-: SJC-13353, Commonwealth v. Joseph B. Sullivan,
and another.
(courtroom ambience flowing)
(no audio)
(person chuckles)
-: Attorney Cohen, whenever you're ready.
(attorney clears throat)
-: May it please the court.
Jared Cohen for the Commonwealth.
With me are the trial prosecutors,
Steven Carley and Dean Mazzone as well.
The Superior Court's dismissal of the indictments for
misleading investigators erroneously relied
on this court's decision in Barbosa,
which held that a felony conviction must be set aside
where there is a substantial risk that the defendant
was convicted of a crime for which he was not indicted
by a grand jury.
There is no such risk here.
-: What about the use of the disjunctive, or?
We have two indictments.
One says A or B.
The other says A, or B, or C.
The grand jury could have determined A was sufficient
in both of those indictments, correct?
-: No, Your Honor.
The reason that doesn't present such a risk
is because the indictments don't charge multiple crimes.
They charge the same crime committed by a single scheme
on multiple dates.
-: No language that says it's a single scheme
in the indictment, right?
-: That's correct, Your Honor.
And, the Commonwealth's pretrial motion to amend
the form of the indictments was to include such language
to properly reflect the evidence that was presented
to the grand jury.
The reason this is not an issue of ambiguity as it was in
Barbosa, the indictment in Barbosa said that,
"The crime was committed on X date.
The defendant committed the crime distribution of cocaine
on X date."
That indictment, standing alone was not ambiguous.
There's numerous indictments charged that way.
What made it. -: So, the grand jury hears
evidence that the person did mislead an investigator
on this occasion or that occasion, correct?
-: Correct.
-: If the grand jury deliberates and says,
"Yep, we agree with A",
and they don't reach B,
the person could be convicted of a crime
that was not presented to the grand jury.
The grand jury did not pass on, correct?
-: No, Your Honor.
What this is, this is a case more comparable
to a crime of larceny by single scheme.
Where a single scheme,
a single criminal impulse and intent
unites multiple occasions, multiple occasions
can be charged. -: You have to allege that
in the indictment.
-: So I think what Barbosa shows, Your Honor,
is that the court needs to read the indictment
in the context of the evidence that was presented
to the grand jury.
What happened in Barbosa, is that there was a mismatch
between the evidence presented to the grand jury
where there were two drug distributions that took place
on the same day, and the indictment,
which simply said, -: Do you agree the flaw
was not, the flaw in the indictment
was not a alleging single scheme?
-: In this case?
-: Yes.
-: I think the fact that the indictment didn't
explicitly allege a single scheme,
and the fact that it used the word, or,
created the issue that's brought us before here,
-: Okay, so. -: certainly, Your Honor,
but I don't think
-: All right. -: that flaw requires
dismissal under Barbosa.
-: It may require dismissal or it may require an amendment.
You asked for an amendment.
The judge, in the judge's discretion, did not allow it.
Correct?
-: That's correct, and whether to.
-: Why didn't you reindict?
-: I'm sorry?
-: Why didn't you reindict?
And we wouldn't be here.
(person chuckles)
-: Your Honor, this is a situation where it's an incident
that happened in 2015 because of a continuous course
of misleading conduct.
Indictments didn't issue until 2019.
There was extensive litigation in the trial court,
including multiple motions to dismiss under McCarthy,
-: Right. -: where the trial court found.
-: So you thought this was faster?
(person chuckles)
-: You take the grand jury minutes,
you put 'em in a box and you present them to a grand jury,
and you draw up the right indictments.
Why didn't you do that?
-: I think that would've been an option, Your Honor,
but I think this is another option.
-: So this is a better option?
-: I think this is an important issue to clarify that the
Commonwealth in this situation doesn't need to issue
multiple indictments for every instance of misleading.
-: Or, the Commonwealth should get it right
when they draw up indictments.
-: That's certainly the case, Your Honor,
the Commonwealth should get it right.
I think the issue here is that
if the logic of the trial court's decision
is allowed to stand in this situation,
every time the prosecutors on the Commonwealth
are faced with the situation,
they're likely gonna do one of two things.
They're likely going to issue indictments for every
individual act of misleading, or they're going to issue
indictments which they're entitled to do under the law
that don't specify any dates whatsoever.
-: Or, say it's a continuing crime,
when it's a continuing crime.
-: I think that's another option.
I think there are different things that Commonwealth
could do in this situation.
I think that's the crux of the issue,
the Commonwealth.
-: Now, you want a fourth option?
