How the Arroyo jury got it right

Law-abiding citizens
By HARVEY SILVERGLATE  |  August 25, 2011

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Rarely has a Boston jury had to suffer as much ridicule as the 12 citizens who acquitted former Boston firefighter Albert Arroyo of pension fraud. Arroyo is the guy who claimed to suffer intractable pain from performing his normal duties — even lifting papers off of a desk — all the while training for and performing in bodybuilding contests.

DUMBBELLS, screamed the Boston Herald's front-page banner headline. JURY OF 98-POUND WEAKLINGS FALLS FOR MUSCLEMAN JAKE'S DISABILITY DEFENSE. "For the dunces on Arroyo's jury, the moon really is just a great big hunk of green cheese," wrote Peter Gelzinis, normally one of the most perspicacious columnists in town. A Boston Globe editorial was equally disbelieving, albeit in more measured tones: "Federal prosecutors made a straightforward — and eminently reasonable — argument that Arroyo's application for accidental disability retirement based on a back injury was a sham because he was caught on video performing a strenuous bodybuilding routine just six weeks later." Concluded the Globe: "the jury was somehow convinced that Arroyo had been acting in good faith all along."

But the press has it all wrong, and indeed did not have the insight of the 12 jurors tasked to decide Arroyo's fate. Contrary to the Globe's claim, the case was hardly a "straightforward" and "eminently reasonable" prosecution; it was a classic example of federal overreach, and the jury saw right through it. (The Globe perhaps should be partially forgiven for its pro-prosecution zeal, since the paper, admirably, broke the initial story of Arroyo's application for his pension while acting the role of muscle man.)


'FRAUD, JUST NOT MAIL FRAUD'

What the jury understood, but the press apparently did not, was the ridiculousness of this case's existence in federal court at all. Arroyo very likely did commit fraud when he faked or exaggerated an injury in order to collect over $68,000 in unemployment and retire early on a $28,000-plus yearly pension. And in this regard, the jurors were not fooled: according to the Globe, one of them said "the majority of jurors had agreed that there was a scheme" to defraud the government. But what the jurors refused to buy was the theory necessary to give the feds jurisdiction to prosecute Arroyo in the first place. The United States Constitution does not give the federal government sweeping authority to prosecute any and all suspected frauds. There has to be a jurisdictional "hook" to justify federal involvement. The feds can directly go after fraud artists who swindle federal funds, even when those funds are from federally funded but state-operated programs. But there is no general federal jurisdiction to prosecute attempted frauds against municipalities where only state and local funds are in danger. And so, in accordance with one of the jurisdictional tricks enacted by the Congress as part of the federal mail-fraud statute, the feds claimed that Arroyo committed a federal crime when he used the US mails, even if incidentally, in pulling off his attempted fraud.

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