Commonwealth v. Mattier

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SJC-11924
SJC-11960

COMMONWEALTH vs. BRANDEN E. MATTIER
(and five companion cases1).

Suffolk. January 7, 2016. - May 13, 2016.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
Hines, JJ.

Larceny. False Impersonation & Identity Fraud. Fraud.
Conspiracy. Attempt. Search and Seizure, Arrest.
Evidence, Identity, Fraud, Conspiracy. Jury and Jurors.
Practice, Criminal, Motion to suppress, Jury and jurors,
Argument by prosecutor.

Indictments found and returned in the Superior Court
Department on August 29, 2013.

A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J., and the cases were tried before Jeffrey A.
Locke, J.

The Supreme Judicial Court granted applications for direct
appellate review.

Rebecca A. Jacobstein, Committee for Public Counsel
Services, for Branden E. Mattier.

1
Two against Branden E. Mattier and three against Domunique
D. Grice.
 2

William S. Smith for Domunique D. Grice.
Randall E. Ravitz, Assistant Attorney General (Gina M.
Masotta, Assistant Attorney General, with him) for the
Commonwealth.

HINES, J. The defendants, Branden E. Mattier and his half-

brother Domunique D. Grice, were convicted by a jury on

indictments charging one count each of conspiracy to commit

larceny, G. L. c. 274, § 7, and attempted larceny, G. L. c. 274,

§ 6. Mattier also was convicted on an indictment charging one

count of identity fraud, G. L. c. 266, § 37E. The charges

stemmed from an attempt by the defendants to defraud The One

Fund Boston (One Fund) of approximately $2 million by claiming

that a long-deceased aunt had been injured in the 2013 bombing

at the finish line of the Boston Marathon.2 The judge imposed on

each defendant a State prison sentence of from three years to

three years and one day on the conspiracy count and three years'

probation on the attempted larceny count, to run from and after

the committed sentence. Mattier was sentenced to an additional

concurrent probationary term for his conviction of identity

2
The One Fund Boston (One Fund) was established as a
charitable organization to collect and distribute funds to
assist the victims of the April, 2013, Boston Marathon bombing.
 3

fraud. The defendants appealed, and we granted their

applications for direct appellate review.3

Although the appeals were not formally consolidated, we

have treated them as such, given the substantial congruence of

the issues raised by the defendants.4 Mattier contends that his

conviction of identity fraud fails as a matter of law because

the charged conduct is insufficient to meet the elements of the

statute. Both defendants claim that the judge erred in (1)

denying the motion to suppress evidence obtained as a result of

Mattier's warrantless arrest for the identity fraud and

attempted larceny charges; (2) denying the motions for required

findings of not guilty on all charges; and (3) denying the

motion to strike for cause jurors who donated to One Fund.

Grice also challenges statements made by the prosecutor in

closing argument.

We agree, for the reasons explained below, that Mattier's

identity fraud conviction fails as a matter of law. Our ruling

on the validity of the identity fraud conviction, however, does

not compel the reversal of the conspiracy and attempted larceny

3
Both defendants requested a stay of execution of their
sentences, which were denied. Mattier filed a motion to stay,
and the single justice denied relief. He appealed to the full
bench of the Supreme Judicial Court, and we affirmed in
Commonwealth v. Mattier, 474 Mass. 227 (2016).
4
The Commonwealth filed a single brief to address both
appeals.
 4

convictions, because they are based on sufficient legally

obtained evidence. The claimed errors regarding the seating of

jurors and the prosecutor's closing argument similarly are

unavailing.

Background. We recite the facts the jury could have found,

reserving certain details for our discussion of the specific

issues raised. After two bombs exploded near the finish line of

the Boston Marathon on April 15, 2013, One Fund was established.

See note 1, supra. In early May, 2013, the administrator of One

Fund held two community meetings to discuss distribution.

Mattier and Grice attended one of the meetings, and Mattier

registered on One Fund's Web site the following day. On May 15,

2013, One Fund disseminated the claims protocol to those persons

registered on One Fund's Web site. The levels of payment were

based on severity of injury, with the largest amount going to

those victims who suffered double amputation. The protocol

required that a claimant submit a "hospital statement"

confirming the dates of hospital treatment and the nature of the

injury. All claims were due by June 15, 2013.

One Fund received a claim form from Mattier on June 12,

2013, stating that Mattier's aunt had been injured in the

bombing and had required double amputation as a result of her

injuries. Mattier requested that the claim disbursement check

be made payable to him at his Boston address. On June 7, he
 5

signed the claim form as representative for his aunt, and his

signature was notarized. Attached to the claim form was a

signed letter purporting to be from Dr. Peter A. Burke, chief of

trauma services at Boston Medical Center. The letter, dated May

2, 2013, stated that both of the aunt's legs had been amputated

as a result of injuries from the marathon bombings.5

One Fund administrators suspected that Mattier's claim form

might be fraudulent and conducted an internal investigation.