-: I'm sorry?
-: You want a fourth option?
Is that what you're saying?
-: I think in this case, the evidence presented
to the grand jury clearly established that it was
a single scheme,
-: No one's saying it is. -: and a continuous
course of conduct.
-: I mean, they wanted, there's an attempt here
to insulate these off-duty Springfield police officers.
No one's saying it, I mean, that it's not.
We're not saying it's not a continuing crime.
You just say that in the indictment
so that the defendant's not convicted
of something he wasn't indicted for.
That's all.
Not that it's not a continuing crime.
-: Your Honor, there are certainly situations
where the use of the, or, in indictment,
even if it's not the wisest choice,
does not lead to dismissal.
Barbosa recognized two such situations,
where you're talking about alternative means
to the same crime or a continuing offense.
Certainly the legislature in Chapter 277,
Section 31 explicitly says,
"That you can charge in the alternative
for alternative means to the same offense."
It also says in Section 20, "That the time of the offense
need not be alleged at all if it's not an,
essential element to the crime."
-: But once you do it,
you put the grand jury in a bind, right?
So the other question I had is, you know,
you may be right that it was a continuous crime,
I think you are.
That the judge probably should have allowed
the motion to amend, but how is it an abuse of discretion
under the LL standard for him to deny the motion to amend?
-: Yes, Your Honor.
It was both an abuse of discretion and legal error to deny
the amendment in the way that he did.
If you look at the trial court's decision,
he said, "He didn't say that he was exercising his
discretion to deny the amendment."
In fact, a previous amendment to amend the indictment
for filing false reports,
the trial court explicitly said,
"It was allowing amendments
in an exercise of its discretion."
In denying this amendment, it said,
"It did not believe,
essentially, that it had the authority to."
It said, "It thought such an amendment would be
impermissible", and that dismissal was quote,
"The only remedy."
So that doesn't sound like an exercise of discretion.
That sounds like the judge thinking
that his hands were tied by Barbosa.
And that was legal error,
and abusive discretion to do so.
-: Can I ask, and again, unlike some of my colleagues,
I haven't written these indictments in my prior life,
but how do we find it's an abusive discretion if,
as Justice Gazianos pointed out earlier,
you could just reindict.
So it becomes a matter of pride as opposed to substance
about how to redo this process.
So how do we find that the judge has abused
his discretion in that context?
-: I think that the question of what happens next,
how the Commonwealth responds to such an order,
is separate from the question of whether
he made legal error by misapplying Barbosa.
-: But again, we're measuring whether the error has,
we're measuring whether his decision to make you start over,
or allow you to amend when it has no real world
significance, how that can be an abusive discretion?
That's what I'm confused by,
but it may be there's a legal answer.
But, the fact that he didn't know he had discretion
doesn't, I don't know if we can really get there
based on this record.
-: I'm not sure that what the Commonwealth chooses to do,
or what its options to do in response to the order,
is necessarily tied to that question of whether
it's an abusive discretion.
I don't think that means that it wasn't.
-: You say it's legal error because the judge had authority
that he didn't realize he had.
And there's a line of cases that say that.
-: Yes.
-: Yes, that's correct.
And he thought he was squarely applying Barbosa
to the facts of this case,
when for all the reasons noted in our brief,
the case is distinguishable in a number of respects.
You know, in this case, read in the context of the evidence
to the grand jury, and I know Your Honor said
that you understand the point,
but I just wanna make clear for the factual context.
The grand jury indicted each defendant for willfully
misleading investigators on one or more specified dates
in connection with the same continuing investigation
into a single criminal episode,
the April, 2015 assault and beating
of four unarmed black men by a group of
off-duty Springfield police officers,
and the subsequent coverup of that assault.
The defendants were thus charged with a single crime on
multiple dates as part of a single scheme.
(person clears throat)
-: This is a unique case as far as lack of prejudice to the
defendants, because there was a McCarthy motion that said,
"That there was sufficient evidence to present
to the grand jury for all the incidents."
-: Correct?
-: That's correct, your Honor,
and that's the point I was getting into a moment ago,
which is that there were McCarthy motions litigated
for both of these defendants on all of the indictments,
including the misleading indictment.
The trial court found that the misleading indictment was
amply supported by probable cause as to every element.
And if you look at the trial court's decision there,
which is at pages 43 through 62 of the record
appendix volume one, you will see that the trial court,
although he didn't explicitly say that, he was addressing
each instance of misleading as part of a single scheme.
He didn't look at whether there was probable cause as to
statement one and then probable cause as a statement two.
