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United States v. Brissette

United States District Court, D. Massachusetts

February 28, 2018

UNITED STATES OF AMERICA
v.
KENNETH BRISSETTE and TIMOTHY SULLIVAN, Defendants.

          ORDER ON DEFENDANTS' RENEWED MOTION TO DISMISS (DOC. NO. 159) AND OTHER PENDING MOTIONS

          Leo T. Sorokin United States District Judge

         The government has charged Kenneth Brissette and Timothy Sullivan in a Third Superseding Indictment (“the TSI”) with conspiracy and extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. Nine months ago, the Court denied motions filed by the defendants seeking dismissal of the charges against them. Doc. No. 106.[1] Thereafter, United States v. Burhoe, 871 F.3d 1 (1st Cir. 2017), construed certain elements of Hobbs Act extortion that are relevant to this case. The government responded to Burhoe by seeking a Second Superseding Indictment (“the SSI”), Doc. No. 143, then the TSI, Doc. No. 177.

         The defendants have renewed their motions to dismiss in light of Burhoe's discussion of the elements of extortion. See generally Doc. No. 159. They also seek access to the legal instructions provided to the grand jury, Doc. Nos. 119, 161; exclusion of evidence related to Brissette's alleged involvement in a union dispute with another company, Doc. No. 125; and severance of the charges against Sullivan, Doc. No. 117.

         For the reasons that follow, the defendants' motions are DENIED.

         I. BACKGROUND[2]

         The Court laid out the facts alleged by the government in its ruling on the defendants' previous motions to dismiss. Doc. No. 106 at 2-5. The TSI includes the same charges and contains substantially the same factual allegations as the previous iterations of the indictment did, with one change relevant for present purposes: the government now defines the property the defendants allegedly extorted from Crash Line as “money to be paid as wages and employee benefits and as wages and employee benefits pursuant to a contract with IATSE Local 11.” Doc. No. 177 ¶¶ 20, 22; compare Doc. No. 17 ¶¶ 20, [3] 21 (alleging in FSI that property extorted was “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”).

         Until the SSI, the government's theory of the case was that the defendants, acting as agents of Local 11, had impliedly threatened Crash Line's permits and explicitly threatened a picket in order to compel an unwilling employer to hire union workers to perform actual (albeit unwanted) work, and had “obtained” the resulting wages on behalf of the union. Doc. No. 83-1 at 2-3; Doc. No. 86 at 12-13; Doc. No. 115 at 7. It seems all parties here believe that Burhoe substantially undermined that theory. See 871 F.3d at 20 (reversing extortion convictions based on jury instructions which “impermissibly relieved the government from having to prove that the work [sought by union member defendants] was ‘fictitious'” and erroneously “could have allowed the jury to find a violation merely because the union sought to turn around nonunion jobs to maintain the prevailing wage through . . . a threatened picket” where “the employer did not want to use the union workers to perform the work”).[4]

         After Burhoe, the government obtained the SSI, signaling a change in the government's theory of the case. In particular, the government abandoned its view that the defendants acted as agents of Local 11, changed its description of the “property” extorted, and adopted a theory that the defendants-acting solely as agents of the City-impliedly threatened to withhold permits in order to “obtain” the relevant wages and benefits by directing Crash Line to pay them to members of Local 11. Doc. No. 164 at 5-6, 12-13; Doc. No. 179 at 8, 45-47; accord Doc. No. 142 at 14.

         The defendants moved to dismiss the SSI, incorporating their previous memoranda regarding dismissal, and supplemented their request for disclosure of the Grand Jury instructions. Doc. Nos. 159, 161.[5] The Court heard oral argument on January 31, 2018. That morning, the government obtained the TSI, which it said corrected minor drafting errors and eliminated confusion in the language of the charging paragraphs. The parties agree that the issues raised by the pending motions apply with equal force to the TSI.

