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United States v. Brissette

United States District Court, D. Massachusetts

May 2, 2017




         The 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.

         I. BACKGROUND[1]

         Both 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.

         The 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.

         Crash 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.

         In the 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.

         On June 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.

         In June 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.

         It is 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. Id.

         In 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.

         Count I 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.[2] 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 ...

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