Opinion
No. 09-0967.
November 22, 2010.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO DISMISS.
INTRODUCTION
The defendant, former Hamilton Police Chief Walter D. Cullen (Chief Cullen) seeks dismissal of indictments charging procurement fraud and larceny. Chief Cullen argues that the procurement fraud statute may not be applied outside the construction area, that where the alleged fraud was to Massachusetts emergency medical technician (EMT) licensing authorities, he cannot be charged with defrauding or stealing from his employer, the Town of Hamilton, nor can the statements be shown to be material to the town. He also argues that there was no evidence that he was paid for work not performed. Finally, the court discusses Chief Cullen's concerns that he is being selectively prosecuted.
Where there was evidence that Chief Cullen knew he received extra pay for Emergency Medical Technician (EMT) certification and training, that he submitted payroll requests for the pay, and that he obtained re-certification without attending the re-certification classes, the court rejects his motion to dismiss. The court also finds that, at least on this limited record, Chief Cullen has not met his burden of showing that he is being selectively prosecuted.
BACKGROUND
Chief Cullen moves to dismiss indictments charging him with procurement fraud (G. L. c. 266, § 67A) and larceny over $250 (G. L. c. 266, § 30). The evidence presented to the grand jury included the following. As police chief for the Town of Hamilton, Chief Cullen acted as the director of ambulance and emergency medical services. Under the terms of the Hamilton Police Department's contract with the Town, employees who were certified as EMT's were entitled to receive EMT compensation consisting of an EMT stipend and payment for the time spent in EMT training. From 2005 to 2008, Chief Cullen was paid $2,088 per year for providing EMT services and $1,811.40 per year for time in EMT certification training.
In September of 2007, Chief Cullen submitted an application to be recertified as an EMT with the Department of Public Health. On the form, he falsely stated that he had fulfilled the requirements for recertification in accordance with the Department's regulations. It is correct that he had received credit for attending the requisite refresher training and continuing education courses. See 105 Code Mass. Regs. §§ 170.930(A)(1)(a) 170.810(C). However, there was evidence that some of the sessions were not held and that Chief Cullen had not attended the sessions that actually took place.
In July of 2008, Chief Cullen executed a new contract for the period July 1, 2008 through June 30, 2009. His compensation included $3,432.15 for EMT services and $1,977.30 for EMT certification training.
CHIEF CULLEN'S ARGUMENTS
a. Limitation of G.L. Ch. 266, section 67A to construction contracts
Chief Cullen first argues that section 67A should be limited to construction contracts. He makes two representations. First, the legislative history supports this argument because the section was enacted in response to public construction corruption investigated by the Ward Commission. Second, there is no reported case showing its application outside the construction area. The court accepts counsel's representations but rejects his conclusion. The statute's genesis from construction corruption, and its past use do not limit its modern application. The legislature placed the section between a section punishing false corporate entries and one punishing false claims; neither mentions construction and the statute barely does so when it proscribes fraud "relative to procurement of supplies, services or construction" (emphasis supplied).G.L. Ch. 266, section 67A.
b. The failure to allege false statements to the Town of Hamilton or to show that the statements were material to procurement
Chief Cullen next claims that there was no evidence presented to the grand jury that he made a "material statement that was false."G.L. Ch. 266, section 67A(1). The argument is that his allegedly false statements about having undergone required EMT training were made to state EMT licensing officials and not to Town of Hamilton officials. Chief Cullen executed a contract providing for extra pay based on his EMT certification knowing that he obtained the certification by participating in the submission of fraudulent training records, and he submitted payroll requests based on the fraudulently obtained certification. The grand jury was entitled to find that this was a "material statement that was false" to the Town of Hamilton. Given the public interest in high quality emergency medical services, the grand jury could find that the false statements were material. Also, although the amount of funds fraudulently obtained is not large in comparison to other cases in the Superior Court, it is more than trivial. This supports a finding that the fraud was material.
