-: SJC-13475, Commonwealth v. James Bellard.
-: Okay, Attorney Osborne.
-: Good morning, Your Honors.
My name is David Osborne.
I represent the appellant James Bellard in this case.
Mr. Bellard was convicted of witness
intimidation under a bribery theory,
which at the time was Chapter 268, Section 13-1B.
-: You mean intimidation of a witness
and the means being equivalent to bribery?
-: Correct, correct.
-: And I recognize that the ball keeps on moving on
what the thing of value is? -: Yes.
-: But having said that, could the defendant saying
to the victim here, "Look, this is just
"how you can get back to normalcy.
"This is how you can get everything you want,
"we have to leave you alone.
"Police start knocking at the door.
"Here's the plan, just do this."
Could that be a thing of value?
-: No, I don't think that it could be, Your Honor,
you haven't articulated in that scenario,
which I think is the Commonwealth's position
in this case. -: That's where I got it.
-: Yeah. (laughs)
I don't think it works, even when you
articulate it as well as you've done.
The problem with it is that there's no,
well, there's several promises with it.
First of all, there's no promise of a thing of value.
It may be that Mr. Bellard, and this is,
I'm saying this for argument's sake,
it may be that Mr. Bellard did intend for her to,
did intend to interfere with his criminal
prosecution by encouraging his fiancé
not to cooperate with the authorities.
That may be the case arguably,
it's not my position, but that arguably is the case.
The problem is, you can't under Massachusetts law
be guilty of witness intimidation
by this theory without more.
There has to be an illegal means there.
And the illegal means in this case is the offer
of a thing of value, the promise of a thing of value.
Now, the Commonwealth says, the thing
of value is, is that Mr. Bellard,
as you've articulated, assured,
or promised his fiancé, that everything would
go back to normal and their lives would be
as it was before the case happened.
Now, there's a few problems with that,
as I said, first, there's nothing
in the record that supports the position
that that's a promise of some sort.
He did say, what the Commonwealth says is
that position, that description is based on four facts.
And I will point out, by the way, Your Honors,
that the Commonwealth argued other facts
at the appeals court, which it does not argue here.
So I hope that means that the Commonwealth understands
that those facts were not supported by the record,
Commonwealth said in the appeals court that-
-: Can I ask what-
-: Go ahead. -: I'm sorry.
Can just say what is a,
are you saying that what he said
was not a thing of value for the witness?
-: Right. -: It was not a thing of-
-: Well, it wasn't, it's two things.
It wasn't a promise.
-: Well, it was an offer though, wasn't it, no?
-: It wasn't, he didn't make any offer.
And that's what I was going to talk about,
but there is another problem as you mentioned it,
which is the thing of value.
There's no evidence that this thing,
that the Commonwealth has described as the promise,
even if it was a promise, and I do want to get to that,
even if it was a promise, there's no evidence in the record
that it had any value to the fiancé.
-: Does it have to be monetary value?
-: No, it does not need to be monetary value, Your Honor,
but I think when something is not inherently valuable,
if it's not cash, it's not a car or jewelry
or something like that, if there's no inherent
value to it- -: Intrinsic versus extrinsic.
So, like, if I'm a defendant on a case
and you know, and Mr. Keneally my cohort
is gonna rat me out, and I call him
and say, "Hey, I'll be your best friend for the next year."
-: Yeah.
-: "If you drop the charges."
-: Yes.
That potentially could be
in that sense -: That would be
a thing of value.
-: That's correct,
but the Rowano case- -: As much as being
my friend would, but that'd
-: Yes. -: be a thing of value.
-: If he value your friendship. -: Right.
-: I won't pry into that,
but that's something like the Rowano case
where the court said in sort of an offhand comment
that that would have been, if the Commonwealth
had brought a bribery type theory of the case-
-: It need not be, "I'll take you to the Red Sox game.
I'll buy you"- -: But there has to be some,
but there has to, yes, but there has to be
something in the record that gives you
some confidence that that is something desired.
-: You don't think she wanted
-: Yeah, I- -: things to get back
to normal, wasn't that her desire?
