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13-P-1123 Appeals Court
COMMONWEALTH vs. NICHOLAS OCCHIUTO.
No. 13-P-1123.
Essex. April 13, 2015. - October 13, 2015.
Present: Cohen, Wolohojian, & Maldonado, JJ.
Larceny. False Pretenses. Evidence, Hearsay, Intent. Intent.
Intimidation of Witness. Witness, Intimidation, Police
informer. Unlawful Interference. Practice, Criminal,
Confrontation of witnesses, Hearsay, Harmless error,
Witness.
Indictments found and returned in the Superior Court
Department on June 9, 2010.
The cases were tried before Howard J. Whitehead, J., and a
motion for postconviction relief was heard by him.
John M. Thompson for the defendant.
Kenneth E. Steinfield, Assistant District Attorney, for the
Commonwealth.
WOLOHOJIAN, J. Although hypothetical questions are the
stock in trade of law schools, it is rare to find a criminal
prosecution stemming from the world of make-believe. But such
we confront here. The questions raised are: (1) whether there
2
was sufficient evidence that the defendant made a false
statement of fact to an undercover cooperating witness so as to
support his conviction of larceny by false pretenses; and (2)
whether the defendant was properly convicted of misleading a
police officer with the intent to impede or interfere with a
criminal investigation where the investigation was a sham and
the underlying crime was a ruse.1 We reverse.
Background.2 At some point in 2009, the defendant became
the target of a drug investigation (code-named "Operation
Cryptonite") jointly conducted by Federal, State, and local law
enforcement agents. A cooperating witness, code-named "Olive,"
was enlisted to attempt to buy two ounces of "crack" cocaine and
thirty grams of heroin from the defendant, using money supplied
by the agents. A total of $4,000 was involved: $2,200 marked
and wrapped with a rubber band for the crack cocaine, and $1,800
also marked and wrapped with a rubber band, for the heroin.
1
The defendant raises additional issues with respect to the
larceny conviction which we need not reach. These relate to the
admission of certain hearsay, and a claim of ineffective
assistance of counsel. Given our disposition, we also do not
need to reach his arguments concerning the single justice's
denial of his motion to stay further execution of his sentence.
2
The facts were not subject to much dispute at trial, nor
are they on appeal. This is probably a function of the fact
that much of the critical evidence was introduced through video
or audio recordings and therefore did not depend on witness
credibility or recollection. We have listened to and watched
all of the recordings, in addition to reading the transcription
of their contents as they were played during trial.
3
On October 21, 2009, in the presence of Federal Bureau of
Investigation (FBI) Special Agent Jeffrey Wood, Olive placed a
telephone call to the defendant, recorded and transcribed in its
entirety as follows:
The defendant: "Hello?"
Olive: "What's good?"
The defendant: "Hey what up?"
Olive: "Yo, I'm out here, I'll be -- meet me at the
same spot in like fifteen minutes."
The defendant: "Um, instead come scoop me on
Franklin."
Olive: "Franklin?"
The defendant: "Yeah, Franklin Street. You know
Franklin Street, right? Call me when you're on
Franklin Street. I will come out -- I will come
outside."
Olive: "All right."
The defendant: "All right."
Olive: "All right. Bye."
This apparently was not the first conversation Olive had
had with the defendant that day. However, the content of that
earlier conversation was -- as the Commonwealth concedes --
inadmissible hearsay because Olive did not testify and the
Commonwealth sought to introduce it through Special Agent Wood.
We therefore do not include the substance here, although we
discuss it later.
4
Olive used an FBI-provided automobile, outfitted with a
hidden camera and recording equipment, to drive to Franklin
Street. Special Agent Wood and Detective Stephen Withrow of the
Lynn police department followed in an unmarked car. Another FBI
Special Agent, Darwin Suelen, followed separately. State police
Trooper Jesse Sweet and Lynn police Detective Oren Wright drove
directly to Franklin Street in order to observe from that
vantage point.
When Olive arrived at Franklin Street, she saw to her
surprise that the defendant was with a man she referred to as
"Nuck."3 This discovery prompted Olive to muse aloud:
"I don't know if I am going to be able to get
this today. I don't know if I will be able to get it
with Nuck. I don't think I am going to be able --
" . . .
"Yo, I am not going to be able to get this today
with Nuck with him. I am going to try.
"Fuck man."
The defendant got into the rear of the car;4 Nuck got into
the passenger seat next to Olive. The following exchange
ensued:
Nuck: "What up, what up."
3
Joshua Demos. We shall refer to him as "Nuck" throughout
this opinion to avoid confusion.
4
The placement of the hidden camera was such that the
defendant never appears in the video, but his voice is audible.
