Case 1:16-cr-10137-LTS Document 90 Filed 03/10/17 Page 1 of 12

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________
)
UNITED STATES OF AMERICA )
)
v. ) Case No. 16-cr-10137-LTS
)
KENNETH BRISSETTE and ) Leave to file granted on March 10, 2017
TIMOTHY SULLIVAN )
__________________________________________)

JOINT REPLY MEMORANDUM IN SUPPORT OF

DEFENDANTS MOTION TO DISMISS

The Bill of Particulars produced in this case sets forth the particulars of the events which

the government contends constituted wrongful behavior, see Order (dkt #65) at 8, as follows:

The defendants, who were careful choosing the words they used, either explicitly stated
or intimated that they wanted Crash Line Productions to hire members of [Local 11] for
the September Boston Calling event. The defendants stated that [Local 11] was unhappy
that they were not part of the Boston Calling Festival. Crash Line Productions made
clear to the defendants that they already had a contract with Bill Kenney Productions and
were happy with the labor they had hired. The defendants conveyed that if [Local 11]
was not hired, they [Local 11] would picket and come with the blow up rat, which would
be a problem for both Crash Line and the mayor. Crash Line told the defendants they
would have to fire people to take on members of [Local 11]. The defendants stated that
everyone had to get a fair shake and a shot at working this event. They further stated that
the mayor has a background in working with unions and wanted to find a way to bring
everyone to the table to get everyone working together. The defendants told Crash Line
that half of their crew had to be [Local 11] members. Crash Line told the defendants that
hiring that amount of [Local 11] members would cripple them financially. An agreement
was negotiated between the defendants and Crash Line to hire eight [Local 11] members.

See Dkt #83-1 at 1-2, 4 (Bill of Particulars). Nothing in the Bill of Particulars or the

Superseding Indictment identifies any express or implied communication between the

Defendants and Company A (referred to as Crash Line in the Bill of Particulars) concerning

permits in any way.

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The governments Opposition to Defendants Motions does not, however, address the

allegations in those charging documents, relying instead on alternative facts.1 Whereas the Bill

of Particulars alleges nothing about permits, the governments Opposition repeatedly argues

without any citation whatsoever that the Defendants with[held] permits and licenses in order to

extract a promise from a private party to use union labor. See Govts Opp. (dkt #86) at 18; see

also id. at 19 (accusing Defendants of [f]orcing Company A to enter into an agreement with

Local 11 in September 2014 in order to move forward with the music festival on City Hall

Plaza), id. at 20 (asserting that the defendants knew they had no right to withhold permits

based on whether the victim company utilized union or non-union labor); 22 (claiming that the

defendants knew they had no right to withhold permits . . . [so] defendants threats were

wrongful); id. at 24 (asserting Company A reasonably believed that if they did not cooperate

with the defendants, they would not obtain their permits and would have less of a shot at a long

term license agreement. The defendants were well aware of Company As concerns and fears of

economic loss and exploited these fears); id. at 27 (arguing that the Indictment withstands the

Due Process Clause because the defendants conditioning of the victims freedom from their

wage demands on the arbitrary and discriminatory denial of city permits . . .was inherently

wrongful).2

Of course, none of those allegations was found by the grand jury in the Superseding

Indictment or disclosed pursuant to the Order to produce a Bill of Particulars. That the

1
In the entire 29-page Opposition, the government cites to the Superseding Indictment only twice once on page 4,
when it quotes the charging paragraphs, and once on page 5, when it identifies the property at issue. The
government does not cite the Bill of Particulars at all.
2
This rhetoric is improper not only because it does not appear anywhere in the charging documents, but also
because the government knows quite well that neither defendant had authority to issue permits such as those sought
by Company A in this case. Moreover, Company As principal expressly told the government that there was no
mention of permitting by Brissette or Sullivan in any conversations with Company A prior to the September 2014
event. See Exhibit C to Defendants Joint Memorandum (dkt #83-3) at 5, G.

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government cannot even cite to its own charging documents speaks volumes about the

sufficiency of the allegations in this case. It also demonstrates the concern voiced in United

States v. Tomasetta, 429 F.2d 978, 980 (1st Cir. 1970) and cited in the Magistrate Judges Order

(dkt #65) at 9 that this prosecution will, if allowed, continue to roam at large in an effort to

develop a viable Hobbs Act theory. The government has utterly failed to oppose Defendants

arguments that the actual charging documents in this case do not set forth a Hobbs Act violation.

