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States v. Brissette

United States District Court, D. Massachusetts

March 19, 2018




         The government has charged Kenneth Brissette and Timothy Sullivan with conspiracy and extortion in violation of the Hobbs Act, 18 U.S.C. § 1951. The Court twice denied the defendants' requests to dismiss the charges against them before trial. Doc. Nos. 106, 192.[1] In the more recent of those decisions, the Court acknowledged the parties' divergent views regarding what it means to “obtain” property for purposes of the Hobbs Act and advised the parties of its anticipated resolution of that dispute by stating its intended jury instruction on that element. Doc. No. 192 at 7.

         The government now seeks reconsideration of the proposed instruction, arguing it is “based on an incorrect reading of the law” and “will preclude the government from proving its case beyond a reasonable doubt.” Doc. No. 194 at 1. The defendants have opposed the government's motion, Doc. No. 195, and the Court heard oral argument on March 14, 2018 at the government's request, Doc. No. 196. As explained below, the motion to reconsider is DENIED.

         I. BACKGROUND[2]

         To understand the context in which the present reconsideration request arises, it is necessary to review the manner in which the government's prosecution of the defendants has shifted since its inception nearly two years ago.

         When it first indicted the defendants, the government alleged that Sullivan and Brissette implicitly threatened permits Crash Line needed in advance of the September 2014 Boston Calling music festival and explicitly threatened a union picket of the event in order to exploit Crash Line's fear of economic harm and compel it to hire members of Local 11. Doc. No. 17 at ¶¶ 16-21. The government's theory was that the defendants had acted as agents of the union, that the union members ultimately hired by Crash Line performed actual work (although their services were unwanted), and that the defendants had “obtained” the resulting wages and benefits on behalf of the union. Doc. No. 83-1 at 2-3; Doc. No. 86 at 12-13; Doc. No. 115 at 7.

         The defendants moved to dismiss the First Superseding Indictment (“FSI”), advancing various challenges to the charges against them, including an argument that the government had not sufficiently alleged that the defendants had “obtained” the property allegedly extorted. Doc. Nos. 83, 84. The government opposed, arguing the FSI stated a crime. Doc. No. 86. In particular, the government urged the Court not to consider various proffers made by the defendants regarding facts beyond the four corners of the FSI, argued evidentiary sufficiency is not appropriately considered on a motion to dismiss, and objected to the Court reaching legal issues that the government believed were appropriately resolved when crafting jury instructions. Id.; Doc. No. 115 at 30, 44, 72-74. The Court did as the government requested and denied the defendants' motion to dismiss based solely on the allegations contained within the FSI. Doc. No. 106; see United States v. Stepanets, 879 F.3d 367, 372 (1st Cir. 2018).

         In the course of the briefing and hearing on the first motion to dismiss, the government clearly asserted its primary legal theory: that a defendant could obtain property within the meaning of the Hobbs Act merely by directing the transfer of the property to an identified third party. In addition, the government stated, under questioning from the Court, that if the law also required the government to prove a defendant received a benefit from such a transfer, the government had evidence that Brissette and Sullivan benefitted from Crash Line's payment of wages to Local 11 members and noted at least one form of benefit it might prove. See Doc. No. 115 at 11-12 (representing “that the Government, at trial . . . may very well be able to prove that the defendants did [indirectly] benefit . . . because they perceived that they were advancing Mayor Walsh's agenda, and trying . . . to advance their own agenda and keep their job[s] and keep their reputation[s], and they were doing what they thought was going to help their job[s]”).

         After this Court's Order denying the defendants' motion to dismiss the FSI, the First Circuit decided United States v. Burhoe, 871 F.3d 1 (1st Cir. 2017), and construed various elements of Hobbs Act extortion relevant to this case. In particular, the First Circuit considered what constitutes “property, ” as well as what it means to “obtain” property, for Hobbs Act purposes. Id. at 9-10, 26-28. The Circuit issued its decision on September 8, 2017. Trial in this matter was then scheduled to commence on January 8, 2018. Doc. No. 110. The defendants reacted to Burhoe by renewing their previous motions to dismiss, arguing the First Circuit had clarified the law in a manner which strengthened their original challenges to the FSI. Doc. Nos. 121, 122, 123, 124. The government sought, and the Court granted (in part), two extensions in the time for it to respond to the defendants' motions. Doc. Nos. 127, 128, 130, 133, 135.

