Judge denies prosecution motion, possibly putting Boston Calling case in jeopardy
A federal judge Monday denied prosecutors’ motion to reconsider his planned instructions to the jury in the upcoming extortion trial of two Boston City Hall officials, a decision that could jeopardize a case that has cast scrutiny on Mayor Martin J. Walsh’s administration’s ties to organized labor.
Prosecutors have said they would be on a “collision course with dismissal” if US District Court Judge Leo T. Sorokin followed through with his plans to tell jurors that to win a conviction, the government would have to prove that the defendants personally benefited from the hiring of union workers at the Boston Calling music festival in 2014.
Sorokin said unless he is swayed by new evidence at trial, other legal arguments, or objections and changes that might come up during trial, the instructions will remain in place.
“For all of the foregoing reasons, the Court denies the government’s motion for reconsideration and stands by the proposed instruction it has issued,” Sorokin wrote in a 28-page ruling.
The decision comes one week before the trial of Kenneth Brissette, the city’s chief of tourism, and Timothy Sullivan, head of intergovernmental affairs, is scheduled to begin. The officials are accused of strong-arming Boston Calling organizers into hiring union workers, in violation of federal law.
Michael Anderson, an attorney with Boston-based Murphy Anderson who specializes in labor law, said Sorokin’s decision puts prosecutors in a quandary.
“The government has pretty clearly said that if he doesn’t change his jury instructions, they’re going to lose before the jury,” he said.
In a statement, US Attorney Andrew Lelling said “we are disappointed in the Judge’s decision, and we are reviewing all of our options.”
Prosecutors had said they would seek permission from the Solicitor General to appeal if Sorokin denied their motion.
A ruling last September by the First Circuit Court of Appeals significantly hampered prosecutors in the Boston Calling case. The ruling overturned the 2014 racketeering conviction of Teamsters John Perry and Joseph Burhoe, holding that union officials cannot be convicted of extortion under the Hobbs Act if they were seeking to land real jobs, rather than simply extract money from an employer.
The ruling forced prosecutors, who initially said Brissette and Sullivan were acting as agents of the union, to reframe the case. They now contend that Brissette and Sullivan committed extortion because they violated federal laws when they leaned on Boston Calling to give work to the union.
In their motion for reconsideration, prosecutors said Sorokin defined the act of “obtaining” property too narrowly and their evidence would not meet his threshold for a conviction.
In a 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.
In his ruling Monday, Sorokin said prosecutors have implied they had evidence that would show the defendants benefited from the union receiving work.
He cited a hearing during which prosecutors told him, “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.”
During a hearing before Sorokin last week, Assistant US Attorney Kristina Barclay said that prosecutors still believed in their case and would be able to prove extortion under the definition of the crime set by a 60-year-old Supreme Court case.
That case found that a defendant who pressured someone into giving property to a third party could still be convicted of extortion even if the defendant did not receive a personal benefit.
In his ruling Monday, Sorokin said his instructions do not contradict that definition: a person could still be guilty of extortion if he or she took “physical possession” of the property even without keeping it.
“The government has identified no case in which a defendant was charged with and convicted of . . . extortion where he neither personally acquired the property nor received a demonstrated benefit,” Sorokin wrote.
Michael Sullivan, a former US attorney in Boston, said Sorokin’s decision does not prevent the trial from moving forward. But prosecutors may be reluctant to press on because “they know that at the end of the trial, that the jury instruction would not allow a jury to reach a [guilty] verdict,” Sullivan said. “Not based on the evidence, but the jury’s application of the judge’s instruction.”