Judge aims to rule quickly on motion that could result in Boston Calling case being dropped
A federal judge said Wednesday he will rule quickly on an emergency motion by prosecutors to reconsider his planned jury instructions in the federal extortion case against two Boston City Hall officials, whose trial is set to begin in less than two weeks.
Prosecutors have said US District Judge Leo T. Sorokin’s proposed instructions are too narrow and would be potentially devastating to their case against Kenneth Brissette and Timothy Sullivan, who are accused of illegally strong-arming organizers of the September 2014 Boston Calling music festival into hiring union workers.
“I recognize the time constraints,” Sorokin said after hearing arguments from prosecutors and lawyers for Brissette and Sullivan. “I’ll take it under advisement.”
Brissette, the city’s chief of tourism, and Sullivan, head of intergovernmental affairs, sat at the defense table for 40 minutes while their lawyers discussed the case at a sidebar with prosecutors and Sorokin, out of earshot of the gallery.
After the sidebar conference, Assistant US Attorney Kristina Barclay told Sorokin his instructions should reflect the definition of extortion established in a 1956 Supreme Court interpretation of the Hobbs Act, the federal law that prohibits extortion.
In that case, the court held that a defendant who pressures someone to give property to a third party is guilty of extortion even if he does not receive a direct benefit.
“The government wants to make clear that the evidence we intend to present would prove beyond a reasonable doubt . . . that these defendants committed extortion under the statute as it was [established] 60 years ago,” Barclay told Sorokin.
On Feb. 28, Sorokin said he planned to tell jurors they must determine that Brissette and Sullivan benefited personally when Crash Line Productions, the organizers of the festival, hired union labor for the festival.
In his motion, Sorokin said jurors would need to find that 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 to whom the defendant is indebted.
“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 instruction Sorokin outlined.
Barclay cited examples that under Sorokin’s definition would not qualify as extortion — a person who threatens to publish negative information about a business unless the business pays money to a friend, or someone who threatens another person if he or she doesn’t pay his or her girlfriend $50,000.
“This court’s Feb. 28 order . . . represents a significant change in the legal landscape, one which would effectively cut the Hobbs Act in half,” Barclay said.
Sara E. Silva, one of the lawyers defending Brissette, countered that Sorokin gave prosecutors ample opportunities in his instructions to prove the extortion charges. She dismissed Barclay’s argument that the proposed instructions would hobble similar prosecutions in the future.
“Looking beyond this case is not the court’s role,” Silva said. “There is the law, and that’s what the court should be ruling on.”
Prosecutors have said if Sorokin does not reconsider his plans, they could be forced to drop the charges and would seek permission from the Solicitor General to appeal.
Legal and political observers are closely watching the case, which has been upended by multiple court rulings and has placed scrutiny on the administration of Boston Mayor Martin J. Walsh, a former labor leader who received wide union support when he was first elected mayor in 2013.
Without a favorable ruling, prosecutors would face the difficult decision of dropping the charges or risking another embarrassing loss at trial, said R. Michael Cassidy, a law professor at Boston College who prosecuted white-collar crimes as chief of the criminal bureau in the Massachusetts attorney general’s office under former Attorney General Scott Harshbarger.
Last summer, a jury acquitted Teamsters accused of extortion, while an appellate court reversed the 2014 extortion convictions of two other Teamsters. Prosecuting public corruption and extortion cases against unions has become more challenging in the wake of the appeals court ruling and a 2016 Supreme Court ruling that vacated the conviction of former Virginia governor Bob McDonnell.
“I think [prosecutors] are trying to get the judge to articulate beforehand what standards he’s going to use,” Cassidy said. “They would rather be able to say, ‘Well, the judge was wrong on the law, so we’re going to have to dismiss.’ I think it’s a strategy to save face.”
Michael J. Sullivan, former US attorney for Massachusetts, disagreed, saying prosecutors would abandon the case if they thought it was that weak.
“I don’t know of any instance in which the US attorney’s office or any prosecutor’s office that I’m familiar with would essentially take a position purely for face-saving reasons,” he said. “To me, this is a legitimate disagreement.”