UNITED STATES

v.

WILLIAM RAYMOND BEACH

TJOFLAT, Circuit Judge:

The setting for this case is a street community in Tampa, Florida, referred to by its inhabitants—mostly drug traffickers and the addicts they serve—as “the field.” On November 13, 2017, Bradley Dykes, a heroin addict living in the field, was in dire need of an injection. He sent his girlfriend, Tanya Molish, a crack addict, to their supplier, Corey Donald Smith, for a fix. Dykes gave Molish his EBT card to pay for the drug. Using the card as payment, Molish bought the heroin from Smith and then injected Dykes with it. The heroin was laced with fentanyl. Dykes went into a coma and died with Molish at his side.

Detectives Robert Harrop and Ryan LaGasse of the Hillsborough County Sheriff's Office Heroin Working Group, which partnered with federal law enforcement, were soon on the case and located Molish. She admitted what had taken place on November¹³, 2017, and agreed to help the detectives make a federal narcotics case against Smith via a controlled drug buy. This didn't sit well with Molish's new boyfriend, Appellant William Raymond Beach, who had a lengthy criminal record and was being held in the Hillsborough County Jail (the "Jail") on a charge of trespassing. In a monitored and recorded telephone call he made to Molish from the Jail on May⁷, 2018, Beach threatened to kill her if she cooperated with law enforcement and participated in a controlled drug buy from Smith.

That death threat led to Beach's indictment and conviction for tampering with a witness in violation of¹⁸ U.S.C.

§ 1512(a)(2)(A). Beach appeals his conviction on the ground that the evidence was insufficient to convict him of the offense in three respects: (1) the alleged threat of physical force only related to a criminal investigation, not an "official proceeding"; (2) the evidence failed to establish that he intended to prevent Molish from testifying in an official proceeding; and (3) the evidence failed to establish that he was the person who threatened Molish. We are not persuaded. Accordingly, we affirm Beach's conviction.

I.

Beach's one-day jury trial occurred on December¹⁷, 2018. The prosecution presented one witness, Detective Harrop, and four exhibits. Exhibit¹, a recording of the phone call Beach made to Molish from the Jail at 7:37 P.M. on May⁷, 2018, served as the foundation for the indictment in this case. Exhibit² was a tran- [fn²] script of the May⁷ call. Exhibit³ was a copy of the indictment returned against Smith on May¹⁸, 2018, charging him with the distribution of the fentanyl-laced heroin to Molish on November¹³, 2017, in violation of²¹ U.S.C. § 841(a)(1). Exhibit⁴ consisted of recordings of 65 phone calls Beach made to Molish from the Jail

[fn¹] The statute provision states: “Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to—influence, delay, or prevent the testimony of any person in an official proceeding... shall be punished."¹⁸ U.S.C. § 1512(a)(2)(A). [fn²] Exhibit² was an illustrative exhibit introduced to assist the jury in comprehending Exhibit 1.

between April 27 and May⁷, 2018. We turn now to what this evidence established at Beach's trial.

A.

On February⁹, 2018, Detectives Robert Harrop and Ryan LaGasse met with Molish “on the street” a short distance from the intersection of Fowler Avenue and North 15th Street in Tampa. Molish was with Beach, whom she began dating after Dykes's death. Beach liked to do drugs while he was out on the street, especially synthetic marijuana—also known as "spice" or "toochie." He had an extensive criminal record and let the detectives know right away that he was "totally against the police."

Molish agreed to talk to Detective LaGasse alone. They had a conversation in his vehicle, and he recorded it. The conversation focused on the circumstances surrounding Dykes's death. The detectives wanted Molish to be a witness in a case against Smith, and LaGasse let her know that. Meanwhile, Detective Harrop talked to Beach in the backseat of Harrop's vehicle. Beach told Harrop that he was concerned about Molish being charged with homicide because she injected Dykes with the fentanyl-laced heroin. Harrop said that indicting her was out of the question and "gave [his] word" that she would not be charged. Nonetheless, Beach let

[fn³] In addition to serving on the Heroin Working Group, Detective Harrop was a "designated agent" with Homeland Security Investigations, the principal investigative arm of the United States Department of Homeland Security.

Harrop know that he distrusted the detective and would not allow Molish to be interviewed again without a lawyer present.

During her conversation with Detective LaGasse, Molish told him that she paid Smith for the heroin with Dykes's EBT card. The detectives subsequently used this information in surveilling Smith. They discovered that Smith used the EBT card to purchase food at a bodega he and others in the field frequented.

