Attention Lawyers, Journalists, and BMGers, (But Mostly Lawyers) I Need Help – Ask Carmen Ortiz About the Stryker Case –

Hive mind, after you have addressed the differences between a hood, hat, cap, prop and yarmulke, below (with turbans, scarves, and spray on hair for extra credit), please help Ernie out. - promoted by Bob_Neer

How safe is it being a ham sandwich these days?

I have read the federal indictment charging former probation commissioner John O’Brien and two underlings with racketeering and conspiracy and I freely admit I must be missing something.

Unless I am mistaken, the fact that the probation department is a state run entity with connections to state leaders is a red herring. This can’t be right. Could someone proof read the indictment I have linked to above and explain?

The criminal enterprise consisted of probation head O’Brien, his chief of staff, and an employee with over 40 years in the department.

Their scam, if I read the indictment right, was to hire some of the people recommended by individuals who have some influence over the department they serve, their careers, how they are perceived by others, and their personal self-esteem.

Again I am asking for your help. In return for hiring some of the applicants recommended by persons influential to the operation of the institution the individuals work for, there has to be more of a quid pro quo, right? The indictment says more and I am just missing it, right?

Finally, If I am reading this correlctly, the U’S. Attorney says the O’Brien Gang broke the rules of the Probation Department’s Procedures Manuel by not hiring the “most qualified” (whatever that means? very subjective) for the positions outlined in the indictment.

That is why they have been indicted. They broke in-house policy in exchange for political goodwill from the people who can cause the entity for which they work and protect problems.

Because of this this they may have also felt good about themselves and their professional reputations within the community they work (state government).

What am I missing?

Sooo, getting back to my original question: according to the facts laid out in the indictments why couldn’t a manager and a few underlings for a private entity be indicted for federal crimes if some of the decisions they made or acted on did not adhere entirely to the entity’s internal procedures manuel but benefitted persons hire up who had influence over the enity’s budget, their careers within the entity, and their reputations within their professional community?

This can’t be right. Our justice system wouldn’t go this far to score points with the uninformed public and a local newspaper? Would it?

Perhaps BMgers could forward this to experienced lawyer friends and journalists etc. and have some pros read read it. I have to missing something here.


On a completely different matter, have you guys heard about the Stryker case? It’s a federal criminal case U.S. Attorney Carmen Ortiz’ office brought recently. Rather than me screwing up the details here’s how Lawyers Weekly tells it:

The defendants were accused of defrauding seven surgeons into mixing a bone void filler with a bone morphogenic, even though the Federal Drug Administration never signed off on such a use. The 13-count trial was expected to run six weeks in U.S. District Court before Judge George A. O’Toole.

But the company’s lawyer, Brien T. O’Connor, told jurors in his opening that the government’s legal team had committed a “gross injustice” by failing to interview even one of the doctors prior to trial.

“Ladies and gentleman, they may not have talked to [them], but we did,” the Ropes & Gray lawyer said. “And because of that, you’re going to get to hear [their] side of the story.”

When that moment arrived, O’Connor promised, the surgeons’ testimony would reveal that the defendants never defrauded them.

Prosecutors apparently saw the handwriting on the wall and dropped the charges against the salesmen. They also dismissed all felony counts against the company…

See what happened here? Carmen and her shoot first ask questions later team of prosecutorial abusive nitwits forgot to ask questions later and got caught.

The feds never talked to the alleged victims. Funny how the Boston papers didn’t report this. I wonder how much it screwed up these defendants’ personal and professional lives?

Just another day coldly ruining lives in the Moakley Building and on Morrissey Boulevard.



10 Comments . Leave a comment below.
  1. I just skimmed the indictment,

    but they are being charged with racketeering conspiracy, conspiracy to commit fraud as well as fraud itself. They aren’t charged with bribery. The victims are the Commonwealth, which is deprived of the people it would choose, and those that would have been hired had they not been passed over for a hack. Those folks will be suing, you can be assured.

    Had the Probation Three not forged and falsified documents to get people hired, they might not be charged with fraud. Had they not used the U.S. mail to send rejection letters to the people that should have been hired, the feds might not have jurisdiction.

    Does that help?

    • I understand Mark

      But that is the natural follow-up, the US Mail.
      The underlying problem is the quid pro quo. The personal benefits received by the “O’Brien Gang” as opposed to the benefits the Probation Department received, like funding.