-: Yeah. -: Wasn't that-
-: Well, that's what the Commonwealth says.
If you look at this record and all we have,
Your Honors, is this record, there's nothing else.
There's no other evidence.
There's no disputed facts.
There's no- -: Audio tape from the jail.
-: Pardon, yes.
-: That's how you know. -: It's two conversations,
basically the same, but it's a 27 minute conversation.
There's no dispute about what was said.
-: [Chief Justice Budd] Mm-hm.
-: And I encourage Your Honors to read this
from start to finish as you may have already done,
because you need to understand
the context of this conversation,
which we can chat about in a moment if you want.
But what she articulates throughout this conversation
is, "I want this harassment to stop."
She never says, "I want us to go back to the way we were."
She never says, "I miss you.
I need you to help us take care of our children."
There's not a, it's quite striking,
but there's not a single word.
-: But that's presuming that the promise
is that we're going to get back together.
If you separate away from that,
and I'm starting from reverse order,
that what you can hear is palpable,
is that she's tired of being deluged
-: Mm-hmm. -: With, "Where are you,
what are you gonna do", prosecution, law enforcement,
and therefore, not necessarily that you're going
to get back together, but I promise you that that anxiety
and that angst and that frustration of people
keep coming after you to participate will go away.
How is that, I guess that's what I'm struggling with.
-: But it's the plain language of the statute.
It requires the promise of a thing of value.
And clearly- -: But why isn't
that a thing of value?
You're saying monetary or otherwise,
why can't peace of mind be something
that is incredibly valuable to someone?
-: It can be valuable,
but he's not promising something of value to her.
He's not promising her that the case is go,
the harassment is going to stop by something that he
is able to give her in exchange for her non-cooperation.
And that gets us to another question about
whether or not there needs to be a quid pro quo,
whether this needs to be an agreement or the offer
of a bargain in which he will do this, if she does that.
That's a second- -: No, but would you finish
whatever you were about to say?
Why is this not a thing of value for her?
-: Yes, it wasn't a thing of value to her
because she never articulates anywhere
that she wants to go back to her life with Mr. Bellard
as it was. -: But she did articulate
the fact that she wants this harassment to stop.
-: Correct. -: And he promises that
this harassment will stop. -: How can that be a,
he can't promise something that he can't deliver.
-: So that's different though.
-: The Commonwealth characterizes as a promise,
but it's not. -: But he can have
an understanding that in this prosecution,
without her cooperation, the case goes away and it does.
-: Well- -: I mean,
I don't know what other evidence they might have of it,
but I mean, the way that this was split up,
he was acquitted on part of it.
And then the other part was this part
and without her cooperation, wouldn't the case
be dismissed with want of prosecution?
-: That has nothing to do with a
promise of a thing of value to her.
She never expresses, by the way, any view about
how she wants the case to resolve.
She doesn't say, I want you- -: She doesn't,
but I guess what I'm getting frustrated with
is you're just not answering the question.
David: Well, I'm trying to.
-: If the prosecution and her participation
in the prosecution is the part
that everyone's coming to her to participate in,
if the index prosecution goes away,
no one's coming to her to participate.
-: Right. -: So it's symbiotic.
So if she's expressing frustration and all the other
emotional feelings that she's feeling,
and she wants that to go away,
-: Right. -: And somebody tells her
if the index prosecution goes away
by you not participating, -: Right.
-: how is that not a promise related
to a thing of value to her?
-: Because Mr. Bellard has no control
over whether the case goes away.
All he's doing, I've struggled, by the way,
Your Honor, I know that the panel
may be struggling with this as well,
I have struggled with how to articulate the problem.
When I first read this transcript.
I said, "Where is the crime?
"Where is this bribe?"
This so-called bribe.
I've struggled to articulate it.
I've attempted it and I know I'm falling short.
But the reason that it's, I'll try again.
The the reason that this is not the promise
of a thing of value is that Mr. Bellard is not saying,
"I will do this in exchange for something else."
All he's doing is saying what,
he's telling her what the reality is, right.
