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Feds ask judge to sentence ex-Fairview cop
The U.S. Attorney's Office has asked a federal judge to deny ex-Fairview Township police officer Tyson Baker's request to withdraw his two guilty pleas in his multi-count theft case.
Federal prosecutors also are asking presiding U.S. Middle District Senior Judge Sylvia Rambo to promptly sentence Baker on both counts, according to a brief filed by prosecutors Monday in Harrisburg's federal court.
The 12-page brief argues that Baker breached his plea agreement by initially accepting responsibility and pleading guilty in court to two theft counts, then later reneging.
A March 1 filing by Baker's new attorney, Philadelphia-based Jack McMahon, states that Baker pleaded guilty to two counts of his federal indictment because of his "simple desire to get it over with and move on" and not because he's guilty.
Sentencing scuttled: Baker had a plea agreement in place with federal prosecutors until Jan. 17, when Rambo — responding to a letter from Baker in which he failed to accept responsibility in one of the thefts — insisted that he clearly admit guilt before she would sentence him. When he declined to do that on one of his two counts, she presided as Baker said he was withdrawing one of his two guilty pleas to theft.
He was expected to be sentenced at that Jan. 17 hearing. Instead, Rambo instructed the U.S. Attorney's Office to decide whether to take Baker to trial or simply agree to let him be sentenced on one felony count of theft of government property.
On Feb. 3, Baker's former attorney, Jay Abom, filed a motion asking that Baker be allowed to withdraw his remaining guilty plea, arguing the two-count plea agreement was "a package deal."
McMahon's March 1 brief in support of Abom's motion states that Baker wants to take his case to trial.
"Defendant's original plea agreement was motivated not so much as an admission of criminality but more motivated by the simple desire to get it over with and move on," McMahon wrote.
No takebacks: Federal prosecutors want Baker sentenced on the one remaining count. Moreover, they argue that the count to which he withdrew his guilty plea Jan. 17 is actually still in play because Rambo never filed a formal order granting that withdrawal.
Because of that, prosecutors are asking that Baker "promptly" be sentenced on both counts. He entered his guilty pleas in federal court Sept. 6 and admitted guilt in both thefts.
At that hearing, Rambo "concluded that the guilty pleas had a basis in fact and contained all of the elements of the crimes charged and therefore accepted the defendant’s guilty pleas," the prosecution's brief, filed by Assistant U.S. Attorney William Behe, states.
Now, Baker "essentially seeks to justify his perjury before the court when, under oath, he admitted he committed both crimes," Behe wrote. "Even if Baker lied to the court during the guilty plea (hearing), which is implicit in his claim that he only admitted guilt to get things over with, and has since regretted his decision, that ... is a legally insufficient reason to permit the withdrawal of a validly entered guilty plea."
'Bald assertions': Citing case law, Behe maintains that "bald assertions of innocence ... are insufficient to permit a defendant to withdraw (his) guilty plea" and argues a defendant must give "sufficient reasons to explain why contradictory positions were taken."
Federal law states that a defendant can withdraw a guilty plea but must provide "a fair and just reason," Behe's brief states. He maintains that Baker has failed to do that.
Behe's brief states that if Rambo allows Baker to withdraw both pleas and go to trial, then the FBI's confidential informant — a fellow Fairview Township police officer — will have to testify. That officer has not been publicly identified.
What's the message? "Additionally, the court needs to consider the adverse effect on the reputation of the legal system where a police officer who pleads guilty to stealing drug proceeds can now be allowed to change his mind, void validly entered guilty pleas, require the expenditure of scarce judicial resources and inconvenience those who would be selected to try the case as jurors based on no more of an explanation than that Baker has changed his mind," Behe wrote.
If Rambo is unwilling to sentence Baker on both theft counts, Behe is asking that she find Baker in violation of the plea agreement; order him to appear for sentencing on the guilty-plea count he's now trying to withdraw; and schedule trial on all remaining counts of the indictment, which in addition to theft counts include destruction, alteration or falsification of records in federal investigations and destruction or removal of property to prevent seizure.
The defense has until March 27 to file a brief in reply, according to court records.
The background: Baker incurred Rambo's ire before his sentencing hearing by writing her a letter that Abom submitted as an exhibit with Baker's sentencing memorandum. It's that letter that led to his plea agreement falling apart.
In it, Baker wrote that he will "take accountability" for his actions. But he does not acknowledge that he actually stole money in one of the two incidents to which he previously had pleaded guilty.
The portion that troubled Rambo was a paragraph in which Baker wrote that he didn't know money a fellow officer had put in his private vehicle was stolen. That fellow officer was an FBI informant, but Baker didn't know it at the time.
Despite not knowing the money was stolen, Baker wrote, "I did not decline its acceptance." Because he accepted the money, he wrote, he would "accept responsibility for receiving this money."
Rambo read aloud that portion of the defendant's letter at the Jan. 17 sentencing hearing. She then said his admission wasn't enough to satisfy the elements of the crime, despite Abom arguing that his client's admission was enough for the plea in that count to stand.
FBI sting: Baker, 42, of Corn Hill Road in Fairview Township, spent about 17 years with Fairview Township Police and served on the York County Drug Task Force before 2010.
He was charged after a fellow Fairview Township police officer became a confidential informant for the FBI and worked with the agency to investigate Baker.
According to Behe, Baker talked with the informant in the spring and summer of 2015 about stealing money from drug traffickers driving through Fairview Township.
Prosecutors said Baker and the confidential informant stole and shared $2,000 cash that the informant skimmed during a drug raid at a township home in November 2015. The informant turned over his share to the FBI, officials have said.
Then on Dec. 16, 2015, the FBI set up a sting in which an FBI agent posed as a drug trafficker driving through Fairview Township. The plan was for the informant/officer to pull over the agent and alert Baker, Behe has said.
VIDEO Baker surveilance
$15K worth of bait: The undercover agent posing as a drug trafficker carried $15,000 cash and 400 inert OxyContin pills, according to Behe.
A short time after Baker was called to act as backup, he was contacted by the FBI and told the "trafficker" was under federal investigation. Baker was instructed by the FBI not to search the vehicle, according to court records.
Despite that, Baker had the vehicle towed to a nearby garage where he searched it without a warrant and took $3,000 cash and a hidden camera he found inside, Behe has said, although Baker missed at least one other hidden camera.
Baker never submitted as evidence any of the cash or the camera that he removed, according to court records.
Fairview Township Police placed Baker on paid administrative leave in December 2015. Township supervisors fired him Feb. 29, 2016.
— Reach Liz Evans Scolforo at firstname.lastname@example.org or on Twitter at @LizScolforoYD.