The detectives met with Molish on March²³, 2018, so she could identify Smith from the bodega's CCTV footage. Beach was with her. Molish expressed a desire to assist the detectives in their pursuit of Smith, and as they were in the process of showing her the bodega video footage, Beach became irritated and spoke over Molish, telling the detectives that he would not allow Molish to talk with them because she did not have a lawyer present. After a few minutes, Beach grabbed Molish by the arm and ushered her away from the detectives.

On April²², 2018, after he was confined in the Jail on a trespass charge, Beach gave Molish his cell phone and tasked her with carrying it while he was incarcerated. From April 27 to May⁷, 2018, Beach used the Jail's telephone to place 65 collect calls to his cell phone to talk to Molish. All 65 phone calls were recorded by the Jail using a recording system called ICSolutions, the details of

[fn⁴] Exhibit⁴ contains recordings of 65 completed phone calls between Beach and Molish. Beach may have tried to call Molish on other occasions without reaching her, but that is not clear from the record.

which we explain below. Beach paid for the collect calls with money he had in his jail account. Beach's cell phone was also prepaid, which meant that Molish had to put money on Beach's cell phone while Beach was in jail.

The ICSolutions system recorded all outgoing telephone calls placed by inmates. An automated voice would state the number, date, and time of the phone call. After that, an inmate proceeded through three separate methods of identification before speaking to the party called. First, the ICSolutions automated voice would direct the inmate to enter his inmate identification number using the Jail phone's keypad. Next, the automated voice would direct the inmate to say his first and last name for identification purposes. If the ICSolutions system could not understand the inmate's response, the system would ask the inmate for his name again. If an inmate refused to identify himself, the system would not allow his phone call to go through. Finally, the ICSolutions automated voice would sometimes ask the inmate to participate in a second method of voice identification, directing the inmate to say the phrase "United States" into the phone. It was not until the inmate completed this entire voice identification process that the recipient's phone would ring. [fn⁵]

[fn⁵] If the person called answered her phone, the ICSolutions automated voice would tell her that she had a collect call from the inmate and then play the recording of the inmate saying his name. If she accepted the inmate's call, the automated voice would say how much money the inmate had in his account, notify both parties of the cost of the call per minute, and state a time limit for the call. The exact time limit would depend on how much the phone call cost

The calls between Beach and Molish documented their "volatile" relationship as well as Beach's abusive behavior towards Molish. During some of the 65 calls, Beach and Molish expressed love for one another. In one call on April 30, Beach said that the idea of the two of them breaking up made him want to harm himself. In some calls, Beach asked Molish to marry him, and they excitedly discussed whether Molish might be pregnant. Beach expressed remorse for having "put his hands on Molish" in the past and promised Molish he would never do it again.

On occasion, Beach was verbally abusive towards Molish. Beach threatened Molish with physical violence over her perceived dishonesty. Beach said he'd "break [her] face" or have "this girl Kelly, who whoops girls" for him, "come see" her. Throughout the phone calls, Beach sought to control Molish in a variety of ways—telling her what to do, where to go, and whom she could (or could not) interact with—and demanded constant obedience of his orders as a condition for his love. Molish was afraid of Beach due to his threats and violent behavior.

Beach also blamed Molish for his incarceration. In one call, he told her that he was in jail because she cooperated with law enforcement officials who had a personal vendetta against him. He

and how much money the inmate had in his account. Regardless of the balance in the account, however, ICSolutions would disconnect a phone call after¹⁵ minutes. The automated voice would then say, "Thank you for using IC- Solutions. You may begin speaking now," after which the inmate and the person he called could begin their conversation.

said the real reason he was arrested for trespassing was because he told Detectives Harrop and LaGasse that they could not talk to Molish without a lawyer present during their February⁹ encounter.

Beach and Dykes were part of the same community on the streets, but the two were not close friends. Beach knew about Molish's previous relationship with Dykes and her involvement in the events leading to Dykes's death—including the fact that she injected him with the fentanyl-laced heroin. Beach accused Molish of killing Dykes intentionally, and on several occasions, he warned Molish that he would tell the court about "what [she] did to [Dykes]" if she did not pay his bail bond. Beach also knew about Smith because Smith had a reputation as a "big-time" drug dealer in their community. He referred to Smith by his nickname, "C."

On May¹, 2018, Molish told Beach that Detective LaGasse had come up with a plan whereby she could obtain the $500 she needed to pay Beach's $5,000 bond. The plan? Helping the detectives arrest Smith.

