Opinion
No. 11–P–1819.
2013-11-1
COMMONWEALTH v. Francis BIAGIOTTI.
By the Court (CYPHER, TRAINOR & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his convictions under G.L.c. 266, §§ 67A, 67, and G.L.c. 274, § 7. The defendant raises three main arguments: (1) the evidence was insufficient as a matter of law to convict under each count, (2) the judge influenced cross-examination in an impermissible manner, and (3) the judge committed reversible error by promising and then failing to provide a jury instruction concerning the state of mind requirement under G.L.c. 266, § 67A. We affirm.
Discussion. 1. Sufficiency of the evidence. The standard for reviewing a claim of insufficient evidence is whether any rational trier of fact, viewing the evidence in the light most favorable to the Commonwealth and drawing reasonable inferences therefrom, could find that each element of the crime was proved beyond a reasonable doubt. See Commonwealth v. Latimore, 378 Mass. 671, 676–678 (1979). Here, the defendant claims that there was insufficient evidence for all three counts. A. Procurement fraud under G.L. c. 266, § 67A. The defendant argues that there was insufficient evidence to prove that the false statement made was material because it did not have a tendency to affect the formation or termination of a contract for labor. The defendant rests his argument on the theory that “relative” to the procurement of services as defined in G.L.c. 266, § 67A, does not include false statements related to ongoing contracts for services of labor.
Even if we accept the defendant's construction of what “procurement” means,
the jury had sufficient evidence to support a finding that the false statement on the timesheet tended to affect the formation or termination of a contract for labor. The jury heard evidence that the defendant changed the social security number on Joseph J. Picard, Jr.'s (Picard), time sheet. The jury heard that Picard told the defendant that Picard's son needed forty additional hours to get health insurance and that Picard had worked the hours documented on the September 12, 2004, timesheet. Finally, the jury heard that the number of hours a union member worked affected the quality of the health insurance plan received for the next contract year. From this evidence, a rational juror could conclude that the defendant's action had a tendency to affect the terms of the contract formed for the health insurance plan which Picard's son would receive in the next fiscal year.
We do not reach the issue of whether this interpretation of the statutory language is appropriate because it is unnecessary in this case.
The defendant also argues that the application of the statute in this case is unconstitutionally vague as applied to him.
However, as is described above, the statute's plain language, even using the extremely narrow construction suggested, encompasses the defendant's actions. See Commonwealth v. Quinn, 439 Mass. 492, 499 (2003) (noting that “a statute may not proscribe conduct in terms so vague that [persons] of common intelligence must necessarily guess at its meaning” [quotations and citation omitted] ). Here, there is no need to guess at the meaning of G.L.c. 266, § 67A, and the defendant had fair notice that doctoring a time sheet to change the terms of a longshoreman's health insurance contract in the next year was the type of conduct the statute prohibited.
An argument that the statute is unconstitutionally vague as applied to the specific defendant does not have to be raised prior to trial. See Commonwealth v. Jasmin, 396 Mass. 653, 655 (1986). As a result, the Commonwealth's contention that this argument should only be reviewed for the substantial risk of a miscarriage of justice standard is inaccurate.
B. Making a false entry in a corporate book under G.L.c. 266, § 67. The defendant argues that the Commonwealth failed to prove that he acted with the specific intent to defraud.
First, the defendant suggests that there is no evidence that he intended to deprive someone (who the defendant describes as Massport, BSA, Columbia Coastal, or MILA) of something of value. This argument is disingenuous. Here, the defendant changed the social security number on a timesheet in order to make Picard's son eligible for the premium health insurance. The defendant points out that for the eighty hours on the altered timesheet Massport would pay less in wages and there was a flat fee for employee benefits. However, the defendant fails to address the inference that the jury could make that there would be a cost for the additional benefit that Picard's son would receive.
The elements that the Commonwealth had to prove are that the defendant: (1) was an agent, clerk, servant, or officer of a corporation, (2) made a false entry into a corporate book, (3) had the intent to defraud. See G.L.c. 266, § 67.
Further, intent “is a matter of fact, which is often not susceptible of proof by direct evidence.” Commonwealth v. Casale, 381 Mass. 167, 173 (1980). Action by the defendant can support the conclusion there was “intent to defraud.” See, e.g., Commonwealth v. O'Connell, 438 Mass. 658, 664 (2003) (proof defendant presented checks to a bank with signature he forged supported a finding of intent to defraud). Here, the Commonwealth provided evidence of action. The defendant crossed out Picard's social security number and put in his son's social security number. This is sufficient evidence to support a finding of intent to defraud.
C. Conspiracy to commit larceny over $250 under G.L.c. 274, § 7 . The defendant argues that the Commonwealth failed to prove: (1) that he combined with another and (2) with the intent to commit larceny. See Commonwealth v. Nee, 458 Mass. 174, 181 (2010), citing Commonwealth v. Frazier, 410 Mass. 235, 245 (1991). We disagree.
Combined and intent. It can be difficult to tell the difference between knowledge of a plan and specific intent that the crime be committed. See Commonwealth v. Nee, supra. The acts of individuals “directed toward the accomplishment of the same object” can be proof of conspiracy. See Commonwealth v. Beneficial Fin. Co., 360 Mass. 188, 251 (1971). Here, the Commonwealth provided evidence that the defendant combined with Picard and acted to alter the social security number on the timesheet. This is enough for a rational jury to infer that the defendant took that action because he wanted Picard's son to receive health insurance benefits, which he was not entitled to receive. That is sufficient evidence.
