The public corruption case against two Boston City Hall aides went before a federal appeals court Tuesday, where judges challenged lawyers on both sides with a key question: If the aides did not receive a direct benefit from their actions, can the government pursue charges of extortion?
Federal prosecutors are seeking to renew their high-profile case against Kenneth Brissette, the city’s tourism chief, and Timothy Sullivan, head of intergovernmental affairs. The men had been charged with extortion for allegedly threatening to withhold permits from the Boston Calling music festival in 2014 unless organizers hired union workers.
The men, who had been placed on administrative leave following their indictments in 2016, returned to work last spring when US District Judge Leo T. Sorokin ruled that prosecutors would have to prove that the defendants personally benefited from union workers being hired to win a conviction.
Sorokin said jurors would need to conclude that Brissette and Sullivan “obtained property” from the festival organizers, Crash Line Productions, or directed the company to give property — the wages and benefits from the jobs — to a family member, a group the defendant belongs to, or an organization or person to whom the defendant is indebted.
The case was dismissed after prosecutors conceded that they could not secure a conviction under Sorokin’s interpretation of the law, which they argued was flawed. Prosecutors are now calling on the First Circuit Court of Appeals to reverse Sorokin’s decision and remand the case back for trial.
On Tuesday, Assistant US Attorney Randall E. Kromm argued to the three-judge panel that the government does not need to show the actions of Brissette and Sullivan benefited the union to prove extortion.
“This is not a labor case,” Kromm said. “It’s not the union’s rights that shape the scope of wrongfulness but what these particular defendants were permitted to do as public officials.”
In September 2017, the First Circuit Court overturned an extortion case by ruling that two Teamsters from Massachusetts, John Perry and Joseph Burhoe, could not be convicted under the Hobbs Act, the federal law that defines extortion.
The court held that the defendants were seeking to land real jobs — not just extract money — from an employer when they threatened to picket businesses if they did not hire union workers.
On Tuesday, Judge David J. Barron called on Kromm to find one example of case law to support his position — an instance when a defendant seeking an “intangible” property, such as a job, for someone else was found to have committed extortion without gaining a direct benefit.
“It would be nice if there was one,” Barron said.
Judge William J. Kayatta Jr. however, appeared skeptical that a defendant who threatens someone into giving up something did not commit extortion even if he did not personally benefit.
“When you force the person through a threat to transfer the property to a third person, you have the added requirement of showing a benefit to the person who issued the threat,” Kayatta said to Sara Silva, Brissette’s lawyer, summarizing Sorokin’s ruling. “I don’t see where you’re getting that or where the district court got the need for that benefit. . . . Wouldn’t that plainly be extortion under the modern penal code?”
Silva referred back to the Hobbs Act, which exempts unions from extortion if they are seeking legitimate jobs and not just cash.
Thomas R. Kiley, the lawyer for Sullivan, began his argument by challenging the notion that the aides did anything wrong and pointed to a 2016 Supreme Court decision that vacated the corruption conviction of former Virginia governor Bob McDonnell, who had arranged meetings for a benefactor. In that case, the court narrowed the definition of corruption.
Judge Barron expressed impatience with Kiley’s strategy.
“This is an unusual case,” Barron said. “Like any unusual case, there are many possible points of attack . . . you seem to be suggesting that we should canvass the whole array of possible points of attack . . . we just can’t operate like that as the court of appeals.”
Barron said he was trying to explore the central question in the case: “Whether a direct benefit is required. Do you have a reason to conclude the district court was right?”
“Yes,” Kiley replied.
“Great,” Barron said. “What is it?”
Kiley responded by citing Sorokin’s definition of obtained property.
There is no timetable for the court’s decision.Maria Cramer can be reached at email@example.com. Follow her on Twitter @globemcramer.