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United States v. Brissette

United States Court of Appeals, First Circuit

March 28, 2019

UNITED STATES OF AMERICA, Appellant,
v.
KENNETH BRISSETTE; TIMOTHY SULLIVAN, Defendants, Appellees.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Hon. Leo T. Sorokin, U.S. District Judge

          Randall E. Kromm, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, were on brief, for appellant.

          Sara E. Silva, with whom William H. Kettlewell and Hogan Lovells U.S. LLP were on brief, for appellee Kenneth Brissette.

          Thomas R. Kiley, with whom William J. Cintolo, Meredith G. Fierro, and Cosgrove Eisenberg & Kiley were on brief, for appellee Timothy Sullivan.

          Paul F. Kelly, Donald J. Siegel, Jasper Groner, Segal Roitman LLP, Michael T. Anderson, and Murphy Anderson PLLC on brief for Members of Congress representing Greater Boston, amici curiae.

          Before Torruella, Kayatta, and Barron, Circuit Judges.

          BARRON, CIRCUIT JUDGE

         In 2015, two officials of the City of Boston, Massachusetts (the "City") allegedly threatened to withhold permits from a production company that needed them to put on a music festival, unless the company agreed to hire additional workers from a specific union to work at the event. The officials were indicted for Hobbs Act extortion and conspiracy to commit Hobbs Act extortion two years later in the United States District Court for the District of Massachusetts. The defendants sought to dismiss the indictment for failing to satisfy the "obtaining of property" element of Hobbs Act extortion. 18 U.S.C. § 1951(b)(2). The District Court granted that motion, and the government appeals from the order of dismissal. We vacate and remand.

         I.

         The Hobbs Act prohibits interference with interstate commerce through "robbery or extortion." Id. § 1951(a). The Hobbs Act defines "extortion" as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Id. § 1951(b)(2). The "induced by wrongful use of actual or threatened force, violence, or fear" prong of the offense delineates a distinct form of extortion from the "under color of official right" prong. See Evans v. United States, 504 U.S. 255, 263-64, 264 n.13 (1992).

         The indictment sets forth charges against Kenneth Brissette and Timothy Sullivan, each of whom were employees of the City at all relevant times. The indictment charges each of them with Hobbs Act extortion and conspiracy to commit Hobbs Act extortion in violation of 18 U.S.C. §§ 1951 and 2. The indictment charges Brissette and Sullivan, however, only under the "induced by wrongful use of . . . fear" prong of Hobbs Act extortion -- specifically, with the "wrongful use of fear of economic harm." See 18 U.S.C. § 1951(b)(2).

         A grand jury handed up the initial indictment on May 27, 2016. That indictment charged Brissette alone with only Hobbs Act extortion. The grand jury then handed up a superseding indictment on June 28, 2016. The superseding indictment added a charge of Hobbs Act extortion against Sullivan and also charged both men with conspiracy to commit Hobbs Act extortion.

         The operative indictment is a third superseding indictment. It alleges the following facts, which we accept as true for purposes of our review. See United States v. Ngige, 780 F.3d 497, 502 (1st Cir. 2015).

         Brissette and Sullivan were both employed by the City at the time of the alleged offenses. Brissette was the Director of the City's Office of Tourism, Sports, and Entertainment. That office, among other responsibilities, helps entities that wish to host events in Boston secure permits to use public areas as the venues. Pursuant to his official powers, Brissette had the ability to issue and hold such permits. Sullivan was the Mayor's Chief of Staff for Intergovernmental Relations and the Senior Advisor for External Relations. The Mayor at the time was Martin Walsh.

         Crash Line is a production company that had a licensing agreement with the City to put on biannual music festivals on Boston City Hall Plaza.[1] The licensing agreement required Crash Line to obtain permits from the City to stage each festival.

