United States v. Tavares , 844 F.3d 46 ( 2016 )

United States Court of Appeals
For the First Circuit
Nos. 14-2313,
14-2314,
14-2315
UNITED STATES OF AMERICA,
Appellee,
v.
ELIZABETH V. TAVARES,
JOHN J. O'BRIEN, and
WILLIAM H. BURKE, III,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Martin G. Weinberg, with whom Kimberly Homan, were on brief,
for appellant Tavares.
Judith H. Mizner, Assistant Federal Public Defender, for
appellant O'Brien.
John A. Amabile, with whom James Bradbury and Amabile &
Burkly, P.C., were on brief, for appellant Burke, III.
Stephan E. Oestreicher, Jr., Attorney, Appellate Section,
Criminal Division, U.S. Department of Justice, with whom Leslie R.
Caldwell, Assistant Attorney General, Sung-Hee Suh, Deputy
Assistant Attorney General, Carmen M. Ortiz, United States
Attorney, Fred M. Wyshak, Jr. and Karin M. Bell, both Assistant
United States Attorneys, were on brief, for appellee.
December 19, 2016
TORRUELLA, Circuit Judge. Defendants-appellants John
O'Brien, Elizabeth Tavares, and William Burke appeal their
convictions for Racketeer Influenced and Corrupt Organizations
("RICO") violations, 18 U.S.C. § 1962(c), RICO conspiracy, 18
U.S.C. § 1962(d), and mail fraud, 18 U.S.C. § 1341, based on their
roles in a hiring scheme at the Massachusetts Office of the
Commissioner of Probation ("OCP") from 2000 to 2010. O'Brien,
Tavares, and Burke previously served as high-ranking officials in
the OCP. There, they catered to hiring requests from members of
the state legislature with the hope of obtaining favorable
legislation for the Department of Probation and the OCP. Although
the actions of the defendants may well be judged distasteful, and
even contrary to Massachusetts's personnel laws, the function of
this Court is limited to determining whether they violated the
federal criminal statutes charged. We find that the Government
overstepped its bounds in using federal criminal statutes to police
the hiring practices of these Massachusetts state officials and
did not provide sufficient evidence to establish a criminal
violation of Massachusetts law under the Government's theory of
the case. We reverse.
I.
We provide a summary of the most salient facts as the
jury might have found them.
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Many of the defendants' claims of error are predicated
on the sufficiency of the evidence, for which we must evaluate the
evidence "in the light most favorable to the verdict" and determine
whether the "evidence, including all plausible inferences drawn
therefrom, would allow a rational factfinder to conclude beyond a
reasonable doubt that the defendant committed the charged crime."
United States v. Manso-Cepeda, 810 F.3d 846, 849 (1st Cir. 2016)
(quoting United States v. Santos-Rivera, 726 F.3d 17, 23 (1st Cir.
2013)).
A. The OCP and the Hiring Framework
O'Brien, Tavares, and Burke worked in the OCP, which
serves as the central office of the Massachusetts Probation
Department and employs the Commissioner of Probation, deputy
commissioners, and regional supervisors, also known as regional
administrators. The OCP is responsible for staffing approximately
1,600 employees in about 100 probation offices throughout
Massachusetts. O'Brien served as the Commissioner of Probation
(the "Commissioner"), the highest-ranking position within the
Department of Probation, from 1998 to 2010, and he was responsible
for appointing all employees. Tavares served as second deputy
commissioner from 2000 to 2008 and first deputy commissioner from
2008 to 2010, and Burke was the deputy commissioner of Western
Massachusetts from 1998 to 2009.
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Prior to 2001, local judges had authority to appoint and
promote probation employees, subject to the approval of the Chief
Justice of Administration and Management ("CJAM"). In 2001, new
legislation gave the Commissioner the "exclusive authority" for
probation hiring and promotion, although his appointments were
still subject to the approval of the CJAM. The CJAM's hiring
policies for the trial court were promulgated in the Personnel
Policies and Procedures Manual (the "Manual"), copies of which
were kept at OCP and distributed to chief probation officers.
Among other things, the Manual provided that "the objective of the
hiring process is to select the most qualified individuals who can
carry out their responsibilities in a competent and professional
manner." Judge Robert Mulligan served as the CJAM throughout most
of the relevant parts of this case, beginning in 2003.
The Manual also set out certain procedures for making
permanent hires. In practice, openings in the Probation Department
were posted on the Massachusetts trial court website, and
candidates submitted applications and resumes to the Probation
Department. The applications were collected at the OCP, where
Janet Mucci, supervisor of the Human Resources department,
screened them for minimum education and experience requirements.
To further winnow the applicant pool, from 2005 onward the OCP had
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applicants attend a screening interview with a regional
administrator.
