United States Court of Appeals 

For the First Circuit 

Nos. 14-2313, 

 14-2314, 

 14-2315 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

ELIZABETH V. TAVARES, 

JOHN J. O'BRIEN, and 

WILLIAM H. BURKE, III, 

Defendants, Appellants. 

APPEALS FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. William G. Young, U.S. District Judge] 

Before 

Torruella, Kayatta, and Barron, 

 Circuit Judges. 

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. 

December 19, 2016 
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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. 
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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. 
-5- 

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 
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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 
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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 
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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 
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"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 

expressed concern that a candidate whose husband was a local 

sheriff had been "fast-tracked," to which Burke replied, 

"Everything's going [to] be fine," and "I wrote the book on this 

stuff."

When members of the second-round panel failed to pass 

along the selected names, they at times faced retaliation from 

O'Brien and his staff: Slaney recalled an instance in January 
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2001 where O'Brien called her into his office and appeared "upset 

with [her]" after she did not include a particular individual on 

the list for a third-round interview. When she explained her 

reasons for not advancing the individual, O'Brien replied "Oh, 

come on, Ellen, everybody has a sponsor." In 2005, after Slaney 

declined to advance a recommended candidate, she was assigned to 

work on "overdue audits," clerical work that Slaney perceived as 

"retaliation for not participating in the hiring process . . . [i]n 

a way that I was told that I should." 

Although the Manual did not provide for third-round 

interviews, O'Brien implemented the final round to "ensure that 

the candidates that he selected would be presented to him as the 

candidate for the position." During the third round, the same 

four or five questions, all of which Tavares prepared, were posed 

to each candidate. Prior to the interviews, Wall would receive a 

list of names and how they should be ranked from O'Brien, Tavares, 

or Edward Ryan, a legislative liaison for the OCP. O'Brien 

received these names from legislators, judges, and attorneys who 

would call or mail O'Brien referrals. Wall testified that "it was 

my responsibility . . . to make sure that those candidates were 

ranked in the order given to me." To ensure the candidates were 

ranked according to O'Brien's instructions, the interview panel 

would "help, would change scores, would embellish, . . . pretty 
-11- 

much do anything that was necessary to ensure that they were the 

Number 1 candidate." Prior to interviews in Western Massachusetts, 

Wall would meet with Burke to "advise him . . . who the Commissioner 

advised would be the candidate and what number rank they would be 

given." 

Once the preferred candidate was chosen, OCP staff would 

send the application package and certification to Judge Mulligan. 

O'Brien was responsible for signing off on the certification, and 

he often certified that the "best qualified" candidate had been 

chosen. The OCP would then send out rejection letters to 

unsuccessful candidates stamped with O'Brien's or Tavares's 

signature. 

Judge Mulligan understood that he had the authority to 

"approve the appointment or to reject the appointment," but that 

he could not "substitute [his] judgment as to who the best person 

would be." Judge Mulligan also understood that the appointment 

should be "consistent with the . . . Manual" and that the 

certification indicated that the appointment was consistent with 

a "merit-based hiring system." 

Judge Mulligan and O'Brien had a contentious 

relationship, which Judge Mulligan described as "oppositional 

almost from the time I took office." Sometime in 2006, Judge 

Mulligan grew suspicious of O'Brien's appointments and asked his 
-12- 

"HR department to red-flag any cases that they thought were 

unusual." In particular, he grew concerned that the scores of the 

final interview panel were taking precedence over the scores of 

the second-round, local panel, and informed O'Brien that he did 

"not believe that this selection process [would] lead to the most 

qualified candidate since it seem[ed] designed to ignore the 

assessments of the local panel and [gave] short-shrift to important 

background characteristics of the candidates." After Judge 

Mulligan spoke to a deputy commissioner about one of O'Brien's 

appointments, the Senate Chair of the Ways and Means Committee, 

Senator Steven C. Panagiotakos, told Judge Mulligan that he had 

only "limited authority" to review O'Brien's appointments. After 

this conversation, Judge Mulligan "back[ed] off somewhat in [his] 

review of Mr. O'Brien's choices for positions." 

In 2010, the Boston Globe Spotlight Team released an indepth report highlighting the hiring practices in the Probation 

Department: "After 12 years in charge, Jack O'Brien has 

transformed the Probation Department from a national pioneer of 

better ways to rehabilitate criminals into an organization that 

functions more like a private employment agency for the well 

connected . . . ." Scott Allen, Agency Where Patronage Is Job 
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One, Bos. Globe, May 23, 2010. The day after the article was 

released, Judge Mulligan suspended O'Brien.1

C. Procedural History

A federal indictment in the United States District Court 

for the District of Massachusetts followed in 2012. The second 

superseding indictment alleged that, from 2000 to 2010, the 

defendants implemented a sham merit-based hiring system and that 

O'Brien "falsely certified to the CJAM that the candidate for 

employment had been hired pursuant to the procedures mandated by 

the Manual," that is to say, a merit-based hiring system. The 

indictment charged Count One for RICO conspiracy under 18 U.S.C. 