5
Olive: "What up, what up. What's good Nuck."
Nuck: "What's good."
Olive: "How you doing?"
Nuck: "How you been?"
Olive: "I'm doing good. I'm good. Where to, same
spot?"
Nuck: "No, take a left down -- actually probably take
a left. Let's go to the end and take a left at the
lights."
Olive: "All right. All right. [Handing the two
packets of money behind her to the back seat where the
defendant was located]. Count this."
While Olive continued to drive following Nuck's directions,
she and Nuck conversed about various personal matters.5
Eventually, Nuck instructed Olive to pull over and stop the car
on Arlington Street. Nuck and Olive continued to converse for
several more minutes. Then, the defendant (who until then had
spoken only once or twice on immaterial matters) said:
"[Apparently referring to the two packets of money
Olive had handed to him at the beginning of the ride,]
So this -- this right here, this is 22, and this right
here is 18."
Olive: "Yes."
5
Frequently interspersed throughout their conversation were
Olive's requests that Nuck provide his telephone number and/or
that he keep in touch with her. From the context, it is a fair
inference that Nuck and Olive had had an intimate relationship
in the past resulting in a child, and that Nuck did not keep in
touch with Olive despite her requests.
6
The defendant: "All right. Good."
Olive: "I separated it for you."
The defendant: "All right. Cool good. Count it
out."
The defendant can be heard to say next, "See you right
back" while opening the back door of the car.6 Nuck, while
getting out of the car, said "I am probably about to stay here."
The two men then left the car and walked away. Olive, left
alone in the car, said aloud, presumably for the benefit of the
agents:
"All right. He [referring to Nuck] said he was going
to stay here, but I am assuming he ain[']t staying in
Lynn. So let's see. He is rolling into the house.
We're at number 36. I am at number 36 on Arlington.
They're going one, two, three. The third house in the
back next to the picket fence. I believe it's the
third house in the back. So now I got Dice [the
defendant] alone so I will be able to do this."
Over two minutes passed. Nuck then returned to the car, and
opened the front passenger door (where he had been sitting)
looking for something:
Olive: "What you looking for?"
Nuck: "Did this nigga leave a purple phone in here?"
6
This statement was not transcribed by the reporter and is
not part of the trial transcript. An explanation for its
absence may lie in the fact that the videotape was played in
segments, not as a whole. Regardless, the statement was
contained on the videotape disk which was admitted in evidence,
and a computer was available for the jury to listen to it during
deliberations. The statement was accordingly part of the
evidence at trial.
7
Olive: "Purple phone? Looking for a purple phone?"
Nuck: "It's this chick's phone." [He opens the back
door to look in the back seat.]
Olive: "No, I don't see no phone. Do you want me to
call it?"
Nuck: [Having found the telephone in the back seat
area,] "You got this number, right?"
Olive: "No."
Nuck: "This is the number you were just calling,
right?"
Olive: "Oh, yeah. Yeah."
Nuck: "Yeah, because this is some chick's number.
She lets me use this shit. Put this down as my shit
and just call me on it."
Olive: "Okay."
Nuck: "All right. He's [apparently referring to the
defendant] up there talking to his fucking dumb fuck."
Olive: "All right, fam."
Nuck: "All right."
Left alone again in the car, Olive remarked to herself, "All
right. Got Nuck's number now." She then waited for Nuck and
the defendant to return.
Instead of returning to Olive's car, the defendant and Nuck
emerged on a parallel street where Detective Wright observed
them give each other a "high five." They got into a black Jetta
automobile and drove away with the defendant behind the wheel.
8
The agents concluded that they had observed a possible
"rip"7 (i.e., theft) and a broadcast was made to that effect, to
which State police Trooper Mario Millett, yet another member of
the joint operation, quickly responded.8 Trooper Millett decided
to stop the Jetta using a ruse in order to retrieve the cash,
and elicit any other information that might be helpful, while
preserving the confidentiality of the drug investigation.
Trooper Millett saw that a car (completely unrelated) was
driving close behind the black Jetta. Using that fact, he
stopped both cars on the pretext that he had observed an
incident of road rage. To further the pretext, Trooper Millett
first approached the unrelated car and obtained that driver's
license and registration. He also asked the driver of that car
to wait. Trooper Millett then approached the black Jetta.
After obtaining the defendant's license and registration,
Trooper Millett asked the defendant and Nuck to get out of the
car, and pat frisked them. He removed the $2,200 wrapped with a
rubber band from one of the defendant's pockets, plus $400 in
loose cash from another. He removed the $1,800 wrapped with a
rubber band from Nuck's pocket. Trooper Millett asked about the
7
The term is apparently derived from the phrase "to rip
off."