After learning that the aunt died in 2000, they rejected the

claim. One Fund administrators alerted the Attorney General's

office of the false claim.

As part of the Attorney General's investigation into the

matter, the police created a "sting" operation using an

overnight courier to deliver a letter to Mattier's residence on

July 1, 2013, which stated that the claim had been approved and

a check would be arriving July 2, 2013. On July 1, police

officers observed Mattier sign for and accept the letter outside

his residence while holding his cellular telephone.

Subsequently, the police officers obtained a search warrant for

Mattier's residence and for Mattier himself at that location.

5
On May 29, 2013, Mattier sent One Fund an electronic mail
message in which he explained that his aunt had had one leg
amputated and may need to have the other leg amputated.
 6

On July 2, 2013, police conducted a controlled delivery of

a fake check to Mattier. State police Trooper John Banik drove

to Mattier's residence dressed as a Federal Express delivery

driver in a white van bearing a Federal Express logo. Mattier

was standing just outside his apartment building when Trooper

Banik arrived. The two walked toward each other and met on the

sidewalk in front of Mattier's apartment building. Trooper

Banik asked Mattier to produce his driver's license and, after

explaining that he was delivering a claim check, asked whether

Mattier was injured in the bombings. Mattier responded that his

aunt had been injured. The trooper copied Mattier's driver's

license number onto his paperwork and handed Mattier the

envelope. Other police officers in the area then surrounded

Mattier and arrested him for identity fraud and attempted

larceny.

During booking, Mattier's cellular telephone was placed

into his property inventory. After being given the Miranda

warnings, Mattier waived his rights and spoke with Trooper

Banik. He admitted to submitting the claim on behalf of his

long-deceased aunt and explained how he created the doctor's

letter using forms obtained from the Internet. Trooper Banik

obtained Mattier's cellular telephone from inventory, placed it

in his office, and obtained a search warrant authorizing the

search of the telephone.
 7

The search produced hundreds of cellular telephone text

messages between Mattier and Grice. The brothers corresponded

about One Fund on the day of the community meeting they had

attended, expressed their joy at receiving news that their claim

had been approved, and ruminated about the type of Mercedes Benz

vehicle that each would buy using the funds awarded on their

claim. In one of the text messages, sent before Mattier created

the forged letter regarding their dead aunt's claimed injuries,

Grice wrote to Mattier: "Subject: Auntie, Nevie Shelton ss#

Hospitalized from 4-15-13 til 5-3-13 18 days. Yes to double

amputation and permanent brain damage."

Discussion. 1. Identity fraud.6 General Laws c. 266,

§ 37E (b), criminalizing identity fraud, provides:

"Whoever, with intent to defraud, poses as another
person without the express authorization of that person and
uses such person's personal identifying information to
obtain or to attempt to obtain money, credit, goods,
services, anything of value, any identification card or
other evidence of such person's identity, or to harass
another shall be guilty of identity fraud and shall be
punished by a fine of not more than $5,000 or imprisonment
in a house of correction for not more than two and one-half
years, or by both such fine and imprisonment."

6
Although Grice was acquitted of this charge, he joins in
the argument that the identity fraud conviction fails as a
matter of law. The applicability of the statute to Mattier's
conduct underlies Grice's argument that evidence presented
against him at trial was obtained pursuant to the warrantless
arrest of Mattier, which was based on charges of identity fraud
and attempted larceny.
 8

The essential elements of the crime are that a defendant "(1)

posed as another person; (2) did so without that person's

express authorization; (3) used the other person's identifying

information[7] to obtain, or attempt to obtain, something of

value; and (4) did so with the intent to defraud." Commonwealth

v. Giavazzi, 60 Mass. App. Ct. 374, 376 (2004). The essence of

the Commonwealth's case was that Mattier downloaded a template

of a letter from the Boston Medical Center onto his computer,

composed a letter on the template, copied Dr. Burke's signature

onto that letter, and then submitted the letter to One Fund

together with his claim form.

The defendants challenge this conviction on the ground that

the particular conduct at issue here was insufficient to

establish the first and third elements of the crime. They argue

that Mattier did not "pose" as Dr. Burke within the meaning of

the statute and that even if he did, he did not obtain or

attempt to obtain money from One Fund while posing as Dr. Burke.

