U.S. v. Devin

• Decision Date: 07 September 1990
• Docket Number: No. 89-1170,89-1170
• Citation: 918 F.2d 280
• Parties: 31 Fed. R. Evid. Serv. 1329 UNITED STATES of America, Appellee, v. Francis E. DEVIN, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 280

918 F.2d 280

31 Fed. R. Evid. Serv. 1329

UNITED STATES of America, Appellee, v. Francis E. DEVIN, Defendant, Appellant.

No. 89-1170.

United States Court of Appeals First Circuit.

Heard Sept. 7, 1990.

Decided Nov. 6, 1990.

William A. Brown, Boston, Mass., for defendant, appellant.

Frank J. Marine, Attorney, U.S. Dept. of Justice, Washington, D.C., with whom Wayne A. Budd, U.S. Atty., and James B. Farmer, Asst. U.S. Atty., Boston, Mass., were on brief for the U.S.

Before BREYER, Chief Judge, VAN GRAAFEILAND, ^* Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

In May 1988, defendant-appellant Francis E. Devin, a veteran member of the Boston Police Department (BPD), was charged by a federal grand jury with violating the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1962(c), and with six counts of attempting to extort money under color of official right in violation of the Hobbs Act, 18 U.S.C. Sec. 1951. Following a 14-day jury trial in the United States District Court for the District of Massachusetts, Devin was found guilty on all counts. He now appeals. We affirm.

I. BACKGROUND

The evidence leading to appellant's indictment was gathered as part of a major investigation into alleged corruption in the BPD dating back to the 1970s. In a previous case arising out of that investigation, we affirmed the convictions of seven of Devin's colleagues on similar charges of racketeering and extortion. See United States v. Boylan, 898 F.2d 230 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990). While the circumstances of Devin's case are different, we refer the interested reader to the Boylan opinion for the tenor of the times.

A. Good Cop.

In Boston, the city's transportation department (DOT) oversees privately owned parking lots. Under DOT regulations, a license is required for each lot. The license fixes a maximum number of vehicles which may park in the lot at one time; exceeding the authorized capacity is punishable by fine or loss of license. All Boston police officers are required to report violations of DOT regulations, including lot overcrowding. ¹ They are also empowered to swear out complaints in municipal or state courts with respect to such infractions.

In a similar vein, Boston has a Licensing Board (Board) that regulates the serving of alcoholic beverages, licenses vendors, and enforces the laws governing, inter alia, liquor service, illegal conduct on licensed premises (e.g., gaming, prostitution), and occupancy limits in such establishments. Here, too, if the regulations are transgressed, the Board has the authority to impose severe sanctions, including license revocation. Boston police officers, as agents of the Board, are responsible for ensuring that licensees comply with the conditions of licensure and for reporting violations.

The BPD's regulations explicitly prohibit police officers from (1) accepting gifts from persons or businesses with whom they have official dealings; (2) soliciting or accepting any gift or gratuity (including food or drink) for themselves or others from an individual or business when doing so could reasonably be construed to involve the officers' status as employees of the BPD; (3) failing to report to their commanding officer attempts to offer such gifts or gratuities; and (4) doing special favors by participating in situations requiring police intervention that involve friends or relatives, absent an emergency. ² Similarly, the regulations bar officers from disclosing arrest and conviction records to unauthorized persons and from working private security details without proper intra-departmental permission. ³

B. Bad Cop.

Appellant became a captain in the BPD in the mid-1960s. The indictment alleged that, from 1969 to 1987, appellant participated in the affairs of an enterprise, the BPD, through a pattern of racketeering activity consisting of multiple acts involving the solicitation or receipt of illegal gratuities and bribes in violation of state law, see supra note 2. The grand jury also asserted, in a series of pendent counts, that appellant extorted money under color of official right in derogation of the Hobbs Act. Specifically, the indictment charged that Devin, over the period in question, received a near-googol of unlawful gifts and payments from Simon Gottlieb, owner and president of Stanhope Garages, Inc. (Stanhope), in return for favors such as fixing parking tickets, enforcing parking regulations in a way designed to benefit Gottlieb's businesses, providing unauthorized security escorts, and disregarding capacity limits in Stanhope's parking lots. Additionally, the indictment charged Devin with receiving several unlawful payments from Jean Tasse, an employee of a corporation which operated two nightclubs (Metro and Spit) in Boston.