c. Chief Cullen did not receive pay for work not performed
Chief Cullen next claims that the grand jury did not receive evidence that he was paid for work not performed, thus requiring dismissal of the indictment for larceny. The grand jury could have found that Chief Cullen executed the contracts (contained in part 2 of the Commonwealth's Appendix to its response to the motion to dismiss at tabs 6, page 4 and tab 7, page 4), and was familiar with the components of his pay for EMT certification and time training for re-certification. The grand jury could also have found that Chief Cullen approved payroll requests including funds for those components far exceeding $250.
Based on the evidence presented, the grand jury had probable cause to believe that Chief Cullen committed the crimes of procurement fraud and larceny over $250. See Commonwealth v.McCarthy, 385 Mass. 160, 163 (1982) (setting forth the standard for dismissal of indictments). The evidence warranted a finding that, relative to the procurement of his 2008-2009 contract, there was probable cause to believe that Chief Cullen's conduct as to EMT recertification constituted either an omission or concealment of material facts in a written statement or a trick or scheme that was misleading in a material respect. See G.L. c. 266, § 67A (defining the crime of procurement fraud).
The evidence also supported a determination that there was probable cause to believe that Chief Cullen knowingly made a false statement of material fact, i.e., that he had fulfilled the requirements for EMT recertification, to obtain in excess of $250 in compensation. See Commonwealth v. Mills, 436 Mass. 387, 397 (2002) (setting forth elements of larceny).
d. Chief Cullen has been selectively prosecuted
The defendant has expressed concerns that he is being selectively prosecuted. The prosecutor has wide discretion in determining whether to prosecute, and prosecutorial decisions are presumed to be in good faith. Commonwealth v. Washington W., 457 Mass. 140, 142 (2010). The Federal and Massachusetts Constitutions require that prosecutions not be based on an "unjustifiable standard such as race, religion, or other arbitrary classification." The defendant has the initial burden of showing, among other things, that the prosecution was based on impermissible classifications such as race, religion or sex. Ibid.
The court has received a significant amount of the grand jury transcripts, but the court assumes that counsel omitted significant portions of the testimony and exhibits. Nevertheless, the court has gained an understanding of the nature of the criminal conduct alleged by the Commonwealth and the roles of the participants. From defense counsel's remarks and a reading of the transcripts and exhibits, the claims of selectivity or unfairness in the exercise of prosecutorial discretion can be focused on the following unindicted persons:
1) Various "line" Hamilton and Danvers police officers that appear to have accepted credit for a course which they did not complete;
2) A retired fire department chief;
3) A fire chief and his son, a recent state police academy graduate.
On this limited record, Chief Cullen has not met his burden of showing prosecution based on an impermissible classification such as race, religion or sex. The Hamilton and Danvers police officers were of relatively low rank, and accepted 30 day suspensions along with 30 days of unpaid work, the obligation to repay the EMT pay, and the agreement to cooperate against the defendants. This court is unaware of any evidence that the officers had advance knowledge that the course would not be given in full, or that the officers requested to receive credit for the course that they did not attend.
The evidence related to the retired fire department chief, the fire chief, and his son, a recent graduate of the state police academy, was obtained from an interview of one of the defendants when he was obviously a grand jury target. There is no showing that these were prosecutable cases or even credible allegations. The first fire chief was retired at the time of the grand jury presentation. The state police academy graduate had just graduated from the state police academy. In the court's view, the prosecutor was entitled to decline to prosecute one so young and inexperienced, and, allegedly being misled by his father. Finally, the attorney general could determine to allocate its resources to the prosecution of a police chief, whose integrity is integral to the criminal justice system, as opposed to fire chiefs, whose role in the criminal justice system is attenuated.
ORDER:
The defendant, Walter D. Cullen's motion to dismiss indictment nos. 003 and 004 (paper #11) is DENIED .