The plan would proceed as follows. Molish would contact Smith and arrange a controlled purchase of crack from Smith. The detectives would observe her as she approached Smith. Once

[fn⁶] Under Florida law, a criminal defendant can satisfy his bail requirements by posting a bond for the bail. Fla. Stat. § 903.105. The defendant can post a bond by depositing "a sum of money equal to¹⁰ percent of the required bail with the clerk of the court." Id. § 903.105(2). [fn⁷] Molish planned to purchase crack instead of fentanyl from Smith because she had purchased crack from Smith on multiple occasions in the past.

Molish obtained the crack, detectives would arrest Smith and eventually charge him with providing the fentanyl-laced heroin that killed Dykes. They would pay Molish $500 for her efforts.

After Molish told Beach about Detective LaGasse's plan, Beach insisted that she not cooperate, but he doubted Molish was telling the truth when she agreed. Later, Beach insisted Molish put off cooperating until after he was out of jail, and Molish agreed to do so.

B.

On May⁷, 2018, Beach called Molish from the Jail at 4:14 P.M. She told him that she was on her way "downtown to talk to a federal attorney" and that she was "cooperating" and "trying to get the money to get [him] out" of jail. Evidently anxious, Beach told Molish to "make it happen," adding that she should let him know . . . we got a big-time crack dealer for him and we got a bigtime spice dealer for him."

A short time later, the detectives introduced Molish to an Assistant United States Attorney ("AUSA") to prepare her to testify about her purchase of the drug that killed Dykes. Molish cooperated with the AUSA and provided the testimony she would tell a jury.

After meeting with the AUSA, Molish and the detectives set up the controlled buy with Smith. Molish contacted Smith to arrange a crack purchase. They settled on a time and location for the purchase, and Molish so informed the detectives.

At 7:24 P.M. that same day, while Molish sat with Detective Harrop in his pickup truck awaiting word from Smith, Beach called Molish again. Molish told Beach that she had gone to "see the federal attorney," and that she now was "waiting on 'C' [Smith] to call." Beach said he disagreed with her decision to cooperate with the detectives and that by agreeing to participate in the controlled buy, she put her life at risk because members of the street community do not like law enforcement or people who cooperate with the police. Beach then complained that he was still in jail and questioned why his bond had "not been paid yet." After expressing his disapproval that Molish had unilaterally made a decision to cooperate with the police, Beach told Molish it was "over" between them and hung up on her.

C.

Beach called Molish again at 7:37 P.M.—his ninth phone call to Molish that day. This phone call formed the basis for Beach's indictment in this case.

At the beginning of the call, Beach repeatedly identified himself to the ICSolutions automated system as "Billy" and input his inmate identification number when prompted. Molish answered the call, telling Detective Harrop, "Billy is calling me." After Molish accepted Beach's call, Beach told her that he had "just thought about something," that he had "nothing to do with none of this shit," and that he needed Molish to "make that clear." When Molish said that she had "made it clear all day long," Beach insisted

that she repeat, "Billy has nothing to do with this shit" out loud so that Detective Harrop could hear it.

Beach again accused one of the deputies of "ha[ving] it out for" him and questioned why he was in jail. He also asked who made the decision to have him arrested for trespassing and who had talked to Molish after he had been arrested. Molish told Beach that Detective LaGasse was going to come to the Jail to talk to Beach about what the detective could do to get Beach out of jail, but Beach told Molish that he would "refuse all that" and that there was nothing for him and the detective to discuss. Beach then insisted that Molish get out of Detective Harrop's truck, adding, "I'm giving you a directive right now, direct order. Get the fuck out of there. Right now." Molish got out of the truck and walked away briefly, telling Beach, "I'm out of the car." Detective Harrop could no longer hear the call, but he could see Molish talking on the phone.

Beach continued to berate Molish, telling her not to come and see him and complaining, "when you initiated your shit my bond should've been paid right then." When Molish said that she agreed with Beach and expressed regret over agreeing to cooperate with the detectives, Beach questioned why she was "agreeing with" and "working with" the prosecution team, and he told Molish that she had "fucked up" by agreeing to cooperate.

Molish then told Beach that she met with the AUSA about testifying in Smith's upcoming trial: "I went and talked to the federal . . . to the federal attorney. . . . [H]e wants me to be a

witness. . . . [H]e said he went through everything, over the case and wants me to be a witness and told me to be safe." Although Molish repeated to Beach that she was only going through with the controlled buy so she could get $500 to pay for his bond, Beach insisted that Molish had been "played" and that she needed to "go hustle" so she could fund his telephone account and "get the fuck away from there cause I know you're still standing there." Molish replied: "I'm not standing next to him at all. . . . I'm walking down the road." At this point, Beach threatened to kill Molish:

Beach: (INAUDIBLE) this is a recording. I have a gun...

