Boston Calling prosecutors say they may have to drop case

Kenneth Brissette and Tim SullivanLane Turner/Globe Staff/file

Federal prosecutors said Tuesday that they may have to drop extortion charges against two city officials accused of strong-arming organizers of a Boston music festival if a judge does not reconsider his planned instructions to the jury, the latest twist in a public corruption case that has dogged the Walsh administration for two years.

In an emergency motion, prosecutors asserted that US District Judge Leo T. Sorokin misinterpreted federal extortion laws when he ruled last week that to win a conviction, the government would have to prove to jurors that defendants Kenneth Brissette and Timothy Sullivan personally benefited from the hiring of union workers at the Boston Calling event in 2014.

Prosecutors were objecting to Sorokin’s planned jury instructions, which he outlined in a general ruling about the case on Feb. 28. They requested a hearing on their motion next week, and said they would appeal if the judge did not revise his position.

“Should the court decline to reconsider its order, the government will be on a ‘collision course’ with dismissal because the evidence the government intends to introduce at trial will be insufficient under the court’s view of the relevant law,” assistant US attorneys Laura J. Kaplan and Kristina E. Barclay wrote in their nine-page motion.

The judge’s ruling, the latest in a series of setbacks for prosecutors in the high-profile case, came about a month before the start of trial. Legal specialists said the prosecution’s motion was unusual and underscored the tenuous nature of a case that once appeared to pose a serious threat to the administration of Mayor Martin J. Walsh.

“I’ve never seen a prosecutor say, ‘If you’re going to instruct them that way I’m going to have to dismiss the case,’ ” said John Amabile, a criminal defense attorney who has argued cases in federal court for nearly 20 years. “They’re essentially conceding that they don’t have evidence to prove the case on the view of the law that’s taken by the judge.”

Jury selection is slated to begin March 26 in a trial that will cast an unwelcome spotlight on Walsh, a former labor leader elected with wide union support. The administration’s pro-union tactics came under scrutiny last August in a two-week extortion trial against the Teamsters, which resulted in an acquittal.

The prosecutors in the Boston Calling case have faced evolving legal standards on extortion and public corruption since Brissette was first indicted in May 2016.

Last September, the First Circuit Court of Appeals ruled that union officials could not be charged under the Hobbs Act, the federal law that prohibits extortion, if they were seeking actual jobs and not just money from an employer.

And a 2016 Supreme Court ruling that overturned the conviction of former Virginia governor Robert McDonnell, who accepted $175,000 in gifts and loans from a businessman, has also made it harder to pursue corruption charges against public officials.

In the current case, Brissette, the city’s chief tourism officer, and Sullivan, head of intergovernmental affairs, allegedly threatened to withhold permits from festival organizer Crash Line Productions unless members of Local 11 of the International Alliance of Theatrical Stage Employees were hired.

Prosecutors initially described Brissette and Sullivan as “agents” of the union, but the appellate court ruling in September forced prosecutors to recast their argument.

They now argue that Sullivan and Brissette violated the law because as city officials they had no right to force an employer to hire union labor. Festival organizers were threatened with economic harm and as a result were intimidated into paying the union wages and benefits, prosecutors have argued.

Defense lawyers say the men should not be charged with extortion because they received no direct benefit from having jobs go to the union.

Legal analysts said the prosecution’s case — by its own admission — appears to hinge on the judge changing his mind.

“Absent success on this motion — or absent a successful appeal if in fact there is a procedural vehicle for pretrial relief of instruction issues — the government’s case is in peril,” said Boston defense attorney Martin G. Weinberg, who often appears in federal court.

Michael J. Sullivan, former US attorney for Massachusetts, agreed the motion was rare but should not be taken as a signal that prosecutors are losing faith in their case.

“If the government was of the position that the law had changed to the point where the charges could no longer be pursued, the government would be obligated and would move for a dismissal on their own,” Sullivan said. “What they’re saying at this point in time is that the judge has it wrong.”

Prosecutors Kaplan and Barclay have said that the defendants’ alleged actions curried favor with Walsh and that evidence would show the union was pleased with the mayor’s administration after the festival.

In the Feb. 28 ruling, Sorokin said he planned to instruct the jury that prosecutors would need to prove the defendants “obtained property” from Crash Line or directed that the company give the property — the wages and benefits from the jobs — to a family member, an organization the defendant belongs to, or an organization or person the defendant is indebted to.

“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” according to one of the instructions Sorokin outlined.

Prosecutors said that definition of the law is too narrow.

“In the government’s view, wrongfully directing property without a claim of right to a favored constituent is indeed extortion, even if the constituent is not a family member or a close friend, and the jury should not be instructed so as to preclude this,” prosecutors wrote.

Sorokin’s planned jury instructions came in a ruling that generally seemed to favor prosecutors. He denied a defense motion to dismiss the charges against Brissette and Sullivan and another motion that would have excluded incriminating evidence from a previous trial.

But prosecutors said that if he denied their motion for reconsideration, they would ask the solicitor general for permission to appeal his decision.

Former city councilor Michael McCormack, a lawyer who has closely watched the case, said it is unusual for a judge to change course.

“My experience as a lawyer is that the judge would have to say, ‘I made a mistake and now I’m going to have to change my ruling to benefit the government’s case.’ Who knows? That might happen,’’ McCormack said. “Based on what I know, this is bad for the government, good for the defense, and good for City Hall.”