§ 1962(d) as to all three defendants, Count Two for substantive 

RICO violations under 18 U.S.C. § 1962(c) as to O'Brien and 

Tavares, and Counts Three through Twelve for mail fraud under 18 

U.S.C. § 1341 and § 2 as to all three defendants. The substantive 

RICO count was based on the predicate acts of mail fraud and 

 

1 The Massachusetts Supreme Judicial Court subsequently appointed 

an Independent Counsel to investigate the OCP's hiring practices, 

and the Independent Counsel concluded: "Hiring and promotion 

processes have been fraudulently orchestrated from beginning to 

end in favor of connected candidates. The fraud begins [at the] 

top with Commissioner O'Brien, and it extends through most of the 

hierarchy of the Department who participate in interviewing 

candidates for hiring and promotion." Paul F. Ware, Jr., Report 

of the Independent Counsel, In the Matter of the Probation 

Department of the Trial Court 3 (SJC No. 0E-123, Nov. 9, 2010), 

http://www.mass.gov/courts/docs/sjc/docs/report-of-independentcounsel-110910.pdf. 
-14- 

Massachusetts gratuities and bribery violations.2 Each mail fraud 

count and predicate act was based on a particular hire between 

2001 and 2010. 

The defendants moved to dismiss the indictment on 

various grounds. Among other things, they contended that the 

alleged mailings -- rejection letters sent to unsuccessful 

applicants -- did not satisfy the interstate commerce element of 

the federal mail fraud statute. They also sought to dismiss the 

RICO counts on grounds that the Government had failed to 

demonstrate the necessary link between a "thing of value" and an 

"official act" as required under the Massachusetts bribery and 

gratuities statute. Following a motion hearing, the district court 

denied the motion in a written opinion and order. 

The parties proceeded to a forty-seven day jury trial. 

Throughout the trial, the district court allowed the jury to submit 

questions for the court to pose to the witnesses. Jurors submitted 

281 questions, 180 of which were asked by the court. The jury 

found all three defendants guilty of RICO conspiracy. O'Brien and 

Tavares were found guilty of the substantive RICO count, with the 

jury finding ten of the seventeen mail fraud predicates proven as 

 

2 The indictment also included counts for bribery concerning a 

program receiving federal funds under 18 U.S.C. § 371 and 18 U.S.C. 

§ 666(a)(2). These counts were dismissed on the Government's 

motion and are not relevant here. 
-15- 

to O'Brien (as a principal) and Tavares (as either an aider and 

abettor, a coconspirator, or both) and nine gratuities acts proven 

as to O'Brien. The jury found none of the predicate bribery acts 

proven. Of the nine mail fraud counts ultimately submitted to the 

jury, O'Brien and Tavares were adjudged guilty of four, with 

O'Brien guilty as a principal and Tavares guilty as both a 

coconspirator and aider and abettor as to two and an aider and 

abettor as to the remaining two. Burke was acquitted on the mail 

fraud counts. 

The defendants bring a panoply of arguments on appeal. 

We address only their most salient claims and pass no judgment on 

any issues not addressed herein. 

II.

Viewing the evidence in the light most favorable to the 

verdict, we can conclude that O'Brien, along with the other 

defendants and many other members of the Probation Department, 

misran the Probation Department and made efforts to conceal the 

patronage hiring system. But "[b]ad men, like good men, are 

entitled to be tried and sentenced in accordance with law." Green 

v. United States, 365 U.S. 301, 309 (1961) (Black, J., dissenting). 

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 
-16- 

conduct is criminal. As sovereigns, states have "the prerogative 

to regulate the permissible scope of interactions between state 

officials and their constituents," and the Supreme Court has warned 

against interpreting federal laws "'in a manner that . . . involves 

the Federal Government in setting standards' of 'good government 

for local and state officials.'" McDonnell v. United States, 136 

S. Ct. 2355, 2373 (2016) (quoting McNally v. United States, 483 

U.S. 350, 360 (1987)). For the reasons discussed herein, we find 

that the Government has not in fact demonstrated that the conduct 

satisfies the appropriate criminal statutes, and we therefore 

reverse.3

A. State Gratuities (Count II: Predicates 44(b)-51(b), 53(b))4

 Under the federal RICO statute, "[i]t shall be unlawful 

for any person employed by or associated with any enterprise 

engaged in, or the activities of which affect, interstate or 

foreign commerce, to conduct or participate, directly or 

 

3 This does not mean that these practices cannot have consequences. 

Here, the Independent Counsel appointed by the Massachusetts 

Supreme Judicial Court recommended both remedial personnel actions 

and policy changes at the OCP, and a number of steps have been 

taken to discipline the perpetrators and safeguard the OCP against 

similar abuses. See Report of the Independent Counsel 41-48; see 

also Scott Allen, SJC Orders Probation Overhaul as Report Finds 

Rampant Fraud, Bos. Globe, Nov. 19, 2010. 

