United States v. Burhoe

United States Court of Appeals
For the First Circuit
Nos. 15-1542,
15-1612
UNITED STATES OF AMERICA,
Appellee,
v.
JOSEPH BURHOE, a/k/a Jo Jo,
and JOHN PERRY,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Denise Jefferson Casper, U.S. District Judge]
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Miriam Conrad, Chief, Federal Public Defender, with whom
Judith H. Mizner, Assistant Federal Public Defender, was on brief,
for appellant Burhoe.
Michael R. Schneider, with whom Jeffrey G. Harris and Good
Schneider Cormier were on brief, for appellant Perry.
Ross B. Goldman, Criminal Division, Appellate Section, 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, Randall E. Kromm,
Assistant United States Attorney, Laura Jean Kaplan, Assistant
United States Attorney, and Susan G. Winkler, Assistant United
States Attorney, were on brief, for appellee.
September 8, 2017
INDEX
INDEX....................................................... 2-3
INTRODUCTION................................................ 4
I. BACKGROUND............................................... 5
II. HOBBS ACT OVERVIEW...................................... 7
A. The Hobbs Act and Labor Law......................... 7
B. "Wrongful".......................................... 9
C. "Property"......................................... 13
III. EXTORTION OF NONUNION COMPANIES....................... 15
A. Background......................................... 15
1. Four Pints.................................... 15
2. Brigham and Women's Hospital.................. 17
3. U.S. Green Building Council & Wolfgang Puck
Catering...................................... 17
4. Great Bridal and Westin Waterfront Hotel...... 19
5. Massachusetts General Hospital................ 19
B. Analysis........................................... 20
IV. EXTORTION OF UNION MEMBERS............................. 43
A. Background......................................... 44
1. Edward Flaherty............................... 45
2. James Lee..................................... 47
3. Robert Wellman................................ 48
4. 2009 CBA vote................................. 49
B. Analysis........................................... 50
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1. LMRDA Rights.................................. 50
2. Wages and Benefits............................ 53
a. Property................................. 53
b. Consent.................................. 59
c. Threats.................................. 61
V. RACKETEERING AND REMAINING CONSPIRACY COUNTS............ 66
VI. PROHIBITION AGAINST CERTAIN PERSONS HOLDING OFFICE..... 69
VII. CONCLUSION............................................ 75
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TORRUELLA, Circuit Judge. This case involves an attempt
by the federal government to use the Hobbs Act to police the
activities of members of a labor union. Joseph Burhoe and John
Perry, who are union members, challenge the sufficiency of the
evidence of their convictions for, inter alia, extortion under the
Hobbs Act, as well as the jury instructions with respect to that
offense. The government attempted to prove that the defendants
extorted property from nonunion companies when they threatened to
take certain actions, including picketing, if those companies did
not give union members jobs. The government further charged that
the defendants extorted wages, benefits, and rights to democratic
participation within the union from their fellow union members.
We sustain the convictions of both defendants on count
29 under 29 U.S.C. § 504(a). We vacate the conviction for
extortion of a nonunion company on count 4 and remand for a new
trial because the jury instructions allowed the jury to convict
upon a finding that the work performed was merely unwanted. On
all other counts, we reverse the convictions.
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I. BACKGROUND1
This case is factually complex. We therefore will
initially set out only the most basic relevant facts and leave to
later sections a more detailed exposition.
Teamsters Local 82 ("Local 82" or "the Union") was a
division of the International Brotherhood of Teamsters
("Teamsters") located in South Boston. Its members worked at
trade shows and other events in Boston. This work included
bringing in materials and setting up events ("load-in") and
dismantling and removing materials from events ("load-out"). Most
of the work occurred at the Hynes Convention Center and the Boston
Convention and Exhibition Center, both of which require the use of
union labor. Three local companies dominated the trade show
industry: Freeman Decorating Services, Champion Exposition
Services, and Greyhound Exposition Services. The Union negotiated
Collective Bargaining Agreements ("CBAs") with those companies.
The Union also sought work at locations that did not have CBAs
with the Union, including area hotels. Local 82 had a unit called
1 When we evaluate an appeal from the denial of a motion for
acquittal we examine the evidence in the light most favorable to
the verdict. United States v. Sturm, 870 F.2d 769, 770 (1st Cir.
1989); see also United States v. Pérez-Meléndez, 599 F.3d 31, 40
(1st Cir. 2010).
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the "strike unit" that would pursue jobs with employers currently
using nonunion labor.
The indictment at issue here covers a period between
2007 and 2011. The Union had approximately 600 members during
this time period. During this time the head of Local 82 was John
Perry. Joseph Burhoe became a member of Local 82 in 1987, but was
inactive for many years until he resumed active participation in
2007. He held no official position within the Union but was seen
by many union members to be Perry's right-hand man. Perry and
Burhoe were charged with extorting nonunion employers and other
union members in a thirty-count indictment.2 They were also both
charged with violating a prohibition against persons with certain
criminal convictions serving in particular capacities within the
Union. They were jointly tried in a trial that lasted over six
weeks. Burhoe and Perry were each found guilty of racketeering,
racketeering conspiracy, conspiracy to extort and extortion of
nonunion companies and union members, and serving (or allowing a
person to serve, respectively) in a prohibited union capacity.
2 Two other union members were also charged in the indictment.
One, Thomas Flaherty was acquitted on all counts. The second,
James Deamicis, was acquitted on some counts and had a hung jury
on the balance. He was later tried and convicted of some counts.
His appeal is separately pending.
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II. HOBBS ACT OVERVIEW
The Hobbs Act provides in pertinent part:
Whoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or
commodity in commerce, by robbery or extortion or
attempts or conspires so to do, or commits or
threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in
violation of this section shall be fined under this
title or imprisoned not more than twenty years, or
both.
18 U.S.C. § 1951(a). This same Act defines "extortion" as "the
obtaining of property from another, with his consent, induced by
wrongful use of actual or threatened force, violence, or fear, or
under color of official right." Id. § 1951(b)(2).
A. The Hobbs Act and Labor Law
The Hobbs Act explicitly states that its provisions do
not "repeal, modify or affect" certain labor law provisions,
including the National Labor Relations Act ("NLRA"). 18 U.S.C.
§ 1951(c); see also 29 U.S.C. §§ 151-166. The NLRA "is a
comprehensive code passed by Congress to regulate labor relations
in activities affecting interstate and foreign commerce."
Tamburello v. Comm-Tract Corp., 67 F.3d 973, 976 (1st Cir. 1995)
(quoting Nash v. Fla. Indus. Comm'n, 389 U.S. 235, 238 (1967)).
It "reflects congressional intent to create a uniform, nationwide
body of labor law interpreted by a centralized expert agency --
the National Labor Relations Board (NLRB). Accordingly, the NLRA
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vests the NLRB with primary jurisdiction over unfair labor
practices." Id.The Supreme Court has held that "[w]hen an activity is
arguably subject to § 7 or § 8 of the [NLRA], the States as well
as the federal courts must defer to the exclusive competence of
the National Labor Relations Board if the danger of state
interference in national policy is to be averted." Id. (quoting
San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 245
(1959)). This is known as Garmon preemption and is generally
taken to mean that when there is a question of how § 7 or § 8 of
the NLRA should be interpreted, the NLRB's interpretations of that
Act control. See Chaulk Servs., Inc. v. Mass. Comm'n Against
Discrimination, 70 F.3d 1361, 1364-65 (1st Cir. 1995).
Of central concern, under this doctrine, is the desire
"to shield the system from conflicting regulation of conduct."
Id. at 1365.3 In United States v. Enmons, 410 U.S. 396 (1973),
the Supreme Court cited to Garmon in narrowly construing the Hobbs
3 Garmon preemption does not preclude the states from regulating
criminal or tortious conduct that is of "merely peripheral" concern
to federal labor policy or that touches a state's compelling
interest "in the maintenance of domestic peace." Garmon, 359 U.S.
at 243, 247. Rather, as the Court explained in Garmon, if Congress
wishes for the federal labor laws to preempt such state regulation,
it must clearly say so. Id. at 247.
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Act so as to avoid creating a conflict with federal labor law.
Id. at 411.
B. "Wrongful"
We are of the view that the resolution of issues inherent
in the overlap between the Hobbs Act and labor law (and its limits)
is guided, at least in part, by Enmons. There, violence had
"erupted" during the course of a lawful strike aimed at compelling
an employer to accept certain provisions providing for higher wages
in a CBA that was under negotiation. United States v. Enmons, 335
F. Supp. 641, 643 (E.D. La. 1971). While the violence was
undoubtedly unlawful, the question before the Court was whether
that violence qualified as Hobbs Act extortion when the end sought
(higher wages through agreement to certain terms in a CBA) by means
of an otherwise lawful strike was a legitimate labor objective
under the labor union laws.
The Supreme Court stated that the term "wrongful," as
included in the Hobbs Act's definition of extortion, "has meaning
in the Act only if it limits the statute's coverage to those
instances where the obtaining of the property would itself be
'wrongful' because the alleged extortionist has no lawful claim to
that property." Enmons, 410 U.S. at 400. Instances that the
Court cited included "where union officials threatened force or
violence against an employer in order to obtain personal payoffs,"
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and "where unions used the proscribed means to exact 'wage'
payments from employers in return for 'imposed, unwanted,
superfluous and fictitious services' of workers." Id. (internal
citations omitted). Enmons states that the Hobbs Act does not
apply, however, to
the use of violence to achieve legitimate union
objectives, such as higher wages in return for genuine
services which the employer seeks. In that type of
case, there has been no "wrongful" taking of the
employer's property; he has paid for the services he
bargained for, and the workers receive the wages to
which they are entitled in compensation for their
services.
Id.Thus, Enmons arguably could be read to say that what
constitutes a "wrongful" taking by a labor union or its members,
such that it would constitute "extortion" under the Hobbs Act,
necessarily depends on whether the ends are "legitimate union
objectives" as defined in the labor laws. And thus, under Enmons,
conduct arguably is not "wrongful" under the Hobbs Act when taken
in pursuit of a legitimate labor objective, even if "force,
violence, or fear" is used to carry it out. 18 U.S.C.
§ 1951(b)(2).
In the wake of Enmons, however, a number of courts,
including our own, have questioned whether Enmons's analysis of
the importance of the legitimacy of the end sought to the
"wrongful" inquiry should be applicable beyond cases in which
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violence occurs during a lawful strike to obtain a collective
bargaining agreement. See United States v. Porcaro, 648 F.2d 753,
759-60 (1st Cir. 1981) (distinguishing Enmons in part on the ground
that it is "a labor case dealing with the unique problem of strike
violence"); see also United States v. Debs, 949 F.2d 199, 201 (6th
Cir. 1991) (noting that "Enmons has not been extended beyond its
own facts" and declining to hold that "because some illegality in
union activity is justifiable every illegality . . . must also be
within the orbit of Enmons"); United States v. Jones, 766 F.2d
994, 1002 (6th Cir. 1985) (reserving the question of whether Enmons
applies "to the use of violence outside of the collective
bargaining context and in pursuit of goals other than higher
wages"); United States v. Cerilli, 603 F.2d 415, 419 (3d Cir. 1979)
("The Court's reasoning [in Enmons] was obviously and explicitly
tied to the labor context and more specifically to the strike
context. Any application of Enmons to cases outside of that
context must be done with caution.").