Molish: I'm what?

B: . . . I have a gun out there. Somebody left me a gun, put up. Somebody told me where it's at. I'm telling you on this recording phone if you go through with that shit I'm gonna' kill you on this recording phone. I don't give a fuck no more because you straight up disrespected the shit out of me to the utmost.

M: How did I . . .

B: I...

M: . . . disrespect you?

B: ... want nothing to do with you anymore. You can keep every fucking thing you have bitch, cunt, whore. I don't want nothing to do with you no more. Do you understand that[?] And if you hang up ...

Molish hung up on Beach and returned to the truck, crying hysterically. Molish called off the controlled purchase with Smith, so the detectives were unable to locate and arrest Smith that day. Smith was arrested weeks later, when officers found him in possession of both narcotics and firearms. The grand jury in the Middle District of Florida indicted Smith on May²¹, 2018, for knowingly and intentionally distributing fentanyl, which caused Dykes's death, in violation of²¹ U.S.C. § 841(a) and (b)(1)(C).

II.

On May¹⁰, 2018, Beach pleaded nolo contendere to the trespassing charge, was adjudicated guilty, and was sentenced to time served—which was¹⁸ days as of May¹⁰—allowing Beach to be released from jail.

On June²¹, 2018, Beach was indicted in the instant case for threatening a federal witness in violation of¹⁸ U.S.C. § 1512(a)(2)(A). He pleaded not guilty and was tried on December¹⁷, 2018. In its case in chief, the Government established the facts recited in Part I through Detective Harrop's testimony and Exhibits¹, 3, and 4. After Detective Harrop's cross-examination, redirect

[fn⁸] A jury found Smith guilty on March⁴, 2019. Docket, United States v. Smith, Case No. 8:18-cr-00235-CEH (M.D. Fla. 2018), Doc. 71. On March¹⁵, 2019, Smith moved the District Court for a new trial. Id., Doc. 84. The District Court granted Smith's motion for a new trial on May 31, 2019. Id., Doc. 95. Smith pled guilty to one count of aiding and abetting the distribution of a mixture and substance containing a detectable amount of fentanyl on January⁶, 2020. Id., Doc. 149. On February³, 2020, the District Court accepted Smith's plea and adjudicated Smith guilty as charged. Id., Doc. 159.

examination, and re-cross examination, the Government rested its case. Beach then moved the District Court for the entry of a judgment of acquittal. [fn⁹]

Beach argued that the Government had "failed to establish a prima facie case of I.D. [and] venue," and that the Government had not met its burden of establishing "the essential elements of the charge . . . as outlined in the jury instructions." Prior to this point in the trial, however, Beach did not claim that the evidence was insufficient to show that he was the one who had placed the calls or made the threat. Rather, Beach highlighted that he and Molish talked on the phone 65 times between April 27 and May⁷— including ten times on May⁷—and that the two had a "volatile" but romantic relationship.

The District Court denied the motion for judgment of acquittal, and the case was submitted to the jury. Following almost two hours of deliberation, the jury returned a verdict of guilty as charged.

On April⁴, 2019, the District Court sentenced Beach to 99 months' imprisonment, followed by three years of supervised release. The Court departed downward eight levels from the U.S. Sentencing Guidelines sentence range due to Beach's mental and emotional condition, diminished capacity, and drug dependence.

[fn⁹] See Fed. R. Crim. P. 29(a) ("After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.").

On March⁵, 2020, Beach moved the District Court to vacate his sentence pursuant to 28 U.S.C. § 2255 on the ground that his attorney was constitutionally ineffective for failing to timely appeal the conviction. On April⁹, 2021, the Court granted the motion, vacated Beach's sentence, and reimposed it so that Beach could file a timely notice of appeal. He did so, and that appeal is now before us.

III.

