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Appeals court gives new life to Boston Calling case

Timothy Sullivan (left) and Kenneth Brissette had returned to work last March.Pat Greenhouse/Globe Staff/file photos/Globe Staff file photos

A federal appeals court vacated the dismissal of public corruption charges against two Boston City Hall aides Thursday, holding that a judge misinterpreted the law in the Boston Calling case — a development that now paves the way for prosecutors to bring the matter to trial.

In a major win for the US attorney’s office, the First Circuit Court of Appeals ruled that federal prosecutors do not have to prove that the aides, Kenneth Brissette and Timothy Sullivan, personally benefited from the hiring of union workers at the Boston Calling musical festival in 2014.

It was the latest twist in a case that has cast a spotlight on Boston Mayor Martin J. Walsh’s union ties and prompted debate about the proper limits of government lobbying.


Lawyers for the two City Hall workers had successfully argued before US District Judge Leo T. Sorokin that the Hobbs Act, the federal law that defines extortion, did not apply to the case against Brissette and Sullivan. Prosecutors accused the two men of strong-arming the organizers of the Boston Calling event, Crash Line Productions, into hiring union workers.

Brissette and Sullivan have been back at work since Sorokin ruled in 2018 that in order to win a conviction, prosecutors would need to prove that the defendants personally benefited from union workers being hired.

Prosecutors conceded they lacked the evidence to reach that legal standard and did not oppose a defense motion to dismiss the case. Thursday’s ruling vacated that ruling and remanded the matter “for further proceedings consistent with this opinion.”

Thomas R. Kiley, an attorney representing Sullivan, declined to comment on Thursday’s ruling. Lawyers for Brissette could not be reached for comment Thursday evening. Laura Oggeri, a spokeswoman for Walsh, who had expressed relief over Sorokin’s decision last year, declined to comment on Thursday’s ruling.


Last March, when Brissette and Sullivan returned to work after being placed on paid leave, Walsh, a former labor organizer, welcomed back both men and insisted that his administration did not pressure vendors or contractors to hire union members.

“We’ve never insisted that anybody who works on City Hall Plaza bring union or non-union on the plaza, we’ve never done that,” he told the Globe shortly after the dismissal, referring to the Boston Calling event, which was then staged on the plaza.

On Thursday, a spokeswoman for the US attorney’s office said the office would not comment on the ruling until it had reviewed the decision.

Prosecutors had argued that Sorokin’s interpretation of the law was flawed.

Specifically, Sorokin had 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 defendants belonged to, or an organization or person to whom they were indebted.

In February, US Attorney Andrew Lelling told the Globe, “I don’t agree that what are essentially prosecutions for extortion require the exchange of tangible value, of dollars, or of objects, or of something.”

In December, Assistant US Attorney Randall E. Kromm argued to the three-judge appeals court 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,” he 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.”


Prosecutors went to the appeals court shortly after Sorokin’s decision in the hopes the court would vacate the judge’s decision and send the case back to trial.

The case before the appeals court sought to answer a complicated legal question: If the aides did not receive a direct benefit from their actions, could the government still pursue charges of extortion?

In Thursday’s ruling, the appeals court found that the law does not “require the government to prove that the defendant received a personal benefit, at least insofar as the government otherwise may show that the defendant ‘obtain[ed]’ what the statute refers to as property.”

However, the court said it had no view on whether prosecutors would be able to prove their case beyond a reasonable doubt.

“[W]e express no view as to whether, for example, the defendants’ conduct was ‘wrongful,’ as it must be under the statute,” read the ruling.

The decision stated that the court is mindful “of the concerns expressed by the Supreme Court that an overly broad application of the Hobbs Act could unduly chill official conduct.”

The government, according to the decision, “has charged two public officials on a novel theory of Hobbs Act extortion.”

For prosecutors, the decision was a victory that followed a series of disappointing decisions in other extortion cases involving organized labor.

In September 2017, the court 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 are seeking to land real jobs, rather than simply extract money from an employer.


In August 2017, a federal jury acquitted four Teamsters of conspiracy to commit racketeering, charges prosecutors filed when they said the union members tried to extort jobs out of “Top Chef,” a reality television cooking show that filmed in and around Boston in 2014.

Milton J. Valencia of the Globe staff contributed to this report. Maria Cramer can be reached at mcramer@globe.com. Follow her on Twitter @globemcramer. Danny McDonald can be reached at daniel.mcdonald
. Follow him on Twitter @Danny__McDonald.