Setting aside the issue of "wrongful" ends on which
Enmons itself turned, there is also another principle in play --
namely, that the means used to obtain the end must also be
"wrongful." United States v. Kattar, 840 F.2d 118, 123 (1st Cir.
1988). The Hobbs Act references the means used to obtain property
through the phrase "actual or threatened force, violence, or fear."
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18 U.S.C. § 1951(b)(2). The meaning of that phrase has been
developed from a broad range of subsequent Hobbs Act cases and is
not unique to situations involving labor unions. The threat may
be explicit or implied. Sánchez v. Triple-S Mgmt. Corp., 492 F.3d
1, 13 (1st Cir. 2007); United States v. Rivera-Rangel, 396 F.3d
476, 484 n.7 (1st Cir. 2005). With respect to the use of fear,
"[w]hat is required is evidence that the defendant knowingly and
willfully created or instilled fear, or used or exploited existing
fear with the specific purpose of inducing another to part with
property." United States v. Coppola, 671 F.3d 220, 241 (2d Cir.
2012) (citations omitted).
With respect to whether such means are "wrongful," we
have made clear that the use of actual or threatened violence or
force is "inherently wrongful," United States v. Sturm, 870 F.2d
769, 773 (1st Cir. 1989), as is the use of fear of physical harm.
Kattar, 840 F.2d at 123. Fear of economic loss, however, is also
a type of fear. Rivera-Rangel, 396 F.3d at 483. But because
fear of economic harm is a part of many legitimate business
transactions, see Brokerage Concepts, Inc. v. U.S. Healthcare,
Inc., 140 F.3d 494, 503, 509 (3d Cir. 1998), the use of economic
fear is not necessarily "wrongful" for Hobbs Act purposes.
Kattar, 840 F.2d at 123. The use of economic fear is rendered
wrongful under the Hobbs Act, however, "when employed to achieve
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a wrongful purpose." Id. (quoting United States v. Clemente, 640
F.2d 1069, 1077 (2d Cir. 1981)). Thus, we have held that "the use
of legitimate economic threats" to procure property is "wrongful"
under the Hobbs Act "only if the defendant has no claim of right
to that property" and knew as much. Sturm, 870 F.2d at 773-74.
C. "Property"
Also at issue in this case is how the Hobbs Act defines
property. The indictment in this case alleges that each defendant
extorted fellow union members of (1) wages and benefits and (2)
rights to participate in union affairs.
The Supreme Court has refined the property element of
the Hobbs Act by focusing on the word "obtain," emphasizing that
extortion under the Act requires not only that a victim be deprived
of his or her property, but also that the perpetrator acquire it.
Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 403-404
(2003). Thus, in order to commit Hobbs Act extortion an individual
"must 'obtain' property from another party." Id. at 404.
Scheidler involved allegations that a group of anti-abortion
activists committed various acts in attempts to "shut down"
abortion clinics. Id. at 398. There was no dispute that this
group "interfered with, disrupted, and in some instances
completely deprived respondents of their ability to exercise their
property rights" in various ways including via criminal acts. Id.-13-
at 404. However, the Supreme Court held that these acts were not
extortion because even when the activists succeeded at "shutting
down" an abortion clinic, they "did not 'obtain' [the clinic's]
property" and they "neither pursued nor received 'something of
value from' respondents that they could exercise, transfer, or
sell." Id. at 405 (quoting United States v. Nardello, 393 U.S.
286, 290 (1969)).
The Court found that if the requirement that the property
be obtained were eliminated, the result would be to collapse the
distinctions between extortion and the "separate crime of
coercion." Id. Coercion involves "the use of force or threat of
force to restrict another's freedom of action" and, at the time
the Hobbs Act was passed by Congress, was seen "as a separate, and
lesser, offense than extortion." Id. The fact that when Congress
drafted the Hobbs Act it omitted coercion provides strong evidence
that the lesser offense (coercion) was not to be included within
the meaning of the greater offense (extortion) in the Hobbs Act.
Id. at 406.
The Court further refined this definition in Sekhar v.
United States, holding that obtaining property "requires that the
victim 'part with' his property and that the extortionist 'gain
possession' of it." 133 S. Ct. 2720, 2725 (2013) (quoting
Scheidler, 537 U.S. at 403 n.8) (internal citation omitted). The
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key, according to Sekhar, is that "[t]he property extorted must
therefore be transferable -- that is, capable of passing from one
person to another." Id. at 2725.
III. EXTORTION OF NONUNION COMPANIES
A. Background
Burhoe and Perry each faced numerous counts of alleged
extortion of nonunion companies. In each instance the indictment
specified that the defendants had extorted
money to be paid as wages for imposed, unwanted, and
unnecessary and superfluous services; with the
consent of [the company], its officers and other
agents, which consent was induced by the wrongful use
of fear of economic and physical harm to [the company]
and others, in order to obtain wages for such imposed,
unwanted, and unnecessary and superfluous services
for themselves, their friends and family members.
Burhoe was found guilty of four separate counts of extorting
nonunion companies while Perry was found guilty of one.
1. Four Pints4
Four Pints ran for-profit beer tasting events at the
Boston Park Plaza Castle, a local hotel. Four Pints had no
employees beyond the three owners and used volunteers organized by
a now-defunct charity, Hugs and Halos, to set up events. The
charity received a donation from Four Pints in addition to tips
earned during the event. The volunteers Hugs and Halos provided
4 Burhoe: Racketeering Act 2, Count 4.
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were typically college students who received a t-shirt and free
food and beer in exchange for their help.
The previous owner of Four Pints had told his successors
that Local 82 had a dispute with the hotel over the use of nonunion
labor at events. He told them that he paid union workers for
their events, but apparently provided few details of the agreement.
During set up of a show in September 2008, Burhoe and another man
came to speak with Conor Brennan, one of the new owners. Burhoe
told Brennan that they needed to use union workers. The
conversation escalated and became heated. Burhoe's tone was
described as "harsh and aggressive."
Another owner, Shawn Rich, testified that it was his
understanding that Burhoe "wanted work," that union members showed
up to work but that he never saw them do any work. Brennan
testified that they did no work and he did not expect them to
perform any work. Both Rich and Brennan testified that they
believed that if they did not hire some union workers the union
would picket. They believed a picket would hurt their show and
was a "risk we really didn't want to take." The union workers
were paid with checks, although the payee's name was always left
blank. Payments were made approximately six or seven times over
a period of a number of years.
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2. Brigham and Women's Hospital5
Brigham and Women's Hospital ("BWH") held a fundraiser
put on by Rafanelli Events at the Intercontinental Hotel in Boston
in September 2008. During set up for the fundraiser Burhoe
approached Erin Davies, who worked for Rafanelli Events, and asked
if she knew that the loading dock was a union facility and that
using outside vendors gave the union the right to picket. She
testified that he was confrontational, though she also testified
that she did not feel intimidated. She believed that if they did
not hire union workers, there would be a picket, and she worried
that a picket would interfere with the event. Her boss told her
to hire some union members for load-out. Davies testified that
they did not need labor for the load-out as they already had "hired
staffers to do everything we needed to do." One or two men came
to work and Davies testified that she personally saw one working.
The union sent invoices for the work and checks were issued to two
workers.
3. U.S. Green Building Council & Wolfgang Puck Catering6
The U.S. Green Building Council held an event at the
Institute of Contemporary Art ("ICA") in November 2008. Wolfgang
5 Burhoe: Racketeering Act 3, Count 5.
6 Burhoe: Racketeering Act 5, Count 7.
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Puck catered and produced the event. As nonunion workers began
setting up the event, a union member approached an event manager
for Wolfgang Puck, William Doane, and told him he needed to hire
union members. Doane described the person as being "right in my
face" and using an "aggressive" tone. He said that he felt
"threatened" and "the threat was made that if we didn't put them
on there, that they would have a hundred guys picketing down here
within an hour on the event." Doane consulted with the director
of the ICA and they decided to hire some union members. Doane
testified that they did not need the additional workers but that
they hired them in order to avoid the picket. Doane testified
that he was too busy to know whether the union members performed
any work at all. A manager with another vendor, Cary Sakaki, also
reported being approached by union members at this event. She
testified that she called her account manager and they decided to
hire some union members for the load-in and the load-out at the
end of the day. She further testified that the work was unneeded
as they were fully staffed, but she also testified that the union
members actually worked.
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4. Great Bridal and Westin Waterfront Hotel7
In September 2010, Walter Mills, a production manager
for Great Bridal, was overseeing set-up of a show using nonunion
workers. Burhoe approached Mills twice seeking work for union
members. Mills rejected him after the first approach, telling
Burhoe that he had all the workers that he needed. The second
time, Burhoe threatened to picket and block the loading dock so
that vendors could not get in. Mills testified both that Burhoe's
tone was aggressive and that it was "pretty matter of fact, either
you hire us or we're going to picket." Great Bridal and the hotel
decided to hire the union in order to avoid a picket. Two members
showed up for the load-out. Mills testified that "[t]hey mostly
stood around, but whenever we needed to push something heavy,
they'd have their hands on it." He further testified that he
"understood throughout this that the Teamsters were asking to be
hired to load and unload equipment."
5. Massachusetts General Hospital8
Perry was found guilty of one count of extorting a
nonunion employer. On October 24, 2009, Massachusetts General
Hospital ("MGH") hosted a fundraising event at the Westin
7 Burhoe: Racketeering Act 11, Count 13.
8 Perry: Racketeering Act 9, Count 11.
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Waterfront Hotel. Perry approached Kenneth Maas, who worked for
an audio/visual services provider and was involved with the set-
up, and threatened a picket if union members were not hired. Maas
testified that Perry approached him to object to his use of
nonunion labor and said "[w]ell you got in here nonunion, but
you're not getting out of here nonunion." Maas further testified
that the event was fully staffed and that he did not need any help
from Local 82 members. According to Maas, the discussion with
Perry made him "nervous" and he felt like he was "being
manipulated," though he also testified that Perry was "polite and
friendly." Maas knew that what Perry was threatening was a picket.
He discussed the situation with MGH who decided to hire some union
workers. The men who were hired "did the work." MGH received a
form invoice for the work, which they subsequently paid.
B. Analysis
The defendants contend both that the District Court
erroneously instructed the jury on the "wrongful" element of Hobbs
Act extortion, 18 U.S.C. § 1951(b)(2), and that the evidence was
insufficient to permit the jury to find that the defendants had
committed that crime. We begin with the defendants' challenge to
the jury instructions. Our review of "whether the instructions
conveyed the essence of the applicable law" is de novo, as the
objection was preserved below, United States v. Sasso, 695 F.3d
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25, 29 (1st Cir. 2012), and the government does not argue
otherwise.