Each applicant who passed the screening round proceeded
to a second-round interview before a three-member panel consisting
of a chief probation officer, local judge, and regional
administrator. Every candidate was asked the same set of
questions, and each panel member would rank his or her top eight
candidates. The second round of interviews was consistent with
the Manual's procedures, which called for "an interview committee
consisting of the Commissioner . . . or his/her designee, the Chief
Probation Officer of the Division, and a representative of the
[CJAM]" to interview probation applicants. In addition, the Manual
directed O'Brien to "develop a standard set of questions" which,
"[a]t a minimum, each applicant should be asked" if interviewed.
The regional administrator received a scoring sheet for
each candidate to tally the scores of the three-member panel. The
top eight candidates proceeded to a final-round interview at the
OCP before two members of probation, typically two of deputy
commissioner Francis Wall, deputy commissioner Patricia Walsh, and
OCP Administrative Attorney Edward McDermott. O'Brien set up the
third round of interviews, which was not prescribed by the Manual.
Once the Commissioner selected the final candidate or
candidates after the third-round interview, their application
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packages were prepared and sent to the CJAM, who typically gave
his signature for final approval. The appointment documentation
form specified which records were included within each package:
In accordance with the established personnel
standards, enclosed are:
The Applicant Interview and Hiring Record
The Applicant Flow Record
A copy of all applications of the
candidates who were interviewed
A copy of the notice of vacancy (job
posting)
The Jobs Hotline Confirmation letter (F
3) (if on the Hotline)
The Employment Eligibility Verification
Form 19 (F 16) & supporting documentation
(new hires only)
The SSA-1945 Statement Concerning
Employment in a Job not covered by Social
Security (F 30) (new hires only)
The Consent to Criminal Record Check (F
23) (new hires only)
The Application for Allied Service Credit
(F 26) (Probation Officer positions
only).
For each appointment, the Commissioner would "certify that [he
had] complied with the Trial Court's personnel standards and that
sufficient funding exists in the current fiscal budget to support
this position."
B. The Hiring Scheme
The defendants abused the hiring process to ensure that
favored candidates were promoted or appointed in exchange for
favorable budget treatment from the state legislature and
increased control over the Probation Department. O'Brien told
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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." During each round
of the interview process, various members of the Probation
Department ensured that individuals recommended by legislators and
other high-ranking officials secured their desired positions. As
a result, the Probation Department was "the beneficiary of better
budgets." The OCP regularly received referrals from legislators
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. The regional administrators typically would pass these
names to the chief probation officer assigned to the panel but did
not always inform the local judge on the panel. The regional
administrators and chief probation officers understood that these
individuals were to be given priority to ensure they proceeded to
the next round: one regional administrator testified that he
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"inflate[d]" their ratings, and a chief probation officer
explained that the lists "influence[d]" his ranking of the
individuals.
Some of the regional administrators and chief probation
officers involved in the hiring process took issue with these
practices. Ellen Slaney, who served as a regional administrator,
understood that these individuals had "sponsors that were
politically influential," and -- when she explained to Tavares
that some of the best applicants were being passed over -- Tavares
replied "that sometimes the political thing had to be done."
Edward Driscoll, who was a chief probation officer and then a
regional administrator during the relevant time period, testified
that he began using pens rather than pencils when he scored
interviewees, as he suspected that his scores were being changed
to ensure preferred candidates proceeded to the next round.
Driscoll recalled a conversation with Burke in 2006: Driscoll
expressed concern that a candidate whose husband was a local
sheriff 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: Slaney recalled an instance in January
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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. When she explained her
reasons for not advancing the individual, O'Brien replied "Oh,
come on, Ellen, everybody has a sponsor." In 2005, after Slaney
declined to advance a recommended candidate, she was assigned to
work on "overdue audits," clerical work that Slaney perceived as
"retaliation for not participating in the hiring process . . . [i]n
a way that I was told that I should."
Although the Manual did not provide for third-round
interviews, O'Brien implemented the final round to "ensure that
the candidates that he selected would be presented to him as the
candidate for the position." During the third round, the same
four or five questions, all of which Tavares prepared, were posed
to each candidate. Prior to the interviews, Wall would receive a
list of names and how they should be ranked from O'Brien, Tavares,
or Edward Ryan, a legislative liaison for the OCP. O'Brien
received these names from legislators, judges, and attorneys who
would call or mail O'Brien referrals. Wall testified that "it was
my responsibility . . . to make sure that those candidates were
ranked in the order given to me." To ensure the candidates were
ranked according to O'Brien's instructions, the interview panel
would "help, would change scores, would embellish, . . . pretty
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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 OCP would then send out rejection letters to
unsuccessful candidates stamped with O'Brien's or 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." Judge Mulligan also understood that the appointment
should be "consistent with the . . . Manual" and that the
certification indicated that the appointment was consistent with
a "merit-based hiring system."
