 (1st Cir. 1996) (finding evidence sufficient under §

1512(b)(3) where the defendant, accompanied by a co-defendant

who commented on the witness's cooperation with law enforcement,

said nothing to the witness about her cooperation with federal

officials but displayed a leather holster on his ankle); United

States v. Victor, 973 F.2d 975, 978 (1st Cir. 1992) (finding

"abundant proof from which the jury could have determined that

[the defendant] was aware of [the witness's] cooperation with

the federal authorities" where the defendant made an

"unannounced visit" and "intrusive search" of the witness's

apartment and stated only that the witness "talked too much in

federal court").

2We note that Baldyga conceded at oral argument that,
assuming the officers listening to the conversation between him
and Chenevert were federal agents for purposes of § 1512(b)(3),
his actions to delay Chenevert's communication with those
officials would suffice under this element of the statute.

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B. Status of the Officers

Baldyga also contends that he did not violate the

witness tampering statute because no federal authorities were

listening to his conversation with Chenevert when he

disconnected the wire. Because the officers monitoring

Chenevert were local police only, Baldyga argues, he did not

interrupt Chenevert's communication with any federal official.

This argument fails for two reasons.3

First, the definition of "federal officials" under §

1512 includes not only federal law enforcement officials acting

in their federal capacity, but also any officer or employee

acting for or on behalf of the federal government as an adviser

3 We must also clarify two points here. First, our
consideration of whether the evidence was sufficient under §
1512(b)(3) to find the requisite involvement of federal
officials assumes that the jury was correctly instructed to find
specifically that the communication Baldyga hindered would have
been made to a federal agent. As Baldyga correctly contends on
appeal, the trial court did not so instruct the jury, and this
was error. Second, our finding that there was sufficient
evidence on the federal status of the officers does not preclude
Baldyga's claim that the omitted element of the jury
instructions was plain error that should be corrected. Rather,
as we discuss infra Part III, our consideration of the
sufficiency claim and the plain error claim raise analytically
distinct questions. Furthermore, the outcomes at stake are
different. If Baldyga prevailed on his challenge to the
sufficiency of the evidence, we would dismiss the witness
tampering charge. See Fed. R. Crim. P. 29(a). Success on his
assignment of error in the jury instructions would only secure
him a new trial on that charge. See, e.g., United States v.
Falu-Gonzalez, 205 F.3d 436, 444 (1st Cir. 2000).

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or consultant. See 18 U.S.C. § 1515(a)(4).4 Because the local

police officers monitoring the transaction between Chenevert and

Baldyga were acting with the DEA as part of a joint

investigation, they may be considered federal officials for the

purposes of § 1512(b)(3). See United States v. Veal, 153 F.3d

1233, 1251 n.25 (11th Cir. 1998) (stating that "[b]ecause of the

concurrent jurisdiction of state and federal authorities in such

areas as drug interdiction . . . we recognize that state police

officers can serve as advisors or consultants to federal agents

in the 'prevention, detection, investigation, or prosecution' of

various federal crimes" (quoting 18 U.S.C. § 1515(a)(4)(A))).

Baldyga argues that the requirements of § 1512(b)(3)

are "noticeably absent in the instant matter" because "there

were no federal authorities listening to the communication

device worn by [Chenevert]." We reject this claim because §

1512 does not require that the witness's communication with

federal officers be as imminent as Baldyga suggests. Instead,

other circuits have read the statute to require only a

4
Specifically, § 1515(a), which defines the terms used in
§ 1512, provides, in pertinent part: "the term 'law enforcement
officer' means an officer or employee of the Federal Government,
or a person authorized to act for or on behalf of the Federal
Government or serving the Federal Government as an adviser or
consultant . . . authorized under law to engage in or supervise
the prevention, detection, investigation, or prosecution of an
offense." 18 U.S.C. § 1515(a)(4)(A).