The District Court gave the following instructions to
the jury on the crime of extortion under the Hobbs Act:
[I]n proving the crimes of extortion alleged against
the defendants, the government must prove beyond a
reasonable doubt the element of extortion. That is,
the obtaining of the property of another with consent
induced by the wrongful use of actual or threatened
force, violence or fear including fear of economic
loss or physical harm. Picketing and striking are
legally protected labor activities when they are to
achieve legitimate labor objectives even if they put
economic pressure on a company or an employer. That
is, in the labor context, use of actual or threatened
force, violence or fear including fear of economic
loss or physical harm is not wrongful under federal
law if such use is to achieve legitimate labor
objectives, example, higher wages, as opposed to
illegitimate objectives, example, personal payoffs or
payment for imposed, unwanted, superfluous or
imposed, unwanted, and fictitious work.
With respect to the distinction between legitimate and
illegitimate labor objectives, the instructions further provided
that
Obtaining jobs and wages for union members is a
legitimate union objective. Obtaining personal
payoffs or wages for imposed, unwanted, and
superfluous work or imposed, unwanted or fictitious
work is not. It is not impermissible for unions to
identify work that is being performed by nonunion
workers or volunteers that could be performed by union
members and to attempt to obtain that work.
Under these instructions, the jury could find the
defendants liable for using or threatening violence, force, or
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fear, including fear of economic loss, only if such activity was
undertaken in pursuit of an illegitimate labor objective. And the
instructions emphasized that "[p]icketing" is a "legally protected
labor activit[y]" when engaged in "to achieve legitimate labor
objectives," even if such picketing puts "economic pressure on a
company or an employer." The instructions then expressly
identified seeking higher wages and jobs for union members
(including turning those jobs around from nonunion workers) as
legitimate labor objectives.9
At the same time, however, the instructions allowed the
jury to conclude that the defendants had pursued an illegitimate
labor objective by finding that the defendants sought personal
payoffs or payment for unwanted and superfluous, as opposed to
"fictitious," work, in consequence of the use of the word "or"
between "imposed, unwanted, superfluous" and "imposed, unwanted,
and fictitious" in the instructions. And the instructions
suggested that even peaceful picketing might constitute the
9 The instructions did not distinguish between types of picketing.
Although some forms of pickets constitute unfair labor practices
under 29 U.S.C. § 158(b), the NLRA protects a so-called area-
standards picket, which seeks to alert the public that a particular
employer pays lower wages to nonunion workers than a union worker
in that area would receive. See Sears, Roebuck & Co. v. San Diego
Cty. Dist. Council of Carpenters, 436 U.S. 180, 185-87 (1978); see
also Giant Food Mkts, Inc. v. NLRB, 633 F.2d 18, 23 & n.11 (6th
Cir. 1980) (approving of area-standards picketing).
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"wrongful" use of fear of economic harm when used to procure such
unwanted work. As a result, the instructions, read as a whole,
permitted the defendants to be convicted for the following conduct:
threatening to picket peacefully in order to obtain payment for
"unwanted" work, even if the work that the defendants sought was
for actual jobs for union members at the prevailing wage.
The defendants objected to the instructions as
"misleading" in its description of "wrongful." They argued that
the disjunctive construction in the instructions' description of
when union efforts to procure work is illegitimate relieved the
government from having to prove that the work was "fictitious" and
thereby impermissibly allowed the jury to find a violation of the
Hobbs Act for peaceful picketing for union jobs at the prevailing
wage simply because the employer did not "want" the union members
to perform the work that they sought through their picketing. The
defendants contended in this regard that seeking to turn jobs
around for union workers at the prevailing wage is a legitimate
labor objective even if the work sought by the union is unwanted
and superfluous, in the sense that someone else is already
performing that work so the employer does not want to hire the
union workers. In the defendants' view, therefore, the union's
pursuit of union jobs at the prevailing wage through peaceful
picketing would violate the Hobbs Act only if the work sought is
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fictitious, in the sense that the employer did not need anyone to
perform that work, as is the case with sham wage payments or
payment for no-show jobs. Thus, the defendants objected to the
instructions regarding "wrongful" as "misleading."
As it turns out, the jury appeared to be confused by the
instructions that the District Court gave on the exact point the
defendants identified as problematic, and the jury asked the court
for "more specific instruction" on the meaning of "unwanted,
unnecessary, and superfluous." "If a vendor/event planner had
adequate labor to do their own load-in and load-out but felt
compelled to hire union labor to avoid a disruption of their
event," the jury asked the court, "would that make the work done
by the [union] imposed, unwanted, and unnecessary and
superfluous?" After the jury asked for clarification, the
defendants urged the court to issue the defendants' proposed
instruction that union efforts to turn around nonunion jobs to
maintain the prevailing wage are illegitimate only if those jobs
are "fictitious," not merely unwanted, unnecessary, and
superfluous. Instead, the court responded to the jury by
referring it to the court's original instructions.10
10 Later, one of the jurors again sought clarification from the
court, asking: "Can the union picket for illegitimate labor
objectives?" As the defendants argued to the court at the time,
the question might have suggested continued confusion over the
instructions. On one hand, the defendants pointed out, the court
-24-
In challenging those instructions on appeal, the
defendants rely in part on Enmons, in which the Supreme Court
described union efforts "to exact 'wage' payments from employers
in return for 'imposed, unwanted, superfluous and fictitious
services' of workers" as an example of an illegitimate labor
objective under the Hobbs Act. 410 U.S. at 400 (emphasis added).
The Court's use of "and" before "fictitious," the defendants
contend, means that the work must also be fictitious in order for
the union efforts to be illegitimate.
Moreover, the defendants point out, the language from
Enmons was taken from another Supreme Court decision that blessed
an indictment charging union members under the Hobbs Act with
attempts to obtain "wages to be paid for imposed, unwanted,
superfluous and fictitious services." Green, 350 U.S. at 417. At
issue in Green was a challenge to the indictment, which charged
activity that the union members argued did not fall within the
scope of the Hobbs Act. Id. at 416. That activity involved
attempts by the union workers "through threats of force or
violence," id. at 420, to secure work as "swampers" from bulldozer
had instructed the jury that picketing is a legally protected labor
activity (even if undertaken to turn around nonunion jobs),yet the
court had also instructed the jury that seeking unwanted work was
an illegitimate labor objective. The court again referred the
jury to its initial instructions on those points.
-25-
operators who had no use for any swampers, whether union or
nonunion. United States v. Green, 246 F.2d 155, 158-59 (7th Cir.
1957).11 (A swamper's "primary duty" was said to be "to scout
ahead of bulldozers and warn of approaching pitfalls." Id. at
158.) The Court held "that the acts charged against [the union
members] fall within the terms of the [Hobbs] Act." Green, 350
U.S. at 421. Notably, the defendants contend, the indictment that
the Court blessed required that the work be "fictitious" in order
for Hobbs Act liability to attach. Id. at 417.
Finally, the defendants also turn to the federal labor
laws in support of their challenge to the jury instructions. The
defendants contend that federal labor laws support their claim
that union efforts to procure unwanted and superfluous work is a
legitimate labor objective, when those efforts are undertaken in
order to turn around a nonunion job to maintain the prevailing
wage, so long as the work that is sought for union members is not
fictitious. As they point out, those laws are not superseded by
the Hobbs Act, which expressly provides that it "shall not be
11 In one instance in which the bulldozer operators had declined
to hire swampers, later that day 700 to 1500 union members
converged on the job site, ordered a bulldozer operator to
"alight," and threatened to "bash his head in" and "throw his car
in the canal." Green, 246 F.2d at 159.
-26-
construed to repeal, modify or affect" various provisions of the
federal labor laws, including the NLRA. 18 U.S.C. § 1951(c).
In pressing this contention, the defendants assert that
the District Court erred by refusing to adopt a proposed
instruction that cited to NLRB v. Gamble Enter., a case
interpreting one of those provisions in the NLRA. 345 U.S. 117(1953). Gamble potentially bears on the question of what
constitutes a legitimate labor objective because it sets forth the
controlling interpretation of an unfair labor practice under
§ 8(b)(6) of the NLRA. That provision specifies that it is an
"unfair labor practice" for a union "to cause or attempt to cause
an employer to pay or deliver or agree to pay or deliver any money
or other thing of value, in the nature of an exaction, for services
which are not performed or not to be performed." 29 U.S.C.
§ 158(b)(6).
In Gamble, a union of local musicians sought employment
by a theater, which neither wanted nor needed the local musicians'
services, as a condition of consenting to the performance at the
theater by traveling musicians, whose own union had an agreement
with the local union not to perform without its consent. Gamble,
345 U.S. at 119-21. The NLRB had determined that there is no
exaction "for services which are not performed or not to be
performed" within the meaning of § 158(b)(6) "where a labor
-27-
organization seeks actual employment for its members, even in
situations where the employer does not want, does not need, and is
not willing to accept such services." In re Am. Fed'n of
Musicians, Local No. 24, 92 N.L.R.B. 1528, 1532-3 (1951). On
review, the Supreme Court indicated that the key question was
whether "the union was seeking actual employment for its members."
Gamble, 345 U.S. at 123. Finding that it was, the Supreme Court
rejected the theater's claim that the union was engaged in an
unfair labor practice under § 158(b)(6). Id. ("Since we and the
Board treat the union's proposals as in good faith contemplating
the performance of actual services, we agree that the union has
not, on this record, engaged in [an unfair labor practice within
the meaning of § 158(b)(6)].").
The crucial distinction the NLRB made in construing
§ 158(b)(6), and which the Supreme Court embraced, was between
whether the union "was attempting to cause the charging party to
make payments to [union members] for services which were not to be
performed," or whether the "labor organization [was] seek[ing]
actual employment for its members, even in situations where the
employer does not want, does not need, and is not willing to accept
such services." Id. at 122 (quoting Am. Fed'n of Musicians, 92
N.L.R.B. at 1531, 1533). The former cannot constitute a fair
labor practice under § 158(b)(6) while the latter can. The
-28-
Supreme Court explained that the central inquiry was whether the
union was "in good faith contemplating the performance of actual
services." Id. at 123. In such a situation, despite the union's
effort to "exact[]" the wage, it is up to the employer to "accept
or reject the union's offers on their merits in light of all
material circumstances." Id.
In considering the defendants' arguments challenging the
jury instructions, we are not persuaded by the defendants'
contention that Enmons and Green necessarily show that the
instructions are illegitimate simply because each of those cases
uses the conjunctive formulation ("unwanted, superfluous and
fictitious") in describing prohibited conduct under the Hobbs Act.
Enmons, 410 U.S. at 400 (emphasis added); Green, 350 U.S. at 417
(emphasis added). As the government points out, Enmons also
refers at one point, using the disjunctive, to a union's "pursuit
of 'wages' for unwanted or fictitious services" as an illegitimate
labor objective. 410 U.S. at 407 (emphasis added). And the fact
that Green rejected a challenge to a Hobbs Act indictment charging
the defendants in that case with seeking fictitious work does not
necessarily mean that a showing of fictitiousness is required to
prove that union efforts to obtain work for its members constitutes
extortion under the Hobbs Act.