Judge Mulligan and O'Brien had a contentious
relationship, which Judge Mulligan described as "oppositional
almost from the time I took office." Sometime in 2006, Judge
Mulligan grew suspicious of O'Brien's appointments and asked his
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"HR department to red-flag any cases that they thought were
unusual." In particular, he grew concerned that the scores of the
final interview panel were taking precedence over the scores of
the second-round, local panel, and informed O'Brien that he did
"not believe that this selection process [would] lead to the most
qualified candidate since it seem[ed] designed to ignore the
assessments of the local panel and [gave] short-shrift to important
background characteristics of the candidates." After Judge
Mulligan spoke to a deputy commissioner about one of O'Brien's
appointments, the Senate Chair of the Ways and Means Committee,
Senator Steven C. Panagiotakos, told Judge Mulligan that he had
only "limited authority" to review O'Brien's appointments. After
this conversation, Judge Mulligan "back[ed] off somewhat in [his]
review of Mr. O'Brien's choices for positions."
In 2010, the Boston Globe Spotlight Team released an in-
depth report highlighting the hiring practices in the Probation
Department: "After 12 years in charge, Jack O'Brien has
transformed the Probation Department from a national pioneer of
better ways to rehabilitate criminals into an organization that
functions more like a private employment agency for the well
connected . . . ." Scott Allen, Agency Where Patronage Is Job
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One, Bos. Globe, May 23, 2010. The day after the article was
released, Judge Mulligan suspended O'Brien.1
C. Procedural History
A federal indictment in the United States District Court
for the District of Massachusetts followed in 2012. The second
superseding indictment alleged that, from 2000 to 2010, the
defendants implemented a sham merit-based hiring system and that
O'Brien "falsely certified to the CJAM that the candidate for
employment had been hired pursuant to the procedures mandated by
the Manual," that is to say, a merit-based hiring system. The
indictment charged Count One for RICO conspiracy under 18 U.S.C.
§ 1962(d) as to all three defendants, Count Two for substantive
RICO violations under 18 U.S.C. § 1962(c) as to O'Brien and
Tavares, and Counts Three through Twelve for mail fraud under 18
U.S.C. § 1341 and § 2 as to all three defendants. The substantive
RICO count was based on the predicate acts of mail fraud and
1 The Massachusetts Supreme Judicial Court subsequently appointed
an Independent Counsel to investigate the OCP's hiring practices,
and the Independent Counsel concluded: "Hiring and promotion
processes have been fraudulently orchestrated from beginning to
end in favor of connected candidates. The fraud begins [at the]
top with Commissioner O'Brien, and it extends through most of the
hierarchy of the Department who participate in interviewing
candidates for hiring and promotion." Paul F. Ware, Jr., Report
of the Independent Counsel, In the Matter of the Probation
Department of the Trial Court 3 (SJC No. 0E-123, Nov. 9, 2010),
http://www.mass.gov/courts/docs/sjc/docs/report-of-independent-
counsel-110910.pdf.
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Massachusetts gratuities and bribery violations.2 Each mail fraud
count and predicate act was based on a particular hire between
2001 and 2010.
The defendants moved to dismiss the indictment on
various grounds. Among other things, they contended that the
alleged mailings -- rejection letters sent to unsuccessful
applicants -- did not satisfy the interstate commerce element of
the federal mail fraud statute. They also sought to dismiss the
RICO counts on grounds that the Government had failed to
demonstrate the necessary link between a "thing of value" and an
"official act" as required under the Massachusetts bribery and
gratuities statute. Following a motion hearing, the district court
denied the motion in a written opinion and order.
The parties proceeded to a forty-seven day jury trial.
Throughout the trial, the district court allowed the jury to submit
questions for the court to pose to the witnesses. Jurors submitted
281 questions, 180 of which were asked by the court. The jury
found all three defendants guilty of RICO conspiracy. 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
2 The indictment also included counts for bribery concerning a
program receiving federal funds under 18 U.S.C. § 371 and 18 U.S.C.
§ 666(a)(2). These counts were dismissed on the Government's
motion and are not relevant here.
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to O'Brien (as a principal) and Tavares (as either an aider and
abettor, a coconspirator, or both) and nine gratuities acts proven
as to O'Brien. The jury found none of the predicate bribery acts
proven. Of the nine mail fraud counts ultimately submitted to the
jury, O'Brien and Tavares were adjudged guilty of four, with
O'Brien guilty as a principal and Tavares guilty as both a
coconspirator and aider and abettor as to two and an aider and
abettor as to the remaining two. Burke was acquitted on the mail
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. But "[b]ad men, like good men, are
entitled to be tried and sentenced in accordance with law." 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. But not all unappealing
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conduct is criminal. As sovereigns, states have "the prerogative
to regulate the permissible scope of interactions between state
officials and their constituents," and the Supreme Court has warned
against interpreting federal laws "'in a manner that . . . involves
the Federal Government in setting standards' of 'good government
for local and state officials.'" McDonnell v. United States, 136
S. Ct. 2355, 2373 (2016) (quoting McNally v. United States, 483
U.S. 350, 360 (1987)). For the reasons discussed herein, we find
that the Government has not in fact demonstrated that the conduct
satisfies the appropriate criminal statutes, and we therefore
reverse.3
A. State Gratuities (Count II: Predicates 44(b)-51(b), 53(b))4
Under the federal RICO statute, "[i]t shall be unlawful
for any person employed by or associated with any enterprise
engaged in, or the activities of which affect, interstate or
foreign commerce, to conduct or participate, directly or
3 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 These numbers refer to the corresponding counts and predicate
acts as identified in the second superseding indictment.
