Opinion
No. 11–P–2018.
2013-01-22
COMMONWEALTH v. John CLEARY.
By the Court (COHEN, TRAINOR & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, whose work as a systems engineer for Partners Health Care Group (Partners) included specifying and recommending computer hardware for purchase by Partners, appeals his conviction of two counts of commercial bribery pursuant to G.L. c. 271, § 39( a ).
The defendant does not dispute the sufficiency of the Commonwealth's proof that he took two payments from a vendor in return for recommending the vendor's products to his immediate supervisor, who had purchasing authority. The defendant's sole claim on appeal is that the trial judge erroneously instructed the jury that the statute extends to the conduct of a corporate employee who does not, himself, have purchasing authority, but who has the authority to influence purchasing decisions. We affirm. In an unpublished decision pursuant to rule 1:28 of this court, Commonwealth v. Cleary, 79 Mass.App.Ct. 1116 (2011) ( Cleary I ), we addressed the same claim of error in the context of the defendant's appeal from the denial of his motion to stay execution of sentence pending appeal. We recognize that Cleary I is not binding on this panel both because it is unpublished, see Chace v. Curran, 71 Mass.App.Ct. 258, 261 n. 4 (2008), and because the issue presented was the likelihood of the defendant's success on appeal, and not the actual merits. Nevertheless, we find the reasoning of Cleary I to be persuasive, and conclude that the statutory term “agent” is not restricted to those who possess authority to bind the principal or employer to formal relationships with third parties. See Restatement (Third) of Agency § 1.01 & comment c (2006). See also Theos & Sons, Inc. v. Mack Trucks, Inc ., 431 Mass. 736, 742 (2000).
.General Laws c. 271, § 39( a ), as appearing in St.1980, c. 531, § 3, provides in relevant part: “Whoever, in relation to any transaction or matter concerning the business affairs of an employer, principal or beneficiary ... as an agent or fiduciary, solicits, accepts or agrees to accept any benefit or anything of value from another person who is not an employee, principal, or beneficiary upon an agreement or understanding that such benefit or thing of value will influence his conduct, shall be punished ...” (emphasis added).
As aptly summarized in Cleary I, “[v]iewed as a whole, the statute appears intended to deter and to punish the conduct of trusted employees willing to exert their influence against the best interest of their employer in exchange for the delivery of values from a party in an adverse or arm's length business relationship with the employer. The punishable harm to the employer's interest does not depend upon the capacity of the accused person to bind the employer to a third party but only upon the ability of the accused person to exercise ‘influence.’ “
The defendant's argument that, in other provisions of the General Laws, “employee” remains conceptually distinct from the “fiduciary” and “agent” identified in G.L. c. 271, § 39( a ), fails to give proper consideration to the manifest intent of the statute to criminalize the actions of employees with authority to influence company decision-making to trade on that authority. See generally DiGiacomo v. Metropolitan Property & Cas. Ins. Co., 66 Mass.App.Ct. 343, 346 (2006) (ultimate goal of statutory construction “is to determine and effectuate the intent of the Legislature in the situation presented”). The removal of the words “employee” and “servant” from the statute in 1980 does not undercut its applicability to one in the defendant's position.
Judgments affirmed.