United States v. O'Brien

• Decision Date: 17 January 2014
• Docket Number: Criminal No. 12–40026–FDS.
• Citation: 994 F.Supp.2d 167
• Parties: UNITED STATES of America v. John J. O'BRIEN, Elizabeth V. Tavares, and William H. Burke, III, Defendants.
• Court: U.S. District Court — District of Massachusetts

994 F.Supp.2d 167

UNITED STATES of America

v.John J. O'BRIEN, Elizabeth V. Tavares, and William H. Burke, III, Defendants.

Criminal No. 12–40026–FDS.

United States District Court, D. Massachusetts.

Jan. 17, 2014.

Limitation Recognized

M.G.L.A. c. 276, § 83

Karin Michelle Bell, U.S. Attorney's Office, Worcester, MA, Robert A. Fisher, Fred M. Wyshak, Jr., United States Attorney's Office, Boston, MA, for United States of America.

Stylianus Sinnis, William W. Fick, Federal Public Defender Office, Jeffrey A. Denne, R. Bradford Bailey, Denner Pellegrino LLP, Boston, MA, John A. Amabile, Erica D. Jacobsen, Amabile & Burkly, P.C., Brockton, MA, for Defendants.

MEMORANDUM AND ORDER ON MOTION TO DISMISS THE INDICTMENT

SAYLOR, District Judge.

This is a criminal prosecution arising out of an allegedly corrupt hiring scheme at the Massachusetts Office of the Commissioner of Probation between 2000 and 2010. Defendants John J. O'Brien, Elizabeth V. Tavares, and William H. Burke III, all former Probation officials, are charged with conspiracy to commit racketeering, racketeering, mail fraud, conspiracy to commit bribery, and bribery. Essentially, the government contends that defendants engaged in a scheme to defraud involving the process of hiring probation officers, in which individuals who were “sponsored” by state legislators would be hired in return for favorable appropriations and other legislation.

Defendants have moved to dismiss the indictment on multiple grounds. First, defendants contend that the indictment is based on a flawed premise, because the Commissioner had “exclusive” hiring authority under state law and was not required to hire on the basis of merit. Second, they contend that the indictment fails to allege mail fraud, because the alleged mailings were not “in furtherance of” the scheme, there was no misrepresentation of a material fact, defendants made no false statements, and the scheme alleged did not defraud anyone of money or property. Third, they contend that the federal bribery counts fall within the “ bona fide salary” exemption, do not properly allege the “transactional” requirement, and do not allege the required quid pro quo. Fourth, they contend that the racketeering acts based on state bribery and gratuity violations must be dismissed because the indictmentdoes not allege the required link between the thing of value and an official act. Finally, they contend that the indictment should be dismissed under the vagueness doctrine and the rule of lenity.

For the reasons set forth below, the motion to dismiss will be denied.

I. Background

Unless otherwise noted, the facts are presented as set forth in the indictment.¹

The Office of the Commissioner of Probation (“OCP”) is a department within the Administrative Office of the Trial Courts (“AOTC”), the administrative arm of the Massachusetts trial courts. The Chief Justice for Administration and Management (“CJAM”) oversees the OCP as well as the trial courts. The OCP, in turn, oversees the Massachusetts Probation Service (“Probation”) and the Office of Community Corrections (“OCC”). Together, Probation and OCC employ about 1,800 individuals statewide.

John J. O'Brien, Elizabeth V. Tavares, and William H. Burke, III joined the Probation Department in 1980, 1980, and 1972, respectively. In 1998, O'Brien became Commissioner of OCP; he served in that role until May 24, 2010. From 2001 to 2008, Tavares served as the Second Deputy Commissioner, and from 2008 to 2010, she served as First Deputy Commissioner. Burke served as Deputy Commissioner from 1999 to 2009.

According to the government, from 2000 to 2010, defendants awarded employment and promotions to individuals whom members of the Massachusetts legislature, legislators' staff members, and other influential individuals had “sponsored,” but who were not the most-qualified candidates.

Publicly, defendants posted employment and promotion opportunities online and on a telephone hotline. After receiving applications by mail, they conducted three rounds of interviews, which included sending application packages to interviewers and creating and maintaining standardized scoring sheets and forms. Rejection letters and postcards, often signed by Burke or Tavares, were sent at the end of the process to unsuccessful candidates. O'Brien then certified in writing to the CJAM that the successful candidates had been hired in compliance with the standards set forth in the Personnel Policies and Procedures Manual of the AOTC (the “Personnel Manual”).

