Professional Documents
Culture Documents
Document: 00117094605
Page: 1
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Case: 14-2313
Document: 00117094605
Page: 2
Case: 14-2313
Document: 00117094605
Page: 3
Elizabeth
Tavares,
and
Defendants-appellants John
William
Burke
appeal
their
O'Brien,
state
legislature
with
the
hope
of
obtaining
favorable
Although
not
provide
sufficient
evidence
to
establish
criminal
We reverse.
I.
We provide a summary of the most salient facts as the
-3-
Case: 14-2313
Document: 00117094605
Page: 4
serves
as
the
central
office
Department
and
employs
the
of
the
Massachusetts
Commissioner
of
Probation
Probation,
deputy
employees
Massachusetts.
about
100
probation
offices
throughout
-4-
Case: 14-2313
Document: 00117094605
Page: 5
In 2001, new
posted
on
the
Massachusetts
trial
court
website,
and
Mucci,
of
the
Human
Resources
department,
-5-
Case: 14-2313
Document: 00117094605
applicants
attend
Page: 6
screening
interview
with
regional
administrator.
Each applicant who passed the screening round proceeded
to a second-round interview before a three-member panel consisting
of
chief
probation
administrator.
Every
officer,
candidate
local
was
judge,
asked
the
and
same
regional
set
of
questions, and each panel member would rank his or her top eight
candidates.
The
-6-
Case: 14-2313
Document: 00117094605
Page: 7
packages were prepared and sent to the CJAM, who typically gave
his signature for final approval.
budget
treatment
from
the
state
legislature
-7-
and
O'Brien told
Case: 14-2313
Document: 00117094605
Page: 8
Wall, his close friend, that the patronage hiring scheme ensured
that he had "a good rapport with the legislature" to facilitate "a
beneficial budget to the Probation Department."
of
the
interview
process,
various
members
the
Probation
As
by mail and phone, and the names and their recommenders were
compiled in "sponsor lists" sent to O'Brien. Throughout the hiring
process, O'Brien would meet with members of his staff responsible
for receiving referrals and maintaining the sponsor lists to
discuss which candidates had been referred by whom and for what
positions.
Before the second-round interviews, Tavares and others
would give regional administrators assigned to the three-member
panel names of candidates that should be passed on to the third
round.
names to the chief probation officer assigned to the panel but did
not always inform the local judge on the panel.
The regional
-8-
Case: 14-2313
Document: 00117094605
"inflate[d]"
explained
their
that
the
Page: 9
ratings,
lists
and
chief
"influence[d]"
probation
his
officer
ranking
of
the
individuals.
Some of the regional administrators and chief probation
officers involved in the hiring process took issue with these
practices.
understood
that
these
individuals
had
"sponsors
that
were
ensure
preferred
candidates
proceeded
to
the
next
round.
Driscoll
had
been
"fast-tracked,"
to
which
Burke
replied,
"Everything's going [to] be fine," and "I wrote the book on this
stuff."
When members of the second-round panel failed to pass
along the selected names, they at times faced retaliation from
O'Brien and his staff:
-9-
Case: 14-2313
Document: 00117094605
Page: 10
2001 where O'Brien called her into his office and appeared "upset
with [her]" after she did not include a particular individual on
the list for a third-round interview.
list of names and how they should be ranked from O'Brien, Tavares,
or Edward Ryan, a legislative liaison for the OCP.
O'Brien
-10-
Case: 14-2313
Document: 00117094605
Page: 11
much do anything that was necessary to ensure that they were the
Number 1 candidate." Prior to interviews in Western Massachusetts,
Wall would meet with Burke to "advise him . . . who the Commissioner
advised would be the candidate and what number rank they would be
given."
Once the preferred candidate was chosen, OCP staff would
send the application package and certification to Judge Mulligan.
O'Brien was responsible for signing off on the certification, and
he often certified that the "best qualified" candidate had been
chosen.
The
unsuccessful
OCP
would
candidates
then
send
stamped
out
with
rejection
O'Brien's
letters
or
to
Tavares's
signature.
Judge Mulligan understood that he had the authority to
"approve the appointment or to reject the appointment," but that
he could not "substitute [his] judgment as to who the best person
would be."
should
be
with
the
Manual"
and
that
the
Mulligan
and
O'Brien
had
contentious
-11-
Case: 14-2313
Document: 00117094605
Page: 12
characteristics
of
the
candidates."
After
Judge
After
"After
12
years
in
charge,
Jack
O'Brien
has
-12-
Case: 14-2313
Document: 00117094605
Page: 13
Procedural History
A federal indictment in the United States District Court
The second
superseding
2010,
indictment
alleged
that,
from
2000
to
the
The
The substantive
RICO count was based on the predicate acts of mail fraud and
Case: 14-2313
Document: 00117094605
Page: 14
defendants
moved
to
dismiss
the
indictment
on
various grounds.
alleged
--
mailings
rejection
letters
sent
to
unsuccessful
counts
on
grounds
that
Government
had
failed
to
The jury
O'Brien and
Tavares were found guilty of the substantive RICO count, with the
jury finding ten of the seventeen mail fraud predicates proven as
Case: 14-2313
Document: 00117094605
Page: 15
guilty
as
principal
and
Tavares
guilty
as
both
fraud counts.