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possibility that the conduct will interfere with communication

to a federal agent.5 For example, in Veal, where the appellant

was accused of transmitting misleading information to federal

officials, the court found sufficient a "possibility or

likelihood that [the defendants'] false and misleading

information would be transferred to federal authorities

irrespective of the governmental authority represented by the

initial investigators." Id. at 1251-52; see also United States

v. Applewhaite, 195 F.3d 679, 687 (3d Cir. 1999); United States

v. Emery, 186 F.3d 921, 925 (8th Cir. 1999); United States v.

Diaz, 176 F.3d 52, 91-92 (2d Cir. 1999); United States v. Bell,

113 F.3d 1345, 1349 (3d Cir. 1997); United States v. Stansfield,

101 F.3d 909, 919 (3d Cir. 1996); United States v. Romero, 54

F.3d 56, 62 (2d Cir. 1995); United States v. Fortenberry, 971

F.2d 717, 720 n.9 (11th Cir. 1992). In discouraging Chenevert's

communication with authorities by disconnecting the listening

5 We note that some of these cases interpreting § 1512(b)(3)
concern misleading conduct rather than the intimidating conduct
we have here. In Veal, for example, the defendants were
convicted of misleading a witness with the intent to hinder the
witness's communication with federal officials. See Veal, 153
F.3d at 1245. The analysis regarding the federal character of
the crime and the relevant authorities applies with equal force
to any consideration of a conviction under § 1512. See, e.g.,
United States v. Diaz, 176 F.3d 52, 91 (2d Cir. 1999) (relying
on an opinion analyzing § 1512(a)(1)(C) in considering claims
under § 1512(b)(3) because the elements of the subsections of
§ 1512 are similar).

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device, Baldyga satisfied the requirements of the statute

because the possibility existed that such communication would

eventually occur with federal officials. Indeed, not only was it

possible that Chenevert would communicate with federal agents,

but his prior cooperation with them made such communication

probable.

We also want to dispel any notion that the defendant's

intent to hinder communication must include an awareness of the

possible involvement of federal officials. Section 1512

explicitly does not require proof of the defendant's state of

mind with respect to whether the officials involved were federal

officers. See 18 U.S.C. § 1512(f).6 Therefore, the evidence may

be sufficient to support a conviction under § 1512(b)(3) even if

the defendant had no knowledge that the witness threatened had

even contemplated communicating with a federal official. "All

that § 1512(b)(3) requires is that the government establish that

the defendants had the intent to influence an investigation that

happened to be federal." Applewhaite, 195 F.3d at 687.

C. Commission of a Federal Offense

6 Section 1512(f) provides, in relevant part: "In a
prosecution for an offense under this section, no state of mind
need be proved with respect to the circumstance . . . that the
law enforcement officer is an officer or employee of the Federal
Government or a person authorized to act for or on behalf of the
Federal Government or serving the Federal Government as an
adviser or consultant."

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 Finally, Baldyga argues that the evidence is not

sufficient to support his conviction for witness tampering

because Chenevert could not have witnessed a federal offense on

March 1, 1998. Because he claims he had no intention of selling

Chenevert drugs that day, he contends that there is no federal

offense upon which to predicate his conviction under §

1512(b)(3). We reject this argument. The jury found that the

evidence supported a guilty verdict on the charge of possessing

cocaine with intent to distribute it in violation of 21 U.S.C.

§ 841(a)(1), a federal offense. Moreover, the evidence was

sufficient to support Baldyga's conviction for witness tampering

even if the prosecution had been unable to prove all the

elements of the drug charge. See Applewhaite, 195 F.3d at 687

(noting that "if the investigation or prosecution a defendant

tries to hamper turns out to be federal, the [defendant] is

guilty of tampering with a federal witness even if the

prosecution is unable to establish the facts necessary to

establish a violation of federal law").