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indirectly, in the conduct of such enterprise's affairs through a
pattern of racketeering activity . . . ." 18 U.S.C. § 1962(c).
RICO and RICO conspiracy counts "require[] at least two acts of
racketeering activity." 18 U.S.C. § 1961(5). A "racketeering
activity" includes "any act or threat involving . . . bribery . . .
which is chargeable under state law and punishable by imprisonment
for more than one year." 18 U.S.C. § 1961(1)(A). For O'Brien,
the jury found nine predicate acts under the Massachusetts
gratuities statute, Mass. Gen. Laws ch. 268A § 3(a). O'Brien
argues that the indictment did not sufficiently allege violations
of the Massachusetts gratuities statute and that the evidence
proffered at trial was insufficient to establish the gratuity
violations charged.
The Massachusetts gratuities statute penalizes those who
give illegal gratuities to officials, id., as well as officials
who receive illegal gratuities, id. § 3(b). Here, the Government
sought to prove that O'Brien "knowingly . . . offer[ed] or
promis[ed] anything of substantial value" to a public official
"for or because of any official act performed or to be performed"
by that official. Id. § 3(a).5
5 The federal gratuities statute, 18 U.S.C. § 201, contains
language similar to that of its state analogue, and, as a result,
Massachusetts courts "look to Federal law for guidance in
construing § 3(a) and (b)." Scaccia v. State Ethics Comm'n, 727
-17-
A gratuity may be given as "a reward for past action, to
influence an official regarding a present action, or to induce an
official to undertake a future action." Scaccia, 727 N.E.2d at
828-29. Mere proof of the public official's position is
insufficient to demonstrate an "official act" under the statute:
"[t]he insistence upon an 'official act,' carefully defined, seems
pregnant with the requirement that some particular official act be
identified and proved." United States v. Sun-Diamond Growers of
Cal., 526 U.S. 398, 406 (1999). "[T]he government must 'prove a
link between a thing of value conferred upon a public official and
a specific 'official act' for or because of which it was given.'"
Scaccia, 727 N.E.2d at 828 (quoting Sun-Diamond Growers of Cal.,
526 U.S. at 414).
In that vein, the Government cannot show the requisite
linkage merely by demonstrating that the gratuity was given "to
build a reservoir of goodwill that might ultimately affect one or
more of a multitude of unspecified acts, now and in the future."
Sun-Diamond Growers of Cal., 526 U.S. at 405. Recognizing that
direct evidence of these sorts of violations may be difficult to
obtain, Massachusetts courts accept "evidence regarding the
subject matter of pending legislation and its impact on the giver,
N.E.2d 824, 828 (Mass. 2000). Accordingly, we reference both state
and federal law in our analysis.
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the outcome of particular votes, the timing of the gift, or changes
in a voting pattern" to demonstrate the requisite linkage.
Scaccia, 727 N.E.2d at 829. We bypass the question of whether the
indictment sufficiently alleged violations of Mass. Gen. Laws
ch. 268A § 3 and turn to whether the Government presented
sufficient evidence that O'Brien violated the statute.6 We
conclude that it did not.
The Government groups the predicate acts into two
categories: the Kathleen Petrolati predicate act (Act 44(b)) and
the 2007-2008 Electric Monitoring Program ("ELMO") Appointments
predicate acts (Acts 45(b)-51(b), 53(b)). Both categories of
predicate acts relate to a series of temporary hires for purposes
of the ELMO program. In 2006, the Massachusetts legislature passed
a new law providing for mandatory electronic monitoring of sex
offenders. In 2007 and 2008, OCP received additional funding for
new hires to implement the monitoring system. O'Brien proposed
that these individuals be hired on a temporary basis. According
to Mucci, the appointments were designated as temporary so that
O'Brien could "get people hired without going through the hiring
process and the interviewing process." O'Brien gave Mucci names
6 Likewise, we address only the sufficiency of the evidence (as
opposed to the sufficiency of the indictment) for the remaining
claims addressed herein.
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of individuals and instructions to offer them ELMO positions. The
individuals did not interview with anyone at the OCP prior to
receiving an offer.