-: Had you not had a McCarthy motion,
there might be a different analysis on prejudice, right?
-: It might be, Your Honor, but I think the existence
of the McCarthy decision makes it easier,
because you can look to the trial court's decision and you
can look at how he interpreted the indictments,
how he interpreted the grand jury evidence,
and how he found probable cause on each element.
However, I don't think that it's necessary for the
Commonwealth's position to prevail,
because we do have grand jury evidence on the record,
in the impounded volumes two and three.
Your Honors are able to look to the grand jury evidence
directly, which I've summarized in my brief.
And I think when you look at that evidence directly,
it shows exactly what the trial court found,
which is that these successive multiple instances
of misleading were all essentially the same statements
repeated on multiple occasions to different authorities,
misleading about the exact same thing,
which is what happened on April 15th, 2015,
who was responsible for that assault,
and were off-duty officers involved.
-: Is that the same for both defendants?
-: It's essentially the same, Your Honor,
there are some slight factual tweaks
as to the different statements.
-: And does that make a difference in terms of outcome?
-: No, it doesn't make a difference in terms of the outcome
here, Your Honor.
-: Why not?
-: Because starting with Gentry-Mitchell,
he made three statements,
two to Springfield Police in 2015,
and one to the grand jury in 2018.
The trial court's decision on the McCarthy motion that I was
just referencing explicitly found, "That those three
statements were the same in substance."
Specifically, that they consistently misled investigators
by telling them that he never saw any off-duty officers
at the scene, when, in fact, he did see at least one,
and that he never heard from his partner,
or from the victims or any other witnesses
that off-duty officers might have been involved.
-: Right. -: So same statements.
So, to Sullivan.
-: Yes.
So Sullivan, there's four statements.
There's a statement to Springfield police in 2015,
two statements to the FBI in 2017,
and the testimony to the grand jury in 2018.
What Your Honor may be referring to,
is that Sullivan references in brief,
he makes some inconsistent and different misleading
statements, particularly in the earliest statement
to Springfield police regarding who he could identify,
whether he knew that his partner and friend was involved
with the incident with off-duty officers that night.
He later corrects those statements.
But, what the trial court also found in its decision,
is that he consistently made the same misleading statement
in addition, which was this false and fabricated
account that the victims were the aggressors,
because they had had a cab called for them,
and they waved off the cab, decided to stay
at the scene of the fight.
-: So that's the same across
the multiple statements for Sullivan?
-: That statement is the same across all four occasions.
Moreover, even the other statements,
where there are some factual differences,
the intent remained the same.
The intent was to mislead investigators by providing a false
and misleading account of what happened on the night
of the assault, who was involved,
and specifically whether or not off-duty officers were
involved in the group.
-: It doesn't matter if they're different
police agencies, correct?
-: It doesn't, Your Honor.
I think what matters is the intent.
Under 13B, we have a dual intent requirement,
intent to mislead an investigator,
one of the investigators listed in the statute,
but also an intent to impede the criminal investigation.
And I think that's the critical aspect of the intent here.
The intent was the same to mislead the same criminal
investigation into the same incident.
-: With different law enforcement agencies?
-: That's correct.
And I think it's -: And dates?
-: That's correct.
because it's the same issue that all of the agencies
were looking into the entire time,
which is what happened on that night,
and who was responsible.
The fact that it wasn't resolved
by a Springfield police investigation in 2015,
the fact that it required FBI investigation,
and ultimately a statewide grand jury,
doesn't change the fact that it was the same issues.
We were still trying to get to the bottom
of what happened and who was responsible.
A little additional factual context
I want to get into is that again,
indictments didn't issue in this case until 2019.
At that time, a grand jury indicted 16 individuals in total,
including 11 individuals who were charged with various
crimes related to the cover-up, filing false reports,
misleading investigators under 13B and perjury.
Almost all of those individuals
made those statements on multiple occasions.
Most of them were in the same situation as Sullivan and
Gentry-Mitchell, where they repeated the same misleading
statements to investigators again and again and again.
At that point, the Commonwealth could have charged those
misleading statements and multiple indictments.
It chose, at this stage, to charge a single indictment
for misleading investigators while listing the dates
in the indictment to give fair notice to the defendants.
If the Commonwealth had opted to charge by multiple
indictments, that easily would have ballooned
the total number of indictments in this case
from the dozens easily into the hundreds.
Alternatively, if they had charged,
if the Commonwealth had charged without specifying
the dates, it would've presented no problem under the law,
but it would've provided much less
fair notice to the defendants.