         Apparently also recognizing that Burhoe had undermined the initial theory supporting the charges against Brissette and Sullivan, the government ultimately responded by obtaining a Second Superseding Indictment (“SSI”).[3] Doc. No. 143. With the SSI, the government abandoned its original view that the defendants had acted as union agents; adopted a theory that the defendants-acting solely as City agents, and not as agents of the union-had impliedly threatened to withhold Crash Line's permits and/or deny a desired extension of a licensing agreement; and alleged that the defendants had “obtained” the relevant wages and benefits simply by directing their payment to members of Local 11. Doc. No. 143 at ¶¶ 16-21; Doc. No. 164 at 5-6, 12-13; Doc. No. 179 at 8, 45-47; accord Doc. No. 142 at 14.[4] At all times, the government has expressly represented to the Court that neither the union nor any of its members are unindicted co-conspirators here. E.g., Doc. No. 115 at 6; Doc. No. 179 at 93-94.

         The defendants sought a brief continuance in the trial date in light of the new legal theory advanced by the government; the government opposed the defendants' request. Doc. No. 148 at 1-2. The Court rescheduled the trial for March 26, 2018-the earliest date consistent with all lawyers' schedules. Id. at 2; Doc. No. 156.

         The defendants revised their pending motions to dismiss to direct their challenges at the SSI and repeated their previous argument that they had not “obtained” any property within the meaning of the Hobbs Act. Doc. Nos. 159, 160. Again, the defendants' argument relied upon facts not contained within the relevant charging document. Again, the government opposed the motion to dismiss, citing its disagreement with the defendants' view of the law and arguing the Court should confine its analysis of the motion to the four corners of the SSI. Doc. No. 164. Again, the government articulated its primary legal theory-that a defendant “obtains” property if he directs its transfer to an identified third party. Again, under questioning from the Court at the hearing on the defendants' motion, the government implied it had evidence suggesting the defendants benefitted here (should such evidence be required), this time describing a statement by a union official “that the union was thrilled that they had gotten this contract and [that he] reported to the union that they had fought very hard for the Walsh administration, and that they should continue to fight hard because . . . they get things in return.” Doc. No. 179 at 37; cf. Doc. No. 164 at 13 (arguing that if the Court determined that the law required the government to show “some personal benefit, whether the defendants received such benefit is a question of fact for the jury”). And again, the Court limited its resolution of the motion to dismiss to an assessment of the explicit allegations in the indictment, both because the government urged it to do so[5] and because the dismissal of a properly returned indictment before trial is warranted only when the indictment itself does not allege a crime. Doc. No. 192 at 4-5 (citing Stepanets and Federal Rule of Criminal Procedure 12). The Court was-and remains today-satisfied that each version of the indictment has stated a crime, in that each version alleges “the defendants and their co-conspirators attempted to obtain and did obtain property” as required by the Hobbs Act. Doc. No. 177 ¶ 22. Ordinarily, nothing more is required to survive a Rule 12 motion challenging this element of the crime.

         In both of its decisions denying the defendants' motions to dismiss, the Court noted that “courts in other jurisdictions have construed” the Criminal Rules “to permit consideration of information beyond the challenged indictment when assessing a pretrial dismissal request” in certain limited circumstances. Doc. No. 106 at 7-8; Doc. No. 192 at 4. In this case, it has been wholly within the government's control to invoke those circumstances and permit a pretrial (and, if unfavorable to the government, appealable) resolution of the legal question addressed by the Court's proposed instruction. However, in response to both motions to dismiss, the government consciously elected not to pursue that avenue. It declined to proffer or stipulate to a complete set of facts bearing on the “obtain” question, and it refused to agree that the Court could consider and resolve the legal question in the dismissal context.

         Nevertheless, the Court perceived from the written and oral arguments on both motions to dismiss a substantial divide between the parties regarding the meaning of “obtain” in the Hobbs Act context, an issue on which the Court would have to craft a jury instruction to provide at the conclusion of this trial. The parties' proposed jury instructions, filed soon after the more recent motion to dismiss was argued, confirmed the divide. Compare Doc. No. 183 at 26, with Doc. No. 185 at 13. With the legal question presented, with the benefit of substantial briefing and argument by all parties, and after reviewing the government's description of its evidence in its trial brief, [6] Doc. No. 184 at 1-6, the Court crafted a jury instruction explaining what it means to “obtain” property for Hobbs Act purposes, subject to change either if the evidence differed from that outlined by the government in its trial brief or due to further legal argument. Doc. No. 192 at 7; see Fed. R. Crim. P. 30 (requiring court to inform parties “before closing arguments how it intends to rule” on proposed instructions, and permitting parties to object to instructions anytime “before the jury retires to deliberate”).

         The government describes the Court's issuance of the jury instruction as having “come[] on the eve of trial.” Draft Tr. Mot. Hr'g at 28, United States v. Brissette, No. 16-cr-10137 (D. Mass. Mar. 14, 2018) [hereinafter “Draft Tr.”]. The Court issued the instruction on February 28, 2018, nearly a month before trial is scheduled to begin.[7] The facts recited by the Court regarding the timing of the crafting of the jury instruction speak for themselves.

