United States v. Brissette, 16-cr-10137-LTS

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
• Parties: UNITED STATES OF AMERICA v. KENNETH BRISSETTE and TIMOTHY SULLIVAN, Defendants.
• Docket Number: No. 16-cr-10137-LTS,16-cr-10137-LTS
• Decision Date: 12 February 2020

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

No. 16-cr-10137-LTS

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

February 12, 2020

MEMORANDUM & ORDER ON POST-TRIAL MOTIONS

SOROKIN, J.

On August 7, 2019, a jury convicted Kenneth Brissette and Timothy Sullivan of Hobbs Act conspiracy, and also convicted Brissette of Hobbs Act extortion, arising from the defendants' interactions with Crash Line Productions, the company that produces Boston Calling music festivals. Presently before the Court are both defendants' original and renewed Motions for Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29, and both defendants' Motions for a New Trial pursuant to Federal Rule of Criminal Procedure 33.

After a careful review of the entire record in this case, including the parties' substantial post-trial briefs, the Court takes the unusual step of setting aside the jury's guilty verdicts and directing the entry of verdicts of NOT GUILTY as to both Brissette and Sullivan on all charges. This action is required based on the government's failure to prove that either man committed the charged offenses. The Court reaches this conclusion for three separate and independent reasons.

First, because this case hinged solely on the defendants' status as public officials and arose exclusively from actions they undertook in that capacity, the decisions of the Supreme

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Court required the government to allege and prove the existence of a quid pro quo. This the government did not do. Neither Brissette nor Sullivan received a personal payoff or any other cognizable benefit in connection with the charged conduct.

Second, even under the government's narrower view of its burden of proof, it failed to establish that either defendant acted wrongfully, as is required to sustain an extortion conviction. In the waning moments of a ten-day trial and after years of litigation, the government gave up the central pillar of its case: that federal labor law prevented the defendants from demanding that Crash Line hire union labor, and that the defendants knew it. And, contrary to the government's argument, the law does not recognize its alternative theories for establishing that the defendants acted wrongfully. The Hobbs Act does not empower federal prosecutors to use the criminal law to enforce a contract, a state code of conduct that itself has no criminal or even civil penalties, or a local government policy.

Even if the Hobbs Act authorized its alternatives, the government failed to prove them. The plain language of Crash Line's contract gave it no protection from the demands allegedly made by the defendants. Crash Line proposed such protection during contract negotiations, but lawyers for the City of Boston rejected that request in 2012. Instead, the contract required Crash Line to attempt to remedy "disturbances," such as, for example, a threatened protest of its festival by angry union members, and to coordinate with "local stakeholders" like the City of Boston to do so. Similarly, the government failed to prove that either defendant, in fact, knowingly violated either state ethics law or local policy.

The government also argued that the defendants lied to Crash Line about the threat of a union protest. The government, of course, bore the burden to prove that assertion. The United States Constitution mandates that it is never a defendant's obligation to prove his innocence.

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Here, the government failed to prove that the defendants lied. In fact, the evidence at trial was one-sided as to this. The union wanted jobs at Crash Line's festivals. It repeatedly said so. It threatened to protest at the festival starting in May, including with an inflatable rat. It said that in writing and orally, including in the weeks before the September event. The possibility of a protest was discussed at City Hall. Given the posture of the case, the Court must disregard the evidence favorable to the defendants. What remains after doing so is an absence of evidence establishing a lie. As such, the government failed to meet its burden of proof.

Third, the government failed to prove beyond a reasonable doubt that the defendants knew about and intended to exploit Crash Line's fears regarding festival permits or an extension of the agreement allowing it to hold events on City Hall Plaza. Proof that a public official meets in his government office with someone seeking a permit as the end of the permitting process approaches cannot—without more, and there was no more here—establish the requisite intent for Hobbs Act extortion.

Each one of these three failures compels the Court to acquit Brissette and Sullivan under Rule 29.