For this reason alone, the Court should dismiss this case. As demonstrated in Defendants

opening briefs and below, however, this case is also subject to dismissal because both the

charging documents and the rhetorical proffer set forth in the governments Opposition fail to

allege several essential elements of the charged offense, including the obtaining of any property

by the Defendants, any threats made by the Defendants, and any fear of the Defendants on the

part of the putative victims.

A. Neither the Charging Documents Nor the Governments Proffer Allege that the
Defendants Obtained or Attempted to Obtain Any Property from Company A

The government spends a good portion of its Opposition convincing the Court that wages

to be paid to union workers can constitute property under the Hobbs Act. Defendants agree.

The issue here is that neither of the Defendants is alleged to have obtained that property, as

required by the plain language of the Hobbs Act and Supreme Court precedent. Similarly, the

government relies heavily on United States v. Green, 350 U.S. 415 (1956) for the proposition

that Hobbs Act extortion in no way depends upon having a direct benefit conferred on the

person who obtains the property. See Govts Opp. (dkt #86) at 6. Again, that may be true, but

that is not the Defendants argument. Their argument is that they did not obtain any property,

not that they did not get a direct benefit from the property they obtained. See Defendants Joint

Memo (dkt #83) at 6-13.

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The government has failed to cite a single case where the defendants were not alleged to

have obtained the property that was supposedly extorted. In Green and in United States v.

Larson, the other union wage case on which the government relies, the defendants were

members of the union (and, in Green, the union itself), each of whom were alleged to have

engaged in threats, physical violence, and property damage in an attempt to force employers to

hire them. See Green, 350 U.S. at 416-17;3 United States v. Larson, 2013 WL 5573046, *1

(W.D. N.Y. Oct. 9, 2013). Obviously, here, the defendants are not members of the union that is

alleged to have received the wages and benefits at issue.

Larson is, however, informative to this Courts analysis. The indictments in that case

alleged, prior to Sekhar, that the union member defendants had attempted to obtain four types of

property in violation of the Hobbs Act: (1) wages and benefits to be paid pursuant to labor

contracts with Local 17; (2) jobs and wages and benefits paid to non-union workers; (3) the

employers right to make business decisions free from outside pressure; and (4) wages and

employee benefits to be paid for unwanted, unnecessary, and superfluous labor. Larson at *4.

After Sekhar, the defendants moved to dismiss the indictment on the ground that all four types of

property derived from the core accusation that the defendants sought to deprive contractors of

the right to make business decisions free from outside pressure. Id. The court agreed that the

right to make business decisions free from outside pressure was not obtainable property under

the Hobbs Act after Sekhar, and questioned whether wages and benefits from non-union workers

survived Sekhar as well. Id. at *7 Nonetheless, the court allowed the case to go forward because

it found that two types of the property alleged to be at issue in that case withstood Sekhar the

3
The Supreme Court has since noted that Greens holding was carefully limited to the charges in that case, which
consisted of both actual and threatened force, violence, and fear and a wrongful purpose to obtain money from
the employer that the union officials had no legitimate right to demand. See United States v. Enmons, 410 U.S.
396, 408 (1973).

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wages and benefits to be paid to the union members pursuant to labor contracts, and the wages

and benefits to be paid for unwanted, unnecessary and superfluous labor. Id. at *5-6.

The Superseding Indictment in this case copies exactly the two types of property that the

Larson court initially found withstood Sekhar. See Sup. Ind. at 20, 21. Importantly, however,

two years after issuing its decision in Larson, the same court in the same prosecution revisited

the issue of whether wages to be paid for unwanted, unnecessary, and superfluous labor

constitutes obtainable property under the Hobbs Act. See United States v. Kirsch, 2015 WL

1472122, *2-3 (W.D. N.Y. March 31, 2015) (Kirsch I).4 At that time, the court rejected the

governments position (which is also the governments position here) that union labor is

unwanted, unnecessary, and superfluous simply because the employer preferred not to hire

union workers. The court reasoned that even assuming that the replacement union workers

were unwanted by the employer (perhaps because it had to pay higher wages and benefits), and

even assuming that the union workers were unnecessary (perhaps because the employer already

had a non-union employee performing the job), under no circumstances were the so-called

replacement union workers in this case superfluous, because it is undisputed that the employers

genuinely wanted and needed the work completed. Id. at *5. Accordingly, the court held that

unwanted, unnecessary, and superfluous labor, as alleged in the indictment in this case, does

not include the replacement of a non-union worker with a union worker to perform genuine,

needed work, id. at *5 (emphasis added), and acquitted the defendant of those counts that were

based on that theory.5 Here, the government has alleged that Company A told the defendants

4
The Local 17 prosecutions in the Western District of New York spanned ten years and involved twelve defendants,
including Mr. Kirsch and Mr. Larson.
5
One court in this district has since adopted that reasoning. See Order (dkt #132) at 21 n. 12, United States v.
Fidler, 15-cr-10300-DPW ([I]t is the services as opposed to the worker or laborer that must be unwanted,
unnecessary, and superfluous.).

