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United States v. Perry

United States District Court, D. Massachusetts

August 1, 2014

UNITED STATES
v.
JOHN PERRY, JOSEPH BURHOE, JAMES DEAMICIS and THOMAS FLAHERTY, Defendants

Page 547

For John Perry, Defendant: Thomas J Butters, LEAD ATTORNEY, Matthew D. Thompson, Butters Brazilian LLP, Boston, MA.

For Joseph Burhoe, also known as Jo Jo, Defendant: Miriam Conrad, LEAD ATTORNEY, Federal Public Defender Office, Boston, MA.

For James Deamicis, also known as Jimmy the Bull, Defendant: Thomas J. Iovieno, LEAD ATTORNEY, South Boston, MA.

For Thomas Flaherty, Defendant: Edward J. Lee, LEAD ATTORNEY, Law Office of Edward J. Lee, Boston, MA.

For USA, Plaintiff: Laura Kaplan, LEAD ATTORNEY, Susan G. Winkler, Timothy E. Moran, United States Attorney's Office, Boston, MA.

Page 548

MEMORANDUM AND ORDER

Denise J. Casper, U.S. District Judge.

I. Introduction

The United States has charged John Perry, Joseph Burhoe, James Deamicis and Thomas Flaherty (" Defendants" ) in an indictment alleging a racketeering conspiracy, in violation of 18 U.S.C. § 1961 et seq. ; extortion, in violation of 18 U.S.C. § 1951; mail fraud, in violation of 18 U.S.C. § 1341; theft of property, in violation of 18 U.S.C. § 641; and prohibitions relating to certain persons holding office, in violation of 18 U.S.C. § 504. D. 1. Defendants have moved to dismiss Racketeering Acts 12-16 and Counts 14-19 of the indictment, or in the alternative, for a bill of particulars relating to these charges. D. 174. Burhoe (D. 175), Flaherty (D. 180) and Deamicis (D. 182) have moved for severance of various counts of the indictment. Defendants have also moved for early disclosure of Jencks material. D. 176. For the reasons stated below, the Court DENIES the motion to dismiss, ALLOWS IN PART and DENIES IN PART the motions to sever and DENIES the motion for early disclosure of Jencks material.

II. Factual Background

The Court presumes the allegations of an indictment to be true for the purposes of assessing its sufficiency. United States v. Dunbar, 367 F.Supp.2d 59, 60 (D. Mass. 2005); United States v. Bohai Trading Co., Inc., 45 F.3d 577, 578 n.1 (1st Cir. 1995). Applying this rubric, the Court recites the relevant facts as follows:

A. Background Relating to the Racketeering Conspiracy

The International Brotherhood of Teamsters (" IBT" ) Local 82, Furniture and Piano Moving, Furniture Store Drivers

Page 549

Helpers, Warehousemen and Packers (" Local 82" ) was a labor organization that represented employees in the moving and trade show industries. D. 1 ¶ 1. Local 82 was merged into Teamsters Local 25 at the end of 2011. Id. ¶ 2. Local 82 was a " labor organization" within the meaning of 29 U.S.C. § 402(i). Id. ¶ 3. It negotiated and administered collective bargaining agreements with employers. Id. ¶ 5. Local 82 also established savings and investment funds for employees (the " Benefit Funds" ), which provided, inter alia, retirement benefits and medical coverage. Id.

Because Local 82 was a labor organization as defined by the Labor Management Reporting and Disclosure Act (" LMRDA" ), 29 U.S.C. § 402(i), its members were guaranteed certain rights and privileges. Id. ¶ ¶ 3-4. These included, but were not limited to, " equal rights and privileges within such organization to nominate candidates, to vote in elections or referendums of the labor organization, to attend membership meetings, and to participate in the deliberations and voting," 29 U.S.C. § 411(a)(1), " the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meeting," 29 U.S.C. § 411(a)(2), and " the right of any member of a labor organization to appear as a witness in any judicial, administrative, or legislative proceeding," 29 U.S.C. § 411(a)(4).

