Commonwealth v. Occhiuto

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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.