Arroyo jurors say charge didn’t fit

Most felt there was scheme; none saw mail fraud

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By David Abel and Andrew Ryan and Vivian Yee
Globe Staff | Globe Correspondent / August 17, 2011

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Jurors who acquitted former Boston firefighter Albert Arroyo said yesterday that they believed he committed fraud when he filed for disability leave while attending bodybuilding competitions, but that prosecutors pursued the wrong charges.

They said most of the 12-member panel agreed with prosecutors that Arroyo fraudulently sought a $65,000 annual pension.

But they did not accept that he was guilty of two counts of mail fraud, a federal crime that could have put the muscular 49-year-old behind bars for up to 20 years.

“We didn’t feel that the prosecution made the case that it was reasonable and foreseeable that the mail would be used to further his scheme,’’ said one of the jurors, a 34-year-old professional, who spoke on condition his name not be published.

He said the jury - which included two nonpracticing attorneys, at least three college students or recent graduates, and other professionals - concluded prosecutors did not prove that Arroyo knowingly used the mail to further his alleged scheme to retire on a tax-free pension. It may have been a technicality, but it was key to the jury’s verdict.

“He was filling out disability forms at City Hall,’’ the juror said. “Was it reasonable and foreseeable, per the judge’s instructions, that the mail would be used to further his scheme? We didn’t think so.’’

Another juror said she and others thought Arroyo should have been charged in state court, where he could have been tried for simple fraud.

“I feel like it would have been found a lot differently that way,’’ said the juror, a 20-year-old college student from a Boston suburb who also asked that her name not be used. “I know a bunch of us didn’t exactly have the utmost respect for him. . . . Unfortunately, even if we wanted to lean in a different direction, we didn’t find enough proof.’’

Federal prosecutors said it was possible new fraud charges could be brought by state or local authorities against Arroyo, but officials in Attorney General Martha Coakley’s office declined to comment.

The juror said she did not trust Arroyo, who testified over three days last week. “It seemed like he was very much speaking off of a pre-thought-out plan of what to say. He seemed like he was being coached a little bit or just knew what he shouldn’t be saying.’’

Arroyo, who was fired for refusing to return to work as a fire inspector after officials learned he was competing as a bodybuilder, declined to comment yesterday through his lawyer, Timothy Watkins, a federal public defender.

Arroyo had been a firefighter for 22 years when he applied for accidental disability retirement in March 2008, saying a fall at a vacant firehouse in Jamaica Plain aggravated a back injury he sustained on the job in 2000. Six weeks later, he was videotaped taking part in a bodybuilding completion in Marlborough.

The disability claim, first reported by the Globe in July 2008, became a flashpoint for critics of public corruption and benefits fraud.

Watkins declined to comment on the jurors’ rationale for their verdict. “If the jury found it that way, it must have been reasonable,’’ he said.

Prosecutors said Arroyo should have known that the mail would have been used to complete his claims, even if he never deposited any of the disability forms in the mail. They noted that the mail fraud statute does not require that Arroyo had to be the one mailing them.

They said evidence presented at the trial showed that when Arroyo filed his disability paperwork at City Hall in April 2008, he signed the forms saying he was unable to work and gave them to the director of the Boston Retirement Board. The board mailed them to the state’s Public Employee Retirement Administration Commission, which accepts such documents only by mail.

“The defendant himself testified that he understood that there was a process to file for disability,’’ said Christina Sterling, a spokeswoman for the US attorney’s Office in Boston.

Arroyo’s assertion that he was unfairly fired will also continue to be contested.

Grievances filed on Arroyo’s behalf by the firefighters union have been on hold since 2008, while they awaited the conclusion of the trial. The union has sought his reinstatement on injury leave and back pay since his dismissal in August 2008.

When he was fired, Arroyo collected an annual salary of $68,133, which was tax-free because of his status on injury leave. If successful with the grievance, Arroyo would win a tax-free lump sum of at least $238,465, although the figure would probably be higher because of the raises firefighters won last year after a bitter contract dispute.

Fire Commissioner Roderick J. Fraser Jr. and other city officials declined to discuss Arroyo’s case or the broader issue of pension reform. Dot Joyce, a spokeswoman for Mayor Thomas M. Menino, said Fraser has aggressively reviewed and revamped policies at the Fire Department.

“Since he became commissioner, the mayor, along with the commissioner, has pushed statewide reform to prevent egregious abuses of accident disability retirement,’’ Joyce said.

If the jury had convicted Arroyo, he would have forfeited the pension he accrued with the Fire Department. But Arroyo’s acquittal makes him eligible for his pension.

City officials did not immediately respond to requests seeking details about Arroyo’s pension. Guidelines for the Retirement Board show that a 49-year-old firefighter with 22 years on the job could collect an annual pension equal to nearly 42 percent of the average of his three consecutive highest paid years. If that average were $68,000, Arroyo could collect more than $28,000 a year.

Officers in the union, the International Association of Fire Fighters Local 718, did not return a phone message yesterday seeking comment.

While Arroyo never collected a disability pension, his case led state lawmakers to reform the most egregious abuses in the pension system, including eliminating the king-for-a-day provision that had plagued the Fire Department. Before the reform, which had nothing to do with the allegations against Arroyo, scores of firefighters substantially enhanced their tax-free disability pensions by reporting career-ending injuries while they were filling in for superiors at higher pay grades. They would then collect at the high rate.

“He was the poster child for disability pension abuse,’’ said Samuel R. Tyler, president of Boston Municipal Research Bureau, a fiscal watchdog funded by businesses and nonprofits. “That contributed to the media coverage, which contributed to the Legislature and governor taking it more seriously.’’

In explaining how the jury reached its verdict, the older juror said the group first considered whether Arroyo took part in a scheme to defraud the city by filing false reports of injuries. He said the majority of jurors had agreed that there was a scheme.

Then they addressed whether Arroyo intended to carry out that scheme. Although opinion was divided - some jurors bought the defense’s argument that Arroyo had been pushed to file for disability by union and other officials - the juror said “more were leaning to guilty of intent.’’

But in the last hour of nearly four hours deliberating, the jurors found they could not convict.

When they reached the question of whether Arroyo knowingly used the mail as part of that scheme - the charges against him - they concluded he would not have known the forms he filed at City Hall would be sent to the state retirement commission by messenger, fax, or scanned and sent by e-mail.

“When we couldn’t prove anything about the mail, we were done,’’ the juror said. “We could have chosen to ignore that and found him guilty, but that wouldn’t have been right. We did justice as justice should be done in this case.’’

Did he feel badly that Arroyo was acquitted on what could be viewed as a technicality?

“I think it’s perfectly valid that they go after him for fraud, just not mail fraud,’’ he said.

Another juror who sat through the trial but did not participate in deliberations said whether Arroyo committed fraud was irrelevant. The judge instructed them to consider only whether he was guilty of mail fraud.

“I asked the judge how come they didn’t bring him up on another kind of charge, because maybe that one would have stuck,’’ she said. “But he didn’t drop the mail in the box and put a stamp on it. How is that [mail] fraud?’’

David Abel can be reached at Follow him on Twitter @davabel.