The Government's evidence as to the gratuities
predicates does not show adequate linkage between the thing of
"substantial value" conferred by O'Brien (the jobs) and an
"official act" performed or to be performed. See Life Ins. Ass'n
of Mass., Inc. v. State Ethics Comm'n, 727 N.E.2d 819, 820-21
(Mass. 2000) (remanding to the State Ethics Commission to "make
adequate findings on whether there was . . . any link to a specific
act"); Commonwealth v. Vázquez, 870 N.E.2d 656, 663 (Mass. App.
Ct. 2007). Many of the Government's arguments are predicated on
bootstrapping: because O'Brien was constantly conferring with
legislators and hiring based on legislative preferences, any
"official act" taken by an affected legislator must satisfy the
nexus requirement. But we do not read the gratuities statute so
broadly: the Supreme Court in Sun-Diamond "offered a strictly
worded requirement that the government show a link to a 'specific
official act' to supply a limiting principle that would distinguish
an illegal gratuity from a legal one," a principle unnecessary "in
the extortion or bribery contexts." United States v. Ganim, 510
F.3d 134, 146 (2d Cir. 2007). Given a choice between treating a
gratuities statute as "a meat axe or a scalpel," the Supreme Court
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chose the latter, and we follow suit. Sun-Diamond Growers of Cal.,
526 U.S. at 412; see also Valdes v. United States, 475 F.3d 1319,
1323 (D.C. Cir. 2007) ("Sun-Diamond's interpretive gloss, like the
rule of lenity, thus works to protect a citizen from punishment
under a statute that gives at best dubious notice that it has
criminalized his conduct.").
1. The Petrolati Predicate Act
The Government contended that Kathleen Petrolati's
husband, Massachusetts House Representative Thomas Petrolati,
proposed a budget amendment in April 2000 that would increase
funding for positions in OCP, adding two program managers, two
court service coordinators, and ten assistant court service
coordinators. O'Brien, in turn, appointed Representative
Petrolati's wife, Kathleen Petrolati, as a program manager in the
ELMO program in November 2000. That spring, the OCP had funding
to add the positions specified in the budget amendment.
The Government asserts that the jury could infer the
necessary link based on Representative Petrolati's sponsorship of
the budget amendment and his wife being appointed a program
manager. But seven months passed between these two events, and
there was no evidence that O'Brien knew of Representative
Petrolati's connection to the budget amendment or that
Representative Petrolati had "change[d]" his "voting pattern" in
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anticipation of his wife's hire. Scaccia, 727 N.E.2d at 829. To
the contrary, Representative Petrolati also sponsored amendments
appropriating money to courts across Western Massachusetts.
2. The ELMO Appointments Predicate Acts
For the ELMO Appointments predicate acts, the Government
sought to show that O'Brien "gave" ELMO appointments to
Representative Robert DeLeo, then Chairman of the House Ways and
Means Committee, to garner support for DeLeo's run for Speaker of
the House, and that DeLeo then offered various legislators the
opportunity to appoint individuals for these positions in exchange
for their voting for DeLeo. In addition, in September 2007, after
O'Brien had appointed several ELMO candidates referred through
DeLeo's office, O'Brien met with DeLeo to propose legislation that
would curtail the CJAM's oversight over O'Brien's appointments,
grant O'Brien life tenure, and fix his salary at $1,000 per year
below that of the CJAM.
The Government contends that one of the "official acts"
was an amendment that O'Brien proposed at a meeting with DeLeo
that would have made O'Brien the effective czar of probation. Yet
the Government fails to explain how this meeting is linked to the
ELMO hires or specify to which ELMO hires it relates, instead
vaguely noting that O'Brien had appointed "two or three" referrals
for ELMO positions by the time of the meeting.
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Further, the Government did not prove that DeLeo took
any action on O'Brien's proposals, or that O'Brien pressured DeLeo
to do so "for or because of" a specific ELMO hire. "Official act"
is defined as "any decision or action in a particular matter or in
the enactment of legislation." Mass. Gen. Laws ch. 268A § 1(h).
The Supreme Court recently explained that an "official act,"
similarly defined under 18 U.S.C. § 201(a)(3),7 requires more than
mere discussion:
[H]osting an event, meeting with other
officials, or speaking with interested parties
is not, standing alone, a 'decision or action'
within the meaning of § 201(a)(3), even if the
event, meeting, or speech is related to a
pending question or matter. Instead,
something more is required: § 201(a)(3)
specifies that the public official must make
a decision or take an action on that question
or matter, or agree to do so.
McDonnell v. United States, 136 S. Ct. 2355, 2370 (2016).
All the Government demonstrated, however, is that
O'Brien and DeLeo met. The evidence does not show, for example,
that DeLeo subsequently introduced a bill based on either of
O'Brien's proposals or took some official act with respect to such
a bill proposed by another legislator. The Government also
7 "[A]ny decision or action on any question, matter, cause, suit,
proceeding or controversy, which may at any time be pending, or
which may by law be brought before any public official, in such
official's official capacity . . . ."