7
General Laws c. 266, § 37E (a), defines "[p]ersonal
identifying information" as:

"any name or number that may be used, alone or in
conjunction with any other information, to assume the
identity of an individual, including any name, address,
telephone number, driver's license number, social security
number, place of employment, employee identification
number, mother's maiden name, demand deposit account
number, savings account number, credit card number or
computer password identification."
 9

In rebuttal, the Commonwealth argues that the evidence, taken in

the light most favorable to it, Commonwealth v. Latimore, 378

Mass. 671, 676-677 (1979), was sufficient to prove that Mattier

"pose[d]" as Dr. Burke because the language of the letter

implicitly asserted that he, as drafter, was Dr. Burke and that

the statute does not require proof that the posing occurred at

the same time as the attempt to obtain funds. The trial judge,

in denying the defendants' motions for a required finding of not

guilty on the identity fraud charges, focused on the "pos[ing]"

element and accepted that Mattier did not "directly" pose as Dr.

Burke. He noted that the "statute is stretched in this case"

because the defendants "did not represent themselves to be Dr.

Burke at all. They used Dr. Burke's identity to validate their

intended fraud." He then concluded that the jury should decide

whether Mattier "indirectly posed as [Dr. Burke] by inserting

that dummied up letter."

The issue before us is whether, on the facts of this case,8

Mattier's conduct is encompassed within the reach of the

8
This case differs factually from the typical identity
fraud scenario. See, e.g., Commonwealth v. Catalano, 74 Mass.
App. Ct. 580, 581 (2009) (unauthorized use of another's name to
open gas and electric accounts violated identity fraud statute).
In Commonwealth v. Clark, 446 Mass. 620, 625 (2006), we reviewed
the legislative purpose in enacting the identity fraud statute
and explained:
 10

statute. When the meaning of a statute is at issue, "[w]e begin

with the canon of statutory construction that the primary source

of insight into the intent of the Legislature is the language of

the statute." International Fid. Ins. Co. v. Wilson, 387 Mass.

841, 853 (1983). Where "the statutory language '[could]

plausibly be found to be ambiguous,' the rule of lenity requires

the defendant[s] be given 'the benefit of the ambiguity.'"

Commonwealth v. Constantino, 443 Mass. 521, 525 (2005), quoting

Commonwealth v. Carrion, 413 Mass. 44, 45-46 (2000).

We agree with the defendant's argument that he did not

"pose" as another person in the manner contemplated by the

statute. General Laws c. 266, § 37E (a), defines "[p]ose" to

mean "falsely represent[ing] oneself, directly or indirectly, as

another person or persons." Where G. L. c. 266, § 37E, does not

define the phrase "falsely represent," we interpret the term in

accordance with "approved usage of the language" (citation

omitted). Commonwealth v. Hinds, 437 Mass. 54, 63 (2002), cert.

denied, 537 U.S. 1205 (2003). In that regard, other cases

"The primary, but not sole, focus of [G. L. c. 266,]
§ 37E is (a) to criminalize the unauthorized use of someone
else's personal identifying information to obtain
fraudulently anything of value while posing as such other
person, and (b) to criminalize the possession of such
personal identifying information without authorization and
with intent to pose as such other person to obtain
fraudulently anything of value. It also criminalizes the
misappropriation of such information to harass another."
 11

interpreting allegations of false representations require the

existence of another party on the receiving end of the

representation. See Commonwealth v. McCauliff, 461 Mass. 635,

638-639 (2012) (larceny by false pretenses); McEvoy Travel Bur.,

Inc. v. Norton Co., 408 Mass. 704, 712 (1990) (fraud); Schleifer

v. Worcester N. Sav. Inst., 306 Mass. 226, 228 (1940) (deceit).

Accordingly, we interpret the phrase "falsely represent" in

G. L. c. 266, § 37E, to require the Commonwealth to prove that a

defendant "pose[d]" as Dr. Burke in his dealings with a third

party, One Fund.

Here, the operative act for the purposes of the identity

fraud charge was the submission of a forged letter, purportedly

written by Dr. Burke, to One Fund. Although Mattier

misrepresented the authenticity of the letter to One Fund in

claiming that the letter was from Dr. Burke, nothing in the

evidence establishes that he ever falsely represented himself to

be Dr. Burke.9 Mattier submitted the claim form to One Fund

under his own name; he did not falsely represent to One Fund

9
The language of the statute that allows an "indirect"
misrepresentation does not alter our conclusion. G. L. c. 266,
§ 37E (a). A false representation may be made directly, e.g.,
face to face contact; or it may be made indirectly, e.g.,
through an electronic program where a person enters the credit
card number of another attempting to act as the owner of that
card. A false representation that solely relates to the
authenticity of a document instead of one's identity, however,
is insufficient to support a conviction of identity fraud.
 12