8
Although Trooper Millett was a member of the joint
investigation team, he was working a detail at Logan Airport
when he heard the broadcast. He left that detail and arrived at
the scene "quickly."
9
large amount of cash he had found, and the defendant told him
that it was for rent. Nuck said that he intended to buy a
vehicle. Trooper Millett returned the $400 to the defendant,
but kept the two rubber-banded bundles of cash.
Agitation and invention ensued. According to Trooper
Millett, both men became very concerned by the fact that he had
taken the money. He explained to them that he "would just start
a civil forfeiture proceeding for the money." Because they
continued to protest, Trooper Millett gave them a receipt, which
he signed "Trooper J. Edgar Hoover."9 When those steps were not
enough to appease the defendant and Nuck, Trooper Millett told
them that they could go to the State police barracks in Danvers
to complain.10
Outrage overtaking caution, the defendant and Nuck accepted
the trooper's invitation and went to the barracks to report what
they believed was a "shake-down" by a rogue State police
trooper. They were met by Lieutenant Hughes of the State police
9
Trooper Millett explained that he used Mr. Hoover's name
"because it was the feds['] money, and I thought that it would
be a -- sort of a -- one way to explain who was actually taking
the money without actually giving up who was taking their money,
so I wrote Trooper J. Edgar Hoover."
10
Another officer -- who was not involved in the
investigation and knew nothing about the reason for the
pretextual traffic stop -- happened upon the scene and stopped
to act as backup for Trooper Millett. That officer was
understandably puzzled by Trooper Millett's actions, but did
nothing to intervene.
10
who had been alerted ahead of time to the situation by Trooper
Millett. Lieutenant Hughes knew of the joint drug operation,
and wanted to maintain its confidentiality. At the same time,
he wanted to try to obtain information from the defendant that
might be helpful to the drug investigation. The lieutenant,
therefore, invented a sham investigation into Trooper Millett's
conduct as a pretext to interview the defendant, and told the
defendant that "we were looking into the -- the seizure of the
cash and the appropriateness of the Trooper's actions." In
fact, no such investigation was afoot or intended.
The defendant agreed to return to the barracks the next day
to be interviewed as part of the supposed investigation. That
interview was conducted by Lieutenant Hughes and FBI Special
Agent Wood, and they together maintained the fiction that they
were conducting an investigation into Trooper Millett. The
interview lasted about one-half hour.11 After eliciting details
about the stop, the frisk, the removal of the money, and the
receipt, Special Agent Wood asked:
"Now, just for our clarification, so we can show in
Court if we have to which -- where did you get your --
your money from, like the -- all the money, so we can
prove that this is your money?
The defendant initially responded that it came from "my trust"
and that he had earned it while "working under the table."
11
The recording of the interview was played for the jury.
11
Special Agent Wood asked whether the defendant could provide
receipts, and the defendant said that he would be able to
provide bank statements. Special Agent Wood asked that the
statements be sent to him, and the defendant agreed. In
response to further questioning, the defendant stated that he
was going to use the money to buy a car. Later in the
interview, the officers returned to the topic of the source of
the money:
Hughes: "Okay. So that money that you had, was from
your bank accounts --"
The defendant: "Yeah. It's -- yeah. That's money --
"
Hughes: "-- it wasn't from a job?"
The defendant: "No, that's money I've -- I've been
had. I have had the money."
Hughes: "You had that money?"
The defendant: "Yeah. Correct."
Hughes: "So you -- okay, so you haven't been working
since April?
The defendant: "Well, no, I have been working under
the table here and there."
Hughes: "All right. Doing what?"
The defendant: "Yeah, I would rather not say because
it's under the table. I don't want to like put my --"
Hughes: "You don't have to tell us --"
The defendant: "-- employer in a funny position."
12
Hughes: "-- you don't have to tell us who your
employer is, but what were you -- what were you
doing?"
The defendant: "Oh, what was I doing? I was
fishing."
Discussion. After a three-day trial in 2012, the defendant
was convicted by a jury of larceny by means of false pretenses
over $250, in violation of G. L. c. 266, § 30, for stealing
money belonging to the FBI. He also was convicted of misleading
a police officer with the intent to impede, obstruct, or
otherwise interfere with a criminal investigation, in violation
of G. L. c. 268, § 13B.12 This charge was based on the
defendant's false statements about where he got the money when
he was interviewed by Lieutenant Hughes and Special Agent Wood
as part of their sham investigation into Trooper Millett.
