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[Chief Justice Budd] SJC-13615
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Commonwealth v. Daniel Spalding.
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(paper shuffling)
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Okay, Attorney Allen, whenever you're ready.
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I have a slight cough, so I'm just gonna-
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Yeah, of course.
(justices chuckling)
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(paper crinkling)
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I believe good afternoon, Your Honors.
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Ashley Allen for on behalf of the defendant-appellant,
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Mr. Daniel Spaulding, may it please the court.
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This case involves General Law Chapter 268A, Section 23,
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which is commonly known as the conflict of interest statute,
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and the criminal component of that, which is Section 26.
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And so unless this court has another preference,
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I actually wanna start with my last issue,
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which is whether there was sufficient evidence
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of the actual amount of the unwarranted privilege,
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so whether or not the fair market value
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was over $1,000 or more.
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I think that that's a mathematical problem,
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and it might take a little time
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to get through it.
Do you have any legal
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authority for the proposition
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that the fair market value of cash is not its face value?
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Well, so, it's not
(paper crinkling)
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a case that says so,
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but here, I think it's limited by the indictment,
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how they charge the indictment,
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that it was the use of the money
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which was the unwarranted privilege,
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how they argued the case,
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they conceded right from the beginning in opening statements
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that there was no intent to steal,
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that this was a borrowing.
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So similar to a loan, it's the use of the money
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that is the value.
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And they also conceded as much during the argument.
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Right, so ultimately, the money was used,
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as I understand it, to help make mortgage payments, right?
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That's the inference, yes.
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Okay, so assume that's true.
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Normally mortgage payments constitute
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both a repayment of principle and of interest.
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Why isn't the full amount of the mortgage payment
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the fair market value of the,
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let's call it, loan he gave to himself?
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Right, because he's paying that money back,
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so it's the use of that amount of money
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for that period of time to cover the mortgage payment.
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Well, let me put it to you another way.
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By doing that, he saved home perhaps from foreclosure.
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Why wouldn't we use the home's value?
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Well, so if you also look at any of the Ethics' opinions,
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let's take another example,
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where somebody uses their position to,
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they use their office, and their phone,
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and their assistant to do,
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and this is one of the examples
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that the Ethics Commission gives, is to write their book.
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[Justice Wolohojian] But that's not cash.
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Right, but they're not valuing the office,
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the phone system, and the assistant's time there,
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so what is the use of that during that period?
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So it's not the whole sum total of actual property,
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but the use of it that is what needs to be
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the fair market value over 1,000.
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I'm gonna give you a hypothetical, if I may.
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we have a classic bribe case, let's just take it that way,
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where someone's going to...
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You ask a government official to do something
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in exchange for a bribe, cash, $1,000,
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and the public official doesn't actually
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do anything with the cash, just keeps it,
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makes no money on it, just keeps it.
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Why is the fair market value of that cash
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not the face value of the cash?
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Because he doesn't use it and then give it back,
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so he's still keeping it,
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where the Commonwealth is the one that chose
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to charge it this way,
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and chose to present their theory
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as this is not an intent to steal, this is a borrowing.
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[Justice Wendlandt] So that was the choice,
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that's the way the case was tried.
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Right.
It's not necessarily true
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that the fair market value of $17,000 is not $17,000,
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it's just that the theory of the prosecution
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was that it was the time value of the use of that money,
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which was the unwarranted privilege.
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Well, that's what they limited themselves
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by arguing that way.
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They charged it that way
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in the indictment.
But nothing in the statute
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requires that kind of construction.
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Well, I think the only thing that is required
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by the statute is that the fair market value be established.
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It's not the total sum, it's how much does that cost?
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This is a sufficiency claim, correct?
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Yes.
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(paper crinkling)
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So obviously, we do raise also as a void for vagueness
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as applied to this set of facts,
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but not the fair market value portion,
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so I don't think that it's overly vague.
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This is that they didn't prove this
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beyond a reasonable doubt that the fair market value
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of the use of this money and whatever that sum is.
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So, the Commonwealth in their, I apologize,
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the Attorney General's Office, in their brief,
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Bill of Commonwealth.
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(everyone chuckling)
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I think. (chuckles)
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They picked three different theories, basically.
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So first they say that it's the sum total.
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It's not our position that it's a sum total,
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and it's the use of that money of the sum total,
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plus it's limited to 12-month period,
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so in their chart, they give you,
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I believe it's a 26-month period, and say,
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"Well, here, even if-"
Should we consider this
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a no-interest loan?
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This is a no-interest loan, correct?
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If you wanna consider it that,
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then there's no fair market value
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to a no-interest loan as-
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Well, no, it's the present value of all the money
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and the use of the money over that period of time, right?
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So it's the best loan available.
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It is, it is.
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I mean, he's using this evidence as a private piggy bank.
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So I think here, though, it would require too much piling
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of inference upon inference in order to say
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that this is what the interest would be on this type of loan
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during this time period.
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We also don't know when this money was taken.
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They didn't establish the 12-month period-
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Counselor, I'm sorry to interrupt you,
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but can you tell me how was the jury charged
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to divine the amount in controversy?