So if she says, "I don't wanna cooperate.
"I want nothing to do with this case.
"I want the police to leave me alone.
"I want the DA to leave me alone."
And his response is, "Well, just keep doing that.
"Just ignore the police, don't answer the door."
This case is gonna be heard in a couple of weeks.
-: But you can, -: That's all he says.
-: you can willfully do it indirectly, and-
-: You can do it indirectly,
correct. -: You can do it indirectly.
And I know you wanna get to the quid pro quo,
that's actually probably a harder argument
for you than whether or not this is a thing-
-: I'm happy to stay with this part of the argument.
-: It's an easier, a less difficult argument for you.
So I sort of would like to linger on this
for another minute. -: I'm happy to do that.
-: So you can do it indirectly.
David: Yeah.
-: And I know she says DTSS
but you know, for a parent, -: Yeah.
-: the biggest thing is your kids.
-: Yeah. -: And she's clearly
distressed about -: Absolutely.
-: DCF -: Absolutely.
-: and clearly having DCF not show up anymore,
or not the threat of DCF or not the police
throwing the DCF thing around if they were,
that would be subjectively a thing of value to her.
-: Absolutely.
That was driving her.
What the Commonwealth said in the appeals court is,
"Well, he promised her that he
would help with the DCF matter."
And of course, he never did that.
And there's a reason for that.
He had no ability to control
what happened with the DCF case.
All he said was in this transcript is,
"Don't worry about it.
"They're just making a lot of noise.
"They're just trying to intimidate you."
These are just words, these are attempts to persuade.
They are not the offer of a thing of value
that I will give you in exchange for your not cooperating.
-: A crime in federal court.
-: It could, depending on how they brought it.
And yes, we- -: Corruptly
persuade. -: Corrupt persuasion, yes.
I think, and that's the problem here.
I think everybody assumes that there's some,
if somebody says something to encourage
another person not to testify, that may be a crime
that the legislature should address.
But it is not currently a crime
under Massachusetts law.
Something like that is a crime under federal law.
And could this potentially, I don't think
Mr. Bellard could have been prosecuted under federal law,
but there's at least an argument there.
Because if you say-
-: Not to take you too much off your script,
wouldn't we have all sorts of First Amendment
speech problems with a law that says,
"Stop talking to the police",
that is -: Yeah.
-: a witness intimidation charge?
-: I think that's a good point, Your Honor.
I think the federal statute says corruptly,
so I think that might be how they get around that.
-: Right, I think that you must have to read something
into that corruptly. -: Yeah.
-: You'd have to, yes.
And there's a split in the circuits
about what exactly corruptly means, but-
-: So saying to the witness,
potential witness, be a stand-up guy.
David: Yeah.
-: That would- -: No, yeah, exactly,
Your Honor. -: that's not a crime.
-: If you just say, "Hey, you know, don't testify.
You know, this is all gonna go away in a couple of weeks",
which is exactly what Mr. Bellard did in this case,
repeatedly, over and over and over again.
That's not a crime unless he's holding out something that,
because remember what the legislature is trying to do,
and the Commonwealth agrees with this,
the intent of this is to prevent undue influence
on a witness by intimidating them or by harassing them,
or by making misrepresentations to them,
or by bribing them, or however you want
to describe this particular prong of the statute.
There has this very specific means.
It not just that you're encouraging somebody.
The legislature could have said that,
and there might be First Amendment issues with that,
but they didn't do that.
So you have to fit Mr. Bellard's conduct into this statute.
And there's a huge hole here,
which is that you don't have a thing of value,
even though there's something of value to her,
clearly, -: That's, isn't that-
-: But it's not something that he can promise her
because it is a-
Justice Gaziano: But doesn't he make it appear
to be that he could promise it?
David: No, I don't think he did
Your Honor. -: As you said,
if you ignore them, then this is what's gonna happen.
He's advising her,
I guess you would say. -: But remember,
she was already doing this.
She had told Mr. Bellard- -: He says,
"Don't answer the phone,
don't answer- -: Yeah, he said,
and the reason is because she says, "They're harassing me."