1. Larceny by false pretenses.13 "Prosecution for larceny
by false pretenses requires proof that (1) a false statement of
fact was made; (2) the defendant knew or believed that the
statement was false when he made it; (3) the defendant intended
that the person to whom he made the false statement would rely
12
The defendant was sentenced to consecutive prison terms
of from three to five years for larceny and from one to one and
one-half years for misleading a police officer or Federal agent.
13
The defendant was charged with violating G. L. c. 266,
§ 30(1), as amended by St. 1987, c. 468, § 1, which provides, as
pertinent here, "[w]hoever steals, or with intent to defraud
obtains by a false pretence, . . . the property of another . . .
shall be guilty of larceny."
13
on it; and (4) the person to whom the false statement was made
did rely on it and, consequently, parted with property."
Commonwealth v. Cheromcka, 66 Mass. App. Ct. 771, 776 (2006),
quoting from Commonwealth v. Williams, 63 Mass. App. Ct. 615,
620 (2005).14 "Property" includes money. G. L. c. 266, § 30(2).
A "larceny [i]s complete if and when the money, pursuant to a
fraudulent scheme, [comes] under the defendant's control."
Commonwealth v. Ellison, 5 Mass. App. Ct. 862, 862 (1977). That
point may have occurred in this case as early as when Olive
handed the money to the defendant almost immediately after he
got into the back seat of Olive's car, but certainly had
occurred by the time he left Olive's car.
As we have noted, the crime requires proof that the
defendant made a false statement of fact.15 "A false pretense
14
Our cases uniformly use this formulation of the elements
of the crime. See Commonwealth v. Green, 326 Mass. 344, 348
(1950); Commonwealth v. McCauliff, 461 Mass. 635, 641-642
(2012); Commonwealth v. St. Hilaire, 470 Mass. 338, 346 n.12
(2015); Commonwealth v. Edgerly, 6 Mass. App. Ct. 241, 262
(1978); Commonwealth v. Reske, 43 Mass. App. Ct. 522, 524
(1997).
15
For reasons that are unexplained in the record, the jury
instructions in this case were not consistent with our caselaw
nor with the Criminal Model Jury Instructions for Use in the
District Court (2009). The judge incorrectly instructed that
the first element required the Commonwealth to prove that the
defendant "promised to provide the person known as Olive with a
thing of value." Instead, the Commonwealth was required to
prove that the defendant made a false statement of fact. See
text, supra, and accompanying note 14. The record does not
reveal the source of the judge's erroneous language, and neither
14
may be made by implication as well as by verbal declaration,"
and it "may consist of an act, symbol, or token calculated to
deceive." Commonwealth v. Reske, 43 Mass. App. Ct. 522, 525-526
(1997). But "[t]he pretence must relate to past events. Any
representation or assurance in relation to a future transaction,
may be a promise or covenant or warranty, but cannot amount to a
statutory false pretence." Commonwealth v. Drew, 19 Pick. 179,
185 (1837). "A mere failure to fulfil a promise does not
constitute a misrepresentation." Commonwealth v. Cheromcka, 66
Mass. App. Ct. at 782.
For the reasons that follow, we disagree with the
defendant's argument that there was insufficient evidence that
(a) he made a false statement of fact (b) with the requisite
scienter.16 However, we agree with his argument that the
erroneous admission of the gist of Olive's first conversation
with the defendant, as recounted by Special Agent Wood, was not
harmless beyond a reasonable doubt.
party objected to it, either before or after the instructions
were delivered. Although the instructions, as given, did not
properly describe the crime, neither party raises any issue
concerning the instructions on appeal. We accordingly do not
rest our decision on the error. In any event, our outcome would
be unaffected, and we assume that the error will not be repeated
in any retrial.
16
The defendant does not challenge the sufficiency of the
Commonwealth's proof with respect to the third and fourth
elements.
15
We begin by noting that Olive did not testify. Thus,
although there appears to have been a conversation between Olive
and the defendant before the one in which they agreed to meet on
Franklin Street, its contents were, as the Commonwealth
concedes, inadmissible hearsay. The judge correctly sustained
the defendant's objections to Special Agent Wood's testimony
directly stating what Olive told him about that initial
conversation.17 However, Special Agent Wood was nonetheless
permitted to testify to the gist of that conversation, namely
that the defendant told Olive that he would sell her two ounces
17
We set out the objected-to testimony here:
Q.: ". . . Now, this particular morning or day, sir,
how did you go about setting up this particular
controlled purchase -- attempted control[led]
purchase?"
Special Agent Wood: "The -- Olive had contacted me
and said that [the defendant] was --"
Defense counsel: "Objection."
The court: "I'll sustain the objection."
Q.: "Without -- without getting into what anybody
else said, sir, what did you actually do?"