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identifies no particular statements that O'Brien or DeLeo made
about the proposals, or other evidence about that meeting, from
which a jury might reasonably infer what specific official act, if
any, O'Brien was trying to induce DeLeo to take. Thus, the
evidence reveals no specific official act -- either taken by DeLeo
or merely sought from him -- to which we could apply the Scaccia
factors to determine its possible link to the "two or three" ELMO
appointments. The evidence therefore does not support a finding
that the "official act" requirement was met, or that it was linked
to the gratuity.
The Government also contends that the ELMO hires
correlate to an "official act" in that O'Brien gave DeLeo's office
referral opportunities to pass on to legislators to build support
for the Speaker's race. Edward Ryan, DeLeo's legislative liaison,
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
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would undertake.8 The Government does not explain, however, how
other legislators' votes for DeLeo could qualify as DeLeo's
official acts. And no such explanation occurs to us.
The evidence shows at most that O'Brien gave DeLeo
control over the ELMO appointments to enable DeLeo to round up
votes from other legislators. Such evidence may suffice to show
8 Specifically, the district court instructed the jury:
Now here's what they've got to prove for an
illegal gratuity. That Mr. O'Brien gave a
thing of value to a public official. Now here
he doesn't have to have the agreement with Mr.
DeLeo and going after the state
representatives, here he would give this right
of selection, this right of appointment, to
Mr. DeLeo. Mr. DeLeo is a public official.
All right. And the second thing they've got
to prove is that the reason Mr. O'Brien did
that, if you believe he did do it, he did it
for or on account of some specific act to be
performed by that official.
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.
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that O'Brien gave the ELMO appointments to DeLeo to facilitate his
path to power in the state house, in the hope that, by building up
a "reservoir of goodwill" with DeLeo, the future speaker would use
his power to benefit the Probation Department's budget.9 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-
Diamond Growers of Cal., 526 U.S. at 405-08; Scaccia, 727 N.E.2d
at 828. We therefore do not interpret the Massachusetts gratuities
statute to reach the conduct described here.
B. 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
under 18 U.S.C. § 1341, the Government must prove: "(1) a scheme
to defraud based on false pretenses; (2) the defendant's knowing
and willing participation in the scheme with the intent to defraud;
and (3) the use of interstate mail communications in furtherance
of that scheme." United States v. Hebshie, 549 F.3d 30, 35-36
9 We note, however, that Representative Eric Rice testified that
he received the opportunity to refer an individual for the ELMO
position "a year or more" before the Speaker's race, previously
had recommended individuals for public and private sector
positions, and did not understand the referral to be contingent on
his vote for DeLeo. This testimony is consistent with the
responses of other legislators invited to make ELMO referrals.
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(1st Cir. 2008) (internal formatting omitted) (quoting United
States v. Cheal, 389 F.3d 35, 41 (1st Cir. 2004)). The jury found
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
Tavares now challenge their mail fraud convictions on multiple
fronts, contending that the indictment was insufficient to support
the mail fraud allegations and the evidence insufficient to support
their convictions. Among other things, they contend that the
Government did not demonstrate that the mailings were "in
furtherance" of the hiring scheme.
"The federal mail fraud statute does not purport to reach
all frauds, but only those limited instances in which the use of
the mails is a part of the execution of the fraud, leaving all
other cases to be dealt with by appropriate state law." Schmuck
v. United States, 489 U.S. 705, 710 (1989) (quoting Kann v. United
States, 323 U.S. 88, 95 (1944)). "[T]he mailing must be 'for the
purpose of executing the scheme, as the statute requires.'" United
States v. Maze, 414 U.S. 395, 400 (1974) (quoting Kann, 323 U.S.
at 94). A mailing furthers a fraudulent scheme if it is, inter
alia, "designed to lull the victims into a false sense of security,
postpone their ultimate complaint to the authorities, and
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therefore make the apprehension of the defendants less likely than
if no mailings had taken place." Id. at 403.
The mailing requirement is interpreted broadly, however,
and "the use of the mails need not be an essential element of the
scheme." Schmuck, 489 U.S. at 710. Rather, the charged mailing
need only be "incident to an essential part of the scheme."