The Court's proposed instruction is as follows:
To prove this element, the government must prove beyond a reasonable doubt that Crash Line was deprived of its property, and that the defendants acquired that property. A defendant “obtains” property for these purposes when he either: 1) takes physical possession of some or all of the property; 2) personally acquires the power to exercise, transfer, or sell the property; or 3) directs the victim to transfer the property to an identified third party and personally benefits from the transfer of the property. It is not enough for the government to prove that the defendants controlled the property by directing its transfer to a third party, nor is merely depriving another of property sufficient to show that the defendants “obtained” that property.
Under the third theory of “obtaining, ” you must determine, based on all of the evidence before you, whether the defendants personally benefitted from the transfer of the property. Instances in which a defendant personally benefits from the transfer of property could include: when the defendant or an organization of which he is a member receives a thing of value other than the property as a result of the transfer; when the defendant directs the property to a family member or to an organization of which the defendant is a member; and/or when the defendant directs the property to a person or entity to whom the defendant owes a debt, intending that the transfer of property will satisfy that debt. A defendant does not personally benefit from the transfer of property when he merely hopes to receive some future benefit, or when he receives a speculative, unidentifiable, or purely psychological benefit from it.

Doc. No. 192 at 7. The Court specified that this instruction is subject to change depending on the actual evidence offered at trial, or on further legal argument by the parties. Id. at 8 n.6.

         Now, the government moves on an emergency basis for reconsideration of the Court's proposed instruction. The defendants opposed the motion within days, Doc. No. 195, and the Court promptly scheduled a hearing, Doc. No. 196. The Court now denies the Motion and here explains its reasoning.


         A. Legal Standard for Reconsideration

         Although the Federal Rules of Criminal Procedure “do not expressly contemplate motions for reconsideration, ” courts in this District and elsewhere have entertained such motions, “generally borrow[ing] standards either from civil cases or from the local rules.” United States v. Iacaboni, 667 F.Supp.2d 215, 216 (D. Mass. 2009). Such standards permit reconsideration only “if the moving party presents newly discovered evidence, if there has been an intervening change in the law, or if the movant can demonstrate that the original decision was based on a manifest error of law or was clearly unjust.” United States v. Allen, 573 F.3d 42, 53 (1st Cir. 2009). The First Circuit has encapsulated this standard as follows: “When faced with a motion for reconsideration, district courts should apply an interests-of-justice test.” United States v. Siciliano, 578 F.3d 61, 72 (1st Cir. 2009).

         B. The Government's Challenges to the Court's Proposed Instruction

         The government's motion largely reiterates the arguments it has made previously in opposition to the defendants' motions to dismiss. It does not: (a) propose an alternative instruction; (b) suggest any specific amendments or changes to the Court's proposed instruction; or (c) describe any evidence not set forth in the trial brief that might warrant a change or adjustment to the instruction.

         The motion begins with a fundamental misunderstanding of the plain language of the Court's proposed instruction. The government cites as error “the Court's requirement that a defendant receive a personal benefit to commit Hobbs Act extortion.” Doc. No. 194 at 2. That characterization is simply wrong. The proposed instruction contains no such blanket requirement. The Court has identified three manners in which a defendant might “obtain” property within the meaning of the Hobbs Act. Doc. No. 192 at 7. The first two options “in no way depend[] upon having a direct benefit conferred on the person who obtains the property.” United States v. Green, 350 U.S. 415, 420 (1956). If a defendant physically receives property, or if a defendant acquires the ownership rights to property such that he has the power to transfer or sell it to a third party (even if he never physically receives the property itself), then he has obtained the property regardless of whether he benefits from it personally.[8]

         So, if a victim, in response to extortionate conduct by a defendant, delivers cash to the defendant, that defendant cannot escape Hobbs Act liability under the law-or under the Court's instruction-by demonstrating that he ultimately delivered the cash to another person and derived no personal benefit from the payment. He “obtained” the property when he took physical possession of it.[9] It is immaterial whether he retained it or ultimately benefited from it. Several of the cases cited by the government as noting that “Hobbs Act extortion does not depend on the extortionist himself or herself actually receiving the extorted property” presented precisely those facts and, thus, fall squarely within the scope of the Court's proposed definition of “obtain.” See, e.g., United States v. Renzi, 769 F.3d 731, 743 (9th Cir. 2014) (reciting evidence that both co-defendants received portions of the extorted payments); United States v. Haimowitz, 725 F.2d 1561, 1567, 1577 (11th Cir. 1984) (discussing evidence that one defendant received the extorted property and delivered all or some of it to a co-defendant); Cerilli, 603 F.2d at 422-23 (describing evidence that the defendants demanded and received cash payments and checks made out to political committees directly from multiple victims); United States v. Hyde, 448 F.2d 815, 820, 843 (5th Cir. 1971) (stating that extorted payments were “channeled” to the defendants and that at least one defendant received extorted checks); see ...

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