that he was Dr. Burke at the time that he submitted the letter.10

Thus, Mattier's deception does not fall within the scope of the

identity fraud statute; his criminal deception was properly

charged as attempted larceny.11,12

2. Motion to suppress. The defendants next argue that the

judge erred in denying the motion to suppress the evidence

obtained as a result of Mattier's warrantless arrest for

10
A forged letter could provide the basis for an identity
fraud conviction under different circumstances. If Mattier had
presented himself to a third party as Dr. Peter Burke when
signing the letter or assumed another's identity in order to
obtain the Boston Medical Center letterhead, then his conduct
could have satisfied the requirement that he assume another's
identity. Those situations did not occur here.
11
Moreover, even assuming that G. L. c. 266, § 37E,
applied, Mattier's conviction cannot stand where the jury were
required to speculate on the meaning of an essential element of
identity fraud. "Statutory interpretation is a pure question of
law," Commonwealth v. Cintolo, 415 Mass. 358, 359 (1993), and
all reasonable interpretations of an ambiguous statute are
resolved in favor of the defendants under the rule of lenity,
Constantino, 443 Mass. at 525. The jury must be instructed on
the legal meaning of a criminal statute in order to determine
whether a violation occurred. Commonwealth v. Niziolek, 380
Mass. 513, 527 (1980). Here, the jury were not instructed on
the meaning of "indirectly" posing. Although the judge
instructed the jury in accordance with the model instructions,
more was required under the facts of this case, where, as the
judge acknowledged, the meaning of indirectly posing was central
to determining whether the defendants could be found guilty of
the offense.
12
Because we conclude that Mattier's conduct was
insufficient to satisfy the first element of identity fraud, we
need not analyze whether the posing and use of personal
identifying information must occur simultaneously.
 13

identity fraud and attempted larceny.13 They argue that the

arrest was unlawful because the police lacked probable cause to

make an arrest for identity fraud where the alleged conduct was

insufficient as a matter of law to prove a violation of the

identity fraud statute,14 and the warrantless arrest for

attempted larceny, a misdemeanor, cannot be justified in the

absence of an applicable statute or a breach of peace.15 They

posit that the evidence -- text messages retrieved from the

cellular telephone seized from Mattier's person after the arrest

and statements by Mattier during postarrest interrogation -- is

the fruit of the unlawful arrest and that it should not have

been admitted at trial.

13
Grice adopted Mattier's argument on the claim of error in
the denial of the motion to suppress evidence obtained from the
cellular telephone.
14
The identity fraud statute directly authorizes a police
officer to "arrest without warrant any person [the officer] has
probable cause to believe has committed the offense of identity
fraud as defined in this section." G. L. c. 266, § 37E (e).
15
In the absence of a statute, police may arrest an
individual without a warrant for a misdemeanor if the
individual's actions "(1) [constitute] a breach of the peace,
(2) [are] committed in the presence or view of the officer,
. . . and (3) [are] still continuing at the time of the arrest
or are only interrupted so that the offense and the arrest form
parts of one transaction." Commonwealth v. Jewett, 471 Mass.
624, 630 (2015), quoting Commonwealth v. Howe, 405 Mass. 332,
334 (1989).
 14

Mattier filed a motion to suppress before trial asserting

these claims,16 which the judge denied after an evidentiary

hearing. "In reviewing a ruling on a motion to suppress, we

accept the judge's subsidiary findings of fact absent clear

error 'but conduct an independent review of [his] ultimate

findings and conclusions of law.'" Commonwealth v. Craan, 469

Mass. 24, 26 (2014), quoting Commonwealth v. Scott, 440 Mass.

642, 646 (2004). The motion judge rejected Mattier's claim that

forgery alone could not subject him to the identity fraud

statute and concluded that police had probable cause to arrest

for identity fraud. Further, the judge concluded that seizure

of Mattier's cellular telephone was lawfully authorized by the

search warrant.