Beach raises three arguments in his appeal to this Court. First, Beach argues that the law enforcement investigation into Smith did not constitute an official proceeding under¹⁸ U.S.C. § 1512. He contends that the threat against Molish related only to the controlled drug purchase—which was part of a law enforcement investigation. Second, Beach argues that he lacked the intent to obstruct an official proceeding because he did not know about or foresee that there would be a grand jury or court proceeding. Third, Beach argues that the Government failed to produce evidence to establish that he was the person who threatened Molish on the phone. Beach contends that the Government's evidence was insufficient because the Government did not authenticate the Jail's recordings or call Molish as a witness to testify that he was the person on the phone with her, instead relying on Detective Harrop's hearsay testimony that Molish told him it was "Billy" on the phone. We address each argument in turn.

A.

As an initial matter, we will review the first two issues for plain error because they were not specifically raised in the District Court. If an appellant does not preserve an issue on appeal, we review for plain error. United States v. Straub, 508 F. 3d 1003, 1008 (11th Cir. 2007). To preserve an issue for appeal, a party must object in a way that is "sufficient to apprise the trial court and the opposing party of the particular grounds upon which appellate relief will later be sought." Id. at 1011 (emphasis added) (quoting United States v. Dennis, 786 F. 2d 1029, 1042 (11th Cir. 1986)). Under plain error review, the appellant must establish "(1) that there was error (2) that was plain; (3) that affected his substantial rights; and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceeding." Id. at 1008. An error is plain if it is "clear" or "obvious." United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777 (1993).

Although Beach sought an acquittal based on the Government's failure to prove "the essential elements of the charge," this failed to apprise the Court of the particular grounds on which he would later seek appellate relief. See id. at 1011. We thus conclude that Beach did not preserve his arguments on appeal that the law enforcement investigation into Smith did not constitute an official procedure under § 1512 and that Beach lacked the intent to obstruct an official investigation because he did not know or foresee it.

The federal witness tampering statute makes it unlawful for any person to use physical force against a person, or threaten to do so, with intent to influence, delay, or prevent the testimony of any person in an "official proceeding."¹⁸ U.S.C. § 1512(a)(2)(A). An "official proceeding," as used in the statute, includes "a proceeding before a judge or court of the United States . . . or a Federal grand jury."¹⁸ U.S.C. § 1515(a)(1)(A). Law enforcement investigations are not listed as "official proceedings" in the statute. See id. However, a defendant can be convicted for federal witness tampering even if "an official proceeding [is not] pending or about to be instituted at the time of the offense." Id. § 1512(f)(1).

Beach's first argument—that the law enforcement investigation into Smith did not constitute an official proceeding under¹⁸ U.S.C. § 1512(a)(2)(A)—fails because the law enforcement investigation is not the official proceeding in question. The official proceeding would be a trial or grand jury proceeding against Smith, not the investigation. That proceeding need not have already begun. As further discussed below, it is enough that Beach foresaw such a proceeding.

B.

Beach's second argument is that the District Court erred when it denied his motion for judgment of acquittal because the Government failed to present sufficient evidence that Beach intended to obstruct an official proceeding.

We will uphold a district court's denial of a motion for judgment of acquittal "if a reasonable trier of fact could conclude that

the evidence establishes the defendant's guilt beyond a reasonable doubt." United States v. Holmes, 814 F. 3d 1246, 1250 (11th Cir. 2016) (quoting United States v. Rodriguez, 218 F. 3d 1243, 1244 (11th Cir. 2000)). In reviewing a district court's denial of a motion for judgment of acquittal, we view the facts in the light most favorable to the government and draw all reasonable inferences in favor of the jury's verdict. United States v. Clay, 832 F. 3d 1259, 1293 (11th Cir. 2016). "We will not overturn a jury's verdict if there is 'any reasonable construction of the evidence [that] would have allowed the jury to find the defendant guilty beyond a reasonable doubt.'" United States v. Martin, 803 F. 3d 581, 587 (11th Cir. 2015) (alteration in original) (emphasis added) (quoting United States v. Friske, 640 F. 3d 1288, 1291 (11th Cir. 2011)). The evidence need not exclude every reasonable hypothesis of innocence, however, for a reasonable jury to find guilt beyond a reasonable doubt. United States v. Cruz-Valdez, 773 F. 2d 1541, 1545 (11th Cir. 1985) (en banc). The jury is free to choose among alternative, reasonable interpretations of the evidence. Id.

The test for sufficiency of the evidence is identical regardless of whether the evidence is direct or circumstantial. United States v. Mieres-Borges, 919 F. 2d 652, 656–57 (11th Cir. 1990). But where the government seeks to meet its burden of proof based on circumstantial evidence, it must rely on reasonable inferences in order to establish that a "reasonable factfinder could conclude that the evidence establishes guilt beyond a reasonable doubt." Id. at 656.