Property. The defendant also argues that “employee benefits” are not property, so there could not be intent to commit a larceny. Further, the defendant argues that because the indictment did not charge him with conspiring to steal a “policy,” this court cannot interpret employee benefits to be a contract. The case law, however, has been clear that an insurance policy is a “valuable contract in force” under G.L.c. 266, § 30. See Commonwealth v. Levin, 11 Mass.App.Ct. 482, 496 (1981); Commonwealth v. Gall, 58 Mass.App.Ct. 278, 287 (2003). A health insurance policy, even when described as an employee benefit, provides the employee a contract with an insurance company.
Further, the description in the indictment, “employee benefits related to [Picard's son]” was sufficient “to apprise [the defendant] of the nature of the charges against him, and to permit him to prepare a defense” regarding the attempt to get the premium health insurance policy for Picard's son. Commonwealth v. Geane, 51 Mass.App.Ct. 149, 151 (2001) (explaining use of term money, instead of goods or services, regarding a contract with subcontractors did not produce confusion).
The defendant contends that we must follow the rulings in Commonwealth v. Geane, 51 Mass.App.Ct. 149, 155 (2001), and Commonwealth v. Rivers, 31 Mass.App.Ct. 669, 669 (1991), but in both those cases the alleged property really was services, such as surveying, paving, architectural designs, or using a landfill.
2. Limitation of cross-examination. The defendant argues that the judge abused her discretion in discouraging specific lines of cross-examination and arguments that were relevant to the defense of condonation.
The scope of cross-examination is typically within the discretion of the trial judge. See Commonwealth v. Miles, 420 Mass. 67, 71 (1995). However, that discretion is limited by the defendant's constitutional right to present a defense of his choosing and confront witnesses. See id. at 72. To determine if there has been a constitutional violation, the court “weigh[s] the materiality of the witness's direct testimony and the degree of the restriction on cross-examination.” Ibid., citing Commonwealth v. Kirouac, 405 Mass. 557, 561 (1989).
The defendant explained that part of his defense was that he did not possess the appropriate mental state of specific intent to defraud or commit larceny because in 2004 Massport condoned this type of hours shifting to confer a benefit on another.
Here, the degree of restriction of cross-examination was not great. Before the trial, both parties filed motions in limine to limit references to other similar convictions and specifically the “culture of corruption” at Massport. During the course of the trial, the judge warned defense counsel that certain lines of questioning might result in her considering allowing evidence of the nineteen similar convictions for fraudulent activities at Massport. However, contrary to the defendant's contention, the judge did not foreclose entire lines of questioning. The judge was careful to explain that defense counsel had the right to ask the questions but that, if he did, the judge would entertain an argument that the Commonwealth be allowed to bring in the other convictions associated with the culture of corruption.
The judge specifically stated: “That, of course, does not foreclose [asking the question] about his own knowledge....” The judge then explained that this testimony might allow the Commonwealth to clear up any misimpression left with some of the evidence concerning the other nineteen convictions, but that she could not predict how much would be allowed. The judge further explained, “if your question is can you ask that question without risk, you know I have to say the answer is no. You just have to make some judgments as to what you want to do here.”
The defendant was able to obtain evidence on cross-examination relevant to his theory of condonation. Specifically, one of the witnesses, James Harris, acknowledged that “there were a number of practices that Massport approved of that involved employees getting paid for and getting credit for hours that they didn't actually work .” The defendant also established that Massport supervisors did not question a practice of “doubling up” that was noted in an annual report that Harris submitted to his supervisors. After getting this evidence admitted, the defendant decided not to ask about the practice at issue in this case, transferring hours from one union worker to another, because of the judge's warnings. This was not a restriction on cross-examination but a warning of its potential consequences.
Further, the circumstance in this case are substantially different than those present in Commonwealth v. Woodbine. In that case, the judge was warning of the consequences of certain lines of cross-examination as in this case. See Commonwealth v. Woodbine, 461 Mass. 720, 737 (2012). However, in Woodbine the judge discouraged the defense counsel from cross-examining a critical witness concerning his memory of his testimony because the judge thought it would open the door to letting in a statement that had been previously suppressed. See ibid. As a result, the testimony of the police officer was not challenged and it was “an important, if not the key, piece of evidence against the defendant.” See ibid. In contrast, here, the defendant is concerned that he was warned of the potential consequences of eliciting evidence of common practices. There was no abuse of discretion here.
3. Jury instruction. The defendant argues the judge committed prejudicial error by failing to instruct the jury that a conviction under G.L. c. 266, § 67A, required proof of specific intent to defraud after telling the attorneys prior to closing arguments that the element would be included. Failure to adequately inform counsel about jury instructions prior to closing arguments is reversible error only if that error is prejudicial. See Commonwealth v. Pettingel, 10 Mass.App.Ct. 916, 917 (1980). Here, the instructions were correct, so the defendant could not (and did not) argue there was prejudice due to an inappropriate instruction. Therefore, the only way prejudice could be created is if the failure to give the instruction undercut the defendant's closing argument. Cf. Commonwealth v. Sena, 29 Mass.App.Ct. 463, 531 n. 7 (1990). Here, the defendant did not have an opportunity to distinguish the level of intent the government had to prove under G.L.c. 266, § 67A, versus G.L.c. 266, § 67. However, that was not prejudicial error in this case. Prior to the closing argument, defense counsel was still aware of all the other elements of G.L.c. 266, § 67A, and had the opportunity to argue any of the elements that were not proven beyond a reasonable doubt. Further, the jury concluded that there was specific intent to defraud under G .L.c. 266, § 67, despite counsel's arguments about the lack of fraudulent intent. Finally, had the judge instructed as she promised, the jury would have had to find an extra element beyond what the statute requires. Compare G.L.c. 266, § 67A, with G.L.c. 266, § 67.
Judgments affirmed.