We agree with the judge that the seizure of Mattier's

cellular telephone was lawful because the search of Mattier and

the seizure of his cellular telephone was expressly authorized

in the search warrant, the defendants appropriately do not

challenge that the search warrant contained sufficient probable

cause to believe that Mattier committed attempted larceny, and

police could lawfully seize Mattier for the duration of the

search. Relying on Commonwealth v. McCarthy, 428 Mass. 871

16
Mattier also claimed that his statements should be
suppressed because his Miranda waiver was not voluntary.
Mattier does not renew this argument on appeal.
 15

(1999), Mattier argues that the seizure of his cellular

telephone was unlawful because Mattier's presence on the

sidewalk in front of his apartment when he was approached by

police placed him outside the scope of the search warrant. In

McCarthy, supra at 873, 876, we concluded that the search of a

vehicle was unlawful where, although a search warrant authorized

the search of a particular residence, the vehicle was outside

the residence's curtilage when it was searched, and the vehicle

was not specifically authorized by the warrant.17

Mattier's reliance on the McCarthy case is unavailing,

however, because the search of Mattier's person was lawful for a

different reason. Specifically, the police were authorized to

detain Mattier during the search of his apartment and the

discovery of his cellular telephone was inevitable under that

authority. Commonwealth v. Catanzaro, 441 Mass. 46, 52 (2004).

"[A] warrant to search for contraband founded on probable cause

implicitly carries with it the limited authority to detain the

occupants of the premises while a proper search is conducted."

Id., quoting Michigan v. Summers, 452 U.S. 692, 705 (1981).

17
We also noted, however, that the police only sought
"authority to search the apartment" and "this problem could have
been avoided altogether had the police included the vehicle in
the application for the search warrant." Commonwealth v.
McCarthy, 428 Mass. 871, 872 & n.3 (1999).
 16

This "limited authority" expands to occupants found outside

the premises and its curtilage in certain circumstances. Cf.

Commonwealth v. Charros, 443 Mass. 752, 760-761, cert. denied,

546 U.S. 870 (2005). The United States Supreme Court, in

Summers, supra at 702-703, identified three law enforcement

interests that justify expanding this authority: (1)

"preventing flight in the event that incriminating evidence is

found"; (2) "minimizing the risk of harm to the officers"; and

(3) "the orderly completion of the search [that] may be

facilitated if the occupants of the premises are present." We

have included the middle of an "alley or driveway" common to an

occupant's apartment complex as within this authority where the

occupant was first observed on the front steps of her apartment.

Catanzaro, 441 Mass. at 48-49, 52-53 & n.12. Conversely, we

have excluded from this authority seizure of occupants at a

location one mile away from the premises to be searched, because

it did not serve the first two of these law enforcement

interests and the third -- orderly execution of the warrant --

could have been served by executing the warrant when police knew

the occupants would be home. See Charros, 443 Mass. 762, 764.

Moreover, the warrant generally authorized "any persons present"

but did not specifically name the persons who were seized. Id.

at 760 n.5.
 17

In this case, police were authorized to search and detain

Mattier under the authority of the warrant because the facts

known to police demonstrated that he was an occupant of the

apartment to be searched, his location when the police

approached had a "meaningful relation" to the apartment, and his

detainment served the law enforcement interests identified in

Summers. See Charros, 443 Mass. at 764; Catanzaro, 441 Mass. at

51-52. Mattier's driver's license address was that of the

apartment authorized for search, Mattier was standing in front

of that building when Trooper Banik first observed him, he

produced his driver's license to Trooper Banik, and he was

seized within "fifteen to twenty yards" of that building.

Moreover, seizure of Mattier served law enforcement interests

because he was aware of the warrant, was standing on the

sidewalk in front of his home, and could have conceivably

attempted to flee, harmed the police officers, or disrupted the

search. See Summers, 452 U.S. at 702-703.

Although police arrested Mattier instead of detaining and

searching him, evidence from the cellular telephone was

admissible because the telephone inevitably would have been

discovered. Commonwealth v. Balicki, 436 Mass. 1, 16 (2002).

"Under the inevitable discovery doctrine, if the Commonwealth

can demonstrate by a preponderance standard that discovery of

the evidence by lawful means was certain as a practical matter,
 18

the evidence may be admissible as long as the officers did not

act in bad faith to accelerate the discovery of evidence, and

the particular constitutional violation is not so severe as to

require suppression." Commonwealth v. Sbordone, 424 Mass. 802,

810 (1997), citing Commonwealth v. O'Connor, 406 Mass. 112, 117-

118 (1989). This is a "demanding test." Balicki, supra,

quoting Commonwealth v. Perrot, 407 Mass. 539, 548 (1990).

Here, it is certain as a practical matter that the cellular

telephone inevitably would have been discovered had the police

seized Mattier for the duration of the search instead of

arresting him because the police were looking for mobile

devices, had seen Mattier carrying his cellular telephone the

prior day, and were specifically authorized to search Mattier's

person. See O'Connor, 406 Mass. at 118. Moreover, the police

did not act in bad faith to accelerate the discovery of

evidence. Before they arrested Mattier, police had obtained a

search warrant, which contained sufficient probable cause to

believe that Mattier committed the offense of attempted larceny.

