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
E. Silva, with whom William H. Kettlewell and Hogan Lovells
U.S. LLP were on brief, for appellee Kenneth Brissette.
R. Kiley, with whom William J. Cintolo, Meredith G. Fierro,
and Cosgrove Eisenberg & Kiley were on brief, for
appellee Timothy Sullivan.
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
Torruella, Kayatta, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE
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.
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).
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).
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
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).
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.
Line is a production company that had a licensing agreement
with the City to put on biannual music festivals on Boston
City Hall Plaza. The licensing agreement required Crash
Line to obtain permits from the City to stage each festival.
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. 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.
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.
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
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.
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
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.
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.
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.
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.
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.
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 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 ...