-29-
Nevertheless, in the context of this case, in which the
counts charging extortion of nonunion companies were based in part
on threats to picket, we do not see how the instructions were
correct. Those instructions permitted the jury to find that the
defendants pursued an illegitimate labor objective in seeking
"payment for imposed, unwanted, superfluous" work rather than
"fictitious" work. But, under the instructions, accepted by the
government, the use of picketing for a legitimate labor objective
is protected union activity and thus not "wrongful." And, under
those same instructions, again, accepted by the government, the
effort to turn around nonunion jobs to become union jobs at the
prevailing wage is a legitimate labor objective. As a result, we
do not see how peaceful picketing in pursuit of turning around
jobs to maintain the prevailing wage can be deemed activity in
pursuit of an illegitimate labor objective. And, that being the
case, we see no basis in the labor laws for concluding that this
same objective becomes illegitimate simply because the jobs that
the union seeks to turn around are jobs already being performed by
nonunion workers. In fact, Gamble and another case decided by the
Supreme Court the same day, see Am. Newspaper Publishers Ass'n v.
NLRB, 345 U.S. 100 (1953),12 suggest the opposite is the case,
12 There, a union of typesetters required the newspapers that
hired them to pay them for duplicating advertising material that
the newspapers did not want or need. Am. Newspaper, 345 U.S. at
-30-
given their construction of what constitutes an unfair labor
practice in exacting a wage.
The instructions are problematic, therefore, because
they could have led the jury to conclude -- as the defendants
contend was the case -- that the effort to turn around such
nonunion jobs to maintain the prevailing wage is illegitimate
simply because the employer already has nonunion employees doing
the relevant work. For this reason, the instructions are
misleading in describing what constitutes "wrongful" conduct.
In countering the defendants' challenge to the
instructions, the government advances no theory for why Gamble's
interpretation of § 158(b)(6) should not guide our analysis of
what constitutes a legitimate labor objective under the Hobbs Act,
and hence our review of the jury instructions.13 Nor does the
103-04. The Court rejected the newspapers' argument that the
union had engaged in an unfair labor practice under § 158(b)(6)
merely by seeking this bogus work because the Court explained that
the work sought, though unwanted and unneeded, was actual work.
Id. at 109-10.
13 The government does point out that Gamble does not preclude a
jury from convicting a defendant under the Hobbs Act for seeking
personal payoffs through violence, force, or fear (a point the
defendants do not contest). But that argument goes merely to the
sufficiency of the evidence to convict for extortion under the
Hobbs Act on the theory that the end pursuit was illegitimate
because it was for a personal payoff, not to whether the jury
instructions in this case were erroneous for permitting a
conviction predicated on the use of violence, force, or fear to
obtain unwanted work. In addition, the government points out in
a footnote that Congress rejected a proposed amendment to the Hobbs
-31-
government contend that Gamble is somehow an invalid
interpretation of § 158(b)(6).14 Indeed, the government's brief
reads as though it would have us ignore the NLRA and its definition
of an unfair labor practice under § 158(b)(6) in evaluating the
instructions.
The government instead argues that the instructions were
not misleading because union efforts to procure merely unwanted
and superfluous work is an illegitimate labor objective, given
that Enmons refers at one point to a union's "pursuit of 'wages'
for unwanted or fictitious services" as an example of an
illegitimate labor objective under the Hobbs Act. 410 U.S. at
407. However, as mentioned above, Enmons elsewhere describes
union efforts to procure payment for, using the conjunctive,
"imposed, unwanted, superfluous and fictitious services" as an
Act that would have made compliance with the NLRA a defense to a
charge under the Hobbs Act. However, the Supreme Court said in
Enmons that "it would require statutory language much more explicit
than that before us here [in the Hobbs Act] to lead to the
conclusion that Congress intended to put the Federal Government in
the business of policing the orderly conduct of strikes," and we
see no reason why that same reasoning would not extend to pickets.
410 U.S. at 411.
14 The government points us to no cases suggesting that Gamble
(or American Newspaper) is no longer good law. It does argue that
those cases involve negotiations for employment services or a CBA
and therefore do not apply here. Nothing in § 158(b)(6) suggests
that it is limited to those contexts, however, and the government
points us to no cases supporting an inference that it should be so
limited.
-32-
example of an illegitimate labor objective. Id. at 400 (emphasis
added). The one disjunctive reference that the government singles
out from Enmons is not necessarily dispositive in all contexts and
thus cannot save the jury instructions.
To support its view that we should privilege the
disjunctive construction Enmons does use over the conjunctive one
it also uses, the government turns to two cases cited by Enmons:
United States v. Local 807 of Int'l Bhd of Teamsters, 315 U.S. 521(1942), and Kemble.15 But neither case supports the government's
contention.
Enmons, the government points out, explains that the
purpose and effect of the Hobbs Act was to overrule Local 807.
See 410 U.S. at 402. Local 807 concerns § 2 of the Anti-
Racketeering Act of 1934, 48 Stat. 979, which for our purposes was
15 The government also points to two cases from our sister circuits
to support its argument that Enmons does not require that work be
fictitious in order for a union's pursuit of that work to
constitute an illegitimate labor objective. These cases do not,
however, involve the pursuit by unions of unwanted labor from an
employer through threats of peaceful pickets and thus are of little
help in interpreting the lawfulness of the ends sought in this
case. See United States v. Markle, 628 F.3d 58, 62 (2d Cir. 2010)
(holding that "a violent attack on members of a competing union to
gain the competing union's work is not a legitimate labor union
objective within the meaning of Enmons"); United States v. Quinn,
514 F.2d 1250, 1255-60, 1268 (5th Cir. 1975) (affirming convictions
under the Hobbs Act for the defendant's exaction of personal
payoffs either in exchange for calling off pickets or through
threatening pickets).
-33-
the same as the Hobbs Act, save for the exception described below.
Local 807 involved union activity in and outside of New York City.
Union members would wait at the entrances to the city and "use
violence and threats" (but not pickets) to stop trucks from
entering the city to make deliveries. 315 U.S. at 526. They
would then exact a payment from the out-of-town drivers in amounts
that were "the regular union rates for a day's work of driving and
unloading." Id. Sometimes the union members would then drive the
trucks into the city for the delivery themselves. Sometimes the
union members offered to do the work but the offer was rejected by
the out-of-town drivers. Finally, sometimes the union members did
not offer to perform any work at all. Id.The question for the Supreme Court was whether this
activity fell within the wages exception to § 2 of the Anti-
Racketeering Act, which excepted "the payment of wages by a bona-
fide employer to a bona-fide employee." Id. at 527. The Supreme
Court held that the payments to those who had been permitted to
actually perform the services, and payments to those whose offers
to do the work had been rejected, fell within the wages exception,
but that the payment to those who refused to perform the services
did not. Id. at 534-35. In response to Local 807, Congress
amended the statute, eliminating the wages exception entirely in
the revised statute, which is the Hobbs Act.
-34-
In relying on Local 807 in defending the jury
instructions, the government essentially argues the following.
The government contends that, because Congress intended to
overrule Local 807 by passing the Hobbs Act, the current statute
therefore criminalizes the conduct in all three scenarios from
Local 807, including when union members perform or seek actual
work that an employer merely did not want or need them to do.
The government reads too much into Congress's response
to Local 807. All Congress did in response to Local 807 was to
eliminate the wages exception, meaning that the payment of wages
between an employer and employee could incur liability under the
Hobbs Act. But that response alone tells us little about the
circumstances in which the payment of wages for actual work should
incur such liability.
At most, Congress signaled an intention to impose Hobbs
Act liability on union members who perform or seek actual work
when they use "violence and threats" to obtain that work in cases
involving analogous facts to those at issue in that case. Id. at
526; see also Enmons, 410 U.S. at 408 (drawing from the Hobbs Act's
legislative history in the wake of Local 807 "nothing more than
that Congress was intent on undoing the restrictive impact of that
case"). But, because of the jury instructions in our case, we
must assume that the defendants merely threatened a peaceful picket
-35-
to turn around nonunion jobs to maintain the prevailing wage, which
is hardly conduct of the type at issue in Local 807. We do not
see how we can assume from Congress's reaction to Local 807 that
it meant for the Hobbs Act to criminalize peaceful picketing in
pursuit of union jobs at the prevailing wage. As a result,
Congress's reaction to Local 807 cannot render the jury
instructions permissible.
The government also points out that Enmons approvingly
cites Kemble -- a Third Circuit decision that introduced the phrase
"imposed, unwanted and superfluous services" -- as a proper
application of the Hobbs Act. See Enmons, 410 U.S. at 400 & n.5,
409 (citing Kemble, 198 F.2d at 892). In Kemble, a business agent
for a union intercepted an out-of-town truck driver unloading a
shipment of merchandise. Kemble at 890. The business agent
"employed actual and threatened violence against [the driver] and
the property in his possession" and told the driver that he would
have to have a member of the union help him unload. Id. The
court affirmed the business agent's conviction under the Hobbs
Acts, holding that
[I]t was reasonable for the jury to conclude that [the
union agent], understanding that [the driver] did not
want or need a helper and was not authorized to employ
one, nevertheless forcibly insisted that [the driver]
pay $10, described as a day's wages, for a
supernumerary to do what [the driver] himself was paid
to do and was accomplishing when [the union agent]
intervened.
-36-
Id. Kemble described the work sought by the union's agent as
"imposed, unwanted and superfluous." Id. at 892. As the
government points out, the relevant portion of the instructions in
our case mirrors that language almost exactly.
However, Enmons's approving citation to Kemble cannot be
said to control in our case such that it can save the instructions
from being misleading. The Third Circuit carefully advised that
"the forced payment of wages" could incur Hobbs Act liability only
"in proper cases," and warned that "[w]e say 'in proper cases'
advisedly." Id. at 891. In keeping with that caution, the Third
Circuit stated its holding quite narrowly: "It is enough for this
case, and all we decide, that payment of money for imposed,
unwanted and superfluous services such as the evidence shows [the
union's agent] attempted to enforce here by violent obstruction of
commerce is within the language and inten[tion] of the statute."
Id. at 892 (emphasis added); see also Enmons, 410 U.S. at 409(noting that Kemble "carefully limited its holding"). The court
went on to state that the Hobbs Act protects "the rights of bona-
fide labor organizations lawfully carrying out the legitimate
objects thereof" and that "the word 'lawfully' is an important
limitation." Kemble, 198 F.2d at 892 (emphasis added). Thus, the
holding in Kemble is limited by the fact that the union's agent
engaged in violent conduct that was nowhere sanctioned by federal
-37-
or state law. Id. And, again, in our case the instructions
permitted the jury to convict the defendants for different conduct
entirely -- that is, merely threatening to picket to turn jobs
around for the union's members at the prevailing wage.
Ultimately, given the choice between "imposed, unwanted
or superfluous," as in Kemble, or "imposed, unwanted, superfluous
and fictitious," as in Green, the latter must hold in our case in
light of the instructions' inclusion of any picketing as activity
that can give rise to Hobbs Act liability when threatened in order
to obtain union jobs at the prevailing wage. The guidance in
Enmons (which sometimes uses a conjunctive construction and
sometimes a disjunctive one) is less-than-clear, and the facts
regarding the means used in Local 807 and Kemble are both
distinguishable from the instant case. The Kemble phraseology is
too closely related to the theory of an unfair labor practice
rejected in Gamble and American Newspaper for its use in the
instructions to have been other than misleading.