Therefore, even assuming that the arrest was unlawful, the

police had authority at that time to seize Mattier's cellular
 19

telephone. Accordingly, there was no error in admitting

evidence obtained from the cellular telephone at trial.18

Mattier also argues that his postarrest statements must be

suppressed. We need not consider the merits of this argument

because admission of the statements was not prejudicial in light

of other overwhelming evidence, including the cellular telephone

text messages exchanged by the defendants, the claim form, the

forged letter, and statements Grice made to a Red Cross

representative (discussed infra). This evidence was sufficient

to support the attempted larceny and conspiracy convictions.

3. Conspiracy and attempted larceny. Grice argues that

the judge erred in denying his motion for a required finding of

not guilty on the conspiracy to commit larceny and attempted
19
larceny charges. Grice concedes knowledge of the plan and

interest in deriving reward from the proceeds, but claims that

the evidence falls short of proving his intent that the crime be

committed. Relying on Commonwealth v. Smith, 342 Mass. 180,

(1961), Grice argues that his convictions must be vacated

because the evidence "tends equally to sustain either of two

18
Because of our disposition, we do not address the
Commonwealth's argument regarding alleged procedural
deficiencies in Grice's claim.
19
Mattier adopted Grice's arguments on this issue as
contained in Grice's brief pursuant to Mass. R. A. P. 16 (j),
365 Mass. 860 (1974).
 20

inconsistent propositions, neither of them can be said to have

been established by legitimate proof." Id. at 183, quoting

Commonwealth v. Carter, 306 Mass. 141, 147 (1940).

Because Grice's convictions were based on his role as a

joint venturer, "the Commonwealth was required to prove to the

jury that 'the defendant knowingly participated in the

commission of the crime charged, alone or with others, with the

intent required for that offense.'" Commonwealth v. Tavares,

471 Mass. 430, 434 (2015), quoting Commonwealth v. Zanetti, 454

Mass. 449, 468 (2009). "'The defendant's intent may be inferred

from his knowledge of the circumstances and participation in the

crime,' . . . and any inferences drawn 'need only be reasonable

and possible, and need not be necessary or inescapable'"

(citations omitted). Tavares, supra.

Reviewing the evidence in the light most favorable to the

Commonwealth, Latimore, 378 Mass. at 676-677, we conclude that

there was sufficient evidence to show that Grice knowingly

participated in the crimes of attempted larceny and conspiracy

to commit attempted larceny, and he intended that they be

completed. The Commonwealth presented evidence that Grice

attended meetings regarding One Fund, attended an event honoring

the victims, communicated with claims representatives, and

communicated with Mattier about the crimes through text message.

After protocols for distribution of funds based on severity of
 21

injury were released, Grice wrote to Mattier referencing their

dead aunt, "Yes to double amputation and permanent brain

damage." Subsequently, Mattier sent Grice a message asking if

they should attend a ceremony being held to honor the victims,

Grice responded, "Yessir. Gotta get dis money," and the two

attended the event. There, Grice gave a Red Cross

representative his contact information to obtain information

about additional claim resources after the brothers, with Grice

doing most of the talking, told the representative "that their

aunt had had a leg amputated, and that she was going to need the

other leg amputated as well." The Commonwealth is not required

to disprove every alternative theory "if the record viewed in

its entirety supports 'a conclusion of guilt beyond a reasonable

doubt.'" Commonwealth v. Platt, 440 Mass. 396, 401 (2003),

quoting Commonwealth v. Merola, 405 Mass. 529, 533-534 (1989).

In light of the even more persuasive evidence against

Mattier, we reject his claim as well.

4. Juror bias. Grice and Mattier argue that their rights

under the Federal and State Constitutions were violated by the

trial judge's denial of the motion to excuse for cause jurors

whom they claim were biased by their donations to One Fund
 22

(donating jurors).20 During voir dire, the judge asked each

juror, "Have you or a member of your family raised any money for

or contributed to or filed a claim with or received funds from

the Boston One Fund?" Over objections, the judge denied Grice

and Mattier's motions to strike two donating jurors for cause.

The judge explained that the mere act of donating was not

sufficient for a juror to be excused for cause so long as the

jurors credibly stated that they could be objective.21

The judge excused four donating jurors for cause where the

jurors did not explicitly say that they could be indifferent.