4 These numbers refer to the corresponding counts and predicate 

acts as identified in the second superseding indictment. 
-17- 

indirectly, in the conduct of such enterprise's affairs through a 

pattern of racketeering activity . . . ." 18 U.S.C. § 1962(c). 

RICO and RICO conspiracy counts "require[] at least two acts of 

racketeering activity." 18 U.S.C. § 1961(5). A "racketeering 

activity" includes "any act or threat involving . . . bribery . . . 

which is chargeable under state law and punishable by imprisonment 

for more than one year." 18 U.S.C. § 1961(1)(A). For O'Brien, 

the jury found nine predicate acts under the Massachusetts 

gratuities statute, Mass. Gen. Laws ch. 268A § 3(a). O'Brien 

argues that the indictment did not sufficiently allege violations 

of the Massachusetts gratuities statute and that the evidence 

proffered at trial was insufficient to establish the gratuity 

violations charged. 

The Massachusetts gratuities statute penalizes those who 

give illegal gratuities to officials, id., as well as officials 

who receive illegal gratuities, id. § 3(b). Here, the Government 

sought to prove that O'Brien "knowingly . . . offer[ed] or 

promis[ed] anything of substantial value" to a public official 

"for or because of any official act performed or to be performed" 

by that official. Id. § 3(a).5

 

5 The federal gratuities statute, 18 U.S.C. § 201, contains 

language similar to that of its state analogue, and, as a result, 

Massachusetts courts "look to Federal law for guidance in 

construing § 3(a) and (b)." Scaccia v. State Ethics Comm'n, 727 
-18- 

A gratuity may be given as "a reward for past action, to 

influence an official regarding a present action, or to induce an 

official to undertake a future action." Scaccia, 727 N.E.2d at 

828-29. Mere proof of the public official's position is 

insufficient to demonstrate an "official act" under the statute: 

"[t]he insistence upon an 'official act,' carefully defined, seems 

pregnant with the requirement that some particular official act be 

identified and proved." United States v. Sun-Diamond Growers of 

Cal., 526 U.S. 398, 406 (1999). "[T]he government must 'prove a 

link between a thing of value conferred upon a public official and 

a specific 'official act' for or because of which it was given.'" 

Scaccia, 727 N.E.2d at 828 (quoting Sun-Diamond Growers of Cal., 

526 U.S. at 414). 

In that vein, 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." 

Sun-Diamond Growers of Cal., 526 U.S. at 405. Recognizing that 

direct evidence of these sorts of violations may be difficult to 

obtain, Massachusetts courts accept "evidence regarding the 

subject matter of pending legislation and its impact on the giver, 

 

N.E.2d 824, 828 (Mass. 2000). Accordingly, we reference both state 

and federal law in our analysis. 
-19- 

the outcome of particular votes, the timing of the gift, or changes 

in a voting pattern" to demonstrate the requisite linkage. 

Scaccia, 727 N.E.2d at 829. We bypass the question of whether the 

indictment sufficiently alleged violations of Mass. Gen. Laws 

ch. 268A § 3 and turn to whether the Government presented 

sufficient evidence that O'Brien violated the statute.6 We 

conclude that it did not. 

The Government groups the predicate acts into two 

categories: the Kathleen Petrolati predicate act (Act 44(b)) and 

the 2007-2008 Electric Monitoring Program ("ELMO") Appointments 

predicate acts (Acts 45(b)-51(b), 53(b)). Both categories of 

predicate acts relate to a series of temporary hires for purposes 

of the ELMO program. In 2006, the Massachusetts legislature passed 

a new law providing for mandatory electronic monitoring of sex 

offenders. In 2007 and 2008, OCP received additional funding for 

new hires to implement the monitoring system. O'Brien proposed 

that these individuals be hired on a temporary basis. According 

to Mucci, the appointments were designated as temporary so that 

O'Brien could "get people hired without going through the hiring 

process and the interviewing process." O'Brien gave Mucci names 

 

6 Likewise, we address only the sufficiency of the evidence (as 

opposed to the sufficiency of the indictment) for the remaining 

claims addressed herein. 
-20- 

of individuals and instructions to offer them ELMO positions. The 

individuals did not interview with anyone at the OCP prior to 

receiving an offer. 