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So this was actually a jury way of trial,
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so there was-
Oh, I'm sorry,
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but he still had to them show you-
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Yeah, so there was an argument that he moved
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for a required finding of not guilty.
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The judge determined that he was going to decide
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the fair market value based on the use of the money,
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and what he used as the benchmark
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was there was, I believe, three loans,
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maybe four loans, that the Commonwealth had submitted
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to show motive,
(papers crinkling)
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so to show that here's this person who's in financial,
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you know, hardship, he needs this money to pay his mortgage,
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he had to take these loans,
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and so there's various loans that he takes
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over a course of time.
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They ranged in interest from 9.5,
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around 9.5 to 11.75
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at various times for different amounts of money
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over the course of time.
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So the judge used that amount to say,
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"Well, here's the evidence of how much it would be."
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It's our position that that's far too...
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There's too much conjecture to say that that's
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how much it would cost here.
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There needed to be an expert,
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and it's commonly done in cases
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where they do property assessments,
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and the fair market value of properties
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that the parties will-
But if the evidence was
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that he, or in combination with his wife,
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had taken these personal loans,
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and there was testimony as to what the interest rate was on,
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and that was in the record, so, I got it,
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so I'm assuming that it was before the judge.
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What is wrong with the trial judge
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using what he was getting at the time for interest rates
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on what he was borrowing in using the one year,
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the $16,000, and ascribing that to that?
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What's wrong with that?
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So two things, is I don't think that it transfers
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automatically to these.
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We don't know when the money was taken,
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we don't know when it was returned,
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we don't know how much money during that 12-month period
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that they allege was used,
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The use of the money, not the sum total.
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Second is that would be taking the chart
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that was submitted with the brief,
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and even if we take that, even if we say,
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"Okay, let's give them the highest interest rate
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that's in the record," which is 11.75,
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they get to,
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and maybe I'm wrong in my interpretation of this,
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I also believe that this is why there needed
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to be some sort of financial expert,
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'cause these are not common knowledge,
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common knowledge-type topics that we can easily understand
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what the interest rate would be and how much to calculate.
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But so the Commonwealth says that at the end of 26 months,
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it would be $1,269, would be the total sum,
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or the total market value.
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We need a 12-month period.
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So if we were to take that as true,
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my calculations of the 12-month period
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prior to May 17th, 2017 would be, I believe, it was $650.
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So we're still underneath that $1,000.
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Why do you say a 12-month period is the only aperture?
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Because the statute Section 26 limits it
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to a 12-month period.
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So it says it needs to be $1,000 dollars
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within a 12-month period of use.
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So what they've said is $1,269.10,
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is their analysis is based
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on 26 months.
26 months.
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So even if we were to take that calculation as true,
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and use the 11.75, and this chart that they've submitted,
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it still doesn't get you to the $1,000.
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And we're not saying that...
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He would still fall in between a civil violation,
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but the problem here is that we're taking a civil violation
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and turning it into a criminal offense
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where there's higher penalties,
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and that's the problem with the-
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If you take the evidence in the light
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most favorable to the Commonwealth,
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why is the trier of fact required to find
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that this was a loan?
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There's certainly sufficient evidence
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to think it only became,
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to conclude it only became a loan
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once he realized he was being caught.
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Well, again, it goes back to how
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the Commonwealth charged the case,
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and the theory that they presented,
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and he did use that as this was like a loan.
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So they could have charged him
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with a larceny,
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and they didn't.
Right.
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They could have charged him with...
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I question why they didn't charge him with larceny,
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you know, by embezzlement,
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or embezzlement by a city employee,
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and the question is would they be able to prove it?
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Because there was no intent to permanently deprive,
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case law says that you don't need to show that.
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So, you know-
(chuckles) I don't know
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about that, but-
Right, so,
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that's where, was there misconduct?
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Yes, we're not denying that there's misconduct.
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There was probably a civil violation.
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Could they have charged him with another offense?
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Probably, but this does not fall
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under the criminal conflict of interest statute.
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I mean, that goes to your vagueness challenge
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about whether or not someone would be alerted
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that this is a crime,
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and this is certainly a misuse of office benefits
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that certainly aren't available to anybody else,
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to use the evidence room as your piggy bank.
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Right, and so to start with that argument,
261
00:12:04.050 --> 00:12:06.720
I will go into that, if there's no other questions on-
262
00:12:06.720 --> 00:12:07.553
There was just one.
263
00:12:07.553 --> 00:12:09.300
Okay.
Because it relates
264
00:12:09.300 --> 00:12:11.790
to Justice Wolohojian's earlier point,
265
00:12:11.790 --> 00:12:14.250
is where the trial judge went wrong here
266
00:12:14.250 --> 00:12:17.253
by articulating what his math was based on?
267
00:12:20.670 --> 00:12:21.780
I don't know if he ever-
268
00:12:21.780 --> 00:12:23.850
Because if he says nothing, right,
269
00:12:23.850 --> 00:12:27.840
and just finds him, you know, guilty of this,
270
00:12:27.840 --> 00:12:30.307
but he very well could have said,
271
00:12:30.307 --> 00:12:33.420
"I think that the face value of the money
272
00:12:33.420 --> 00:12:36.210
is the metric for the loss,
273
00:12:36.210 --> 00:12:40.350
versus I'm going to use the interest rates
274
00:12:40.350 --> 00:12:42.660
that he was getting on these personal loans,"
275
00:12:42.660 --> 00:12:44.670
and he's saying, "This is my math."
