United States District Court, S.D. New York
OPINION & ORDER
HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE:
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.
Government indicted Baldeo for attempting to defraud the City
of New York to obtain public campaign matching
funds. Baldeo allegedly provided money orders or
cash to individuals ("Straw Donors") 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"), Â¶Â¶13-30. The Government charged Baldeo
with conspiracy to commit mail and wire fraud for
perpetrating this straw donor scheme (Count One),
id. Â¶Â¶1-8; mail fraud and attempted wire fraud
(Counts Two and Three), id. Â¶Â¶9-12; conspiracy to
obstruct justice (Count Four), id. Â¶Â¶13-18; and six
counts of obstruction of justice (Counts Five through Ten),
id. Â¶Â¶ 19-30.
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.
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.
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). 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).
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.
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.
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,
3) Whether there was "insufficient evidence of the
element of 'corrupt persuasion' on Count Seven";
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
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").
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).
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
U.S.C. § 2255(a) provides, in relevant part, that a
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.
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
"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).
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;
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.
The Court's Jury Instruction on Venue
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
Relevant Law - 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.
Relevant Facts - Written Jury Charge and Oral Jury
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.
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.
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
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 ...