The Government's 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. See Life Ins. Ass'n 

of Mass., Inc. v. State Ethics Comm'n, 727 N.E.2d 819, 820-21 

(Mass. 2000) (remanding to the State Ethics Commission to "make 

adequate findings on whether there was . . . any link to a specific 

act"); Commonwealth v. Vázquez, 870 N.E.2d 656, 663 (Mass. App. 

Ct. 2007). Many of the Government's arguments are predicated on 

bootstrapping: because O'Brien was constantly conferring with 

legislators and hiring based on legislative preferences, any 

"official act" taken by an affected legislator must satisfy the 

nexus requirement. But we do not read the gratuities statute so 

broadly: the Supreme Court in Sun-Diamond "offered a strictly 

worded requirement that the government show a link to a 'specific 

official act' to supply a limiting principle that would distinguish 

an illegal gratuity from a legal one," a principle unnecessary "in 

the extortion or bribery contexts." United States v. Ganim, 510 

F.3d 134, 146 (2d Cir. 2007). Given a choice between treating a 

gratuities statute as "a meat axe or a scalpel," the Supreme Court 
-21- 

chose the latter, and we follow suit. Sun-Diamond Growers of Cal., 

526 U.S. at 412; see also Valdes v. United States, 475 F.3d 1319, 

1323 (D.C. Cir. 2007) ("Sun-Diamond's interpretive gloss, like the 

rule of lenity, thus works to protect a citizen from punishment 

under a statute that gives at best dubious notice that it has 

criminalized his conduct."). 

1. The Petrolati Predicate Act 

The Government contended that Kathleen Petrolati's 

husband, Massachusetts House Representative Thomas Petrolati, 

proposed a budget amendment in April 2000 that would increase 

funding for positions in OCP, adding two program managers, two 

court service coordinators, and ten assistant court service 

coordinators. O'Brien, in turn, appointed Representative 

Petrolati's wife, Kathleen Petrolati, as a program manager in the 

ELMO program in November 2000. That spring, the OCP had funding 

to add the positions specified in the budget amendment. 

The Government asserts that the jury could infer the 

necessary link based on Representative Petrolati's sponsorship of 

the budget amendment and his wife being appointed a program 

manager. But seven months passed between these two events, and 

there was no evidence that O'Brien knew of Representative 

Petrolati's connection to the budget amendment or that 

Representative Petrolati had "change[d]" his "voting pattern" in 
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anticipation of his wife's hire. Scaccia, 727 N.E.2d at 829. To 

the contrary, Representative Petrolati also sponsored amendments 

appropriating money to courts across Western Massachusetts. 

2. The ELMO Appointments Predicate Acts 

For the ELMO Appointments predicate acts, the Government 

sought to show that O'Brien "gave" ELMO appointments to 

Representative Robert DeLeo, then Chairman of the House Ways and 

Means Committee, to garner support for DeLeo's run for Speaker of 

the House, and that DeLeo then offered various legislators the 

opportunity to appoint individuals for these positions in exchange 

for their voting for DeLeo. In addition, in September 2007, after 

O'Brien had appointed several ELMO candidates referred through 

DeLeo's office, O'Brien met with DeLeo to propose legislation that 

would curtail the CJAM's oversight over O'Brien's appointments, 

grant O'Brien life tenure, and fix his salary at $1,000 per year 

below that of the CJAM. 

The Government contends that one of the "official acts" 

was an amendment that O'Brien proposed at a meeting with DeLeo 

that would have made O'Brien the effective czar of probation. Yet 

the Government fails to explain how this meeting is linked to the 

ELMO hires or specify to which ELMO hires it relates, instead 

vaguely noting that O'Brien had appointed "two or three" referrals 

for ELMO positions by the time of the meeting. 
-23- 

Further, the Government did not prove that DeLeo took 

any action on O'Brien's proposals, or that O'Brien pressured DeLeo 

to do so "for or because of" a specific ELMO hire. "Official act" 

is defined as "any decision or action in a particular matter or in 

the enactment of legislation." Mass. Gen. Laws ch. 268A § 1(h). 

The Supreme Court recently explained that an "official act," 

similarly defined under 18 U.S.C. § 201(a)(3),7 requires more than 

mere discussion: 

[H]osting an event, meeting with other 

officials, or speaking with interested parties 

is not, standing alone, a 'decision or action' 

within the meaning of § 201(a)(3), even if the 

event, meeting, or speech is related to a 

pending question or matter. Instead, 

something more is required: § 201(a)(3) 

specifies that the public official must make 

a decision or take an action on that question 

or matter, or agree to do so. 

McDonnell v. United States, 136 S. Ct. 2355, 2370 (2016). 

