United States v. Brissette

• Decision Date: 19 March 2018
• Docket Number: No. 16-cr-10137-LTS,16-cr-10137-LTS
• Parties: UNITED STATES OF AMERICA v. KENNETH BRISSETTE and TIMOTHY SULLIVAN, Defendants.
• Court: U.S. District Court — District of Massachusetts

UNITED STATES OF AMERICA v. KENNETH BRISSETTE and TIMOTHY SULLIVAN, Defendants.

No. 16-cr-10137-LTS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

March 19, 2018

ORDER ON GOVERNMENT'S EMERGENCY MOTION FOR RECONSIDERATION (DOC. NO. 194)

SOROKIN, J.

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 itscase 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. BACKGROUND²

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 thedefendants 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 defendantsreacted 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 at1-2. 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 so⁵ and because the dismissal of a properly returned indictment before trial is warranted only when theindictment 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...