Moreover, this conclusion accords with the deference
owed under Garmon preemption to the NLRB's interpretation of an
unfair labor practice within the meaning of § 158(b)(6). Under
the jury instructions, Hobbs Act liability would appear to attach
any time a union threatened to picket peacefully for jobs at the
prevailing wage that an employer did not want or need the union's
-38-
members to perform. We find troubling a theory of the case that
would criminalize labor union activity to achieve such an end when
the NLRB's interpretation of § 158(b)(6) labels the exaction of a
wage for that very same end as not being an unfair labor practice.
We thus conclude that "it would require statutory language much
more explicit than that before us here [in the Hobbs Act] to lead
to the conclusion that Congress intended" to criminalize such
peaceful picketing, Enmons, 410 U.S. at 411, such that the
instructions would not be problematic. Finally, we note that this
narrower interpretation of the Hobbs Act comports with another
rule of statutory construction: the rule of lenity. "[W]hen there
are two rational readings of a criminal statute, one harsher than
the other, we are to choose the harsher only when Congress has
spoken in clear and definite language." Scheidler, 537 U.S. at
409 (quoting McNally v. United States, 483 U.S. 350, 359-60
(1987)).
It follows that the district court erred in instructing
the jury that it could find extortion where the defendants sought
to obtain "imposed, unwanted, superfluous or imposed, unwanted,
and fictitious work" by using "fear of economic loss," which
encompasses picketing protected under the NLRA. The disjunctive
construction impermissibly relieved the government from having to
prove that the work was "fictitious" and thus could have allowed
-39-
the jury to find a violation merely because the union sought to
turn around nonunion jobs to maintain the prevailing wage through
such a threatened picket, and the employer did not want to use the
union workers to perform the work.
That error alone requires us to at least vacate the
counts related to the extortion of nonunion companies, as the
government does not argue that the error was harmless. See United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) (referring to
"the settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived"). In fact, during closing
arguments, the government plainly told the jury: "The government
agrees that there was, in fact, real work to be done. These were
not fictitious jobs we're talking about. For the defendants to
be found guilty of extortion on these counts, it doesn't have to
be for fictitious work. . . . [T]hese were jobs that were
unnecessary, unwanted, and superfluous, and that's why it was
extortion." In addition, the court failed to specifically
instruct the jury, as the defendants requested, that picketing to
alert the public that an employer hires nonunion workers undertaken
to maintain the prevailing wage in the community is a legitimate
labor objective.
-40-
The remaining question is whether we must remand for a
new trial on any of the counts for extortion of nonunion companies,
as opposed to reversing outright. The answer turns in part on the
defendants' other argument: that the evidence is insufficient to
support a finding that the defendants pursued illegitimate labor
objectives when they threatened to picket if union members were
not given jobs. That is, whether the evidence can show that the
defendants sought a payoff or payment for work that was fictitious.
Here, with one possible exception, the government has
not proven that the union, Burhoe, or Perry demanded work for
fictitious services that were not to be performed. Erin Davies
(at the BWH event), William Doane and Cary Sakaki (at the U.S.
Green Building Council event), Walter Mills (at the Great Bridal
event) and Kenneth Maas (at the MGH event) all testified that they
did not want, did not need and did not willingly accept the
services offered by the union. None of them testified that the
jobs in question simply did not exist. Rather, all testified that
they would rather not hire union workers, but when faced with the
prospect of a picket, they preferred hiring additional workers
over risking the impact of the alternative. Again, during closing
argument, the government conceded that the jobs were "not
fictitious." Not only were the jobs not fictitious, with respect
to the four instances listed above, the government failed to prove
-41-
that the union members did not perform actual work.16 Thus, we
reverse Burhoe's convictions on counts 5, 7 and 13, and Perry's
conviction on count 11.17
16 With respect to the possibility that the defendants sought
personal payoffs, the government argues that the evidence suffices
to show that the defendants did so seek, because the record shows
that the hours of work obtained by the strike unit were, at times,
directed to union members who were friends and family of Perry and
Burhoe. However, the government does not point to any cases in
which a personal payoff was found where someone requested work for
union members, work was performed by union members, and payment
was made in exchange for that work to union members for their work.
Rather, the payoff scenarios with which we are familiar involve
instances where someone sought payment without requesting it in
exchange for union members performing any actual work. See, e.g.,
United States v. Gibson, 726 F.2d 869, 870-73 (1st Cir. 1984)
(holding that a union official's demand for a personal payment of
$750 as "consideration" for eliminating any potential union
activity at a nonunion job site was a request for a payoff within
the meaning of the Hobbs Act). Without any developed
argumentation from the government on this point, we decline its
invitation to expand the category of payoffs to encompass this
case.
17 The government argues, as to all of the counts, that the
evidence suffices to show that the defendants did not merely
threaten to picket for jobs at the prevailing wage but that they
also threatened physical harm and to block entrances, deliveries,
and the movement of equipment at some of the nonunion companies'
buildings. However, the government did not object below to the
jury instruction that "use of actual or threatened force, violence
or fear including fear of economic loss or physical harm is not
wrongful under federal law if such use is to achieve legitimate
labor objectives." Nor did the government preserve below the
alternative legal theory that if the pursuit of unwanted and
superfluous work were a legitimate labor objective (as we hold in
this appeal), then force, violence, or fear (including fear of
economic loss) may not be used to obtain that objective. Moreover,
consistent with the jury instruction quoted above, the defendants
suggest on appeal that, under Enmons, "[u]nion members do not
violate the Hobbs Act even if they use physical violence to achieve
legitimate union objectives," and the government does not dispute
-42-
The only possible exception is the Four Pints incident.
There, while one of the owners testified that he believed Burhoe
was seeking work and was there to work, another of the owners
testified that he had no expectation that the union members would
perform any work (and there was no testimony about whether any
work was performed). The testimony that money was paid in return
for no work at all by the union members leaves open the possibility
that the threat of a picket was used to exact a payoff, rather
than as a means to obtain actual work. See, e.g., United States
v. Duhon, 565 F.2d 345, 351 (5th Cir. 1978) (holding that a payoff
made in response to the threat of a picket could constitute
extortion under the Hobbs Act so long as the defendants intended
to exploit the employer's fear of the economic loss that would
result from the picket). We therefore vacate and remand count 4
for a new trial.
IV. EXTORTION OF UNION MEMBERS
In addition to the above allegations of extortion of
nonunion employers, numerous counts alleged that Burhoe and Perry
extorted rights to democratic participation ("LMRDA rights"18) and
wages and benefits from their fellow union members.
that assertion. Thus, this alternative legal theory is not
available to the government now.
18 The Labor-Management Reporting and Disclosure Act ("LMRDA")
outlines the various rights union members have in the running and
-43-
A. Background
While the previous section involved the Union's attempt
to obtain jobs from nonunion employers, a large portion of the
Union members' jobs came from companies that had signed CBAs with
the Union. These companies drew union labor from two pools. If
a company had a seniority list, they would hire workers from that
list first. If a company needed additional workers after it
exhausted its seniority list, it would hire spares workers from
the union. Many of the CBAs contained a provision known as the
2003 Rule.19 The government alleges that this Rule gave members
with trade show experience prior to 2003 priority in the hiring
line in that they were supposed to be selected as spares over newer
members. Defendants, meanwhile, contend that companies had
operation of their union. 29 U.S.C. § 401-531. The requirements
of the LMRDA "are designed 'to protect the rights of rank-and-file
members to participate fully in the operation of their union
through processes of democratic self-government, and . . . to keep
the union leadership responsive to the membership.'" Harrington v.
Chao, 372 F.3d 52, 54 (1st Cir. 2004) (quoting Wirtz v. Hotel,
Motel & Club Emps. Union, Local 6, 391 U.S. 492, 497-98 (1968)).
19 The relevant provision reads:
The Employer will take the availability for the
following day and fax the availability to the Union
by noon. The Union will fax any objections to those
individuals on the list to the Employer by 12:30. The
Employer will not hire anyone who has not worked in
the trade show industry prior to April 1, 2003, if
there are suitable applicants available who have
worked in the trade show industry prior to April 1,
2003.
-44-
complete control over whom they would hire as a spare and the 2003
Rule was an unenforceable preference.
The counts on which the defendants were found guilty
covered incidents involving union member Edward Flaherty in 2007;
an interaction with union member James Lee in 2008; events
involving union member Robert Wellman in 2008; and a 2009 CBA vote.
1. Edward Flaherty20
In September of 2007, union member Edward Flaherty
entered the Hynes Convention Center ("Hynes") and had a
confrontation with a fellow union member (Robert Favreau) who owed
him a gambling debt. The next day, Michael Wellman, chief
operating manager for Champion Exposition Services ("Champion"),
informed Flaherty that the Massachusetts Convention Center
Authority ("MCCA"), which oversees both Hynes and the Boston
Convention and Exhibition Center ("BCEC"), was barring him from
working at any of their facilities pending an investigation in
light of allegations that Flaherty had assaulted Favreau during
the previous day's confrontation. Flaherty went down to the BCEC
to find out what was going on and called a number of people for
help, including Perry. While he was at the BCEC, Perry returned
his phone call and, according to Flaherty's testimony, Perry said:
20 Perry Racketeering Act 14, Count 17.
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"shut [your] f--king mouth or [I'll] send someone down to shut it
for [you]."
Flaherty then went from the BCEC to a South Boston bar,
where he had a confrontation with Burhoe that turned violent.
Burhoe was charged with assault and battery as a result of the
incident. The MCCA ultimately decided to suspend Flaherty for six
months and required him to take an anger management course before
he could be reinstated.
Flaherty testified that he met with Perry in November of
2007 and Perry told him that if he agreed to drop the charges
against Burhoe then Flaherty would get "reinstated at the
convention center." Flaherty did not appear at the December 2007
hearing regarding Burhoe's alleged assault and the case was
dismissed without prejudice.21 On December 18, 2007, Flaherty
received an anger management certificate. The MCCA reinstated
Flaherty in January 2008.
The government alleges that during the time Flaherty was
suspended he was replaced by someone else. Although Wellman
testified that he did not know who specifically replaced Flaherty,
Burhoe and Perry each had family members who worked for Champion
21 In February 2009 Flaherty had the charges reinstated.
-46-
in September and October of 2007, the only hours they worked for
Champion that year.
2. James Lee22
In October of 2008 James Lee filed a grievance alleging
that Greyhound Exposition Services ("GES") was hiring in violation
of the 2003 Rule. A few days after he filed his grievance, Perry
confronted him and demanded that Lee identify who had worked ahead
of him in violation of the rule. Lee attempted to walk away and
Perry reportedly yelled, "Don't you f--ing run[] [a]way from me,"
called Lee pejorative names and "threw his shoulder into" Lee,
"almost knocking [him] over." Lee reported this incident to the
Boston Police, but the prosecutor ultimately filed a nolle
prosequi. Lee filed another grievance with the NLRB in April of
2009. He testified that nothing happened with that grievance,
although he believed that his attorney appealed it.23
Lee believed that, as a result of this confrontation,
his hours at GES dramatically dropped. He only worked 61 hours
for GES in 2008 even though he had worked 345, 310 and 156 hours
for them in 2005, 2006 and 2007, respectively. He worked zero
22 Perry Racketeering Act 15, Count 18.
23 His attorney, Richard Hayes, filed charges with the NLRB
alleging that the grievances were not properly investigated and
pursued by Perry. The defense entered into evidence a finding of
the NLRB that dismissed Lee's charges.