All the Government demonstrated, however, is that 

O'Brien and DeLeo met. The evidence does not show, for example, 

that DeLeo subsequently introduced a bill based on either of 

O'Brien's proposals or took some official act with respect to such 

a bill proposed by another legislator. The Government also 

 

7 "[A]ny decision or action on any question, matter, cause, suit, 

proceeding or controversy, which may at any time be pending, or 

which may by law be brought before any public official, in such 

official's official capacity . . . ." 
-24- 

identifies no particular statements that O'Brien or DeLeo made 

about the proposals, or other evidence about that meeting, from 

which a jury might reasonably infer what specific official act, if 

any, O'Brien was trying to induce DeLeo to take. Thus, the 

evidence reveals no specific official act -- either taken by DeLeo 

or merely sought from him -- to which we could apply the Scaccia 

factors to determine its possible link to the "two or three" ELMO 

appointments. The evidence therefore does not support a finding 

that the "official act" requirement was met, or that it was linked 

to the gratuity. 

The Government also contends that the ELMO hires 

correlate to an "official act" in that O'Brien gave DeLeo's office 

referral opportunities to pass on to legislators to build support 

for the Speaker's race. Edward Ryan, DeLeo's legislative liaison, 

testified that DeLeo and his staff used the jobs to "gather 

support" for DeLeo, and that O'Brien told him that DeLeo's office 

had "identified" individuals that they "were looking for to vote 

for Bob DeLeo for the Speaker's race." 

But while a legislator's vote in a leadership election 

may constitute an official act, the Government needed to prove, as 

the district court instructed the jury, a link between the gratuity 

that O'Brien gave DeLeo and a specific official act that DeLeo 
-25- 

would undertake.8 The Government does not explain, however, how 

other legislators' votes for DeLeo could qualify as DeLeo's 

official acts. And no such explanation occurs to us. 

The evidence shows at most that O'Brien gave DeLeo 

control over the ELMO appointments to enable DeLeo to round up 

votes from other legislators. Such evidence may suffice to show 

 

8 Specifically, the district court instructed the jury: 

Now here's what they've got to prove for an 

illegal gratuity. That Mr. O'Brien gave a 

thing of value to a public official. Now here 

he doesn't have to have the agreement with Mr. 

DeLeo and going after the state 

representatives, here he would give this right 

of selection, this right of appointment, to 

Mr. DeLeo. Mr. DeLeo is a public official. 

All right. And the second thing they've got 

to prove is that the reason Mr. O'Brien did 

that, if you believe he did do it, he did it 

for or on account of some specific act to be 

performed by that official. 

Moreover, the Government did not argue that O'Brien gave the 

gratuity directly to the other legislators to induce their votes 

for DeLeo in the Speaker's race, or that O'Brien and DeLeo 

conspired to do so. In fact, the district court described the 

alleged gratuity from O'Brien to DeLeo as follows: "[O'Brien] 

would give this right of selection, this right of appointment, to 

Mr. DeLeo." The Government echoed this description in its closing 

argument: "O'Brien gave jobs, he gave ELMO jobs to . . . Robert 

DeLeo, so that Robert DeLeo could hand those jobs out to other 

members of the House of Representatives." The Government's brief 

on appeal, moreover, focuses on O'Brien having given DeLeo a 

gratuity by giving him the power to select ELMO hires, which would 

enable DeLeo to attract support for his race for Speaker by passing 

along the candidates preferred by legislators who would support 

him in the race. 
-26- 

that O'Brien gave the ELMO appointments to DeLeo to facilitate his 

path to power in the state house, in the hope that, by building up 

a "reservoir of goodwill" with DeLeo, the future speaker would use 

his power to benefit the Probation Department's budget.9 See SunDiamond Growers of Cal., 526 U.S. at 405. But that is only evidence 

that O'Brien was seeking general legislative support from DeLeo, 

and, under Sun-Diamond and Scaccia, that is not sufficient to show 

a specific public act, and with it an illegal gratuity. See SunDiamond Growers of Cal., 526 U.S. at 405-08; Scaccia, 727 N.E.2d 

at 828. We therefore do not interpret the Massachusetts gratuities 

statute to reach the conduct described here. 

B. Mail Fraud (Count I: Predicate Acts 1-4, 12-14, 17, 18, 20; 

Counts III-VI) 

 To prove a violation of the federal mail fraud statute 

under 18 U.S.C. § 1341, the Government must prove: "(1) a scheme 

to defraud based on false pretenses; (2) the defendant's knowing 

and willing participation in the scheme with the intent to defraud; 

and (3) the use of interstate mail communications in furtherance 

of that scheme." United States v. Hebshie, 549 F.3d 30, 35-36 

 

9 We note, however, that Representative Eric Rice testified that 

he received the opportunity to refer an individual for the ELMO 

position "a year or more" before the Speaker's race, previously 

had recommended individuals for public and private sector 

positions, and did not understand the referral to be contingent on 

his vote for DeLeo. This testimony is consistent with the 

responses of other legislators invited to make ELMO referrals.
-27- 

(1st Cir. 2008) (internal formatting omitted) (quoting United 

States v. Cheal, 389 F.3d 35, 41 (1st Cir. 2004)). The jury found 

O'Brien and Tavares guilty of mail fraud Counts Three, Four, Five, 

and Six, and found ten predicate acts of mail fraud for purposes 

of O'Brien's and Tavares's substantive RICO count. O'Brien and 

Tavares now challenge their mail fraud convictions on multiple 

fronts, contending that the indictment was insufficient to support 

the mail fraud allegations and the evidence insufficient to support 

their convictions. Among other things, they contend that the 

Government did not demonstrate that the mailings were "in 

furtherance" of the hiring scheme. 