When entering judgment of acquittal after a jury verdict convicting a defendant, Rule 29 requires the Court also to consider whether a new trial is warranted. Here, the Court conditionally finds that a new trial is necessary. The government's abandonment of federal labor law as a foundation for its prosecution of the defendants eliminated the primary basis for the Court's admission of evidence regarding events that unfolded when a different union engaged in a violent protest directed at the reality show "Top Chef" as it filmed in and around Boston in 2014. Furthermore, the government induced the admission of such evidence through pretrial proffers it ultimately failed to fulfill, resulting in the jury hearing unfairly prejudicial and

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irrelevant evidence that substantially undermined the fairness of the trial. And, in its closing argument, the government disregarded clear written rulings of the Court, misstated the law, mischaracterized the evidence, and invited jurors to convict the defendants based on theories the Court had expressly ruled out of the case. In these circumstances, the interests of justice warrant a new trial.

Accordingly, and as explained more fully below, the Court ALLOWS the defendants' motions under Rule 29 and Rule 33.

I. BACKGROUND¹

The charges in this case arose from actions taken by Brissette and Sullivan in the summer of 2014 in the course of performing their duties as public officials serving in the administration of Martin J. Walsh, who had recently become the Mayor of the City of Boston. Brissette was the Director of the Office of Tourism, Sports and Entertainment, and Sullivan was the Chief of Staff for Intergovernmental Relations. Brissette's duties included acting as a liaison between entities planning to stage events in Boston and the City departments whose approval was necessary in order to produce such events. Sullivan's duties included acting as a liaison between the City and other government agencies, such as the Massachusetts Attorney General's Office, and advising the administration on issues related to labor unions. Both Mayor Walsh and Sullivan had union backgrounds, and Boston-area unions had generally supported Walsh's candidacy for Mayor.

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The Boston Calling music festival, produced by Crash Line Productions, was held on City Hall Plaza twice yearly, in May and September, beginning in 2013.² Crash Line used Bill Kenney Productions ("BKP"), a non-union production company, to provide production management and labor, including stagehands, for the Boston Calling festivals. The International Alliance of Theatrical Stage Employees ("IATSE"), Local 11, is a labor union representing stagehands and technicians working in the entertainment industry in Boston. In the run-up to the first Boston Calling festival in May 2013, IATSE attempted to secure jobs at the festival for its members and others seeking work through Local 11's hiring hall. These efforts, including contacting a public official in the administration of then-Mayor Thomas Menino and reaching out to Crash Line directly, were unsuccessful. Crash Line did not hire any workers through Local 11 in 2013, though it did indicate a willingness to consider using them in the future.

In July and August of 2014, Crash Line's representatives—including chief executive officer Brian Appel and chief operating officer Michael Snow—were preparing to produce the fourth Boston Calling festival, set to occur the weekend after Labor Day. This case concerns a series of interactions among Brissette and Sullivan, representatives of IATSE, and Appel and Snow, that culminated in Crash Line hiring eight stagehands and one crew chief for the September 2014 Boston Calling festival pursuant to a contract with IATSE signed on September 3, 2014.

According to the government, Crash Line's decision to hire union stagehands was the result of extortion, and it charged Brissette with violating the Hobbs Act in a one-count

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Indictment returned on May 17, 2016. Doc. No. 1.³ About a month later, the government filed a First Superseding Indictment ("FSI") charging both Brissette and Sullivan with conspiracy and extortion in violation of the Hobbs Act. Doc. No. 17. The government's theory underlying the charges at that time was that Brissette and Sullivan, "act[ing] as agents for the union," Doc. No. 115 at 7, had implicitly threatened permits Crash Line needed for the September 2014 festival, and had explicitly threatened a disruptive picket of the festival, in order to compel an unwilling employer to hire union stagehands to perform actual (albeit unwanted) work, Doc. No. 83-1 at 2-3; Doc. No. 86 at 12-13.

The defendants moved to dismiss the FSI. Doc. No. 82. The Court denied the motion in May 2017 and set a trial date for January 2018. Doc. No. 106; Doc. No. 110. On September 8, 2017, the First Circuit issued its decision in United States v. Burhoe, 871 F.3d 1 (1st Cir. 2017). The following month, the defendants renewed their motions to dismiss, arguing that the First Circuit's interpretation of the Hobbs Act in Burhoe, and the resulting reversal of extortion convictions of the members of a labor union charged as defendants in that case, exposed fatal flaws in the FSI.⁴ Doc. No. 121; Doc. No. 123. In...