Feds: Exclude Tyson Baker's defense regarding wife's cancer bills

Liz Evans Scolforo
York Dispatch

The same day federal prosecutors rested their case against fired Fairview Township Police Officer Tyson Baker, they filed a motion seeking to prevent him from telling jurors about his wife's medical bills.

The motion, filed in Harrisburg's federal court on Wednesday, Sept. 13, asks presiding U.S. Middle District Senior Judge Sylvia Rambo to preclude testimony about Shannon Baker's unpaid medical bills.

Shortly after 1 p.m. Wednesday, Rambo sent jurors home for the day, telling them "issues have come up that the court and counsel need to resolve."

She said court will resume at 9:30 a.m. Thursday, Sept. 14, and told jurors she predicts trial will still wrap up this week.

Rambo had not ruled on the motion as of 5:50 p.m. Wednesday.

Late Wednesday afternoon, defense attorney Jack McMahon filed a proposed jury instruction that Rambo tell jurors they can consider Baker's defense that he was "entrapped" to commit a crime by investigators.

The motion: Assistant U.S. Attorney William Behe also wants to preclude Baker from testifying that he intended to pay back the cash he allegedly stole.

"(The) defendant's claim that he did not intend to permanently deprive the government of the money he took or that he intended to repay the money do not constitute defenses to the charge of theft," his motion states. "Testimony regarding medical and other expenses may go to motive, but they do not amount to a defense, and while relevant at sentencing they are irrelevant to the jury's determination of guilt or innocence and should be excluded."

Behe's motion argues federal judges may exclude relevant evidence "if its probative value is substantially outweighed by a danger of unfair prejudice, confusing the issues, or misleading the jury."

The motion states jurors could be misled into thinking the prosecution has the burden to prove Baker didn't intend to repay the cash, "and that an intent to somehow, someday, and someway return stolen property is a defense when it clearly is not."

Feds rest case: Behe and Assistant U.S. Attorney Michael Consiglio rested their case Wednesday morning against Baker, accused of twice stealing cash from people he thought were drug dealers.

McMahon, Baker's defense attorney, has said Baker will take the stand in his own defense.

Wednesday-morning witnesses included Detective Sgt. Craig Fenstermacher.

He's been with the York County Drug Task Force for seven years — the last five years as supervisor of the unit. Before that, Fenstermacher was a state police trooper who was part of the task force since 1994 until retiring from state police and joining full time.

Fenstermacher testified task-force records show Baker served as a part-time member of the York County Drug Task Force between 2005 and 2010 and perhaps for a period before 2005.

Baker worked on the task force once a week, or perhaps once every two weeks, during those years, according to Fenstermacher.

Tyson Baker

Fenstermacher told jurors he had no idea Baker was the target of an undercover FBI sting in 2015 until he read it in the media after Baker's arrest.

On cross-examination, McMahon prompted Fenstermacher to confirm that the York County Drug Task Force is not a federal agency.

McMahon told jurors during his opening statement that what Baker did was wrong and disgraceful, but that his actions didn't rise to the level of the federal crimes charged.

Federal ties: But Fenstermacher confirmed on redirect that York County drug cases regularly move to federal court and that drugs don't have to be shipped over state lines for that to happen.

Members of the FBI, Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives routinely work with the York County Drug Task Force, according to Fenstermacher, who said he himself is cross-designated as a federal investigator.

Neither prosecutors nor the defense attorney asked Fenstermacher about what kind of job Baker did on the task force or what he personally thought of Baker or why Baker left the task force.

Jurors heard from various prosecution witnesses this week that the FBI and the Pennsylvania Attorney General's Office began investigating Baker based on their "concerns" about him, but jurors have heard no details about what those concerns were, or how they arose.

The background: Baker, 43, of Fairview Township, is accused of taking $1,000 of a township drug dealer's cash after the man was arrested by fellow Fairview Township Police Officer Michael Bennage on Nov. 20, 2015.

The raid was unrelated to the FBI's investigation of Baker, although Bennage was by that time working with the feds to investigate his co-worker's actions.

Bennage testified earlier this week that Baker told him in spring 2015 they needed to start ripping off drug dealers to help the two cops pay their bills.

Bennage also told jurors he helped carry out a Dec. 16, 2015, sting of Baker that led to Baker's arrest two days later. He testified he had hoped Baker would not take the sting money and would be cleared.

Tyson Baker

During the sting, the FBI had Bennage pull over a Lincoln Navigator with New York plates, then call Baker for backup.

The Navigator was really an undercover FBI vehicle and the driver an undercover FBI agent with a created drug-trafficking "warrant" from the FBI that the officers would find when they ran the agent's assumed name through a national warrant database, according to testimony.

Ordered not to search: FBI Special Agent Geoff Ford testified Tuesday that both officers were repeatedly told by the FBI not to search the vehicle — merely to have it towed to a secure impound area, testimony revealed.

It was Baker, alone, who oversaw having the Navigator towed to a secure township police building. And by that time, he suspected it was the vehicle of a drug trafficker, according to testimony.

One of two surveillance camera systems hidden inside the SUV showed Baker searching through the trunk of the Navigator, including through a brown paper bag that had been zipped into a duffel bag by the FBI.

Inside the paper bag was $15,000 in marked bills and several hundred inert, or fake, narcotics pills, according to testimony.

Baker took $3,000 of the cash and later gave $1,000 of it to Bennage, who turned over his "cut" to the FBI, according to testimony.

Baker also found one of the camera surveillance systems and, brow furrowed, ripped it out of the Navigator and took it.

The cash had been marked with powder and ink that fluoresces under ultraviolet light, and jurors have seen a number of crime scene photos of that UV-reflecting powder on the cash, found on Baker's person, in his truck and in his home.

UV light: The powder also transferred to Baker's sleeves and other items he touched after allegedly stealing the cash, according to testimony.

Under questioning by the FBI on Dec. 18, 2015, Baker repeatedly denied taking any money ever, from any investigation. Jurors saw the taped confession Tuesday.

But after being told he was on camera doing so, he confessed in fits and starts. He said he had a number of outstanding bills, including for his wife's cancer treatments.

Baker remains free on bail, charged with destruction or removal of property to prevent seizure; destruction, alteration or falsification of records in federal investigations; and taking federal money.

He spent 17 years as a Fairview Township Police officer but was fired after being charged.

— Reach Liz Evans Scolforo at levans@yorkdispatch.com or on Twitter at @LizScolforoYD.