 "The federal mail fraud statute does not purport to reach 

all frauds, but only those limited instances in which the use of 

the mails is a part of the execution of the fraud, leaving all 

other cases to be dealt with by appropriate state law." Schmuck 

v. United States, 489 U.S. 705, 710 (1989) (quoting Kann v. United 

States, 323 U.S. 88, 95 (1944)). "[T]he mailing must be 'for the 

purpose of executing the scheme, as the statute requires.'" United 

States v. Maze, 414 U.S. 395, 400 (1974) (quoting Kann, 323 U.S. 

at 94). A mailing furthers a fraudulent scheme if it is, inter 

alia, "designed to lull the victims into a false sense of security, 

postpone their ultimate complaint to the authorities, and 
-28- 

therefore make the apprehension of the defendants less likely than 

if no mailings had taken place." Id. at 403. 

The mailing requirement is interpreted broadly, however, 

and "the use of the mails need not be an essential element of the 

scheme." Schmuck, 489 U.S. at 710. Rather, the charged mailing 

need only be "incident to an essential part of the scheme." 

Hebshie, 549 F.3d at 36 (quoting Pereira v. United States, 347 

U.S. 1, 8 (1954)). Further, "the defendant need not personally 

mail anything so long as it is reasonably foreseeable that the 

mails will be used in the ordinary course of business to further 

the scheme." United States v. Cacho-Bonilla, 404 F.3d 84, 90 (1st 

Cir. 2005). 

From this, two propositions emerge. First, a mailing 

can serve as the basis for a mail fraud conviction even if the 

fraud would have been successful had the mailing never occurred. 

Second, however, that mailing -- even if dispensable -- must at 

least have some tendency to facilitate execution of the fraud. In 

determining whether the Government proved the mailing element, "we 

look to see 'whether, after assaying all the evidence in the light 

most amiable to the government, and taking all reasonable 

inferences in its favor, a rational factfinder could find, beyond 

a reasonable doubt, that the prosecution successfully proved the 
-29- 

essential elements of the crime.'" United States v. Soto, 799 

F.3d 68, 93 (1st Cir. 2015) (quoting Hebshie, 549 F.3d at 35). 

Even assuming that there was "a scheme to defraud," the 

Government did not present substantial evidence of a mailing "in 

furtherance of" such a scheme. Hebshie, 549 F.3d at 35-36. The 

Government points to form rejection letters that OCP staff mailed 

to unsuccessful applicants, typically after the final candidates 

were selected,10 to satisfy the mailing requirement. These 

mailings fulfilled a requirement in the Manual that "[a]pplicants 

who are not selected for appointment must be notified in writing 

that they have not been selected." The Government argues that 

such rejection letters in a corrupt hiring system satisfy § 1341's 

mailing element where they help to maintain a facade of a meritbased system. See United States v. Sorich, 523 F.3d 702, 714 (7th 

Cir. 2008) (determining that rejection letters "lent a false air 

of propriety and regularity to the city's hiring process"); see 

 

10 Some of the rejection letters were mailed before Judge Mulligan 

approved the person eventually hired. The defendants contend that 

all letters were nevertheless mailed after the scheme reached its 

fruition, while the Government asserts that the scheme was not 

complete until Judge Mulligan gave his final approval. Regardless 

of the exact timing of the mailings, there is no evidence that the 

letters were material to the consummation of the defendants' 

scheme. See Kann, 323 U.S. at 94 ("It was immaterial to [the 

defendants], or to any consummation of the scheme, how the bank 

which paid or credited the check would collect from the drawee 

bank."). 
-30- 

also United States v. Fernández, 282 F.3d 500, 508 (7th Cir. 2002) 

("These notifications were not merely ancillary to the execution 

of the fraud, rather, [they] falsely portray[ed] to anyone who 

examined Lyons' records that the bids submitted were legitimate, 

thereby concealing the true nature of the scheme."). But the 

Government presented no evidence that would allow the jury to infer 

that the rejection letters in this case served this duplicitous 

function. Had unsuccessful applicants received no notice, they 

may have assumed they were not hired or else called OCP to check 

their status. The Government identifies language in the rejection 

letters stating that "[t]he selection of the final candidate was 

a difficult process" and that the deputy commissioners "were very 

impressed with [the recipients'] qualifications" to demonstrate 

that the letters were intended to convince rejected candidates 

that their selection was based on merit. We are not convinced 

that such vague platitudes, hallmarks of any rejection letter, 

sufficiently demonstrate that the rejections had any real tendency 

to convey a merit-based selection system. 

