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Baldeo v. United States

United States District Court, S.D. New York

February 26, 2018

ALBERT JAIRAM BALDEO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER

          HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE:

         Petitioner Albert J. Baldeo ("Baldeo") instituted this 28 U.S.C. § 2255 petition to vacate and set aside his conviction and sentence on one count of conspiracy to obstruct justice and six counts of obstruction of justice.

         The Government indicted Baldeo for attempting to defraud the City of New York to obtain public campaign matching funds.[1] Baldeo allegedly provided money orders or cash to individuals ("Straw Donors")[2] who then made contributions to Baldeo's campaign for New York City Council using Baldeo's funds purportedly in their own names, in violation of the New York City Campaign Finance Act. When the Government began its investigation, Baldeo allegedly intervened with the Straw Donors and threatened them to not cooperate with, and provide false information to, agents of the Federal Bureau of Investigation ("FBI") who were investigating contributions to the Baldeo campaign. ECF 17 ("Superseding Indictment")[3], ¶¶13-30. The Government charged Baldeo with conspiracy to commit mail and wire fraud for perpetrating this straw donor scheme (Count One), id. ¶¶1-8; mail fraud and attempted wire fraud (Counts Two and Three), id. ¶¶9-12; conspiracy to obstruct justice (Count Four), id. ¶¶13-18; and six counts of obstruction of justice (Counts Five through Ten), id. ¶¶ 19-30.

         At trial, Baldeo admitted he provided Straw Donors with money orders along with false campaign contribution documents. But he did so, not with the intent to obtain public matching funds, as alleged in the indictment; but rather to avoid a penalty for not repaying by the election day his personal loan to his campaign committee. If not repaid, the loan would have been deemed a contribution in excess of campaign limits, exposing Baldeo to fine and penalty.

         On August 11, 2014, after nine days of testimony and a day and a half of deliberations, the jury found Baldeo guilty on one count of conspiracy to obstruct justice and six counts of obstruction of justice; but acquitted him on one count of conspiracy to commit mail and wire fraud; and two counts of mail fraud and attempted wire fraud. ECF 87.

         On October 10, 2014, Baldeo timely moved for a judgment of acquittal as a matter of law, pursuant to Federal Rule of Criminal Procedure 29, or, in the alternative, for a new trial pursuant to Federal Rule of Criminal Procedure 33. Baldeo also claimed a structural violation of his Sixth Amendment right to public trial because the Court supposedly excluded the public from the courtroom during jury selection. ECF 124. The Court determined that the argument that "his Sixth Amendment right to a public trial was violated by the Court's 'effective exclusion' of the public during the voire dire, is a fiction, and a risible one at that." United States v. Baldeo, 2014 WL 6807833, at *5 (S.D.N.Y. Dec. 3, 2014).[4] The trial transcript conclusively demonstrated the falsity of his argument: the Court had asked the public to move to one place in the Courtroom so that the jury panel could be selected. In no instance did the Court exclude the public from the courtroom for any purpose. Accordingly, the Court denied Baldeo's Rule 29 and 33 motions; as well as Baldeo's motion for reconsideration. Id.; Baldeo, 2015 WL 252414 (S.D.N.Y. Jan. 5, 2015).

         Baldeo then embarked on a haj of hospitals claiming a variety of spurious ailments to delay his sentencing. Eventually, on February 2, 2015, the Court sentenced Baldeo to 18 months of imprisonment and a two-year term of supervised release. ECF 153. Baldeo is still on supervised release.

         On February 13, 2015, Baldeo moved for bail pending appeal "trot[ting] out the same tired arguments that were made before trial, during trial, and in voluminous post-trial motions." See ECF 155; 161. On March 5, 2015, the Court denied the motion, noting that Baldeo was a flight risk as evidenced by inexplicable "multiple self-hospitalizations ... attempting] to evade and avoid his sentencing date." ECF 161 at 2. The Court found that Baldeo had "engaged in reprehensible conduct, threatening his former clients and friends in order to avoid the consequences of his own misconduct." Id. The serial abuse of his neighbors / constituents and his use of false charges against them with a variety of City enforcement agencies made Baldeo a danger to the community. Baldeo then moved for bail in the Second Circuit; on March 17, 2015, the motion was denied. Baldeo, No. 15-00286 (2d Cir.), Dkt. Nos. 14, 19. Two days later, Baldeo moved the Second Circuit for reconsideration, but the motion was denied again.

         On appeal, Baldeo retained new, experienced appellate counsel and sought review of four issues:

1) Whether this Court gave "an erroneous, coercive, unanimity charge after the jury revealed that it was struggling with an 11 to 1 vote";
2) Whether there was "insufficient evidence of venue in the Southern District of New York on Counts 4, 5, 6, 8, 9, and 10"[5];
3) Whether there was "insufficient evidence of the element of 'corrupt persuasion' on Count Seven"; and
4) Whether this Court "err[ed] in denying Baldeo's motion for a new trial."

See Baldeo, No. 15-00286 (2d Cir.), Dkt. No. 26, at 1-2.