Special Agent Wood: "Oh, I met with cooperating -- I
met with Olive at my office. I had Olive make a
consensually recorded telephone call to [the
defendant]. Upon ending the con -- the conversation,
we knew that it -- [the defendant] planned to sell --"
Defense counsel: "Objection."
The court: "Yeah, I'll sustain it."
16
of crack cocaine in exchange for $2,200 and thirty grams of
heroin in exchange for $1,800. The Commonwealth acknowledges
that the substance of Olive's initial conversation was
testimonial and that its admission through Special Agent Wood,
rather than through Olive, implicated the defendant's
confrontation rights. The error was preserved. Accordingly,
the question is whether the error was harmless beyond a
reasonable doubt. Commonwealth v. Montoya, 464 Mass. 566, 571-
572 (2013).
"When analyzing whether an error was harmless beyond a
reasonable doubt, we consider whether, based on the totality of
the record before us, weighing the properly admitted and the
improperly admitted evidence together, we are satisfied beyond a
reasonable doubt that the tainted evidence did not have an
effect on the jury and did not contribute to the jury's
verdicts. It is not enough that other, properly admitted
evidence was sufficient to convict the defendant or that the
inadmissible evidence was consistent with the admissible
evidence. An error is harmless beyond a reasonable doubt only
when other properly admitted evidence of guilt is overwhelming,
in the sense that it is so powerful as to nullify any effect
that the improperly admitted evidence might have had on the fact
finder or the findings"(quotations and citations omitted).
Ibid.
17
Here, the properly-admitted evidence was sufficient to
prove that the defendant made a false statement of fact for
purposes of the larceny charge, but that evidence was far from
overwhelming. The only direct evidence of the defendant's
statements was: (1) "instead come scoop me on Franklin," (2)
"Yeah, Franklin Street. You know Franklin Street, right? Call
me when you're on Franklin Street. I will come out -- I will
come outside," (3) "All right. Cool good. Count it out," (4)
"So this -- this right here, this is 22, and this right here is
18," and (5) "See you right back." The first three of these
were not representations of fact. Moreover, there was no
evidence that the defendant knew any of the first four
statements was false. Indeed, the defendant met Olive on
Franklin Street as he had proposed, and there were in fact two
bundles of cash, one containing $2,200 and the other $1,800.
The question therefore reduces to whether the fifth statement,
"See you right back," was a false statement of fact.18
"See you right back" is a promise. Generally, our cases
have held that a promise of future performance is not a false
18
Although there was circumstantial evidence that Olive and
the defendant made an agreement to conduct a transaction of some
sort once they met at Franklin Street, and that Olive relied on
that agreement when she gave the money to the defendant and
allowed him to leave the car with it, that evidence was not
sufficient to prove a particular verbal statement, "act, symbol,
or token calculated to deceive" by the defendant without
resorting to impermissible speculation. Commonwealth v. Reske,
43 Mass. App. Ct. at 525.
18
statement of fact. See Commonwealth v. Drew, 19 Pick. at 185;
Commonwealth v. Cheromcka, 66 Mass. App. Ct. at 782. A helpful
discussion of this point, and the reasons for it, is contained
in Commonwealth v. Drew, 19 Pick. at 184-185:
"What is a false pretence, within the meaning of
the statute? It may be defined to be a representation
of some fact or circumstance, calculated to mislead,
which is not true. To give it a criminal character
there must be a scienter and a fraudulent
intent. . . .
"It is not the policy of the law to punish
criminally mere private wrongs. And the statute may
not regard naked lies, as false pretences. It
requires some artifice, some deceptive contrivance,
which will be likely to mislead a person or throw him
off his guard. . . .
"The pretence must relate to past events. Any
representation or assurance in relation to a future
transaction, may be a promise or covenant or warranty,
but cannot amount to a statutory false pretence. They
afford an opportunity for inquiring into their truth,
and there is a remedy for their breach, but it is not
by a criminal prosecution."
Although a promise of future performance alone cannot
constitute a false statement of fact for purposes of the
larceny statute, it can do so if it is accompanied by a
false statement of past fact, whether express or implied.
See id. at 185; Commonwealth v. True, 16 Mass. App. Ct.
709, 711-713 (1983) (reversing conviction where
insufficient evidence that factual statements made in
purchase and sale agreement were false at time made);
Commonwealth v. Cheromcka, 66 Mass. App. Ct. at 781
19
(defendant's approval of credit card bills that were
submitted to school district for payment contained implied
misrepresentation that items that had been purchased in
past were for school use).
