United States District Court, D. Massachusetts
ORDER ON DEFENDANTS' JOINT MOTIONS TO DISMISS
(DOC. NOS. 82, 84)
SOROKIN UNITED STATES DISTRICT JUDGE.
government has charged defendants Kenneth Brissette and
Timothy Sullivan in a First Superseding Indictment
(“the FSI”) alleging conspiracy and extortion in
violation of the Hobbs Act, 18 U.S.C. § 1951. The
defendants have moved to dismiss the charges pursuant to
Federal Rule of Criminal Procedure 12(b)(3) and the Fifth and
Sixth Amendments to the Constitution. Doc. No. 82. In their
view, the FSI fails as a matter of law to allege the elements
necessary to establish a crime under the Hobbs Act, and the
government's attempt to extend the Hobbs Act's reach
to the conduct described in the FSI raises constitutional
concerns. See generally Doc. Nos. 83, 84. Because
the defendants' arguments can succeed only if facts
outside the FSI are considered and found in their favor, the
motion to dismiss is DENIED.
defendants were residents of, and employed by, the City of
Boston (“the City”). Doc. No. 17 ¶¶
1-2. Sullivan was the Chief of Staff for Intergovernmental
Relations and Senior Advisor for External Relations beginning
in January 2014. Id. ¶ 1. Brissette was the
Director of the Office of Tourism, Sports, and Entertainment
(“OTSE”) beginning in May 2014. Id.
¶ 2. The OTSE's mission is to promote public events
in the City, which involves assisting people and companies
wishing to stage events with matters such as securing permits
to use public areas. Id.
International Alliance of Theatrical Stage Employees, Local
11 (“Local 11”), was a labor union representing
more than 200 employees in the entertainment industry.
Id. ¶ 3. Local 11's primary purpose was to
negotiate with employers and administer collective bargaining
agreements, pursuant to which employers paid wages directly
to the employees. Id. ¶ 4.
Line Productions (“Crash Line”) produced Boston
Calling, a twice-yearly music festival in the City, and it
had to obtain certain permits for each festival. Id.
¶ 5. Local 11 began attempting to get work for its
members at Crash Line's festivals beginning in March
2013. Id. ¶ 6. Crash Line had no collective
bargaining agreement with Local 11, and told Local 11 that it
already had a contract with a non-union company to provide
the necessary workers. Id. Before the City's
administration changed in January 2014, Crash Line produced
music festivals without hiring union workers, and
“without labor disturbance or pressure from” City
officials. Id. ¶¶ 6-7.
spring of 2014, a non-union production company began scouting
locations in the City to film the reality television show Top
Chef. Id. ¶ 8. The company began filming at
various City locations in May 2014, having obtained the
necessary permits. Id. ¶ 9. At that time, the
company “also had received approval for the permits
required to conduct further filming” at other City
locations. Id. The company was operating with its
own employees, and had no collective bargaining agreement
with any local labor union. Id. ¶ 10.
5, 2014, Brissette learned from a filming location scout that
a labor union was upset because the company filming Top Chef
had not hired its members. Id. ¶ 11. On June 6,
2014, Brissette told the scout that no further filming for
Top Chef could occur until Brissette spoke with the filming
company, and he further instructed the scout not to release
previously approved permits to the filming company
“until the issue with the union local was
resolved.” Id. ¶¶ 11-12. Brissette
then told a producer for the filming company that the permits
would not be released unless the company reached “a
deal” with the union. Id. ¶ 12. Brissette
later relented, authorizing the scout to release the permits
after the filming company agreed to meet with union
representatives. Id. ¶ 13. But Brissette also
contacted representatives of two locations where Top Chef was
to be filmed and “advised them about the situation with
the union local.” Id. Both locations
subsequently revoked their consent for Top Chef to be filmed
at their places of business, and the filming company sought
new locations outside the City. Id.
2014, in connection with the Top Chef events, a City official
advised Brissette that he could not legally
“pull” the filming company's permits, and a
state official separately told Brissette that the City
“could not discriminate on the basis of a
production's union or non-union status.”
Id. ¶ 14. In August 2014, a company shooting
promotions for Top Chef appeared before a City special events
committee, which included Brissette. Id. ¶ 15.
Brissette took the company's representative aside and
privately informed him that any filming “had to be
‘in a union environment, '” and that success
in the permitting process depended on there being a union
contract in place. Id.
in this context that the defendants allegedly “made
similar demands” of Crash Line leading up to the
September 2014 Boston Calling festival. Id. ¶
16. Between July and September of 2014, while Crash Line
“was awaiting the issuance of certain permits and
approvals required for” the September festival, the
defendants “repeatedly advised” Crash Line that
it “would need to hire members of” Local 11 to
work at the festival. Id. Crash Line explained to
the defendants that it already had a contract with a
non-union company and had hired all necessary labor.
August 2014, a Local 11 representative sent Sullivan a draft
contract for the September 2014 festival and asked Sullivan
“to forward the contract to” Crash Line.
Id. ¶ 17. On September 2, 2014 - three days
before the festival was to begin - the defendants requested a
meeting with representatives of Crash Line. Id.
¶ 18. During the meeting, the defendants “again
stated” that Crash Line “would need to hire
members of” Local 11 “to work at the festival,
” specifically “insist[ing] that half of”
Crash Line's “labor force consist of union
members.” Id. After the meeting and “as
a result of the demands made by” the defendants, Crash
Line “entered into a contract with Local 11 for eight
additional laborers and one foreman.” Id.
“Shortly thereafter, ” the City “issued the
necessary permits.” Id.
of the FSI charges a Hobbs Act conspiracy as follows:
Between on or about May 1, 2014, and continuing through
September 30, 2014 . . . [the defendants], together with
others, known and unknown to the Grand Jury, conspired to
obstruct, delay and affect commerce, and the movement of
articles and commodities in commerce, by extortion, in that
the defendants and their co-conspirators agreed to obtain
property of [Crash Line], a production company for a music
festival, to wit: money to be paid as wages for imposed,
unwanted, and unnecessary and superfluous services and wages
and benefits to be paid pursuant to a labor contract with
Local 11, with the consent of [Crash Line], its officers and
other agents, which consent was induced by the wrongful use
of fear of economic harm to [Crash Line] and others, in order
to obtain wages for such imposed, unwanted, unnecessary and
superfluous services and wages and employee benefits to be
paid pursuant to a labor agreement with Local 11.
Id. ¶ 20. Count II charges Hobbs Act extortion in
nearly identical terms. See id. ¶ 21
(containing the same language, but eliminating the phrase
“conspired to” and adding the phrase ...