In one instance, the judge found a juror to be indifferent

notwithstanding the fact that he and his firm had donated to One

Fund. After being alerted by Mattier's counsel that the juror's

firm had donated $1 million to the fund, the judge noted that he

was going to "err on the side of caution," and he excused this

juror for cause. Two donating jurors sat on the deliberating

jury.22

20
Mattier adopted this argument as set forth in Grice's
brief pursuant to Mass. R. A. P. 16 (j).
21
The judge stated that, "there are thousands of
Massachusetts citizens who have contributed to the Boston One
Fund. I'm not sure that that standing alone disqualifies all of
them from jury service in this case."
22
The defendants exercised five of their ten combined
peremptory challenges against jurors who had donated. The
defendants did not exercise peremptory challenges against the
 23

"Article 12 of the Declaration of Rights of the

Massachusetts Constitution and the Sixth Amendment to the United

States Constitution, applied to the States through the due

process clause of the Fourteenth Amendment, guarantee the right

of a criminal defendant to a trial by an impartial jury."

Commonwealth v. Andrade, 468 Mass. 543, 547 (2014), quoting

Commonwealth v. McCowen, 458 Mass. 461, 494 (2010). "The

presence of even one juror who is not impartial violates a

defendant's right to trial by an impartial jury." McCowen,

supra, quoting Commonwealth v. Vann Long, 419 Mass. 798, 802

(1995). "The defendant has the burden of showing that the juror

was not impartial and must do so by a preponderance of the

evidence." Commonwealth v. Amirault, 399 Mass. 617, 626 (1987).

"On a claim of structural error alleging that a jury were

not impartial because a particular juror was biased, the

defendant must show actual or implied juror bias." Commonwealth

v. Hampton, 457 Mass. 152, 163 (2010). In deciding whether a

juror is actually biased, "it is sufficient for the judge to

'determine whether jurors [can] set aside their own opinions,

[properly] weigh the evidence . . . and follow the instructions

of the judge.'" Andrade, 468 Mass. at 547-548, quoting

two donating jurors who sat on the deliberating jury even though
both defendants had challenges remaining when those jurors were
selected.
 24

Commonwealth v. Perez, 460 Mass. 683, 688-689 (2011). We review

for "clear abuse of discretion or a showing that the judge's

findings were clearly erroneous." Commonwealth v. Torres, 437

Mass. 460, 469 (2002), quoting Amirault, 399 Mass. at 626. This

is because such a determination "is essentially one of

credibility, and therefore largely one of demeanor." McCowen,

458 Mass. at 493, quoting Commonwealth v. Ferguson, 425 Mass.

349, 352-353 (1997).

After a careful review of the record, we conclude that the

judge did not abuse his discretion in finding that the jurors

were not actually biased. The jurors either responded with a

direct "No" when asked whether the contribution would affect his

or her ability to be objective or were further questioned until

the judge was satisfied that each juror could be objective.

The more difficult question is whether donations to One

Fund created an implied bias in donating jurors. Grice argues

that donating jurors had an implied bias because of the close

connection between the jurors' donations to One Fund and the

allegations that the defendants attempted to steal from that

same fund. Moreover, Grice asserts that the trial judge, during
 25

sentencing, confirmed why the jurors should have been removed

when he stated that the defendants had "victimized all donors."23

For the defendant to prevail on a claim of implied bias, we

"must be satisfied that it is more probable than not that the

juror was biased against the litigant." Amirault, 399 Mass. at

630, quoting State v. Wyss, 124 Wis. 2d 681, 730 (1985). We

have recognized certain extreme circumstances where implied bias

could be found: (1) where "it is disclosed that 'the juror is

an actual employee of the prosecuting agency, that the juror is

a close relative of one of the participants in the trial or the

criminal transaction, or that the juror was a witness or somehow

involved in the criminal transaction'"; (2) in "a case where the

trials of codefendants are severed and an individual observes

the first trial and sits as a juror in the second trial"; and

(3) where "a juror who has been the victim of a similar crime

and has consciously concealed that fact from the parties or the

court." Amirault, 399 Mass. at 628 n.5, quoting Smith v.

Phillips, 455 U.S. 209, 222 (1982) (O'Connor, J., concurring).

In addition to the examples cited in Amirault, other

jurisdictions have recognized certain circumstances where a

23
After the defendants' statements of apology during
sentencing, the judge responded that it was "absolutely
shocking" that neither recognized "the broader community of
victims in this case," which he said included donors and those
actually injured.
 26

juror's personal stake or substantial interest in the outcome of

the case can demonstrate implied bias. "[E]ven a tiny financial

interest in the case" has required a juror to be excused for

cause. United States v. Polichemi, 219 F.3d 698, 704 (7th Cir.