Section 1512(b)(3) does not require that the defendant

be convicted of the federal offense. Rather, the statute

criminalizes the interference of "communication to a law

enforcement officer . . . of information relating to the

commission or possible commission of a Federal offense." 18

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U.S.C. § 1512(b)(3) (emphasis added). Contrary to Baldyga's

assertion, the dispositive issue is the federal character of the

investigation, not guilty verdicts on any federal offenses that

may be charged. Indeed, even where a prosecution is in federal

court "only by accident or mistake" because authorities are not

correct in selecting a federal forum over a state forum, this

fact "does not alter the federal nature of the prosecutions

brought in federal court insofar as a violation of 18 U.S.C. §

1512 is concerned." Applewhaite, 195 F.3d at 688. Accordingly,

we reject Baldyga's claim that there was no federal offense

involved on March 1, 1998.

III. Jury Instructions

Baldyga argues that the court erred in not instructing

the jury that they must find the law enforcement officials

involved to be federal agents, as opposed to state or local

police.7 Because Baldyga's trial counsel did not object to the

7 With respect to § 1512(b)(3), the judge instructed the
jury:

Now Count 8 accuses Gerard [sic] Baldyga of tampering
with a witness or informant on or about March 1, 1998.
For you to find the defendant guilty of this crime,
you must find that the government has proven each of
the following elements beyond a reasonable doubt:
first, that Mr. Baldyga used intimidation, physical
force, or threats on March 1, 1998; and second, that
he did so with the intent to influence, delay, or
prevent the testimony of that person in an official
proceeding or to prevent the communication to a law

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instructions, we review this claim for plain error. See Fed. R.

Crim. P. 52(b); see also United States v. Olano, 507 U.S. 725,

731 (1993); United States v. Colon-Munoz, 192 F.3d 210, 221 (1st

Cir. 1999). To justify relief for this error, we must conclude

that there was error, that the error was plain, and that it

affected the substantial rights of the defendant. See Colon-

Munoz, 192 F.3d at 221. Even if these three conditions are

satisfied, correcting the error remains discretionary, and we

will do so only if the mistake "'seriously affect[s] the

fairness, integrity, or public reputation of judicial

proceedings.'" Olano, 507 U.S. at 732 (quoting United States v.

Young, 470 U.S. 1, 15 (1985)). Error is "plain" if it is

"clear" or "obvious." Id. at 734. The error in this case is

"plain" because § 1512(b)(3) requires, as an element of the

offense, that the law enforcement officials be federal agents.

However, we conclude that this omitted element was not

prejudicial because it did not affect Baldyga's substantial

rights.

enforcement officer of information relating to the
commission or possible commission of a federal
offense.

The government does not need to prove that Mr. Baldyga
knew that there was a pending federal, as opposed to
state, proceeding at the time of the offense.

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 For a mistake to affect the substantial rights of the

defendant under the third prong of the "plain error" test, the

error must have been "prejudicial" in the sense that it must

have affected the outcome of the district court proceedings.

See id. Because he did not object to the jury instructions at

trial, Baldyga bears the burden of persuasion on this point.

See id. Our task is to determine "whether the record contains

evidence that could rationally lead to a contrary finding with

respect to the omitted element." Neder v. United States, 527

U.S. 1, 19 (1999).8

At trial, Baldyga did not dispute the DEA's involvement

in the investigation. Even on appeal he contests only the

extent to which federal agents were involved in the

investigation, and their proximity to the transaction between

him and Chenevert on March 1, rather than their involvement at

all. Furthermore, the jury found, beyond a reasonable doubt,

8
Although this inquiry resembles our analysis of Baldyga's
challenge to the sufficiency of the evidence, we note that
finding the evidence sufficient to support his conviction did
not rule out the possibility that he was prejudiced by the
omitted element of the jury instructions. In deciding that the
evidence was sufficient to support his conviction, we determined
only that the evidence warranted a judgment of conviction beyond
a reasonable doubt. It would be consistent with that conclusion
to also conclude as part of the plain error analysis that the
same evidence was not so overwhelming as to rationally preclude
"a contrary finding with respect to the omitted element."
Neder, 527 U.S. at 19. However, we do not reach such a
conclusion here.