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hours for GES in 2009 and 2010. In 2011, when Perry was no longer
in charge, he worked 464 hours with GES. The government has not
argued that anyone worked Lee's hours at GES during the relevant
time periods.
3. Robert Wellman24
In October of 2008, union member Robert Wellman25 also
filed a grievance against GES and claimed that on October 28, 2008,
Perry used physical force against him during a dispute over the
grievance. As stated above, Lee reported Perry's alleged assault
to the Boston Police. Several union members received subpoenas
to appear at a clerk's hearing in South Boston District Court
concerning this event. Wellman testified that a few days after
this hearing, Burhoe forced him over to union hall to be
interviewed by Perry's lawyer concerning the subpoena he had
received for the hearing. He ultimately signed an affidavit
concerning the subpoena. He testified that everything in the
affidavit was true. After he signed the affidavit, Burhoe told
Bobby Perry, John Perry's brother, to make sure that Wellman
received work at GES. His admonition was apparently to no effect
24 Perry and Burhoe: Racketeering Act 16, Count 19.
25 Robert Wellman is the brother of Michael Wellman of Champion.
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because, like Lee, Wellman performed little work for GES starting
in November of 2008 and continuing through 2010.
4. 2009 CBA vote26
The 2009 Freeman Decorating Services ("Freeman") and GES
CBAs each eliminated the 2003 Rule. Testimony was mixed on who
could vote on which CBA, but it was relatively clear that each
member was not entitled to vote on every CBA. On April 25, 2009,
the GES CBA came up for a vote.27 Voting took place in the union
hall. Union members had to pass through a gate to enter the union
hall. At least twenty-nine union members were prohibited from
entering the hall. Perry and Burhoe, meanwhile, were inside the
gate, accompanied by a police officer. The excluded group felt
that they ought to have been admitted and wrote down their names
on a piece of paper to memorialize their exclusion. The government
presented evidence that many spares who did not work the majority
of their hours at GES were allowed to vote on the GES CBA. The
GES contract, eliminating the 2003 Rule, passed 67-13.
26 Burhoe and Perry: Racketeering Act 12 and Counts 14
(conspiracy) and 15 (substantive offense).
27 Although at trial it presented testimony concerning both the
Freeman and the GES 2009 CBA votes, in its briefing to us the
government has opted to focus only on the GES vote. We will
therefore also focus on that vote.
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B. Analysis
We will treat in turn the two theories of property that
the government alleged in this case.
1. LMRDA Rights
At trial the government alleged that Burhoe and Perry
deprived their fellow union members of "their LMRDA-protected
rights to democratic participation in Local 82's affairs by using
or threatening physical and economic harm." The government
requested special verdicts on this question. For each count
alleging extortion of fellow union members, if the jurors found
the defendants guilty, they were asked to specify whether they
found the defendants guilty on each of two theories: 1) extortion
of fellow union members' LMRDA rights; and/or 2) extortion of
fellow union members' wages and benefits. In each instance where
the jurors found the defendants guilty, they did so under both
theories.
The LMRDA rights that the government alleged the
defendants interfered with were the excluded union members'
"rights to initiate or participate in judicial proceedings, to
file grievances and complete affidavits, and to equal treatment in
voting." Multiple of our sister circuits have held that LMRDA
rights are property within the meaning of the Hobbs Act. See
United States v. Bellomo, 176 F.3d 580, 592-93 (2d Cir. 1999);
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Debs, 949 F.2d at 201-02; United States v. Local 560, Int'l Bhd.
of Teamsters, 780 F.2d 267, 281-82 (3d Cir. 1985). All of these
cases, however, predate Scheidler, which held that for the word
"obtain" to have any meaning in the Hobbs Act, the property in
question has to be acquired. 537 U.S. at 404. The government
points us to a Second Circuit case, United States v. Gotti, which
held that LMRDA rights can be "obtained" within the meaning of the
Hobbs Act. 459 F.3d 296, 323-325 (2d Cir. 2006). The Second
Circuit held that Scheidler did not invalidate intangible rights
(such as LMRDA rights) as property; rather, "there must be a
showing that the defendant did not merely seek to deprive the
victim of the property right in question, but also sought to obtain
that right for himself." Id. at 300. On the facts of the case
before it, where the president of a local branch of a union acted
pursuant to directives from an organized crime family, it found
that the union members were deprived of their rights and the
defendants benefited directly from the deprivation.
Subsequent to Gotti, the Supreme Court handed down
Sekhar. There, the Court held not only that the perpetrator had
to obtain the property in question, but also that the property had
to be transferable, meaning something that could be taken from
someone and given to another person. 133 S. Ct. at 2725.
Acknowledging that this case casts serious doubts on its argument
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that LMRDA rights constitute property under the Hobbs Act, the
government decided to put the weight of its case on the wages and
benefits extortion theory, asserting that "[b]ecause the proof on
the wages and benefits theory is so strong, there is no reason for
the Court to address the defendants' challenges to the LMRDA
special verdicts." Having provided no argument that LMRDA rights
do constitute property within the meaning of the Hobbs Act in light
of Sekhar, the government has waived this argument and cannot
pursue its case on that basis. Zannino, 895 F.2d at 17 (referring
to "the settled appellate rule that issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived"); see also United States v. Vega
Molina, 407 F.3d 511, 524 (1st Cir. 2005) (holding that
government's failure to make an argument constitutes waiver of
that argument); United States v. Caraballo-Cruz, 52 F.3d 390, 393
(1st Cir. 1995) ("[I]n fairness, what is sauce for the defendant's
goose is sauce for the government's gander. Thus, [waiver]
applies with undiminished vigor when, as now, a prosecutor attempts
to rely on fleeting references to unsubstantiated conclusions in
lieu of structured argumentation.").28
28 While the government is free to abandon theories of the case
that it no longer wishes to pursue, defendants argue that allowing
them to do so in this case causes them substantial prejudice with
regards to the remaining counts. We need not reach these arguments
here, however, because we reverse all of the relevant counts on
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2. Wages and Benefits
We next turn to the government's theory that the
defendants extorted wages and benefits from their fellow union
members. In analyzing the government's argument under this
theory, we will do well to remember the definition of Hobbs Act
extortion: "the obtaining of property from another, with his
consent, induced by wrongful use of actual or threatened force,
violence, or fear, or under color of official right." 18 U.S.C.
§ 1951(b)(2). We will take the elements of this definition in
turn.
a. Property
The government presents two separate wages and benefits
theories. First, the government alleges that work was taken away
from particular members and given to others. This is the case
with Flaherty, who the government argues was denied work that was
then redirected to Perry and Burhoe's family members. There is
further suggestion of this in the counts relating to Lee and
Wellman in that those two individuals had reduced hours, although
the government does not contend that anyone worked in their place.
The second theory that the government puts forth relates to the
workings of the 2003 Rule. Under this theory, the apparent
sufficiency of the evidence grounds.
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simplicity of the phrase "wages and benefits" actually masks the
fairly complex theory of the property at issue. This theory
differs from the first in that no straightforward transfer of wages
and benefits took place. Rather, as a result of the defendants'
threats, certain union members "gave up" their seniority
protections under the 2003 Rule that would have led to wages and
benefits. The government argues that this rule gave union members
identifiable positions in the hiring line, and that members then
gave these positions to the defendants. However, the defendants
argue that the 2003 Rule was not powerful or binding enough to
give identifiable seniority protections to the members, but was
rather merely an unenforceable hiring preference.
We analyze two aspects of these property theories to
determine whether the government's arguments under its wages and
benefits theory fall within the meaning of the Hobbs Act: first,
under Scheidler, the government must prove that the defendants
obtained the property taken. 537 U.S. at 404. It is not enough
that the victims merely have lost something, the defendants have
to have that thing as well. Second, under Sekhar, the property
in question has to be capable of transfer from one person to
another. 133 S. Ct. at 2725. Acquisition is not enough.
Thus, the government had to prove that the defendants
obtained the property at issue. Scheidler, 537 U.S. at 404. In
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only one instance, that of Flaherty, did the government even
attempt to prove that anyone worked any hours that might otherwise
have been given to the victim. In all other instances, the
government sought to prove only that the victims had reduced hours,
not that anyone worked in their place. In support of this
approach, the government cites Green, in which the Supreme Court
held that Hobbs Act extortion "in no way depends upon having a
direct benefit conferred on the person who obtains the property."
350 U.S. at 420. While it is true that Scheidler appears to have
left Green intact, 537 U.S. at 402, Green cannot be read so
expansively as to negate the requirement that the defendants
"obtain" the property. In Gotti this requirement was met by
demonstrating that the defendants directly benefited from the
deprivation of the victims' property. Here, the government did
not show such a direct benefit. The government seems to suggest
throughout that friends and family members of Perry and Burhoe
worked in place of the victims, but, again with the exception of
Flaherty, it does not point us to specific evidence in this
regard.29
29 In particular, the fact that friends and family of Burhoe and
Perry worked is insufficient to demonstrate that the hours worked
were a result of hours taken from Lee or Wellman.
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Without a showing that anyone worked in place of the
alleged victims, the government's theory seems to be reduced to an
argument that the defendants controlled the property and received
an unidentifiable benefit from that control. It is hard to
reconcile this argument with Scheidler, where the Supreme Court
specifically rejected the theory that whoever controls use of
certain property thereby obtains that property. 537 U.S. at 401-
02. In light of Scheidler, the government had to prove that the
defendants not only controlled the property, but also obtained it
in the sense that they could "exercise, transfer, or sell" it.
Id. at 405. In the case of Flaherty, this "transfer" was
demonstrated by showing that family members worked hours at
Champion during the relevant time period when Flaherty was out of
work, and not any other time. For Lee and Wellman, however, the
government does not argue that anyone worked in their place who
would not have worked.30 At most, this means that the government
has demonstrated a taking from Lee or Wellman, but does not
demonstrate that Perry obtained this property in the sense of being
30 The only evidence the government presented that individuals
with no trade show experience prior to 2003 were working ahead of
others with the requisite experience was the testimony of the union
members themselves who believed that they were losing hours to
people who should not have received the benefit of the 2003 Rule.
No specific instances were cited.
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able to "exercise, transfer, or sell" it. 31 Id. This is
insufficient. At a minimum, Scheidler stands for the proposition
that, to prove that the property was obtained, the government needs
to do more than demonstrate control. The government's theory that
Perry controlled work to the benefit of his friends and family
risks merging the concepts of control and obtention. The weakness
of the government's case with regard to the obtaining of property
can be more clearly seen when we analyze whether the property was
capable of being transferred.