         Between July and September 2014, Crash Line sought certain permits and approvals from the City to put on one such festival in September 2014 as well as an extension of its licensing agreement. While Crash Line was awaiting the permits and the licensing agreement extension, Brissette and Sullivan repeatedly told Crash Line that it would have to hire members of the International Alliance of Theatrical Stage Employees Local 11 Union ("Local 11") to work at the upcoming music festival.[2] Crash Line repeatedly stated that its labor needs for that music festival were already satisfied by a pre-existing contract with a non-union company. The licensing agreement between Crash Line and the City did not obligate Crash Line to hire the workers that it needed to put on a festival from any union or otherwise place restraints on Crash Line's hiring practices.

         On September 2, 2014, Brissette and Sullivan met with Crash Line and again insisted that Crash Line hire members of Local 11 to work at the upcoming music festival. Brissette and Sullivan insisted that half of Crash Line's labor at the festival consist of union members. That same afternoon, Crash Line "entered into a contract with Local 11 to hire eight additional laborers and one foreman as a result of the demands made by Brissette and Sullivan." Shortly thereafter, the City issued Crash Line the permits that it needed to put on the festival.[3]

         The first superseding indictment alleged that Brissette and Sullivan had "attempted to and did obtain" from Crash Line "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." That indictment further alleged that Brissette and Sullivan had done so "with the consent of [Crash Line] . . ., which consent was induced by the wrongful use of fear of economic harm to [Crash Line] and others." The indictment also alleged that Brissette and Sullivan had conspired, "together with others, known and unknown to the Grand Jury," to commit the alleged extortion.

         In January 2017, Brissette and Sullivan moved to dismiss that indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3). They contended that the indictment failed to allege "that the defendants themselves obtained or sought to obtain th[e] wages" alleged to be the extorted property. The District Court denied the motions.

         In September 2017, we issued our decision in United States v. Burhoe, 871 F.3d 1 (1st Cir. 2017), which concerned the scope of Hobbs Act extortion. The defendants thereafter filed renewed motions to dismiss the first superseding indictment under Federal Rule of Criminal Procedure 12(b)(3). They argued that, in light of Burhoe, the indictment did not adequately allege the required elements of "wrongful[ness]" and "obtaining of property."

         The government opposed the defendants' motions and, on November 29, 2017, obtained a second superseding indictment. That indictment modified the description of the "property" that the defendants had allegedly "obtain[ed]" from Crash Line to "money to be paid as wages and employee benefits and as wages and employee benefits pursuant to a contract with IATSE Local 11." Then, on January 31, 2018, the government obtained a third superseding indictment -- the operative one -- that made only non-substantive changes to the charging language.

         On February 28, 2018, the District Court again refused to dismiss the indictment, because the defendants' motions to do so were based upon facts beyond the indictment. Nevertheless, in light of the parties' disagreement over the meaning of "obtaining of property" in the Hobbs Act extortion provision, the District Court offered the following proposed instruction as to that element:

To prove ["obtaining of property" under the Hobbs Act extortion provision], 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.

         As to the third theory of "obtaining," the District Court also proposed to instruct the jury that:

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.

         The District Court presented its proposed instructions as governing only the "obtaining" element. The District Court did not purport in the proposed instructions to address any of the other elements of Hobbs Act extortion.

         The government filed an emergency motion for reconsideration of the District Court's proposed jury instructions. The government challenged only the "personal benefit" requirement that the District Court's proposed instructions had imposed for the third theory of "obtaining." The government indicated that its evidence would be insufficient to meet that element if the District Court did not change the proposed instructions. The defendants opposed the government's motion. They argued that the District Court's proposed instructions correctly stated the law governing the "obtaining" element.

         The District Court declined to reconsider its legal analysis but asked the government to proffer "the admissible evidence of [personal] benefit it possesses." The government made such a proffer[4] and filed a motion under Federal Rule of Criminal Procedure 12(b)(1) "request[ing] that the Court now decide the legal issue of whether 'obtaining' has been shown." Simultaneously, the defendants filed renewed motions under ...


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