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they would have to fire people to take on members of [Local 11]. See Dkt #83-1 at 1-2, 4.

That allegation puts the Superseding Indictment squarely in the cross-hairs of Kirsch I.

The governments remaining cases all involve defendants who actually obtained the

property at issue typically in the form of illegal payoffs directly from the victims. See United

States v. Cerilli, 603 F.2d 415, 418, 422 (3d Cir. 1979) (in shakedown scheme, multiple

victims testified that they handed cash to defendants in exchange for being able to lease their

equipment to the Pennsylvania Department of Transportation); United States v. Jacobs, 451 F.2d

530, 538-39 (5th Cir. 1971) (defendants physically received $50,000 in cash from victim to be

used to pay off councilman); United States v. Tropiano, 418 F.2d 1069, 1072-73 (2d Cir. 1969)

(defendants, by threats of violence, forced [victim] to cease and desist from attempting to take

away any more of defendants business and to consent not to solicit any more business in that

area so that defendants could get that business); United States v. Provenzano, 334 F.2d 678,

681-83, 686 (3d Cir. 1964) (extortionate scheme began with victim paying defendant cash in the

mens room of a restaurant and continued for years, with payments ultimately shifting to

retainer payments made in the name of a lawyer referred to victim by defendant, and whom the

victim never met).

The closest the government gets is the pre-Sekhar case of United States v. Vigil, 523 F.3d

1258 (10th Cir. 2008), in which the Tenth Circuit upheld an extortion conviction based on

theories of under color of official right and wrongful use of economic fear. But there, unlike

here, the defendant expressly and repeatedly directed the victim to hire an unqualified woman

because the defendant owed her husband, Michael Montoya, for past political favors,

threatened to deny the victims bid for a public contract unless he agreed to pay the woman 40%

of his gross receipts from the contract, and ultimately did deny the victims bid in favor of a

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different individual who admittedly knew nothing about securities lending but who agreed to

hire [the woman] as a condition of receiving the . . . contract. Id. at 1261-62. The Tenth Circuit

upheld the conviction because Mr. Vigil misused his office for private gain. Mr. Vigil was not

merely taking account of political considerations in awarding a contract, but conditioning the

award of the contract on the hiring of a specified individual at the price she named to pay off a

personal political debt. Id. at 1264; accord id. at 1265 (government proved fear of economic

harm case where evidence at trial suggested that the compensation was intended as a personal

payoff to Mr. Vigils former associate Mr. Montoya rather than to achieve a legitimate objective

such as ensuring SECSYS, LLC has sufficient computer monitoring and reporting expertise).

Thus, while the defendant in Vigil may not have tried to physically obtain money, he certainly

sought to obtain the payment of his debt to Mr. Montoya. Obviously, nothing anywhere near the

circumstances in Vigil has been alleged here.

The Supreme Court has been clear: the obtaining of property is the element that

distinguishes Hobbs Act extortion. See, e.g., Sekhar v. United States, 133 S. Ct. 2720, 2724-26

(2013); see also 18 U.S.C. 1951(b)(2) (defining extortion to mean the obtaining of property

from another); Defendants Joint Memo at 6-13. In the absence of any allegation that

Defendants themselves obtained the wages and benefits at issue, the charging documents fail

to allege a Hobbs Act violation.

B. Neither the Charging Documents Nor the Governments Proffer Allege that
Defendants Impliedly Threatened Anyone

The government also spends a good portion of its Opposition arguing that an implied or

indirect threat, often defined as conduct that amounts to preying upon or exploiting an existing

fear, may be enough to satisfy the Hobbs Act. See, e.g., Govt. Opp. (dkt #86) at 9-12; United

States v. Bucci, 839 F.2d 825, 828 (1st Cir. 1988) (government need not establish an express

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threat if the victim understood the defendants conduct as an implied threat). Defendants agree

with that general proposition. The problem for the government is that neither the Superseding

Indictment nor the Bill of Particulars alleges that the Defendants took any action toward

Company A that could constitute an implied threat as a matter of law.