Under Sekhar, in order for something to be "property"
within the meaning of the Hobbs Act, it is insufficient for the
government to show that someone has been deprived of their
property; the government must show that it was transferred to
someone such that they obtained it. 133 S. Ct. at 2725. The
protections afforded by the 2003 Rule cannot themselves be
transferred, rather, it is the alleged spot in the hiring line
31 The government provided evidence that Perry exercised a general
level of control over who worked at particular shows. Lisa
Buckley, an administrative assistant for Local 82 up until January
or February of 2009, testified that she would receive hiring lists
from the different companies who had work for union members, give
the lists to Perry, and receive the final lists of who was being
hired back from him. She said that Perry made changes to these
lists about fifty percent of the time. A "good majority" of the
time, the added names were friends and family of Perry. No
specific instances of these changes were identified, however, and
Ms. Buckley did not give any testimony concerning the pre-2003
experience of any of the individuals taken off or put on the lists.
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afforded by the 2003 Rule that the government argues was
transferred from certain union members to certain others. It is
difficult to reconcile this argument with Sekhar, however. In the
absence of the 2003 Rule, the benefit that it conveyed (whether a
hiring preference or a particular spot in the hiring line) is not
transferred to another person, it is simply eliminated. Although
a consequence of eliminating the rule might be that individuals
who used to benefit from it will get fewer future hours of work,
the elimination of the rule itself is not a transfer of those hours
and does not transfer a property right.32 We therefore find that
the government has failed to demonstrate that the thing extorted
under counts 14 and 15 (2009 CBA votes) was property capable of
being transferred or obtained, as required by the Hobbs Act.
We need not reach the question of whether the defendants
obtained property from the individual union members (Flaherty, Lee
and Wellman), because the requirement that property be
32 The government's inability to point to specific individuals
who replaced the alleged victims suggests that this spot in the
hiring line was perhaps less transferable, even in the sense
identified above, than the government alleges. At most, the
evidence suggests that Perry had significant influence over who
worked for some companies or shows. This does not amount to a
showing that a particular spot in the hiring line was transferred
from a particular person (Lee or Wellman, for example) and given
to someone else.
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transferable poses particular challenges to the government under
the second element of Hobbs Act extortion: consent.
b. Consent33
Even if we accept the government's definition of
transferable property, the government still faces considerable
difficulties in proving consent to this alleged taking. United
States v. Cain, 671 F.3d 271, 283 (2d Cir. 2012) ("[Consent is]
the razor's edge that distinguishes extortion from robbery" and
"[t]he essential requirement to establish extortion is thus that
the victim retained 'some degree of choice in whether to comply
with the extortionate threat, however much of a Hobson's choice
that may be.'" (quoting United States v. Zhou, 428 F.3d 361, 371
(2d Cir. 2005))). We do not find evidence that any of the union
members voluntarily abandoned either their spot in the hiring line
or their wages and benefits. Rather, the evidence showed that the
victims strenuously resisted whenever any takings occurred.
33 Arguably the defendants waived the question of consent by
failing to raise it in their opening briefs. United States v.
Torres, 162 F.3d 6, 11 (1st Cir. 1998) (noting that "issues raised
for the first time in an appellant's reply brief are generally
deemed waived"). At oral argument, however, the government did
not argue waiver and instead spent considerable effort arguing
against the defendants on the substance of this issue. We
therefore do not see any prejudice to the government in taking up
the claim. See also Thomas v. Arn, 474 U.S. 140, 155 (1985)
(recognizing that in instances of "nonjurisdictional waiver," the
Court of Appeals "may excuse the default in the interests of
justice").
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Without consent, the government may be able to prove a taking, but
it cannot prove extortion.
When Flaherty found out he was barred from MCEC venues,
he immediately went down to BCEC to find out what was happening,
placed numerous calls to try to find help, and even after he
received the alleged threat from Perry, called "[a]nybody I knew
politically to try to help me out . . . [t]o try to get me back to
work." If Perry took anything of value from Flaherty, it was
clearly not with Flaherty's consent. The one thing he did testify
to consenting to give up was his right, as articulated by the
government, "to institute an action in court and to appear as a
witness free of any limitation by Local 82 or its agents in a
judicial proceeding involving assault and battery charges against
defendant Joseph Burhoe." But this corresponds to the
government's LMRDA rights theory, not its wages and benefits
theory. There is no connection between this consented-to taking
and the taking of Flaherty's wages and benefits. The jury may
have found that Flaherty was able to return to work as a result of
this consented-to action, but that does not transform the property
obtained from his right to institute a court action into the wages
and benefits that he lost as a result of Perry's alleged actions.
Similarly, Lee testified that, a few weeks after his
confrontation with Perry, he communicated his availability to work
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to GES and "was told right away there was nothing for me."
Undeterred, Lee continued to call in his availability to GES every
time it had a show. As with Flaherty, the evidence falls short
of showing that Lee's wages and benefits were voluntarily
relinquished. Lee persisted in trying to get work. The jury may
have believed that Perry threatened him and that Perry later played
a role in reducing his hours, but this does not amount to a
consented-to taking of Lee's wages and benefits. Lee filed
multiple grievances against both GES and Freeman and gave every
indication that he was persisting in protesting the taking of his
spot in the hiring line.
The Wellman count suffers the same defect. Wellman
called in for work "every single time that they had a show." He
did not consent to have his hours taken from him, even if the
government proved that they were in fact taken. Moreover, he
continued filing grievances against GES, so it cannot even be said
that he consented to stop filing grievances (assuming the
government was able to prove a connection between continuing to
protest the failure to uphold the 2003 Rule and the lost wages).
c. Threats
At oral argument the government emphasized that it did
not actually have to prove that any property was obtained with
anyone's consent, only that the defendants attempted to take
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property with the union members' consent because all of the counts
in the indictment alleged actual or attempted extortion. The
government thus argues that all of the threats indicated above
(the physical threats/actual violence committed against Flaherty,
Lee, and Wellman, and the menacing presence at the 2009 CBA vote)
were attempts to communicate the threat that the victims must
consent to their property being taken to protect themselves from
actual violence or economic harm. We reject the government's
theory.
The defendants' threats must have the specific purpose
of inducing another to part with his or her property. Coppola,
671 F.3d at 241. Here, the government demonstrated that Perry
already had control over the union members' wages and benefits
before any of the alleged threats. For this reason, for each of
the threats it identifies, the government argues that Perry
intended to communicate that further harm would result if the union
member persisted in opposing the alleged taking, or continued to
speak up against it.
For example, the government alleges that Flaherty could
interpret Perry's response to his request for help with his
suspension as a threat that, "if Flaherty persisted in trying to
get back to work, and earn the wages and benefits that came with
it, Perry . . . would have him beaten," and that, "Perry used the
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threat of physical violence to attempt to silence Flaherty and to
obtain and redirect wages that could have been Flaherty's to
others." Under this argument, however, what Perry's threats were
attempting to induce Flaherty to part with was Flaherty's
"persistence" and his "silence." The government does not argue
what the relationship between this persistence or silence and
Flaherty's wages and benefits was, nor do we think it can posit
one. Flaherty's wages and benefits had already been taken before
the threat and were returned after he consented to give up
something unrelated (his right to pursue a criminal action against
Burhoe). There simply was no attempted taking of wages and
benefits of Flaherty; rather, there was a successful taking that
did not amount to extortion.
Similarly, the government alleges that Perry's message
to Lee was "if Lee persisted in attempting to vindicate his
contractual right to preferential hiring, he would lose the ability
to work and earn wages entirely and might also be physically
harmed." Again, what Perry attempted to obtain was the
termination of Lee's persistence, although he failed to do so given
Lee's continued filing of grievances and persistent attempts to
obtain hours at GES.
With regard to Wellman, the government argues that the
jury could have believed that the threat was that Wellman "could
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either accept the status quo -- under which Perry and Burhoe gave
some of the jobs and wages that should [have] gone to Wellman to
their friends, family, and supporters -- or he could have no jobs,
no wages, and possibly be hurt or killed." This accounting is the
clearest statement of the government's attempt theory. The
government's argument in each instance amounts to asking us to
assume that the threat was an attempt to obtain consent to the
status quo -- a state in which Perry already exercised considerable
influence over union members' wages and benefits. However one
might characterize such a surrender, it cannot reasonably be
portrayed as a consented-to surrender of wages and benefits under
the Hobbs Act.
The government argues that during the 2009 CBA vote,
"Perry and Burhoe stood by the gate outside the union hall in a
calculated attempt to instill in the excluded members a fear of
physical harm if they persisted in their effort to vote or
otherwise influence the outcome of the vote." At most, this
indicates a threatened taking of a vote, which is also not a threat
to obtain wages and benefits.
The fatal flaw in the government's theory of attempted
extortion of wages and benefits is that it fails to include a
meaningful difference between attempted extortion of wages and
benefits and attempted extortion of LMRDA rights. All of the
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threats identified above are more proximately connected to the
exercise of LMRDA rights (voting, filing of grievances,
instituting legal actions) than they are to particular wages and
benefits. Yet, as explained above, the government has waived the
argument that those rights constitute transferable property within
the meaning of the Hobbs Act. Zannino, 895 F.2d at 17. Requiring
only a link between nontransferable property and transferable
property (here the alleged link being the exercise of LMRDA rights
has an impact on wages and benefits) in order to transform a taking
of nontransferable property into Hobbs Act extortion would render
the holding in Sekhar weightless. After all, the thing allegedly
extorted in Sekhar, "the general counsel's 'intangible property
right to give his disinterested legal opinion to his client free
of improper outside interference,'" was connected to transferable
property (an investment of money in a fund), but the property was
not of the kind contemplated under Hobbs Act extortion. 133 S.
Ct. at 2723, 2727. Here the attempted extortion was at most
directed at rights to file grievances, pursue court actions and
vote. Although the government may posit that there is a connection
between these rights and wages and benefits, attempted extortion
of the one cannot equate to attempted extortion of the second
without eliminating the distinctions made in Scheidler and Sekhar
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between obtainable, transferable property and nonobtainable,
nontransferable property.
For this reason, the threats the government identifies
constitute attempts at coercion rather than attempts at extortion.
Coercion is the use of "threats and acts of force and violence to
dictate and restrict the actions and decisions of [individuals]."
Scheidler, 537 U.S. at 406. Coercion was specifically not
included in the Hobbs Act, indicating that Congress intended to
include the greater crime of extortion but not the lesser crime of
coercion. Id. All of the threats identified above were, at most,
directed at forcing individuals to abandon particular actions
(grievances, general opposition), but they cannot be construed to
have been attempts at obtaining property with the victims' consent,
particularly given that Perry already allegedly controlled the
victims' access to wages and benefits, with or without the threats.
Ultimately, "[t]he Government's shifting and imprecise
characterization of the alleged property at issue betrays the
weakness of its case." Sekhar, 133 S. Ct. at 2727. We therefore
reverse Burhoe's convictions on counts 14 and 15 and Perry's
convictions on counts 14, 15, 17, 18 and 19.