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that Baldyga engaged in conduct that constitutes a federal

offense by possessing cocaine with intent to sell. Logically,

the jury likely would have concluded that at least some of the

law enforcement officers involved in investigating that matter

were federal agents. See, e.g., Bell, 113 F.3d at 1349 (noting,

"[i]f an offense constitutes a federal crime, it is more likely

that an officer investigating it would be a federal officer").

Indeed, Special Agent Michael Boyle of the federal Drug

Enforcement Administration testified that he accompanied

Chenevert to Baldyga's residence on February 10, 1998 in an

attempt to make a controlled purchase of cocaine. Accordingly,

the jury heard evidence that at least one federal officer was an

active part of the investigation of Baldyga's conduct.

Based on this evidence, and other evidence presented

at trial, we cannot conclude that the jury rationally could have

made a contrary finding with respect to the element omitted from

the jury instructions. According to Neder, 527 U.S. at 19,

Baldyga was obligated to raise sufficient evidence to the

contrary. He neglected to do so at all in his initial brief,

and argues in his reply brief only that the involvement of the

federal DEA was limited, rather than that such involvement was

lacking. Therefore, no prejudice exists, and we decline to

correct the error. See id. at 18.

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 IV. Search Warrants

Baldyga appeals the district court's denial of his

motion to suppress evidence seized from the second search of his

residence. Following Baldyga's arrest on March 1, 1998, the

police obtained and executed a warrant to search the primary

residence at Baldyga's property, 61 Sutton Road, on March 2.

After seizing several items, including weapons and the note that

Baldyga had written to Chenevert, the police obtained and

executed a second warrant to search Baldyga's property. Baldyga

argues that the fruits of the second search should be suppressed

because the police lacked probable cause to obtain the warrant,

and because the warrant contained an insufficient description of

the premises to be searched.

We review a district court's decision to grant or deny

a suppression motion de novo. See United States v. Ferreras,

192 F.3d 5, 9 (1st Cir. 1999). However, the factual findings of

the court are entitled to deference in the absence of proof that

they are clearly erroneous. See id. We will find that clear

error exists only if, "after considering all the evidence, we

are left with a definite and firm conviction that a mistake has

been made." Id. at 9-10. "Moreover, we will uphold a district

court's decision to deny a suppression motion provided that any

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reasonable view of the evidence supports such a decision." Id.

at 10.

Our review of the evidence persuades us that there was

probable cause to support the second search warrant. Probable

cause exists where information in the affidavit reveals "a fair

probability that contraband or evidence of a crime will be found

in a particular place." United States v. Khounsavanh, 113 F.3d

279, 283 (1st Cir. 1997) (internal quotation and citation

omitted). "Probability is the touchstone" of this inquiry. Id.

(internal quotation and citation omitted). In his affidavit in

support of the application for the warrant, police officer

Thomas Ralph stated that the fruits of the first search,9 as well

as the ongoing police investigation of Baldyga's activities,

indicated that "a dealer at Mr. Baldyga's level would have a

large amount of cocaine on hand for sales." The first search of

Baldyga's residence only, and not the other buildings on the

property, did not produce any cocaine. Therefore, a reasonable

probability existed, based on the knowledge of the local police,

9
Although the police did not find any cocaine during the
first search, they did find four objects with possible cocaine
residue (a CD, a spoon, 2 plastic bag corners, and half of a
scale). Additionally, the search yielded four guns, shells, an
open box of baking soda, one bottle of Pyrodex (described as
"black Powder" in the police report), and a "note with
threatening statement on it" later identified as the note
Baldyga gave Chenevert.

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and the professional experience of the affiant, that cocaine

might be found in other locations on Baldyga's property.