In United States v. Boylan, 898 F.2d 230, 254 (1st Cir. 1990), the First Circuit upheld a

jury instruction that allowed the jury to convict under the Hobbs Act despite the absence of any

direct threats because it found that the remainder of the instructions did not negate[] the need

for the prosecution to prove intent to exploit. In addition, the court told the jurors that (1) a

conviction would have to be based on the exploitation of the payors fear, and (2) a defendant

must have wrongfully used that fear to induce the payors consent. Id. Here, there is no

allegation anywhere in the charging documents that the Defendants did or said anything that

could conceivably constitute an exploitation of a known fear, much less that they wrongfully

used Company As fear in any way. The government acknowledges as much by completely

ignoring the charging documents and instead improperly proffering what it thinks it can prove at

trial. See Govts Opp. (dkt #86) at 12-13. But stripped of its rhetoric, even that proffer fails to

allege that the Defendants did or said anything that directly or indirectly, explicitly or impliedly,

threatened Company A in any way. Accord Exhibit C to Defendants Joint Memorandum (dkt

#83-3) at 5, G.6

The cases on which the government relies each involved the communication of a threat,

express or implied, to the victim of the extortion. See, e.g., Bucci, 839 F.2d at 828 (victim

6
The closest the government gets is the timing of the September 2nd meeting in relation to the start of the concert
event. See Govt. Opp. at 13. But if in fact as alleged in the Bill of Particulars defendants were trying to avoid a
picket, it makes perfect sense that they would want to resolve the issue before the event, not after. In the absence of
any alleged communication about permits between the defendants and the putative victims, the timing of the
meeting alone does not transform perfectly legitimate conduct into an extortionate threat, particularly given that the
entertainment license the government claims was of the most concern to Company A had been preliminarily
approved five days before. See n. 8, infra.

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testified that appellants communicated to him during the meeting that he would not be awarded

the contract if he refused to agree to pay them twenty percent of it); United States v. Lisinski,

728 F.2d 887, 889 (7th Cir. 1984) (defendant sought and received personal payoffs from victim in

exchange for the defendants help in avoiding problems with his liquor license and defendant

implied that the license would be in jeopardy if he was not paid enough); Kirsch I, 2015 WL

1472122 at *3 (defendant used actual or threatened violence to force employers to replace non-

union workers with union workers); id. at *8 (describing threatening conduct at issue);7 see also

United States v. Capo, 817 F.2d 947, 950-51 (2d Cir. 1987) (absence of evidence that defendant

threatened to harm victims meant government failed to prove Hobbs Act violation as a matter of

law).

Without any alleged threat, the government has inherently failed to allege that the

defendants wrongfully used Company As fear to induce it to hire Local 11. Accord Sanchez

v. Triple-S Management Corp., 492 F.3d 1, 12 (1st Cir. 2007) (fear under the Hobbs Act

includes economic fear, but only if the fear is independently shown to be wrongful, because

there is nothing inherently wrongful about the use of economic fear to obtain property, as

opposed to the use of threatened force or violence to do so) (citing United States v. Strum, 870

F.2d 769, 772-72 (1st Cir. 1989)). Indeed, even the government acknowledges that there is

nothing inherently illegal about a public official making a request of a private party on behalf of

a constituent private party, or bringing two private parties together and encouraging discussion

7
The government does not cite Kirsch I, which both sets forth the threatening and violent conduct at issue and
rejects the governments theory that unwanted, unnecessary and superfluous labor includes circumstances where
an employer hires a union worker, however grudgingly, to perform genuine, needed work. See pp. 4-6, supra.
Instead, the government cites a later decision in the same prosecution. See Govt Opp. at 10 (citing United States v.
Kirsch, 151 F.Supp.3d 311, 313-14 (W.D.N.Y. 2015) (Kirsch II). In so doing, the government suggests that
Kirsch was a fear of economic harm case. See id. Not so. As is clear from Kirsch I, the only convictions that
survived the jurys verdict and the courts ruling on defendants Rule 29 motion were those involving physical force
and violence. See Kirsch I at *7-8.

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and consideration . . . . See Govt Opp. (dkt #86) at 14. Although the government argues that

the Superseding Indictment alleges more, id., in fact it alleges nothing more hence the

governments failure to cite to anything in the Indictment and the Bill of Particulars in support of

its argument.

With nearly eighty years of Hobbs Act jurisprudence on which to draw, the government

failed to identify a single case like this one where there is no allegation in the charging

documents or in the governments proffer that either defendant expressly or impliedly, directly or

indirectly, threatened to take any action that might harm Company A. This is not a viable Hobbs

Act case.