276
00:12:44.670 --> 00:12:47.040
And then if the math over the 12-month period
277
00:12:47.040 --> 00:12:52.040
is less than $1,000, then the Commonwealth loses.
278
00:12:52.170 --> 00:12:55.650
I think because we raised a sufficiency of the evidence,
279
00:12:55.650 --> 00:12:59.434
and it wasn't, we're not arguing an abuse of discretion,
280
00:12:59.434 --> 00:13:02.910
so however he decided it, we were still raised at same
281
00:13:02.910 --> 00:13:05.550
as an abuse of a, I'm sorry,
282
00:13:05.550 --> 00:13:07.620
of a sufficiency of the evidence,
283
00:13:07.620 --> 00:13:08.453
so that was-
So that that would be
284
00:13:08.453 --> 00:13:11.310
evaluated at the close of the evidence.
285
00:13:11.310 --> 00:13:12.344
I'm sorry, what was that?
286
00:13:12.344 --> 00:13:14.070
[Justice Wolohojian] The sufficiency would be evaluated
287
00:13:14.070 --> 00:13:15.540
at the close of the evidence.
288
00:13:15.540 --> 00:13:17.490
Correct.
It's not really dependent
289
00:13:17.490 --> 00:13:20.730
upon the judge's explanation of his reasoning, correct?
290
00:13:20.730 --> 00:13:21.563
Right.
291
00:13:21.563 --> 00:13:23.370
Yeah, so we would've raised it the same way,
292
00:13:23.370 --> 00:13:25.350
and it it was raised this way,
293
00:13:25.350 --> 00:13:29.640
he just agreed with us that this was the use of the money
294
00:13:29.640 --> 00:13:32.820
versus the total sum in this case, specifically,
295
00:13:32.820 --> 00:13:34.770
because of the way that it was charged.
296
00:13:37.020 --> 00:13:37.853
If you could address
297
00:13:37.853 --> 00:13:38.730
the vagueness argument?
298
00:13:38.730 --> 00:13:40.440
I will, Your Honor.
299
00:13:40.440 --> 00:13:43.170
So to start off, I just wanna say
300
00:13:43.170 --> 00:13:45.180
that this was an act enacted in 1962.
301
00:13:45.180 --> 00:13:49.980
It wasn't until 40 years later, about, to 2009
302
00:13:49.980 --> 00:13:51.630
that they added the criminal component,
303
00:13:51.630 --> 00:13:53.220
and that was to address the issues
304
00:13:53.220 --> 00:13:56.283
with corruption at the time, then Governor Patrick.
305
00:13:57.510 --> 00:13:58.710
When they first enacted this,
306
00:13:58.710 --> 00:14:01.290
it was very broad, very sweeping.
307
00:14:01.290 --> 00:14:03.510
It was intentionally vague by design
308
00:14:03.510 --> 00:14:07.650
so that it would cover all sorts of misconduct,
309
00:14:07.650 --> 00:14:11.100
appearance of conflict, and actual conflict of interest,
310
00:14:11.100 --> 00:14:12.870
bribery, all sorts of issues,
311
00:14:12.870 --> 00:14:14.520
so that was really the purpose of the statute.
312
00:14:14.520 --> 00:14:16.770
It wasn't until later that they added the criminal component
313
00:14:16.770 --> 00:14:20.490
without ever changing the civil portion.
314
00:14:20.490 --> 00:14:22.530
When they added the criminal component,
315
00:14:22.530 --> 00:14:24.990
it added fraudulent intent,
316
00:14:24.990 --> 00:14:29.990
and it added the fair market value
317
00:14:30.960 --> 00:14:32.730
in the 12-month period part.
318
00:14:32.730 --> 00:14:34.860
So we're challenging the unwarranted privilege,
319
00:14:34.860 --> 00:14:38.820
because as it was written under the first Section 23,
320
00:14:38.820 --> 00:14:41.430
it was meant to be all-encompassing,
321
00:14:41.430 --> 00:14:44.040
and in a civil statute, that's fine.
322
00:14:44.040 --> 00:14:46.830
The court tolerates that, because the penalties are less,
323
00:14:46.830 --> 00:14:49.650
and you have the Ethics Commission,
324
00:14:49.650 --> 00:14:53.410
who's the one who's prosecuting these things you prosecute.
325
00:14:53.410 --> 00:14:57.210
This is an as-applied challenge, correct?
326
00:14:57.210 --> 00:14:58.534
Right, so-
327
00:14:58.534 --> 00:15:02.040
And don't we simply define the crimes
328
00:15:02.040 --> 00:15:03.750
by the conduct that's in front of us,
329
00:15:03.750 --> 00:15:04.980
to say whether it's sufficient,
330
00:15:04.980 --> 00:15:06.960
and that provides parameters?
