APPEALS
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. William G. Young, U.S. District Judge]
Martin
G. Weinberg, with whom Kimberly Homan, were on brief, for
appellant Tavares.
Judith
H. Mizner, Assistant Federal Public Defender, for appellant
O'Brien.
John
A. Amabile, with whom James Bradbury and Amabile &
Burkly, P.C., were on brief, for appellant Burke, III.
Stephan E. Oestreicher, Jr., Attorney, Appellate Section,
Criminal Division, U.S. Department of Justice, with whom
Leslie R. Caldwell, Assistant Attorney General, Sung-Hee Suh,
Deputy Assistant Attorney General, Carmen M. Ortiz, United
States Attorney, Fred M. Wyshak, Jr. and Karin M. Bell, both
Assistant United States Attorneys, were on brief, for
appellee.
Before
Torruella, Kayatta, and Barron, Circuit Judges.
TORRUELLA, Circuit Judge.
Defendants-appellants
John O'Brien, Elizabeth Tavares, and William Burke appeal
their convictions for Racketeer Influenced and Corrupt
Organizations ("RICO") violations, 18 U.S.C. §
1962(c), RICO conspiracy, 18 U.S.C. § 1962(d), and mail
fraud, 18 U.S.C. § 1341, based on their roles in a
hiring scheme at the Massachusetts Office of the Commissioner
of Probation ("OCP") from 2000 to 2010.
O'Brien, Tavares, and Burke previously served as
high-ranking officials in the OCP. There, they catered to
hiring requests from members of the state legislature with
the hope of obtaining favorable legislation for the
Department of Probation and the OCP. Although the actions of
the defendants may well be judged distasteful, and even
contrary to Massachusetts's personnel laws, the function
of this Court is limited to determining whether they violated
the federal criminal statutes charged. We find that the
Government overstepped its bounds in using federal criminal
statutes to police the hiring practices of these
Massachusetts state officials and did not provide sufficient
evidence to establish a criminal violation of Massachusetts
law under the Government's theory of the case. We
reverse.
I.
We
provide a summary of the most salient facts as the jury might
have found them.
Many of
the defendants' claims of error are predicated on the
sufficiency of the evidence, for which we must evaluate the
evidence "in the light most favorable to the
verdict" and determine whether the "evidence,
including all plausible inferences drawn therefrom, would
allow a rational factfinder to conclude beyond a reasonable
doubt that the defendant committed the charged crime."
United States v. Manso-Cepeda, 810
F.3d 846, 849 (1st Cir. 2016) (quoting United States
v. Santos-Rivera, 726 F.3d 17, 23 (1st Cir.
2013)).
A.
The OCP and the Hiring Framework
O'Brien,
Tavares, and Burke worked in the OCP, which serves as the
central office of the Massachusetts Probation Department and
employs the Commissioner of Probation, deputy commissioners,
and regional supervisors, also known as regional
administrators. The OCP is responsible for staffing
approximately 1, 600 employees in about 100 probation offices
throughout Massachusetts. O'Brien served as the
Commissioner of Probation (the "Commissioner"), the
highest-ranking position within the Department of Probation,
from 1998 to 2010, and he was responsible for appointing all
employees. Tavares served as second deputy commissioner from
2000 to 2008 and first deputy commissioner from 2008 to 2010,
and Burke was the deputy commissioner of Western
Massachusetts from 1998 to 2009.
Prior
to 2001, local judges had authority to appoint and promote
probation employees, subject to the approval of the Chief
Justice of Administration and Management ("CJAM").
In 2001, new legislation gave the Commissioner the
"exclusive authority" for probation hiring and
promotion, although his appointments were still subject to
the approval of the CJAM. The CJAM's hiring policies for
the trial court were promulgated in the Personnel Policies
and Procedures Manual (the "Manual"), copies of
which were kept at OCP and distributed to chief probation
officers. Among other things, the Manual provided that
"the objective of the hiring process is to select the
most qualified individuals who can carry out their
responsibilities in a competent and professional
manner." Judge Robert Mulligan served as the CJAM
throughout most of the relevant parts of this case, beginning
in 2003.
The
Manual also set out certain procedures for making permanent
hires. In practice, openings in the Probation Department were
posted on the Massachusetts trial court website, and
candidates submitted applications and resumes to the
Probation Department. The applications were collected at the
OCP, where Janet Mucci, supervisor of the Human Resources
department, screened them for minimum education and
experience requirements. To further winnow the applicant
pool, from 2005 onward the OCP had applicants attend a
screening interview with a regional administrator.
Each
applicant who passed the screening round proceeded to a
second-round interview before a three-member panel consisting
of a chief probation officer, local judge, and regional
administrator. Every candidate was asked the same set of
questions, and each panel member would rank his or her top
eight candidates. The second round of interviews was
consistent with the Manual's procedures, which called for
"an interview committee consisting of the Commissioner .
. . or his/her designee, the Chief Probation Officer of the
Division, and a representative of the [C]AM]" to
interview probation applicants. In addition, the Manual
directed O'Brien to "develop a standard set of
questions" which, "[a]t a minimum, each applicant
should be asked" if interviewed.
The
regional administrator received a scoring sheet for each
candidate to tally the scores of the three-member panel. The
top eight candidates proceeded to a final-round interview at
the OCP before two members of probation, typically two of
deputy commissioner Francis Wall, deputy commissioner
Patricia Walsh, and OCP Administrative Attorney Edward
McDermott. O'Brien set up the third round of interviews,
which was not prescribed by the Manual.
Once
the Commissioner selected the final candidate or candidates
after the third-round interview, their application packages
were prepared and sent to the CJAM, who typically gave his
signature for final approval. The appointment documentation
form specified which records were included within each
package:
In accordance with the established personnel standards,
enclosed are:
The Applicant Interview and Hiring Record
The Applicant Flow Record
A copy of all applications of the candidates who were
interviewed
A copy of the notice of vacancy (job posting)
The Jobs Hotline Confirmation letter (F 3) (if on the
Hotline)
The Employment Eligibility Verification Form 19 (F 16) &
supporting documentation (new hires only)
The SSA-1945 Statement Concerning Employment in a Job not
covered by Social Security (F 30) (new hires only)
The Consent to Criminal Record Check (F 23) (new hires only)
The Application for Allied Service Credit (F 26) (Probation
Officer positions only).
For
each appointment, the Commissioner would "certify that
[he had] complied with the Trial Court's personnel
standards and that sufficient funding exists in the current
fiscal budget to support this position."
B.
The Hiring Scheme
The
defendants abused the hiring process to ensure that favored
candidates were promoted or appointed in exchange for
favorable budget treatment from the state legislature and
increased control over the Probation Department. O'Brien
told Wall, his close friend, that the patronage hiring scheme
ensured that he had "a good rapport with the
legislature" to facilitate "a beneficial budget to
the Probation Department." During each round of the
interview process, various members of the Probation
Department ensured that individuals recommended by
legislators and other high-ranking officials secured their
desired positions. As a result, the Probation Department was
"the beneficiary of better budgets." The OCP
regularly received referrals from legislators by mail and
phone, and the names and their recommenders were compiled in
"sponsor lists" sent to O'Brien. Throughout the
hiring ...