Judge signals stiff terms for O’Brien, aides
Prosecutors drop remaining charges
Prosecutors in the federal trial of former Probation commissioner John O’Brien and his two top deputies said on Wednesday they will not pursue bribery charges after the judge indicated he would hand down substantial prison time for O’Brien and his aides on their racketeering and mail fraud convictions.
The announcement by Assistant US Attorney Fred Wyshak clears the way for Judge William Young to sentence O’Brien, Elizabeth Tavares, and William Burke III on Thursday. After calculating the maximum amount of time each is facing – nearly six years for O’Brien and nearly four years each for Tavares and Burke – Young hinted he would come down on the high side of the range.
As he did in the case of O’Brien last week, Young agreed to add so-called enhancements – circumstances that increase the severity of a crime and the punishment – onto the sentences for Tavares and Burke. Young found the former deputy commissioners “abused a position of public trust” but, unlike with O’Brien, rejected a prosecution argument that Tavares and Burke were organizers and had “leadership roles” in the conspiracy scheme.
Young said he looked to find averages for similar racketeering sentences in federal courts around the country as well as past cases in Massachusetts but could not so he looked at averages for mail fraud, which constituted most of the convictions.
In July, after a nearly 8-week trial, a jury convicted O’Brien and Tavares on multiple counts of mail fraud, racketeering, and conspiracy and Burke of a single count of conspiracy for running a rigged system. Prosecutors convinced jurors O’Brien and his aides hired favored candidates referred by legislative leaders as well as rank-and-file lawmakers in exchange for bigger budgets and more power.
Prior to the start of the trial, Young cut the indictment into two parts, with the second half on bribery charges slated to begin in January. Prosecutors had declined to drop the charges until they were certain they would be satisfied with the sentence. After Young calculated the range and stated the historical averages, Wyshak said he would file a dismissal next week on the remainder of the charges.
In addition to prison time, the three could also face one to three years of probation and O’Brien could be fined up to $100,000, while Tavares and Burke could be fined up to $75,000. All three will also lose their state pensions.
In the hearing on whether to include the enhancements, Tavares’ attorney Brad Bailey argued she was only doing her job, an argument he had made at the beginning to the trial.
“She was a messenger, saying who it was who the commissioner wanted to see in the next round,” Bailey said in arguing against prosecutors claim she was a ringleader. “I’m not sure this was anything other than an administrative function. There was no evidence whatsoever that our client participated in the certification process.”
But Young, as he has throughout the post-trial hearings, said the jury heard those arguments and found her guilty nonetheless.
“What about that argument that she’s an attorney here,” Young said, citing Tavares’ legal background. “She could have refused.”
Young took the argument under advisement.