331
00:15:06.960 --> 00:15:09.240
Well, you still consider the purpose of the statute,
332
00:15:09.240 --> 00:15:10.740
and the ordinary meaning,
333
00:15:10.740 --> 00:15:13.200
and how to apply it to this.
But isn't the purpose
334
00:15:13.200 --> 00:15:15.360
of the statute to say that Commonwealth's employees
335
00:15:15.360 --> 00:15:18.330
shouldn't use their official positions
336
00:15:18.330 --> 00:15:21.510
to get benefits that other people don't get?
337
00:15:21.510 --> 00:15:24.570
Well, yes, and that what-
338
00:15:24.570 --> 00:15:28.050
And that's not a-
Comtois said,
339
00:15:28.050 --> 00:15:30.090
but, again, it was a civil case,
340
00:15:30.090 --> 00:15:32.250
that there, they weren't challenging it
341
00:15:32.250 --> 00:15:34.500
as void for vagueness.
342
00:15:34.500 --> 00:15:37.050
And so we're relying on the Ethics Commission
343
00:15:37.050 --> 00:15:41.340
to define what unwarranted privilege is there.
344
00:15:41.340 --> 00:15:42.780
And once we've put it into-
345
00:15:42.780 --> 00:15:45.360
But does Joe Q. Citizen get a right
346
00:15:45.360 --> 00:15:48.180
to go to the evidence room and take out money?
347
00:15:48.180 --> 00:15:52.380
He doesn't, but the question is is this a criminal
348
00:15:52.380 --> 00:15:53.310
or a civil offense?
349
00:15:53.310 --> 00:15:55.065
And so, we're now under the criminal-
350
00:15:55.065 --> 00:15:57.750
Well, the question of that void for vagueness as applied
351
00:15:57.750 --> 00:16:02.430
would be would a person of average intelligence understand
352
00:16:02.430 --> 00:16:05.530
that going into the evidence room to borrow money
353
00:16:06.570 --> 00:16:09.780
violated the statute, right?
354
00:16:09.780 --> 00:16:14.400
That this was a privilege that Joe Citizen did not have?
355
00:16:14.400 --> 00:16:15.810
I would agree with that.
356
00:16:15.810 --> 00:16:17.310
I mean, that's an overarching standard,
357
00:16:17.310 --> 00:16:20.400
but we looked, it needs to be strictly construed against,
358
00:16:20.400 --> 00:16:22.230
because this is a criminal case,
359
00:16:22.230 --> 00:16:23.730
that it needs to be strictly construed.
360
00:16:23.730 --> 00:16:26.070
And so if there's any ambiguity in that,
361
00:16:26.070 --> 00:16:28.560
then he needs to be given,
362
00:16:28.560 --> 00:16:30.623
the defendant needs to be given the benefit of that,
363
00:16:30.623 --> 00:16:32.700
and he-
But what's the ambiguity
364
00:16:32.700 --> 00:16:33.860
in that?
365
00:16:33.860 --> 00:16:36.420
What would a person of average intelligence
366
00:16:36.420 --> 00:16:41.310
not understand about the fact that I'm a police officer,
367
00:16:41.310 --> 00:16:43.470
and I have access, one of three people
368
00:16:43.470 --> 00:16:45.660
that has access to this evidence room,
369
00:16:45.660 --> 00:16:47.850
and I'm gonna borrow money to pay my mortgage?
370
00:16:47.850 --> 00:16:51.030
So that's where it goes back to yes, this is unethical,
371
00:16:51.030 --> 00:16:53.010
but is this an unwarranted privilege?
372
00:16:53.010 --> 00:16:54.660
What's the definition of a privilege?
373
00:16:54.660 --> 00:16:57.450
And here, they've defined privilege
374
00:16:57.450 --> 00:16:59.220
as some sort of legal authority.
375
00:16:59.220 --> 00:17:02.220
He didn't have legal authority to do this.
376
00:17:02.220 --> 00:17:06.570
He was obviously going against his duties
377
00:17:06.570 --> 00:17:08.430
as an officer to go into the evidence room,
378
00:17:08.430 --> 00:17:10.020
so this is...
379
00:17:11.400 --> 00:17:13.110
The statute was meant, I mean,
380
00:17:14.500 --> 00:17:16.109
there's so many things
I'm getting caught up.
381
00:17:16.109 --> 00:17:17.996
And examples.
'Cause it doesn't
382
00:17:17.996 --> 00:17:19.515
(chuckles) make sense.
383
00:17:19.515 --> 00:17:20.460
(justices chuckling)
But so there's so many
384
00:17:20.460 --> 00:17:21.390
examples of,
385
00:17:21.390 --> 00:17:25.500
and the Ethics Commission had submitted a letter
386
00:17:25.500 --> 00:17:29.850
with hundreds of pages of different unwarranted privileges.
387
00:17:29.850 --> 00:17:32.130
And so they were someone getting a vacation,
388
00:17:32.130 --> 00:17:36.900
someone using their position
389
00:17:36.900 --> 00:17:41.900
as a board member to get a police officer to go serve,
390
00:17:42.390 --> 00:17:46.620
fix some sort of utility for his daughter,
391
00:17:46.620 --> 00:17:49.110
like, it's so all-encompassing
392
00:17:49.110 --> 00:17:51.060
that when we put it in the criminal context,
393
00:17:51.060 --> 00:17:52.830
that now we need to look at,
394
00:17:52.830 --> 00:17:56.550
is this too broad as applied to the criminal context
395
00:17:56.550 --> 00:17:57.450
opposed to civil?
