Unanswered Questions About Public Corruption Prosecutions After O’Brien

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by William Fick

Case Focus

On April 21, 2017, the First Circuit Court of Appeals denied the government’s petition for rehearing of United States v. Tavares, 844 F.3d 46 (1st Cir. 2016) (“O’Brien”), leaving in place the published opinion that ordered judgments of acquittal and brought the Massachusetts Probation Department “patronage” prosecution to a close. While the Court found that the government “overstepped its bounds in using federal criminal statutes to police the hiring practices” of state officials, id. at 49, the Court actually decided the case on narrow grounds and left unanswered a key looming question in public corruption investigations: can federal authorities prosecute allegedly dishonest but purely “political” quid pro quo exchanges, where there is no allegation of corrupt personal gain?

The O’Brien indictment alleged that state Probation Commissioner Jack O’Brien and two co-defendant officials ran “a rigged hiring system that catered to requests from state legislators and others to employ and promote candidates for employment” in the Probation Department. The indictment did not allege that the defendants, career public servants, put a penny in their pockets or did anything illegal for personal gain. Nor did the government claim that the defendants hired unqualified candidates. Yet prosecutors charged that the defendants committed federal crimes because, in considering and sometimes acting on recommendations from legislators, they violated a policy obligation to hire the “most qualified” candidates and did so with the intent to influence the legislature.

The government recognized that it could not prosecute the defendants for depriving the public of the “intangible right to honest services.” Several years earlier, in Skilling v. United States, 561 U.S. 358 (2010), the Supreme Court had limited “honest services” prosecutions to traditional bribery and kickback schemes and had warned against construing a criminal statute “in a manner that leaves its outer boundaries ambiguous and involves the federal government in setting standards of disclosure and good government for local and state officials,” id. at 402.

Instead, the government charged O’Brien and his co-defendants with conspiracy and racketeering based on predicate acts of mail fraud, bribery, and gratuity. The indictment alleged that rejection letters mailed to unsuccessful job candidates provided the jurisdictional “hook” for mail fraud. It further alleged bribery and gratuity in connection with the hiring of Representative Thomas Petrolati’s wife and employees recommended by Representative Robert DeLeo on behalf of other representatives at the time he was preparing to run for Speaker of the House and was allegedly seeking their votes. After a lengthy trial, the jury convicted the defendants on some of the mail fraud and gratuity charges.

In reversing the convictions and ordering judgments of acquittal, the First Circuit used broad language critical of the attempted reach of the prosecution: “This case involves state officials’ efforts to increase funding for their department through closed door arrangements with state legislators and other public officials. But not all unappealing conduct is criminal. As sovereigns, states have ‘the prerogative to regulate the permissible scope of interactions between state officials and their constituents.’” O’Brien, 844 F.3d at 54 (quoting McDonnell v. United States, 136 S. Ct. 2355, 2373 (2016)). The decision also reiterated Supreme Court warnings about federal meddling in state government. See id. But the court actually decided the case under much narrower, longstanding elemental principles.

With regard to the mail fraud counts, the court found that the rejection letters at issue were not mailed “in furtherance” of the alleged scheme to defraud, as the statute requires. See id. at 59-61. The government had argued that “rejection letters in a corrupt hiring system . . . help to maintain a facade of a merit-based system.” Id. at 59. But the court found that the government “presented no evidence that would allow the jury to infer that the rejection letters in this case served this duplicitous purpose.” Id.

With regard to the gratuity counts, the court held that the “evidence as to the gratuities predicates does not show adequate linkage between the thing of ‘substantial value’ conferred by O’Brien (the jobs) and an ‘official act’ performed or to be performed.” Id. at 55. The “government cannot show the requisite linkage merely by demonstrating that the gratuity was given ‘to build a reservoir of goodwill that might ultimately affect one or more of a multitude of unspecified acts, now and in the future.’” Id.

The O’Brien decision thus confirms the continuing vitality of basic elemental limits on mail fraud, bribery, and gratuity prosecutions. Not every incidental mailing in a fraud scheme can trigger federal prosecution under the mail fraud statute. Bribery and gratuity crimes require a clear connection between a specific “official act,” on the one hand, and a particular “thing of value” provided, on the other hand.

But the First Circuit’s decision did not directly address whether “personal gain” is required to sustain a public corruption case, nor did it establish any clear limits on federal criminal prosecution of political “horse-trading” among state and local officials. What would happen if the facts established the basic elements more clearly? Take, for example, an arrangement where “You vote for my funding bill and I vote for yours,” with a false denial of the deal contained in a mailing that more squarely is in furtherance of this arrangement? Untangling such questions will be left to future cases. The stakes are high because expansive federal investigations, as in O’Brien, can cast a chill over the State House, distracting and draining resources from legislators and their staffs for years.

William Fick, a founding partner of Fick & Marx LLP, was part of the trial team that defended Probation Commissioner Jack O’Brien.

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