UNITED STATES of America, Appellee, v. Joseph BURHOE, a/k/a Jo Jo, and John Perry, Defendants, Appellants.
Nos. 15-1542, 15-1612
United States Court of Appeals, First Circuit.
September 8, 2017
Before Torruella, Kayatta, and Barron, Circuit Judges.
TORRUELLA, Circuit Judge.
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.
INDEX
INDEX...5
INTRODUCTION...6
I. BACKGROUND...6
II. HOBBS ACT OVERVIEW...7
A. The Hobbs Act and Labor Law...7
B. “Wrongful“...8
C. “Property“...9
III. EXTORTION OF NONUNION COMPANIES...10
A. Background...10
1. Four Pints...10
2. Brigham and Women‘s Hospital... 11
3. U.S. Green Building Council & Wolfgang Puck Catering...11
4. Great Bridal and Westin Waterfront Hotel...12
5. Massachusetts General Hospital... 12
B. Analysis...12
IV. EXTORTION OF UNION MEMBERS...22
A. Background...22
2. James Lee...23
3. Robert Wellman...24
4. 2009 CBA vote... 24
B. Analysis...24
1. LMRDA Rights...24
2. Wages and Benefits...26
a. Property...26
b. Consent...28
c. Threats...29
V. RACKETEERING AND REMAINING CONSPIRACY COUNTS...31
VI. PROHIBITION AGAINST CERTAIN PERSONS HOLDING OFFICE...32
VII. CONCLUSION...35
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
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 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 Bu
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.
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“).
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 sys
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,” 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.
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.
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 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)
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.”
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 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).
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, 570 U.S. 729 (2013), holding that obtaining property “requires that the victim ‘part with’ his property and that the extortionist ‘gain possession’ of it.” Id. at 735 (quoting Scheidler, 537 U.S. at 403 n.8) (internal citation omitted). The 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 735.
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 pro-
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.
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 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
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 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,
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 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 “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
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
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.” U.S. v. Green, 350 U.S. 415, 417 (1956). 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,
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 construed to repeal, modify or affect” various provisions of the federal labor laws, including the NLRA.
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 Enters., Inc., 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.”
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 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, 1532-33 (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)].“).
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.
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 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 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 defini-
tion 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 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 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
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
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 United States v. Kemble, 198 F.2d 889, 892 (3d Cir. 1952)). In Kemble, a business agent for a union intercepted an out-of-town truck driver unloading a shipment of merchandise. Kemble, 198 F.2d 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.
Id. at 892. Kemble described the work sought by the union‘s agent as “imposed, unwanted and superfluous.” Id. 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 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.
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 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 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 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 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
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.
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 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.
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: “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 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--king 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 dramati-
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 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.
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.
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
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 that LMRDA rights constitute property under the
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
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 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
Thus, the government had to prove that the defendants obtained the property at issue. Scheidler, 537 U.S. at 404. In 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
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 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
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 transferable poses particular challenges to the government under the second element of
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. 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
Similarly, Lee testified that, a few weeks after his confrontation with Perry, he communicated his availability to work 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 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 threat of physi-
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 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
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 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
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
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:
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 insufficient to prove an agreement between Burhoe and Perry, or Burhoe and anyone else, to
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 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
Preliminarily, as we have either reversed or vacated all the extortion convictions within the meaning of the
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
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
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
We turn to the defendants’ second contention that the government failed to establish that Burhoe was ineligible to serve in a union position. Section
The government counters that
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
Finding the evidence presented at trial sufficient to convict Burhoe and Perry of violating
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.
UNITED STATES of America, Appellee,
v.
Dimitry GORDON, Defendant, Appellant.
No. 15-2087
United States Court of Appeals, First Circuit.
September 8, 2017
Notes
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.