Each of the Defendants (identified in the indictment as the " Perry Crew" ) were members of Local 82; Perry was Secretary-Treasurer of Local 82 and at times was a trustee of the Benefit Funds and Director of Trade Shows and Convention Centers for the IBT, while Burhoe, Deamicis and Flaherty were all representatives and/or de facto representatives of Local 82. Id. ¶ ¶ 6-8. The indictment alleges that Defendants used their roles in Local 82 to exert control over the organization through intimidation and fear of physical and economic harm on other members of Local 82 and on various business entities in and around Boston in order to generate money for themselves, family members and friends. Id. ¶ 8. The indictment alleges numerous acts of extortion and violence, including the assault of John Doe A, a critic of Perry; the assault of John Doe B, who filed a grievance of Local 82; the intimidation of John Doe C for having appeared as a witness in a judicial proceeding and the stationing of Defendants and a police officer at the entrance of the union hall to prevent certain members of Local 82 from voting on a proposed contract ratification with a major employer. Id.

B. Racketeering Acts 12-16 and Counts 14-19

The Court dispenses with a discussion of many of the individual racketeering acts and counts alleged in the indictment, as many of the racketeering acts and counts alleged do not bear on the disposition of the instant motions.

Racketeering Act 12 and Counts 14 and 15 allege a conspiracy to manipulate the vote over a contract ratification affecting members of Local 82. D. 1 at 15, 35-37. Specifically, Defendants are alleged to have arbitrarily denied union members the right to attend meetings and vote on the ratification of a 2009 trade show collective bargaining agreement through the wrongful use of actual and threatened force and fear of economic and physical harm so that Local 82 would approve a contract that would benefit Defendants, their friends and family members. Id. at 15-16.

Page 550

Racketeering Act 13 and Count 16 allege that Burhoe interfered with Local 82 members and John Doe A's right to the election of union candidates of their choice through the wrongful use of actual and threatened force. Id. at 16-17, 38.

Racketeering Act 14 and Count 17 allege that Perry and Burhoe interfered with John Doe A's right to institute a judicial action in court and to appear as a witness free of any limitation by Local 82 or its agents in a judicial proceeding involving assault and battery charges against Burhoe. Id. at 18-19, 39-40.

Racketeering Act 15 and Count 18 alleges that Perry interfered with John Doe B's right to file a grievance through the wrongful use of actual and threatened force. Id. at 19, 41.

Racketeering Act 16 and Count 19 alleges that Perry and Burhoe interfered with John Doe C's right to express views and opinions on Local 82 affairs and appear as a witness in a judicial proceedings involving assault and battery charges against Perry. Id. at 20-21, 42.

Relative to each of the foregoing allegations, the government alleges that Defendants obtained and attempted to obtain property of the members of Local 82 including wages and employee benefits which Local 82 members would have obtained but for the Defendants' wrongful conduct. Id. at 15-21, 35-42.

C. Mail Fraud and Theft of Government Property (Counts 20-28 and 30)

The indictment also charges a second grouping of counts charging three defendants, Burhoe, Deamicis and Flaherty, individually, with various counts of mail fraud for making false statements in connection with unemployment insurance claims. As alleged, these defendants, while working as members of Local 82, falsely reported their earnings and fraudulently obtained overpayments of unemployment insurance. D. 1 at 44-53.

In Count 30, Deamicis is charged with theft of government property in the nature of " extended benefits" and Federal Additional Compensation of a value in excess of $1000. D. 1 at 54.

D. Prohibition Against Certain Persons Holding Office (Count 29)

Count 29 sounds against both Burhoe and Perry. This count alleges that Burhoe, having been previously convicted of a crime, was disqualified from serving as a consultant, advisor or as a representative in any labor organization, and that he did so willfully serve in such capacity for Local 82 and that Perry, as Secretary-Treasurer and principal officer of Local 82, did ...


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