In arguing to the contrary, the Government points to 

this circuit's decision in United States v. Cacho-Bonilla, 404 

F.3d 84 (1st Cir. 2005) –– a case in which we found the "connection 

between the scheme and the mailing . . . unusually thin" and 

observed that "the [mail fraud] count would better have been 
-31- 

omitted," id. at 90. In Cacho-Bonilla, the defendants were 

convicted of mail fraud for their involvement in a scheme where 

they misused federal funds provided to their non-profit 

corporation, Acción Social de Puerto Rico, Inc. ("ASPRI"). Id. at 

87. The defendants submitted monthly reports reflecting 

fraudulent markups to a state agency. Id. at 90. The agency then 

compiled the reports into summaries and sent the summaries, by 

mail, to the Department of Health and Human Services ("HHS"). Id. 

In determining that these reports satisfied the mailing 

requirement, this court explained: 

Much of the scheme . . . depended upon the 

continuation of federal funding for ASPRI. In 

turn, the submission (by mail) of ASPRI data 

to HHS's data collection entity perpetuated 

the relationship that kept funds flowing to 

ASPRI . . . . So viewed, the perpetuation was 

essential to the scheme and the mailing was 

incidental to that perpetuation. 

Id. at 91. Similarly, in United States v. Hebshie, 549 F.3d 30 

(1st Cir. 2008), we found that a reservation-of-rights letter sent 

to a defendant after he submitted a fraudulent insurance claim was 

sufficient under § 1341, describing the letter as "part of 'the 

criss-cross of mailings that would reasonably be expected when 

false claims are submitted to insurance companies, are processed, 

and are ultimately paid, thereby making the fraud successful.'" 

Id. at 38 (quoting United States v. Morrow, 39 F.3d 1228, 1237 

(1st Cir. 1994)). 
-32- 

In both Cacho-Bonilla and Hebshie, however, the mailing 

was part of an ongoing relationship –– whether between ASPRI and 

its source of federal funds or between the fraudster and the 

defrauded insurance company –– necessary to effectuate the fraud. 

The Supreme Court's decision in Schmuck v. United States, 489 U.S. 

705 (1989), is instructive. In Schmuck, the Court upheld the mail 

fraud conviction of a used-car distributor who rolled back the 

odometers on cars and sold those cars at artificially inflated 

prices to dealers, who in turn resold the cars to customers. Id. 

at 707, 722. The retail sellers' submission of title-application 

forms to the state Department of Transportation on behalf of their 

customers satisfied the mailing requirement. Id. at 707. The 

Court found that the registration-form mailings, which "may not 

have contributed directly to the duping of either the retail 

dealers or the customers, . . . were necessary to the passage of 

title." Id. at 712. And the passage of title "was essential to 

the perpetuation of [the] scheme," id., because "the success of 

[the] venture depended upon [the defendant's] continued harmonious 

relations with, and good reputation among, retail dealers, which 

in turn required the smooth flow of cars from the dealers to their 

. . . customers," id. at 711–12. 

Here, in contrast, the Government has presented no 

evidence that the continued relationship between the OCP and 
-33- 

rejected applicants was of any consequence. Nor has the Government 

produced evidence that the rejection letters furthered any 

relationship –– say, between the OCP and Judge Mulligan –– that 

was of consequence, or facilitated O'Brien's ability to make 

appointments or to receive approval for those appointments. 

Instead, the Government reasons that the letters tended 

to perpetuate the scheme by making the rejected applicant less 

likely to call to inquire as to his status, thereby making it less 

likely that such a call might lead to some inquiry that would 

uncover the scheme. Even though employers need not -- and often 

do not -- send rejection letters to unsuccessful applicants, we 

will assume that the Government is correct that sending the letters 

decreased the odds that rejected applicants would call to learn 

their status. But the second part of the Government's nexus 

hypothesis (i.e., that such calls may have led to discovery of the 

scheme) rests on nothing more than rank speculation. The 

Government's evidence provided no plausible mechanism by which a 

call from a rejected applicant asking about his or her status would 

lead to the discovery of the scheme. Nor has the Government 

demonstrated that sending the letters meaningfully decreased the 

likelihood that some other party would have uncovered the hiring 

scheme. And while the mailing was certainly incidental to 

providing a courtesy to unsuccessful applicants, providing such a 
-34- 

courtesy was not sufficiently tied to the defendants' interest in 

perpetrating the scheme because it furthered neither the 

perpetration nor the perpetuation of the scheme. None of the 

remaining cases cited by the Government are factually analogous to 

the case before us, and they do not require us to find that these 

rejection letters were sent "in furtherance of" the defendants' 

scheme. 