Here, the statement, "See you right back," contained an
implied representation of fact that the drugs the defendant had
promised to sell were nearby. However, that implied
representation rested in large -- and almost exclusive -- part
on the inadmissible evidence that the defendant had agreed to
sell drugs to Olive. Without the testimony about the gist of
Olive's initial conversation -- the communication that set the
entire transaction in motion -- the statement, "See you right
back," was not sufficient to constitute a false representation
of fact.
For these reasons, we conclude that the erroneous admission
of the substance of Olive's initial conversation with the
defendant was not harmless beyond a reasonable doubt, but that
there was sufficient evidence to permit a retrial.19 See Kater
19
Although we are unable to tell from the trial record
whether the Commonwealth would call Olive to testify at a
retrial, for purposes of determining whether the evidence would
be sufficient on retrial, we may assume that it would. See
Commonwealth v. Sepheus, 468 Mass. 160, 173 (2014) ("We are not
able to determine from the trial record whether the Commonwealth
would call the informant to testify at a retrial to offer
competent testimony that the defendant had been selling crack
cocaine for purposes of supporting an inference that he intended
to sell the three rocks of crack cocaine that he had on his
20
v. Commonwealth, 421 Mass. 17, 18 (1995) (Commonwealth is
entitled to retrial if evidence, including inadmissible
evidence, was sufficient to send case to jury); Commonwealth v.
Hanson, 79 Mass. App. Ct. 233, 234-235 (2011).
Turning to the element of scienter, there was ample
evidence from which a jury could find, beyond a reasonable
doubt, that the defendant's actions and statements were intended
to lull Olive into believing that he intended to sell her drugs,
when in fact he did not intend to do so. See Commonwealth v.
Cheromcka, 66 Mass. App. Ct. at 782 (defendant cannot be
convicted "absent proof of an intention to deprive at the time
of the representation"). Although the fact that the sale did
not ultimately occur is not enough alone to prove scienter,
Commonwealth v. McCauliff, 461 Mass. 635, 642 (2012) ("the lack
of sale, by itself, does not give rise to a permissible
inference that no sale of the property was ever intended"), here
there was additional evidence of the defendant's intent.
To begin with, as Olive herself noted, Nuck's presence at
the scene was an indication that the sale would not happen as
arranged. Olive commented on this immediately, and she became
optimistic about the prospects of a sale only when she saw Nuck
person. If it does, this could be sufficient, with the other
evidence, to allow the case to go to the jury"). Furthermore,
the record suggests that the initial conversation was recorded
and, if that is the case, the Commonwealth could introduce that
recording.
21
leave and thought she would be able to conduct the transaction
with the defendant alone. That optimism rested on a false
impression created by the defendant and Nuck; in fact, the
defendant and Nuck reunited once out of Olive's sight. In
addition, Olive was told to drive to a location that was close
to the defendant's car, but from which his car was not visible.
It is a fair inference that the defendant did not wish Olive to
see where he went when he left her car, nor did he want her to
know that he planned to drive away. If no subterfuge were
involved, then one would expect Olive to drop the defendant and
Nuck near or next to the car they intended to use, rather than
on another block. There was no obvious reason for Olive to have
been told to park on Arlington Street because that was not where
the drugs were located. In addition, if, as the defendant
stated, he would "[s]ee [Olive] right back," there would have
been no reason for Nuck to return to retrieve the telephone that
had been left behind, particularly since more than two minutes
had already elapsed. In addition, the defendant and Nuck gave
each other a "high five" once they emerged on the parallel
street and were out of Olive's view. Based on common knowledge,
one can reasonably infer that the gesture was a sign of mutual
congratulation. Although the object of that congratulation is
not self-evident, it was open to the jury to determine that it
reflected pleasure, albeit premature, at duping Olive. Finally,
22
although the defendant was stopped "quickly" after he drove
away, the jury could conclude, based on the evidence we have
already recited, that -- even had he not been stopped by Trooper
Millett -- he was far enough away to suggest that it was not his
intention to return to consummate the sale.
In sum, we conclude that there was sufficient evidence that
the defendant made a false statement of fact with the requisite
scienter, but that the admissible evidence of that statement was
not so overwhelming as to nullify any effect the improperly
admitted evidence might have had on the jury.
2. Misleading a police officer. The indictment charged
the defendant with "willfully mislead[ing] another person who is
a police officer or federal agent with the intent to impede,
obstruct or otherwise interfere with a criminal investigation,"
in violation of G. L. c. 268, § 13B, as it existed at the time
of the offense.20 The Commonwealth's theory at trial was that
the defendant had violated the statute by lying about the source
of the money when he was interviewed by Lieutenant Hughes and
Special Agent Wood. The defendant made those statements
thinking that he was participating in an investigation he had
20
Although subsequently expanded in 2010 to encompass civil
proceedings, at the time of the conduct at issue in this case,
the statute prohibited only interference with "a criminal
investigation, grand jury proceeding, trial or other criminal
proceeding." G. L. c. 268, § 13B(1)(c)(v), as amended by St.