396
00:17:57.450 --> 00:18:00.150
So I guess it's difficult to explain
397
00:18:00.150 --> 00:18:03.960
because of how broad this statute has been designed
398
00:18:03.960 --> 00:18:07.620
to far reach all of the conduct,
399
00:18:07.620 --> 00:18:09.390
and so, you know, it would be our position
400
00:18:09.390 --> 00:18:14.131
that the criminal component does not cure that ambiguity.
401
00:18:14.131 --> 00:18:15.690
[Chief Justice Budd] Okay, thank you very much.
402
00:18:15.690 --> 00:18:16.523
Thank you.
403
00:18:19.194 --> 00:18:20.603
[Chief Justice Budd] Attorney Johnston?
404
00:18:24.900 --> 00:18:27.090
May I please the court, Assistant Attorney General
405
00:18:27.090 --> 00:18:30.000
Tara Johnston on behalf of the Commonwealth.
406
00:18:30.000 --> 00:18:32.400
At the beginning, I just wanna clarify something
407
00:18:32.400 --> 00:18:33.420
for the court.
408
00:18:33.420 --> 00:18:37.110
On the chart, I know we discussed,
409
00:18:37.110 --> 00:18:40.943
my sister discussed how it's the interest rate,
410
00:18:40.943 --> 00:18:43.770
if you apply it the way the judge did
411
00:18:43.770 --> 00:18:46.860
in terms of the interest rate,
412
00:18:46.860 --> 00:18:50.400
that you get to $1,269 after a 26-month period,
413
00:18:50.400 --> 00:18:52.230
and that's not actually accurate.
414
00:18:52.230 --> 00:18:54.390
The chart is done on a rolling basis,
415
00:18:54.390 --> 00:18:58.560
so you get the rolling interest of $1,269
416
00:18:58.560 --> 00:18:59.940
after a 12-month period,
(paper shuffling)
417
00:18:59.940 --> 00:19:03.780
within that 12-month period from June of 2016
418
00:19:03.780 --> 00:19:05.670
to May of 2017.
419
00:19:05.670 --> 00:19:08.010
So I just wanna clarify that at the start,
420
00:19:08.010 --> 00:19:11.674
that the judge was correct in finding,
421
00:19:11.674 --> 00:19:14.670
assuming we apply his interpretation,
422
00:19:14.670 --> 00:19:17.550
which again, the Commonwealth, as stated at trial,
423
00:19:17.550 --> 00:19:19.860
does not agree with that view of how
424
00:19:19.860 --> 00:19:22.440
it should be interpreted, the fair market value,
425
00:19:22.440 --> 00:19:25.973
but if you apply that view, you still reach
426
00:19:25.973 --> 00:19:30.213
well over the $1,000 within that 12-month period.
427
00:19:31.650 --> 00:19:36.060
Looking at how, just quickly, the sufficiency argument,
428
00:19:36.060 --> 00:19:37.770
because I know my sister started with that,
429
00:19:37.770 --> 00:19:40.083
and just addressing that, as I just said,
430
00:19:41.220 --> 00:19:44.370
the Commonwealth satisfied it with respect
431
00:19:44.370 --> 00:19:48.870
to if you apply it how the judge applied it,
432
00:19:48.870 --> 00:19:50.970
in terms of looking at it with interest.
433
00:19:50.970 --> 00:19:53.910
And there was no expert testimony needed
434
00:19:53.910 --> 00:19:55.980
with respect to the math here,
435
00:19:55.980 --> 00:20:00.000
because we had Mr. Spaulding's financials,
436
00:20:00.000 --> 00:20:03.930
and that included the interest rates he was getting on loans
437
00:20:03.930 --> 00:20:06.390
in the period of time.
Which interest rate
438
00:20:06.390 --> 00:20:07.825
is used in your charts?
439
00:20:07.825 --> 00:20:10.200
The 11.75 interest rate, Your Honor,
440
00:20:10.200 --> 00:20:12.090
and that is what he received on three
441
00:20:12.090 --> 00:20:13.980
of the four private loans he received
442
00:20:13.980 --> 00:20:16.803
during this range, period of time.
443
00:20:17.640 --> 00:20:21.366
However, it is, as the Commonwealth argued at trial,
444
00:20:21.366 --> 00:20:26.050
the Commonwealth's position is Mr. Spaulding had access to
445
00:20:27.996 --> 00:20:31.860
and was using the full 17,000,
446
00:20:31.860 --> 00:20:35.220
or had access to and had available to use to him
447
00:20:35.220 --> 00:20:40.170
the full $17,611 that he took from the evidence room,
448
00:20:40.170 --> 00:20:42.690
and he was using it, as this court has pointed out,
449
00:20:42.690 --> 00:20:44.670
as his own personal piggy bank.