And she makes it very clear during this conversation
she's not cooperating.
She's wants nothing to do with this case.
She wants it to be done.
And she doesn't want the police coming to her door.
She doesn't want the DA coming to her door.
And so he says, "Well, don't answer the door."
Now, there's nothing more clever about his advice than that.
It's just, "Keep doing what you're doing.
"My case is coming up in two weeks."
-: Well, isn't there a concern
that she might change her mind?
You make a big deal in the brief that there's nothing
to do willfully -: Right.
-: to get her to not testify.
There's no need for quid pro quo
'cause she's not going anywhere near the witness stand.
-: Yeah, but that's- -: Well, we ought to
all know that it's not really
the last two weeks out that matters.
-: Yeah. -: It's usually,
you know, a day out or even a minute out that matters.
-: And that's true, Your Honor,
and the Commonwealth says that in its brief.
The problem is that,
I'm not arguing that that's the only evidence
that this is not a promise of a thing of value.
I'm just saying that when you look at this conversation
in its whole, in its entirety, not these little snippets
that the Commonwealth plucks out and says,
"Well, he said he cared about his family."
Oh my goodness, can you imagine a man
says that he cares about his family?
That's a bribe.
Or that he says that they're still getting married.
Well, he said that before this conversation
about the criminal case ever came up.
And that was just, that wasn't a promise of marriage
as the Commonwealth concedes.
It was just- -: This is a light
most favorable, right?
-: It is light most favorable.
But there still has to be evidence beyond
a reasonable doubt, even with taking the inferences
in the light most favorable to the Commonwealth.
So the Commonwealth packages up this promise,
but, and sure, we can speculate and say,
"Well, maybe he's going to,
"he's gonna confront a fiancé who wants to testify,"
although there's nothing in this record
that would give you any reason to be concerned.
She's making it crystal clear she does not want
to have anything to do with this case, and-
-: He promised to be with her?
-: No, there's, well, what he says is,
"You wouldn't be going through this sh,"
this is the quote, "You wouldn't be going
through this shit if I was out there."
That's the quote.
He doesn't say he's going to come back and stand by her
even if we believe that that was something she wanted.
And by the way, this is a domestic abuse case.
Maybe it's not something she wants.
-: Well, why would he be talking to her?
-: Well, so she- -: Kind of begs the question.
-: Well, we can, again, we can speculate,
but that's the problem with this case, Your Honor.
That's the problem.
All we have is speculation and conjecture,
'cause all we're limited to is this.
I think we know what happened here.
The Commonwealth knew it wasn't
gonna have a witness in this case.
And so it went through all of his transcripts.
-: Of course they did. -: And they found this.
And by the way, Your Honors,
this is the best they came up with.
This is the best they came up with
and if you want any, if you want to understand
any reason to doubt that there might be
a reasonable doubt here, beyond a reasonable doubt
standard met here, you just have to look at
all of the variations on what this thing was
that- -: Did he at one point say,
you know, something along the lines of, you know,
"Just do what's best for you", or something?
-: He did say that, which I think it goes to my point,
-: Understand. -: which it confuses
this whole motive question.
What's his motive?
Is his motive because he's trying to deal
with an upset fiancé and he's just trying to
calm her down? -: Well, I think the motive,
I know you don't think the motive's clear.
I think the motive's clear.
I just don't know if it's really a crime.
The motive is that he's trying to placate her.
He's trying to get her into his camp.
He's trying to say, "Just keep on doing what you're doing."
He's trying to get to the trial date
so she doesn't go in and testify.
-: Yeah. -: And he's playing her.
It's not too complicated to see what he's doing.
The issue is whether that constitutes a crime.
-: And also whether you've proven that element,
the intent element beyond a reasonable doubt.
And I think that's my greatest problem
with this case is that you can make the argument,
you can strain as the Commonwealth clearly did here,
and present a set of facts that, you know,
some, you know, the trial judge didn't see it
the same way as the prosecutor.
The appeals court didn't see it
the same way as the trial judge.
