United States v. Tavares

844 F.3d 46

United States of America, Appellee,

v.Elizabeth V. Tavares, John J. O'Brien, and William H. Burke, III, Defendants, Appellants.

Nos. 14-2313

14-2314

14-2315

United States Court of Appeals, First Circuit.

December 19, 2016

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 [CJAM]" 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 process, O'Brien would meet with members of his staff responsible for receiving referrals and maintaining the sponsor lists to discuss which candidates had been referred by whom and for what positions.

Before the second-round interviews, Tavares and others would give regional administrators assigned to the three-member panel names of candidates that should be passed on to the third round. The regional administrators typically would pass these names to the chief probation officer assigned to the panel but did not always inform the local judge on the panel. The regional administrators and chief probation officers understood that these individuals were to be given priority to ensure they proceeded to the next round: one regional administrator testified that he "inflate[d]" their ratings, and a chief probation officer explained that the lists "influence[d]" his ranking of the individuals.

Some of the regional administrators and chief probation officers involved in the hiring process took issue with these practices. Ellen Slaney, who served as a regional administrator, understood that these individuals had "sponsors that were politically influential," and—when she explained to Tavares that some of the best applicants were being passed over—Tavares replied "that sometimes the political thing had to be done." Edward Driscoll, who was a chief probation officer and then a regional administrator during the relevant time period, testified that he began using pens rather than pencils when he scored interviewees, as he suspected that his scores were being changed to ensure preferred candidates proceeded to the next round. Driscoll recalled a conversation with Burke in 2006: Driscoll...