The defendants bring a panoply of arguments on appeal.
We address only their most salient claims and pass no judgment on
any issues not addressed herein.
II.
Viewing the evidence in the light most favorable to the
verdict, we can conclude that O'Brien, along with the other
defendants and many other members of the Probation Department,
misran the Probation Department and made efforts to conceal the
patronage hiring system.
Green
v. United States, 365 U.S. 301, 309 (1961) (Black, J., dissenting).
This case involves state officials' efforts to increase funding
for their department through closed-door arrangements with state
legislators and other public officials.
-15-
Case: 14-2313
Document: 00117094605
conduct is criminal.
Page: 16
that the Government has not in fact demonstrated that the conduct
satisfies the appropriate criminal statutes, and we therefore
reverse.3
A.
commerce,
to
conduct
or
participate,
directly
or
This does not mean that these practices cannot have consequences.
Here, the Independent Counsel appointed by the Massachusetts
Supreme Judicial Court recommended both remedial personnel actions
and policy changes at the OCP, and a number of steps have been
taken to discipline the perpetrators and safeguard the OCP against
similar abuses. See Report of the Independent Counsel 41-48; see
also Scott Allen, SJC Orders Probation Overhaul as Report Finds
Rampant Fraud, Bos. Globe, Nov. 19, 2010.
4
Case: 14-2313
Document: 00117094605
Page: 17
18 U.S.C. 1962(c).
18 U.S.C. 1961(5).
A "racketeering
jury
found
nine
18 U.S.C. 1961(1)(A).
predicate
acts
under
the
For O'Brien,
Massachusetts
O'Brien
to
prove
that
O'Brien
"knowingly
offer[ed]
or
Id. 3(a).5
Case: 14-2313
Document: 00117094605
Page: 18
Mere
proof
of
the
public
position
is
Recognizing that
Massachusetts
courts
accept
"evidence
regarding
the
Case: 14-2313
Document: 00117094605
Page: 19
voting
pattern"
to
demonstrate
the
requisite
linkage.
268A
sufficient
and
evidence
turn
that
to
whether
O'Brien
the
violated
Government
the
presented
statute.6
We
Government
groups
the
predicate
acts
into
two
Both categories of
O'Brien proposed
According
Case: 14-2313
Document: 00117094605
Page: 20
The
Government's
evidence
as
to
the
gratuities
value"
conferred
by
O'Brien
(the
jobs)
and
an
bootstrapping:
legislators
and
based
on
legislative
preferences,
any
-20-
Case: 14-2313
Document: 00117094605
Page: 21
husband,
Government
Massachusetts
contended
House
that
Kathleen
Representative
Petrolati's
Thomas
Petrolati,
service
coordinators.
coordinators,
O'Brien,
in
and
ten
turn,
assistant
appointed
court
service
Representative
was
Petrolati's
no
evidence
connection
that
to
O'Brien
the
knew
budget
of
Representative
amendment
or
that
-21-
Case: 14-2313
Document: 00117094605
Page: 22
To
sought
to
show
that
O'Brien
"gave"
ELMO
appointments
to
Yet
-22-
Case: 14-2313
Document: 00117094605
Page: 23
"Official act"
the
Government
demonstrated,
however,
is
that
Case: 14-2313
Document: 00117094605
Page: 24
Thus, the
that the "official act" requirement was met, or that it was linked
to the gratuity.
The
Government
also
contends
that
the
ELMO
hires
testified that DeLeo and his staff used the jobs to "gather
support" for DeLeo, and that O'Brien told him that DeLeo's office
had "identified" individuals that they "were looking for to vote
for Bob DeLeo for the Speaker's race."
But while a legislator's vote in a leadership election
may constitute an official act, the Government needed to prove, as
the district court instructed the jury, a link between the gratuity
that O'Brien gave DeLeo and a specific official act that DeLeo
-24-
Case: 14-2313
Document: 00117094605
would undertake.8
other
legislators'
official acts.
Page: 25
for
DeLeo
could
qualify
as
DeLeo's
Moreover, the Government did not argue that O'Brien gave the
gratuity directly to the other legislators to induce their votes
for DeLeo in the Speaker's race, or that O'Brien and DeLeo
conspired to do so.
In fact, the district court described the
alleged gratuity from O'Brien to DeLeo as follows:
"[O'Brien]
would give this right of selection, this right of appointment, to
Mr. DeLeo." The Government echoed this description in its closing
argument: "O'Brien gave jobs, he gave ELMO jobs to . . . Robert
DeLeo, so that Robert DeLeo could hand those jobs out to other
members of the House of Representatives." The Government's brief
on appeal, moreover, focuses on O'Brien having given DeLeo a
gratuity by giving him the power to select ELMO hires, which would
enable DeLeo to attract support for his race for Speaker by passing
along the candidates preferred by legislators who would support
him in the race.
