A jury сonvicted the defendant, a former Boston police sergeant, of one count of deprivation of constitutional rights and
*18
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 cress-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,
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. Sepulve-da,
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 Wil-braham, 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 Le-ahy 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 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 defendаnt’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, *19 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 thе 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 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 Trom-bly 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, оn a table in the guard room.
Only moments after being left alone in the guard room with Trombly, the defendant began yelling. Before Trombly 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 Trom-bly 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 Trom-bly 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 Trom-bly’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 othеr 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 police officer.- To cover himself, the defendant wrote an incident report in which he stated, falsely, that he had arrested Trombly himself, and that, *20 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 unаble to bite his teeth together and that he was having difficulty talking. An X-ray revealed a severely fractured jaw, of 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 Trom-bly. Soon, though, reports of Trombly’s treatment at the hands of the defendant apрeared 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.
II.
A. Limitations on Cross Examination
The government called Officer Lynch as its third witness, after Trombly and Le-ahy. 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 *21 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.
Defensе 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,
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 “concerní ]” 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,
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 timé,” 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
*22
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 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,
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,
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 29 motion.
United States v. Hernandez,
The defendant’s argument rests, in large part, on his insistence that
Arthur Andersen LLP v. United States,
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 attempts to do so, or engages in misleading conduct toward another person with intent to—
“knowingly” modifies “corruptly persuades.”
Arthur Andersen,
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 con
*23
templation any particular official proceeding in which those documents might be material.”
Arthur Andersen,
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 á 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 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,”
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, *24 prohibit engaging in the above-quoted сonduct “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 — ”
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,
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 ‘persuasion]’ 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 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,
While perhaps one might argue that the inclusion in subsection (b)(3) of “the communication to a ... judge” may refer tо 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,
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,
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,
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 instruсtion, he relayed the same information to Lynch.
*26 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.”
Straub testified that sometime before October 3rd, the defendant “came up to me and stated that Internal Affairs was invеstigating 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 U.S. 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 eon-templation” of a likely federal investigation into his criminal conduct. 7 The evidence allowed the jury to find that the defendant 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 *27 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 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 рreserved 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 § 2Hl.l(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,
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 еmergency 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 dеfendant is also incorrect that the “cross-referencing” provision of U.S.S.G. § 2Hl.l(a)(l), 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. § 2Hl.l(a)(3), which governs civil right violations involving “the use or threat of force,” might be applicable. Section 2Hl.l(a)(3) provides a floor, not a ceiling. The logic of the provision can be inferred from civil rights violations involving underlying offenses 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 сrimes 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 § 2Hl.l(a)(l) accord-
*28
ingly.
See, e.g., United States v. Allen,
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. Anto-nakopoulos,
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 resen-tencing.
III.
For the reasons stated above, we affirm the defendant’s convictions. We vacate the defendant’s sentence and remand for resentencing.
So ordered.
Notes
. The defendant testified to a different set of interactions. He said that he arrested Trom-bly himself, after the student had spit on him, and that Trombly, in hostility to the arrest, “put his hands on me,” by “swatting] 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 Harrigan.” 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,
. The defendant raises no challenge to the jury instructions (which wеre the issue in Arthur Andersen), nor does he contest the sufficiency of the evidence on the civil rights count.
. Formerly 18 U.S.C. § 1512(e)(1).
. We previously have held that a defendant need not "specifically know that the underlying conduct could constitute a federal offense.”
Bailey,
. Formerly 18 U.S.C. § 1512(f)(2).
. 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,
. The defendant argues at length that, under his reading of the subsection (b)(3) nexus requirement, the evidеnce could not have supported a conviction for tampering with Peck-ham, 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 comрlaint 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 include federal agents, even before the FBI actually became involved. The defendant does not argue that the government was required to prove more.
. 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.