So, in this situation, indicting with one indictment
per crime per individual, but specifying the dates therein,
the Commonwealth chose a course of action
that provided the simplest, the clearest,
most reasonable fair notice to defendants.
I see my time is up,
so if Your Honors have no more questions,
I will ask the court to reverse the judgment
of the trial court.
-: Okay, thank you.
-: Attorney Kelly.
-: Thank you.
May it please the court.
Daniel Kelly on behalf of Joseph Sullivan.
May I ask you to uphold Judge Mason's order.
While there's a multifactorial test,
it really is fact specific.
In this particular case,
the facts fall squarely within Barbosa.
Barbosa, was a gentleman who stood on the same street corner
in Boston over the course of 15 or 20.
-: But, isn't this not really like Barbosa,
because we had a trial in Barbosa, right?
I mean, Barbosa, you had a trial,
and you knew that the jury was given two instances
on the same date, and there really wasn't any way
to divide which particular instance
they were talking about here.
We haven't had a trial.
You know, that at trial, you can ask
for all types of things, right?
You can ask for special verdict forms.
It's not gonna, it doesn't have to be a general verdict,
because you'd have, if you had a general verdict form,
and then a conviction,
now you've got a Barbosa problem, right?
Because we can't figure out which one of these dates.
But you can use a special verdict form,
you ask for unanimity instruction.
There's all types of things
that makes this different than Barbosa.
-: I don't think a specific unanimity form,
I knew I'd have trouble with that word,
would remedy the Barbosa issue.
A specific unanimity form. -: As to each date.
-: But that wouldn't remedy this particular issue
as to what exactly the grand jury indicted him on.
It would remedy what the jury convicted him on,
but it wouldn't remedy what the grand jury indicted him on,
which is what Barbosa says.
-: Okay, so, is this back to Justice Gaziano's point,
that if the indictment had read a continuing scheme,
you wouldn't be here, you wouldn't make that argument?
-: It would certainly make it a less persuasive argument.
But the bottom line is here,
that disjunctive, or, is important.
Just not putting that aside is a significant issue.
In the "or" cases that they cite,
the judge allowed particular motions to.
-: Every child rape case has that.
-: Yes.
-: That on diverse dates, do this.
I mean you litigate cases, that's every child rape case.
-: Absolutely.
-: You want us to validate every child rape indictment too?
-: No, but those are particularly,
I mean, that's the same exact victim doing the same exact
acts to the same exact victim.
Here, that's not what we have.
Sullivan makes a statement in 2015,
to the Springfield PD investigating one aspect.
He makes two statements in '17 to the FBI.
He makes two statements on the same day
in front of the grand jury,
(person clears throat)
and before the grand jury.
How do we know on that day,
who the grand jury indicted him on?
Did they indict him on what he said to the FBI,
and to the state police outside the grand jury room?
Or did they indict him on what he said to the grand jury?
How is that not exactly like Barbosa?
In Barbosa, he had someone who sold drugs to person A,
waited 15 minutes later, took it outta the same stash,
his own mouth and handed it to person B,
and we didn't know who the grand jury indicted him on.
How do we know the words that came out
of Mr. Sullivan's mouth in, you know,
position A, speaking to the people,
the investigators before the grand jury,
or was he indicted on position B,
the words that came out of his mouth
in front of the grand jury?
-: Which would've been cured by continuous scheme language.
-: It would've been, but we don't know that the jury.
(person coughs)
-: But now we get to whether or not it was error
to deny the amendment.
-: So it wasn't error.
I mean, this is a very fact specific case.
Judge Mason, get into this idea
of did he know he had discretion or not?
He made factual findings,
and I know you take it de novo,
but he didn't, it wasn't as though he was unclear
as to what his role was.
He made factual findings that the amendment in this case
stretches impermissibly thin, Barbosa.
And really, if you think about it,
almost all of the attacks on Judge Mason's ruling in this
case could have also been made before you
at the hearing of Barbosa.
This has really encloaked a attack on Barbosa.
-: Barbosa's not a continuing crime case.
It's two different drug deals.
This is one covering.
-: And in Barbosa, they mentioned that, right?
That this isn't a continuous thing,
because they would said if it were,
it would be very different.
-: Right?
But in this case, how is that any different?
If you think about it in this case.
It's easy just to step back and just say,
"This is one coverup."
But really, he's speaking
to multiple sovereigns, multiple agencies.
I mean the FBI is investigating not for criminal acts that,
are germane here, the state statute,
they're investigating civil rights.