2006, c. 48, § 3.
23
been led to believe was being conducted into Trooper Millett.
Not only was that investigation a sham, Trooper Millett's
conduct itself was a ruse. In reality, the defendant was the
unwitting subject of an elaborate fabrication designed to elicit
self-incriminating statements that would benefit a drug
investigation about which he had no inkling and about which law
enforcement wanted him kept in the dark.21
The defendant argues that his conviction should be reversed
because (1) there was insufficient evidence of a criminal
investigation because the investigation was a sham, and (2) the
evidence was insufficient to prove that he acted with the
requisite intent.22
General Laws c. 268, § 13B, is "fundamentally a 'witness
intimidation statute'" and is "concerned primarily with
21
As the prosecutor stated in closing argument:
"And clearly [the ruse] worked perfectly because [the
defendant], when he makes that statement to
[Lieutenant] Hughes and Agent Wood the next day, has
no idea -- has no idea why he was stopped by Trooper
Millett. He has no idea that it was because he took
that [$]2200 and $1800 from Olive. He really thought
-- he really thought that Trooper Millett was shaking
him down for money. He really believed that. He had
no idea that he got stopped because he just stole this
money from a Federal informant."
22
Because we conclude that the evidence was insufficient to
prove a "criminal investigation" within the meaning of the
statute, we do not reach the defendant's additional arguments
that it would be unfair to criminalize the behavior at issue
here and that the statute, on its face and as applied, is
unconstitutionally vague.
24
countering the effect of witness intimidation on the successful
prosecution of criminals." Commonwealth v. Morse, 468 Mass.
360, 367 (2014). However, the statute was expanded in 2006 to
"outlaw[] 'mislead[ing]' and 'harrass[ing]' conduct, in addition
to the 'threatening' and 'intimidating' conduct that the prior
version of the statute had proscribed." Id. at 369, quoting
from G. L. c. 268, § 13B. We are concerned here only with the
"misleading" prong of the statute, which prohibits directly or
indirectly (1) wilfully misleading (2) a police officer, Federal
agent, or investigator (3) "with the intent to impede, obstruct,
delay, harm, punish, or otherwise interfere thereby with a
criminal investigation." G. L. c. 268, § 13B(1)(c).
For purposes of the statute, the Supreme Judicial Court has
adopted the Federal definition of "misleading conduct" as used
in 18 U.S.C. § 1512(b) (2006):
"(A) knowingly making a false statement; (B)
intentionally omitting information from a statement
and thereby causing a portion of such statement to be
misleading, or intentionally concealing a material
fact, and thereby creating a false impression by such
statement; (C) with intent to mislead, knowingly
submitting or inviting reliance on a writing or
recording that is false, forged, altered, or otherwise
lacking in authenticity; (D) with intent to mislead,
knowingly submitting or inviting reliance on a sample,
specimen, map, photograph, boundary mark, or other
object that is misleading in a material respect; or
(E) knowingly using a trick, scheme, or device with
intent to mislead."
25
Commonwealth v. Figueroa, 464 Mass. 365, 372 (2013),
quoting from 18 U.S.C. § 1515(a)(3) (2006).23
"Each aspect of the definition adopted suggests a knowing
or intentional act calculated to lead another person astray.
Objectively misleading conduct, as defined, is not enough,
however, to establish the offense. In addition to the
requirement that there be knowing or intentional conduct that is
objectively misleading as defined, a statutory violation is not
established unless there is also proof of a defendant's specific
intent to 'impede, obstruct, delay, harm, punish, or otherwise
interfere thereby' with a criminal investigation." Commonwealth
v. Morse, 468 Mass. at 372, quoting from G. L. c. 268,
§ 13B(1)(c)(v). "[S]uch specific intent has been ascertained
inferentially from a defendant's affirmative misrepresentations,
plainly and demonstrably false, to law enforcement authorities."
Id. at 373. Where a defendant's statements satisfy the
definition of misleading conduct, and there is sufficient
evidence of his specific intent, "it does not matter that [the
defendant] fail[s] to succeed in misleading" his auditor.
Commonwealth v. Figueroa, 464 Mass. at 373. See Commonwealth v.
23
We are not here concerned with (C) or (D) because the
defendant is not accused of having provided a false or
misleading document, sample, writing, etc. Nor is section (B)
at issue because the defendant is not accused of having omitted
information. This case falls under (A), "knowingly making a
false statement."
