United States District Court, D. Massachusetts
ORDER ON DEFENDANTS' RENEWED MOTION TO DISMISS
(DOC. NO. 159) AND OTHER PENDING MOTIONS
Sorokin United States District Judge
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. 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.
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.
reasons that follow, the defendants' motions are DENIED.
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,  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”).
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”).
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.
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. 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.
MOTION TO DISMISS
Legal Standard for Dismissal
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
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.
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.
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”).
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