I mean, everybody's come up with a different
concoction for what the bad conduct was here.
But we're straining to make a crime here
when maybe it just wasn't, maybe it just isn't there.
He was encouraging, as Your Honor says,
he certainly had a motive to not have her testify.
That's unquestionable. -: Okay, I am sorry.
We're almost five minutes over -: I'm sorry, Your Honor.
-: you have absolutely made your points, thank you so much.
-: Thank you, Your Honors,
I appreciate it. -: All righty.
Okay, Attorney Jiang.
-: Good morning, may I please the court,
Kristen Jiang for the Commonwealth.
I believe the biggest issue here is whether or not
there was a promise made in this case,
things on the transcripts that's before the court.
And it's the Commonwealth's position
that there was an indirect promise
made here. -: What's the promise?
-: That the defendant and this witness would resume
their life as it was before if she listened to him.
If she listened to him, she stopped answering the door.
-: Where is that in the transcript?
-: So it's implied, it's not directly in the transcript.
There's no direct quote.
-: Which transcript are you're relying on?
-: The strongest piece is, number one on page 19.
"You wouldn't be going through this
if I was out there with you."
That's probably the strongest line
that I can pull from the transcripts.
There's also sprinkled throughout the transcript
in the context of, "We're still getting married,
"I care about our family",
and, "Listen to me and this will go away."
He says that over and over again.
"Listen to the man that knows,
"listen to me, and this will go away."
As to the DCF case in particular,
it's true that he didn't say that
he was gonna help her with the DCF case.
I don't, and I apologize if my argument
to the lower court was misconstrued,
he said that the DCF can stay open until whenever,
it doesn't really matter.
Meaning, "If you listen to me and you don't
"show up to this trial and testify against me,
"you don't have to worry about it."
-: Is that something in his control?
-: No, it's not.
I agree, that's not in his control.
It is in his control to some extent, the defense strategy.
He knows very well from his lawyer
that if this witness doesn't show up,
that the case is going to go away.
And he communicates that to her.
-: Why isn't this just stating the fact?
Why isn't this just trying to, you know,
make her feel better about things?
Why isn't this just advice?
Why isn't this just trying to persuade her?
-: Well, his intent really comes through,
through the transcript, when he says over and over,
"Listen to me, listen to me,
listen to a man that knows." -: And the intent
is that she not testify, right?
-: Yes. -: Okay,
so we can agree on that. -: Yes.
-: But why is this not just,
"Here's what will happen if you don't,
"if you don't answer the door, they'll stop coming.
"If you don't say anything, everything will be okay."
He's just telling her what the fact is.
-: Well, read in the context of their relationship
that's coming through the transcript where he says,
"I care about you and our family.
"We're still getting married, right?"
When he talks about, "You wouldn't be going through this
if I were out-" -: I agree.
No, I agree that he said all of those things.
-: Yes. -: Yes.
So why isn't this just him
telling her the fact of the matter?
-: Because those statements pull it out of
just him giving advice, especially read in light
of their history of domestic violence.
I know we don't have explicit facts on the record here
about their history, but we do have facts
that there was an assault here
that left her bleeding from the mouth
and she was taken away by ambulance.
And that's the case we're talking about here.
-: Was that in the trial record?
-: Yes. -: For this trial.
-: Yes, the docket and then there was
testimony as well about, because really
the issue at trial was whether
or not he was the one that made these calls.
But the arresting officer did testify at this trial.
So that is in the record.
-: Counsel, can you just remind me,
was this a separate docket number
from the underlying domestic case?
Kristen: Yes, it was.
-: In this particular docket,
was there a stay away no contact order?
-: I don't recall from that,
I apologize. -: Is the docket
on this case in the record appendix?
-: It should be, yes. -: Okay.
Would that inform at all the analysis here,
if there were a stay away no contact
from the alleged victim and to kind of
give the flavor to what this really was?
-: It could, it would inform it more
if this were intimidation case,
I suppose it could give some background to,
I think it makes a difference that this was a DV case.
That was the underlying case. -: Mm-hmm.