450
00:20:44.670 --> 00:20:47.940
He was using it throughout this time, throughout many years,
451
00:20:47.940 --> 00:20:49.470
but throughout that time, he had that
452
00:20:49.470 --> 00:20:51.330
to help make mortgage payments,
453
00:20:51.330 --> 00:20:54.870
he had that to, I believe he made the mortgage payments
454
00:20:54.870 --> 00:20:56.340
previous to that 12-month period,
455
00:20:56.340 --> 00:20:59.040
but he had it to pay personal expenses,
456
00:20:59.040 --> 00:21:00.660
and this was money he needed.
457
00:21:00.660 --> 00:21:03.240
All of the financials were before the judge,
458
00:21:03.240 --> 00:21:05.861
and that actually was in Exhibit 71,
459
00:21:05.861 --> 00:21:08.520
which was submitted to this court.
460
00:21:08.520 --> 00:21:10.800
So there was no reason
(paper crinkling)
461
00:21:10.800 --> 00:21:12.540
for expert testimony in this case,
462
00:21:12.540 --> 00:21:15.090
because the judge had all of the information he needed
463
00:21:15.090 --> 00:21:16.830
to make that determination.
464
00:21:16.830 --> 00:21:20.040
However, as the Commonwealth argued at trial, again,
465
00:21:20.040 --> 00:21:21.810
Mr. Spaulding had this full amount.
466
00:21:21.810 --> 00:21:24.150
He had this full amount in his possession,
467
00:21:24.150 --> 00:21:28.260
and he did not return it until May 22nd, 2017
468
00:21:28.260 --> 00:21:33.260
after he was instructed to return it by the chief of police.
469
00:21:33.540 --> 00:21:38.540
So in that, he was using this money, the entirety of it,
470
00:21:39.030 --> 00:21:42.000
and he had it, and he didn't have a loan for this money.
471
00:21:42.000 --> 00:21:44.700
And also, I wanna highlight the fact
472
00:21:44.700 --> 00:21:48.690
that this just isn't cash, this is evidence room cash,
473
00:21:48.690 --> 00:21:51.690
and that was actually brought out at trial
474
00:21:51.690 --> 00:21:53.100
by the prosecutor, right?
475
00:21:53.100 --> 00:21:55.440
This isn't, when we normally think of cash,
476
00:21:55.440 --> 00:21:56.670
we normally think of something
477
00:21:56.670 --> 00:21:59.700
that maybe is more fungible, right?
478
00:21:59.700 --> 00:22:01.620
It's replaceable, and agreed,
479
00:22:01.620 --> 00:22:06.585
Mr. Spaulding did eventually return the evidence bags.
480
00:22:06.585 --> 00:22:07.418
[Justice Wolohojian] So do you think
481
00:22:07.418 --> 00:22:10.470
that the fair market value of evidence cash,
482
00:22:10.470 --> 00:22:11.670
as you called it,
483
00:22:11.670 --> 00:22:16.590
is different from the fair market value of other cash?
484
00:22:17.670 --> 00:22:22.170
I would say, Your Honor, I think that in both...
485
00:22:22.170 --> 00:22:24.120
I think that in both circumstances,
486
00:22:24.120 --> 00:22:26.610
it should be viewed as the prosecutor argued it,
487
00:22:26.610 --> 00:22:28.800
but I think there's an additional reason here,
488
00:22:28.800 --> 00:22:30.690
that because it's evidence room cash,
489
00:22:30.690 --> 00:22:32.970
there's no way to ever really replace that.
490
00:22:32.970 --> 00:22:35.310
And I think one of the things the trial judge
491
00:22:35.310 --> 00:22:37.290
brought out at trial is, well,
492
00:22:37.290 --> 00:22:40.530
I would view it as a face value if it was a consumable,
493
00:22:40.530 --> 00:22:43.860
like his tickets to a show, or tickets to a game,
494
00:22:43.860 --> 00:22:46.710
because once the event happens,
495
00:22:46.710 --> 00:22:49.290
whether or not the person who takes advantage
496
00:22:49.290 --> 00:22:51.960
of that privilege goes to the show,
497
00:22:51.960 --> 00:22:53.610
throws the tickets in the garbage,
498
00:22:53.610 --> 00:22:55.500
gets sick and doesn't get to attend,
499
00:22:55.500 --> 00:22:58.320
once the show is over, they have the ability
500
00:22:58.320 --> 00:23:01.260
to attend that show, to attend that game,
501
00:23:01.260 --> 00:23:04.290
and then once the show is over, it's done.
502
00:23:04.290 --> 00:23:06.960
You've secured the unwarranted privilege.
503
00:23:06.960 --> 00:23:09.810
They're of that face value, that full value
504
00:23:09.810 --> 00:23:11.370
of the tickets to the show,
505
00:23:11.370 --> 00:23:12.870
and you can't then press Rewind
506
00:23:12.870 --> 00:23:15.000
and put different tickets in its place.
507
00:23:15.000 --> 00:23:17.610
And I think that that would be the same
508
00:23:17.610 --> 00:23:19.350
as evidence room cash.
