Court upholds sentences that kept two Big Dig contractors out of prison

Harm caused to the Big Dig by two concrete-company executives who ordered workers to deliver substandard concrete was nowhere near as bad as prosecutors charged, a federal appeals court said today in upholding a judge sentencing them only to probation and community service.

Under federal guidelines for the fraud charges on which they were convicted, Robert Prosperi and Gregory Stevenson, executives at Aggregate Industries, should have gotten a minimum of 7 1/4 years in federal prison. The judge in their case, however, sentenced them to six months' probation and 1,000 hours of community service.

Federal prosecutors appealed. In its ruling today, the US Court of Appeals for the First Circuit in Boston agreed the deviation from sentencing standards gave it pause, but said the judge in the case adequately explained why the two did not deserve time in prison:

To start, the value of the concrete - in which workers layered a small amount of good concrete atop batches of substandard material and prepared fake certificates on the makeup of the material - was less than the government charged, in part because contractors were paid by each foot of the tunnel constructed, rather than by the number of loads of concrete delivered.

But also, state officials said that even with the adulteration, post-construction tests showed the bad batches still met state specifications, it was unfair to blame these two men for a culture of corporate corruption of the sort exemplified by Robert Madoff. Also, neither man personally benefited from the fraud. Both men were also caring for very sick family members and apologized before sentencing.

• Complete ruling