-: You know, this wasn't a theft or something like that.
This was a domestic violence case.
I think that does give flavor to this.
-: So before I ask you about whether or not
what was being offered was within
the defendant's control to promise,
I just have a technical question
that's not addressed in the brief.
When, as you know, when you have a jury waived case,
this is jury waived in front of Judge Flatley.
Kristen: Correct.
-: When you have a jury waived case,
the judge doesn't have to say anything.
Kristen: Right.
-: But the judge does say something,
and if I'm remembering correctly, she says,
"Well, there was a promise", and the promise was
that if she didn't testify they'd get married.
Is there anything binding since she said that,
about that being what's required
for the Commonwealth to be able to show sufficiency?
-: I don't believe there is.
I did do a little research into this.
There's not a lot on it,
but, well, for one in the record, she said,
"Based on what I just heard",
and that explicit offer of marriage.
So she was referring to "What I just heard",
which was a portion of the recording
that the prosecutor had played during her closing.
So I think that that covers us here,
because she was referring to the same transcript
that we're all looking at here.
So I think it's fair game for me to point
to any part of the transcript,
but also, you know, if this were a jury trial,
we wouldn't really know the reason
that they found this defendant
guilty. -: I'm sorry, yeah.
-: Right. -: But if she said,
"That's the reason that I'm ruling that he's guilty
of this." -: Right,
-: Are you arguing that that was the promise?
-: No, the offer of marriage?
No, no, absolutely not.
I concede that there is no support
for that. -: We have to look other,
somewhere else. -: Correct.
Yeah, I'm just proposing that you can look somewhere else.
You don't have to rely on that
incorrect finding. -: Have to look,
yeah, we have to look somewhere else.
-: Correct, correct.
Did I answer your question completely?
I'm sorry. -: You did.
Yeah. -: Okay,
thank you. -: Except we don't
have an answer, if you have,
you don't have to do anything.
The judge doesn't have to do anything.
-: Correct. -: If the judge said,
"My theory in this jury waived case
is theory A -: Mm-hmm.
-: and there's not enough evidence of theory A,
and there is a theory B, it's too bad.
She decided to say theory A, she didn't have to.
It's jury waived.
In jury waived you say guilty or
not guilty. -: Right.
-: But anything you say is fair game.
So I'm not sure we have an answer to that question.
But here's what I see as the biggest challenge.
Not whether he was trying to influence her,
because he clearly was
-: Yes. -: trying to influence her.
The issue is can you have a promise
under the statute of something that you can't control?
-: Well, an analogy would be what if
he did say, "Will you marry me?
I'm gonna marry you if I get out of here."
But she doesn't wanna marry him.
I still think it's a crime when he finishes that sentence.
-: Because he can control
whether he marries her. -: That's true.
He could control his end of it,
but he can't control the result.
He can't control whether she's gonna say yes or not.
-: Well, that's the same as if I said,
"I'm gonna offer you $500"
and you're not gonna take it,
it's still- -: Right
or you don't have the money, maybe you don't have the money.
But I think that's still completes
the crime when you make the statement.
If you think that's-
-: Well, you know whether you can marry someone
or have $500, you know. -: Right.
-: What you don't know is whether or not
you can stop the police from coming,
get DCF to leave you alone.
Get back to whatever that normalcy she's looking for is,
it's not something that he can unilaterally do.
Does that matter?
-: I think here to distinguish it a little bit,
he does relay his lawyer's advice that if
she doesn't show up, it's gonna all go away and be fine.
So that's a little bit of a distinction here,
is that he's purporting this professional knowledge
from his attorney that as long as
she doesn't show up, this is gonna be fine.
-: But that doesn't answer the question.
-: It's conditional.
-: Yes, that's true.
That's true.
-: And he doesn't have control over it.
I mean- -: He doesn't.
-: Right. -: He doesn't,
he does have control over this general sense
of resuming their life as it was before,
which is without police coming to her door,
which is without the prosecutor's office calling her,
et cetera.
If there are no further questions,
I'm happy to rest on my brief.