         On August 26, 2015, the Second Circuit affirmed Baldeo's conviction and sentence, holding, in part, that the evidence of venue in the Southern District of New York ("SDNY") was sufficient for each of the six challenged counts because there was "evidence that Baldeo sought to impede grand jury proceedings that were subsequently instituted in the Southern District of New York by attempting to prevent potential witnesses from communicating with FBI agents from that district" about suspected federal offenses. Baldeo, 615 Fed.Appx. 26, 27 (2d Cir. 2015). Accordingly, with respect to each count, there was sufficient evidence to prove by a preponderance of the evidence that venue was proper in SDNY where the official proceedings were instituted. Id. The Second Circuit also determined that Baldeo waived any challenge to the jury charge on venue by failing to raise it in his brief. Baldeo, 615 Fed.Appx. at 27, n, l ("Baldeo waived this issue by failing to argue in his briefs that the venue instructions were erroneous").

         Baldeo sought an en banc hearing, No. 15-00286 (2d Cir.), Dkt. No. 50, but that was denied, id., Dkt. No. 52. His petition for a Writ of Certiorari was also denied on March 7, 2016. Baldeo v. United States, 136 S.Ct. 1393 (mem) (2016). On March 7, 2017, one year to the day after denial of the cert petition, Baldeo filed this 28 U.S.C. § 2255 petition challenging his conviction and sentence. Consistent with his prior behavior, Baldeo sought to make use of this petition to stay a State disciplinary action pending against him, See In the Matter of Albert Jairam Baldeo, 2017 WL 4700212 (App Div. 2d Dep't Oct. 19, 2017).

         Baldeo has shown minimal respect for the rule of law. He has attempted to thwart a federal investigation by threatening witnesses and encouraging them to lie to the FBI; evade his conviction by falsely accusing the Court of excluding the public from his trial; frustrate the Court's sentencing through inexplicable self-hospitalizations; and subvert the imposed sentence by seeking further delays through frivolous motions and appeals. This petition is no different. The petition is DENIED, as is the request for an evidentiary hearing.

         LEGAL STANDARD

         28 U.S.C. § 2255(a) provides, in relevant part, that a prisoner:

claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         A petition for relief under § 2255 faces a heavy burden: "a collateral attack on a final judgment in a federal criminal case is generally available under § 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice." Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (internal quotations omitted).

         Generally, "a claim may not be presented in a habeas petition where the petitioner failed to properly raise the claim on direct review." Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007) (citation omitted). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either 'cause' and actual 'prejudice, ' or that he is 'actually innocent'." Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted).

         DISCUSSION

         Baldeo posits three reasons for the relief he seeks:

1) The jury charge on venue was impermissibly broad because, as the transcript of the jury charge shows, a comma and a word ("about") were missing;
2) Baldeo's trial attorney and his (different) appellate attorney failed to provide effective assistance of counsel; and
3) In rendering its decision denying Baldeo's direct appeal, the Court of Appeals improperly considered written jury instructions that were not part of the record on appeal.

         I. The Court's Jury Instruction on Venue

         Baldeo contends his conviction on obstruction of justice counts should be vacated because this Court unconstitutionally expanded the definition of venue in its jury charge. No. 17 Civ. 1692, ECF 5 ("Mem.") at 16-26. This contention is meritless.

         A. Background

         1. Relevant Law - Venue

         Venue for obstruction of justice counts can be established in a district where "any part of the crime was committed." United States v. Gonzalez, 922 F.2d 1044, 1054 (2d Cir. 1991). It can also be established in a district where "the official proceeding (whether or not pending or about to be instituted) was intended to be affected." 18 U.S.C, § 1512(i); see also Gonzalez, 922 F.2d at 1054. The Government bears the burden of proving venue by a preponderance of the evidence. Gonzalez, 922 F.2d at 1056.

         2. Relevant Facts - Written Jury Charge and Oral Jury Charge

         During Baldeo's trial, the Court prepared a proposed jury charge and shared it with both parties for their review, See Trial Tr. at 1571:18-23. The Court conducted a jury charge conference, see Id. at 1571-1625, and then prepared the final Written Jury Charge. See No. 17 Civ. 1692, ECF 21-1 ("Written Jury Charge"). The Written Jury Charge included a venue instruction that, for the obstruction of justice counts, provided: "the government may also demonstrate venue by proving that the defendant intended to affect an official proceeding, whether or not that proceeding was pending or about to be instituted, in this district." Id. at 46.

         Consistent with its regular practice, the Court read the Written Jury Charge to the jury. See Trial Tr. at 1782-1847. Both parties, and Defendant Baldeo, as well as the Court's law clerk had copies of the Written Jury Charge; and they read along as the Court delivered the charge. See, e.g., Id. at 1847:6-18. When the reading of the Written Jury Charge was completed, no one objected or asserted that any part of the Written Jury Charge, including the venue portion, had been misread. The Court then sent twelve copies of the Written Jury Charge into the jury room for use during deliberations. See Id. at 1783:3-5; 1848:20-23.

         The jury charge, as delivered, was transcribed by a court reporter. The transcript of the venue charge, which was never provided to the jury, reads: "the government may also demonstrate venue by proving that the defendant intended to affect an official proceeding, whether or not that proceeding was pending or to be instituted in this district." Id. at 1840:8-12. This transcription is, however, slightly different from the written venue instruction that the Court read: the transcription does not include a comma between words "instituted" and "in, " and does not include the word "about" before "to be instituted."

         B. Discussion

         Baldeo argues the Court's jury instruction on venue was erroneous because the jury charge, as delivered, improperly permitted the jury "to find venue [in this district] 'whether or not' a proceeding was 'pending or to be instituted in this district.'" Mem. at 20 (emphasis in original). His argument principally rests on differences between the transcribed venue instruction and the Written Jury Charge. These differences ...


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