509
00:23:19.350 --> 00:23:22.590
These are, and the commonwealth actually presented evidence,
510
00:23:22.590 --> 00:23:24.090
and had the dockets, I believe,
511
00:23:24.090 --> 00:23:26.250
are in the record appendix of these cases,
512
00:23:26.250 --> 00:23:30.960
two of the cases that were ongoing when Mr. Spaulding
513
00:23:30.960 --> 00:23:33.153
took this money from them.
514
00:23:34.200 --> 00:23:38.640
He was breaking chain of custody, he was compromising cases,
515
00:23:38.640 --> 00:23:40.140
and these are not...
516
00:23:40.140 --> 00:23:42.330
He put back bills, but as we know,
517
00:23:42.330 --> 00:23:44.190
they weren't the same bills, right?
518
00:23:44.190 --> 00:23:48.700
There's 105 replacement bills in total in those three bags
519
00:23:49.590 --> 00:23:52.170
with a sum of over $5,000 at least,
520
00:23:52.170 --> 00:23:55.920
so there's at least 135 replacement bills in minimum.
521
00:23:55.920 --> 00:23:58.680
Within the 12-month period before he returned them,
522
00:23:58.680 --> 00:24:02.430
70 replacement bills totaling $2,880.
523
00:24:02.430 --> 00:24:04.500
He was using this money,
524
00:24:04.500 --> 00:24:07.380
and but he did return evidence bags,
525
00:24:07.380 --> 00:24:09.240
and yes, they had money in them,
526
00:24:09.240 --> 00:24:10.770
but it wasn't the same money.
527
00:24:10.770 --> 00:24:13.620
And so I do think that is an important distinction,
528
00:24:13.620 --> 00:24:16.860
and it was highlighted by the prosecutor at trial,
529
00:24:16.860 --> 00:24:20.520
but even with respect to cash, I think that any common...
530
00:24:20.520 --> 00:24:22.830
I don't think in looking at the statute,
531
00:24:22.830 --> 00:24:25.597
any reasonable person will look at the statute and say,
532
00:24:25.597 --> 00:24:28.530
"Over $1,000 in fair market value?
533
00:24:28.530 --> 00:24:33.270
Oh, well, then I can take a large, large sum of cash
534
00:24:33.270 --> 00:24:36.060
and use it how I want it,
535
00:24:36.060 --> 00:24:39.780
but as long as the interest accrued over a 12-month period
536
00:24:39.780 --> 00:24:44.124
wouldn't exceed $1,000, then I'm good under the statute.
537
00:24:44.124 --> 00:24:49.124
I'm not criminally liable, because I just get past that."
538
00:24:49.980 --> 00:24:51.690
It would be, oh-
Did the Commonwealth
539
00:24:51.690 --> 00:24:54.390
argue below that the fair market value
540
00:24:54.390 --> 00:24:57.000
was the face value of the cash?
541
00:24:57.000 --> 00:24:59.400
Yes, the Commonwealth's position throughout
542
00:24:59.400 --> 00:25:00.840
was that it's the face value of the cash.
543
00:25:00.840 --> 00:25:03.900
And how do you reconcile that with the theory of the case,
544
00:25:03.900 --> 00:25:05.880
which was that it was a loan?
545
00:25:05.880 --> 00:25:06.900
I don't think...
546
00:25:06.900 --> 00:25:10.410
So I don't think the theory of the Commonwealth's case
547
00:25:10.410 --> 00:25:12.960
was that it was a loan per se.
548
00:25:12.960 --> 00:25:14.400
That was what the judge said.
549
00:25:14.400 --> 00:25:17.130
I think that the Commonwealth's theory of the case
550
00:25:17.130 --> 00:25:19.560
was that he returned it, which he did.
551
00:25:19.560 --> 00:25:23.100
He returned the evidence bags with replacement bills,
552
00:25:23.100 --> 00:25:25.350
and I think in the indictment, it actually says
553
00:25:25.350 --> 00:25:30.350
that he returned the bags and he replaced the money.
554
00:25:30.690 --> 00:25:31.860
He replaced it.
555
00:25:31.860 --> 00:25:33.660
That is different than returning something.
556
00:25:33.660 --> 00:25:35.790
He replaced it with something else.
557
00:25:35.790 --> 00:25:37.623
So, but I don't think that
558
00:25:37.623 --> 00:25:41.463
from the Commonwealth's perspective, this was ever a loan.
559
00:25:42.390 --> 00:25:43.704
And-
560
00:25:43.704 --> 00:25:45.660
[Justice Wendlandt] So was the fair market value
561
00:25:45.660 --> 00:25:48.458
the 5,000, the 17,000?
562
00:25:48.458 --> 00:25:49.800
I think it was the 17,000,
563
00:25:49.800 --> 00:25:52.470
because they had the ability to use all of it.
564
00:25:52.470 --> 00:25:53.850
And if we look at some of the State
565
00:25:53.850 --> 00:25:54.999
Ethics Commissions cases-
566
00:25:54.999 --> 00:25:57.030
[Justice Wendlandt] And that's how the case was argued?
567
00:25:57.030 --> 00:26:02.030
It was, it was argued that he had the full $17,611, yes.