V. RACKETEERING AND REMAINING CONSPIRACY COUNTS
Counts 1, 2 and 3 remain. Burhoe and Perry were both
found guilty of count 3, which alleged that:
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the defendants and their co-conspirators agreed to
obtain property of various entities throughout
Boston, including hotels, event planners, catering
companies, pharmaceutical companies, hospitals, music
entertainment companies, and nonprofit organizations,
to wit: money to be paid as wages for imposed,
unwanted, and unnecessary and superfluous services;
with the consent of such entities, their officers and
agents, which consent was induced by the wrongful use
of actual and threatened force, violence, and fear of
economic and physical harm to said entities and
others.
We have, however, reversed the convictions on the extortion counts
with regards to Perry and all but count 4 (Four Pints) with regards
to Burhoe. The convictions on count 3 can therefore only stand
if the facts concerning Four Pints, standing alone, can support
the government's conspiracy allegations.
We find insufficient evidence to connect Perry to the
single remaining extortion count and we therefore reverse Perry's
conviction on count 3. We also reverse with regards to Burhoe.
The facts presented by the government, in light of our reversal of
the other counts, indicate that if Burhoe committed extortion, he
extorted only one company, Four Pints. The government presented
no evidence to support a finding that there was a conspiracy to
extort Four Pints. The only evidence the government presented
with regards to Four Pints was the testimony of two of its owners,
who only spoke of an interaction with Burhoe. While it is true
that Burhoe was not the only one to profit from Four Pints (the
checks cashed had different names in the payee line) this is
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insufficient to prove an agreement between Burhoe and Perry, or
Burhoe and anyone else, to extort Four Pints. United States v.
Morales-Machuca, 546 F.3d 13, 20 (1st Cir. 2008) (Hobbs Act
conspiracy requires "an intent to agree and an intent to commit
the substantive offense." (quoting United States v. Palmer, 203
F.3d 55, 63 (1st Cir. 2000))).
Count 1 alleged racketeering and count 2 alleged
racketeering conspiracy. The government contended that Local 82
itself was a racketeering enterprise. Having reversed all but one
of the extortion count convictions, we are left with at most one
racketeering act by Burhoe. Because the government was required
to prove a "pattern of racketeering activity," which has been
defined as requiring at least two predicates, we find insufficient
evidence to support Burhoe and Perry's convictions on count 1.
Aetna Cas. Sur. Co. v. P & B Autobody, 43 F.3d 1546, 1561 (1st
Cir. 1994). We also find insufficient evidence to meet the
government's burden as to count 2. While it is unnecessary to
prove that the defendants committed two predicate offenses in order
to prove a racketeering conspiracy, the government does have to
prove that the defendants "agreed with one or more others that two
predicate offenses be committed." Id. at 1562. Because we find
that only one of the predicate acts might constitute extortion, we
find that the government provided insufficient evidence that the
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defendants agreed to engage in a pattern of racketeering activity.
We therefore reverse Burhoe and Perry's convictions on count 2.
VI. PROHIBITION AGAINST CERTAIN PERSONS HOLDING OFFICE
There is one remaining count of the indictment that we
have yet to consider. Count 29 charged Burhoe and Perry with
violating 29 U.S.C. § 504(a), which prohibits persons with certain
criminal convictions from serving in particular capacities within
a union. In relevant part, § 504(a) prohibits anyone convicted
of certain enumerated offenses from willfully serving, inter alia,
as a consultant, advisor, officer, director, trustee, member of
the board, or "representative in any capacity" of a labor
organization within thirteen years after the term after the
imprisonment for that conviction ends. It further bars anyone
from willfully retaining such a person to serve in any of those
capacities in violation of the statute. The parties stipulated
that Burhoe had been convicted of a disqualifying crime and that
his imprisonment had ended within thirteen years before the conduct
at issue in this case. The defendants' violations of this
prohibition hinges, therefore, on whether Burhoe was acting in one
of those particular capacities, even though he did not hold an
official union position. The jury convicted both Burhoe and Perry
on this count.
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Preliminarily, as we have either reversed or vacated all
the extortion convictions within the meaning of the Hobbs Act, we
find it necessary to state that nothing in our analysis of those
Hobbs Act counts casts doubt on the evidence showing that the
defendants actually threatened certain actions for certain
purposes. While those actions may not be of a kind that suffices
to prove "wrongful" conduct under the Hobbs Act, they may still be
considered as to the separate question of whether Burhoe was acting
as a prohibited person, or whether Perry retained him as such.
The defendants raise two principle contentions: 1) that
the government's evidence was legally insufficient to show that
Burhoe served as a union steward or representative in any capacity,
and 2) that the government failed to establish that Burhoe was not
eligible to serve in a union position. As to their first
contention, the defendants claim that Burhoe was not a qualifying
union representative within the meaning of § 504(a) as he never
held a formal union position, but rather acted as an unofficial
company foreman. The government disagrees, arguing that
§ 504(a)'s "representative in any capacity" language is
sufficiently broad to encompass service as an informal
representative, and that it presented sufficient evidence that
Burhoe held himself out as a union representative, union members
and employers viewed him as such, and that Perry directed him to
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act accordingly. The government's argument was perhaps best
addressed in its opening statement at trial.
Burhoe acted as a representative of Local 82 in
several ways. He acted as a representative of Local
82 management when he extorted Ed Flaherty's ability
to express his views about John Perry. He acted as a
representative of Local 82 management when he extorted
Robert Wellman's ability to testify on behalf of
Edward Lee about Perry's assault in the BCEC. He
acted as a representative of Local 82 management when
he provided muscle for members of Local 82 from coming
into the union hall to exercise their equal right to
democratic participation on the business of the union.
He acted as a representative of Local 82 when he
extorted payoffs for superfluous, unneeded,
fictitious work from nonunion businesses, work they
didn't need or want. And Burhoe acted as a
representative of Local 82 when he decided who got
called to work for certain union employers in Boston.
We review questions of statutory interpretation de novo.
United States v. Hartsock, 347 F.3d 1, 4 (1st Cir. 2003). After
review, we decline the defendants' invitation to view § 504(a) so
narrowly as to limit its application to official union
representatives. To the contrary, we view the "representative in
any capacity" language of § 504(a) as sufficiently broad to include
Burhoe's sustained de facto delegation and exercise of union
authority with Perry's knowledge. Had the drafters of § 504(a)
sought to limit the application of the statute to only encompass
holders of official positions, they would have explicitly done so.
Nothing in the statutory language suggests such a narrow
interpretation. See United States v. Int'l Bhd. of Teamsters,
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Chauffeurs, Warehousemen, and Helpers of America, AFL-CIO, 838 F.
Supp. 800, 813 (S.D.N.Y. 1993) (refusing to narrowly interpret
§ 504(a) to paid individuals); see also Brown v. United States,
334 F.2d 488, 492 (9th Cir. 1964), aff'd, 381 U.S. 437 (1965).
The clear language of § 504(a)(2) intentionally leaves open the
category of "representative of any capacity" as to distinguish it
from the other official positions delineated within the
subsection. The broader interpretation is consistent with the §
504(a)'s intent to prevent persons with certain criminal
convictions from exerting power within labor unions. See Brown,
334 F.2d at 492.
Viewing the evidence presented in the light most
favorable to the verdict, United States v. Walker, 665 F.3d 212,
220 (1st Cir. 2011), we find that the evidence presented by the
government was sufficient to show that Perry used Burhoe as a
qualifying representative of the Union in a de facto capacity,
falling within the meaning of § 504(a).
We turn to the defendants' second contention that the
government failed to establish that Burhoe was ineligible to serve
in a union position. Section 504(a) establishes exceptions to the
prohibition on holding office by providing that it applies unless,
prior to the end of the thirteen year bar, either the defendant's
citizenship rights are restored (if they had been revoked because
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of the underlying conviction) or the sentencing court for the
underlying conviction determines that the defendant may
nevertheless serve as a union official. The defendants argue that
this "unless" clause establishes an element of the crime, and the
government's failure to offer any evidence as to this element
renders the evidence insufficient to support the conviction.
While neither defendant states that the "unless" clause applies to
Burhoe, they suggest that the government was required to present
some evidence to establish the alleged element. The defendants
point to two statutes in which an "unless" clause establishes an
element of the crime that the government must affirmatively prove:
8 U.S.C. § 1326, criminalizing reentry into the United States
unless the Attorney General consents to reentry, see United States
v. Earle, 488 F.3d 537, 539-46 (1st. Cir. 2007), and an obsolete
Washington D.C. statute from 1967, D.C. Code Ann. § 22-201(repealed 2003), criminalizing abortion unless necessary for the
mother's health. See United States v. Vuitch, 402 U.S. 62, 67-71
(1971).
The government counters that § 504(a)'s "unless" clause
does not establish an element of the crime, but rather constitutes
an affirmative defense that the defendants bear the burden to
prove. The government equates the current case to our finding in
United States v. Bartelho, in which we held that a showing that
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the defendant's civil right to carry had not been restored was not
an element of 18 U.S.C. § 921(a)(20)'s prohibition of certain
persons to possess a firearm, 71 F.3d 436, 439-440 (1st Cir. 1995).
Therefore, the government contends that the district court
properly held that the government was under no obligation to prove
"the non-restoration of" Burhoe's rights.
Because the defendants failed to previously object to
this issue, we review for plain error, United States v. Ponzo, 853
F.3d 558, 570 (1st Cir. 2017), requiring that the defendants meet
the onerous task of showing both that any error was clear or
obvious, and that it affected their substantial rights. United
States v. Karmue, 841 F.3d 24, 27 (2016); United States v.
Savarese, 686 F.3d 1, 12 (1st Cir. 2012). They fail to do so.
The defendants have failed to show that the "unless" clause of
§ 504(a) clearly or obviously sets forth an additional element of
the offense. We note that the defendants did not challenge either
the indictment or the jury instructions given by the district court
on count 29 with respect to the fact that neither included the
"unless" clause as an element of the offense. In addition, the
defendants' own proposed jury instructions as to count 29 failed
to list this "unless" clause as an element of the offense. In
light of this acquiescence, we struggle to find a clear or obvious
error. See United States v. Ríos-Hernández, 645 F.3d 456, 463 (1st
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Cir. 2011) (finding no clear or obvious error where defendant
acquiesced to characterization of prior convictions as crimes of
violence); see also United States v. Turbides-Leonardo, 468 F.3d
34, 39 (2006) (finding no clear or obvious error where defendant
seemingly acquiesced to the PSI report and the district court
accordingly sentenced the defendant). The plain language of the
statute reasonably lends itself to the same conclusion reached by
the district court. Thus, to the extent that the district court
erred at all, that error was not plain. See United States v.
Marcano, 525 F.3d 72, 74 (1st Cir. 2008).
Finding the evidence presented at trial sufficient to
convict Burhoe and Perry of violating 29 U.S.C. § 504(a), we
refrain from disturbing the jury's verdict and affirm the
defendants' convictions as to Count 29.
VII. CONCLUSION
For the reasons stated above, we REVERSE Perry counts 1,
2, 3, 11, 14, 15, 17, 18 and 19. We REVERSE Burhoe counts 1, 2,
3, 5, 7, 13, 14, 15, and 19. We VACATE AND REMAND Burhoe count
4. We AFFIRM Burhoe and Perry count 29.
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