White Collar Criminal Defense – 1st Cir Rejects Another Gov’t Theory In “Official Act” Prosecutions

The First Circuit dealt another blow to prosecutors’ aggressive pursuit of public officials in “official act” type prosecutions. This time, RICO and mail fraud statutes were at issue in US v. Tavares. Holding that gratuity statutes should be treated more as a “scalpel” than a “meat hook,” the court held that the Government went too far in its theory of criminal liability against officials at the Massachusetts Office of the Commissioner of Probation.

The officials were charged with engaging in a hiring scheme where a legislator’s favored employment candidate would be hired by the OCP in exchange for those legislators’ support for increased funding for the agency. This was alleged to have continued for over a decade (thus the racketeering theory) with the unlucky candidates being sent rejection letters (thus the mail fraud theory). According to the First Circuit, both theories failed, with a strong opinion that had familiar echoes from the Supreme Court’s recent rejection of Governor Bob McDonnell’s convictions, albeit under different statutes.

Using RICO, the court held that the Government failed to prove a substantial linkage between a thing of substantial value and an official act. The court reminded us that, especially after McDonnell, an “official act” must be more than mere discussion or meeting. Moreover, there must also be a specific link between a specific gratuity and a specific act—a long-term pattern is not enough.

On the mail fraud counts, the First Circuit found that the rejection letters must be part of executing a supposed fraud. Any suggestion that simply sending rejection letters to the unsuccessful job candidates (or rather the candidates without the proper political connections) was part of the execution of the fraud was a stretch. Instead, the evidence amounted to “nothing more than rank speculation.”

The unanimous panel concluded by dedicating an entire section of the opinion to dicta disapproving of the district court’s practice of allowing jurors to actively participate in the trial. Admitting that the issue was moot, because of the reversal on “more central issues,” the circuit judges opined that it was improper to encourage the jurors to submit questions to be asked of witnesses in a way that made the practice routine instead of exceptional. Indeed, the jurors submitted no fewer than 281 questions to the judge and the judge then posed 180 of those questions to witnesses. The circuit judges reminded trial courts that jurors should not be turned into “fact gatherers rather than fact-finders.”

The full opinion can be found here.