-25-
Case: 14-2313
Document: 00117094605
Page: 26
See Sun-
Diamond Growers of Cal., 526 U.S. at 405. But that is only evidence
that O'Brien was seeking general legislative support from DeLeo,
and, under Sun-Diamond and Scaccia, that is not sufficient to show
a specific public act, and with it an illegal gratuity.
See Sun-
Mail Fraud (Count I: Predicate Acts 1-4, 12-14, 17, 18, 20;
Counts III-VI)
To prove a violation of the federal mail fraud statute
"(1) a scheme
Case: 14-2313
Document: 00117094605
Page: 27
O'Brien and Tavares guilty of mail fraud Counts Three, Four, Five,
and Six, and found ten predicate acts of mail fraud for purposes
of O'Brien's and Tavares's substantive RICO count.
O'Brien and
did
not
that
the
mailings
were
"in
Schmuck
v. United States, 489 U.S. 705, 710 (1989) (quoting Kann v. United
States, 323 U.S. 88, 95 (1944)).
their
ultimate
complaint
-27-
to
the
authorities,
and
Case: 14-2313
Document: 00117094605
Page: 28
Id. at 403.
Cir. 2005).
From this, two propositions emerge.
First, a mailing
can serve as the basis for a mail fraud conviction even if the
fraud would have been successful had the mailing never occurred.
Second, however, that mailing -- even if dispensable -- must at
least have some tendency to facilitate execution of the fraud.
In
amiable
to
the
government,
and
taking
all
reasonable
-28-
Case: 14-2313
Document: 00117094605
Page: 29
F.3d 68, 93 (1st Cir. 2015) (quoting Hebshie, 549 F.3d at 35).
Even assuming that there was "a scheme to defraud," the
Government did not present substantial evidence of a mailing "in
furtherance of" such a scheme.
The
selected,10
to
satisfy
the
mailing
requirement.
These
10
Case: 14-2313
Document: 00117094605
Page: 30
also United States v. Fernndez, 282 F.3d 500, 508 (7th Cir. 2002)
("These notifications were not merely ancillary to the execution
of the fraud, rather, [they] falsely portray[ed] to anyone who
examined Lyons' records that the bids submitted were legitimate,
thereby concealing the true nature of the scheme.").
But the
may have assumed they were not hired or else called OCP to check
their status.
-30-
Case: 14-2313
Document: 00117094605
Page: 31
misused
federal
funds
provided
to
their
non-profit
The
defendants
submitted
monthly
reports
Id. at 90.
Id. at
reflecting
determining
that
these
reports
satisfied
the
Id.
mailing
Case: 14-2313
Document: 00117094605
Page: 32
Id.
Id. at 707.
The
Id. at 712.
in
contrast,
the
Government
has
presented
no
-32-
Case: 14-2313
Document: 00117094605
Page: 33
evidence
that
the
rejection
letters
furthered
any
hypothesis (i.e., that such calls may have led to discovery of the
scheme)
rests
on
nothing
more
than
rank
speculation.
The
And
while
the
mailing
was
certainly
incidental
to
-33-
Case: 14-2313
Document: 00117094605
Page: 34
the
scheme
because
it
furthered
neither
the
None of the
predicate
acts
fourteen
and
seventeen
Predicate act
The
To be
Case: 14-2313
Document: 00117094605
Page: 35
The
record does not demonstrate that the appointment letter was sent
for this purpose, and we therefore find 1341's jurisdictional
element is not satisfied for purposes of predicate act fourteen.
Predicate act seventeen involved a mailed application.
But RICO claims require two predicate acts, and the Government
does not present sufficient evidence of a mailing for purposes of
any other mail fraud predicate act.
satisfy
1341's
mailing
requirement
for
predicate
act
seventeen.11
C.
Juror Questions
Although we reverse based on more central issues, making
the present issue moot, we must express our reservations about the
extent and type of juror questions allowed by the trial judge in
this case.
Whether to allow juror questions falls "to the sound
discretion of the trial court."
11
Case: 14-2313
Document: 00117094605
Page: 36
United
Here,
jurors submitted 281 questions, and the district court posed 180
of them to witnesses.
exception"
reserved
for
the
most
critical
points,
This invitation to
12
Case: 14-2313
Document: 00117094605
Page: 37
because recommended names were on the list" and "Why did you change
James Rush's score."
Their overriding
questions, it must ensure that the jurors do not turn into fact
gatherers
rather
than
factfinders
by
exceeding
the
bounds
find
the
convictions
evidence
and
insufficient
order
the
entry
to
of
support
the
judgments
of
acquittal.
So ordered.
13