26
Casiano, 70 Mass. App. Ct. 705, 709 (2007), quoting from
Commonwealth v. Robinson, 444 Mass. 102, 109 (2005) ("the
statute punishes anyone who 'wilfully endeavors' to intimidate a
witness; it does not require that the intimidation be
successful").
With these general principles in hand, we turn to the
defendant's specific arguments.
a. Criminal investigation. We are persuaded that, on the
unique facts presented here, there was insufficient evidence of
a criminal investigation within the meaning of the statute as it
existed at the time. The Legislature intended the statute to
encompass "any investigation or proceeding that may result in
criminal-type sanctions" (emphasis added). Commonwealth v.
Figueroa, 464 Mass. at 370. This expansive definition does not
require "[t]he government . . . to prove the exact nature of the
criminal proceedings." Commonwealth v. Wiencis, 48 Mass. App.
Ct. 688, 691 (2000). Indeed, the investigation need not have
been commenced at the time of the defendant's statements,
Commonwealth v. King, 69 Mass. App. Ct. 113, 121 (2007) (arising
under "intimidation" branch of statute), nor need it be pending,
Hrycenko v. Commonwealth, 459 Mass. 503, 509 (2011) (same).
Even certain noncriminal investigations can fall within the
statute provided they "may result in criminal-type sanctions."
Commonwealth v. Figueroa, 464 Mass. at 370.
27
But a sham investigation into a fake crime is something
different. Here, the investigation into Trooper Millett was an
invention designed solely to elicit self-incriminatory
statements from the defendant without providing any of the
protections to which he might be entitled were the true purpose
of the interrogation revealed. Not only did the investigation
not exist, no such investigation was intended or contemplated.
Nor could the investigation possibly "result in criminal-type
sanctions," ibid., because Trooper Millett's actions were
themselves a ruse. An invention piled upon a fabrication is not
a "criminal investigation" within the meaning of the statute
particularly where, as here, the only person who was, or could
have been, led astray was the defendant. The relationship of
the circumstances here "to the fundamental anti-witness-
intimidation purpose of § 13B is at best attenuated."
Commonwealth v. Morse, 468 Mass. at 375.
The Commonwealth argues that, although the investigation
into Trooper Millett was a sham, the drug investigation was real
and it was a "criminal investigation." This contention is
inarguably true. But, as the Commonwealth agrees, the defendant
knew nothing about that investigation and, indeed, was kept
28
deliberately in the dark about it. The defendant accordingly
cannot be said to have formed an intent to interfere with it.24
In short, we conclude that the evidence was insufficient to
prove the existence of a criminal investigation within the
meaning of the statute.
b. Specific intent. Relying on Commonwealth v. Morse,
supra, the defendant argues that there was insufficient evidence
to prove his specific intent to mislead. In Morse, however, the
defendant made no affirmative misrepresentation to police.
Instead, he merely denied his guilt when questioned by officers.
There was "no evidence of affirmative misdirection on the
defendant's part. The defendant's statement, the simple word
'no,' was an exculpatory denial, not a content-laden fabrication
designed to send police off course, thereby interfering with
their investigation." Id. at 374. In those circumstances, the
court held that there was insufficient evidence of the
defendant's specific intent to mislead. Id. at 374-375.
Here, by contrast, there was evidence of "content-laden
fabrication," not simply an exculpatory denial of wrongdoing.
24
We do not intend to suggest that if law enforcement
employs a ruse of any sort, the requirements of the statute are
never met. Ruses are part of the customary cat-and-mouse dance
of criminal investigations and nothing in this opinion should be
read to restrict their use. The sole question we decide here is
whether a nonexistent investigation into a nonexistent crime
that will never result in criminal-type penalties is a "criminal
investigation" within the meaning of G. L. c. 268, § 13B.
29
The defendant, having made the decision to go the police in
order to reclaim money he had obtained in a planned drug
transaction, decided to lie about the provenance of the funds
even after having been informed that the information was needed
to "show in Court." His various explanations for the money were
that it came from a trust, that it came from his bank accounts,
and that it came from working under the table as a commercial
fisherman. These were affirmative misrepresentations the jury
could reasonably conclude were made to send the police off
course. Had there been a criminal investigation within the
meaning of the statute, the evidence of the defendant's intent
to impede or interfere with it would have been sufficient.
Conclusion. The defendant's convictions for larceny by
false pretense, G. L. c. 266, § 30, and misleading a police
officer, G. L. c. 268, § 13B, are reversed and the verdicts are
set aside. The case is remanded for further proceedings
consistent with this opinion.
So ordered.