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.

Young said he is compelled by federal regulations to use averages in other similar cases as precedent in sentencing. While Young said the average sentence in the country was 29 months, the average sentence in Massachusetts was 36 months. But, in what may be a barometer of where Young is leaning, he said the average sentence he has handed down for mail fraud was 66 months.

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.”

John Amabile, Burke’s lawyer, appealed to Young to go light on Burke’s sentencing, arguing the evidence of his participation in a conspiracy was “reed thin” and suggesting his client was taking the fall for a number of unindicted do-conspirators whose actions were far worse. He urged Young to place Burke into a lesser category of conspiracy.

Meet the Author

Jack Sullivan

Senior Investigative Reporter, CommonWealth

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

About Jack Sullivan

Jack Sullivan is now retired. A veteran of the Boston newspaper scene for nearly three decades. Prior to joining CommonWealth, he was editorial page editor of The Patriot Ledger in Quincy, a part of the GateHouse Media chain. Prior to that he was news editor at another GateHouse paper, The Enterprise of Brockton, and also was city edition editor at the Ledger. Jack was an investigative and enterprise reporter and executive city editor at the Boston Herald and a reporter at The Boston Globe.

He has reported stories such as the federal investigation into the Teamsters, the workings of the Yawkey Trust and sale of the Red Sox, organized crime, the church sex abuse scandal and the September 11 terrorist attacks. He has covered the State House, state and local politics, K-16 education, courts, crime, and general assignment.

Jack received the New England Press Association award for investigative reporting for a series on unused properties owned by the Catholic Archdiocese of Boston, and shared the association's award for business for his reporting on the sale of the Boston Red Sox. As the Ledger editorial page editor, he won second place in 2007 for editorial writing from the Inland Press Association, the nation's oldest national journalism association of nearly 900 newspapers as members.

At CommonWealth, Jack and editor Bruce Mohl won first place for In-Depth Reporting from the Association of Capitol Reporters and Editors for a look at special education funding in Massachusetts. The same organization also awarded first place to a unique collaboration between WFXT-TV (FOX25) and CommonWealth for a series of stories on the Boston Redevelopment Authority and city employees getting affordable housing units, written by Jack and Bruce.

“I think under these circumstances it is appropriate to reduce his offense level,” Amabile said.

Young took the argument under advisement.