At trial, the government's case rested primarily on the testimony of Gottlieb and Tasse. We summarize that testimony in conventional post-conviction fashion, depicting the record in the light most amiable to the prosecution and drawing all reasonable inferences in its favor. See United States v. Zannino, 895 F.2d 1, 4 (1st Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 1814, 108 L.Ed.2d 944 (1990); United States v. Cintolo 18 F.2d 980, 983 (1st Cir.), cert. denied, 484 U.S. 913, 108 S.Ct. 259, 98 L.Ed.2d 216 (1987).

1. Simon Gottlieb. Testifying under a grant of immunity, Gottlieb told a sordid tale of payoffs to Devin and others spanning more than two decades. This chronicle of corruption began in the 1960s, when Gottlieb, then working for his grandfather (Stanhope's founder), distributed cash and liquor to members of the BPD at Christmas. By late 1968, Gottlieb had become company president. Around that time, after an unusual number of cars parked in a Stanhope lot were ticketed because their bumpers allegedly extended onto the sidewalk, he was called to the station house and told by the captain, Devin, that the matter could be "worked out." Taking the not-so-veiled hint, Gottlieb crossed Devin's palm and the tickets disappeared. From then on, ticket-fixing became a staple of the relationship; over the next two decades, Devin regularly fixed tickets for Gottlieb at a set rate of $10 per ticket.

Gottlieb learned before long that, just as parking tickets could be made to vanish for a fee, parking citations could also be issued when doing so was to the advantage of someone ready and willing to pay. In the spring of 1970, shortly after Gottlieb opened a new lot in Castle Square and encountered difficulty attracting customers, Devin suggested that, for $40-50 per week, on-street parking near Castle Square could become quite risky, i.e., vehicles would be tagged with abandon. Payments ensued and cars were regularly ticketed for several weeks, until business at the lot began to boom. Gottlieb and Devin made the same type of stipendiary arrangements in 1978 and 1979 (when Stanhope opened new lots in Charlestown and South Boston, respectively). In a burst of entrepreneurial imagination, Devin on one occasion even offered to ticket vehicles parked in the lots of Stanhope's principal competitors.

As Stanhope's business expanded, ⁴ Gottlieb found it increasingly advantageous to have a friend in high places. We need not catalog the myriad ways in which Devin furnished prompt police assistance to further his patron's ends. A few examples will suffice. When vagrants or prostitutes became a nuisance in a Stanhope lot, or when a Stanhope employee absconded with the day's receipts, Gottlieb called Captain Devin directly; when a naked man and woman engaged in an early-morning tryst in Stanhope's lot on Essex Street, Devin sparked police intervention; after a blizzard, when private vehicles were not allowed to drive into Boston, Devin saw that Gottlieb received an exemption. On several occasions in the early 1980s, Devin assisted Gottlieb in screening employment applicants; he reviewed applications, investigated applicants' backgrounds and, in at least one instance, warned Gottlieb that the recruit had a criminal record. In 1985, when police ordered removal of a Stanhope sign because it was obstructing traffic, Gottlieb informed Devin about the incident, returned the sign to the same spot, and was bothered no more. In June 1987, when a Stanhope employee received his third traffic ticket of the month, imperilling his driver's license, Gottlieb called Devin for help. There was also abundant evidence that, although Devin frequently witnessed illegal overcrowding in Stanhope's lots, he never issued a notice of violation or sought a complaint; to the exact contrary, he several times warned Gottlieb that lots were about to be inspected for overcrowding.

Throughout, Gottlieb made payments to, and bestowed gifts upon, his protector. By 1980, for example, Gottlieb's yearly "Christmas present" to Devin was no less than four cases of premium liquor. Moreover, Gottlieb by then was no longer paying just for specific services as rendered; he was taking Devin to lunch and making regular cash payments of $50 per week (literally under the table, in many instances). These weekly remunerations continued until Gottlieb was subpoenaed to appear before the federal grand jury in August 1987.

The litany of appellant's fringe benefits was elaborate. At various times, all four of his children were employed by Stanhope. After 1980, Gottlieb regularly hired Devin to work security details. When on these details, Devin would ordinarily accompany Gottlieb from the parking lots to the bank. Sometimes, Devin did so when he was already assigned to work, and recompensed for, duly-authorized details unrelated to Stanhope. Appellant's bodyguard service came about by private arrangement between Gottlieb and Devin, unbeknownst to the DDO or Police Commissioner. At times, Devin arranged for retired police officers to help with security at Stanhope's lots in the Fenway Park area,...