568
00:26:02.220 --> 00:26:05.160
And I wanna also touch upon the vagueness issue,
569
00:26:05.160 --> 00:26:09.750
because I think as a common sense person,
570
00:26:09.750 --> 00:26:13.080
a person using their common sense,
571
00:26:13.080 --> 00:26:16.080
reading the statute would not think,
572
00:26:16.080 --> 00:26:18.000
especially a public official,
573
00:26:18.000 --> 00:26:23.000
would not think that taking money from an evidence room,
574
00:26:23.909 --> 00:26:27.858
that they were not criminally liable.
575
00:26:27.858 --> 00:26:29.280
Especially a police officer.
576
00:26:29.280 --> 00:26:31.890
Especially a police officer, Your Honor, yes.
577
00:26:31.890 --> 00:26:34.680
There was clear fraudulent intent here.
578
00:26:34.680 --> 00:26:35.670
There was deceit,
579
00:26:35.670 --> 00:26:37.230
there was misrepresentation
(justice sighing)
580
00:26:37.230 --> 00:26:38.063
throughout.
581
00:26:38.063 --> 00:26:40.290
When Mr. Spaulding entered that evidence room,
582
00:26:40.290 --> 00:26:43.860
he knew that he was only supposed to be entering it
583
00:26:43.860 --> 00:26:46.830
to protect the evidence or look at the evidence
584
00:26:46.830 --> 00:26:49.140
in his capacity as a police officer.
585
00:26:49.140 --> 00:26:50.430
And how is this highlighted?
586
00:26:50.430 --> 00:26:54.510
This is highlighted from the fact that there was a key fob,
587
00:26:54.510 --> 00:26:57.660
and there was only three people had access
588
00:26:57.660 --> 00:26:58.800
to this evidence room.
589
00:26:58.800 --> 00:27:00.690
He knew what he was doing,
590
00:27:00.690 --> 00:27:02.550
and he was acting with deception
591
00:27:02.550 --> 00:27:04.020
when he went into that evidence room,
592
00:27:04.020 --> 00:27:05.490
and he took out that evidence,
593
00:27:05.490 --> 00:27:08.400
and he used it for his own personal use.
594
00:27:08.400 --> 00:27:10.110
And that continues throughout,
595
00:27:10.110 --> 00:27:12.690
that deception and that misrepresentation.
596
00:27:12.690 --> 00:27:15.000
It continues throughout through all of his acts
597
00:27:15.000 --> 00:27:15.963
of what he did.
598
00:27:17.130 --> 00:27:19.530
It continues when he's using that money
599
00:27:19.530 --> 00:27:22.410
for his personal expenses throughout that period of time.
600
00:27:22.410 --> 00:27:24.300
It continues from the time that he's informed
601
00:27:24.300 --> 00:27:27.570
by the police chief in October of 2016
602
00:27:27.570 --> 00:27:31.020
that he is going to, there's gonna be an audit,
603
00:27:31.020 --> 00:27:33.512
and even at that time, he does not divulge
604
00:27:33.512 --> 00:27:35.250
that he has this money.
605
00:27:35.250 --> 00:27:37.620
It continues through the time when he's actually asked
606
00:27:37.620 --> 00:27:40.620
about this money by investigators, and he lies,
607
00:27:40.620 --> 00:27:41.850
and says that he doesn't have it,
608
00:27:41.850 --> 00:27:43.110
and he doesn't know where it is.
609
00:27:43.110 --> 00:27:47.070
It continues through the time that he waits three days
610
00:27:47.070 --> 00:27:48.720
to contact the police chief,
611
00:27:48.720 --> 00:27:50.370
and then inform the police chief,
612
00:27:50.370 --> 00:27:52.170
and finally confessed to having it.
613
00:27:52.170 --> 00:27:53.520
And then it still continues,
614
00:27:53.520 --> 00:27:55.740
because even at that time, he isn't forthcoming,
615
00:27:55.740 --> 00:27:58.429
and even at that point, he lies
616
00:27:58.429 --> 00:28:00.450
and says the reason he took it
617
00:28:00.450 --> 00:28:03.150
was because he believed the bags had been compromised
618
00:28:03.150 --> 00:28:04.680
when in fact we know that's not true,
619
00:28:04.680 --> 00:28:08.850
which was shown by the ongoing investigation.
620
00:28:08.850 --> 00:28:12.960
So this all is just completely...
621
00:28:12.960 --> 00:28:16.050
There is no public official who would think
622
00:28:16.050 --> 00:28:18.780
that this was not acting with fraudulent intent,
623
00:28:18.780 --> 00:28:22.620
or that he was not obtaining an unwarranted privilege,
624
00:28:22.620 --> 00:28:24.990
which that term also commonly understood,
625
00:28:24.990 --> 00:28:29.910
an unjustified benefit by taking this amount of money
626
00:28:29.910 --> 00:28:31.440
throughout this period of time,
627
00:28:31.440 --> 00:28:35.613
having it available to use as his own personal piggy bank.
628
00:28:37.020 --> 00:28:39.390
If there's any other further questions from the court,
629
00:28:39.390 --> 00:28:41.390
otherwise I'll rest my brief, thank you.