C. Neither the Charging Documents Nor the Governments Proffer Allege That the
Putative Victims Were in Fear of Defendants

In United States v. Capo, 817 F.2d 947 (2d Cir. 1987), a case cited by the government in

its Opposition, the en banc Second Circuit dismissed a Hobbs Act prosecution despite the fact

that the defendants had received multiple personal payoffs in exchange for their

recommendations that Kodak hire the people who paid them bribes. Id. at 950-51. The Second

Circuit noted that although the government need not prove a direct threat, it must still prove

that the victim reasonably believed: first, that the defendant had the power to harm the victim,

and second, that the defendant would exploit that power to the victims detriment. Id. at 951

(emphasis in original). On the facts before it, the court found that the evidence of fear of

economic loss was insufficient here as a matter of law, in part, because there was no evidence

that any defendant did, in fact, negatively influence any hiring decision or even attempt to do

so. Id. at 952; accord id. at 943 (it is not enough to establish extortion by wrongful use of fear

of economic loss . . . [w]ithout evidence that the victims feared that defendants would impair

their prospects of being hired); United States v. Sturm, 671 F. Supp. 79, 89 (D. Mass. 1987)

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(While the term fear includes fear of economic loss, there is no extortion unless the payments

were made under some form of compulsion.) (reversed in part on separate grounds at 870 F.2d

769 (1st Cir. 1989)).

Here, there is no allegation that Company As principals feared that the Defendants

would take any action to harm their company. The government concedes in its Opposition that

the principals of Company A were not concerned about picketing or [Local 11] putting up a

rat, which is the only topic the defendants are alleged to have discussed with them. See Govt

Opp. (dkt #86) at 24 (emphasis added); Dkt #83-1 at 1-2 4.8 And it is undisputed that

Company As principals did not think anyone was out to harm Crash Line and believed [the

Defendants] were trying to avoid a picket. See Exhibit C to Defendants Joint Memo (dkt #83-

3) at 5, G. The charging documents and the governments proffer thus fail to establish a viable

Hobbs Act case as a matter of law on this element as well.

CONCLUSION

Two public servants have been publicly accused of committing the federal crime of

Hobbs Act extortion despite the fact that neither the Superseding Indictment nor the Bill of

Particulars alleges that they explicitly or implicitly threatened the putative victims, or that they

acquired any money or other property from the putative victims, or that the putative victims

feared that the Defendants intended to or would cause their company any harm. The

governments failure to identify actual allegations on any of these points should be taken for

8
The government claims that Company A was fearful when it met with the defendants on September 2 nd because it
had not received the entertainment license it needed for the upcoming event and because it wanted a long term
license agreement. See Govt Opp. (dkt #86) at 13. Of course, there is no hint of any long term license agreement
in the Superseding Indictment or the Bill of Particulars. As for the entertainment license, presumably referred to as
permits in the Superseding Indictment, the government knows that it was signed on August 28 th and approved on
September 2nd because it produced the signed and approved license at Bates number USA00006366 in discovery in
this case. Regardless, as set forth above, the government has conceded that Company A was not afraid of anything
the defendants were talking about or the defendants themselves, and that is enough to support dismissal.

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what it is a tacit admission that the Superseding Indictment as informed by the Bill of

Particulars fails to set forth a viable Hobbs Act case.

Respectfully submitted,
KENNETH BRISSETTE,
By his attorneys,

/s/ William H. Kettlewell

/s/ Sara E. Silva____________
William H. Kettlewell (BBO # 270320)
Sara E. Silva (BBO # 645293)
COLLORA LLP
100 High Street, 20th Floor
Boston, MA 02110
(617) 371-1000
(617) 371-1037 (fax)
wkettlewell@collorallp.com
ssilva@collorallp.com

TIMOTHY SULLIVAN,
By his attorneys,

/s/ William J. Cintolo

/s/ Thomas R. Kiley
William J. Cintolo (BBO # 084120)
Thomas R. Kiley (BBO # 271460)
COSGROVE EISENBERG & KILEY
One International Place, Suite 1820
Boston, MA 02110
(617) 439-7775 (tel)
(617) 330-8774 (fax)
tkiley@ceklaw.net
wcintolo@ceklaw.net

Dated: March 10, 2017

CERTIFICATE OF SERVICE

I hereby certify that this document filed through the ECF system will be sent electronically to the registered
participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as
nonregistered participants on March 10, 2017.

/s/ William H. Kettlewell

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