         II. MOTION TO DISMISS

         A. Legal Standard for Dismissal

         The standards controlling a motion to dismiss a lawfully returned criminal indictment are set forth in the Court's decision denying the defendants' original dismissal requests, Doc. No. 106 at 6-7, and the “heavy burden” placed on a defendant seeking dismissal has not eased in the intervening time, United States v. Perry, 37 F.Supp.3d 546, 550 (D. Mass. 2014). In fact, the First Circuit reiterated the same principles just last month, explaining that “[a]n indictment need not say much to satisfy” the Constitution's requirement that a defendant “be informed of the nature and cause of the accusation.” United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018). The Stepanets decision further emphasized that if a defendant's theory supporting dismissal depends “on disputed facts that [he] want[s] found in [his] favor, ” such as “contested facts surrounding the commission of the alleged offense, ” the “situation . . . calls for a trial” because “no court may consider [such facts] before trial.” Id. at 375 (quotation marks omitted).

         As the defendants acknowledge, the criminal rules do not provide a mechanism akin to summary judgment. Doc. No. 160 at 18. The limited circumstances in which courts in other jurisdictions have construed Rule 12(b) to permit consideration of information beyond the challenged indictment when assessing a pretrial dismissal request do not encompass the circumstances presented here. See United States v. Del Valle-Fuentes, 143 F.Supp.3d 24, 26-27 (D.P.R. 2015) (collecting cases permitting resolution of challenge to legal sufficiency of government's evidence via Rule 12 motion “when the facts are undisputed, the government does not object to the procedure, and the only question is a legal one”). In this case, the government has explicitly requested that the Court limit its review to the four corners of the charging document, and has declined to stipulate to a set of facts sufficient to reduce the question presented to a purely legal one. Doc. No. 179 at 35. Under these circumstances, the Court may not engage in a broad assessment of the legal sufficiency of the government's evidence.

         B. Discussion

         The defendants argue that Burhoe renders the government unable to prove two elements of Hobbs Act extortion: “wrongful” use of economic fear, and the “obtaining” of property by the defendants. See generally Doc. No. 160. According to the defendants, the indictment does not describe a crime because it fails to allege the wages at issue were paid for “fictitious” services, and it further fails to allege that the wages were paid to the defendants themselves. Id. at 6-18.

         Regarding each challenged element, the TSI does all that the law requires: it tracks the language of the Hobbs Act. See Doc. No. 177 at ¶ 22 (alleging “the defendants . . . attempted to obtain and did obtain” the identified property from Crash Line, and that they did so “by the wrongful use of fear of economic harm” (emphasis added)). The defendants' attacks as to both elements turn on facts beyond the TSI which the Court cannot consider at this time. Stepanets, 879 F.3d at 375; see Doc. No. 106 at 8-9 (rejecting defendants' previous challenge to allegations regarding “obtain” for similar reasons); compare, e.g., Doc. No. 160 at 8 (urging that “the sum and substance” of the economic harm threatened was a picket by union members), with Doc. No. 164 at 6 (characterizing the economic harm threatened as “withholding or delaying permits”); compare also Doc. No. 160 at 15-18 (arguing that neither defendant “receive[d], ” “acquire[d], ” or “obtain[ed] - in the plainest meaning of that word imaginable” “any of the property at issue”), with Doc. No. 164 at 12-13 (implying that the defendants directed the property “to an identifiable person associated with” them, and urging that “whether the defendants received [a personal] benefit is a question of fact for the jury”).

         Nonetheless, the defendants urge that this is a once-in-a-blue-moon criminal case in which dismissal is warranted. They describe the limits of the evidence disclosed to them in discovery and point to factual concessions the government has made that bear on its ability to prove the defendants “obtained” the property at issue. See, e.g., Doc. No. 179 at 36-37 (stating there will be no evidence that the defendants themselves received any portion of the wages at issue or any other personal financial benefit from Crash Line or Local 11, nor will there be evidence that Local 11 promised any specific future action in exchange for success in securing the relevant work). The Court declines to reach the legal questions argued by the defendants on the motion to dismiss-notwithstanding their persuasive argument that such questions should be answered now-given both the government's objection and its assertion that not all of the possibly relevant facts are presently before the Court. Cf. United States v. Wolff, 840 F.Supp. 322, 322-25 (M.D. Pa. 1993) (dismissing under Rule 12(b), over ...


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