Racketeering predicate acts fourteen and seventeen 

involved mailings other than rejection letters. Predicate act 

fourteen involved a copy of a letter that Judge Mulligan sent 

O'Brien approving charged-hire Douglas MacLean's appointment. The 

Government contends that the mailing requirement was satisfied 

because the Chief Probation Officer that would be working with 

MacLean received a copy of this appointment letter by mail, and 

Judge Mulligan's written approval was required before MacLean 

could begin his employ. But we know nothing about why the letter 

was mailed to the Chief Probation Officer in this instance. To be 

sure, "[t]he 'in furtherance' requirement is to be broadly read 

and applied." Hebshie, 549 F.3d at 36. Section 1341's mailing 

requirement, however, places an important limitation on federal 

authority. See Kann, 323 U.S. at 95. 

Congress could have drafted the mail fraud 

statute so as to require only that the mails 

be in fact used as a result of the fraudulent 

scheme. But it did not do this; instead, it 
-35- 

required that the use of the mails be "for the 

purpose of executing such scheme or artifice." 

Maze, 414 U.S. at 405 (footnote and alteration omitted). The 

record does not demonstrate that the appointment letter was sent 

for this purpose, and we therefore find § 1341's jurisdictional 

element is not satisfied for purposes of predicate act fourteen. 

Predicate act seventeen involved a mailed application. 

But RICO claims require two predicate acts, and the Government 

does not present sufficient evidence of a mailing for purposes of 

any other mail fraud predicate act. Accordingly, we need not 

address whether the evidence of a mailed application is sufficient 

to satisfy § 1341's mailing requirement for predicate act 

seventeen.11

C. Juror Questions 

Although we reverse based on more central issues, making 

the present issue moot, we must express our reservations about the 

extent and type of juror questions allowed by the trial judge in 

this case. 

Whether to allow juror questions falls "to the sound 

discretion of the trial court." United States v. Sutton, 970 F.2d 

 

11 Because there was insufficient evidence of mailings in 

furtherance of the scheme to defraud, we need not decide at what 

point evidence of a corrupt process can demonstrate a deprivation 

of property. 
-36- 

1001, 1005 (1st Cir. 1992). But, as we have previously cautioned, 

jury questioning "should be reserved for exceptional situations, 

and should not become the routine, even in complex cases." United 

States v. Cassiere, 4 F.3d 1006, 1017 (1st Cir. 1993). Here, 

jurors submitted 281 questions, and the district court posed 180 

of them to witnesses. That means that, over thirty-five days of 

testimony, eight questions were submitted and five questions asked 

per day on average. This volume of questions is far beyond 

anything approved of in this Circuit12 and suggests that the 

district court allowed juror questions to become routine rather 

than an exception. 

Furthermore, the content of many of the questions jurors 

asked is troubling. Juror questions should serve the limited 

purpose of clarification, see id. at 1017, and they should be a 

"long-odds exception" reserved for the most critical points, 

Sutton, 970 F.2d at 1005. Here, though, the trial judge told the 

jurors that their questions should be guided by whether "the lawyer 

gets out what interests you from the witness." This invitation to 

go beyond seeking clarification led to questions (allowed over 

objection) like whether "some candidate [did] not make the list 

 

12 By comparison, "Sutton involved seven jury questions the court 

asked during a 2 1⁄2 day trial," while "[Cassiere] involve[d] eleven 

questions asked during a 24-day trial." Cassiere, 4 F.3d at 1017. 
-37- 

because recommended names were on the list" and "Why did you change 

James Rush's score." Juror questions of this type elicited not 

just clarifications but gap-filling evidence.13 "[I]n a jury trial 

the primary finders of fact are the jurors. Their overriding 

responsibility is to stand between the accused and a potentially 

arbitrary or abusive Government that is in command of the criminal 

sanction." United States v. Martin Linen Supply Co., 430 U.S. 

564, 572 (1977). If a district court allows jurors to ask 

questions, it must ensure that the jurors do not turn into fact 

gatherers rather than factfinders by exceeding the bounds 

delineated in Sutton and Cassiere. 

III. 

We find the evidence insufficient to support the 

defendants' convictions and order the entry of judgments of 

acquittal. 

 So ordered.

 

13 For example, (although without objection) jurors posed multiple 

questions to OCP employees concerning how those employees ranked 

candidates or whether they passed over unqualified candidates. 

Similarly, jurors questioned why certain witnesses went along with 

the scheme, or did not report their concerns about the hiring 

process.