They're investigating a whole nother set of statutes.
It's a whole different sovereign
over the course of years.
-: His intent is to cover up for his buddy.
-: I don't think that's necessarily the case
that the grand jury had.
He makes inconsistent statements
across the course of this investigation.
-: You admit that you wouldn't be prejudiced
because there was a McCarthy motion?
-: The McCarthy motion denial was interesting,
but it still doesn't get into what the grand jury did.
It's based,
(Justice Gaziano chuckles)
-: I'm asking about the decision not to allow
the amendment, whether that's an abusive discretion.
-: No, it's not abusive discretion.
The judge made a factual finding
that, in this particular case,
Barbosa applies and that these were separate acts,
and that putting them together.
-: So if we look at the Barbosa language,
and it says, 'cause I read it, and you did too,
"This does not apply to continuous crimes."
And we think this is a continuous crime,
and the judge was wrong, is it an abusive of discretion
not to allow the amendment?
-: I would have to agree with that.
If you find that, yes,
because that's not the,
but I would urge you strongly
to look at the facts of this case.
The date, and again, I made an error,
and omitted something from the record.
I asked leave to submit.
The grand jury, you might have heard,
in their reply, I believe, did not,
they suggested in their reply, I believe,
that the grand jury didn't hear
about the two instances
on that one day in the 18.
The grand jury did.
I can provide that in a letter,
and I'll simply provide that if the court allows
me to submit, pursuant to your rules, afterwards.
But they heard that.
So how is that any different than Barbosa?
It's not a continuing act.
It's two different acts on the same day,
but it's not a continuing act,
because it's all across the board
over the course of three years.
It's internally inconsistent.
How could we held to cover-up
for certain people that in certain dates,
he doesn't cover up for them?
(no audio)
-: Thank you.
-: Okay, thank you.
Take a break? (Chief Justice Budd whispers)
Then, attorney Fogerty.
-: Thank you.
(no audio)
-: May it please the court.
Edward Fogarty for defendant, Mitchell, before the court.
Mr. Mitchell, as you know, is charged with three counts,
if you will, within the indictment of misrepresentation.
Two occurring to the Springfield Police Department,
and one to the grand jury.
I would argue that there are,
the trial court found that there were two targets,
namely the police department and the grand jury.
I would argue that there is room for argument here
that the two targets within the police department
are in fact two different targets.
One was the Major Crimes Unit,
where they're investigating criminal activity.
The Internal Investigative Internal Affairs Unit,
or whatever the title was, is looking for basically
administrative disciplinary actions
against the police department.
So there is a distinction to be made,
and I would argue that there in fact could hold
that there are three targets in this particular case.
In any event, the Commonwealth argues
that they would be allowed to amend the indictment,
to make it a continuous scheme or continuous crime.
I would argue again, that that's not necessarily the case.
And the case cited by the Commonwealth in support of their
position is one involving a larceny.
In the cases that support these kinds of continuous crimes
are pretty much larceny or embezzlement,
or types of schemes that can go on over many years
with spots of individual transactions
leading up to the ultimate larceny against a single victim.
Here we have at least two victims, two targets.
Unlike the cases cited by the Commonwealth,
where there is one single target.
So I would argue that the Commonwealth is trying to backdoor
in the continuous intent amendment as a way of overcoming
what was their poor drafting in the indictment itself.
Namely, the use of the word, the disjunctive, or.
Had they simply had the word "and",
we probably wouldn't be here.
Had they just gone back and reindicted,
as was brought up by Justice Gaziano.
We wouldn't be here.
Instead of that, we're before this court on an issue
involving multiple targets, multiple victims,
which is not supported by the record,
and I would ask you to support the trial court's decision.
-: Were you prejudiced by this if he allowed it?
-: I think it would be.
You wouldn't know, what did the grand jury decide?
Did they decide that Mr. Mitchell was responsible
for misrepresentation to law enforcement,
to the grand jurors?
And I might add, that the grand jury was,
at the same time, considering a perjury charge
against both of these individuals.
It could equally be that the grand jury decided,
"We're gonna issue a perjury charge here.
We really don't need to have a misrepresentation charge."
We simply don't know.
-: They returned perjury.
-: They did?
-: Right.
-: So, it could be that we just don't know.
We don't know what the grand jury was doing,
because of poor drafting on the part of the Commonwealth.
And that should not prejudice the defendant in this case.
(no audio)
If there are no other questions?
-: Thank you.
-: Okay, thank you.