The public process, however, was a sham. Privately, O'Brien would pre-select applicants from a “sponsor” list and provide those names to Tavares, Burke, and other interviewers. Defendants then acted to ensure that the selected candidate would pass through each interview round and be awarded the highest final score, leading to his or her employment. On multiple occasions, O'Brien spoke with legislators who suggested that he promote current employees, which he then did.

In 2006, the Massachusetts legislature enacted legislation providing for electronic monitoring of sex offenders and offenders involved in domestic violence. The legislation charged Probation with oversight of these individuals and implementation of the electronic monitoring system (“ELMO”). The legislature also appropriated funds to purchase equipment and hire personnel. Probation opened an ELMO facility in Clinton, Massachusetts, in November2007, and the CJAM granted O'Brien permission to hire temporary employees to work there. During 2007 and 2008, O'Brien chose twenty individuals, solicited from members of the legislature, who were then hired without interviews or other vetting. In particular, O'Brien offered the then-Chairman of the House Ways and Means Committee the opportunity to suggest individuals, and he in turn solicited names from ten members of the House of Representatives. Many of these “temporary” employees still work at the Clinton facility. At the same time, O'Brien routinely met with legislators to discuss proposed and pending legislation—including discussing a bill with the Chairman that would have significantly affected the CJAM's supervisory authority over his office—and attended annual meetings with the Chairman to discuss Probation's annual budget requests.

In summary, the indictment alleges that in return for hiring and promoting the favored candidates, O'Brien, Tavares, and Burke sought to influence legislators to act favorably on Probation-related appropriations and other legislation.

II. Standard of Review

A district court has the power to dismiss an indictment prior to trial. SeeFed.R.Crim.P. 12. Dismissal, however, is reserved for “extremely limited circumstances.” United States v. George, 839 F.Supp.2d 430, 435 (D.Mass.2012) (citing Whitehouse v. United States District Court, 53 F.3d 1349, 1360 (1st Cir.1995)). “An indictment returned by a legally constituted and unbiased grand jury, like an information drawn by the prosecutor, if valid on its face, is enough to call for a trial of the charge on the merits.” Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). If the indictment “contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend” and “enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense,” then it is sufficient. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (citing Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861 (1932) and United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92 (1953)).

The indictment may use the language of the statute in the general description of an offense, as long as “those words of themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all the elements necessary to constitute the [offense] to be punished.” Hamling, 418 U.S. at 117, 94 S.Ct. 2887 (quoting United States v. Carll, 105 U.S. 611, 612, 26 L.Ed. 1135 (1882)). If the language of the statute is quoted, it “must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific [offense], coming under the general description, with which he is charged.” Id. (quoting United States v. Hess, 124 U.S. 483, 487, 8 S.Ct. 571, 31 L.Ed. 516 (1888)).

“There is no summary judgment procedure in criminal cases.” United States v. Critzer, 951 F.2d 306, 307 (11th Cir.1992). Likewise, the trial court cannot make a pre-trial determination as to the sufficiency of the evidence. Id. Only issues that can be determined without a trial on the merits may be raised in a pretrial motion. SeeFed.R.Crim.P. 12(b) (providing that “any defense, objection, or request that the court can determine without the trial of the general issue” may be raised before trial by motion); United States v. Ayarza–Garcia, 819 F.2d 1043, 1048 (11th Cir.1987) (“[A] pretrial motion to dismiss the indictment cannot be based on a sufficiency of the evidence argument because such an argument raises factual questions embraced in the general issue.”).

III. AnalysisA. Whether the Commissioner Had Exclusive Hiring Authority

Defendants first contend, in substance, that they could not have committed the crimes charged in the indictment, because the Commissioner of Probation had the “exclusive authority to appoint” probation officers under Massachusetts law.² According to defendants, approval of the CJAM was not required to hire probation officers, and the mandate of the Personnel Manual to hire the “most qualified” candidate did not apply. Accordingly, defendants argue, the central premise of the indictment is flawed, requiring dismissal.

Defendants' argument hinges principally on a series of enactments by the Massachusetts legislature as part of the annual budget process. Those enactments must, however, be interpreted in light of the overall statutory scheme and ...