Baldyga also contends that the second search warrant

was defective because it explicitly authorized only a search of

the residence at 61 Sutton Road, and not of the outbuildings and

other structures on the property. The authority to search is

limited by the specific places described in the warrant and

cannot be extended to additional locations. See Ferreras, 192

F.3d at 10. "However, search warrants and affidavits should be

considered in a common sense manner, and hypertechnical readings

should be avoided." United States v. Bonner, 808 F.2d 864, 868

(1st Cir. 1986). The second search warrant in this case

authorized a search of "61 Sutton Road, Webster, a single family

residence" and did not mention any of the other buildings on

Baldyga's property. However, the warrant stated, in the section

describing the items to be seized, "Also, any vehicles on the

property and any unattached buildings, storage areas, garages,

sheds on the property of 61 Sutton Road, Webster,

Massachusetts." The district court ruled, based on a reasonable

reading of the warrant and the affidavit of police officer

Ralph, that the entry describing the items to be seized was

misplaced and had been intended to describe the premises to be

searched. We must accept this finding unless we find that it is

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clearly erroneous. See Ferreras, 192 F.3d at 9. Based on

police officer Ralph's affidavit--which specifically mentions

"the separate storage areas, houses, garages, unattached

buildings and vehicles on the premises at 61 Sutton Road"--we

cannot conclude that the district court's decision is clearly

erroneous, and we affirm the ruling that the second search

warrant adequately described the premises to be searched.10

V. Evidentiary Rulings

Finally, Baldyga claims that the district court made

two improper evidentiary rulings. First, he argues that the

court erred in admitting an automatic weapon seized from his

property ("the Uzi") into evidence. He also contends that the

district court should not have allowed a government witness,

Special Agent Offringa, to testify about reconstructing the

weapon to make it capable of firing. Although Baldyga does not

refer to Federal Rule of Evidence 403 specifically, the

substance of his argument is that the weapon itself, and

Offringa's testimony, should have been excluded pursuant to Rule

403 because the probative value of the evidence was

10
Because we find that probable cause existed to support
the second search warrant, and that the warrant adequately
described the premises to be searched, we do not reach the issue
of whether the search would be valid under the good faith
exception to the warrant requirement. See United States v.
Leon, 468 U.S. 897 (1984).

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substantially outweighed by the danger of undue prejudice to his

case. See Fed. R. Evid. 403. We review the district court's

decision to allow the evidence for abuse of discretion.11 See

United States v. Alston, 112 F.3d 32, 35 (1st Cir. 1997); United

States v. Cruz-Kuilan, 75 F.3d 59, 61 (1st Cir. 1996). These

rulings must stand absent a showing of "extraordinarily

compelling circumstances." United States v. Lombard, 72 F.3d

170, 190 (1st Cir. 1995) (quoting United States v. Lewis, 40

F.3d 1325, 1339 (1st Cir. 1994)). Baldyga has made no such

showing.

The pieces of the Uzi were relevant to prove that

Baldyga was a felon in possession of firearms, and Offringa's

testimony was relevant to a full understanding of the number and

nature of the weapons he owned. Any prejudice to Baldyga was

mitigated by Offringa's testimony that the Uzi had been found at

Baldyga's residence in parts, that it had to be reassembled to

make it operable, and that a barrel--a component necessary to

11 Baldyga's trial counsel objected only to Offringa's
testimony concerning the reconstruction of the Uzi, and not to
the admission of the weapon itself. Therefore, the court's
decision to admit the Uzi into evidence is reviewed for plain
error only. See Fed. R. Crim. Pro. 52(b); Olano, 507 U.S. at
731. We do not reach the issue of whether Baldyga could
demonstrate plain error because we conclude that the admission
of the Uzi was not erroneous. However, we note that Baldyga has
not even attempted to demonstrate, as he must under the plain
error doctrine, see Olano, 507 U.S. at 734, that the admission
of the Uzi changed the outcome of his trial.

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make the weapon capable of being fired--had not been found among

the pieces in Baldyga's home. We reject Baldyga's challenge and

hold that the district court did not abuse its discretion in

making the evidentiary rulings.

Affirmed.

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