Hebshie, 549 F.3d at 36 (quoting Pereira v. United States, 347
U.S. 1, 8 (1954)). Further, "the defendant need not personally
mail anything so long as it is reasonably foreseeable that the
mails will be used in the ordinary course of business to further
the scheme." United States v. Cacho-Bonilla, 404 F.3d 84, 90 (1st
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
determining whether the Government proved the mailing element, "we
look to see 'whether, after assaying all the evidence in the light
most amiable to the government, and taking all reasonable
inferences in its favor, a rational factfinder could find, beyond
a reasonable doubt, that the prosecution successfully proved the
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essential elements of the crime.'" United States v. Soto, 799
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. Hebshie, 549 F.3d at 35-36. The
Government points to form rejection letters that OCP staff mailed
to unsuccessful applicants, typically after the final candidates
were selected,10 to satisfy the mailing requirement. These
mailings fulfilled a requirement in the Manual that "[a]pplicants
who are not selected for appointment must be notified in writing
that they have not been selected." The Government argues that
such rejection letters in a corrupt hiring system satisfy § 1341's
mailing element where they help to maintain a facade of a merit-
based system. See United States v. Sorich, 523 F.3d 702, 714 (7th
Cir. 2008) (determining that rejection letters "lent a false air
of propriety and regularity to the city's hiring process"); see
10 Some of the rejection letters were mailed before Judge Mulligan
approved the person eventually hired. The defendants contend that
all letters were nevertheless mailed after the scheme reached its
fruition, while the Government asserts that the scheme was not
complete until Judge Mulligan gave his final approval. Regardless
of the exact timing of the mailings, there is no evidence that the
letters were material to the consummation of the defendants'
scheme. See Kann, 323 U.S. at 94 ("It was immaterial to [the
defendants], or to any consummation of the scheme, how the bank
which paid or credited the check would collect from the drawee
bank.").
-29-
also United States v. Fernández, 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
Government presented no evidence that would allow the jury to infer
that the rejection letters in this case served this duplicitous
function. Had unsuccessful applicants received no notice, they
may have assumed they were not hired or else called OCP to check
their status. The Government identifies language in the rejection
letters stating that "[t]he selection of the final candidate was
a difficult process" and that the deputy commissioners "were very
impressed with [the recipients'] qualifications" to demonstrate
that the letters were intended to convince rejected candidates
that their selection was based on merit. We are not convinced
that such vague platitudes, hallmarks of any rejection letter,
sufficiently demonstrate that the rejections had any real tendency
to convey a merit-based selection system.
In arguing to the contrary, the Government points to
this circuit's decision in United States v. Cacho-Bonilla, 404
F.3d 84 (1st Cir. 2005) –– a case in which we found the "connection
between the scheme and the mailing . . . unusually thin" and
observed that "the [mail fraud] count would better have been
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omitted," id. at 90. In Cacho-Bonilla, the defendants were
convicted of mail fraud for their involvement in a scheme where
they misused federal funds provided to their non-profit
corporation, Acción Social de Puerto Rico, Inc. ("ASPRI"). Id. at
87. The defendants submitted monthly reports reflecting
fraudulent markups to a state agency. Id. at 90. The agency then
compiled the reports into summaries and sent the summaries, by
mail, to the Department of Health and Human Services ("HHS"). Id.In determining that these reports satisfied the mailing
requirement, this court explained:
Much of the scheme . . . depended upon the
continuation of federal funding for ASPRI. In
turn, the submission (by mail) of ASPRI data
to HHS's data collection entity perpetuated
the relationship that kept funds flowing to
ASPRI . . . . So viewed, the perpetuation was
essential to the scheme and the mailing was
incidental to that perpetuation.
Id. at 91. Similarly, in United States v. Hebshie, 549 F.3d 30(1st Cir. 2008), we found that a reservation-of-rights letter sent
to a defendant after he submitted a fraudulent insurance claim was
sufficient under § 1341, describing the letter as "part of 'the
criss-cross of mailings that would reasonably be expected when
false claims are submitted to insurance companies, are processed,
and are ultimately paid, thereby making the fraud successful.'"
Id. at 38 (quoting United States v. Morrow, 39 F.3d 1228, 1237
(1st Cir. 1994)).
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In both Cacho-Bonilla and Hebshie, however, the mailing
was part of an ongoing relationship –– whether between ASPRI and
its source of federal funds or between the fraudster and the
defrauded insurance company –– necessary to effectuate the fraud.
The Supreme Court's decision in Schmuck v. United States, 489 U.S.
705 (1989), is instructive. In Schmuck, the Court upheld the mail
fraud conviction of a used-car distributor who rolled back the
odometers on cars and sold those cars at artificially inflated
prices to dealers, who in turn resold the cars to customers. Id.
at 707, 722. The retail sellers' submission of title-application
forms to the state Department of Transportation on behalf of their
customers satisfied the mailing requirement. Id. at 707. The
Court found that the registration-form mailings, which "may not
have contributed directly to the duping of either the retail
dealers or the customers, . . . were necessary to the passage of
title." Id. at 712. And the passage of title "was essential to
the perpetuation of [the] scheme," id., because "the success of
[the] venture depended upon [the defendant's] continued harmonious
relations with, and good reputation among, retail dealers, which
in turn required the smooth flow of cars from the dealers to their
. . . customers," id. at 711–12.
Here, in contrast, the Government has presented no
evidence that the continued relationship between the OCP and
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rejected applicants was of any consequence. Nor has the Government
produced evidence that the rejection letters furthered any
relationship –– say, between the OCP and Judge Mulligan –– that
was of consequence, or facilitated O'Brien's ability to make
appointments or to receive approval for those appointments.