2000), cert. denied, 531 U.S. 1168 (2001). Accordingly, courts

have presumed bias in stockholders of for-profit corporations

that are parties in a lawsuit. Getter v. Wal-Mart Stores, Inc.,

66 F.3d 1119, 1122 (10th Cir. 1995). Conversely, courts have

not found an implied bias in members of a for-profit retail club

because the club "membership is still worth the same after a

judgment adverse to [the club]." Guerra v. Wal-Mart Stores,

Inc., 943 S.W.2d 56, 59 (Tex. Ct. App. 1997).

In this case, it is clear that the jurors did not have a

financial interest in the outcome of the case. A charitable

contribution does not constitute a financial interest because a

donation does not grant any ownership interest in a charitable

fund. See United States v. Arena, 918 F. Supp. 561, 578

(N.D.N.Y. 1996) (rejecting assertion that wife's donation to

victim, a charitable organization, caused bias in judge).

Additionally, the outcome of the case would not affect the

viability of One Fund. Indeed, the case had no financial effect

on One Fund because the defendants failed to obtain any money

from the charity. Notwithstanding the judge's comments during

sentencing, One Fund donors were not victims of the defendants'
 27

crimes, nor did they have any financial interest in the

charitable organization by way of their contributions.

Accordingly, we conclude that the jurors' connection to the

charitable fund targeted by the defendants is too attenuated to

cause their disqualification as a matter of law. See Searle v.

Roman Catholic Bishop of Springfield, 203 Mass. 493, 498 (1909)

(rejecting contention that all jurors of Roman Catholic faith

should be disqualified from jury in property dispute lawsuit

against defendant Roman Catholic Bishop of Springfield where no

jurors were taxpayers of town or members of local parish). The

notion of implied bias has been used sparingly. See, e.g.,

United States v. Torres, 128 F.3d 38, 46 (2d Cir. 1997), cert.

denied sub nom. Rivera v. United States, 523 U.S. 1065 (1998)

("situations in which a trial judge must find implied bias are

strictly limited and must be truly 'exceptional'"). The judge's

decision to excuse one juror whose firm donated $1 million does

not require us to find otherwise. Although only "extreme"

situations require a finding of implied bias, a judge has

discretion to remove a juror out an abundance of caution where

there is a possible inference of bias but no actual or implied

bias. See id. at 47. The defendants have not met their burden

to show actual or implied bias on the part of any juror.

5. Prosecutor's closing argument. Last, Grice argues that

he was prejudiced by the prosecutor's description, during his
 28

closing argument, of the law regarding coconspirators'

statements. We recognize, as an exception to the hearsay rule,

that a statement made by a coconspirator or joint venturer may

be admitted for its truth against the other coconspirators or

joint venturers. Mass. G. Evid. § 801(d)(2)(E) (2016). See

Commonwealth v. Braley, 449 Mass. 316, 319-320 (2007). The

exception applies only if the existence of the conspiracy or

joint venture is shown by evidence independent of the statement.

Id. Grice does not reference any particular statement made by

the prosecutor, but we note the following passage where the

prosecutor stated, "you can use [certain described text messages

sent by Mattier and Grice] to show that these two defendants

conspired to steal 2.2 million dollars from the One Fund."

"In determining whether an error in closing argument

requires reversal, we consider whether defense counsel made a

timely objection; whether the judge's instructions mitigated the

error; whether the error was central to the issues at trial or

concerned only collateral matters; whether the jury would be

able to sort out any excessive claims or hyperbole; and whether

the Commonwealth's case was so strong that the error would cause

no prejudice." Commonwealth v. Scesny, 472 Mass. 185, 203

(2015), quoting Commonwealth v. Scott, 470 Mass. 320, 335

(2014). Although Grice did object to the prosecutor's
 29

statements at the end of closing, the remaining factors do not

support reversal.

The judge instructed the jury on the proper rule of law

several times, both before and after closing arguments. The

judge elaborated on the instructions at Grice's request. The

prosecutor correctly described the rule of law in his closing

argument following the challenged statement. Moreover, the

Commonwealth had a strong case against Grice using only Grice's

own statements and his attendance at events.

6. Conclusion. We affirm the convictions of attempted

larceny and conspiracy against Grice and Mattier. Because we

conclude that the evidence was insufficient to convict Mattier

of identity fraud, we vacate that conviction and order entry of

a judgment of not guilty. We do not remand to the Superior

Court for resentencing, where Mattier's sentence is unlikely to

be affected by our decision.24

So ordered.

24
The judge issued concurrent sentences of probation on
Mattier's identity fraud conviction and his attempted larceny
conviction. Except for the concurrent sentence on the identity
fraud conviction, Mattier and Grice received the same sentences.
Grice's sentence demonstrates that the judge did not enhance any
other portion of Mattier's sentence based on the identity fraud
conviction.