      Suppose the officers of a local social club made up of former jockeys violated club rules and allowed a non-former jockey to join. Suppose this was done because the former jockey wannabe is the nephew of the landlord that rents them the building at a “good rate”. Suppose the club officials sent a letter in the US mail with some false information on it necessary to make the kid a member?

      If I read the indictment correctly those facts are not different then the U.S. Attorney’s outline of what the probation department did.
      They make no separation of a private v. public entity.

      What Sal did would be a federal crime in the private sector also. He used his position to take a significant kickback. Not Patriots tickets.

      The probation thing seems to be a big stretch. If there were state laws violated Martha Coakley would have indicted. Instead she indicted O’Brien on an unrelated very specious count.

      eb3-fka-ernie-boch-iii   @   Thu 29 Mar 4:37 PM
      • I think I have the answer now.

        It’s honest services fraud.

        The statute grants jurisdiction to the federal government to prosecute local, state and federal officials. It is frequently used to fight public corruption because it is easier to prove than bribery or extortion.[1][20][21] The term “honest services” is broad and open to jury interpretation, according to several legal experts.[20] Prosecutions under the 1970 Racketeer Influenced and Corrupt Organizations Act (RICO) frequently use violations of the honest services statute,[1] as mail and wire fraud are predicate acts of racketeering; therefore, two mailings or wire transmissions in the execution of honest services fraud can form “a pattern of racketeering activity.”[6]

        The law is reportedly a favorite of federal prosecutors because the language of statute is vague enough to be applied to corrupt political officials’ unethical or criminal activities when they do not fall into a specific category, such as bribery or extortion.[20] For similar reasons, defense attorneys dislike the law, viewing it as a poorly defined law that can be used by prosecutors to convert any kind of unethical behavior into a federal crime.[20]

        Nevertheless, prosecutors must still prove all the elements of mail fraud or wire fraud in a case regarding a scheme to defraud of honest services.[20]

        I guess the big question is why the feds, rather than the Commonwealth, are taking this case on. The Commonwealth has been directly harmed, not the nation. Why didn’t Coakley indict? Avoid state courts? Avoid state-level politics? The motives of the various actors are not within in my scope of knowledge, but they may be in yours.

        • Yes Mark But...

          honest service violations are not charged here. No mention of it. Nothing in indictment makes the probation department anything different from a private entity.

          The government chose not to charge with violation of honest services statute.
          Or, did i miss it?

          eb3-fka-ernie-boch-iii   @   Thu 29 Mar 5:45 PM
        • Coakley Didn't Indict Because....

          no state laws broken. Correct remedy for violation is job discipline, including termination, and civil damages and/or penalties if appropriate.

          Getting someone a job who isn’t the “most qualified” without a quid pro quo should not be a federal crime. Why is it here?

          eb3-fka-ernie-boch-iii   @   Thu 29 Mar 5:49 PM
          • getting someone not the most qualified a job is not a crime

            But, turning the hiring process of a large state agency into an elaborate bureaucratic sham involving the US Mail may be. Mail fraud is can be a tic-tac charge, but in this case it is very appropriate. Isn’t the first commandment of the hack bible never put it in writing?

            Why didn’t local authorities go after this? That question has been asked many times in recent years around here, and there is no clear or easy answer. But your sudden, new found, absolute faith in Coakley’s prosecutorial wisdom is amusing.

            • You are right Scout

              But, turning the hiring process of a large state agency into an elaborate bureaucratic sham involving the US Mail may be.

              But the facts do not show an elaborate bureaucratic sham. They show an agency with 2000 employees and they have 12 employees who had a letters of recommendations from legislative leaders and judges.

              According to the Ware report these same politicians made many more recommendations for people who were not hired.

              Hardly an elaborate bureaucratic sham.

              eb3-fka-ernie-boch-iii   @   Fri 30 Mar 10:48 AM
          • I gave it my best shot.

            Time for our attorneys to pipe up.

  2. Then, why?

    Why are the feds prosecuting instead of Coakley?

    Why are the feds prosecuting something that’s not a crime?

    If the actions don’t make sense from a strictly legal perspective, there should be another reason, right? Carmen Ortiz is pretty sharp, right?

    • Feds Have Federal Laws That MA Doesn't Have

      Like mail fraud and racketeering. The crimes they are being charged with. The hiring abuse in and of itself is not a crime.

      eb3-fka-ernie-boch-iii   @   Fri 30 Mar 10:44 AM

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