Instead, the Government reasons that the letters tended
to perpetuate the scheme by making the rejected applicant less
likely to call to inquire as to his status, thereby making it less
likely that such a call might lead to some inquiry that would
uncover the scheme. Even though employers need not -- and often
do not -- send rejection letters to unsuccessful applicants, we
will assume that the Government is correct that sending the letters
decreased the odds that rejected applicants would call to learn
their status. But the second part of the Government's nexus
hypothesis (i.e., that such calls may have led to discovery of the
scheme) rests on nothing more than rank speculation. The
Government's evidence provided no plausible mechanism by which a
call from a rejected applicant asking about his or her status would
lead to the discovery of the scheme. Nor has the Government
demonstrated that sending the letters meaningfully decreased the
likelihood that some other party would have uncovered the hiring
scheme. And while the mailing was certainly incidental to
providing a courtesy to unsuccessful applicants, providing such a
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courtesy was not sufficiently tied to the defendants' interest in
perpetrating the scheme because it furthered neither the
perpetration nor the perpetuation of the scheme. None of the
remaining cases cited by the Government are factually analogous to
the case before us, and they do not require us to find that these
rejection letters were sent "in furtherance of" the defendants'
scheme.
Racketeering predicate acts fourteen and seventeen
involved mailings other than rejection letters. Predicate act
fourteen involved a copy of a letter that Judge Mulligan sent
O'Brien approving charged-hire Douglas MacLean's appointment. The
Government contends that the mailing requirement was satisfied
because the Chief Probation Officer that would be working with
MacLean received a copy of this appointment letter by mail, and
Judge Mulligan's written approval was required before MacLean
could begin his employ. But we know nothing about why the letter
was mailed to the Chief Probation Officer in this instance. To be
sure, "[t]he 'in furtherance' requirement is to be broadly read
and applied." Hebshie, 549 F.3d at 36. Section 1341's mailing
requirement, however, places an important limitation on federal
authority. See Kann, 323 U.S. at 95.
Congress could have drafted the mail fraud
statute so as to require only that the mails
be in fact used as a result of the fraudulent
scheme. But it did not do this; instead, it
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required that the use of the mails be "for the
purpose of executing such scheme or artifice."
Maze, 414 U.S. at 405 (footnote and alteration omitted). 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. Accordingly, we need not
address whether the evidence of a mailed application is sufficient
to 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." United States v. Sutton, 970 F.2d
11 Because there was insufficient evidence of mailings in
furtherance of the scheme to defraud, we need not decide at what
point evidence of a corrupt process can demonstrate a deprivation
of property.
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1001, 1005 (1st Cir. 1992). But, as we have previously cautioned,
jury questioning "should be reserved for exceptional situations,
and should not become the routine, even in complex cases." United
States v. Cassiere, 4 F.3d 1006, 1017 (1st Cir. 1993). Here,
jurors submitted 281 questions, and the district court posed 180
of them to witnesses. That means that, over thirty-five days of
testimony, eight questions were submitted and five questions asked
per day on average. This volume of questions is far beyond
anything approved of in this Circuit12 and suggests that the
district court allowed juror questions to become routine rather
than an exception.
Furthermore, the content of many of the questions jurors
asked is troubling. Juror questions should serve the limited
purpose of clarification, see id. at 1017, and they should be a
"long-odds exception" reserved for the most critical points,
Sutton, 970 F.2d at 1005. Here, though, the trial judge told the
jurors that their questions should be guided by whether "the lawyer
gets out what interests you from the witness." This invitation to
go beyond seeking clarification led to questions (allowed over
objection) like whether "some candidate [did] not make the list
12 By comparison, "Sutton involved seven jury questions the court
asked during a 2 ½ day trial," while "[Cassiere] involve[d] eleven
questions asked during a 24-day trial." Cassiere, 4 F.3d at 1017.
-36-
because recommended names were on the list" and "Why did you change
James Rush's score." Juror questions of this type elicited not
just clarifications but gap-filling evidence.13 "[I]n a jury trial
the primary finders of fact are the jurors. Their overriding
responsibility is to stand between the accused and a potentially
arbitrary or abusive Government that is in command of the criminal
sanction." United States v. Martin Linen Supply Co., 430 U.S.
564, 572 (1977). If a district court allows jurors to ask
questions, it must ensure that the jurors do not turn into fact
gatherers rather than factfinders by exceeding the bounds
delineated in Sutton and Cassiere.
III.
We find the evidence insufficient to support the
defendants' convictions and order the entry of judgments of
acquittal.
So ordered.
13 For example, (although without objection) jurors posed multiple
questions to OCP employees concerning how those employees ranked
candidates or whether they passed over unqualified candidates.
Similarly, jurors questioned why certain witnesses went along with
the scheme, or did not report their concerns about the hiring
process.
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